THIS IS A SUBSCRIPTION AGREEMENT BETWEEN YOU (“YOU” or “USER”) AND National Email and Internet Corp. (“NEIC”)TO PROVIDE THE QUIXNET SERVICES.
Please read this agreement carefully. All Users are required to comply with this Policy and agree to use the Network in accordance with this Policy. As a User, you must also comply with all terms and conditions of applicable agreements, and with any additional policies, that may be applicable to a specific service offered by National Email and Internet Corp. .
We reserve the right to modify, alter or otherwise update this Policy from time to time without notice, and such modifications will be effective immediately upon posting. You agree to be bound by such terms as are in effect at the time that you access this Web site. In addition, you agree to review this Policy periodically to be aware of such modifications and your continued access will be deemed your conclusive acceptance of the modified Policy.
1. Access to Services.
1.1 Access. In consideration of your payment of the monthly subscription fee, National Email and Internet Corp. agrees to provide You with Internet access services (“QuixNet Services”) through a QuixNet account (the “Account”).
1.2 Changes. National Email and Internet Corp. may, from time to time, notify You of changes or additions to this Agreement. Your continued use of the QuixNet Services after National Email and Internet Corp. notifies You of the changes shall mean that You agree to the changes or additions.
1.3 Limited Use. This Agreement is personal to You. You agree that You will not knowingly allow anyone to use your login name or password to access your Account without prior written approval from National Email and Internet Corp. . The Account is for personal, non-commercial interactive use only and may not be used for camping out or for full-time (24/7) connections. You may not transfer your Account to another individual or entity.
1.4 No Expectation of Privacy. You acknowledge that transmissions made by means of the QuixNet Services are not confidential and that your communications may be read or intercepted by others. You acknowledge that by transmitting materials by means of the QuixNet Services, no confidential, fiduciary, contractually implied or other relationship is created between You and National Email and Internet Corp. . You agree that National Email and Internet Corp. has the right (but not the obligation) to monitor the QuixNet Services electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other government request, to operate the QuixNet Services properly, or to protect itself or its subscribers. However, National Email and Internet Corp. reserves the right to refuse to post or to remove any information or materials, in whole or part, that, in its sole discretion, are unacceptable or in violation of this Agreement. You understand and agree that, unless You notify National Email and Internet Corp. to the contrary in writing, National Email and Internet Corp. may publish your name and other information in directories that may be accessed by third parties.
1.5 Software and Documentation. In the course of providing the QuixNet Services, National Email and Internet Corp. may deliver to you certain software (“Software”) and certain documentation (“Documentation”). National Email and Internet Corp. grants to you a personal, non-transferable, non-exclusive, limited-scope license to use during the term of this Agreement solely for your own purposes the Software and the Documentation in accordance with this Agreement. You only may use the Software and the Documentation (collectively, the “Products”) during the term, at locations in the United States or Canada, as applicable, on a single machine. You shall not copy, modify or distribute the Products. You shall not create or recreate the source code for the Software, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the Software. You shall not remove, erase or tamper with any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Products, nor shall you fail to preserve any proprietary notice in the Products.
2. Fees and Payment.
2.1 Fees. You agree to pay the monthly subscription fees specified on this Web site, as they may be amended from time to time. You agree to pay the fees as long as your Account is open, regardless of whether You have used the QuixNet Services in that month. We reserve the right to increase, decrease or otherwise modify the fees under which we offer the Service. Your monthly subscription fee shall be billed in advance approximately every thirty (30) days, beginning on the anniversary date of your subscription. In addition, you agree to pay any applicable shipping costs, initiation fee, applicable sales, use, value added or similar taxes, and other stated costs or fees that are imposed upon the Service. Such amounts will be payable by you without discount or set off. All amounts will be due and payable within ten (10) days following the date of invoice.
2.2 Payment. You shall pay the monthly service fees and other fees and costs by bank draft or credit card within thirty (30) days after receipt of an invoice. Pre-authorization of your credit card for the monthly service fee will take place approximately three (3) days prior to actual billing.
2.3 Failure of Payment Method. If National Email and Internet Corp. or its third party QuixNet Services administrator cannot collect payment, a subsequent attempts may be made and e-mail notifications may be sent to You. You will be liable for all attorney and collection fees arising from efforts to collect any unpaid balances on the Account. All credit cards will be charged automatically for each billing period. You have a right to dispute a credit card charge levied by us. If the charges are removed by us and then reinstated because the charges were determined to have in fact been valid, then you may be charged a $40.00 service fee. Abuse of your credit card privileges may result in the suspension of or the disabling of your Account. In the event that we are unable to process the monthly credit card payment billed thirty (30) days in advance of providing the Services, we reserve the right to immediately terminate the Services and cancel your account.
2.4 User Cancellation. Cancellations will require a thirty (30) day cancellation notice. If You cancel the Account during the month, the Account will be terminated as of your next billing date. You shall have no right to a refund for mid-cycle or mid-month cancellations.
3. Termination of Service.
You may terminate your Account by notifying QuixNet customer service at support@quixnet.net or by calling 1-855-324-8915. In canceling your account You shall remain liable for all charges accrued until your password has been deactivated, including full monthly charges for the month during which You terminated the Account. National Email and Internet Corp. may modify, suspend or terminate this Agreement or the Account at any time and for any reason without prior notice to You and without refunding any fees You have paid for the QuixNet Services. National Email and Internet Corp. reserves the right to require You to change your login name or password, and to delete any or all program or data files associated with the Account upon termination of this Agreement.
4. Unacceptable Uses of the QuixNet Services.
In accessing and using the QuixNet Services, You agree that:
4.1.1 You will not tell others your password or let your Account be used by anyone except yourself;
4.1.2 You will not attempt to, or cause others to attempt to, log in more than once at the same time on your Account without specific permission from National Email and Internet Corp.;
4.1.3 You will not post or transmit any unlawful, threatening, abusive, libelous, harassing, scandalous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind;
4.1.4 You will not upload, download, post, publish, transmit, reproduce, or distribute in any way, information, software or other material that is protected by copyright, trade secret, trademark, patent, or other proprietary right, without obtaining permission of the owner of such right;
4.1.5 You will not use the QuixNet Services to commit a crime, or to plan, encourage or help others to commit a crime;
4.1.6 You will not post or transmit surveys, requests for money, petitions for signature, chain letters or similar letters;
4.1.7 You will not post or transmit any advertising, promotional materials or any other form of solicitation (National Email and Internet Corp. reserves the right, in National Email and Internet Corp.’s sole discretion, to determine whether such post or transmission constitutes an advertisement, promotional material or any other form of solicitation);
4.1.8 You will not post a single item to more than ten (10) newsgroups or mailing lists or other similar groups or lists;
4.1.9 You will not post or transmit to any newsgroup or mailing list or other similar groups or lists, items that are off-topic (e.g., off-topic according to the charter of the newsgroup or mailing list or other similar groups or lists or if the item provoked complaints from regular readers of the newsgroup or mailing list or other similar groups or lists for being off-topic);
4.1.10 You will not send unsolicited mass e-mailings or commercial e-mail, nor will You use a QuixNet e-mail address to collect responses from unsolicited commercial e-mail;
4.1.11 You will not violate the terms and conditions and operating rules of any other interactive service, including, without limitation, other newsgroups and mailing lists or other similar groups or lists and World Wide Web sites;
4.1.12 You will not post or transmit any private e-mail to any newsgroup or mailing list or other similar groups or lists;
4.1.13 You will not impersonate another user or otherwise falsify one’s user name in e-mail or in any post or transmission to any newsgroup or mailing list or other similar groups or lists. The use of anonymous nicknames does not constitute impersonation;
4.1.14 You will not attempt to “hack” root or user logins on any machine;
4.1.15 You will not run packet sniffers or other software designed to keep an unattended Internet connection connected;
4.1.16 You will not repeatedly send text to other subscribers on Internet relay chat (IRC), nor will You solicit or engage in commercial transactions on IRC, run link lookers on IRC, or have more than 1 bot or a total of 2 clients on IRC at one time;
4.1.17 You will not use dial-up and Web hosting accounts to connect servers (FTP< HTTP, SMTP, POP, TELNET, IRC, MUSH, MUD, etc.) or LANs to the Internet permanently. You must upgrade to a dedicated or leased line account to do this;
4.1.18 You will not engage in other activities that adversely affect the ability of other people or systems to use the QuixNet Services or any aspect of the Internet;
4.1.19 You will not collect, post or transmit credit card, debit card, electronic funds transfer numbers or other similar types of data for either a fraudulent or illegal purpose, or in a manner that would permit others to use such data for a fraudulent or illegal purpose;
4.1.20 You will not collect, without adequate security and a legitimate purpose (as determined by National Email and Internet Corp.), any of the following: (a) information from users under the age of sixteen without consent from such users’ parents or legal guardians; (b) user’s personal health information or personal financial information without informed consent from such user; or (c) other personal information without advising the user;
4.1.21 You will not post or transmit any information or software which contains a virus, worm, cancelbot or other harmful component; and
4.1.22 You will not without permission from the owner of a system or network, do any of the following: monitor data or traffic, probe, scan, test firewalls, test the vulnerability of a system or network or breach the security or authentication routines of a system or network.
4.1.23 You will not use Internet applications for the purpose of simulating network activity to avoid session inactivity disconnection.
4.1.24 You will not use one dial-up account for more than one connection at any given time.
4.1.25 You are prohibited from interfering or attempting to interfere with service to any other User, host, or network on the Internet (“denial of service attacks”).
Examples of such prohibited activity include without limitation:
(a) sending massive quantities of data (i.e. “flooding” with ICMP, SMTP, or any other type of traffic that exceeds accepted norms of size and/or frequency) with the intent of filling circuits, overloading systems, and/or crashing hosts,
(b) attempting to attack or disable any user, host, or site, or
(c) using, distributing, or propagating any type of program, script, or command designed to interfere with the use, functionality, or connectivity of any Internet user, host, system or site (for example, by propagating messages, vial e-mail, Usenet posting, or otherwise, that contain computer worms, viruses, control characters or Trojan horses).
5. Constant Connection Abuse & Excessive Use.
5.1.1 We reserve the right to disconnect you after approximately 30 minutes of inactivity or after approximately 6 hours of continual use. These parameters may be changed at any time in our sole discretion. If you are disconnected because of Constant Connection Abuse, you will have to reconnect your account in order to resume Service.
