NexGenAccess, Inc.
Residential Wireless Service Agreement
Standard Service Plans
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY.
BY USING THESE SERVICES, (i) YOU
ACKNOWLEDGE THAT YOU ARE AN ADULT (18 YEARS OR OLDER) AND (ii) YOU HAVE READ
AND UNDERSTAND THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS IN EFFECT AND AS UPDATED BY NEXGENACCESS FROM TIME TO TIME. IN
ADDITION, BY PLACING AN ORDER FOR THE SERVICES, YOU ACKNOWLEDGE THAT
NEXGENACCESS WILL COMMENCE PROCESSING SUCH ORDER AND WILL INCUR EXPENSES AND
OBLIGATIONS IMMEDIATELY.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS,
YOU MAY NOT USE THE SERVICES AND YOU SHOULD CANCEL YOUR ORDER. IF YOU DO NOT
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, NEXGENACCESS WILL BE UNDER NO
OBLIGATION TO PROVIDE YOU WITH THE SERVICES.
THE TERMS AND CONDITIONS ARE SUBJECT TO REVISION FROM TIME
TO TIME. THE LATEST VERSION OF THE TERMS AND CONDITIONS MAY BE FOUND AT
HTTP://WWW.NEXGENACCESS.NET/CONTRACTS.
FOR PURPOSES OF THE TERMS AND CONDITIONS, YOU WILL BE REFERRED TO AS THE
“CUSTOMER.”
Terms and
Conditions
1.Definitions: This Services Order
Confirmation and Acknowledgment of Terms and Conditions shall serve as
confirmation of your Wireless service order with NexGenAccess, Inc., an Ohio
corporation (“NexGenAccess”) and your acceptance of such order, including
acceptance of all of the terms and conditions (“Terms and Conditions”) set
forth below, and will authorize NexGenAccess to provide you with the Services
(as defined below) for period agreed to
by you ("Customer") upon placing an order for the Services.
2.Service: You agree
to purchase wireless and/or network access services (“Services”) from
NexGenAccess. You shall not be responsible for obtaining and maintaining any
equipment needed to access, connect to, or use the Services. You shall not be
responsible for insuring that such equipment is compatible with the Services.
Services provided by NexGenAccess are for the sole use of you, the customer,
and not for resale of any kind without prior written consent of NexGenAccess,
which may be given at its sole discretion. In the event you attempt to resell
the Services, NexGenAccess may, at its sole discretion, increase the fees
associated with the Services, or terminate the Services.
3.Term of
Agreement: This agreement has an initial term of twelve months (the
“Initial Term”) and will continue on a month-to-month basis thereafter. After
the Initial Term, either party may terminate this Agreement upon forty-five
(45) days’ written notice. The Initial Term begins 72 hours after NexGenAccess
has received your signed contract, as recorded in its database. If NexGenAccess
cannot successfully deliver the Service, this contract is implicitly terminated
without penalty or cost.
4. Rates and Payment Terms: The rates for
Wireless service (“Rates”) are set forth in the attached Rate Schedule. The
Rates will be in effect for the Initial Term, and may be changed by us after
the end of the Initial Term by giving you written or e-mailed notice of the new
Rates at least thirty (30) days before their effective date. In addition to the
Rates, we will bill you for all federal, state, county, and local taxes,
surcharges, fees, and universal service contribution on the Service. Charges for
the Services will begin when the Services are installed. Payments for Services
will be made through monthly charges to your credit card, unless you have been
approved for monthly invoicing. You may pre-pay by check or money order if you
prefer not to pay via credit cared or billed monthly, but a credit card number
is required in all cases to secure your account with NexGenAccess. You must
keep us informed of any changes in your credit card information, or you will be
in default under this agreement.
5. Default and Remedies:
You will be considered in Default of the Agreement if 1) payment for any
Service has not been made within ten (15) days after we have sent you a notice
via e-mail that such payment is overdue and 2) for any other breach of this
Agreement that is not remedied within ten (10) days after notice of such
breach, or for any breach of our Acceptable Use Policy for our Internet Access
Service. If you are in Default of this Agreement, we may terminate all Services
under this Agreement without further notice to you and you will be charged an
early termination fee of $250.
6. Early Termination Charges: You must notify
us in writing of your intention of termination no less that
45 days prior to termination date to avoid additional monthly charges. You will
be responsible for the early termination fee of $250.00. If you terminate this Agreement before the end
of the Initial Term without a 45 day written notice, you will also be
responsible for all service charges that would have been incurred for the next
60 days of your billing cycle and $250.00 early termination fee.
7. Limited Warranty – Wireless Service: We
warrant that, subject to the limitations set forth below, the Wireless service
will operate in substantial accordance with the terms of this Agreement. The
limitations include:
7.1 NO 911 SERVICE. You are hereby notified
that Wireless Service provides only point-to-point communication services, and
does not provide 911, E911, or other emergency, operator or ancillary services
that are usually available through local telephone services.
