Please read the following carefully. If you have any questions, feel free to e-mail us at firstname.lastname@example.org, or call our support hotline at (877) 688-8127.
In consideration of the Internet access and services (the “Services”) being provided to you by the Company (as herein defined), you agree to the terms and conditions of this Customer Use Agreement (the “Agreement”). If at any time you choose not to agree to all or any of the following terms and conditions, you must notify the Company immediately to cancel.
Terms of Service
1. ACCEPTANCE OF AGREEMENT
Use of the Company’s services and the access of your Internet account by you as a company and/or an individual constitutes acceptance of this Agreement in full. This Agreement is effective when you first use the Company’s services, including but not limited to access to the Internet, and continues until service terminated by either party. If this Agreement is terminated by either party, you are still responsible for any charges on your account.
2. DMCA NOTICES
Per the terms of the Copyright Act, all DMCA notifications are required to be forwarded in their entirety. http://laws-lois.justice.gc.ca/
3. DSL SERVICE
If you are a broadband customer, the Company will provide you with dedicated broadband access to the Internet, subject to the terms and conditions set forth herein (the “Service”). 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.
4. DSL CIRCUIT PROVIDER
Service is provided in conjunction with an underlying circuit provider, which may be your local phone company. The circuit provider retains the right to cancel the service before or after installation at its sole discretion at any time. The application of certain terms herein vary depending on whether the phone line or circuit for a Subscriber is provided by Bell Canada or another circuit provider. Company breaks out each phone line or circuit for a Subscriber by Networks.
5. 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 Company relies on the information you supply and that providing false or incorrect information may result in additional fees, service delays or the suspension or termination of your Service. You agree to promptly notify Company whenever your personal or billing information changes, including without limitation, your name, address, telephone number, and credit card number and expiration date, if applicable. You agree that your username and password and changes to both of these items are your responsibility.
6. GENERAL PRICING AND FEES
Company’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 Company’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 Company’s 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. A pre-paid Annual subscriber will auto-renew for a new pre-paid (12) month term, unless requested prior to the renewal date. Pre-paid annual plans are not refundable after 30 days from the installation date. 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, 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 Company’s then current prices, subject to increase as described above.
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 Company 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. When possible, Company will break out such charges on the monthly invoice.
You may change your plan speed at any time. A change fee may apply depending on the carrier network.
Promotional packages are only available to first time Company subscribers.
7. DSL SETUP AND ACTIVATION FEES
Upon entering into this Agreement, a non-refundable setup fee may apply. Fees will vary by network.
8. PAYMENT, LATE FEES AND OTHER CHARGES
There is no money back guarantee for any Services unless specified in writing as part of a marketing promotion. There are no pro-rated refunds for unused time, including for pre-paid plans, such as annual plans (i.e., if a subscriber pre-pays for an entire year, no amount of that prepayment will be refunded, even if the service is canceled before the end of that year). Unless otherwise stated in the Pricing Schedule, Company will invoice the Subscriber monthly. The Company bills for most services in advance. 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, Company 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 third-party collection agency and might incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges, which the Subscriber agrees to pay.
Subscribers must pay a twenty-five dollar ($25.00) service charge on all returned checks and Echecks (ACH). Subscribers might incur a twenty-five dollar ($25.00) service charge on disputed credit card charges and credit card chargebacks.
9. ACCOUNT BILLING
All billing statements will be sent via e-mail. All credit cards will be charged automatically for each billing period. If you dispute a valid credit card charge levied by the Company, your account with the Company will be immediately disabled and you might be charged a twenty-five dollar ($25.00) service charge.
All billing disputes should be directed to the Billing Department. Any billing disputes done through a financial institution can result in the immediate cancellation of the Internet account for which the funds have been withdrawn and a twenty-five dollar ($25.00) chargeback fee for each dispute may be applied. A twenty-five dollar ($25.00) return payment fee will be assessed on all returned payments (checks, Echecks or ACH).
The subscriber is responsible for the accuracy of the financial institution information provided and to ensure that there are sufficient funds to cover the amount charged by the Company. Under no circumstances will the Company be held liable for fees incurred by the subscriber’s financial institution. Service will be suspended, and ultimately cancelled, if proper payment is not made. To reinstate an account cancelled for a billing dispute, all disputed charges must be repaid and any applicable chargeback fees must be paid.
