Legal Policies
THIS POLICY IS SUBJECT TO MODIFICATION OR TERMINATION AT ANY TIME, WHETHER FOR CHANGES IN THE LAW, CHANGES TO OUR DESIGNATED AGENT, OR AT OUR CONVENIENCE WITHOUT ADVANCE NOTICE. YOU MUST CHECK BACK FREQUENTLY TO ENSURE THAT YOU SEE A CORRECT, CURRENT VERSION OF THE NOTICE.
SMART WAY COMMUNICATIONS DMCA Copyright Infringement Policy
Effective February 7, 2024
This is the official copyright infringement notification policy (“DMCA Policy”) for the website(s) and Service(s) owned, operated or provided by SMART WAY COMMUNICATIONS, LLC (“Smart Way,” “our,” “us,” or “we”). This DMCA Copyright Infringement Policy sets forth the procedures that are required for customers, subscribers, users and visitors (collectively, “Users”) to notify us of an alleged copyright infringement of any of our website(s) or Service(s) and the procedures undertaken by us to respond to such notices under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3) (“DMCA”).
Any capitalized terms that are not defined in this DMCA Policy shall have the same meaning given in our terms and conditions/use agreement for our website(s) or Service(s), (collectively, “Service Agreements”). This DMCA Policy is incorporated by reference into our Service Agreements. The Service Agreements and this DMCA Policy are legally binding on all Users.
How to Provide Notification for Claims of Copyright Infringement
If you have a good faith reasonable belief that any material on our website(s) or Service(s) are infringing on your copyrights, and you wish to notify us of such alleged copyright infringement, you must provide the following information in a written communication in the form required by the DMCA to our Designated Agent (see below for contact information); it must include substantially the following information:
- A physical or electronic signature of the owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on our Website or Service are covered by a single notification, a representative list of such works at that Website or Service;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit our Designated Agent to contact the complaining party, such as a postal address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- The statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may contact our Designated Agent for Notification of Claimed Copyright Infringement at:
Name of Service Provider: Smart Way Communications, LLC.
Name of Designated Agent: Ryan Grewell
Postal Address: 141 Garland Dr, SW New Philadelphia, Oh 44663
Telephone Number: 800-340-9093
Email Address: [email protected]
If you send your claim via email, you must put “DMCA Infringement Notification” in the subject line of the email. The above address is intended only for notifications and any related correspondence regarding claims of copyright infringement for the Service(s) or website(s) under this DMCA Policy. Correspondence pertaining to other matters will not receive a response if sent to the above contact information.
We will remove or disable access to any posted material for which we have received a notice of claimed copyright infringement in substantial conformance with the DMCA. United States law provides significant penalties for submitting a false or fraudulent claim of copyright infringement.
WE CAUTION YOU THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO SEVERE CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEY’S FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
If we have an accurate postal mail or email address, we will also send a notification to the User who posted the material informing the User that the material was removed or access to it was blocked because of claimed copyright infringement. The User has a right to send us a counter-notice challenging our removal of the User’s material, or disabling his/her access to the website or Service as described below.
We will terminate the privileges, subscription, membership, and/or account of any User who repeatedly uses our website(s) or Service(s) to unlawfully transmit, download, upload, broadcast, stream or post copyrighted material without a license, express consent, valid defense or fair use exemption to do so. Please see the “Repeat Infringer Policy” below.
Repeat Infringer Policy.
Under certain circumstances we will terminate the privileges, account(s) and/or membership of Users that are repeat infringers. A person does not have to be found guilty of copyright infringement in a court to be deemed a repeat infringer. We will review the circumstances of each situation and the decision to terminate will be at the sole discretion of our Designated Agent based on the frequency and number of complaints against that User. Generally, we will terminate a User’s account, membership, or subscription when that User has been notified for 2 complaints/violations over a period of 6 months; 4 notices over a period of 12 months. However, we reserve the right to terminate a User at any time as we deem appropriate based on the circumstances of the User’s actions. A complaint/violation will not be assessed against the User if the User has filed a counter-notice of infringement, and there are no further legal actions from the copyright owner or owner’s agent.
Each User understands, acknowledges, and agrees that if his or her account, membership or subscription is terminated pursuant to this DMCA Policy, the User will not attempt to establish a new account, membership or subscription under any name, real or assumed. The User further understands, acknowledges, and agrees that by opening a new account, membership or subscription after being terminated pursuant to this DMCA Policy, he/she will have violated this DMCA Policy and Service Agreements and shall indemnify and hold us harmless for any and all liability that we may incur.
How to Appeal the Removal of Material with a Counter-Notice If You Believe the Content Was Not Infringing
If you are a User who posted material that was removed in response to a notice of infringement or your access to our website(s) or Service(s) were disabled and you believe that such material was removed or disabled actions were due to a mistake or misidentification, you may request that we restore the posting or cease blocking access to the material by sending us a written communication via postal mail, email, or facsimile to our Designated Agent for receiving notices of infringement. (See above for our Designated Agent’s contact information). This counter-notice must include substantially the following information:
- A physical or electronic signature of the User of the Website or Service;
- Identification of the material that has been removed or to which access has been disabled and the location on our Website or Service at which the material appeared before it was removed or access to it was disabled.
- The statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- The User’s full name, postal address, telephone number and email address (if applicable), and the statement that the User consents to the jurisdiction of the Federal District Court for the district in which the address is located, or if the User’s address is outside of the United States, for any judicial district in which SmartWay or its appropriate subsidiary may be found, and that the User will accept service of process from the person who provided notification of copyright infringement under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.
When we receive a counter-notice that complies with these requirements, we will forward it to the person who submitted the original claim of copyright infringement. Please note that when we forward the counter-notice, it includes your Personal Information. By submitting a counter-notification, you consent to having your Personal Information revealed to third parties.
We also reserve the right, but not the obligation, to restore the material that was removed or to allow access to the material. As stated in our Service Agreements, we can at our discretion remove any material for any purpose at any time. If we receive a counter-notice from the User that posted the material subject to a claim of copyright infringement, we will take the following actions: 1) We will forward a copy of the counter-notice to the person who sent the notice of infringement and inform him/her that the removed material may be restored or we may allow access to the material in ten (10) business days. 2) If during those 10 business days, the person who sent the original notice of infringement notifies us that he/she has filed an action seeking a court order to restrain the User from infringing activity relating to the material on our website(s) or Service(s), we will not restore or allow access to the material. 3) Otherwise, we may restore the material and allow access at our sole discretion.
However, as a User, you acknowledge, understand and agree that we generally retain the right to modify, move, remove, block access to, replace or decline to restore material at any time for any reason without notice to or any liability to the posting User.
Please contact us at [email protected] if you have any questions regarding this DMCA Policy. Do NOT send notices of infringement to this email address; see the above contact information for our DMCA Designated Agent.
© Copyright 2023 SMART WAY COMMUNICATIONS, LLC – All Rights Reserved
- Transparency
- NO Blocking of Internet content, subject to reasonable network management as described below
- NO Throttling of Internet content, subject to reasonable network management as described below
- NO Unreasonable Discrimination
- NO Paid Prioritization of Internet content
- Freedom of Customers to access lawful content
- Freedom of Customers to use non-harmful applications of their choice
- Freedom of Customers to attach non-harmful personal devices
- NETWORK MANAGEMENT PRACTICES
- Blocking: Other than reasonable network management practices disclosed below, we do not block or otherwise prevent a Customer from lawful content.
- Throttling: Other than reasonable network management practices disclosed below, we do not throttle or otherwise degrade or impair access to lawful Internet traffic on the basis of content, application, service, user, or use of a non-harmful device.
- Affiliated Prioritization: We do not directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, to benefit any of our affiliates, defined as an entity that controls, is controlled by, or is under common control with Smart Way.
- Paid Prioritization: We do not directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, in exchange for consideration, monetary or otherwise.
- Congestion Management: Our Service is provided on a “best efforts” basis and our congestion management practices are in place to ensure that all Customers experience as high quality a service under varying usage periods. Our typical frequency of congestion is managed via fq_code. Customers select how much high-speed data they receive under a designated Service plan; the specific Service plan is set forth in the COS. If a Customer exceeds his/her/its selected high-speed allotment during a service cycle, we may reduce the Customer’s data speed for the remainder of that service cycle. We do not impose any additional usage limits for the Service. In a manner consistent with our Service Agreement and Privacy Policy, we may monitor network traffic to ensure capacity is sufficient to maintain an efficient network load, to perform diagnostics and to otherwise manage and enhance the Smart Way Network. To help manage traffic on the Smart Way Network, during times of high demand, we may allocate available bandwidth among Customers on an equal basis, by account level. In addition, we may prioritize certain applications, such as public safety and voice, over other traffic types.
- We may also use specific traffic-shaping software in order to manage bandwidth allocation and prioritize data packets to ensure optimal network performance and fair usage across all customers.
- We may also conduct deep packet inspection (“DPI”), which is a type of filtering that will examine the data and/or header part of Internet traffic for viruses, spam, intrusions, or protocol non-compliance that may harm the Smart Way Network; to determine the routing of Internet traffic; for internal statistical and performance purposes; for lawful intercept capabilities, and/or enforcement of our Service Agreement. We do not use DPI to conduct data mining for targeted marketing or advertising, or anti-competitive purposes.
- If we determine, in our sole and reasonable discretion, that the manner in which a Customer is using the Service negatively impacts other Customers or the Smart Way Network, we reserve the right to apply additional congestion management techniques.
- Application-Specific Behavior: Subject to the qualification that Smart Way may reasonably limit or rate-control specific or classes of applications, or other specific protocols or protocol ports as set forth below, Smart Way generally treats all lawful applications identically. However, we reserve the right to block or limit access to any applications, ports or protocols that we determine, in our sole and reasonable discretion, may expose the Smart Way Network to potential legal liability, harm the Smart Way Network or otherwise interfere with or impair the experience of other Customers on the Smart Way Network. The Smart Way Network may also not support certain high-bandwidth video and voice applications, or peer-to-peer applications that carry unlawful or harmful content/software.
- Device Attachment Rules: Generally, you do not need approval to connect a third-party device to the Smart Way Network. Smart Way does not limit the types of devices that can be connected to the Smart Way Network, provided they are used for lawful purposes and do not harm the Smart Way Network, violate our Service Agreement, or harm other users of the Network. However, if we determine, in our sole and reasonable discretion, that the connection of a particular type of device to the Smart Way Network negatively impacts other users or the Smart Way Network, or may expose us to potential legal liability, we reserve the right to limit or restrict Customers’ ability to connect such type of device to the Smart Way Network. If you need technical support services to assist you in the installation and configuration of third-party devices, at [email protected]. Depending on your level of Service and your COS, there may be an additional monthly fee for IT support services.
- Security: We have taken reasonable physical, technical and administrative safeguards to protect the integrity and operations of the Smart Way Network. We monitor the Smart Way Network for security threats and may prohibit certain activity on the Smart Way Network that we may deem, in our sole and reasonable discretion, poses a potential risk to the Smart Way Network or to other Customers. Triggering conditions include but are not limited to denial-of-service activity, IP address or port scanning, excessive account login failures; or certain Internet addresses that are disruptive, malicious and typically persistent. If we notice excessive Customer connections, including but not limited to Wi-Fi connections, that are harmful or are commonly used to disrupt the normal use of the Smart Way Network or use by other Customers, we will attempt to notify the Customer to work collaboratively to remedy the issue to the extent possible; however, we reserve the right as a reasonable security practice, without advance notice, to block any Customer traffic, ports, protocols, devices, or applications (such as peer-to-peer applications that may carry malicious software or are known to be problematic) that we determine, in our sole and reasonable discretion, may cause harm to the Smart Way Network or to other Customers, or may expose us to potential legal liability.
- PERFORMANCE CHARACTERISTICS AND COMMERCIAL TERMS
- Service Description and Pricing: Links to a current description of the categories of Internet access service offered to residential and business Customers are available here, including pricing, expected and actual access speed and latency, and the suitability of the service for real-time applications:
- Standard, details available at https://thinksmartway.com/
- Standard Streaming, details available at https://thinksmartway.com/
- Standard Ultimate, details available at https://thinksmartway.com/
- Premium Standard, details available at https://thinksmartway.com/
- Premium Streaming, details available at https://thinksmartway.com/
- Premium Ultimate, details available at https://thinksmartway.com/
- Business Standard, details available at https://thinksmartway.com/
- Business Premium, details available at https://thinksmartway.com/
- Impact of Non-Broadband Internet Access Service Data Services (also known as “Specialized Services”): We do not offer data-related Specialized Services to Customers that will affect the last-mile capacity available for, and the performance of, our broadband Internet access Service offering. However, there may be a temporary slowing of Internet speed when using any of Smart Way Communications’ broadband and VoIP services at the same time.
- Various Fees. We will assess the following fees for our Service, where applicable. Please see our Service Agreements for pricing details.
- Installation Fee:
- Late Fee
- Cancellation Fee:
- Reconnection Fee for Terminated Service Due to Non-Payment:
- Service Change Fee:
- Equipment Fee
- ACH Overdrawn Check Fee:
- US Postal/Paper Bill Fee:
- Fees for Additional Services: Smart Way does not have additional service fees:
- Network Speeds: Smart Way offers a standard range of download speeds to residential Subscribers varying from 25 Mbps to 250 Mbps. The standard range of download speeds for business Subscribers is from 35 Mbps to 250 Mbps. The Smart Way Network is designed to support these speeds to help ensure that every Customer receives the speeds to which they have subscribed. Smart Way however cannot guarantee speeds at all times, as there are many factors and conditions beyond Smart Way’s control that can affect Internet performance. Some of these external factors and conditions are:
- Performance of Subscriber computer and/or router
- Type of connection to Subscriber’s own equipment (i.e., Wi-Fi)
- Congestion of websites and services on Internet
- Website or service limiting speeds on the Internet
- Internet and equipment performance outside of the Smart Way Network
- Acceptable Use: As set forth in the Service Agreements, all of Smart Way’s service offerings are subject to the Acceptable Use Policy (“AUP”) available here: https://thinksmartway.com/legalhttps://thinksmartway.com/legal
- Privacy Policy: Smart Way’s current Privacy Policy is available here: https://thinksmartway.com/legalhttps://thinksmartway.com/legal
- Redress Options: Smart Way endeavors to respond to all Customer concerns and complaints in a timely and fair manner. We encourage Customers to contact us at 800-340-9093, or [email protected] or U.S. postal mail to discuss any complaints or concerns as they arise. Our postal address is 141 Garland Drive SW, New Philadelphia, OH 44663, ATTN: LEGAL
- Disputes and Arbitration: The Service Agreement requires the use of arbitration to resolve disputes and otherwise limits the remedies available to Customers in the event of a dispute.
- FCC REQUIREMENTS AND COMPLAINT PROCESS
- ADDITIONAL DISCLAIMERS
SMART WAY COMMUNICATIONS, LLC
ACCEPTABLE USE POLICY
All Customers must comply with the policies and terms of this Acceptable Use Policy (the “AUP” or “Policy”). This Policy, including its use and behavior restrictions, is in addition to the restrictions contained in the Smart Way Communications Master Services Agreement (“MSA”) and has been incorporated by reference into the MSA. Any capitalized terms used herein shall have the same meaning as defined in the MSA.
This AUP applies to the various services offered by Smart Way, including broadband access service and VOIP service (collectively, “Services”). Customer understands, acknowledges and agrees that Smart Way reserves the right to immediately suspend or terminate any Service without prior notice for Customer’s failure to comply with any portion of this Policy or the MSA. (Please see the for details on the suspension and termination policy.) Any violation of this Policy and Service Agreement may also lead to prosecution under local, state and/or federal law.
(a) “Acceptable use” is hereby defined as the normal activities associated with the Customer’s use of Smart Way’s Services, including without limitation, usage of the Smart Way Network and any other facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet-related features. Customer’s acceptable use of the Services will depend on whether Customer’s Services are designated as residential or commercial.
(i) Residential designation includes all Services designated primarily for personal, family and household use within a single home. Customer shall not use, or allow others to use the Services to operate any type of business or commercial enterprise as a primary purpose or for long-term.
(ii) Commercial designation includes all Services designed for use by a business, governmental, or institutional entity, or by an individual to provide goods or services for sale or lease or operating a commercial enterprise.
(iii) Customer shall not advertise that the Services are available for use by third parties or unauthorized users. Customer shall not resell or redistribute, or allow others to resell or redistribute, access to the Services in any manner, including, but not limited to, wireless technology.
“General Prohibited Activities for All Services” include without limitation the following, whether any such use or behavior is conducted negligently, recklessly, knowingly, or intentionally:
(i) Misusing the Services, regardless of whether the inappropriate or unlawful use or activity was committed by an invitee, licensee, agent, servant, guest, patron, visitor, employee or any other person who gains access to the Services. Therefore, Customer is responsible to take steps to ensure that others do not gain unauthorized access to the Services, for instance by strictly maintaining the confidentiality of Customer’s passwords or by appropriately protecting the use of Customer’s computer, network or any wireless devices. Customer is solely responsible for the security of any device Customer choose to connect to the Services, including any data stored on that device.
(ii) Using Services to distribute or receive content that is illegal, threatening, abusive, harassing, defamatory, libelous, tortious, malicious, indecent, obscene, deceptive, fraudulent, invasive of another’s privacy or other rights, or otherwise objectionable in Smart Way’s sole discretion.
(iii) Using Services in connection with commercial surveys, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise) not in compliance with the federal CAN-SPAM Act or the Telephone Consumer Protection Act (“TCPA”) and applicable state laws.
(iv) Advertising, soliciting, selling or buying, or attempting to buy and sell any goods for any non-personal or non-household purposes if using residential Services.
(v) Harvesting or otherwise collecting information about others, including email addresses, telephone numbers, or other Personal Information without consent.
(vi) Creating a false identity for the purpose of, others as to the identity of the sender or the origin of a message or call, website or mobile application (“App”).
(vii) Transmitting or uploading any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs or software or other material protected by intellectual property laws, rights of privacy or publicity or any other Applicable Law unless Customer owns or controls the rights thereto or have received all necessary authorizations.
(viii) Interfering with or disrupting networks connected to the Services or violate the regulations, policies or procedures of such networks.
(ix) Attempting to gain unauthorized access to the Services, other accounts, computer systems, devices, or networks connected to the Services, through password mining or any other means.
(x) Hosting any type of harmful publicly accessible file sharing, gaming, or email server including, but not limited to HTTP, FTP, SMTP, POP3, and Peer-to-Peer that could interfere with the technical operations of the Smart Way Network, or could interfere with another Customer or user’s use and enjoyment of the Services.
(xi) Using the Services or take any action, directly or indirectly, that will result in excessive consumption or utilization of the Services or Smart Way Network resources, or which may weaken network performance, as determined in Smart Way’s sole discretion, such as (a) using the Services to host a web server site which attracts excessive traffic at Customer’s location; (b) continuously uploading or downloading streaming video or audio, USENET hosting, or continuous FTP uploading or downloading; (c) and continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system. These activities can hamper the delivery of or disrupt the technical performance of the Services to all Customers.
“Prohibited Internet Service Activities” specifically include without limitation the following, whether any such use or behavior is conducted negligently, recklessly, knowingly, or intentionally:
Using background and/or server-type applications, including without limitation IRC bots, HTTP servers, MUDs, and any other harmful process which were initiated by the Customer that continues execution on the system upon Customer logout. FCC authorized smart home systems and IoT devices are excluded from this prohibition.
Storing files on the Smart Way Network that are not used regularly for extended periods of time, including without limitation, Customer Material. FCC authorized smart home systems and IoT devices are excluded from this prohibition. Customer should use cloud-based storage programs such as One Drive or iCloud to store any Customer Material.
Flooding or abusing other Customers or users, including without limitation, ICMP flooding, mail bombing (sending large amounts of email repeatedly to a person for purposes of harassment), phishing, mass mailings to multiple addresses via bulk email not in compliance with the federal CAN-SPAM Act and Telephone Consumer Protection Act, MSG/CTCP flooding on IRC, as well as other, less common methods. “Bulk Email” is defined as the same or similar email messages sent to more than twenty-five (25) recipients.
Using programs such as packet sniffers, password crack programs, or similar utilities or applications to access Smart Way Network or systems.
Sharing Services with another person to avoid payment of a second or upgraded Service. Customer may connect multiple computers/devices within a single location to Customer’s modem, router, and/or radio to access the Internet Service, but only through a single Smart Way-issued IP address.
Using flood pinging, broadcast pinging, multicast, or IGMP use outside of the private network.
Using any application, software, or technique to scan any host’s ports.
Abusing email, including without limitation, sending unsolicited messages not in compliance with the CAN-SPAM Act or TCPA, sending harassing and/or threatening messages, and forging of email addresses to make the email appear to be from another person.
Abusing USENET services or social network platforms, including without limitation, forging of addresses, harassment/threats, posting of the same message to multiple newsgroups (spamming), as well as the posting of information in newsgroups or platforms where it is not relevant and unwanted.
Using or promoting pyramid/money-making schemes, including without limitation, the transfer of information or solicitation of persons to extort money or other valuables.
Using pirated software to avoid the purchase of any software such as Adobe Photoshop, Microsoft Office, etc. and exporting software or technical information in violation of U.S. export control laws.
Copying, streaming, broadcasting, posting or any distribution of copyrighted material or software without the authorization of the copyright owner, including without limitation, the digitization and distribution of photographs or other content from magazines, books, or other copyrighted sources.
“Prohibited VoIP Activities” include without limitation the following:
Creating a false Caller ID identity (“ID Spoofing”) or false email/SMS address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services.
Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls including texts).
Sending pre-recorded or artificial voice calls (also known as “Robocalls”) for any reason without the prior express consent of the recipient.
Trunking or forwarding Customer’s Smart Way VoIP number to another phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
Using or hosting bulk call-in lines (e.g., customer support or sales call centers, “hotlines,” 900 numbers, sports-line numbers, etc.) for Residential and Commercial Services.
If Users engage in conduct while using the Service that is in violation of this AUP or is otherwise illegal or improper, MWI reserves the right to suspend and/or terminate the Services or the Customer’s access to the Service. Where appropriate, MWI will attempt to notify Customer of any activity in violation of the Policies and request that Customer and its User(s) cease such activity. However, in cases where the viability of the Services is threatened or cases involving UCE/SPAM, mail relaying, alteration of source IP address information, denial of service attacks, harassment or copyright infringement, nuisance or any other illegal activity, MWI reserves the right to suspend or terminate the Services or the Customer’s access to the Services without prior notification.
In addition, MWI may take any appropriate action, legal or otherwise, against Customer for violations of the Policy or any Applicable Law. Furthermore, MWI makes no promise, nor alleges any obligation, to monitor or police activity occurring via the Services.
(f) Complaints regarding email, or USENET abuse, SPAM or Illegal Use or System or Network Security issues, should be sent to [email protected]. Customer understands, acknowledges and agrees that the unlawful, inappropriate and/or prohibited use and content transmitted through the Smart Way Services could subject Customer to criminal as well as civil liability, in addition to any actions or penalties as provided in the MSA.
# # #
Smart Way Communications Master Services Agreement
This Master Services Agreement (“Service Agreement” or “MSA”), consisting of these terms and conditions and all other documents referenced herein by and between Smart Way Communications, LLC (“ Smart Way,” “we,” “us,” and “our”) and the individual or entity named on the Confirmation of Sale (“COS”) or DIA Proposal (as defined below) to which this Agreement is attached (“Customer,” “you,” or “your”), sets forth the terms and conditions under which Smart Way will make available its Standard Internet Access Service, Dedicated Internet Access Service, telephony services, and related services and components (collectively, the “Service”). This Service Agreement governs both residential and commercial Customers. “Affiliate” means an entity that controls, is controlled by or is under common control with Smart Way.
By using the Service, Customers agree to be bound by the terms of this Service Agreement and all documents incorporated by reference herein, including without limitation Smart Way Privacy Policy, Open Internet Policy, DMCA Copyright Infringement Notification Policy, Confirmation of Sale (“COS”)(applicable only for Standard Internet Access Service), and Additional Terms (terms and conditions that will govern a new service offering) as each may be amended from time to time. If there is a conflict between this Service Agreement and any Additional Terms, the Additional Terms shall govern. Premium Dedicated Internet Access (“DIA”) Service Customers are also subject to a separate written proposal that details their customized service (“DIA Proposal”), which is also incorporated by reference into this MSA.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT CUSTOMER UNDERSTANDS EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO CUSTOMER IN THE EVENT OF A DISPUTE.
THIS SERVICE AGREEMENT INCLUDES MANY IMPORTANT TERMS, INCLUDING WARNINGS THAT YOU MAY BE UNABLE TO USE TELEPHONY SERVICE FOR 911 OR OTHER EMERGENCY CALLS UNDER CERTAIN CIRCUMSTANCES, AND LIMITS AND DISCLAIMERS ON SMART WAY’S LIABILITY. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE.
Smart Way regularly updates and amends this Service Agreement, the Privacy Policy, the Open Internet Policy, DMCA Copyright Infringement Notification Policy, and other documents incorporated by reference in this Service Agreement. Smart Way will communicate any such updates or amendments to Customer in accordance with Section 5(a). Customer may obtain, at no charge, a copy of the current Service Agreement or any documents incorporated by reference herein by visiting Smart Way’s website or by contacting Smart Way.
- GENERAL OVERVIEW. This Service Agreement governs the following components and services defined under Smart Way’s Service. Customer may select from a menu of standard residential or commercial service(s) based on Customer’s needs. Details about the following can be found on Smart Way’s website, unless noted otherwise https://thinksmartway.com
- Standard Internet access service – Internet broadband access service for residential and commercial Customers
- Dedicated Internet Service (“DIA Service”) – Premium Internet broadband access service for high-volume commercial/government/institutional Customers
- Electronic mail
- Voice Service – Voice over Internet protocol (VoIP) phone service Smart Way provides for voice calls.
- Customer technical/repair support, including support technicians
- EQUIPMENT AND REQUIREMENTS FOR PROVISION OF THE SERVICE. Specific terms and conditions that govern a DIA Service Customer’s use of their own equipment or Smart Way Equipment are set forth in the DIA Proposal. The section only governs Standard Internet Access Service Customers:
- Customer Equipment. To use the Service, Customer must have a personal computer or other device and other equipment meeting Smart Way’s most recent “Minimum Customer Equipment Specifications,” which are defined on the Smart Way’s website and may be modified from time to time by Smart Way. The Minimum Customer Equipment Specifications may change, and Smart Way may make reasonable efforts to support previously acceptable configurations; however, Smart Way is not obligated to continue to provide such support. Although Smart Way is under no obligation to do so, Smart Way may, and Customer authorizes Smart Way to, perform any updates and/or changes to Customer’s equipment, on-site or remotely, from time to time as Smart Way deems necessary, in Smart Way’s sole discretion. Customer will direct any questions concerning third-party hardware or software to the manufacturer. Smart Way has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that Customer elect to use in connection with the Services. As set forth below and in the Open Internet Policy, Customer is not permitted to connect any harmful equipment to the Smart Way Equipment (as defined below). Customer understands that failure to comply with this restriction may cause damage to the Smart Way Networks and subject Customer to liability for damages and/or other liability. Customer understands, acknowledges and agrees to not alter, modify or tamper with the Smart Way Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by Smart Way.
- Smart Way Equipment. Customer acknowledges that at the time of installation of the Service, the equipment owned and operated by Smart Way listed on the COS was installed (the “Smart Way Equipment”) at a location and in a manner authorized by Customer. Customer further acknowledges that the Smart Way Equipment may, at Smart Way’s sole discretion, be refurbished or otherwise used equipment. Customer agrees that the Smart Way Equipment was installed at a location and in a manner authorized by Customer. The Smart Way Equipment is and shall remain the property of Smart Way, and will be provided to the Customer under the terms set forth in the COS. At such time as Customer or Smart Way terminate the Service, Customer will allow access to allow Smart Way employee to remove equipment within fifteen (15) calendar days, and in accordance with Smart Way’s then-current return procedures. In the event that Customer has not permitted access for Smart Way Equipment removal as set forth in the previous sentence, or in the event that the Smart Way Equipment is damaged or otherwise inoperable, Customer will pay each applicable “Equipment Non-Return Fee” listed in the COS.
- Voice Service Requirements and Availability. Customer must supply certain facilities, such as a phone handset or equivalent, installed phone wiring and jacks, and a powered electrical outlet. Customer is responsible for supplying and ensuring that the facilities Customer supplies are compatible with the Service and meet federal and other applicable standards. Customer represents that Customer either owns Customer’s facilities or has the right to use the facilities in connection with the Voice Service. Smart Way shall have no obligation to provide, maintain, support, or service Customer’s facilities. If Customer’s Internet connection is terminated, suspended, or disconnected for any reason, the Voice Service will not be available until Customer reestablishes Customer’s Internet connection with Smart Way or whichever Internet provider Customer utilizes.
- For Voice Customers requesting that Smart Way port an existing phone number from a prior carrier, a signed Porting Letter of Agency of Authorization (“PLA”) must be on file before Service will be provided. The PLA gives legal authorization to Smart Way to act as Customer’s agent, to make any and all inquiries necessary for the purpose of obtaining customer service record information and to act as the Customer’s agent for the purpose of taking any and all actions required (including the removal of any account protection/freezes) to become Customer’s local service provider and to implement other services described herein for all of the Customer’s physical service and billing locations including changing Customer’s long distance carrier(s).
- The Customer gives Smart Way authorization to notify all appropriate parties, including the Customer’s local and long distance carrier, of the Customer’s choice of carriers and to make the necessary changes for the Customer’s current and future services without further permission. It is the customer’s responsibility to terminate service from prior local and long distance carriers after activation of Smart Way’s Voice Service.
- The Customer also agrees to indemnify Smart Way, its employees, and agents from any liability resulting from any credit injury, or client privacy issue, or liability to any third party for pre-existing obligations, the Customer may have regarding local and/or long distance services.
- Customer’s Obligation to Maintain Power to Smart Way Equipment. Customer understands and agrees that: (i) Customer must provide electrical power and a continuous connection to the power grid to Smart Way Equipment at all times (including, without limitation, when Customer is not using the Service), and (ii) Customer’s failure to provide such power and continuous connection may result in damage to the Smart Way Equipment or to Customer’s computer, equipment, property or premises, for which damage Customer will be solely responsible.
- Replacement and Upgrade of Smart Way Equipment. (i)For a one-year period after
the date of installation, Smart Way provides a limited warranty against any defect in materials or workmanship in the Smart Way Equipment that is warranted by the manufacturer of such Smart Way Equipment. During this one-year period, in the event there is a problem with the Smart Way Equipment that is, as determined by Smart Way in its sole discretion, not a result of action or inaction on the part of Customer (see below for details), and that cannot be corrected either over the telephone or on-site, Smart Way will, as its sole obligation and Customer’s sole remedy for such problem, repair or replace such Smart Way Equipment at Smart Way’s expense. (ii) Smart Way shall have no obligation to repair, replace or otherwise upgrade, any Smart Way Equipment that has been, in Smart Way’s sole discretion, damaged or otherwise requires repair, replacement or upgrade as a result of damage or disruption caused by misuse or neglect or otherwise caused by Customer, including, without limitation, damage or disruption caused by Customer’s failure to comply with Section 2(e) herein or by Customer’s failure to comply with the last sentence of Section 2(a) herein. Customer understands, acknowledges and agrees that this warranty expressly excludes defects in the Smart Way Equipment caused by acts of nature (such as, but not limited to, lightning damage), damage from misuse or neglect, water damage, damage caused by Customer’s failure to comply with Section 2(e) herein or damage or other disruption caused by Customer’s failure to comply with the last sentence of Section 2(a) herein. After the one-year warranty period, Customer will be solely liable for any and all damage to any Smart Way Equipment. Customer understands, acknowledges and agrees that Smart Way may from time to time require upgrades or replacement of the Smart Way Equipment to provide continued quality or service, and Customer will be obligated to pay the then-applicable “Equipment Upgrade Fee” as established by Smart Way.
- Customer understands, acknowledges and agrees that prior to Smart Way servicing any Customer equipment or Smart Way Equipment, it is Customer’s responsibility to (i) back-up the data, software, information or other files stored on Customer’s computer or other device including but not limited to disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (ii) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Customer’s equipment. Under no circumstances shall Smart Way and/or its Operational Service Provider, be liable under any circumstances for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media. An Operational Service Provider is a third-party-owned company that provides or performs services on Smart Way’s behalf, to help serve Customers better, or to perform internal functions that support Smart Way’s Service and operations.
- ACCESS TO CUSTOMER’S PREMISES. Customer hereby grants Smart Way and its Affiliates, and each of their respective employees, contractors, representatives, agents, and Operational Service Providers the right to enter Customer’s property and premises at any time for the purpose of operating or maintaining the Smart Way Equipment or the Smart Way Networks, retrieving Smart Way Equipment or fulfilling its obligations or exercising its rights under this Agreement. Smart Way shall provide Customer with reasonable advance notice of any such planned access, except when, in the reasonable opinion of Smart Way, an emergency or other exigent circumstance exists that would require Smart Way to immediately enter Customer’s property and premises.
- CUSTOMER’S REPRESENTATIONS, RESPONSIBILITIES AND WARRANTIES. If Customer is an individual, Customer represents and warrants that he or she is at least 18 years of age and has legal authority to execute this Agreement. If Customer is a commercial entity, the individual executing this Agreement represents and warrants he or she has legal authority to execute this Service Agreement on behalf of Customer.
- This Service is personal to Customer and Customer represents and warrants that it will not assign, transfer, resell or sublicense Customer’s rights under this Agreement unless specifically permitted by the terms of this Agreement. (i) For residential Customers, Customer represents and warrants that the Service and the Smart Way Equipment shall be used only by Customer and by members of Customer’s immediate household living with Customer at the same address, and Customer will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured. (ii) For commercial Customers, Customer represents and warrants that the Service and the Smart Way Equipment shall be used only by Customer and by authorized members of Customer’s business located at the same address, and Customer will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured.
- Customer represents and warrants that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement and any other documents incorporated by reference in this Service Agreement, whether such breach results from Customer’s use of the Service or by another person using the Service via Customer’s equipment or Smart Way Equipment.
- Customer represents and warrants that Customer will not use the Service in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third-party; (ii) violates any local, state or federal statute, ordinance or regulation, or this MSA; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any officer, employee, agent, representative or Operational Service Provider of Smart Way or its Affiliates; or (v) transmits any virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program.
- Customer represents and warrants that the personally identifiable information (“Personal Information”) Customer provided and will provide to Smart Way during the term of this Service Agreement, including without limitation Customer’s legal name, email address for communications with Smart Way (such email address, as the same may be modified from time to time by Customer upon notice to Smart Way, the “Account Email Address”), Service address, billing address, telephone number(s), and payment data (including without limitation information provided when authorizing Automated Clearing House payments or other recurring payments) and Non-Personal Information, such as but not limited to the number of computers on which the Service is being accessed (all such information, collectively, the “Customer Information” for purpose of this Service Agreement is accurate, complete and current.
- Customer represents and warrants that there are no legal, contractual or similar restrictions on the installation of the Smart Way Equipment in the location(s) and in the manner authorized by Customer and that Customer is responsible for ensuring compliance with all regulations, applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the Smart Way Equipment and Service, for paying any fees or other charges and obtaining any permits or authorizations necessary for the installation of the Smart Way Equipment and/or provision of the Service (collectively, “Legal Requirements”) and the payment of any fines or similar charges for violation of any applicable Legal Requirements.
- Customer represents and warrants that when Customer transmits, uploads, posts, or submits any Customer Material (as defined herein) using the Service, Customer has the legal right to do so and that Customer’s use of such Customer Material does not violate any copyright or trademark laws or any other third-party rights. Customer Material collectively includes without limitation any lawful or unlawful software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content – anything installed by Customer on Smart Way’s servers not provided by Smart Way.
- THE SERVICE AND PRIVACY. Smart Way has established a Privacy Policy (“Privacy Policy”), which governs Smart Way’s collection, use, disclosure, management and security related to Customer’s personally identifiable information (“Personal Information”).
- Customer agrees that Customer received a copy of the then-in-effect Privacy Policy at the time Customer executed this Service Agreement. Smart Way may update or amend the Privacy Policy at any time without Customer’s prior consent, unless such consent is required by law. Smart Way will, however, provide notice of any such changes or amendments as stated in Smart Way’s Privacy Policy. Customer understands, acknowledges and agrees that Customer’s continued use of the Service after notice of any changes or amendments have been provided will indicate Customer’s acceptance of such changes, except where further steps are required by applicable law. All such updates or amendments shall be deemed to be incorporated by reference into this Service Agreement.
- Smart Way does not routinely monitor a Customer’s activity for violation of this Service Agreement and Smart Way has no obligation to monitor content transmitted by use of, or other information related in any way to the provision or receipt of, the Service. However, Customer agrees that Smart Way has the right to monitor the Service, any and all information or Customer Material transmitted through the Service or by use of the Smart Way Equipment, and information available to Smart Way regarding Customer’s computer and other equipment in accordance with this Service Agreement. Smart Way has the right at all times and without notice to remove, restrict access to or make unavailable any information or content residing on Smart Way’s, its Affiliates’ or Operational Service Providers’ servers. Smart Way has the right to monitor, review, retain or disclose any content or other information in Smart Way’s possession about or related to Customer (including, without limitation, Customer Information), Customer’s use of the Service, or otherwise, as necessary to satisfy any applicable law, or otherwise as Smart Way deems necessary or appropriate in Smart Way’s sole discretion.
- Customer authorizes Smart Way to make inquiries and to receive information about Customer’s credit history from others and to utilize such information in its decision regarding its provision of the Service to Customer.
- Smart Way may require that Customer use a username and password combination or other reasonable procedures to confirm Customer’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service through Smart Way’s authorized Customer service channels. Only Commercial Customers may also choose to designate an authorized user of Customer’s account (an “Authorized User”), who will be permitted to access the Commercial Customer’s account information and make certain changes to Commercial Customer’s account. Commercial Customers will be solely liable for any and all action or inaction by any Authorized User.
- PASSWORDS.
- Residential accounts are for individual use only. Commercial accounts are for authorized personnel only.
- Residential Customers shall not share passwords or accounts with others. Commercial Customers shall only provide passwords to authorized personnel.
- Smart Way shall provide or obtain passwords to protect Customer’s account and Services. In the event that the security of a Customer’s account or Service is compromised, Smart Way shall provide Customer with a new password.
- Smart Way may monitor the security of Customer’s passwords at any time. A Customer with an insecure password may be directed to change the password to one which complies with the above rules. Customers who repeatedly choose insecure passwords may be assigned a password by Smart Way; continued failure to maintain password security may be grounds for account termination.
- SYSTEM SECURITY.
- Customer is solely responsible for maintaining the security of Customer’s computer(s)/device(s) and data and protection of Customer’s User ID, password and Personal Information and other data.
- Customer is prohibited from utilizing the Service to compromise the security or tamper with Smart Way’s system resources or accounts on any of Smart Way’s computers, routers, switches, servers, radios, modems, or any other equipment at Smart Way or at any other website. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include but are not limited to password guessing programs, cracking tools, and network probing tools. Any attempt to access any of Smart Way’s corporate assets is strictly prohibited.
- Smart Way reserves the right to release the login names of Customers involved in violating system security to system administrators at other websites, in order to assist them in resolving security incidents. Smart Way will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers, subject to Smart Way’s Privacy Policy and applicable law.
- ACCEPTABLE USAGE.
- Smart Way’s Acceptable Use Policy (“AUP”) is incorporated into this Agreement by reference and governs the type of acceptable activities associated with the use of the Internet and voice service, including but not limited to usage of Smart Way’s systems and the Smart Way Networks for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet features. The AUP also identifies the activities specifically prohibited by Smart Way.
- DIGITAL MILLENNIUM COPYRIGHT ACT. Under the Digital Millennium Copyright Act (“DMCA”), copyright owners have the right to notify Smart Way’s registered designated agent if they believe that a Customer has infringed on their work(s). When Smart Way receives a complaint notice from a copyright owner, Smart Way will notify the Customer of the alleged infringement by providing Customer a copy of the submitted DMCA notice, to the extent permissible by law. As required by law, Smart Way enforces a graduated response policy to complaints that may lead to suspension or termination of service. Smart Way’s policy is to terminate the internet services for any Customer receiving 4 or more DMCA notices annually. For information how to contact Smart Way’s Designated Agent, please see Smart Way’s DMCA Copyright Infringement Notification Policy, available here.
- PENALTIES FOR VIOLATIONS OF SERVICE AGREEMENT.
- Violation of this Agreement may be subject to immediate termination of Customer’s account in addition to any and all criminal and civil penalties available under the law. Typically, Customer will receive a warning on the first offense. However, if the offense is severe enough, Smart Way reserves the right to disable and terminate the account immediately. Accounts which have been disabled for abuse will not be re-opened. Smart Way also reserves the right to modify and/or disable Service at any such time the Customer violates this Service Agreement.
- Smart Way will not reimburse Customer when Service has been suspended or disabled due to violations of this Service Agreement.
- If Service is disconnected for non-payment, Smart Way is not obligated to re-connect Customer’s Service. However, if Customer desires re-connection, and Smart Way agrees to do so, Customer agrees to pay a Re-installment Fee plus any amount past due under Customer’s COS. The amount of the re-installment fee is set forth on Smart Way’s website.
- SOFTWARE LICENSES AND THIRD-PARTY SERVICES.
- Smart Way may provide software for use in connection with the Service which is owned by Smart Way or its third-party licensors, third-party suppliers, and Operational Service Providers (“Software”). Such Software will be subject to an additional fee. Smart Way reserves the right periodically to update, upgrade, or change the Software remotely or otherwise and to make related changes to the settings and software on Customer’s computer(s)/device(s) or Equipment, and Customer agrees to permit such changes and access to Customer’s computer(s)/device(s) and Equipment. Customer may use the Software only in connection with the Service and for no other purpose.
- Certain Software may be accompanied by an end user license agreement (“EULA”) from Smart Way or a third-party. Smart Way’s use of the Software is governed by the terms of that EULA and by this Agreement, where applicable. Customer may not install or use any Software that is accompanied by or includes a EULA unless Customer first agrees to the terms of the EULA.
- For Software not accompanied by a EULA, Customer is hereby granted a revocable, non-exclusive, non-transferable license by Smart Way or its applicable third-party licensor(s) or Operational Service Provider to use the Software (and any corrections, updates and upgrades thereto). Customer understands, acknowledges and agrees that the Software is confidential information of Smart Way or its third-party licensors/Operational Service Providers and that Customer will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Smart Way or its third-party licensors/Operational Service Providers. Customer may not copy, de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for time sharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third-party, or allow, encourage or solicit others to do the same. Customer may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. Customer is not granted any title or rights of ownership in the Software. Customer acknowledges that this license is not a sale of intellectual property and that Smart Way or its third-party licensors/Operational Service Providers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
- CUSTOMER’S PAYMENT OBLIGATIONS FOR STANDARD INTERNET ACCESS SERVICE. Payment obligations for DIA Service Customers will be set forth in the customized DIA Proposal. Customer understands, acknowledges and agrees to pay Smart Way through the end of the Initial Term or any Renewal Term in accordance with Smart Way’s current billing policies. Failure to fulfill any payment obligations in a timely manner as provided herein will be considered to be a violation of this Service Agreement and Customer’s COS. [INSERT SECURITY DEPOSIT (if any), PAYMENT AND BILLING PROCESSES HERE].
- VOICE SERVICE FEES, TAXES AND OTHER CHARGES. Voice Service fees, taxes, and other charges may change from time to time.
- VOICE SERVICE 911 EMERGENCY SERVICES. By acceptance, and use, of the Voice Service, Customer acknowledges and accepts any limitations of 911/E911 service, and Customer agrees to convey these limitations to all persons who may have occasion to place calls over the Voice Service. If Customer has any questions about 911/E911, call Smart Way at 800-340-9093.
- DISCLAIMER OF WARRANTIES.
- CUSTOMER EXPRESSLY AGREES THAT CUSTOMER USES THE SERVICE AND THE Smart Way EQUIPMENT AT CUSTOMER’S SOLE RISK. THE SERVICE AND Smart Way EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND EXCEPT TO THE LIMITED WARRANTIES SPECIFICALLY SET FORTH IN SECTIONS 2 AND 4 HEREIN, IF APPLICABLE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER Smart Way NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD-PARTY SUPPLIERS OR SOFTWARE LICENSORS WARRANTS: (I) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICE; (II) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (III) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; OR (IV) THAT ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA OR FILES CUSTOMER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO CUSTOMER’S COMPUTER OR DEVICE. THIS INCLUDES, BUT IS NOT LIMITED TO, INCIDENTS OF FILE SHARING, PRINT SHARING OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO CUSTOMER’S COMPUTER, DEVICE, OR NETWORK OR Smart Way EQUIPMENT, OR TO MONITOR CUSTOMER’S ACTIVITY AND CONDUCT WHILE USING THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM Smart Way SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
- In addition, Smart Way may, in its sole discretion, make available to Customer security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, parental control software, anti-spyware or anti-adware software for Customer’s use on Customer’s computer system(s) in conjunction with the Service. Any such security software provided by Smart Way to Customer is intended to provide only a minimal level of protection to Customer’s computer system(s). CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT Smart Way AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, THIRD-PARTY SUPPLIERS AND LICENSORS OF ANY SUCH SECURITY SOFTWARE, DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. CUSTOMER UNDERSTANDS AND AGREES THAT Smart Way AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, THIRD-PARTY SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM(S) (OR THE INFORMATION STORED THEREIN) THAT MAY RESULT FROM USE OF THE SECURITY SOFTWARE OR FROM ITS NONPERFORMANCE.
- EXCEPT AS SPECIFICALLY SET FORTH IN THE COS, CUSTOMER UNDERSTANDS AND AGREES THAT NEITHER Smart Way NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, OPERATIONAL SERVICE PROVIDERS OR THIRD-PARTY SUPPLIERS AND LICENSORS GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON THE Smart Way NETWORKS OR THAT ANY SPEED OR THROUGHPUT OF CUSTOMER’S CONNECTION TO THE Smart Way NETWORKS WILL BE AVAILABLE TO CUSTOMER. Customer understands, acknowledges and agrees that the availability and speed of the Service provided at Customer’s premises may vary depending upon a number of factors, including Customer’s computer system(s), associated equipment and other devices accessing the Service, the terrain and location of Customer’s premises, foliage between Smart Way Equipment and other components of the Smart Way Networks, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond Smart Way’s control and system failures, modifications, upgrades and repairs.
- THIS SERVICE AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
- LIMITATION OF LIABILITY.
- STATUTE OF LIMITATIONS: CUSTOMER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.
- TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL Smart Way OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD-PARTY LICENSORS OR THIRD-PARTY SUPPLIERS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR AGENTS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS SERVICE AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO CUSTOMER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF Smart Way UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US).
- DEVELOPING, INSTALLING, OPERATING, PROVIDING, IMPLEMENTING, MAINTAINING, OR PARTICIPATING IN A 911 EMERGENCY TELEPHONE SYSTEM OR SIMILAR EMERGENCY SYSTEM OR E911 SERVICE, INCLUDING WITHOUT LIMITATION (i) RECEIVING, DEVELOPING, COLLECTING, OR PROCESSING INFORMATION FOR E911 DATABASES, (ii) RELAYING, TRANSFERRING, OPERATING, MAINTAINING, OR PROVIDING 911 OR E911 SERVICES OR SYSTEM CAPABILITIES, OR (iii) PROVIDING EMERGENCY TELEPHONE AND RADIO COMMUNICATIONS FOR AMBULANCE, POLICE AND FIRE DEPARTMENTS.
- ADDITIONALLY, SMART WAY WILL HAVE NO LIABILITY FOR THE FOLLOWING: (i) FOR ANY AMOUNT IN THE IN EXCESS OF ONE HUNDRED DOLLARS ($100.00 US); (ii) FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES; (iii) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (iv) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (v) FOR ANY DAMAGES OR LOSS DUE TO CUSTOMER’S FAILURE TO BACK-UP ANY EQUIPMENT AS REQUIRED IN SECTION 2(f) HEREIN; (vi) ANY LACK OR BREACH OF SECURITY CUSTOMER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE; (vii) FOR ANY MATTER BEYOND SMART WAY’S REASONABLE CONTROL; (viii) FOR ANY INTERFERENCE OR INCOMPATIBILITY WITH OR DISRUPTION OF ANY NON-VOICE SYSTEMS, WHETHER CAUSED BY THE VOICE SERVICE, INTERNET SERVICE, EQUIPMENT, OR OTHERWISE; OR (ix) CUSTOMER’S USE OF THE SERVICE FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS SERVICE AGREEMENT.
- AGREEMENT TO ARBITRATE. CUSTOMER AND SMART WAY AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN CUSTOMER AND SMART WAY. The agreement between Customer and Smart Way to arbitrate all disputes and claims between them is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between Customer and Smart Way, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising), claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class and claims that may arise after the termination of this Agreement. For the purposes of this Section 17, references to Customer include Customer’s subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the Service. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND SMART WAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to Smart Way must be addressed to Smart Way at the address set forth in this Service Agreement for notices. An Arbitration Notice to Customer must be addressed to Customer at Customer’s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and Smart Way do not reach an agreement to resolve the claim within sixty (60) calendar days after the Arbitration Notice is received, Customer or Smart Way may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Smart Way or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Smart Way is entitled.
- The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or written request to Smart Way. The arbitrator shall be bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction. Unless Customer and Smart Way agree otherwise, any arbitration hearings shall take place in [INSERT COUNTY, STATE]. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both parties including, without limitation, legal fees and expenses.
- The arbitrator may award declaratory or injunctive 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. CUSTOMER AND SMART WAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Smart Way agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Notwithstanding any provision in this Agreement to the contrary, Customer and Smart Way agree that if Smart Way makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Customer may reject any such change by sending Smart Way written notice within 30 days of the change. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Customer and Smart Way in accordance with the language of this provision.
- INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless Smart Way, its Affiliates, officers, directors, employees, shareholders, representatives, agents, Operational Service Providers, third-party licensors and suppliers and their respective members, officers, directors, employees, agents, representatives and contractors, and each of their successors and assigns (collectively, the “Smart Way Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys’ fees) and other claims brought against any Smart Way Indemnitee(s) related to Customer’s use of the Service or any violation of this Service Agreement and all other documents incorporated herein by reference) including, but not limited to, claims that Customer’s use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third-party, Customer’s violation of any law or the rights of another and claims resulting from Customer’s negligence. Customer agrees to pay any attorneys’ fees incurred by Smart Way and/or any other Smart Way Indemnitee in connection with the defense of any such third-party claims. Smart Way reserves the right to assume the defense and control of any matter subject to indemnification by Customer, in which event Customer will cooperate with Smart Way in asserting any available defenses.
- TERMINATION OF THE SERVICE.
- IF CUSTOMER CANCELS THE SERVICE OR ANY ASPECT THEREOF FOR ANY REASON, Smart Way SHALL NOT BE REQUIRED TO REFUND CUSTOMER ANY PORTION OF THE MONTHLY FEES PAID BY CUSTOMER FOR THE MONTH IN WHICH CANCELLATION OCCURS, UNLESS REQUIRED OTHERWISE BY STATE LAW.
- Customer may terminate the Service at any time by providing Smart Way calling 740-254-8201, written notice, either via mail to the address set forth in Section 20(h) or email to [email protected]. Smart Way may take reasonable steps to verify Customer’s identity and authority before effecting such termination. The full Monthly Payment is due for any part of a month in which Service is provided. Upon termination, Customer agrees to pay any account balance, a “Cancellation Fee” as defined in the COS, and to return any Smart Way Equipment or pay the Equipment Non-Return Fee as set forth in Section 2(b) herein.
- The Service and all Service features are subject to availability on an ongoing basis. Customer understands that Smart Way may cease to offer the Service or any Service feature at any time, for any reason or no reason, and without notice to Customer. Without limiting the generality of the foregoing, Smart Way may suspend, disconnect or terminate the Service at any time without prior notice if Smart Way believes in its sole discretion that Customer have (i) failed to pay Customer’s bill when due, (ii) threatened or harassed any Smart Way employee, agent or contractor or (iii) violated any other provision of this Service Agreement.
- If the Service to Customer is disconnected for any reason or Service is suspended in accordance with this Agreement, Smart Way may charge Customer (i) for Service during the period of disconnection or suspension in accordance with applicable federal and state law and (ii) reasonable disconnection and reconnection fees.
(d) In the event that Customer’s account is suspended, disconnected or terminated, no refund, including of fees paid by Customer to Smart Way, shall be granted. Moreover, Smart Way shall not be responsible for the return of data stored on Smart Way’s servers, including web and email servers. Customer agrees that Smart Way has no obligation to visit Customer’s home upon termination to reconfigure Customer’s computer(s) or for any other reason.
- Sections 3 through 20 herein shall survive any termination or expiration of this Agreement.
- GENERAL PROVISIONS.
- This Service Agreement (including all documents incorporated herein by reference) constitutes the entire agreement with respect to the Service. This Service Agreement supersedes and nullifies all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.
- The Parties agree that any Affiliates, Operational Service Providers, agents, third-party suppliers and licensors of Smart Way are intended beneficiaries of this Service Agreement. Except as set forth in the previous sentence, this Agreement is not intended to give and does not give any rights or remedies to any person other than Customer and Smart Way.
- No agency, partnership, joint venture, or employment relationship is created as a result of the Service Agreement and neither party has any authority of any kind to bind the other in any respect.
- Smart Way shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Smart Way’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference).
- This Service Agreement and all matters arising out of or related to this Service Agreement shall be governed by the laws of the State of Ohio without regard to its conflicts of law provisions. Subject to the agreement between Customer and Smart Way with respect to arbitration of any disputes, Customer agrees that the federal and state courts of Ohio alone shall have jurisdiction over all disputes arising under this Service Agreement and Customer consents to the personal jurisdiction of those courts.
- Smart Way’s failure to exercise or enforce any right or provision of this Service Agreement shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of this Service Agreement shall, to any extent, be held invalid, illegal or unenforceable, the remainder of this Service Agreement shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties.
- Smart Way may change, amend, alter, or modify this Service Agreement at any time. Smart Way may notify Customer of any change either by posting that change on Smart Way’s website ([INSERT URL] and by sending Customer an email or by U.S. mail. If Customer continues to use the Service after such notice has been made, Customer agrees that such continued use shall be deemed to be Customer’s acceptance of those changes. The current version of this Service Agreement, as the same may be modified by Smart Way from time to time, shall supersede any prior version of this Service Agreement that may have been provided to Customer at any time.
- Except as specifically set forth in this Service Agreement, any notices under this Agreement shall be effective as follows: (i) If to Customer: notice shall be made by (i) email to Customer’s; (ii) by first-class mail to Customer at Customer’s billing address then on file with Smart Way; or (iii) when posted to the Announcements page of Smart Way’s website. If by email, such notice shall be deemed effective when transmitted by Smart Way. If by first-class mail, such notice shall be deemed effective upon the earlier of (A) three business days after dispatch or (B) at such time as actually received by Customer. (ii) If to Smart Way: notice shall be made exclusively by first-class mail to Smart Way [INSERT POSTAL ADDRESS] or such other address as Smart Way may from time to time publish to Customer, and such notice shall be deemed effective upon receipt.
- Customer may not assign this Agreement, or Customer’s rights or obligations under this Service Agreement, without Smart Way’s prior written consent, and any purported assignment by Customer without such consent shall be void. Smart Way may transfer or assign any portion or all of this Service Agreement at any time without notice to Customer, and Customer waives any notice that may be required by law (j) Customer and Smart Way have executed this Service Agreement by their signatures (or, in the case of Smart Way, the signature of Smart Way’s authorized person) on the COS.
Smart Way and Customer understand, acknowledge and agree that this Service Agreement is entered into as of the date set forth on the COS.
[INSERT SIGNATURE BLOCK]
Smart Way Communications, LLC Privacy Policy
And Your California Privacy Rights
Effective Date: February 7, 2024
Smart Way Communications, LLC (“Smart Way,” “us,” “we,” or “our”) values the privacy and security of customer Personal Information. This Privacy Policy describes the types of customer Personal Information collected, used, disclosed, retained, secured and disposed by us.
This Privacy Policy applies to visitors and users of Smart Way’s website, https://ThinkSmartWay.com/legal and applicants, current and former residential and commercial/business customers of our high-speed internet access services and VoIP services (individually, “Service” and collectively, “Services”) residing in the United States. All such visitors, users, applicants, current and former residential and commercial/business customers are collectively, “Customers” “you,” and “your.”
Any capitalized terms used herein shall have the same meaning as defined in the Smart Way Service Agreements.
By using Smart Way’s Site and Services, Customers consent to the data practices described in this Privacy Policy regarding the collection, use, disclosure, and disposal of your Personal Information. Smart Way’s Site and Services are designed and targeted to United States audiences and are governed by and operated in accordance with the laws of the U.S. If Customer is not a U.S. citizen or does not reside in the U.S., Customer voluntarily consents to the collection, transfer, use, disclosure and retention of Customer Personal Information in the U.S. Customer also agrees to waive any claims that may arise under Customer’s own national laws.
Your California Privacy Rights Under the Shine The Light Act
Generally, California residents that have a business relationship with Smart Way are entitled by the “Shine the Light Act” (“Act”) to ask for information identifying the categories of Personal Information that Smart Way shared with our Affiliates and/or other third parties for their marketing purposes the preceding year, and provide contact information for such Affiliates and/or third parties unless Smart Way meets certain exceptions in the Act. This Privacy Policy and Site meet those exceptions. Importantly, Smart Way does not target or knowingly provide Services to California residents, nor does Smart Way share Customer Personal Information with Affiliates or third parties for their own marketing purposes. If you are a person residing in California and you believe that you have an established business relationship with Smart Way and have questions regarding our policy regarding the Act, you must send your questions via email or postal mail following the instructions below.
Smart Way will not accept requests via the telephone or facsimile or respond to requests that are not labeled or sent properly, or do not have complete information.
- For all requests, include Customer’s full name, street address, city, state and zip code.
- If sent via email request, Customer must state “Re: Your California Privacy Rights” in the subject line and send Customer email to [email protected]
- If sent via postal request, Customer must send a letter or postcard to:
141 Garland Drive, SW, New Philadelphia, OH 44663 Attention: Your California Privacy Rights, Legal
- GENERAL INFORMATION
When Customer uses the Service, the Personal Information Customer voluntarily sends and receives is transmitted over a wireless network, and may be subject to interception by unauthorized third parties. While it is Smart Way’s objective to take reasonable measures to reduce the risk that unauthorized third parties will intercept the information Customer sends and receives through the Service, Smart Way cannot and does not make any guarantee that transmissions over the Internet are 100% secure or error-free.
Smart Way does not knowingly collect, solicit or use Personal Information from anyone under the age of 13. If Customer is under age 13, please do not attempt to register for the Services or send any Personal Information about yourself to Smart Way. If Smart Way learns that Smart Way has collected Personal Information from a child under age 13, Smart Way will delete that information as quickly as possible to the extent technically feasible. If Customer believes that its child under age 13 may have provided Smart Way Personal Information, please contact Smart Way at [email protected]
- WHAT TYPES OF INFORMATION DO WE COLLECT AND HOW DO WE USE THIS INFORMATION?
Generally, Personal Information is information Customer provides to Smart Way voluntarily or passively through Customer’s use of the Services and/or Site, that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. For the purposes of this Privacy Policy, we also define Personal Information to include such information related to our commercial/business Customers and their end users.
The following are the different ways and reasons we collect Customer Personal Information:
Registration process, billing, and administration: Customer name, email address, phone number (wireless and wireline), billing address and billing information (such as credit card account number or other financial account information), service address, and the nature of any of Customer devices or other property making use of the Service. Personal Information also includes Customer proprietary network information (“CPNI”) which is created by virtue of your relationship with Smart Way when you subscribe to our VoIP services or other telephony services. CPNI includes any information that relates to the telephony services purchased (including specific calls you make and receive), quantity, technical configuration, type, destination, location, and amount of use of our VoIP service, such as call detail, logs, and specifics regarding your VoIP account (such as billing information). Please note that by law, CPNI does not include a customer’s name, postal address, or telephone number. We will also use this same Personal Information for the installation, troubleshooting, maintenance of the Services, and servicing of equipment.
Social Network Platforms:
Facebook: We may collect data including users’ public profile information, email addresses, and data related to activities on our Facebook page such as likes, comments, and shares. This information is used for community engagement, customer service, and targeted marketing campaigns.
Instagram: We may gather information such as users’ public profile details, posts they interact with on our profile, and direct messages sent to our account. This data helps in audience analysis, brand promotion, and user engagement.
TikTok: We may collect user data including profile information, video interactions, and comments on our posts. The purpose is to understand content performance, enhance user engagement, and drive marketing strategies.
Twitter: We may collect data including profile information, tweet interactions, and direct messages. This is used for engaging with users, promoting our services, and analyzing the reach and impact of our tweets.
The Personal Information collected from these platforms is in accordance with their respective privacy policies and terms of service, and is intended to improve our services, engage with users, and provide tailored content.
Some forms of information as described below will be classified as Personal Information if required by applicable law or when such information is directly associated with or reasonably linked to a specific person, computer or device, or is combined with other forms of Personal Information.
Website Information, Use of Cookies and other Similar Tracking Technology:
When you visit Smart Way’s Site, Smart Way will collect information on Smart Way server logs from Customer’s browser or device, which may include Customer IP address, unique device identifier, “cookie” information, the type of browser and/or device you’re using to access the Service, and the page or feature Customer requested. Cookies” and “web beacons” are text file identifiers Smart Way transfers to Customer’s browser or device that allow Smart Way to recognize Customer’s browser or device and tell Smart Way how and when pages and features on the Smart Way website are visited, by how many people, and other activity on the website. Customer can change the preferences on Customer’s browser or device to prevent or limit Customer’s device’s acceptance of cookies, web beacons or other similar technology, but this may prevent Customer from taking advantage of some of the features on the Smart Way website, or accessing certain functions and conveniences. If Customer clicks on a link to a third party website or service, such third party may also transmit cookies to Customer. Again, this Privacy Policy does not cover the use of cookies or other such tracking technology by any third parties, and Smart Way is not responsible for their privacy policies and practices. Smart Way also uses Personal Information and Non-Personal Information to enhance the Smart Way website and Smart Way Service offerings. For example, such information can tell Smart Way how often visitors use a particular feature of the Smart Way website and which products and services are most interesting to current and potential customers, and Smart Way can use that knowledge to make the website useful and interesting to as many users as possible and to enhance and refine Smart Way’s Service offerings. Smart Way will continue to conduct analytics on Smart Way website performance; Customer may not opt-out of this use of cookies or other Personal Information or Non-Personal Information. Technology is improving every day and to improve Smart Way’s Services’ operation and function Smart Way may introduce new technologies and monitoring techniques without advance notice or consent from Customer. Smart Way may also use third party providers to conduct such internal analyses.
Network Information: Smart Way also collects Network Information, information about Customer access to, and use of, the Smart Way Network, which may or may not be directly associated with or reasonably linked to a specific person, computer or device. For example, Smart Way may collect information about the performance of the Provider Equipment installed on Customer property or at Customer premises, when Customer is using the Service, the various devices Customer is using to access the Service, the amount of data Customer is transmitting and receiving, the content of the data Customer are transmitting and receiving, the websites Customer is visiting, and any other information that is transmitted over the Smart Way Network. Smart Way may also aggregate Network Information from multiple customers and Smart Way will share such aggregated Non-Personal information about the overall performance of the Smart Way Service and the Smart Way network with our Affiliates and other third parties. Aggregated information does not identify a specific individual, computer or device. We use Network Information to monitor and enhance the performance of the Smart Way network. Smart Way will not monitor the content of the websites viewed or email communications as part of Smart Way’s standard network management.
Generally, Smart Way will only monitor and preserve the following Network Information:
- When Customer is using the Service;
- How Customer is using the Service, such as monitoring traffic patterns regarding websites visited, amount of data being sent or received, or other activity;
- The amount of data Customer is transmitting and receiving through the Service; and
- General information regarding the performance of the Provider Equipment installed on Customer’s property or at Customer’s premises, and its interaction with the rest of Smart Way’s network.
However, Smart Way reserves the right to, and may, monitor, access, review and preserve any Network Information and/or content in the following situations:
- In response to an inquiry from Customer or another Authorized User on Customer’s account regarding Customer or their use of the Service or problems Customer or they are experiencing using the Service;
- If Smart Way has reason to believe Customer is using the Service in violation of Customer’s Service Agreement or any applicable statutes, rules, ordinances or regulations;
- If Smart Way has reason to believe Customer use of the Service is negatively affecting other Customers; or
- When Smart Way is required by law or legal process to do so, or when Smart Way in good faith believes that Smart Way is required by law or legal process to do so.
- IS PERSONAL INFORMATION USED FOR MARKETING AND ADVERTISING PURPOSES?
Smart Way will use Customer Personal Information to send marketing and advertising messages related to our own Services and Site using Customer’s email address, postal address, or telephone number (for voice, texts, automated and pre-recorded calls).
Smart Way may deliver a marketing or advertising message based on Customer visits to Smart Way website, which will be general advertising or “Contextual Advertising,” which is advertising based on the subject matter or the content of the specific website page or subject matter.
Smart Way may also send Customer “First Party Advertising,” which is advertising or marketing that is customized or personalized based on a history of Customer’s use of our Services (possibly combined with information from our Facebook fan page or other social network platforms). First Party Advertising is based solely on a combination of information Smart Way collects from Customer – not from Customer’s visits to other websites across the Internet. Smart Way may use CPNI for its own First Party Advertising for products/services a Customer has already purchased. We will need your consent before using CPNI for marketing or advertising unrelated services. Customer may opt-out of First Party Advertising but not Contextual Advertising. No Personal Information is used to deliver Contextual Advertising; it automatically will appear based on the content or webpage Customer is viewing. And Customer may continue to receive general advertising if Customer opts-out of First Party Advertising, it will not be customized or personalized for Customer.
Smart Way does not provide third party “Network Advertising,” which is advertising based on Customer’s overall Internet usage across different third party websites or online services. Multiple third party websites and online services are involved in this tailored or personalized advertising process, in essence a “network” of advertising providers. Because Smart Way does not provide network ads, Smart Way does not recognize the “Do Not Track” settings on various Internet browsers. Smart Way does not engage or allow third parties to track you across the Internet and across time for advertising purposes.
