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