7.2 Quality of Service: You understand and
acknowledge that the actual transmission speeds may vary from the transmission
speeds that you might otherwise expect, due to such factors as the line-of-sight
(LOS), distance to transceiver, and other operation characteristics of the
facilities and equipment used in the Wireless Service. It is possible that
there may be other operational impediments may preclude or delay the actual
installation, repair and maintenance of Wireless Services to your premises. We
reserve the right to terminate this Agreement without liability to you if we
are not able to provide, repair or maintain Wireless Services to your premises.
We will use commercially reasonable efforts to provide installation, repair and
maintenance services. If you experience a substantial reduction in transmission
speed or significant interruption of service, please notify us and we the Wireless Service provider will undertake commercially
reasonable efforts to restore the Wireless service. We will not be responsible
for service issues relating to your computer, network or software.
7.3 Limitations: The limited warranty shall
not apply if: 1) Your equipment has been subjected to unusual physical or
electrical stress, misuse, neglect, accident or abuse, or damaged by any other
external causes; 2) The Wireless Service or related equipment has been
installed, repaired or altered by any one other than our technical support or
its subcontractors or affiliates, without prior written approval; or 3) the
Wireless Service or related equipment is used in violation of applicable law or
in violation of instruction furnished by us, if any.
7.4 Warranties The foregoing limited
warranties shall be in lieu of and shall exclude all other express or implied
warranties, including without limitation, warranties of merchantability, and
fitness for a particular use or purpose.
8. Use of Services: Customer agrees not to use
the Services in a manner prohibited by any federal or state law or regulation.
Customer further agrees to adhere to NexGenAccess Acceptable Use Policy (“AUP”)
as set forth on NexGenAccess web site at http://www.nexgenaccess.com
. Transmission of any material in violation of federal or state law or
regulation, including, but not limited to any copyrighted material, material
protected by a trade secret or material or messages that are unlawful,
harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise
objectionable in any manner or nature or that encourages conduct that could
constitute a criminal offense, give rise to civil liability or otherwise
violate any applicable local, state, national or international law or
regulation, is prohibited.
9. Restrictions: Wireless Customers agree not
to resale services of any nature from their Wireless connection to
NexGenAccess. In the event any Wireless Customer attempts to resale services on
the network, NexGenAccess may, at its sole discretion, increase the fees
associated with the Services, or terminate the Services.
10. Limitation of Liability:
10.1 ANY LIABILITY OF NEXGENACCESS ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES AND NEITHER PARTY SHALL HAVE
ANY LIABILITY FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT
LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES, LOSS OF
USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS) IRRESPECTIVE OF WHETHER THE
PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES.
10.2 NOTWITHSTANDING THE FOREGOING, NEXGENACCESS'S TOTAL LIABILITY TO ANYONE
UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT,
TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE) SHALL NOT
EXCEED THE AMOUNT THAT YOU WOULD HAVE PAID NEXGENACCESS UNDER THIS AGREEMENT
DURING THE PERIOD OF TIME THAT SUCH LIABILITY WAS INCURRED, OR FIVE HUNDRED
DOLLARS ($500.00) WHICHEVER IS LESS.
10.3 YOU ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN
ESSENTIAL ELEMENT IN SETTING THE PRICES FOR SERVICE UNDER THIS AGREEMENT.
11. Force Majeure: We will not be
responsible for any failure to perform any obligation or provide any Services
hereunder because of any Act of God or nature, strikes, work stoppage,
equipment or facilities shortages, governmental acts, directives or abuse, war,
riot or civil commotion, or any other force beyond our immediate and reasonable
control.
12. Entire Agreement; Amendments in Writing; Severability: This
Agreement, which includes all Attachments and Schedules referenced herein, if
any, constitutes the entire Agreement between us concerning the subject matter
hereof and supersedes an prior agreements, representations, statements,
negotiations, understandings, proposals or undertakings, oral or written, with
respect to the subject matter expressly set forth herein. Any changes to this
Agreement, or any amendment or supplement to the Agreement must be in writing
and signed by NexGenAccess to be enforceable. If any provision of this
Agreement shall be held to be illegal, invalid or unenforceable, each party
agrees that such provision shall be enforced to the maximum extent permissible
so as to effect the original intent of the parties, and the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
13. Arbitration: Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitration shall be held in
14. Repeat Signals:
NexGenAccess reserves the right to add additional antennas at the location to
repeat signals to mesh our customer network.
15. Faxed Copies: You may sign this Agreement
and fax it to us, and it will have the same effect as if you had returned to
original signed document to us. In proving this Agreement, it will not be
necessary for us to produce or account for the original document signed by you
if we produce the faxed copy that you sent to us.
Name:
Title:
Company:
Date:
Signature:
Credit Card #:
Expiration: