("NGA") provides Internet access ("Service") subject to
your compliance with the terms and conditions below.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SERVICE. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICE.
THIS AGREEMENT CAREFULLY BEFORE USING ANY NexGenAccess SERVICE. SPECIFIC TERMS FOR
WEB HOSTING AND DOMAIN SERVICE ARE LOCATED AT THE END OF THE AGREEMENT.
This is an agreement between NexGenAccess, Inc. and you to provide NexGenAccess Internet Service ("the Service"). By establishing an account, using the Service, using NexGenAccess-provided software, using the equipment or indicating agreement through the software or website, you agree to be bound by this Agreement, including future revisions and to use the Service in compliance with the current NexGenAccess Acceptable Use Policy. You understand that you may access both NexGenAccess and the Internet in general through the Service. You understand further that, except for information, products or services clearly identified as being supplied by NexGenAccess, neither NexGenAccess nor any of its affiliates operates or controls any information, products or services on the Internet in any way and that, except for such NexGenAccess- identified information, products or services, all merchandise, information and services offered or made available or accessible through NexGenAccess or on the Internet generally are offered or made available or accessible by third parties who are not affiliated with NexGenAccess or its affiliates.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF NexGenAccess AND THE INTERNET. NEITHER NexGenAccess NOR ITS AFFILIATES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH NexGenAccess OR ON THE INTERNET GENERALLY, AND THEY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE, PROVIDED THROUGH NexGenAccess OR ON THE INTERNET GENERALLY.
YOU UNDERSTAND FURTHER THAT THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOU ACCESS SUCH MATERIALS AT YOUR OWN RISK. NexGenAccess HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
recent versions of all NexGenAccess policies may be found at www.NexGenAccess.com.
If your Service has a specific initial term, month to month, quarterly, or semi annual or annual this agreement will continue on the same term as the original. NexGenAccess reserves the right to change prices of the Service upon 30 days notice. NexGenAccess reserves the right to change features of the Service at any time. Current Service prices and features may be obtained by visiting our website www.NexGenAccess.com or by calling (740) 513-4122.
3. THE SERVICE
Depending on the type of Service that you sign up for, the Service may include Internet access, software, hardware, email, web space and other services. From time to time NexGenAccess may impose reasonable rules and regulations regarding the use of the Services.
The Service speed can vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of NexGenAccess. NexGenAccess provides the Service on a “best effort” standard and does not guarantee upload or download speeds. Some line stabilization may be necessary for service. Line stabilization could include the lowering of provisioned line speed. Should the lowering of line speed occur, NexGenAccess will NOT be able to increase the line speed once the connection is stabilized.
Your Service may limit the amount of data that you can upload and/or download each month (“bandwidth”) or may be priced according to the amount of bandwidth you use per month. Please see the description of your particular Service by referring to the appropriate product page at for more information. If during any month, you exceed a monthly bandwidth limit associated with your Service, NexGenAccess may, going forward, change your Service to one permitting such bandwidth use (as provided for in the Service description) and you agree to the standard fees NexGenAccess charges for such Service. NexGenAccess will provide you with thirty (30) days notice of any such change to your Service.
Using an account for high volume or commercial use (e.g., revenue generation, advertising, etc.) is prohibited. Email accounts exceeding allotted email space may, depending on the Service and at NexGenAccess’s discretion, be suspended and be transferred to a compressed temporary file or storage or may be deleted. NexGenAccess may delete the temporary file from the server 60 days after notifying you. You agree not to use any automatic method to avoid inactivity disconnect or to otherwise maintain a connection unless actively using a connection. You agree not to provide any public information services over a broadband connection.
While using the Service, you may not: restrict or inhibit any other user from using and enjoying the Internet; post or transmit any unlawful, threatening, abusive, harassing, libelous, defamatory, hateful, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation the U.S. export control laws and regulations; post or transmit any information or software which contains a virus, cancelbot, Trojan horse, worm or other harmful component; post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material); upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder; or upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws.
NexGenAccess has no obligation to monitor the Service. However, you agree that NexGenAccess has the right to monitor the Service electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its subscribers. NexGenAccess will not intentionally monitor or disclose any private electronic-mail message unless required by law. NexGenAccess reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement.
To cancel the Service you must do the following fill out the cancel form at http://cancel.nexgenaccess.com.
Business and Small Business must send a written letter to our corporate office. We require 30 days notice for service cancellation. To process your cancellation request, we require that you provide the following: (1) Written request submitted on company letterhead by your billing contact (2) Your customer or account number (3) Current phone number (4) Reason for canceling service. Cancellation will be effective at the end of the billing period 30 days after the notice of cancellation is received.
Send registered or certified mail, return receipt requested to NexGenAccess, Inc., Cancel (list type of service), 100 Lake St, Delaware, Oh 43015. Please put the type of service you have in the address. See Section 4.5 below for information on returning equipment.
NexGenAccess may terminate this Agreement, your password, your account, or your use of the Services for any reason, including, without limitation, if NexGenAccess, in its sole discretion, believes you have violated this Agreement, violated the NexGenAccess Acceptable Use Policy or if you fail to pay any charges when due. Termination notice will be by email or U.S. Mail to the address you provided for the Service.
5. CANCELLATIONS AND RETURNED MERCHANDISE
The following applies if you have equipment that needs returned only:
If you cancel your account you must return all equipment within 30 days of your cancel. It’s your responsibility to return all equipment provided to you by NexGenAccess in their original packaging (or equivalent). NexGenAccess will not refund any fees after 30 days of your shipping date.
If after 30 days of your original shipping date you are dissatisfied with the Service or any related terms, conditions, rules, policies, guidelines, or practices, your sole remedy is to discontinue using the Service, cancel your account, and pay any cancellation fees that apply. Cancellation will be effective at the end of the current billing period in which notice of cancellation is received. Upon cancellation, email service will be terminated and all files stored on NexGenAccess servers will be deleted.
If NexGenAccess is providing equipment to you for your use of the Service, cancellation, downgrading or changing the Service by you before the initial term of the agreement ends may result in an extra charge. If you move a fixed-location Service to a new residence or switch phone lines within the same residence during the initial term, you may be charged an additional fee. If NexGenAccess can provide a broadband service at the new residence or on the new line, NexGenAccess will issue a credit or a refund to your account providing you renew for another 12 months within 60 days from the time you terminated service at your old residence.
NexGenAccess, in its discretion, may replace equipment due to manufacturer’s defect at no cost to you under the following circumstances: You call the NexGenAccess Technical Support Department within one year of your original shipping date; The NexGenAccess Technical Support Department certifies that a defect has occurred and; You return the equipment in the original packaging (or equivalent) using an NexGenAccess provided shipping label within 30 days of certification. Upon certification, NexGenAccess will ship replacement equipment to you. Failure to return the certified equipment within 30 days of certification shall result in a charge for the new equipment. NexGenAccess will not accept the return of equipment without NexGenAccess Technical Support Department certification and shipping label after 30 days from the original shipping date. NexGenAccess will not replace any equipment, including replacement equipment, after one year from the your original shipping date.
6. ACCOUNT REQUIREMENTS
In order to order and receive the Service, you must be at least 18 years old and may have to provide a valid credit card or other forms of payment. The Service must be available to your location. Some services require separate active telephone, cable, satellite or wireless service in order for the Service to work. You are responsible for charges for the Service regardless of the status of these separate services. Changing service providers may result in substantial interruption of the Service and may result in fees associated with cancellation and setting up a new account. Your computer may have to meet certain minimum requirements, which may be found on the NexGenAccess homepage at: www.NexGenAccess.net.
You will be charged a monthly service fee and applicable taxes and other fees. Some services may also include charges for hardware, activation or early cancellation. NexGenAccess may offer, from time to time, certain promotions with different terms, activation fees, and monthly charges. You must provide accurate billing information including legal name, address, telephone number, and credit card/billing information, and report all changes to this information immediately.
For wireless Services: In order to determine which jurisdiction's taxes and other assessments to collect, federal law requires NexGenAccess to obtain your Place of Primary Use ("PPU"), which must be your residential street address (if the Wireless Service is primarily for personal use) or business street address (if the Wireless Service is primarily for business use). This address must be within a service area. You herby agree to provide NexGenAccess with your PPU and to notify NexGenAccess immediately of any changes in your PPU.
You are responsible for any charges to your account. Questions regarding charges to an account should be directed to NexGenAccess’s Customer Service Department at (740) 513-4122. All charges are considered valid unless disputed in writing within thirty (30) days of the billing date. Adjustments will not be made for charges that are more than 30 days old.
Charges are billed to your credit card or debit card, as applicable, each month for the Service and any additional usage, services, taxes and fees. NexGenAccess is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by NexGenAccess. Payment by check is due within 30 days after the month in which the charges are incurred. You agree to maintain valid and current credit card information on file with NexGenAccess at all times.
If purchasing Services through a reseller, the reseller must pay all amounts owing for your account. If the reseller fails to pay NexGenAccess any amounts due, whether or not you have paid the reseller, your account will be subject to suspension or cancellation until you or the reseller has paid all amounts due. Delinquent accounts may be suspended or canceled at NexGenAccess’s sole discretion; however charges will continue to accrue until the account is canceled. NexGenAccess may bill an additional charge to reinstate a suspended account.
8. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password, and other account information. You and members of your household or business, if you have purchased a business account, are the only authorized users of your NexGenAccess account and must comply with this Agreement. You must keep your password confidential so that no one else may access the Services through your account. You must notify NexGenAccess immediately upon discovering any unauthorized use of your account.
NexGenAccess technical support may be limited to NexGenAccess-provided services, software and/or unmodified hardware. Your email and web space may be inactivated if you exceed storage limits. You may reduce the size or purchase additional space. Usage and web space exceeding the allotted amount of bandwidth may be billed for excess traffic. Email, web space, and bandwidth limits are posted throughout our Web site at www.NexGenAccess.net. These limits may also be obtained by calling 1-888-610-4NGA. NexGenAccess reserves the right to change limits at any time upon 30 days prior notice.
