TERMS OF SERVICE
NETWORX Broadband, Inc
END USER INTERNET ACCESS AGREEMENT
By calling to access the Internet, Subscriber, and/or any person using Subscriber’s login identification name or login identification names ordered by Subscriber, is deemed to have accepted the items and conditions contained in this Internet Access Agreement (the “Agreement”) and shall be bound thereby.
1) DEFINITIONS
a) “Subscriber,” as used herein, means an individual, a corporation, or a legal entity who incurs usage charges for the Service for its own use or who incurs such charges on behalf of a third party, i.e., a User.
b) “User,” as used herein, means a Subscriber who uses Service or an individual, a corporation, or a legal entity whose Service usage charges are incurred by a third party, i.e., Subscriber.
2) SERVICE
NETWORX BROADBAND, INC, affiliated companies, including VISP Technologies, and/or assigns, herein “NETWORX BROADBAND, INC”, will provide Subscriber and its Users analog or digital access to the Internet, depending upon the rate plan selected (the “Service”), subject to conditions generally beyond the control of NETWORX BROADBAND, INC, including the type and condition of the equipment (personal computer, modem, etc.) of Subscriber and/or its Users. Service may be temporarily unavailable or limited because of capacity limitations and may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocation’s, repairs, and similar activities necessary for the proper operation of Service. NETWORX BROADBAND, INC verifies the speed results through our internal network directly through our fiber optic line by a bandwidth test from the Customer Premise Equipment (CPE) to our main office and does not consider any other speed test website or other forms of equipment acceptable to verify delivered speed. Subscriber agrees requests for an onsite speed test verification could result in a service call fee.
3) ACCEPTABLE USAGE OF BROADBAND ACCOUNTS
In order to provide Subscribers with a quality service and the best possible value, Subscriber agrees that access services are not to be left unattended for extended periods using file sharing applications such as Kazaa, Limewire, or Bittorrent. These services hog bandwidth and increase costs to provide bandwidth to all Subscribers. Server software such as ftp servers, web servers, or other always-on, high, sustained bandwidth services and any other current or future technology or method for utilizing a significant portion of the capacity of the delivered access circuit for a sustained period of time are permitted with appropriate pricing that reflects the cost to provide the service. Subscribers who require such services can get pricing for sustained use circuits will be quoted on a case-by-case basis from NETWORX BROADBAND, INC and/or from NETWORX BROADBAND, INC’s partner providers.
4) PRICE
Subscriber shall pay to NETWORX BROADBAND, INC the charges associated with the rate plan selected including any install fee displayed on signup.
5) PAYMENT
Subscriber shall be billed on a monthly basis and required to be on “Auto Pay” at all times. Payment will be deemed made when received by NETWORX BROADBAND, INC.
a) Active Service Interruption: Subscriber agrees if NETWORX BROADBAND, INC. is not able to process and receive payment via the Subscriber’s method of payment on file by midnight on monthly billing due date, Subscriber, when accessing the internet, will be redirected to their online account to update and pay their monthly service payment in order to reactivate service. Service will not be reactivated until payment due is paid.
b) Late Payment: Subscriber agrees if NETWORX BROADBAND, INC. is not able to process and receive payment via the Subscriber’s method of payment on file by midnight on monthly billing due date there will be an automatic $14.99 late fee added to the Subscriber’s account. For each subsequent day the Subscriber’s account remains unpaid there will be a $2 late fee added to the account per day.
6) COMMUNICATION
Subscriber agrees to allow NETWORX BROADBAND, INC to send communication to Subscriber via electronic mail (email), text messaging, phone/voice mail or US mail as needed to communicate installation/billing status, over-due payments, maintenance, outages, and any other miscellaneous information as needed regarding Subscriber service and account. Subscriber can opt out of text messaging by sending reply text with STOP.
7) TERM AND TERMINATION
This Agreement becomes effective upon registration of Subscriber’s login identification name and shall remain in effect for the period indicated in the rate plan selected or until terminated as provided herein. This Agreement shall continue in effect for consecutive additional terms following the Initial Term until either Party gives the other party on-line notice or other notice of termination at least thirty (30) calendar days prior to the expiration of the then-current term. In the event Subscriber terminates the Service hereunder, then without limitation to any other remedy NETWORX BROADBAND, INC may have, Subscriber will pay to NETWORX BROADBAND, INC upon discontinuance of the Service a termination charge equal to the applicable monthly rate.
8) PROPERTY ACCESS
Subscriber shall allow NETWORX BROADBAND, INC access to the Service Location to the extent reasonably necessary for the Service to include access to the roof and outside walls. Subscriber understands that NETWORX BROADBAND, INC will complete a “site survey”, once service is requested, regardless if Subscriber is home or not. Subscriber shall provide and maintain facilities at the Service Location suitable for the provisioning of the Service. Proper facilities shall include, but may not be limited to, adequate space, sufficient electrical power and proper operating environment, including heating, cooling, and air quality, for the necessary equipment. Subscriber will ensure NETWORX BROADBAND, INC has the right and, with reasonable notice, ability to access the facility space, building conduits and wiring for installation, inspection, maintenance, operation and removal of all NETWORX BROADBAND, INC Equipment related to the Service. Subscriber shall also ensure the Service Location is secure and safe from hazards to the facilities, NETWORX BROADBAND, INC Equipment and to NETWORX BROADBAND, INC’s employees, agents and contractors. NETWORX BROADBAND, INC shall be responsible for any damage to the Service Location to the extent arising from the improper use of the facilities by NETWORX BROADBAND, INC or third party agents or contractors acting on NETWORX BROADBAND, INC’s behalf during such installation, inspection or maintenance activities.
9) CREDIT
CREDIT/REFUND POLICY:
FIXED WIRELESS SERVICE
NETWORX BROADBAND, INC will refund all moneys paid to NETWORX BROADBAND, INC to include installation fee and first month service fee within the 30 days of install if customer is not satisfied. NETWORX BROADBAND, INC will not provide any monetary credit for slow speeds, high latency or for any kind of disruption in service.
LTE WIRELESS SERVICE
NETWORX BROADBAND, INC will refund all moneys paid to NETWORX BROADBAND, INC to include installation fee and first month service fee within the 30 days of install if customer is not satisfied. NETWORX BROADBAND, INC will not provide any monetary credit for slow speeds, high latency, for any kind of disruption in service or SIM card network owner (AT&T/T-Mobile) usage change or discontinuation of service.
FIBER OPTIC SERVICE
NETWORX BROADBAND, INC will not provide any monetary credit for slow speeds, high latency or for any kind of disruption in service. NETWORX BROADBAND, INC will not provide any monetary credit for partial service month upon disconnection.
10) LIMITATION OF LIABILITY
NETWORX BROADBAND, INC SHALL NOT BE LIABLE FOR INTERRUPTIONS CAUSED BY FAILURE OF EQUIPMENT OR SERVICES NOT PROVIDED BY NETWORX BROADBAND, INC, FAILURE OF COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE CONTROL OF NETWORX BROADBAND, INC, NOR SHALL NETWORX BROADBAND, INC BE LIABLE FOR PERFORMANCE DEFICIENCIES CAUSED OR CREATED BY SUBSCRIBER’S OR ITS USER’S EQUIPMENT. SUBSCRIBER AND USER HEREBY RELEASE NETWORX BROADBAND, INC FROM LIABILITY ARISING FROM ANY CONTENT ACCESSED VIA THE SERVICE. NETWORX BROADBAND, INC PERFORMANCE UNDER THIS AGREEMENT SHALL BE EXCUSED IN CASE OF LABOR DIFFICULTIES, GOVERNMENTAL ORDERS, CIVIL COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. NETWORX BROADBAND, INC SHALL NOT BE LIABLE IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF SUBSCRIBER” OR ITS USERS”EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. IN NO EVENT SHALL NETWORX BROADBAND, INC BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC. THE LIABILITY OF NETWORX BROADBAND, INC FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO AN AMOUNT EQUIVALENT TO CHARGES PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH DAMAGES OCCUR. NETWORX BROADBAND, INC MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICE, AND EXPRESSLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE WARRANTY OF MERCHANT-ABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
11) INDEMNITY
Subscriber and User shall indemnify and hold harmless NETWORX BROADBAND, INC from and against any loss, cost, claim, liability, damage, or expense (including reasonable attorney’s fees) to third parties, relating to or arising from the use of service by Subscriber, User, or any of their personnel, whether or not Subscriber or User has knowledge of or has authorized such access or use, including, without limitation, claims for libel, slander, invasion of privacy, infringement of copyright, patent infringement (where Subscriber or User has used, connected, or combined the Service with the products or services of others), negligence, or tortuous behavior. Subscriber agrees to indemnify NETWORX BROADBAND, INC along with any parties from whom NETWORX BROADBAND, INC obtains network service, and to hold them harmless from any claims resulting from the use of the Service by Subscriber or its Users that damage another party or that violate the law.
12) SUBSCRIBER RESPONSIBILITY
Subscriber shall ensure that its Users shall comply with the terms and conditions of this Agreement. Any access to other networks connected to NETWORX BROADBAND, INC’s network must comply with the rules of the other networks. Subscriber shall not use or permit its end users to use the Services in ways that violate laws, infringe the rights of others, interfere with users of our network or other networks, or otherwise violate our Acceptable Use Policy set forth on our Internet Services web site. For example, you shall not distribute chain letters or unsolicited bulk electronic mail (“spamming”); propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; distribute child pornography, obscenity or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights. Subscriber further agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Services.