5.1.2 We reserve the right to suspend and/or cancel customers who engage in Excessive Use at any time. Excessive Use may be determined as usage in excess of 200 hours per month or more.
6. Configuration.
All Users of the Service are responsible for configuring their own systems to provide the maximum possible accountability. For example, you should ensure that there are clear “path” lines in news headers so that the originator of a post may be identified. You should also configure their Mail Transport Agents (MTA) to authenticate (by look-up on the name or similar procedures) any system that connects to perform a mail exchange, and should generally present header data as clearly as possible. As another example, you should maintain logs of dynamically assigned IP (Internet Protocol) addresses. You are responsible for all phone company charges that you incur including any charges for calling long distance to one of the Service’s Points of Presence (“POP”). All POP telephone numbers should be confirmed as a local call before being committed to any system settings.
7. E-Mail.
7.1.1 You are prohibited from engaging in improper use or distribution of electronic mail (“e-mail”) over the Internet. Without limitation of the foregoing, it is a violation of this Policy and you are strictly prohibited from engaging in any of the following activities:
7.1.2 Sending unsolicited bulk e-mail (“UBE”, or “spamming”). This includes, but is not limited to, the distribution of UBE for commercial, informational, advertising, political, or religious purposes.
7.1.3 Setting up “mailback” or “drop box” addresses in order to receive responses from UBE, either directly by the user or by a third party on behalf of the user.
7.1.4 Using a mail transport agent (MTA) outside of your own site to relay mail (unless you have received express permission to do so). Even if permission has been received, you are prohibited from forging identities to make it appear as though the e-mail sourced from the relay.
7.1.5 Sending UBE, or posting news, to advertise or promote resources whose connectivity depends in any way on the Service, regardless of whether such UBE or news posting is made using the Service. For example, using another ISP’s services to send UBE, which advertises a web page, hosted by or via the Service is prohibited.
7.1.6 Hiring or using any third party service for the purpose of distributing UBE or excessively “multi-posting” or “cross-posting” any Usenet posting in the name of a User. You will be held responsible for the actions of any third party agent that acts on your behalf or for your benefit, and shall be held directly accountable for any violations of this Policy by such third party agent.
7.1.7 You are strictly prohibited from sending out any bulk and/or unsolicited e-mail, commercial or otherwise (spamming). Bulk e-mail is defined as identical or similar e-mail messages sent to 25 or more recipients. Spamming is defined as solicitation e-mail messages sent to recipients who have not specifically requested materials to be sent to them. Any violation of this policy may result in the immediate termination of your account, at our sole discretion. If you violate this spamming policy, you may be assessed the following fines and penalties, which you hereby agree to pay:
· First offense: $100.00 or possible termination of your account
· Second offense: $500.00 or possible termination of your account
· Third offense: $500.00 and automatic termination of your account.
7.1.8 Bulk e-mail may be sent only to recipients who have expressly requested receipt of such e-mail. Users that send solicited bulk e-mail are required to maintain records of all bulk e-mail subscription requests, and to provide us with such records upon our request, to enable us to investigate complaints from third parties. The sender of any solicited bulk e-mail shall, upon the request of a recipient, immediately remove such recipient from all applicable mailing lists and refrain from further transmissions of e-mail to such recipient.
7.1.9 Use of any auto-responder messages, mailing lists, or any other programs or scripts run by a User to handle or re-distribute e-mail is the User’s sole responsibility, and shall be operated in a reasonable manner. This responsibility includes, but is not limited to, maintaining up-to-date mailing lists to minimize mail bouncing and to facilitate the processing of removal requests, configuring auto-responders so that they do not create mail loops, and the prompt handling of any complaints regarding UBE redistributed through a mailing list onsite.
8. Consequences of Non-compliance.
8.1.1 Violation of this Policy is strictly prohibited. In the event of any actual or potential violation, we reserve the right to suspend or terminate, either temporarily or permanently, without notice any or all Services, to block any abusive activity, or to take any other actions as deemed appropriate by us, in our sole discretion.
8.1.2 If you violate this Policy, you may incur criminal or civil liability. We may refer you to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection with the civil or criminal investigations of violations.
8.1.3 You do hereby assume liability for, and agree to fully indemnify and hold us, our agents, employees, officers, directors, successors and assigns harmless from and against all liabilities, damages, claims and expenses, including reasonable attorney’s fees, arising out of your use of the Service, including without limitation any liabilities, damages, claims and expenses arising out of the use of the Service in violation of applicable law. These indemnities and assumptions of liabilities and obligations shall survive the expiration or other termination of this Agreement.
9. Indemnification.
You agree to defend, indemnify and hold harmless National Email and Internet Corp., its suppliers and the officers, directors, employees, affiliates and subsidiaries of National Email and Internet Corp. and its suppliers from and against any and all claims, proceedings, damages, injuries, liability, losses, costs and expenses (including, without limitation, reasonable attorney’s fees) arising out of or relating to any acts by You or materials or information transmitted by You in connection with the QuixNet Services, regardless of the type of claim or nature of the cause of action.
10. Proprietary Rights.
By posting messages, uploading files, inputting data, or engaging in any form of communication (collectively, “Communications”) in or through the QuixNet Services, You are granting to National Email and Internet Corp. a perpetual, worldwide license (the “License”) to use, copy, modify, adapt or document such Communications. National Email and Internet Corp. shall use the Communications solely in conjunction with providing, promoting, distributing or otherwise exploiting the QuixNet Services. The License does not, however, grant National Email and Internet Corp. any ownership rights in or to your Communications. You shall have no recourse against National Email and Internet Corp. for any alleged or actual infringement of any proprietary rights to which You may claim ownership. National Email and Internet Corp., its affiliates or its suppliers own all rights, title and interest in and to all components of the QuixNet Services, but expressly excluding content owned by third parties which may be accessible through the QuixNet Services and/or the Internet generally. The ownership rights of National Email and Internet Corp. or its affiliates in the QuixNet Services include, but are not limited to, the look and feel of the end-user interfaces associated with the QuixNet Services, the name of the QuixNet Services, and the collective works consisting of all public messages on the QuixNet Services. You may not reproduce any sequence of messages from the QuixNet Services without National Email and Internet Corp.’s permission. In addition, You may not copy, modify, adapt, reproduce, translate, distribute, reverse engineer, decompile, or disassemble (i) any aspect of the QuixNet Services that National Email and Internet Corp., its affiliates or its suppliers own, or (ii) any service, information or materials supplied by a third party content provider and which You may access through the QuixNet Services.
11. Uncensored Access.
YOU UNDERSTAND THAT ALTHOUGH National Email and Internet Corp. PROVIDES ACCESS TO FILTERING SOFTWARE AND PROCEDURES, MATERIALS ON THE INTERNET ARE CREATED AND MAINTAINED BY UNAFFILIATED THIRD PARTIES AND THAT PORTIONS OF SUCH MATERIALS MAY BE SEXUALLY EXPLICIT, OBSCENE, OFFENSIVE, OR ILLEGAL. IN NO EVENT SHALL National Email and Internet Corp., ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO ANY PERSON OR ENTITY, EITHER DIRECTLY OR INDIRECTLY, WITH RESPECT TO ANY MATERIALS FROM THIRD PARTIES ACCESSED THROUGH THE QUIXNET SERVICES. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE QUIXNET SERVICES AND THE INTERNET GENERALLY. National Email and Internet Corp., ITS AFFILIATES AND ITS SUPPLIERS DISCLAIM ANY AND ALL RESPONSIBILITY FOR CONTENT CONTAINED IN ANY THIRD PARTY MATERIALS PROVIDED THROUGH LINKS FROM THE QUIXNET WEB SITE.
12. Warranties.
12.1 Disclaimer. THE QUIXNET SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND YOUR USE OF THE QUIXNET SERVICES IS ENTIRELY AT YOUR OWN RISK. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE QUIXNET SERVICES AND THE INTERNET GENERALLY. IT IS ALSO SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, USEFULNESS OR VALIDITY OF ALL OPINIONS, ADVICE, SERVICE, PROMOTIONS, ADVERTISEMENTS, AWARDS, PRIZES OR OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE, PROVIDED THROUGH THE QUIXNET SERVICES OR ON THE INTERNET GENERALLY. National Email and Internet Corp., ITS AFFILIATES AND SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE QUIXNET SERVICES OR ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH National Email and Internet Corp., ITS AFFILIATES, SUPPLIERS OR ON THE INTERNET GENERALLY, OR AS TO THE ACCURACY, QUALITY, COMPLETENESS, TITLE, NON-INFRINGEMENT, OWNERSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE OF ANY MATERIALS ACCESSED THROUGH THE QUIXNET SERVICES. National Email and Internet Corp., ITS AFFILIATES AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.2 Capacity. You certify to National Email and Internet Corp. that you are not a minor, i.e., that You are at least eighteen (18) years of age and have all the necessary power, competence and authority to enter into this Agreement.
13. Limitation of Liability.
National Email and Internet Corp., ITS AFFILIATES AND SUPPLIERS WILL NOT BE RESPONSIBLE TO YOU OR TO ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES THAT YOU OR SUCH THIRD PARTY MAY INCUR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE QUIXNET SERVICES OR THE INTERNET GENERALLY, OR ANY OF THE DATA OR OTHER MATERIALS TRANSMITTED THROUGH OR RESIDING ON National Email and Internet Corp. EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF National Email and Internet Corp., ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGE OR LOSS. IN NO EVENT SHALL National Email and Internet Corp.’S, ITS AFFILIATES’ OR ITS SUPPLIERS’ LIABILITY FOR ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR THE QUIXNET SERVICES EXCEED THE SERVICE CHARGES INCURRED BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH CAUSE OF ACTION. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. Furthermore, some states do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to You. You understand that if You become dissatisfied with the QuixNet Services, your sole and exclusive remedy will be to discontinue the QuixNet Services in accordance with Section 3 of this Agreement.
14. General Terms.
14.1 Amendment. National Email and Internet Corp. may, in its sole discretion, change, modify, add or remove any portion of this Agreement at any time, and it may discontinue, add to or otherwise modify the QuixNet Services provided under this Agreement. Notification of changes in the Agreement will be posted on the QuixNet Web site.
14.2 Waiver. No provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach of the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. The exercise by either party of the rights of termination set forth in this Agreement shall not be deemed to constitute a waiver of any other rights or remedies available to either party for a violation of the terms of this Agreement or under applicable law.
14.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of National Email and Internet Corp. and User and their respective legal representatives, successors, and authorized assigns. National Email and Internet Corp. is a supplier of the QuixNet Services and is an intended third-party beneficiary of this Agreement.
14.4 Severability. If any provisions of this Agreement shall be prohibited or unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions.
14.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA, CANADA, WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES. Any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted to a panel of three (3) arbitrators in Vancouver, British Columbia. Each party shall choose one (1) arbitrator, and the third arbitrator shall be chosen by the two (2) arbitrators selected by the parties. The award of the arbitrators shall be made in writing, with findings of fact and conclusions of law. The written decision shall be final, binding, and convertible to a court judgment in any appropriate jurisdiction. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court. In any action/arbitration brought under this Agreement, the prevailing party shall be entitled to recover its actual costs and attorneys’ fees and all other litigation costs, including expert witness fees, and all actual attorneys’ fees and costs incurred in connection with the enforcement of a judgment arising from any action or proceeding.
14.6 Entire Agreement. This Agreement constitutes the entire agreement between National Email and Internet Corp. and You with respect to the subject matter of this Agreement and supersedes all earlier agreements and understandings, oral and written, between the parties.
DSL Terms of Service
The Terms of Service in this Agreement (the “Agreement”) are entered into by and between the subscriber (“you,” “your” or “Subscriber”) and National Email and Internet Corp. (“NEIC”) to provide the Quixnet DSL Services. You are deemed to have accepted this Agreement upon the earliest of: (a) your submission of an order; (b) your accepting the terms and conditions electronically during the ordering process; or (c) your use of the Service (as defined herein). This Agreement includes the terms set forth herein, the Acceptable Use Policy, the Privacy Policy, and all other materials specifically referenced in this Agreement, all of which are incorporated by reference herein. This Agreement sets forth the terms and conditions under which you agree to use the Service.
SERVICE. NEIC will provide you with dedicated access to the Internet, subject to the terms and conditions set forth herein (the “Service”). Speeds on the various plans will vary depending on many factors, including but not limited to distance from the local service provider’s central office, internet congestion, upload and download speed of your destination server. Service is provided in conjunction with a circuit provider, which may be your local phone company. The circuit provider retains the right to cancel the service before or after installation at their sole discretion at any time. Although pre-qualification provides a good measure of certainty regarding service availability, it is not a guarantee of service. We recommend waiting until service is installed and tested for a few weeks before assuming that service will be available and of good quality.
PROVIDERS. The application of certain terms herein vary depending on whether the phone line or circuit for a Subscriber is AT&T (an “AT&T Subscriber”), Verizon (a “Verizon Subscriber”), or Covad (a “Covad Subscriber”). NEIC breaks out each phone line or circuit for a Subscriber by Networks. A Subscriber in “Network 1” or “Network 2” is a AT&T Subscriber, a Subscriber in “Network 3” is a Verizon Subscriber, and a Subscriber in “Network 4” is a Covad Subscriber, and a Subscriber in “Network 6” is a Qwest Subscriber.
SUBSCRIBER INFORMATION. You acknowledge that you are eighteen (18) years of age or older, and you agree that you have the legal authority to enter into this Agreement and affirm that the information you supply to us is correct and complete. You understand that NEIC relies on the information you supply and that providing false or incorrect information may result in Service delays or the suspension or termination of your Service. You agree to promptly notify NEIC whenever your personal or billing information changes, including without limitation, your name, address, telephone number, and credit card number and expiration date, if applicable.
GENERAL PRICING AND FEES. NEIC’s prices are shown in the Pricing Schedule and you will be charged based on the Plan and Options you select during the ordering process. A Subscriber who selects a “Month to Month” Plan (a “Monthly Subscriber”) will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Monthly Subscriber at the time of order. However, such monthly prices are subject at any time to increase to NEIC’s then current prices. A Subscriber who selects a “1 Year Contract” Plan (an “Annual Subscriber”) will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Annual Subscriber at the time of order. Such monthly prices for Annual Subscribers are guaranteed for the initial twelve (12) month Term. Following the initial twelve (12) month Term, an Annual Subscriber will automatically become a Monthly Subscriber and will pay NEIC then current prices, subject to increase as described above, unless such Subscriber registers for a new “1 Year Contract” Plan at such time, to the extent available. An Annual Subscriber may upgrade or downgrade their DSL Service to a different speed plan during their initial (12) month Term. Any such Annual Subscriber so upgrading or downgrading may, at the time of upgrade or downgrade, select either (a) a “Month to Month” rate, in which case such Subscriber shall continue to be subject to all of the terms and conditions of this Agreement for the remainder of such Subscriber’s initial twelve (12) month Term and following such initial Term, such Subscriber will automatically become a Monthly Subscriber and will pay NEIC then current prices, subject to increase as described above, unless such Subscriber registers for a new “1 Year Contract” Plan at such time, to the extent available or (b) a “1 Year Contract” Plan, in which case such Subscriber’s initial twelve (12) month Term shall restart on the date of such upgrade, provided that such Subscriber shall continue to be subject to all of the terms and conditions of this Agreement for the period prior to such upgrade or downgrade. In addition to regular fees set forth in the Pricing Schedule, you agree to pay all other charges, including but not limited to applicable taxes, network usage and surcharges, including charges imposed against NEIC by third party providers that it passes on to you. The taxes and surcharges may vary on a monthly basis; any variations will be reflected in your monthly charge. The current Supplier Surcharge Recovery is one dollar and ninety-three cents ($1.93) for all clients. Texas Residents are also subject to an Internet Tax on all monthly services of eight and three-tenths percent (8.3%) after the first twenty-five dollars ($25.00). When possible, NEIC will break out such charges on the monthly invoice. You may change your plan speed at any time. A fifty dollar ($50.00) downgrade fee will apply to any AT&T Subscriber, Verizon Subscriber, or Qwest Subscriber who downgrades their speed. A ninety-nine dollar ($99.00) fee will apply to any Covad Subscriber who upgrades or downgrades their speed. A fifty dollar ($50.00) fee will apply to any Subscriber who switches from a Static IP to a Dynamic IP. Promotional packages are only available to first time NEIC Subscribers.
SETUP AND ACTIVATION FEES. There are currently no activation fees associated with the NEIC DSL service.
PAYMENT, LATE FEES AND OTHER CHARGES. There is no money back guarantee for any Services unless specifically written in a special one time promotion. There are no pro-rated refunds for unused time. Unless otherwise stated in the Pricing Schedule, NEIC will invoice Subscribers monthly. Invoices will be on a full calendar month basis. New Subscribers who enter into this Agreement after the first day of any month will be billed on a pro-rated basis for their first month of Service and thereafter on a full calendar month basis. Subscribers agree to pay within twenty (20) days from receipt of an invoice. If a Subscriber does not pay an invoice within such twenty (20) day period, NEIC may deny, discontinue or otherwise suspend such Subscriber’s Service until full payment is received. Subscribers are responsible for paying monthly subscription fees while Services are suspended due to non-payment. Subscribers are responsible for any disputed charges beyond sixty (60) days from the date of the charge. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges. Subscribers must pay a twenty-five dollar ($25.00) service charge on all returned checks, disputed credit cards, and credit card chargebacks. Past due accounts will accrue a monthly charge of one and one-half percent (1.5%) of the past due balance or one dollar ($1.00), whichever is greater.
EQUIPMENT. During signup, the Subscriber will be given the choice to rent or purchase a DSL modem. If the Subscriber is renting the modem, the Subscriber must return to NEIC the complete modem kit in a useable condition at Subscriber’s expense within thirty (30) days of termination of the Service by Subscriber or NEIC. Subscriber must pay sixty-nine dollars and ninety nine cents ($69.99) plus applicable taxes to purchase any modem Subscriber does not return to NEIC in working condition within such thirty (30) day period.
SOFTWARE. In connection with our provision of the Service, we may provide to you, via download, CD, other media, or other delivery method, the use of certain software which is owned by NEIC or its third party licensors, providers and suppliers, and which may be provided free or for a fee, including client and/or network security software (the “Software”). We reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of or for use with the Service and for no other purpose. The Software may be accompanied by an end user license agreement from NEIC or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement
TERM. This Agreement is effective upon Subscriber’s acceptance as provided above and shall continue until terminated by Subscriber or NEIC pursuant to this Agreement. Each Monthly Subscriber is on automatically renewing monthly terms beginning on the first day of each calendar month (or, for the first monthly term, the full or partial month beginning with Subscriber’s acceptance as provided above).
TERMINATION BY SUBSCRIBER. Subscriber may terminate this Agreement at any time for any reason by providing NEIC with a thirty (30) day written notice in the form of a valid written termination request and paying all fees and other charges accrued or otherwise payable under the terms of this Agreement. Such thirty (30) day period begins on the date on which NEIC receives Subscriber’s valid written termination request. A Monthly Subscriber’s termination will be effective on the later of (a) the end of last day of the calendar month during which such thirty (30) day period ends (e.g., a valid written termination request received by NEIC any time during January will result in termination effective at the end of February) or (b) the end of last day of the calendar month requested by the Monthly Subscriber. If this Agreement is terminated prior to the end of a Monthly Subscriber’s initial twelve (12) month term, such Monthly Subscriber must pay, in addition to all fees and other charges accrued or otherwise payable under the terms of this Agreement, an early termination fee in the amount of one hundred and fifty dollars ($150.00) (“Early Termination Fee”). In the event a Monthly Subscriber terminates this Agreement prior to the end of their twelve (12) month term because of a service-related problem not caused by the Subscriber that NEIC has failed to cure after what NEIC determines in its sole discretion to be a reasonable amount of time based on the circumstances, the Subscriber is entitled to a waiver of the Early Termination Fee. For such waiver to apply, the reason for the waiver stated above must have occurred before termination and the Subscriber must report such reason for termination to NEIC in its valid written termination request. NEIC must in turn be given the opportunity to resolve the problem and the Subscriber must be willing to troubleshoot with NEIC as well as be available for and authorize the dispatch of a network provider technician. NEIC does not monitor Subscriber accounts for activity, and absence of activity or cancellation of a Subscriber’s telephone number will never constitute a termination request. A written termination request is valid only if it includes your DSL phone number, main username, date you wish the service to be cancelled and the reason for canceling and is submitted via email to accounting@ubn.ca.
TERMINATION BY NEIC. If, in NEIC’s sole discretion, (a) a Subscriber is in breach of any of the terms of this Agreement (including but not limited to the Acceptable Use Policy); (b) a Subscriber’s use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, NEIC’s servers or other equipment, or the use and enjoyment of other users; (c) a Subscriber acts in an abusive or menacing manner when dealing with NEIC’s technical support staff, customer service staff or any other NEIC employees or representatives; (d) NEIC receives an order from a court to terminate a Subscriber’s Service; or (e) NEIC for any reason ceases to offer the Service, then NEIC at its sole election may terminate or suspend such Subscriber’s Service immediately without notice. For a termination in accordance with this paragraph, Subscriber remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the Early Termination Fee and equipment charges set forth herein, if applicable.
TERMINATED SUBSCRIBER. NEIC, in its sole discretion may refuse to accept a Subscriber’s application for renewal or resubscription following a termination or suspension of such Subscriber’s use of the Service. If a Subscriber’s Service is terminated for any reason, such Subscriber, upon approval by NEIC, may enter into a new Agreement and must pay a new setup or activation fee as provided above. Upon the termination of a Subscriber’s use of the Service, NEIC has the right to immediately delete all data, files and other information stored in or for the Subscriber’s account without further notice to the Subscriber.
SPEED OF SERVICE. Speed rate depends upon the Subscriber’s Plan and line capabilities (e.g., loop length, line condition, gauge of copper wire and Phone Company provisioning). The maximum speed for ADSL is stated under optimal conditions and may vary significantly. Speeds are subject to a 20% overhead (e.g., 768k stated speed = 768k times 80% throughput = 614k actual speed). Minimum speeds are offered for a AT&T Subscriber and are based on the package’s listed minimum speed minus 20% overhead (e.g., 384-1500k/128-256k stated speed = 384k times 80% throughput = 307k actual speed.) Actual speeds that fit the 80% of the minimum throughput criteria are considered acceptable. A Verizon, Covad or Qwest Subscriber has no minimum speeds. All Services are provided on an AS IS basis and throughput speeds are not guaranteed.
EASY ISP CHANGE FOR AT&T SUBSCRIBERS. Completing the AT&T ISP change form authorizes AT&T to terminate DSL service with your current Internet service provider and further authorizes AT&T to establish DSL service with NEIC. Opting to use the ISP change process will reduce or eliminate the amount of downtime that you may experience when switching from your current Internet service provider to NEIC. Most Subscribers experience less than twenty four (24) hours of downtime during this process but overall downtime can be between zero (0) and four (4) business days. You are responsible, and you hold NEIC harmless, for any and all early termination, cancellation or other fees, charges or obligations resulting from your change of Internet service provider.
INSTALLATION. Unless otherwise requested by the Subscriber, the first available installation date will be provided. Any installation date provided to a Subscriber is only an estimate and is no way a guaranteed installation date. Subscribers understand and agree that circumstances may arise which delay a Subscribers estimated installation date and any such delay will not be considered a breach of this Agreement by NEIC. Payment for your initial month’s service (and if applicable: setup fees, installation fees, and equipment) must be received prior to your turn-on date in order for your setup instructions and IP information to be released to you. If your payment is not received by your turn-on date, you will be responsible for the service fees even though your IP and setup information has not been provided to you. A Subscriber’s computer must be equipped with an Ethernet Network Interface (NIC) card for proper DSL operation. NEIC does not include a PCI NIC card as part of the modem package.
SELF-INSTALLATION. Self-installation allows the Subscriber to install their DSL equipment. This option provides service to the minimum point of entry (“MPOE”) of your phone service. Your MPOE is normally located outside your building. Inside wiring and inside wiring repair is not included with this option. If inside wiring or inside wiring repair is required, you must contract with your circuit provider or other professional for such work at your own cost. Faulty inside wiring is not grounds for cancellation of your contract. Multi-line phones, phone systems, alarm system or special phone configuration may require a professional installation or special multi-line phone filters. NEIC does not provide nor is responsible for any special equipment including but not limited to a POTS splitter or multi-line phone filters. A required professional installation, need for special equipment in order to establish a connection or an incompatible phone line or phone system is not grounds for cancellation of your contract. A sixty dollar ($60.00) transfer fee will apply to any AT&T or Verizon Subscriber and a one hundred dollar ($100.00) transfer fee will apply to any Covad or Qwest Subscriber who must transfer their service to a standard phone line due to an incompatible phone line or phone system.
SUBSCRIBER SUPPLIED MODEM. All Subscribers must purchase or rent our DSL modem to use the service. Although our service may work with other DSL modems, we will provide no technical support to a Subscriber who uses their own modem.
SUBSCRIBER PREMISE EQUIPMENT. The PPPoE connection will allow one computer to use your DSL connection. Static IP accounts include a DSL bridge which can be used ahead of one computer or router provided by you. NEIC does not provide support for router(s). All packages include basic instructions and support.
TECHNICAL SUPPORT. NEIC assumes that the Subscriber has a basic understanding of their computer. NEIC will not train you in basic computer skills (e.g., deleting files or creating directories). Technical support is intended to facilitate the setup of your properly functioning computer system for access to our services. Your computer must recognize your modem or network card, and receive a dial tone or network link connectivity before any technical support will be dispensed. Our technical support staff is not trained to, has no obligation to and will not assist you in installing and/or troubleshooting modems, network cards, routers, complex network configurations or telephone lines, neither will they provide any technical assistance or support for any third party Software. NEIC is not responsible for connection problems due to a computer that is infected with viruses, spyware or malware. It is the Subscriber’s responsibility to initiate and be available for technical support during NEIC’s hours of operation. If a Subscriber wishes to utilize NEIC’s technical support, the Subscriber must be available to help troubleshoot the connection or computer setup. NEIC does not provide on-site technical support.
MAINTAINING CURRENT TELEPHONE SERVICE. DSL service shares the Subscriber’s current telephone line and service. It is the Subscriber’s sole responsibility to maintain the phone line and phone number of original installation in continuous working order with the local phone company in order to receive the Services. A Subscriber who disconnects telephone service remains responsible for monthly service fees, Early Termination Fees and all other fees, charges and other obligations provided for in this Agreement. A sixty dollar ($60.00) transfer fee will apply to any AT&T or Verizon Subscriber and a one hundred dollar ($100.00) transfer fee will apply to any Covad or Qwest Subscriber who changes their current telephone service. This includes but is not limited to change of phone number, change of phone line or change of service location. A change in phone service will result in downtime while service is reestablished.
IP ADDRESSES. Each Subscriber is allowed one (1) computer device per IP address. Upon expiration, cancellation or termination of this Agreement, a Subscriber must relinquish any IP addresses or address blocks assigned to them by NEIC. NEIC may choose to assign any Subscriber a new IP address at any time.
ACCEPTABLE USE. Subscriber agrees to use the DSL Service in accordance with NEIC’s acceptable use policy (“Acceptable Use Policy”) published at http://services.NEIC.net/html/termsofservice.html. NEIC reserves the right to make changes to the Acceptable Use Policy without notice.
PRIVACY POLICY. DSL Extreme will treat each Subscriber’s personal information in accordance with NEIC’s privacy policy (“Privacy Policy”) published at http://services.NEIC.net/html/termsofservice.html. Subscriber agrees to the terms of the Privacy Policy. NEIC reserves the right to make changes to the Privacy Policy without notice.
PORT FILTERING. A port 25 (outgoing mail) filter is applied to all Subscribers to prevent against spam generated from our network. NEIC reserves the right to block any port without prior notice to protect the network and its Subscribers from potential virus attacks spreading over a certain port.
WARRANTIES AND LIMITATIONS OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT AND SOFTWARE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY NEIC (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). NEIC (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY NEIC OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF NEIC TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
NEIC DOES NOT WARRANT OR GUARANTEE THAT DSL SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF NEIC HAS ACCEPTED YOUR ORDER FOR DSL SERVICE. THE PROVISIONING OF DSL SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR NEIC SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY NEIC -PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
NEIC DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY NEIC WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. NEIC SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. NEIC MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. NEIC MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL NEIC (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF NEIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 30 ALSO APPLY TO NEIC’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH NEIC (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), NEIC’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
NEIC RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS NEIC (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEEMENT OR SUBJECTING NEIC (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIOINAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF NEIC (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
LINKS. NEIC or third parties may provide links to websites other than http://www.NEIC.net or other resources. Because NEIC has no control over such websites and resources, you acknowledge and agree that NEIC is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that NEIC will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
INDEMNIFICATION. You agree to defend, indemnify and hold harmless NEIC from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, the Software, the Equipment or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment or the Internet.
REVISIONS. NEIC may revise the terms and conditions of this Agreement from time to time (including any of the policies which may be applicable to usage of the Service) by posting such revisions to our website at http://services.NEIC.net/html/termsofuse.html. Subscribers agree to visit this page and the links thereon periodically to be aware of and review any such revisions. Increases to the monthly price of the Service for Monthly Subscribers shall be effective beginning with the calendar month following the calendar month in which such increases are posted. Revisions to any other terms and conditions shall be effective upon posting. By continuing to use the Service after revisions are in effect, a Subscriber accepts and agrees to the revisions and to abide by them. Any Subscriber who does not agree to the revision(s) must terminate their Service immediately.
ASSIGNMENT. You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. NEIC may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
CHOICE OF LAW. You and NEIC agree that the substantive laws of the province of British Columbia, Canada, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND NEIC CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN British Columbia, Canada FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, including British Columbia laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
COMPLIANCE. NEIC’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
THINGS BEYOND NEIC’S CONTROL. NEIC will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
ENTIRE AGREEMENT. This Agreement, including all policies posted on NEIC’s website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and NEIC with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
NOTICE. Notices by NEIC to you shall be deemed given: (a) when sent to your NEIC email address, (b) when deposited in the United States mail addressed to you at the address you have specified in your account options or (c) when hand delivered to your home, as applicable.
SURVIVAL. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.