The Service that you have he may include equipment provided by NexGenAccess ("the Equipment"). The installation, use, inspection, maintenance, repair, and removal of the Equipment may result in service outage or potential damage to your computer. You are solely responsible for backing up all of your existing computer files and data. NexGenAccess and its employees, agents, contractors, and representatives shall have no liability whatsoever for any damage to or loss or destruction of any of your hardware, software, files, data, or peripherals. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
If you are unable to perform self-installation, NexGenAccess may suggest an outside vendor to help install the service. You will be responsible for all costs and scheduling associated with the installation by a third party. You are also responsible for all inside wiring repair necessary to install the service.
NexGenAccess DOES NOT REPRESENT, WARRANT, OR COVENANT THAT INSTALLATION BY YOU OR A THIRD PARTY CHOSEN BY YOU WILL ENABLE YOU TO SUCCESSFULLY ACCESS, OPERATE, OR USE THE SERVICES, NOR THAT SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES, OR PERIPHERALS. IN ADDITION, NexGenAccess SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE EQUIPMENT OR SERVICES BECAUSE OF YOUR INSTALLATION.THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND SHALL IN NO WAY BE CONSTRUED TO LIMIT ANY AND ALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
NexGenAccess will make its best effort to provide the Service. Because of the complex nature of Internet service, availability, and the underlying infrastructure, it may not be possible to provide the Service to everyone. In its sole discretion, NexGenAccess may cancel the installation process and refund any money that you have paid. NexGenAccess will notify you of its intent to cancel as soon as reasonably possible. It may take 30, 60, 90 or more days to determine if NexGenAccess is able to provide service. NexGenAccess shall have no responsibility whatsoever for claims arising out of its failure or refusal to complete the installation or provide the Service.
10. MONITORING THE SERVICES
11. SOFTWARE LICENSE.
grants to you a limited, nonexclusive, nontransferable and non-assignable
license to install and use NexGenAccess software (including software from
third-party vendors that NexGenAccess distributes; in object code format),
its associated documentation, and any updates thereto (“Licensed Programs”)
in order to access and utilize the Services. You agree to use the Licensed
Programs solely in conjunction with the Services and for no other purpose.
NexGenAccess may modify the Licensed Programs at any time, for any reason,
and without providing notice of such modification to you. All third-party
software license agreements can be found on our website at and are hereby
incorporated and made a part of this Agreement by reference.
The Licensed Programs constitute confidential and proprietary information of NexGenAccess and NexGenAccess’s licensors and embody trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Licensed Program, including associated intellectual property rights, are and shall remain with NexGenAccess and NexGenAccess’s licensors. You shall not, and shall cause your employees and agents not to, disclose or transfer any portion of the Services to any third party. You further agree not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the Services. You hereby acknowledge that, if NexGenAccess at any time or from time to time performs any customizations or modifications to Services, all rights and interests to such customizations or modifications shall be the sole property of NexGenAccess.
You may not download, use, or otherwise export or re-export the Licensed Programs or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Software, you represent and warrant that you are not located in, under the control of or a national or resident of any country on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders..
For Web Hosting, NexGenAccess grants to Customer a non-exclusive, personal, non-transferable license to access and use the Services solely on and as part of NexGenAccess’s World Wide Web site and servers.
12. Running servers on the NexGenAccess Network
residential accounts ("SERVICE") is for personal use only. If you
are a business you need to sign up for a business account. You are considered
a business if you are doing, but not limited to, any of the following, this
list may change and/or be updated at any time, it is YOUR responsibility to
check this page often and conform to any/all terms on this page. Running any
SERVER software i.e. WEB, FTP, AUDIO/VIDEO, Peer to Peer, any type of file
sharing software servers, any SERVICE where outside computers connect through
NexGenAccess's connection to the Internet and connects to your computer to
perform any file transfers. NexGenAccess DOES monitor all packets on our system
and any violators may be shut down without any notice.
13. DISCLAIMERS AND WARRANTIES
CERTAIN EQUIPMENT MAY BE SUBJECT TO THIRD PARTY WARRANTIES, WHICH MAY BE PASSED THROUGH NexGenAccess TO YOU AT NO ADDITIONAL CHARGE. NexGenAccess WILL COMPLY WITH ALL REASONABLE REQUIREMENTS NECESSARY TO AFFECT THE PASS-THROUGH OF THE WARRANTY TO YOU. AT ITS SOLE OPTION WITHIN THE INITIAL TERM, NexGenAccess OR ITS AGENT MAY REPLACE A DEFECTIVE HARDWARE ON BEHALF OF THE MANUFACTURER, PROVIDED YOU FOLLOW ALL APPLICABLE PROCEDURES AND OBTAIN A RETURN MATERIALS AUTHORIZATION (RMA) NUMBER.THIS WARRANTY DOES NOT COVER DEFECTS RESULTING FROM ACTS OUTSIDE OF NexGenAccess’S CONTROL, USE CONTRARY TO SPECIFICATIONS OR INSTRUCTIONS, OR REPAIR OR MODIFICATION BY ANYONE OTHER THAN NexGenAccess OR ITS CONTRACTOR. NexGenAccess RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME. NexGenAccess WILL NOT BE RESPONSIBLE FOR ANY EQUIPMENT DAMAGED BY ANY NATURALLY OCCURRING EVENT SUCH AS LIGHTNING, FLOOD, OR EARTHQUAKE OR OTHER EVENTS OUT OF NexGenAccess’S CONTROL SUCH AS FIRE, POWER SURGES, OR THE ACTS OF OTHERS.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NexGenAccess DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. NexGenAccess MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH NexGenAccess OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY NexGenAccess OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. NexGenAccess AND IT EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, NexGenAccess’S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
NexGenAccess SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICES; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICES, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR SERVICES;THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS,AND USEFULNESS OF ALL SERVICES, PRODUCTS,AND OTHER INFORMATION,AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.
