Element8 Internet Terms and Conditions
This Element8 Terms and Conditions (“Terms & Conditions”) the Service Agreement (as defined below) and all other documents referenced herein, is entered into as of the date set forth on the Service Agreement by and between Element 8 Internet (“We,” “Us,” “Our,” or “Provider”) and the individual or entity named on the Service Agreement to which this Agreement is attached (“You,” “Your” or “Customer”) and sets forth the terms and conditions under which We will provide the services Customer has elected to receive (collectively, the “Service”). “Affiliate” means an entity that controls, is controlled by or is under common control with Provider as well as, as used herein, any agents, successors, assigns or third-parties with which Provider contracts to provide all or part of the Services contemplated herein. All terms not otherwise defined herein shall have the definitions assigned to them within the Service Agreement.
1. General Overview
These Terms & Conditions governs the following components in Our Service and You may customize Your Service based on Your needs:
• Internet Access Services
• Colocation Services
• Remote Support Services
2. Equipment and Requirements for Provision of the Service
A. Customer Equipment. To use the Service, You must have a personal computer or other internet-capable device and other equipment meeting Provider’s most recent “Minimum Customer Equipment Specifications,” which We may modify from time to time, and which You may view on Our website. The Minimum Customer Equipment Specifications may change, and We may make reasonable efforts to support previously acceptable configurations; however, We are not obligated to continue to provide such support. Although We are under no obligation to do so, We may, and You authorize Us to, perform any updates and/or changes to Your equipment, on-site or remotely, from time to time as We deem necessary, in Our sole discretion. We do not provide technical assistance for third-party hardware or software except as provided for via separately contracted IT Support Services. You will direct any questions concerning third-party hardware or software to the manufacturer. Except as set forth below with respect to Provider Equipment and Our IT Support Services as mentioned above (and in Section 10(G) herein), We have no responsibility for the operation or support, maintenance or repair of any equipment, software or services that You elect to use in connection with the Services.
B. Provider Equipment.
You acknowledge that at the time of installation of the Service, the equipment listed on the Confirmation of Sale and Service Agreement (the “Service Agreement”) was installed (such equipment listed in the Service Agreement, the “Provider Equipment”). You further acknowledge that the Provider Equipment may not be new and, at Provider’s sole discretion, may be refurbished or otherwise used equipment. You agree that the Provider Equipment was installed at a location and in a manner authorized by You. The Provider Equipment is and shall remain the property of Provider. At such time as You or Provider terminate the Service, You will return the Provider Equipment to Us within 15 calendar days, and in accordance with Provider’s then-current return procedures. In the event that You have not returned the Provider Equipment within 15 calendar days as set forth in the previous sentence, or in the event that the Provider Equipment is damaged or otherwise inoperable, You will pay each applicable “Equipment Non-Return Fee” listed in the Service Agreement. You are not permitted to connect any harmful equipment to the Provider Equipment. You understand that failure to comply with this restriction may cause damage to Our network and subject You to liability for damages and/or other liability. You agree not alter, modify or tamper with the Provider Equipment or the Service, or permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by Us.
C. Access to Your Premises.
You hereby grant Provider and its Affiliates, and their respective employees, contractors and agents reasonable access to enter Your property and premises for the purpose of operating or maintaining the Provider Equipment or Provider’s network, retrieving Provider Equipment or fulfilling its obligations or exercising its rights under this Agreement. Provider shall provide You with reasonable advance notice of any such planned access, except when, in the reasonable opinion of Provider, an emergency or other exigent circumstance exists that would require Provider to immediately enter Your property and premises. You further authorize Provider and its Affiliates the ability to use existing wiring on the Premises and agree to indemnify Provider from any and all claims arising from Provider’s installation, maintenance or use of such wiring. You understand that the installation services included as part of the Installation Fee are limited to the installation of a Subscriber Module (SM), a Surge Suppressor (SS), one cable to connect the SM and SS, and one cable which will run from the SS into the customer location via one (1) hole through an exterior wall of Client’s structure. E8 shall not be responsible for additional installation tasks not specifically listed in the Service Agreement or these Terms and Conditions, which may be deemed desirable or necessary by Client or the installer. Client shall be responsible for any additional work subsequently requested by Client or necessitated as a result of the condition of or access to the Premises.
D. Customer’s Obligation to Maintain Power to Provider Equipment.
You understand and agree that: (i) You must provide electrical power and a continuous connection to the power grid to Provider Equipment at all times (including, without limitation, when You are not using the Service) and (ii) Your failure to provide such power and continuous connection may result in damage to the Provider Equipment or to Your computer, equipment, property or premises, for which damage You will be solely responsible.
E. Replacement and Upgrade of Provider Equipment.
i. If the Service Agreement indicates Provider Equipment is included or to be provided by Provider, Provider will repair, replace, or otherwise upgrade any Provider Equipment that, as determined by Provider in its sole discretion, needs to be installed, replaced or otherwise upgraded. In the event there is a problem with the Provider Equipment, that is, as determined by Provider in its sole discretion, not a result of action or inaction on the part of You, that cannot be corrected either over the telephone or onsite, Provider will, as its sole obligation and Your sole remedy for such problem, repair or replace such Provider Equipment at Provider’s expense. Notwithstanding the foregoing, You will be solely liable for, and Provider shall have no obligation to repair, replace or otherwise upgrade, any Provider Equipment that has been, in Provider’s sole discretion, damaged or otherwise requires repair, replacement or upgrade as a result of damage or disruption caused by misuse or neglect, caused by acts of nature (such as, but not limited to, lightning damage) or otherwise caused by You, including, without limitation, damage or disruption caused by Your failure to comply with Your obligations herein.
ii. You understand and agree that Provider’s ability to provide an appropriate quality of Service to You and the other customers on Provider’s network may from time to time require upgrades or replacement of the Provider Equipment, and You will be obligated to pay the then-applicable “Equipment Upgrade Fee” as established by Provider from time to time, at such time as Provider determines, in its sole discretion, that the Provider Equipment needs to be upgraded or replaced.
F. Loss of Data. Customer understands, acknowledges and agrees that prior to Provider servicing any Customer equipment or Provider Equipment under contract with Customer, it is Customer’s responsibility to back-up the data, software, information or other files stored on Customer’s computer . Customer agrees that whether or not Customer requests back-up services from Provider and/or its Operational Service Provider, neither Provider nor its Operational Service Provider shall be liable under any circumstances for any loss, disclosure, alteration or corruption of any data, software, information, files, film or other media.
3. Customer’s Representations, Responsibilities and Warranties
A. If Customer is an individual, Customer represents and warrants that he or she is at least 18 years of age and has legal authority to execute this Agreement. If Customer is a business entity, the individual executing this Agreement represents and warrants he or she has legal authority to execute these Terms & Conditions on behalf of Customer.
B. You agree that the Service is personal to You and agree not to assign, transfer, resell or sub-license Your rights under this Agreement unless specifically permitted by the terms of this Agreement. You agree that the Service and the Provider Equipment shall be used only by You and by authorized members of Your business located at the same address, and You will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured. You acknowledge that You are executing these Terms & Conditions on behalf of all persons who use the Service by means of the Provider Equipment. You agree that You are solely responsible and liable for any and all breaches of these Terms & Conditions and any other documents incorporated by reference, whether such breach results from Your use of the Service or by another using Your equipment or the Provider Equipment.
C. You represent and warrant that You will not use the Service in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any local, state or federal statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Provider or its Affiliates; or (vi) transmits any virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program.
Provider reserves the right to suspend Your access the Service at any time upon receipt of claims or allegations from third parties or authorities or if Provider is concerned that You may have breached these Terms & Conditions. You (and not Provider or its Affiliates) remain solely responsible for Your use of the Service and any material transmitted through the Service, and You warrant that You possess all rights necessary to transmit such material.
E. You agree that You are responsible for anyone using the Provider Equipment, Your computer system, password, name or Customer name in connection with the Service (with or without Your knowledge or consent) and for ensuring that anyone who uses the Service through the Provider Equipment, Your equipment or access to the Service, does so in accordance with these Terms & Conditions. You agree to take all reasonable measures necessary to ensure that the Service is not used by another person without Your consent. You understand, acknowledge and agree that You are responsible for all use of the Service and Your account whether You or someone else uses Your account (with or without Your permission).
F. You are responsible for procuring and installing patches, any and all anti-virus and firewall software/hardware and operating system patches, updates or supplements that may be necessary for (i) the protection and maximum functionality of Your computer and related equipment and the Provider Equipment and (ii) the protection of Provider’s network and other customers. For purposes of clarification, Provider and its Affiliates hereby disclaim any and all responsibility and liability for any damages that may arise from Your failure to procure or install the aforementioned security or other software and/or hardware and You agree that Provider and its Affiliates shall have no liability for Your failure to do the same.
G. You represent that there are no legal, contractual or similar restrictions on the installation of the Provider Equipment in the location(s) and in the manner authorized by You. You are responsible for obtaining any landlord approvals, ensuring compliance with all regulations, applicable building codes, zoning ordinances, lease agreements, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the Provider Equipment and Service, for paying any fees or other charges and obtaining any permits or authorizations necessary for the installation of the Provider Equipment and/or provision of the Service (collectively “Legal Requirements”). You are solely responsible for any fines or similar charges for violation of any applicable Legal Requirements.
H. You agree to comply with these Terms & Conditions for the use of Service and further agree to the following:
i. Provider reserves the right to investigate suspected violations of the Terms & Conditions. When Provider becomes aware of possible violations, Provider may initiate an investigation which may include gathering information from Customer or Customers involved and the complaining party, if any, and examination of Customer’s Material on Provider’s servers. “Customer’s Material” collectively includes, but is not limited to, any software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content.
ii. During an investigation, Provider may suspend the account or accounts involved and/or remove Customer’s Material involved from its servers. If Provider believes a violation of these Terms & Conditions has occurred, it may take responsive action at its sole discretion. Such action may include, but is not limited to, temporary or permanent removal of Customer’s Material from Provider’s servers, warnings to Customer or Customers responsible, and the suspension or termination of the account or accounts responsible. Provider, at its sole discretion, will determine what action will be taken in response to a violation on a case- by-case basis. Violations of these Terms & Conditions could also subject the Customer to criminal or civil liability.
I. You agree to comply with the following terms for the use of Customer Materials:
i. Lawful content in the public domain (e.g., images, video, audio, text, data, and programs) may be downloaded or uploaded using the Service. Customer may re-distribute content in the public domain. Customer assumes all risks regarding the determination of whether content is in the public domain.
ii. Customer is prohibited from storing, distributing, or transmitting any unlawful content through the Service. Examples of unlawful content include but are not limited to direct threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. Customer may not post, upload, or otherwise distribute copyrighted content without the consent of the copyright holder. The storage, distribution, or transmission of unlawful content could subject Customer to criminal as well as civil liability, in addition to the actions outlined herein.
iii. Customer may not store or distribute certain other types of material on Provider’s servers. Examples of prohibited material include, but are not limited to software, applications and programs containing viruses, trojans and other tools or technology that would compromise the security of Provider or others.
iv. Customer represents that when Customer transmits, uploads, posts, or submits any Customer Material using the Service, Customer has the legal right to do so and that Customer’s use of such Customer Material does not violate any copyright or trademark laws or any other third party rights.
v. Customer agrees that if Customer’s Service is terminated for any reason, Provider has the right to immediately delete all Customer Material, stored in or for Customer’s account without further notice to Customer.
4. The Service and Privacy
B. Provider has no obligation to monitor content transmitted by use of, or other information related in any way to the provision or receipt of, the Service. However, Customer agrees that Provider has the right to monitor the Service and any and all information or Customer Material transmitted through the Service or by use of the Provider Equipment and information available to Provider regarding Customer’s computer and other equipment in accordance with this Agreement. Provider has the right at all times and without notice to remove, restrict access to or make unavailable any information or content residing on Provider’s or its Affiliates’ or operational service providers’ servers. Provider has the right to monitor, review, retain or disclose any content or other information in Provider’s possession about or related to Customer (including, without limitation, Customer Information), Customer’s use of the Service, or otherwise, as necessary to satisfy any applicable law, or otherwise as Provider deems necessary or appropriate in Provider’s sole discretion.
C. Customer authorizes Provider to make inquiries and to receive information about Customer’s credit history from others and to utilize such information in its decision regarding its provision of the Service to Customer.
D. Provider may require that Customer use a username and password combination or other reasonable procedures to confirm Customer’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service through Provider’s authorized Customer service channels. Customer may also choose to designate an authorized user of Customer’s account (an “Authorized User”), who will be permitted to access Customer’s account information and make certain changes to Customer’s account. Customer will be solely liable for any and all action or inaction by any Authorized User.
A. Residential accounts are for individual use only. Business accounts are for authorized personnel only.
B. Residential Customers shall not share passwords or accounts with others. Business Customers shall only provide passwords to authorized personnel.
C. Provider may provide or obtain passwords to protect Customer’s account and Services. In the event that the security of a Customer’s account or Service is compromised, Provider will provide Customer with a new password.
D. A Customer with an insecure password may be directed to change the password to one which complies with Provider’s requirements then in effect.
6. System Security
A. Customer is solely responsible for maintaining the security of Customer’s computer(s)/device(s) and data and protection of Customer’s User ID, password and Personal Information and other data. Provider strongly recommends the use and appropriate updating of commercial anti-virus, anti-spyware, firewall software, and encryption of data, to the extent feasible.
B. Customer is prohibited from utilizing the Service to compromise the security or tamper with Provider’s system resources or accounts on any of Provider’s computers, routers, switches, servers, radios, modems, or any other equipment at Provider or at any other site. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include but are not limited to password guessing programs, cracking tools, and network probing tools. Any attempt to access any of Provider’s corporate assets is strictly prohibited.
7. Acceptable Usage and Prohibited Internet Service Activities
A. “Acceptable Usage of Internet Service” is hereby defined as the normal activities associated with the use of the Internet, including but not limited to usage of Provider’s systems and network facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet features. Depending on the account type, this may include file storage on Provider’s servers for Customer’s own personal email, web page and file access area (FTP), etc.
B. “Prohibited Internet Service Activities” specifically prohibited by Provider include but are not limited to the following:
i. Background and/or server-type applications – Including but not limited to IRC bots, HTTP servers, MUDs, and any similar processes, unless We specifically agree.
ii. Long-term storage of data – Long-term storage of data is referred to as the storage of files which are not used regularly in an account for an extended period of time. This specifically includes, but is not limited to, programs such as shareware programs which the Customer may download to their account for purposes of transferring to their home computer(s)/device(s). Such programs should be removed at such time as they are successfully transferred to the Customer’s personal system.
iii. Flooding or abuse of other users – Flooding is a fairly common occurrence on the Internet, and one which is dealt with strictly by Provider. Flooding takes place in numerous ways, including, but not limited to, ICMP flooding, mail bombing (sending large amounts of email repeatedly to a person for purposes of harassment), mass mailings to multiple addresses, MSG/CTCP flooding on IRC, as well as other, less common methods.
iv. Attempts to compromise system and/or network security – Programs such as packet sniffers, password crack programs, and similar utilities found to be running from Customer’s account are prohibited. This also includes attempts to hack into non- Provider systems.
v. Sharing of accounts – Sharing Customer’s Internet Service with another party for purposes of avoiding payment for a second Service is strictly prohibited. Customer may connect multiple computers/devices within a single location to Customer’s modem, router, and/or radio to access the Internet Service, but only through a single Provider-issued IP address.
vi. Email abuse – Email abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals, the sending of harassing and/or threatening messages to other users, and the forging of email addresses so as to make the email appear to be from another user.
vii. Other abusive behavior – Similar to email abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted.
viii. Pyramid/money-making schemes – Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited.
ix. Pirated software – Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. This includes most commercial applications such as Adobe Photoshop, Microsoft Office, etc. Such activities are prohibited by Federal law and are thus not allowed in any form on Provider. Such prohibition also includes the unauthorized copying of copyrighted material including, but not limited to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited.
8. Penalties for Violations of Terms & Conditions
A. If Customer engages in any Prohibited Internet Service Activities, Customer’s account will be subject to immediate termination and Customer may be subject to any and all criminal and civil penalties available under the law. The penalties imposed on Customer for such violations will vary based on the level of the offense. Typically Customer will receive a warning on the first offense. However, if the offense is severe enough, Provider reserves the right to disable the account immediately. Accounts which have been disabled for abuse will not be re-opened. It is vital for Provider to provide a quality service for all Customers, and Provider will not tolerate Customers who through their actions hinder Us in that endeavor. It is also important for Provider to have a non-intrusive presence to the rest of the Internet, and thus prohibit activities that adversely affect customers of other service providers and their associated networks. To this end, Provider reserves the right to modify and/or disable Service at any such time the Customer violates these Terms & Conditions.
B. Provider will not reimburse Customer when Service has been suspended or disabled due to violations of these Terms & Conditions which shall qualify as a termination for Cause.
C. If Service is disconnected for non-payment, We are not obligated to re-connect Your Service. However, if You desire re-connection, and We agree to do so, You agree to pay the then-applicable re-installment fee plus any amount past due under Your Service Agreement.
9. Software Licenses and Third Party Services
A. Provider may provide Customer software for use in connection with the Service which is owned by Provider or its third party licensors, third party suppliers, and operational service providers (“Software”). Such software may be subject to an additional fee. Provider reserves the right periodically to update, upgrade, or change the Software remotely or otherwise and to make related changes to the settings and software on Customer’s computer(s)/device(s) or equipment, and Customer agrees to permit such changes and access to Customer’s computer(s)/device(s) and equipment. Customer may use the Software only in connection with the Service and for no other purpose.
B. Certain Software may be accompanied by an end user license agreement (“EULA”) from Provider or a third party. Provider’s use of the Software is governed by the terms of that EULA and by these Terms Agreement, where applicable. Customer may not install or use any Software that is accompanied by or includes a EULA unless Customer first agrees to the terms of the EULA.
C. For Software not accompanied by a EULA, Customer is hereby granted a revocable, non-exclusive, non-transferable license by Provider or its applicable third party licensor(s) or Operational Service Provider to use the Software (and any corrections, updates and upgrades thereto). Customer may not make any copies of the Software. Customer agrees that the Software is confidential information of Provider or its third party licensors/operational service providers and that Customer will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Provider or its third party licensors/operational service providers. Customer may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. Customer may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. Customer is not granted any title or rights of ownership in the Software. Customer acknowledges that this license is not a sale of intellectual property and that Provider or its third party licensors/operational service providers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
10. Your Payment Obligations and Automatic Renewal.
Failure to fulfill any payment obligations in a timely manner as provided herein will be considered to be a violation of these Terms & Conditions and Your Service Agreement.
A. Prior to installation of the Service, You are required to pay the Initial Payment set forth in the Service Agreement. At the time of installation of the Service, You are required to pay the Installation Fees and the first Monthly Payment set forth in the Service Agreement. Together, the Initial Payment, the Installation Fees, and the First Monthly Payment, constitute the “Total Deposit”. You agree that the Total Deposit is to be paid in consideration of Provider’s making the Service available on the terms and conditions set forth in these Terms & Conditions, that Provider has earned the Total Deposit in full and that the Total Deposit is not refundable. If any portion of the Total Deposit remains unpaid at the time of execution of these Terms & Conditions, You will pay such amount promptly after execution of the Terms & Conditions.
B. You agree to pay any Additional Installation Charges (if any), on or before the first day of Your “Monthly Billing Cycle”. Except as set forth on the Service Agreement, Your Monthly Billing Cycle begins on the first day of each month.
C. You agree to pay the applicable Monthly Fees, in advance, on or before the first day of the Your Monthly Billing Cycle. For each Monthly Billing Cycle with respect to which You do not pay on time (including without limitation if Your Monthly Fees are not received by Provider on or before the first day of the Monthly Billing Cycle), You agree to pay any “Billing Administrative Fee” as established by Provider from time to time. You and Provider specifically agree that the Billing Administrative Fee is not a late fee, but rather is intended to compensate provider for its additional expense incurred in processing irregular payments, and may be changed at any time without notice to You. All required payments should be in the form of major credit card, cash check, or ACH (if approved by Provider). If Client does not return all of the Provider Equipment to Provider in good working order within fifteen (15) days of the date of the termination or expiration of the Service Agreement by either party, You authorize Provider to submit a charge on the Your credit card account in the amount of the replacement value of the Provider Equipment not returned. If You does not wish to use a credit card, a Security Deposit may be required by Provider. This deposit will be refunded when all the Provider Equipment is returned to Provider in good working order.
D. Provider shall not be obligated to provide the Service during Monthly Billing Cycles for which You have not paid the applicable Monthly Fees in advance. If at any time Your account has past due amounts or upon Your violation of this Agreement (including any documents incorporated by reference herein), Provider may, in Provider’s sole and absolute discretion, suspend provision of the Service to You and/or terminate this Agreement. Amounts are past due if not paid before the first calendar day of Your Monthly Billing Cycle. You understand, acknowledge and agree that Provider is not required to provide notice before suspending the Service and/or terminating this Agreement, and Provider will not be liable to You or any Authorized User for any such suspension or termination or any damages that may result therefrom.
E. During the initial Term set forth in the Service Agreement, and in any subsequent Term, You agree to pay the Monthly Fee set forth in the Service Agreement for at least the duration of the Term. Unless you provide written notice to Us at least 30 days in advance of the expiration of the initial or any subsequent Term, upon expiration of the initial and each subsequent Term, your Service shall automatically renew for an additional Term of 12 months, at the same Monthly Fee.
F. If You order the IT Support Service as a separate one-time service component, You agree to pay the one-time flat fee either by credit or debit card at the time the IT Support Service was requested, or at the same time Your next Monthly Service Fee is due, as determined by Provider.
G. Customer also agrees to pay all applicable federal, state, and local taxes and fees, including, but not limited to, those imposed after the date of execution of the Service Agreement.
11. Disclaimer of Warranties
A. YOU EXPRESSLY AGREE THAT YOU USE THE SERVICE AND THE PROVIDER EQUIPMENT AT YOUR SOLE RISK. THE SERVICE AND PROVIDER EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND EXCEPT TO THE LIMITED EXTENT SPECIFICALLY SET FORTH IN SECTION 2 HEREIN, IF APPLICABLE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER PROVIDER NOR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD PARTY SUPPLIERS OR SOFTWARE LICENSORS WARRANTS: (I) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICE; (II) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (III) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; or (IV) THAT ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA OR FILES CUSTOMER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO CUSTOMER’S COMPUTER OR DEVICE. THIS INCLUDES, BUT IS NOT LIMITED TO, INCIDENTS OF FILE SHARING, PRINT SHARING OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO YOUR COMPUTER, DEVICE, OR NETWORK OR PROVIDER EQUIPMENT, OR TO MONITOR YOUR ACTIVITY AND CONDUCT WHILE USING THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM PROVIDER SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
B. In addition Provider may, in its sole discretion, make available to You security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, parental control software, anti-spyware or anti-adware software for Your use on Your computer system(s) in conjunction with the Service. Any such security software provided by Provider to You is intended to provide only a minimal level of protection to Your computer system(s). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT PROVIDER AND ITS AFFILIATES, AGENTS, THIRD-PARTY SUPPLIERS AND LICENSORS OF ANY SUCH SECURITY SOFTWARE, DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. YOU UNDERSTAND AND AGREE THAT PROVIDER AND ITS AFFILIATES, AGENTS, THIRD PARTY SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM(S) (OR THE INFORMATION STORED THEREIN) THAT MAY RESULT FROM USE OF THE SECURITY SOFTWARE OR FROM ITS NON-PERFORMANCE.
C. EXCEPT AS SPECIFICALLY SET FORTH IN THE SERVICE AGREEMENT, YOU UNDERSTAND AND AGREE THAT NEITHER PROVIDER NOR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS OR THIRD PARTY SUPPLIERS GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON PROVIDER’S NETWORK OR THAT ANY SPEED OR THROUGHPUT OF YOUR CONNECTION TO PROVIDER’S NETWORK WILL BE AVAILABLE TO YOU. You understand, acknowledge and agree that the availability and speed of the Service provided at Your premises may vary depending upon a number of factors, including Your computer system(s), associated equipment and other devices accessing the Service, the terrain and location of Your premises, foliage between Provider Equipment and other components of Provider’s network, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond Provider’s control and system failures, modifications, upgrades and repairs.
D. You understand, acknowledge and agree that Provider may in the future offer other Customers on Provider’s network Service with specific minimum service standards (including, without limitation, minimum standards for speed, bandwidth, latency or availability) (such minimum service standards that may be offered in the future “Future Enhanced Service”). You further understand, acknowledge and agree that Provider shall be under no obligation to provide any Future Enhanced Service to You unless and until Provider and You have executed a new agreement with respect to such Future Enhanced Service, which agreement may include, without limitation, such increased or modified Monthly Fees and additional terms and conditions as Provider and You may agree.
E. You understand, acknowledge and agree that Provider may use various tools and techniques in order to efficiently manage its networks and to ensure compliance with Provider’s Open Internet Policy and Section 7 above (such tools and techniques, “Network Management Tools”). These may include detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code or managing network resources through techniques such as limiting the number of simultaneous peer-to-peer sessions that You may conduct, limiting the aggregate bandwidth available for certain usage protocols such as peer-to-peer and newsgroups, and such other Network Management Tools as Provider may from time to time determine appropriate.
F. You understand, acknowledge and agree that, to allocate bandwidth across all of its Customers, Provider may employ traffic-management technology, including but not limited to packet-reset technology, which technology may materially slow the uploading of certain files.
G. You understand, acknowledge and agree that, in order to provide redundancy or increased efficiency or otherwise to enhance Provider’s network, Provider may install additional equipment at Your premises, and any such equipment not set forth in the Service Agreement shall be deemed to be Provider Equipment for the purposes of this Agreement. You further understand, acknowledge and agree that Provider may use the Provider Equipment to provide Service to others in a manner that secures and separates Your traffic and local area network from Service provided to others.
H. You understand, acknowledge and agree that Provider does not warrant that Service descriptions, information, graphic depictions, fees, product and or other components of the Service are accurate, reliable, updated, current, complete or error-free. Despite Our efforts, it is possible that a price for the Service (or a component of Our Service) offered on Our website, or the Service description may be inaccurate in some part. In the event We determine that a Service contains an inaccurate price or description, We reserve the right to take any action We deem reasonable and necessary, in Our sole discretion, to rectify the error, including without limitation, canceling Your order, unless prohibited by law. We may make improvements or changes to any of Our information, or Services described on Our websites at any time without notice. You agree to notify Us immediately if You become aware of any pricing or descriptive errors or inconsistencies with any Services You order and to comply with any corrective action that We may take.
I. You understand, acknowledge and agree that as part of the Services Provider provides You access to the Internet. You understand that the Internet is a separate and independent network of computers, which is not owned, operated or managed by Provider or any way affiliated with Provider or any of its affiliates. Your use of the Internet shall be solely at Your own risk and is subject to all applicable laws and regulations. Access to the Internet is dependent on numerous factors, technologies, and systems, many of which are beyond Provider’s authority and control. Moreover, Routine maintenance and periodic system repairs, upgrades and reconfigurations, public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes and other situations, including mechanical or electrical breakdowns, may result in temporary impairment or interruption of Services. As a result, Provider cannot guarantee continuous or uninterrupted service and serves the right, from time to time, to temporarily reduce of suspend service without notice.
J. THESE TERMS & CONDITIONS GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
12. Limitation of Liability
A. STATUTE OF LIMITATIONS: YOU MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.
B. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER OR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD PARTY LICENSORS OR THIRD PARTY SUPPLIERS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR AGENTS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES, THE PROVIDER EQUIPMENT AND/OR SOFTWARE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, AND/OR SOFTWARE; (e) FAILURE TO INSURE THE COMPATIBILITY OF YOUR SYSTEM (INCLUDING THE EQUIPMENT, DEVICES, AND SOFTWARE THAT YOU PROVIDE TO RECEIVE THE SERVICE) WITH THE SERVICE, AND/OR SOFTWARE; (f) ANY OTHER MATTER RELATING TO THE SERVICE, AND/OR SOFTWARE; AND/OR (g) BATTERY BACKUP. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF PROVIDER UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US).
C. Provider shall not be responsivle or liable for any of the following: (i) any obstruction(s) that might be erected or grow between the antenna at Your location and the POP which causes degradation to loss of service; (ii) debris or ice on the antenna located at Client’s location; or (iii) repair or restoration of any structure or surface altered or penetrated by Provider during the installation or removal of antenna, mast, tripod, wiring or any other E8 Equipment located at Client’s location.
D. You understand, acknowledge and agree that Provider may block traffic to or from any source, including, without limitation, the deletion of any electronic mail, as it deems necessary to secure its network or eliminate spam. You agree that Provider shall be entitled to damages if You transmit or are otherwise connected with the transmission of spam. You agree that Provider is entitled to actual damages, however, if actual damages cannot be reasonably calculated, You agree to pay Provider liquidated damages of five dollars for each piece of spam transmitted from or otherwise connected with Your account.
E. You understand, acknowledge and agree that when using the Service to access the Internet or any other online network or service, there are certain risks that may enable other Internet users to gain access to or use of Your computer(s) or other equipment. You are responsible for putting in place and should put in place all appropriate security measures when using the Service. You are responsible for any misuse of the Service that occurs through Your account, whether by a member of Your household or an authorized or unauthorized third party.
F. This Section 12, Limitation of Liability, will survive termination or expiration of these Terms & Conditions, whether terminated by the Customer or the Provider, for any reason.
13. Agreement to Arbitrate
A. YOU AND PROVIDER AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN YOU AND PROVIDER. The agreement between You and Provider to arbitrate all disputes and claims between them is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between You and Provider, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising), claims that are currently the subject of purported class action litigation in which You are not a member of a certified class and claims that may arise after the termination of this Agreement, or claims that arise after termination of this agreement. For the purposes of this Section 13, references to “You” include Your subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the Service. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PROVIDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
B. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to Provider must be addressed to Provider at the address set forth in these Terms & Conditions for notices. An Arbitration Notice to You must be addressed to You at Your then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If You and Provider do not reach an agreement to resolve the claim within 60 calendar days after the Arbitration Notice is received, You or Provider may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Provider or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or Provider is entitled.
C. The arbitration shall be governed by the Commercial Arbitration Rules and, in the event You are a consumer then the Supplementary Procedures for Consumer Related Disputes, (in either case referred to herein as the, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or written request to the Provider. The arbitrator shall be bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction. Unless You and Provider agree otherwise, any arbitration hearings shall take place in Tarrant County, Texas; provided, that if you are a consumer and an arbitrator reasonably determines that arbitration in Tarrant County would be overly burdensome then the arbitrator may move the arbitration to a more convenient county. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both parties including, without limitation, legal fees and expenses.
D. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND PROVIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and Provider agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
E. Notwithstanding any provision in this Agreement to the contrary, You and Provider agree that if Provider makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), You may reject any such change by sending Provider written notice within 30 days of the change. By rejecting any future change, You agree that You will arbitrate any dispute between You and Provider in accordance with the language of this provision.
You agree to indemnify, defend and hold harmless Provider, its Affiliates, operational service providers, agents, third party licensors and suppliers and their respective members, officers, directors, employees, agents, representatives and contractors, and each of their successors and assigns (collectively, the “Provider Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys’ fees) and other claims brought against any Provider Indemnitee(s) related to (i) Your use of the Service or any violation of these Terms & Conditions and all other documents incorporated herein by reference) including, but not limited to, claims that Your use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third party, or Your violation of any law or the rights of another and claims resulting from Your negligence; or (ii) related to the unavailability of the Services. You agree to pay any attorneys’ fees incurred by Provider and/or any other Provider Indemnitee in connection with the defense of any such third-party claims. We reserve the right to assume the defense and control of any matter subject to indemnification by You, in which event you will cooperate with Us in asserting any available defenses.
15. Termination of Service
A. IF YOU CANCEL THE SERVICE OR ANY ASPECT THEREOF FOR ANY REASON AFTER THE ACTIVATION DATE, PROVIDER SHALL NOT BE REQUIRED TO REFUND YOU ANY PORTION OF THE MONTHLY FEES PAID BY YOU FOR THE MONTH IN WHICH CANCELLATION OCCURS, UNLESS REQUIRED OTHERWISE BY STATE LAW.
B. You may terminate the Service at any time by following Provider’s then-in-effect cancellation procedures, or by calling Provider at Provider’s Customer service telephone number as set forth on Provider’s website provided, however, that Provider may take reasonable steps to verify Your identity and authority before effecting such termination, which steps may include, without limitation, requiring Your written confirmation of such termination before the same shall be effective, and provided further, that any termination request received later than the tenth calendar day before the first day of the Your Monthly Billing Cycle shall not be effective until the end of Your next full Monthly Billing Cycle. Upon termination, You agree to pay any account balance and any applicable Early Termination Fee, and to return any Provider Equipment or pay the Equipment Non-Return Fee as set forth in Section 2(b) herein.
C. In the event You are a Residential Customer and You terminate the Service prior to the expiration of any Term, You will pay Provider an early termination fee (“Early Termination Fee”) equal to the lesser of (i) the amount set forth on the Service Agreement as the Early Termination Fee, if any, or (ii) $250.00. In the event You are a Commercial Customer and You terminate the Service prior to the expiration of any Term, You will pay Provider an Early Termination Fee equal to the lesser of (i) the amount set forth on the Service Agreement as the Early Termination Fee, if any, or (ii) an amount equal to (A) the number of months remaining in the Term Commitment, times (B) the sixty (60%) of the remaining Monthly Fee. Such Early Termination Fee shall be due and payable immediately upon termination of the Service.
D. The Service and all Service features are subject to availability on an ongoing basis. You understand that Provider may cease to offer the Service or any Service feature at any time, for any reason or no reason, and without notice to You. Without limiting the generality of the foregoing, Provider may suspend, disconnect or terminate the Service at any time without prior notice if Provider believes in its sole discretion that You have (i) failed to pay Your bill when due, (ii) threatened or harassed any Provider employee, agent or contractor or (iii) violated the AUP or any other provision of this Agreement.
E. If the Service to You is disconnected for any reason or Service is suspended in accordance with this Agreement, Provider may charge You (i) for Service during the period of disconnection or suspension in accordance with applicable federal and state law and (ii) reasonable disconnection and reconnection fees.
F. In the event that Your account is suspended, disconnected or terminated, no refund, including of fees paid by You to Provider, shall be granted. Moreover, Provider shall not be responsible for the return of data stored on Provider’s servers, including web and email servers. You agree that Provider has no obligation to visit Your home upon termination to reconfigure Your computer(s) or for any other reason.
G. Sections 3 through 7, and 10 through 16 herein shall survive any termination or expiration of this Agreement.
16. General Provisions
A. These Terms & Conditions (including all documents incorporated herein by reference) constitute the entire agreement with respect to the Service. These Terms & Conditions supersede and nullify all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.
B. The Parties agree that any Affiliates, operational service providers, agents, third party suppliers and licensors of Provider are intended beneficiaries of these Terms & Conditions. Except as set forth in the previous sentence, this Agreement is not intended to give and does not give any rights or remedies to any person other than Customer and Provider.
C. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms & Conditions and neither party has any authority of any kind to bind the other in any respect.
D. Provider shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Provider’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference).
E. These Terms & Conditions and all matters arising out of or related to this Agreement shall be governed by the laws of Texas without regard to conflicts of law provisions. Subject to the agreement between Customer and Provider with respect to arbitration of any disputes, Customer agrees that the federal and state courts located in Tarrant County, Texas alone shall have jurisdiction over all disputes arising under these Terms & Conditions and Customer consents to the personal jurisdiction of those courts.
F. Provider’s failure to exercise or enforce any right or provision of these Terms & Conditions shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of these Terms & Conditions shall, to any extent, be held invalid, illegal or unenforceable, the remainder of these Terms & Conditions shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties.
G. Provider may change, amend, alter, or modify these Terms & Conditions at any time. Provider may notify Customer of any change either by posting that change on Provider’s website (e8internet.com), or by sending Customer an email or notification by U.S. mail. If Customer continues to use the Service after such notice has been made, Customer agrees that such continued use shall be deemed to be Customer’s acceptance of those changes. The current version of these Terms & Conditions, as the same may be modified by Provider from time to time, shall supersede any prior version of these Terms & Conditions that may have been provided to Customer at any time.
H. Except as specifically set forth in these Terms & Conditions, any notices under this Agreement shall be effective as follows:
i. If to You: notice shall be made by (i) email to Your Account Email Address; (ii) by first-class mail to You at Your billing address then on file with Provider; or (iii) when posted to Provider’s website. If by email, such notice shall be deemed effective when transmitted by Provider. If by first-class mail, such notice shall be deemed effective upon the earlier of (a) three business days after dispatch or (b) at such time as actually received by You.
ii. If to Provider: notice shall be made exclusively by first-class mail to Provider at 420 Commerce St, Floor 3, Fort Worth, Texas 76102 or such other address as Provider may from time to time publish to You, and such notice shall be deemed effective upon receipt.
I. You may not assign this Agreement, or Your rights or obligations under these Terms & Conditions, without Provider’s prior written consent, and any purported assignment by You without such consent shall be void. Provider may transfer or assign any portion or all of these Terms & Conditions at any time without notice to You, and You waive any notice that may be required by law.
J. You and Provider have executed these Terms & Conditions by their signatures (or, in the case of Provider, the signature of Provider’s authorized person) on the Service Agreement.