- LINKS TO THIRD PARTY WEBSITES AND SERVICES
The Smart Way Site and/or our Facebook Pages (or other social networking platforms) may contain a variety of content and functionality and may provide links to other third party websites or online services. Despite such links, this Privacy Policy applies only to Smart Way and our Affiliates. The presence of a link does not constitute or imply Smart Way’s endorsement, recommendation, or sponsorship of the content, goods, services, business or privacy practices on such websites or online services. Smart Way encourages Customers to be aware and informed when Customers leave Smart Way’s Site and Smart Way’s Facebook Pages, or any other social networking platforms.
- DO WE DISCLOSE CUSTOMER PERSONAL INFORMATION TO THIRD PARTIES?
Customer’s Personal Information will only be disclosed to third parties (including Smart Way’s Affiliates) as listed in this Privacy Policy, and if Smart Way has received your consent at the time Smart Way collects your Personal Information or prior to the disclosure of any Personal Information. Smart Way reserves the right to fully use, disclose and process any non-Personal Information collected from Customer in any manner as well as any information Customer makes public via Smart Way Services or Site.
- To Our Affiliates and Resellers. Smart Way relies on various Affiliates and Resellers in order to provide the Services to Customers. Affiliates are companies that are related to Smart Way by common ownership or control. Resellers are independent third party businesses that will offer Smart Way’s Services to either their own customers, or operate as agents to Smart Way and sell our Services. Smart Way may share Personal Information and non-Personal Information with any of our Affiliates and Resellers for business, operational, promotional and/or marketing and advertising purposes related to our Services.
- To Our Operational Service Providers: Smart Way and its Affiliates contract with other companies and people to perform tasks or services on Smart Way’s behalf and need to share Customer Personal Information to provide products or services to Customers. For example, Smart Way may use a payment processing company to receive and process Customer’s ACH or credit card transactions for Smart Way, or Smart Way may contract with third parties to assist Smart Way in optimizing Smart Way’s network. Unless Smart Way tells Customer differently, Smart Way does not grant its Operational Service Providers any right to use the Personal Information Smart Way shares with them beyond what is necessary to assist Smart Way.
- For Business Transfers/Restructuring: Smart Way may choose to buy or sell assets, or Smart Way may sell assets or be sold. In these types of transactions, customer Personal Information is typically one of the business assets that would be disclosed and transferred. Also, if Smart Way (or Smart Way’s assets) are acquired, or Smart Way goes out of business, enters bankruptcy, or goes through some other change of control, including restructuring, reorganization or financing arrangements, Personal Information could be one of the assets disclosed, transferred to or acquired by a third party.
- For Protection of Smart Way, and Our Affiliates, Employees, Operational Service Providers, Users and Customers and Public Safety: Smart Way reserves the right to access, read, preserve, and disclose any Personal Information Smart Way has access to if Smart Way believes doing so will implement and/or enforce the Service Agreement, Website Terms of Use Agreement, Privacy Policy or any legal document; protect our Network(s), website(s), and company assets; protect the interests, rights, property, and/or safety of Smart Way or Our Affiliates, employees and officers/directors, Operational Service Providers, Resellers, Customers, agents, representatives, third party licensors or suppliers, or the general public.
- When Required by Law or in Response to Legal Process: Smart Way reserves the right to access, read, preserve, and disclose any Personal Information when Smart Way is required by law or legal process to do so, or if Smart Way has a good faith belief that Smart Way is required by law or legal process to do so.
- HOW DO WE PROTECT CUSTOMER PERSONAL INFORMATION?
Smart Way endeavors to protect the privacy of Customer’s account and other Personal Information using reasonable administrative, technical and physical security measures. However, Smart Way cannot and does not guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of Personal Information at any time. Customer’s account is protected by a User ID and password for Customer’s privacy and security. It is Customer’s responsibility to prevent unauthorized access to Customer’s account and Personal Information by selecting and protecting Customer password and/or other sign-on mechanism appropriately and limiting access to Customer computer, tablet or device and browser by signing off after Customer has finished accessing Customer’s account. Customer is required to notify us immediately if Customer’s password or account has been disclosed to a person whose name does not appear on Customer’s account, even if you have allowed such disclosure. Customer understands, acknowledges and agrees that Customer is solely responsible for any use of Smart Way Services via Customer’s username and password.
Additionally, if Customer contacts Smart Way via Site, telephone or in person, Smart Way will ask Customer for verification of Customer’s identification and account. [INSERT CLIENT’S CPNI VERIFICATION/AUTHENTICATION PROCESS HERE]
Smart Way will not send an email or text, nor should Customer respond to any email or text communications asking for any sensitive or confidential Personal Information, such as social security number, bank account or credit card account number, or a driver’s license number. If Customer receives an email or text requesting any such information from Smart Way or someone that claims they are with Smart Way or Our Affiliates please contact our Privacy Administrator immediately: [email protected]. For Smart Way’s IT Support Services as detailed in our Services Agreement, the code that allows Smart Way to access Customer’s computer desktop to help resolve technical problems is limited only for that specific session. Smart Way is not able to access Customer’s Computer without Customer’s knowledge, affirmative consent and involvement.
- WHAT DISCLOSURE CHOICES DO CUSTOMERS HAVE?
Customer can always choose not to disclose Personal Information to Smart Way; however, certain Personal Information is necessary for Smart Way to provide the Service to Customer. Customer may opt out of sharing Personal Information with Our Affiliates only for marketing or advertising purposes, but not for business or operational purposes. Customer may opt out of email marketing and advertising from Smart Way or its Affiliates using the “Unsubscribe” mechanism in each email. Before Smart Way sends Customer a text for any reason, or sends Customer a pre-recorded call that contains advertising or marketing information, Smart Way will secure Customer’s prior written express consent, which can be given via a voice recording, email, text message, postal mail, or telephone key press. Non-telemarketing pre-recorded calls do not require Customer’s prior express consent in writing, unless they are sent to a wireless device. Customer understands, acknowledges and agrees that such texts and pre-recorded telemarketing calls may be sent using an autodialer and are not conditioned on your purchase of the Service. Customer may opt out of receiving text messages any time by replying “STOP” or “UNSUBSCRIBE” to the text message. Customer may opt out of receiving pre-recorded calls by the opt-out instructions in the call. Customer can also request to be added to Smart Way’s company-specific Do Not Call list to opt-out of advertising and marketing calls of all types. However, Customer will continue to receive calls related to debt-collection and Customer’s current Service. Customer may also opt-out of First Party Advertising, but not Contextual Advertising, as detailed in the “Use of Personal Information for Marketing or Advertising Purposes” section above. Customer may not opt out of Smart Way’s use of cookies or other similar technology, or use of Customer’s Personal Information and Non-Personal Information for Smart Way’s internal analytics used to monitor activity on Smart Way’s website, measure Smart Way’s Service performance, or to operate and protect the Smart Way Network.
- WHAT PERSONAL INFORMATION CAN CUSTOMERS ACCESS, MODIFY AND/OR DELETE?
Generally, Customer may access the following Personal Information in Customer’s account:
- Full name
- Username and password
- Email address
- Telephone number; and
- Billing and Service address
- Account and billing information
By contacting Smart Way at [email protected] or through any online access portal and/or via telephone, Smart Way may enable Customers to view, access and modify Customer account settings, and in some cases, edit or delete the Personal Information listed above. Smart Way will retain historic email, billing and/or Service addresses for security and verification purposes indefinitely and Customers may not delete such information even after the subscription expires or terminates.
Existing Customers may not delete any Personal Information because such information is necessary to provide and bill for the Services; Customers may only update or modify the following Personal Information: billing address, email and phone.
Smart Way may use any aggregated data derived from Customer’s Personal Information but not in a manner that would identify Customer personally. Smart Way may also maintain Personal Information regarding Customer and Customer’s use of the Service after Customer is no longer a Smart Way customer as required by Smart Way’s business practices, by law, and/or tax reporting purposes. The information Customer can view, update, and delete may also change if required by law. If Customer has any questions about viewing or updating information Smart Way has on file about Customer, please contact Smart Way at [email protected]
- WILL THIS PRIVACY POLICY EVER CHANGE?
Yes, Smart Way is constantly working to improve the Service, so Smart Way will need to update this Privacy Policy from time to time as Smart Way’s business practices change and service offerings increase, and/or there are changes in local, state or federal laws. Additionally, Smart Way will also make stylistic, organizational and/or grammatical changes to present Smart Way privacy practices in a user-friendly easy to read manner. Smart Way will alert Customers to any such changes by placing a notice on Smart Way’s Site and App with the effective date of the revised Privacy Policy, and/or by sending Customers an email, or by some other means to the extent required by law. Please note that if Customers have not provided Smart Way with Customer’s email address or Customer has not updated Customer contact information, those legal notices will still govern Customer use of the Service, and Customer is still responsible for reading and understanding all notices posted on Smart Way’s website. Customer’s continued use of the Service or website after notice of any changes have been provided will indicate Customer’s acceptance of such changes, except where further steps are required by applicable law.
Use of Customer’s Personal Information is primarily governed by the Privacy Policy in effect at the time the Customer subscribed to the Service or visited the Smart Way website. If Smart Way elects to use or to disclose Personal Information that identifies Smart Way as an individual in a manner that is materially different than that stated in the Privacy Policy in effect at the time you subscribed to the Service or visited the Smart Way Site, Smart Way will provide Customer with an opportunity to consent to such use or disclosure. Depending on the circumstances, that consent may include an opt-out.
- WHAT IF YOU HAVE QUESTIONS OR COMMENTS ABOUT THIS PRIVACY POLICY?
If you have any questions or concerns regarding Smart Way’s privacy practices and policies, please contact Smart Way at [email protected]
© Copyright 2023, Smart Way Communications, LLC – All Rights Reserved.