THE FOREGOING LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF NexGenAccess, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST NexGenAccess IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE.YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
14. No Service Warranties
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY NexGenAccess, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER NexGenAccess NOR ITS AFFILIATES WARRANTS THAT THE SERVICE
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
UNDER NO CIRCUMSTANCES SHALL NexGenAccess, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR TO ACCESS THE INTERNET OR ANY PART THEREOF, OR YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
If you are
dissatisfied with the Service or with any terms, conditions, rules, policies,
guidelines, or practices of NexGenAccess in operating the Service, your sole and
exclusive remedy is to discontinue using the Service.
Ohio residents are entitled to the following information:
is governed by Ohio law without regard to conflict of law provisions. Any
controversy or claim arising out of or relating to this agreement, or the
breach thereof, shall be settled by arbitration, and administered by the American
Arbitration Association under its Commercial Arbitration Rules. Any such arbitration
will be governed by Ohio law and will be held in Delaware, Ohio. The arbitrator
will be an expert in the field of Internet services. The arbitrator’s award
shall be final and binding and judgment on the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. There shall be no
class action arbitration pursuant to this agreement.
This Agreement, the Acceptable Use Policy, and NexGenAccess’s other Agreements and policies posted on NexGenAccess’s Web site constitute the entire agreement between you and NexGenAccess with respect to your use of the Service. NexGenAccess may revise, amend, or modify the Agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted on NexGenAccess’s Web site: (www.NexGenAccess.net) and/or on your start pages and/or by email and/or in our various publications and mailings to you. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of NexGenAccess.
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of NexGenAccess, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. NexGenAccess will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of NexGenAccess as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. NexGenAccess may subcontract any work, obligations or other performance required of NexGenAccess under this Agreement without your consent.
You shall indemnify and hold NexGenAccess harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney’s fees and expenses that NexGenAccess may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement, the Acceptable Use Policy, and NexGenAccess’s other agreements and policies and for any act or omission of you or your clients which are in any way related to the NexGenAccess Service.
In the event that any portion of this Agreement is held to be 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.
NexGenAccess's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
may modify this Agreement from time to time by placing a notice of such
modification in the "Policy" area, and your continued use of the
Service following notice of such modification shall be deemed to be your
acceptance of any such modification. It is your responsibility to check the
"Policy" area regularly to determine whether this Agreement has been
modified. If you do not agree to any modification of this Agreement, you must
immediately stop using the Service.
17. HOME NETWORKING TECHNICAL SUPPORT POLICY
Due to the wide range of hardware and software configurations and compatibility, it may not be possible for NexGenAccess to provide technical support for your current set of products. In certain circumstances, it may be necessary to refer you to the manufacturer of your hardware or software vendor for technical support of their products. NexGenAccess will use its best effort to provide support for the home networking configurations listed on our website at: www.nexgenaccess.com
TERMS FOR WEB HOSTING SERVICE
In addition to the applicable terms above, the following terms apply specifically to NexGenAccess’s Web Hosting Service where different from Sections 1-19.
A. Order Acceptance, Payment
A Web Hosting order is only accepted by NexGenAccess sending written confirmation to you. NexGenAccess shall charge your credit card for applicable set-up fees and monthly fees according to the Web Hosting Package (“Package”) you select. Such fees and charges shall include, without limitation, the fees for connectivity, design services, and charges by any and all third parties whose materials are included as part of the Package. NexGenAccess reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to you.
All monthly fees and set-up fees shall be due in advance of the month incurred and all additional charges shall be due at the end of the month in which such charges are incurred. Except as provided below, the set-up fees are nonrefundable and NexGenAccess does not issue pro rata refunds for fees paid in advance. Your right to use the Services are subject to any limits established by NexGenAccess or by the issuer of your credit card. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance, which is more than thirty (30) days overdue. You shall be responsible for any and all taxes related to this Agreement.
B. NexGenAccess Service
During the term of this Agreement, NexGenAccess shall provide software services according to the Package selected by you. Current Packages may be found on NexGenAccess’s Web site at www.NexGenAccess.net. Packages shall be deemed incorporated by reference into this Agreement. You shall retain copies of such Package for future reference. NexGenAccess has the right to change prices, or add or delete product features of any existing product or Service. The right to change products or services extends to any software supporting a product or service. NexGenAccess has the right to discontinue products or services and the right to remove or reassign IP addresses of a customer’s web site. From time to time NexGenAccess may impose reasonable rules and regulations regarding the use of the Services.
