NexGenAccess
("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.
READ
THIS AGREEMENT CAREFULLY BEFORE USING ANY NexGenAccess SERVICE. SPECIFIC TERMS FOR
WEB HOSTING AND DOMAIN SERVICE ARE LOCATED AT THE END OF THE AGREEMENT.
1. 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.
The most
recent versions of all NexGenAccess policies may be found at www.NexGenAccess.com.
2. TERM
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.
4.
CANCELLATION
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.
Mail Cancellation:
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.
7. PAYMENT
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.
9. INSTALLATION
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
NexGenAccess has no
obligation to monitor the Services, but may do so and disclose information
regarding use of the Services for any reason if NexGenAccess, in its sole
discretion, believes that it is reasonable to do so, including to: satisfy
laws, regulations, or governmental or legal requests; operate the Service
properly; or protect itself and its customers. Please see our Privacy Policy. NexGenAccess
may immediately remove your material or information from NexGenAccess’s servers,
in whole or in part, which NexGenAccess, in its sole and absolute discretion,
determines to infringe another’s property rights or to violate our Acceptable
Use Policy or other policies or laws.
11. SOFTWARE LICENSE.
NexGenAccess
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
The NexGenAccess
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.
15. JURISDICTION
Ohio residents are
entitled to the following information:
This Agreement
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.
16. MISCELLANEOUS
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.
NexGenAccess
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
18. ADDITIONAL
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.
E. Confidentiality
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.
L. Communications
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.
Q. Indemnification
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.
20. Jurisdiction
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.
24. Assignment.
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.
Rev. 08/02/2004