13) USE OF SERVICE
Subscriber and its Users agree to abide by and comply with the following terms and conditions:
a) Misuse of Service: Subscriber and its Users shall not use the Service to make foul or profane expressions, to impersonate another person with fraudulent or malicious intent, to contract another person so as to annoy, abuse, threaten, or harass such other person, or for any purpose in violation of law, or in such a manner as to interfere unreasonably with the use of the Service by any of NETWORX BROADBAND, INC’s customers. Subscriber and its Users shall not distribute chain letters of “junk” mail (any unsolicited mail of a business or commercial nature) or engage in “Ponzi” or “pyramid” schemes. The Service and underlying network may only be used for lawful purposes. Transmission of any material in violation of any U.S. or state regulation is prohibited. This includes, but is not limited to: copyrighted material, material which is threatening or obscene, or material protected by trade secret. In addition, NETWORX BROADBAND, INC generally reserves the right in its sole discretion to either temporarily discontinue, or permanently terminate furnishing the Service upon notice to Customer in the event Customer uploads any information that is libelous, defamatory or that violates or infringes any right of privacy of any Persons; uploads any messages, data images or programs that are indecent, obscene or pornographic; use the facilities and capabilities of NETWORX BROADBAND, INC to conduct or solicit the performance of any illegal activity or to conduct any other activity that infringes the rights of NETWORX BROADBAND, INC or any third party; or upload any information, messages, data, images or programs that is discriminatory or otherwise offensive as determined by NETWORX BROADBAND, INC in its sole discretion.
b) INTERFERENCE WITH THE RIGHTS OF THIRD PARTIES
In the event that NETWORX BROADBAND, INC receives notice from a third party, or in the event that NETWORX BROADBAND, INC reasonably believes, that Subscriber’s or any User’s use of the Service, either alone or in connection with products or services of others, constitutes, causes, results in, induces or contributes to either (I) defamation, invasion of privacy, or unfair competition, or (ii) misuse, misappropriation of infringement of any patent, copyright, trademark, trade secret or other proprietary or intellectual property right of such third party, then NETWORX BROADBAND, INC shall have the right, in its sole and exclusive option and discretion, without prior notification to Subscriber or to User(s), and without limiting any other rights or remedies NETWORX BROADBAND, INC might have or incurring any obligation or liability to Subscriber or to User(s), to temporarily discontinue or permanently terminate, in whole or on part, furnishing of Services to Subscriber or to User(s).
c) Harm to Equipment, Software and Processes: Subscribers agree unconditionally to not cause harm to NETWORX BROADBAND, INC or third party equipment, software, or processes used in connection with furnishing the Service. In addition to constituting a default under this Agreement, any breach of this provision may result in civil and/or criminal penalties pursuant to applicable local, state and federal law.
d) Content, Accuracy of Information: NETWORX BROADBAND, INC and its affiliates, along with any parties from whom NETWORX BROADBAND, INC obtains network services, exercises no control whatsoever over the content of the information passing through NETWORX BROADBAND, INC’s network. NETWORX BROADBAND, INC makes no warranties of any kind, whether express or implied, for the content of the information passing through its network. Use of any information obtained via the NETWORX BROADBAND, INC network is at Subscriber’s and its User’s own risk or the risk of their affiliates. NETWORX BROADBAND, INC specifically denies any responsibility for the accuracy or quality of information obtained through its Service.
e) Offensive and/or Harmful Information: The Internet hosts some material deemed unfit for viewing and reading by minors under the age of 18. Some sites contain information both in text and graphical formats that Subscriber and/or Users may consider obscene and/or harmful. Subscriber and/or Users agree to not hold NETWORX BROADBAND, INC responsible for sites and postings that could be considered obscene, lewd, offensive, and/or harmful. Subscribers are responsible for their own monitoring and viewing habits and their Users, including minors. NETWORX BROADBAND, INC does not block, filter or screen postings or sites on the Internet in whole or in part.
14) DEFAULT
Upon a default by Subscriber, NETWORX BROADBAND, INC may, in its sole discretion, without prior notification and without limiting its remedies or incurring any liability to Subscriber, either temporarily discontinue or permanently terminate the furnishing of Service to Subscriber in whole or in part. “Default” means any failure by Subscriber to comply with any term of this Agreement, including without limitation, failure to make timely payment of any amount due NETWORX BROADBAND, INC or failure to comply with the restrictions on use of Service set forth in Section 13. Where Subscriber’s equipment is used with Service provided by NETWORX BROADBAND, INC in violation of any of the provisions herein, NETWORX BROADBAND, INC will notify Subscriber and take such action as is necessary for the protection of the Service for use by its other customers. Subscriber shall discontinue such use of the equipment or correct the violation immediately and shall confirm in writing to NETWORX BROADBAND, INC within five days that such use has ceased or that the violation has been corrected, and if Subscriber fails to do so, NETWORX BROADBAND, INC will disconnect Subscriber’s Service, without any credit allowance, until such time as Subscriber complies with the provisions hereof. NETWORX BROADBAND, INC reserves the right to charge a reconnect fee for any discontinued Service that is subsequently reconnected.