10. RATE CHANGES
The Company reserves the right to change its rates and otherwise modify the terms and conditions of this Agreement at any time by notifying you 30 days in advance of the effective date of such changes. In the event that you wish to terminate your account due to a price increase, you, the customer, will have 10 days from the date of notification of the effective increase to email the Company a written request to terminate services to email@example.com. Otherwise, the existing service will be billed at the new rate. This Agreement hereby super-cedes all previous representations, understanding, or agreements, written or oral, by or between you and the Company, and shall prevail notwithstanding any variance with terms and conditions of any and all orders submitted.
11. DIAL-UP USERS UPGRADING TO DSL SERVICE
If a subscriber to Company’s Dial-Up service upgrades to DSL Service and, pursuant to their agreement with Company covering such Dial-Up service, the Subscriber is entitled to a credit equal to their remaining unused prepaid Dial-Up fees toward DSL Service (their “Dial-Up Credit”), upon entering into this Agreement, the Subscriber can apply their Dial-Up Credit toward their Service fees. However, the Dial-Up Credit can only be used as a credit against their Service fees under this Agreement and the Subscriber will not receive a refund of any unused portion of their Dial-Up Credit not applied toward their Service fees.
12. DSL EQUIPMENT
Modems are available for purchase or lease via the Company. End users can provide their own modem, but the company will be unable to provide any technical support for end user provided modems. In addition, the company cannot guarantee that an end user provided modem will work with the Company’s service.
Upon cancelling the Service with the Company, Subscribers who have opted to lease a modem from the Company are required to return the leased modem within thirty (30) days of notifying the Company of their wish to cancel. Any leased modem that is not returned to the Company within thirty (30) days will incur a ninety-nine dollar ($99.00) nonreturned modem fee to the Subscriber for the purchase cost of the modem. Failure to pay the ninety-nine dollar ($99.00) nonreturned modem fee will result in the transfer of the account to a third-party collection agency.
The return of the leased modem to the Company is at the cost of the Subscriber only. The Company is not responsible for providing any return shipping boxes or labels, nor is the Company responsible for crediting or refunding the Subscriber any monies paid for mailing or shipping the leased modem. Subscribers who do not ship or mail the leased modem back to the Company in a manner that will provide them with a Tracking Number or Shipping Number from Canada Post are solely responsible for the full ninety-nine dollar ($99.00) purchase cost of the modem if the Company does not receive the package.
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 Company or third party licensors, circuit 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 Company 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.
This Agreement is effective as provided above and shall continue until terminated by Subscriber or Company pursuant to this Agreement. Each Monthly Subscriber is on automatically renewing monthly terms beginning on the first day of the customer billing cycle. The billing cycle is defined as the date when the customer first signed up for service. ). An Annual Subscriber is on a twelve (12) month term beginning on the day such Subscriber accepts the terms of this Agreement as provided above. Following the initial twelve (12) month Term, an Annual Subscriber will automatically become a Monthly Subscriber.
15. TERMINATION BY SUBSCRIBER
Subscriber may terminate this Agreement at any time for any reason by providing Company with a thirty (30) day notice in the form of a phone call or other valid written termination request as determined by the Company, 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 Company receives Subscriber’s phone request, or other valid written termination request. A Monthly Subscriber’s termination will be effective on either (a) the last day of the current monthly billing cycle, or (b) thirty (30) days after the receipt of the phone or valid written termination request. An Annual DSL Subscriber’s termination, if received by Company at least thirty (30) days prior to the end of their twelve (12) month term, will be effective at the end of such twelve (12) month term, unless such Annual Subscriber requests an earlier date. Notwithstanding the foregoing provisions of this section 11, if Company receives a phone or valid written termination request from a Subscriber, Company may, in its sole discretion, terminate this Agreement on a date earlier than the date otherwise prescribed by this section 11. If this Agreement is terminated prior to the end of an Annual DSL Subscriber’s twelve (12) month term, such Annual 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 two hundred and fifty dollars ($250.00) (“Early Termination Fee”). An exception to this are subscribers who have subscribed to Power DSL, these will be subject to a $100.00 Early Termination Fee. EastLink subscribers are subject to a $50.00 Early Termination Fee. In the event an DSL Annual Subscriber terminates this Agreement prior to the end of their twelve (12) month term because of a service-related problem not caused by the DSL Subscriber that Company has failed to cure after what Company determines in its sole discretion to be a reasonable amount of time based on the circumstances, the DSL 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 DSL Subscriber must report such reason for termination to Company in its valid written termination request. Company must in turn be given the opportunity to resolve the problem and the Subscriber must be willing to troubleshoot with Company as well as be available for and authorize the dispatch of a network Company technician. Company 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 full name, DSL phone number (if applicable), main username or customer number, date you wish the service to be cancelled and the reason for canceling and is submitted using one of the following methods:
1. Email to firstname.lastname@example.org
2. Via mail to:
Attn: Cancellation Department
922 Eglinton Ave West
P. O. Box 85514
Toronto, ON M6C 2V2
16. TERMINATION BY COMPANY
If, in Company’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, Company’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 Company’s technical support staff, customer service staff or any other Company employees or representatives; (d) Company receives an order from a court to terminate a Subscriber’s Service; or (e) Company for any reason ceases to offer the Service, then Company 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.
In addition any Internet activity, which references back to the Company or its services in a damaging manner, will result in suspension or termination of account(s). Illegal Internet activity using or referencing to the Company or an account or services provided by the Company will result in immediate termination, possible prosecution, and assessment of legal fees accrued.
17. TERMINATED SUBSCRIBER
Company, in its sole discretion may refuse to accept a Subscriber’s application for renewal 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 Company, 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, Company 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.
In addition there is no discount for the Company to forward your email or website, if you choose to terminate your account with the Company. For this reason, it is recommended that you continue your account with the Company for as long as necessary for forwarding purposes. As long as the Company forwards your email or website, you will need to continue your account with the Company.
18. SPEED OF SERVICE
Speed rate for DSL subscribers depends upon the DSL Subscriber’s plan and line capabilities (e.g., loop length, line condition, gauge of copper wire and Phone Company provisioning, location from central office, etc.). The maximum speed for ADSL/VDSL is stated under optimal conditions and may vary significantly. All speeds are provided as an up to service depending on your plan, and full speed cannot be guaranteed.
19. 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 Company and further authorizes AT&T to establish DSL service with Company. 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 Company to Company. 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 Company harmless, for any and all early termination, cancellation or other fees, charges or obligations resulting from your change of Internet service Company.
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 there may be circumstances that delay a Subscribers estimated installation date and any such delay will not be considered a breach of this Agreement by Company. 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. Company does not include a PCI NIC card as part of the modem package.
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 Company 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. Company 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.
22. PROFESSIONAL INSTALLATION
Subscribers may request a Professional Installation for a one-time fee where a professional installation is not included with the initial installation fee and available from the network provider technician. Fees will be provided at the time of request.
23. SUBSCRIBER SUPPLIED MODEM
If a Subscriber supplies their own modem, the Subscriber assumes the risk of service incompatibility. Incompatible Subscriber modems or other Subscriber equipment shall not relieve Subscribers from any of their obligations under this Agreement while troubleshooting defective or incompatible equipment even if Subscriber’s Service is down during such periods of troubleshooting.
24. DIAL-UP SERVICE
DSL Service from Company does not include dial-up access. A Subscriber can add dial-up service for access to the Internet for an additional fee. Standalone dial-up access is also available. The Company shall not be responsible for any long distance charges incurred while using its Internet Service. Each customer is responsible for choosing a dial-up number that is designated as a local call. If a local number is not available, or if the customer chooses an incorrect number that is not designated as a local call, the Company shall in no event be liable for any long distance charges billed to the customer.
25. LIMITATIONS OF DIAL-UP SERVICE
If you have not purchased dedicated services, you are not permitted to use your dial-up account to continually connect to the Internet for web/ftp/mail or other services. Unlimited accounts are not dedicated accounts and do not provide for fixed connectivity of unlimited duration. The Company reserves the right to disconnect users who are idle or have been connected for an exorbitant amount of time (approximately in excess of 250 hours per month, the general industry standard for determining abuse, or an excessive use per day exceeding a normal work day). The Company has implemented an abuse prevention program and has the discretion to apply network management techniques, idle timers, maximum concurrent connect timers, and other management tools to monitor and disconnect any user who abuses the policy and remains connected for excessive periods through implementing improper techniques or otherwise violating the Company’s policies. These parameters may be changed at any time at the Company’s discretion. If you require a dedicated connection, you should notify the Company, which may offer a dedicated connection in your area.
The modems utilized by the Company to provide Dial-up Services are engineered for speeds up to 56k flex connectivity. However, the Company cannot guarantee a 56k connection if telephone company facilities or your modem are unable to support this connection speed.
26. VIRTUAL DOMAINS
You acknowledge that the registration of a domain name confers no legal right (including any trademark right) to that name, as set forth in InterNIC regulations or similar regulations. Any domain name associated with a closed account for which no alternative name service has been arranged will be unregistered.
27. 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. Company does not provide support for router(s). All packages include basic instructions and support.
28. TECHNICAL SUPPORT
Company assumes that the Subscriber has a basic understanding of their computer. Company 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. Company 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 Company’s hours of operation. If a Subscriber wishes to utilize Company’s technical support, the Subscriber must be available to help troubleshoot the connection or computer setup. Company does not provide on-site technical support. However phone company technicians may be dispatched to troubleshoot the circuit with a Subscriber’s approval. The Subscriber is solely responsible for all charges involved with dispatching a technician to troubleshoot their line. The pricing for dispatching a technician will be determined by the phone company. The Company does not have control over these prices. Subscriber understands and agrees that any such technician or other person dispatched to troubleshoot Subscriber’s line is not an employee or agent of Company and Company is not liable for any damages, costs or expenses relating to or arising from any acts, errors or omissions by any such technician or other person.
29. COMPLIMENTARY SERVICES
The News Server (news.Company.com), personal web space, pop up stopper and online virus scan are complimentary services and carry no uptime or throughput guarantees and minimal technical support. The News server is subject to change at anytime.
30. ANTI-SPAM AND ANTI-VIRUS FILTERS
The anti-spam and anti-virus filters are services available for Subscribers. Company is not responsible for any email messages, legitimate or not, that are filtered or deleted by the SPAM filtering software. Company is not responsible for any email messages, legitimate or not, that are filtered or deleted by the filtering software. Company is not responsible for any email messages, legitimate or not, that are not filtered or deleted by the anti-phishing filtering software.
31. 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.
32. 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 Company. Company may choose to assign any Subscriber a new IP address at any time.
33. ACCEPTABLE USE
Subscriber agrees to use the DSL Service in accordance with Company’s acceptable use policy (“Acceptable Use Policy”) published at http://www.Company.com/useragreement.asp. Company reserves the right to make changes to the Acceptable Use Policy without notice.
35. SENDING OUT BULK OR UNSOLICITED EMAIL
The use of your account to send out any bulk and/or unsolicited e-mail, commercial or otherwise (spamming), is strictly prohibited. Any violation of this policy may result in the immediate termination of your account, at the sole discretion of the Company. If you violate this spamming policy, you will be assessed the following fines and penalties, which you hereby agree to pay:
35(a). First offense: $100.0
35(b). Second offense: $500.00
35(c). Third offense: $500.00 and automatic termination of your account.
36. POSTING ON NEWSGROUPS
The posting of any advertisement or other commercial solicitation to any newsgroup is prohibited. The Company reserves the right to determine whether a post constitutes an advertisement or commercial solicitation. The posting of a single article or substantially similar articles to an excessive number of newsgroups or mailing lists, or continued posting of articles that are off-topic is strictly prohibited. A posting will be considered off-topic when it provokes complaints from the regular readers of the newsgroup or is deemed so by the Company. A violation of this policy will result in the immediate termination of your account.
Impersonating another user or otherwise falsifying one’s user name in e-mail or any post to any newsgroup or mailing list is strictly prohibited.
38. ADDITIONAL SPAMMING FEES
In addition to any other fees and penalties that may be assessed by the Company, as provided herein, you shall be held liable for any and all costs incurred by the Company as a result of your violation of any terms and conditions of this Agreement. This includes, but is not limited to, attorneys’ fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations. The Company’s current hourly rate for Postmaster responses to complaints and cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations is US $100 per hour, with a minimum one (1) hour charge, plus US $1 for each bulk-email or Usenet message sent, plus US $1 per complaint received. These rates are subject to change at any time without notification.
As a subscriber to the Company’s services, you are not permitted to use your Internet connection to sell or advertise goods or services. This is only permitted to those who have purchased a business account or a virtual server.
40. RESALE OF SERVICES
You are not permitted to resell or redistribute the Internet connection to other parties.
41. 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 COMPANY (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). COMPANY (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, COMPANYS 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 COMPANY OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF COMPANY TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
COMPANY 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 COMPANY 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 COMPANY SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY COMPANY -PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
ALL SERVICES ARE PROVIDED AS IS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND UNLESS REQUIRED BY APPLICABLE LAW. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY
COMPANY DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY COMPANY 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. COMPANY 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. COMPANY MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. COMPANY 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 TO USE ALL SERVICES AT YOUR OWN RISK. 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 COMPANY (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, COMPANYS 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY. IF THIS WAIVER AND RELEASE IS NOT GIVEN FULL EFFECT, THEN THE TOTAL AMOUNT OF ANY LIABILITY OF THE COMPANY SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU FOR THE SERVICES (EXCLUDING AMOUNTS PAID FOR OTHER GOODS OR SERVICES PROVIDED BY THE COMPANY OR ITS AFFILIATES) FOR THE ONE MONTH PRECEDING THE COMPANY’S RECEIPT OF WRITTEN NOTICE OF YOUR CLAIM.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 30 ALSO APPLY TO COMPANY’S THIRD PARTY LICENSORS, COMPANYS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH COMPANY (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), COMPANY’S THIRD PARTY LICENSORS, COMPANYS 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.
COMPANY 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 COMPANY (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, COMPANYS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEEMNT OR SUBJECTING COMPANY (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, COMPANYS 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 COMPANY (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, COMPANYS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
Company or third parties may provide links to websites other than http://www.auracom.com or other resources. Because Company has no control over such websites and resources, you acknowledge and agree that Company 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 Company 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.
You agree to protect, defend, indemnify and hold harmless Company from and against all liabilities, losses, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation or breach 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 libel, unfair competition, unfair trademarks, trade names or patents, violations of rights of privacy and infringement of any intellectual property rights arising from your use of the Service, the Software, the Equipment or the Internet.
Company 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://www.auracom.com/user-agreement. 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.
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. Company may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
46. CHOICE OF LAW
You agree that this service is governed by the Laws of the State/Province in which the Company resides. You agree that the County in which the Company is located shall be the forum for any legal action relating to the services provided.
Company’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.
48. POLICY ENFORCEMENT
The Company reserves the right to take whatever actions we deem appropriate to enforce these policies. The Company also reserves the right to change these policies without prior notice at any time. The actions the Company takes may include account suspension or termination. The Company does not issue any credits for accounts cancelled due to policy violations. The Company reserves the right to refuse service to anyone at anytime for any reason.
49. THINGS BEYOND COMPANY'S CONTROL
Company 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.
50. ENTIRE AGREEMENT
This Agreement, including all policies posted on Company’s website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and Company 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.
Notices by Company to you shall be deemed given: (a) when sent to your Company 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.
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.
53. DEFINITION OF COMPANY
As used in this Customer Use Agreement, the term the “Company” refers to Auracom and IKANO Communications, Inc., a Utah corporation or IKANO Canada.
54. COPYRIGHT INFRINGEMENT
We respect the intellectual property of others. If you believe that your work has been copied and is accessible on this website in a way that constitutes copyright infringement, please contact customer support and report possible copyright infringement.
55. ACCEPTABLE USE OF UNLIMITED PLANS
Services that are installed into residential locations are governed by our normal use policy which is listed in this section.
In the event of disproportionately high usage of Auracom’s network resources by The Customer, Auracom reserves the right to levy usage surcharges of up to one hundred dollars ($100.00) per billing period. At the discretion of Auracom this may be in addition to traffic shaping to reduce the effective available bandwidth provided to a residential customer who uses in excess of 405 gbps of transfer in any billing cycle.
If a business service is required one can be provided to you that would allow you to sustain continued excessive use.