C. Third Party Providers
In order to access and use the Services, you may be required to subscribe to other Services, including, but not limited to, the NexGenAccess Internet Access Agreement. In addition, you acknowledge that in order to access certain of the Services, you may have to agree to and execute agreements with third party providers who may charge additional fees and charges in addition to NexGenAccess.
D. Term and Termination
The Service shall be provided on a month-to-month basis. You may cancel the Service upon seven (7) days prior notice. NexGenAccess may immediately and without prior notice terminate upon a violation by Customer of NexGenAccess’s acceptable use policy, non-payment of fees when due or after notice, you fail to correct any breach of this Agreement.
Upon any termination, NexGenAccess may permit Customer forty-eight (48) hours to download or otherwise copy any of Customer’s information and data residing on NexGenAccess’s facilities prior to removing such information and data from NexGenAccess’s facilities. Upon termination by NexGenAccess under its sole discretion, NexGenAccess may immediately remove all of Customer’s data and information from NexGenAccess’s facilities and Customer shall have no right to copy or download such data or information, and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of NexGenAccess. In cases where Customer’s account has been cancelled, and Customer is requesting reactivation, NexGenAccess, at it’s option, may reactivate the same account, only if the account had been cancelled less than sixty (60) days prior. After sixty (60) days, Customer will be required to set up a new account.
To cancel an NexGenAccess web hosting, domain name services or electronic commerce services, Customer should fill out the cancel form at http://cancel.nexgenaccess.com or send a request via mail to NexGenAccess, 100 Lake St. Delaware, Oh 43015, Attention: Web Hosting Cancellations. For assurance of delivery, NexGenAccess recommends that requests for cancellation be sent via certified mail.
You acknowledge that by reason of your relationship with NexGenAccess, you may have access to certain information and materials relating to NexGenAccess’s business, customers, software technology and marketing which NexGenAccess treats as confidential (collectively “Confidential Information”). You shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of NexGenAccess; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
F. Making Purchases On the Service
If you wish to make purchases on the Service, you may be asked by the merchant or information or service provider from whom you are making the purchase to supply certain information, including credit card or other payment mechanism information. You agree that all information you provide any merchant or information or service provider on the Service for purposes of making purchases will be accurate, complete and current. The merchants and information and service providers offering merchandise, information and services on the Service set their own prices and may change prices or institute new prices at any time. You agree to pay all charges incurred by users of your account and credit card or other payment mechanism at the prices in effect when such charges are incurred. You also will be responsible for paying any applicable taxes relating to purchases on the Service.
19. ADDITIONAL TERMS FOR DOMAIN REGISTRATION AND ADMINISTRATION
In addition to the applicable terms above, the following terms apply specifically to NexGenAccess’s Domain Registration and Administration Service where different from Sections 1-14.
A. Domain Name Registration, Administration, and Renewal Services
NexGenAccess currently provides the NexGenAccess Services through services provided by a registrar accredited through the Internet Corporation for Assigned Names and Numbers ("ICANN") for the .com, .net and .org top-level domains. ICANN oversees the .com, .net, .org, .biz, .info, and .us top-level domains ("TLDs"). NexGenAccess accepts applications to register and renew domain names with .com, .net, .org, .biz,. Info, and .us TLDs in Roman-alphabet languages.
Upon accepting your application to register or renew a domain name with a .com, .net, .org, .biz, .info, or .us TLD, NexGenAccess essentially acts as your sponsor for that application. All .com, .net and .org domain name applications will be processed through NexGenAccess’s registrar. The registration and renewal applications we process are not effective until the domain name registration or renewal information you provide us is delivered to the registry administrator for the .com, .net, .org, .biz, .info, or .us TLDs, as applicable, and the registry administrator puts into effect your domain name registration or renewal.
You acknowledge that you have read, understood and agree to be bound by all terms and conditions of ICANN's Uniform Domain Name Dispute Resolution Policy (the "UDRP"), as amended from time to time, which is hereby incorporated and made a part of this Agreement by reference for all .com, .net and .org domain name registrations or renewals. This can be found on the WWW at http://www.icann.org/dndr/udrp/policy.htm.
B. No Guarantee of Registration or Renewal
You acknowledge and agree that NexGenAccess does not guarantee that you will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available, since NexGenAccess cannot know with certainty whether or not the domain name which you are seeking to register is simultaneously being sought by a third party, or whether there are any inaccuracies or errors in the domain name registration or renewal process or related databases, including the various WHOIS databases. You further acknowledge and agree that NexGenAccess may elect to accept or reject your application for registration or renewal for any reason at its sole discretion, such rejection including, but not limited to, rejection due to a request for registration or renewal of a prohibited domain name. You also acknowledge and agree that NexGenAccess is not liable or responsible in any way for any errors, omissions or any other actions by any registry administrator arising out of or related to your application for and registration of, renewal of, or failure to register or renew a particular domain name. You additionally agree to indemnify, defend and hold harmless NexGenAccess and its directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your application for and registration of, renewal of, or failure to register or renew, a particular domain name.
C. The Customer Relationship
By submitting the domain name registration application to NexGenAccess, you acknowledge and agree that you are a customer of NexGenAccess for purposes of the NexGenAccess Services. You further acknowledge that there is no customer relationship between you and NexGenAccess’s registrar created hereunder. You agree that upon termination of NexGenAccess’s relationship with its registrar, NexGenAccess may, in its sole discretion, with the assistance of its legacy registrar transfer your domain name registration to a new registrar partner at no additional charge to you and that this Agreement will continue in full force and effect.
D. Your Representations
By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in connection with such application for registration, maintenance, or renewal are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. You agree and acknowledge that it is your responsibility to determine whether your domain name registration infringes or violates someone else's rights including, but not limited to, whether any foreign language translations of your domain name, infringe or violate someone else's rights.
E. Domain Name Registrant
NexGenAccess considers the entity named as the administrative contact for the domain name at the time the controlling User name and password are secured to be the registrant of that domain name.
F. Fees; Renewals
As consideration for the NexGenAccess Services, you agree to pay NexGenAccess, upon submission of your domain name application, renewal application, or registrar transfer application to NexGenAccess, the then-current fees set forth in the NexGenAccess price schedule for such services. All fees are non-refundable, in whole or in part, even if your domain name registration is suspended, canceled or transferred prior to the end of your then-current registration term. NexGenAccess reserves the right to change fees, surcharges, and renewal fees or to institute new fees at any time, for any reason, at its sole discretion.
Your domain name application, renewal application, or registrar transfer request will not be submitted to NexGenAccess’s registrar until we receive actual payment of the registration, renewal, or transfer fee, or reasonable assurance of payment of the registration, renewal, or transfer fee from some other entity (such reasonable assurance as determined by NexGenAccess in its sole discretion).
In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other non-payment by you in connection with your payment of the registration, renewal, or registrar transfer fee, you acknowledge and agree that the registration shall be transferred to NexGenAccess as the entity that has paid the registration, renewal, or transfer fee for that registration to the registry, and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. We will reinstate any such registration solely at our discretion, and subject to our receipt of the applicable registration, renewal, or transfer fee and our then-current reinstatement fee.
The administrative contact for a domain name will be notified at least thirty (30) days before a renewal fee is due. Unless you instruct otherwise by contacting NexGenAccess, your domain name registration will be automatically renewed for a one-year registration term. In consideration for this automatic renewal, we will charge the credit card you used to secure the initial term of registration with us our then-current renewal fee. Should you wish to change either your billing information or the term of your renewal registration, you must do so at thirty (30) business days before the day that the domain name is due to expire by contacting NexGenAccess, otherwise your credit card will be charged. If the credit card you used to secure the initial term of registration with us has expired or is otherwise invalid, we will notify you of this fact and give you with an opportunity to provide us with a valid credit card or other reasonable assurance of payment (such reasonable assurance as determined by NexGenAccess in its sole discretion). If no such information is provided prior to the expiration date of the domain name, your domain name registration will not be renewed. At any time before the expiration of your domain name registration, you may renew your domain name by contacting NexGenAccess.
G. Revisions and Additions to this Agreement
You acknowledge that the Internet, domain name system and the practice of registering and administering domain names are evolving, and therefore you agree that NexGenAccess may modify this Agreement, as well as any additional rules or policies that are or may be published by NexGenAccess, as necessary to comply with any ICANN-accepted policy, or with any other agreements that NexGenAccess is currently bound by or will be bound by in the future, as well as to adjust to changing business circumstances. Your continued use of any domain name registered through NexGenAccess shall constitute your acceptance of this Agreement as well as additional rules or policies that are or may be published by NexGenAccess, each with the new modifications. If you do not agree to any of such changes, you may request that your domain name registration be canceled or transferred to a different domain name registrar. You acknowledge and agree that such cancellation or request for transfer will be your exclusive remedy and our sole liability if you do not wish to abide by any changes to this Agreement or any additional rules or policies that are or may be published by NexGenAccess.
H. Use of Information
You hereby acknowledge and agree that, in connection with your use of certain of Services, you are required to provide certain information and to update promptly this information as needed to keep it current, complete and accurate. Except as set forth below, all other information that we may request from you in connection with domain name registration, administration, and renewal services is voluntary.
The information you are obligated to provide and keep current in connection with your use of NexGenAccess's domain name registration, administration, and renewal services is the following: (i) your full name (or the name of the authorized person for contact purposes, if registration is for an organization, corporation or association), postal address, email address, voice telephone number, and fax number, if available (or if different, that of the domain name holder); (ii) the domain name being registered; and (iii) the name, postal address, email address, voice telephone number, and where available, fax number for the administrative contact, technical contact and billing contact for the domain name registration.
You acknowledge and agree that when you renew a domain name registration, the type of information you are required to provide may have changed. If you do not wish to provide the new required information, the registration may not be renewed.
I. Additional Information Maintained
In addition to the information you provide (the "User Information"), NexGenAccess may maintain records relating to any domain name application received by NexGenAccess, as well as any domain name registered through, administered, or renewed by NexGenAccess. We also maintain records relating to the NexGenAccess Services that we provide to you. These records may include, but are not limited to: (i) the original creation date of a domain name registration, renewal, or request for service; (ii) the submission date and time of a registration or renewal application to us and by us to the proper registry; (iii) communications (electronic or paper form) constituting submissions, forwarding, modifications, or terminations of service and related correspondence between you and us; (iv) records of your account, including dates and amounts of all payments and refunds; (v) the IP addresses of the primary nameserver and any secondary nameservers for the domain name; (vi) the corresponding names of those nameservers; (vii) the name, postal address, email address, voice telephone number, and where available, fax number of the zone contact for a domain name; (viii) the expiration date of a domain name registration; and (ix) information regarding all other activity between you and us regarding your use of the NexGenAccess Services (collectively, "Other Information"). To process your registration or renewal application, NexGenAccess may provide the User Information and the Other Information to its registrar.
J. Obligations Relating to the Information You Provide
In the event that (i) in applying for the registration of a domain name you are providing information about a third party, or (ii) you license a domain name registered in your name to a third party, you hereby represent and warrant that you have (a) provided notice to that third party of the disclosure and use of that party's information as set forth in this Agreement, and (b) that you have obtained that third party's express consent to the disclosure and use of that party's information as set forth in this Agreement.
You acknowledge and agree that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of this Agreement that will be sufficient basis for cancellation of your domain name registration. You further acknowledge and agree that your failure to respond for over fifteen (15) calendar days to inquiries by NexGenAccess concerning the accuracy of contact details associated with your domain name registration shall constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration.
K. Disclosure and Use of Information
You acknowledge and agree that NexGenAccess may make available information you provide or that we otherwise maintain to such public or private third parties as applicable laws require or permit. NexGenAccess may disclose personal information about Visitors or Members, or information regarding your use of the Services or Web sites accessible through our Services, for any reason if, in our sole discretion, we believe that it is reasonable to do so, including: to satisfy laws, such as the Electronic Communications Privacy Act, regulations, or governmental or legal requests for such information; to disclose information that is necessary to identify, contact, or bring legal action against someone who may be violating our Acceptable Use Policy or other user policies; to operate the Services properly; or to protect NexGenAccess and our Members.
You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name or use of any NexGenAccess Services (including any updates to such information), whether during or after the term of your registration of a domain name or other services. You further acknowledge that NexGenAccess’s registrar may use certain of the information provided by NexGenAccess regarding your domain name registration or renewal application in a manner consistent with our registrar’s terms of usage and user agreement. NexGenAccess will only provide its registrar with that information necessary to process your registration. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of information provided by you by NexGenAccess.
NexGenAccess will not process data about any identified or identifiable natural person that we obtain from you in a way incompatible with the purposes and other limitations that we describe in this Agreement.
Communications with NexGenAccess are not private and may be published either in their entirety or in edited form at any time, at the sole discretion of NexGenAccess.
M. Ownership of Data
You acknowledge and agree that NexGenAccess owns all database, compilation, collective and similar rights, title and interests worldwide in our domain name and other proprietary information databases, and all information and derivative works generated from those databases. Additionally, you hereby grant to NexGenAccess a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use in our business, however it evolves, including the rights to copy, distribute, display, perform, transmit, prepare derivative works from or otherwise use without restriction (other than as set forth in Section N of this Agreement) the following information: (a) the original creation date of a domain name registration, (b) the expiration date of a domain name registration, (c) the name, postal address, email address, voice telephone number, and where available fax number of the technical contact, administrative contact, zone contact and billing contact for a domain name registration, (d) any remarks concerning a registered domain name that appear or should appear in a WHOIS or similar database, and (e) any other information we generate or obtain in connection with the provision of the NexGenAccess Services. NexGenAccess does not have any ownership interest in your specific personal registration information or other information other than our rights in our domain name database, as set forth in this Section M.
N. Agents and Licenses
You agree that, if you are using the NexGenAccess Services for someone else, you represent that you have the authority to nonetheless bind that person as a principal to all terms and conditions provided herein. You accept liability for harm caused by wrongful use of the NexGenAccess Services. You agree that if you license the use of a domain name registered in your name to a third party, you nonetheless remain the domain name holder of record, and remain responsible for all obligations under this Agreement, including but not limited to payment obligations, and providing (and updating, as necessary) both your own full contact information, and accurate technical, administrative, billing and zone contact information adequate to facilitate timely resolution of any problems that arise in connection with the domain name and domain name registration. As further required by ICANN, you shall accept liability for harm caused by wrongful use of the domain name, unless you promptly disclose the identity of the licensee to a party providing you with reasonable evidence of actionable harm.
O. System Performance Degradation
NexGenAccess’s delivery of the NexGenAccess Services depends upon its computer system and the computer system of its registrar, both of which are responsive to the demands of the domain name registration process. Occasionally, NexGenAccess’s computer system or its registrar’s computer system are subjected to exceptional volumes of incoming domain name registration requests, electronic mail messages, and/or WHOIS queries that result in significant degradation of NexGenAccess’s or its registrar’s system processing and response time. Regardless of the reason, in those instances when there is system performance degradation as the result of an extremely large volume of incoming electronic messages, NexGenAccess reserves the right, in its sole discretion, to filter or block electronic messages originating from the identified sources of the high-volume traffic. NexGenAccess will selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. NexGenAccess further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic.
P. Limitation of Liability
YOU AGREE THAT NexGenAccess WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) SUSPENSION, LOSS, OR MODIFICATION OF YOUR DOMAIN NAME REGISTRATION, (b) USE OF YOUR DOMAIN NAME REGISTRATION, (c) INTERRUPTION OF BUSINESS, (d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) ACCESSED BY THE DOMAIN NAME REGISTERED IN YOUR NAME, (e) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (f) EVENTS BEYOND NexGenAccess’S REASONABLE CONTROL, (g) THE PROCESSING OF YOUR DOMAIN NAME APPLICATION OR OTHER SERVICE APPLICATION, OR (h) APPLICATION OF ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN (OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION) ADOPTED POLICIES. NexGenAccess ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF NexGenAccess HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NexGenAccess'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE NexGenAccess SERVICES, BUT IN NO EVENT GREATER THAN FIVE HUNDRED DOLLARS ($500.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless NexGenAccess for any loss, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, or demand related to (i) your use of the NexGenAccess Services, including, but not limited to, your application for registration, registration, or renewal of any domain name registered in your name, and (ii) your use of any domain name registered in your name. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.
R. Representations and Warranties
YOU REPRESENT THAT, TO THE BEST OF YOUR KNOWLEDGE AND BELIEF, NEITHER THE REGISTRATION OF THE DOMAIN NAME YOU HAVE APPLIED FOR NOR THE MANNER IN WHICH IT IS INTENDED TO BE OR IS DIRECTLY OR INDIRECTLY USED INFRINGES THE LEGAL RIGHTS OF A THIRD PARTY. YOU FURTHER REPRESENT AND WARRANT THAT ALL INFORMATION PROVIDED BY YOU IN CONNECTION WITH YOUR USE OF THE NexGenAccess SERVICES IS ACCURATE AND CURRENT. THE NexGenAccess SERVICES ARE PROVIDED TO YOU "AS IS." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE NexGenAccess SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, NexGenAccess MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU.
S. Suspension, Cancellation, Transfer or Modification
You acknowledge and agree that NexGenAccess may suspend, cancel, transfer or modify your use of the NexGenAccess Services at any time, for any reason, in NexGenAccess’s sole discretion. You also acknowledge and agree that NexGenAccess may suspend, cancel, transfer or modify your domain name registration if (a) you materially breach this Agreement (including any applicable additional rule or policy) and do not cure such breach within five (5) calendar days of notice by NexGenAccess, (b) you use the domain name registered to you to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, or (c) you use your domain name in connection with unlawful activity. You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP, (ii) any ICANN-adopted policy, (iii) any registrar or registry administrator procedures, or (iv) any other ccTLD registry administrator procedures. You also agree that NexGenAccess shall have the right in its sole discretion to suspend, cancel, transfer or otherwise modify your domain name registration at such time as NexGenAccess receives (x) a properly authenticated notification from a court of competent jurisdiction, or (y) an arbitration award requiring the suspension, cancellation, transfer or modification of your domain name registration.
Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over your domain name registration, this Agreement is governed as stated in Section 12. Notwithstanding the foregoing, for the adjudication of disputes concerning or arising from use of domain names registered hereunder, you acknowledge and agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (a) of the domain name holder's domicile, and (b) where NexGenAccess’s headquarters are located, currently Delaware, Ohio.
21 . Notices
You agree that, unless other instructions are posted on NexGenAccess’s Web site, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail, return receipt requested, or by Federal Express or other recognized overnight delivery service to each of the parties in accordance with the most current contact information you have provided to us, and the contact information for NexGenAccess posted on NexGenAccess’s Web site. All notices shall be effective upon receipt, except that email and fax notices shall be effective upon transmission.
22. Location of Service
You agree and acknowledge that any acceptance of your application for the NexGenAccess Services and the performance thereof will occur at our offices in Delaware, Ohio, the location of our principal place of business.
23. No Waiver
The failure of NexGenAccess to require your performance of any provision hereof shall not affect its right to require such performance at any time thereafter; nor shall the waiver by NexGenAccess of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
This agreement will automatically renew for successive single month periods unless canceled in writing prior to the monthly renewal date. Client will receive an invoice for charges and payment is due upon receipt. Renewal prices are subject to change. Renewal of services by client indicates agreement to contract revisions.
NexGenAccess shall be entitled to assign this Agreement either in whole or in part.
The User undertakes that he/she will not assign, re-sell, sub-lease or in any other way transfer his/her rights or obligations under this Agreement.
26. Failure to Comply With Terms and Conditions
NexGenAccess may deny you access to all or part of the Service without notice if you engage in any conduct or activities that NexGenAccess in its sole discretion believes violates any of the terms and conditions in this Agreement. If NexGenAccess denies you access to the Service because of such a violation, you shall have no right (1) to access through NexGenAccess any materials stored on the Internet, (2) to obtain any credit(s) otherwise due to you, and such credit(s) will be forfeited, (3) to access third party services, merchandise or information on the Internet through NexGenAccess, and NexGenAccess shall have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility for any consequences resulting from lack of notification.
You agree to defend, indemnify and hold NexGenAccess and its affiliates harmless from any and all liabilities, costs and expenses, including reasonable attorneys' fees, related to any violation of this Agreement by you or authorized users of your account, or in connection with the use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you or authorized users of your account.