15) NO WARRANTIES
NETWORX BROADBAND, INC makes no warranties, express or implied with respect to this agreement or the services provide with respect to this agreement, including, but not limited to dialup, dsl, internet access, email, news services, web hosting services, personal web space, spam filtering, virus filtering or any other services provided pursuant to this agreement. There are no implied warranties for the merchant-ability and fitness for any particular purpose. No representation or statement made by NETWORX BROADBAND, INC or any of its agents or employees, oral or written, including, but not limited to, any specifications, descriptions or statements provided or made to Customer by NETWORX BROADBAND, INC shall be binding upon NETWORX BROADBAND, INC as a warranty or otherwise.
16) EQUIPMENT
Subscriber shall be responsible to provide for the proper installation, operation, and maintenance of Subscriber’s equipment used in connection with the Service, and Subscriber shall ensure that such equipment is technically and operationally compatible with the Service and in compliance with applicable Federal Communications Commission rules and regulations. All equipment including any and all materials used to facilitate the operation of providing internet to your location is owned completely by NETWORX BROADBAND, INC and will be collected upon cancellation of service or NETWORX BROADBAND, INC discontinued service by NETWORX BROADBAND, INC. Subscriber will allow access to all areas of installation property location to recover all equipment. NETWORX BROADBAND, INC will provide notice of equipment recovery by either email or phone call and provide up to 14 days to arrange time to recover Subscriber equipment. Subscriber understands that any intentional or accidental damage caused to any equipment will be charged to Subscriber to replace damaged equipment. For non-recoverable and/or inoperable equipment Subscriber agrees to pay the current cost of equipment plus any recovery labor incurred. NETWORX BROADBAND, INC will not be required to replace any materials on structure where holes were placed for install upon cancellation of service or removal of equipment when service has been canceled. NETWORX BROADBAND, INC will make sure to seal any holes from installation on exterior surfaces with shingle tins or silicone caulk or some combination thereof.
17) RESOLUTION OF DISPUTES:
a) The parties desire to resolve disputes arising out of this Agreement without litigation. Accordingly, except for action seeking a temporary restraining order or injunction related to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, the parties agree to use the following alternative dispute resolution procedure as their sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach.
b) At the written request of a party, each party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The parties intend that these negotiations be conducted by non-lawyer, business representatives. The location, format, frequency, duration, and conclusion of these discussions shall be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement, exempt from discovery and production, which shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all parties. Documents identified in or provided with such communications that are not prepared for purposes of the negotiations are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit.
c) If the negotiations do not resolve the dispute within 60 days of the initial written request, the dispute shall be submitted to binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. A party may demand such arbitration in accordance with the procedures set out in those rules. Discovery shall be controlled by the arbitrator and shall be permitted to the extent set out in this section. Each party may submit in writing to a party, and that party shall so respond, to a maximum of any combination of 35 (none of which may have subparts) of the following: interrogatories, demands to produce documents and requests for admission. Each party is also entitled to take the oral deposition of one individual of another party. Additional discovery may be permitted upon mutual agreement of the parties. The arbitration hearing shall be commenced within 60 days of the demand for arbitration. The arbitration shall be held in Sherburne county, Minnesota. The arbitrator shall control the scheduling so as to process the matter expeditiously. The parties may submit written briefs. The arbitrator shall rule on the dispute by issuing a written opinion within 30 days after the close of hearings. The times specified in this section may be extended upon mutual agreement of the parties or by the arbitrator upon a showing of good cause. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
d) Each party shall bear its own costs of these procedures. A party seeking discovery shall reimburse the responding party the costs of production of documents (to include search time and reproduction costs). The parties shall equally split fees of the arbitration and the arbitrator.
18) MISCELLANEOUS
This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the state of Minnesota. In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. If any provision of this Agreement shall be held to be invalid or unenforceable, the validity and enforce-ability of the remaining provisions of this Agreement shall not be affected thereby. This Agreement embodies the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, and all contemporaneous oral agreements and understandings relating to the subject matter hereof. NETWORX BROADBAND, INC May amend the terms and conditions of this Agreement by giving Subscriber 30 days’ prior on-line notice. This Agreement is subject to modification by any authorized regulatory agency. NETWORX BROADBAND, INC may assign this Agreement without limitation, but Subscriber may not assign this Agreement without NETWORX BROADBAND, INC’s prior written consent. This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns.