GENERAL TERMS AND CONDITIONS OF NEBONET
WIRELESS USE AGREEMENT
- Payment. Subscriber agrees to pay all fees, other than those already paid at signing, by the first of the month and are due before the tenth (10th) day of the month. Accounts remaining unpaid for five (5) additional days or more shall be deemed delinquent. Delinquent accounts will be charged a $5.00 late fee per month until paid. Delinquent accounts shall be placed on "accounting hold" and the Services shall be suspended until the account is paid in full. For any Subscriber account that has been placed on suspended service there shall be due a $25.00 reconnection charge to reactivate the Services. Subscriber agrees to pay all costs of collection for delinquent accounts, including without limitation, a 50% collection agency commission and reasonable attorneys fees. Nebonet may change any of its fees after the initial term of this Agreement, on thirty (30) days notice to Subscriber.
- Equipment. All equipment, except for equipment purchased and paid for in full by Subscriber, will at all times remain the property of Nebonet. Installation fee does not constitute purchase of equipment. Subscriber may not sell, transfer, lease, encumber or assign all or part of the equipment to any third party. Subscriber shall pay for the full retail cost of, or the repair or replacement of any lost, stolen, un-returned, damaged, sold, transferred, leased, encumbered or assigned equipment or part thereof, together with any costs incurred by Nebonet in obtaining or attempting to obtain possession of any such equipment. On expiration or termination of this Agreement, Subscriber authorizes Nebonet to retrieve the equipment from Subscriber's premises.
- Non Standard Connections. In the event of an aborted connection due to insufficient line of sight to an access point with standard equipment, Subscriber will receive a report of the connection options available. The report will include optional mounting configurations and their respective costs. Subscriber may at that time choose one of the available options or terminate this Agreement.
- Termination by Subscriber. Subscriber may terminate this Agreement by submitting a written request for termination to Nebonet at the address listed on the front of this Agreement. Requests received by Nebonet prior to close of business on the twenty-fifth day of the month shall have a termination date of the first day of the month following the receipt of the termination request. Termination requests received by Nebonet after the close of business on the twenty-fifth day of the month through the end of that month shall have a termination date of the first day of the second month following the date of receipt. Any Agreement terminated under this provision shall be subject to a termination fee, which shall equal forty percent (40%) of the remaining use fees due under this Agreement from the date of termination to the end of the Agreement term. In the event of early termination by Subscriber under this provision, all amounts remaining due and owing to Nebonet including the above termination fee, shall be due within thirty (30) days of termination. Accounts not paid within thirty (30) days of termination shall be deemed delinquent.
- Prohibited Uses. Subscriber is expressly prohibited from reselling any services offered by Nebonet under this Agreement without the prior written consent of Nebonet. Subscriber shall not use the Services to host or operate server programs, including, but not limited to, mail servers, IRC servers, ftp servers, proxy servers, peer to peer, or web servers. Subscriber agrees that the Services will be used solely for lawful purposes. Subscribers shall not use the Services to invade the privacy of third parties, impersonate Nebonet personnel or other parties or entities, transmit abusive, profane, pornographic, libelous, slanderous, threatening or otherwise harassing material via e-mail, USENET, chat services, instant messaging, social network services, bulletin boards, personal web page(s) or any other means. Subscriber also agrees not to use the Services to solicit other members to patronize services, violate the security of the Services, or attempt to utilize another user's account name or persona without authorization from that user. Subscriber agrees that its use of the Services shall not infringe upon the use by Nebonets other subscribers. Subscriber is prohibited from sending unsolicited advertising or promotional materials to other Nebonet subscribers or to a large number of recipients. Subscriber shall not propagate any computer worms or viruses or use Nebonets network to make unauthorized entry to other computational, information, or communication devices or resources of others. In the event that Subscriber violates any provision of this paragraph, (i) Subscriber will be charged a $200.00 fee per violation per month, and (ii) Nebonet at its sole discretion may immediately suspend services to Subscriber and terminate this Agreement. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. Nebonet shall not be liable for any direct, incidental or consequential damages as a result of termination of the Agreement pursuant to this paragraph.
- Bandwidth. Subscriber is allowed to be online at any time on any day for as long as they wish (unlimited access). If subscribers data transfer usage exceeds their plans limits, subscriber will automatically be rated down in speed to protect the network. Any excess of Monthly total allowances will be charged based on the plan. In most cases these overages is an indication of illegal activity or a problem with the computer. Plan upgrades are available for those needing more capacity.
- Proprietary Materials. Material accessible to Subscriber through the Services may be the subject of intellectual property rights, including, without limitation, patents, copyrights, trademarks and trade secrets. Except as expressly permitted by the owner of such rights, Subscriber shall not reproduce, decompile, reverse engineer, disassemble, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any such material.
- Indemnification. Subscriber hereby agrees to indemnify, defend and hold harmless Nebonet and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, "Affiliates"), from and against any and all liability and costs incurred by Nebonet or its Affiliates in connection with any claim arising out of any breach by Subscriber of the representations, warranties and covenants in this Agreement, including, without limitation, attorneys' fees and costs. Subscriber shall cooperate as fully as reasonably required in the defense of any claim. Nebonet reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber and Subscriber shall not in any event settle any matter without the written consent of NeboNet.
- Disclaimer of Warranties. THE SERVICES (INCLUDING ALL EQUIPMENT, CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEBONET MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEBONETS NEGLIGENCE.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL NEBONET BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF RUSURFN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NEBONETS TOTAL LIABILITY TO SUBSCRIBER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER.
- Force Majeure. Neither party shall be responsible for any failure or delay in performance of its obligations (other than payment for Services) under this Agreement because of circumstances beyond its reasonable control, including, without limitation, acts of God, network failures or telecommunications failures.
- Modifications to Agreement. Nebonet has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the Nebonet Home Page (http://www.nebonet.com), or upon notice by electronic mail, or U.S. mail. Subscriber's continued use of the Services following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Subscriber's only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Nebonet in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of the fees, is to terminate the Services by delivering notice to Nebonet. Such notice will be effective upon receipt by Nebonet.
- Miscellaneous. This Agreement constitutes the entire agreement between Subscriber and Nebonet with respect to the Services and supersedes all prior agreements between Subscriber and Nebonet. Failure by Nebonet to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. Interpretation and enforcement of this agreement shall be governed by the laws of the state of Utah (excluding its choice of law rules). Subscriber consents to personal jurisdiction in the federal and state courts of Juab County, Utah for any action arising out of or relating to Subscriber's use of the Services. The federal and state courts of Juab County, Utah shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including, but not limited to, its costs, both taxable and non-taxable, and reasonable attorney's fees. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.