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These
DSL/WIRELESS Terms and Conditions, together with any applicable service
agreement signed by Customer, including the service agreement included with the
application form (collectively, the “Internet Access Agreement”) govern
NEITEL’s provision and Customer’s use of NEITEL’s DSL/WIRELESS Services.
1. Definitions.
1.1. “Customer” means any person or entity that has completed and signed an
application form with service agreement for use of NEITEL’s DSL/WIRELESS
Services.
1.2. “DSL/WIRELESS Services” or “Services” means all Internet related services
provided by NEITEL including, but not limited to, access to the Internet,
domain hosting, anti-spam and anti-virus filtering, any equipment provided by
NEITEL or purchased by Customer from NEITEL in order to connect to the
Internet, and any software provided by NEITEL in order to connect to the
Internet.
1.3. “Term Contract” means a service agreement between NEITEL and Customer, whereby
NEITEL agrees to provide and Customer agrees to purchase DSL/WIRELESS Services
for a minimum fixed period of time.
1.4. “User” means any person or entity that makes use of NEITEL’s DSL/WIRELESS
Services under Customer’s login/username, regardless of whether said use was
authorized.
2. DSL/WIRELESS Services.
2.1. NEITEL shall provide and Customer shall accept DSL/WIRELESS Services at
the applicable rates and charges, subject to the terms and conditions of the
Internet Access Agreement.
2.2. NEITEL shall only provide DSL/WIRELESS Services to Customer in the
geographic areas currently served by NEITEL.
2.3. Customer must be at least 18 years old to apply for DSL/WIRELESS Services.
By accepting NEITEL’s DSL/WIRELESS Services, Customer represents that Customer
meets this age requirement.
2.4. Customer and any persons authorized by Customer are the only individuals
who are authorized to use NEITEL’s DSL/WIRELESS Services or access the Internet
through Customer's NEITEL account.
3. Acceptable Use Policy.
3.1. Customer shall not do any of the following or permit any User to do the
following:
3.1.1. Use DSL/WIRELESS Services in violation or contravention of any
applicable law, regulation, order, or other governmental directive, including,
but not limited to, the Telecommunications Act of 1996 and the U.S. export
control laws and regulations.
3.1.2. Use DSL/WIRELESS Services in violation or contravention of any
underlying communications carrier’s acceptable use policy.
3.1.3. Abuse or fraudulently obtain or use DSL/WIRELESS Services in any way.
3.1.4. Restrict or inhibit any other user from using and enjoying NEITEL’s
DSL/WIRELESS Services and/or the Internet.
3.1.5. Post or transmit any unlawful, illegal, obscene, or pornographic
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.
3.1.6. Post or transmit any information or software which contains a virus,
worm, cancelbot, or other harmful component.
3.1.7. Upload, post, publish, transmit, reproduce, distribute, or participate
in the transfer or sale, or in any way exploit any information, software, or
other material, obtained through the Internet which is protected by copyright,
patent, trade secret and trademark rights or other proprietary rights or
derivative works with respect thereto, without obtaining permission of the
copyright owner or right holder.
3.1.8. Post a single article or advertisement to more than ten (10) Usenet or
other newsgroups, fora, e-mail mailing lists or
similar groups of lists.
3.1.9. Post to any Usenet or other newsgroup, fora,
e-mail mailing list, or similar group, or list articles that are off-topic
according to the charter or other public statement of the group list.
3.1.10. Send unsolicited mass mailings to more than twenty-five (25) e-mail
users, if such unsolicited electronic mailings provoke complaints from the recipients.
3.1.11. Falsify or "spoof" user information provided to other users
of the Internet.
3.1.12. Subject NEITEL to liability of any kind.
3.2. NEITEL reserves the right to immediately terminate Customer’s account and
DSL/WIRELESS Services to Customer, without prior notice, if NEITEL believes, in
its sole discretion, that Customer or any User has violated this Acceptable Use
Policy, regardless of Customer’s or User’s knowledge or intent of such
violation.
3.3. NEITEL reserves the right to immediately and without prior notice remove
any material or information that NEITEL believes, in its sole discretion,
violates this Acceptable Use Policy, regardless of Customer’s or User’s
knowledge or intent of such violation.
4. Obligations of Customer.
4.1. Customer shall not permit any unauthorized persons to use the DSL/WIRELESS
Services or access the Internet through Customer's NEITEL account.
4.2. Customer shall be solely responsible, at its own expense, for all
equipment necessary to connect to the Internet. Customer understands that even
where a Wireless Internet Radio or DSL Modem is provided by NEITEL at no
additional charge, additional equipment may be necessary to use the
DSL/WIRELESS Services. Customer shall be responsible for the use and compatibility
of any Customer provided equipment with any NEITEL provided equipment and
NEITEL’s DSL/WIRELESS Services. If any equipment used by Customer to connect to
the Internet impairs Customer’s use of the DSL/WIRELESS Services, Customer
shall nonetheless be liable for all payments and obligations including, but not
limited to, the monthly fee for DSL/WIRELESS Services.
4.3. Customer shall be solely responsible, at its own expense, for all software
necessary to connect to the Internet. Customer shall be responsible for the use
and compatibility of any such software with NEITEL’s DSL/WIRELESS Services,
even where the software is provided to Customer by NEITEL. If any software,
including software provided by NEITEL, used by Customer to connect to the
Internet impairs Customer’s use of the DSL/WIRELESS Services, Customer shall
nonetheless be liable for all payments and obligations including, but not
limited to, the monthly fee for DSL/WIRELESS Services.
4.4. Customer is solely responsible for any charges incurred while using the
Internet (e.g., for using on-line information services and shopping on-line).
4.5. Customer agrees that NEITEL’s primary communication with the Customer for
DSL/WIRELESS Services and updates or modifications to the Internet Access
Agreement and other NEITEL policies will be given via the NEITEL home page
(www.neitel.com) and/or the Customer’s e-mail address. Customer is encouraged
to periodically view the NEITEL home page and their NEITEL e-mail account on AT
LEAST a monthly basis. NEITEL is responsible for posting updates and changes to
the Internet Access Agreement on these mediums. Customer is responsible for
reading such information. If Customer does not agree to be bound by updates to
the Internet Access Agreement, Customer should proceed directly to Section 8 of
these DSL/WIRELESS Terms and Conditions, Termination of DSL/WIRELESS Services,
and follow the appropriate directions to terminate the Internet Access
Agreement and cease using NEITEL’s DSL/WIRELESS Services.
4.6. Customer agrees to notify NEITEL within ten (10) days of any change of
Customer’s address.
5. Equipment Acceptance Terms
5.1. Equipment Purchased by Customer. Customer’s use of any equipment purchased
from NEITEL shall constitute Customer’s acceptance of and agreement to the
following terms and conditions of such use.
5.1.1. The provisions of these DSL/WIRELESS Terms and Conditions, including
without limitation: Section 13, No Warranties; Section 14, Limitation of
Liability; Section 15, Indemnification; and Section 16, Resale of DSL/WIRELESS
Services, apply to Customer’s use of any equipment purchased by Customer from
NEITEL in order to connect to the Internet.
5.1.2. Customer agrees to abide by any terms and/or conditions for use imposed
by the equipment manufacturer.
5.1.3. NEITEL will not install or maintain any equipment purchased by Customer
from NEITEL. NEITEL will provide telephone support to Customers who need
assistance with installing and/or maintaining such equipment.
5.1.4. Customer is solely responsible for paying all charges pertaining to or
resulting from the installation and use of any equipment purchased from NEITEL.
Charges include, but are not limited to, maintenance, installation and support
service fees charged by NEITEL or third parties.
5.2. Equipment Provided by NEITEL at No Additional Charge. Customer’s use of
any equipment provided by NEITEL at no additional charge shall constitute
Customer’s acceptance of and agreement to the following terms and conditions of
such use.
5.2.1. Wireless Radios, DSL Modems, and any other equipment provided to
Customer by NEITEL for the provision of DSL/WIRELESS Services shall remain
NEITEL’s sole property. Title to the equipment shall remain with NEITEL at all
times and Customer shall have no property rights or interest therein except as
set forth in the Internet Access Agreement. Customer agrees to keep the
equipment in good condition.
5.2.2. The provisions of these DSL/WIRELESS Terms and Conditions, including
without limitation: Section 13, No Warranties; Section 14, Limitation of
Liability; Section 15, Indemnification; and Section 16, Resale of DSL/WIRELESS
Services, apply to Customer’s use of any equipment provided by NEITEL to
Customer in order to connect to the Internet.
5.2.3. Customer agrees to abide by any terms and/or conditions for use imposed
by the equipment manufacturer.
5.2.4. NEITEL will not install any equipment provided to Customer by NEITEL.
NEITEL will provide telephone support to Customers who need assistance with
installing and/or maintaining such equipment.
5.2.5. Customer must notify NEITEL promptly of any equipment failure or
malfunction. NEITEL shall, at its sole cost and expense, replace defective or
damaged equipment provided by NEITEL, except that Customer shall be responsible
for all costs incurred by NEITEL for repairing or replacing the equipment if
such repair or replacement is caused by Customer’s intentional or negligent
conduct. Customer agrees that no other party besides NEITEL shall repair or
replace any equipment provided by NEITEL without the express written consent of
NEITEL.
5.2.6. Upon termination of the Internet Access Agreement pursuant to Section 8
of these DSL/WIRELESS Terms and Conditions, Customer agrees to return all
equipment to NEITEL within five (5) business days of the date of termination.
If Customer fails to return in good condition any item of equipment within five
(5) business days of the date of termination, Customer will be liable for the
equipment replacement charges outlined below, plus, to the extent permitted by
law, any reasonable collection costs, including without limitation attorneys’
fees, that may be incurred. The replacement charges for unreturned or damaged
equipment shall be: Wireless Internet Radio - $800.00/per Radio; DSL Modem -
$99.95/per unit; and for all other equipment – the then current replacement
cost.
6. Software Acceptance Terms.
Customer’s use of any software provided by NEITEL shall constitute Customer’s
acceptance of and agreement to the following terms and conditions of such use.
6.1. The provisions of these DSL/WIRELESS Terms and Conditions, including
without limitation: Section 13, No Warranties; Section 14, Limitation of
Liability; Section 15, Indemnification; and Section 16, Resale of DSL/WIRELESS
Services, apply to Customer’s use of any software provided by NEITEL to
Customer to connect to the Internet.
6.2. Customer has no obligation to accept and install any software furnished by
NEITEL; however, by accepting and installing the software furnished by NEITEL,
Customer agrees to abide by any terms and/or conditions for use imposed by the
software manufacturer.
6.3. NEITEL will not install or maintain software provided to Customer. NEITEL
will provide telephone support to Customers who need assistance with installing
software provided by NEITEL.
6.4. Customer is solely responsible for paying all charges pertaining to or
resulting from the installation and use of the software distributed by NEITEL.
Charges include, but are not limited to, maintenance, installation and support
service fees charged by third parties.
7. Fees and Billing.
7.1. Customer shall be responsible for payment of charges for all DSL/WIRELESS
Services furnished by NEITEL, including any federal, state or local tax, fee,
surcharge or other tax-like charge (e.g., sales and use taxes) required or
permitted by law. Charges shall be based on prices in effect at the time
DSL/WIRELESS Services are furnished. Current prices for DSL/WIRELESS Services
may be obtained by calling (563) 539-2122, (563) 382-9889, (877) 638-2122, or
by e-mailing sales@NEITEL.net.
7.2. Customer’s liability for DSL/WIRELESS Services shall commence on the date
DSL/WIRELESS Services are provided to the Customer and will continue until
DSL/WIRELESS Services are terminated in accordance with Section 8 of these
DSL/WIRELESS Terms and Conditions. Customer shall pay NEITEL, in advance, the
monthly fee (i.e., base rate) applicable for DSL/WIRELESS Services to be
provided each month. Customer shall pay NEITEL a prorated amount of the monthly
fee for DSL/WIRELESS Services provided in the initial month of the Internet
Access Agreement, where one day of service equals one-thirtieth (1/30th) of
said monthly fee. Any accrued overtime charges will be billed in arrears.
7.3. Monthly payments are due on the twentieth (20th) of each month. If
Customer does not pay an outstanding balance by the due date, Customer’s
account will be considered to be in default and the DSL/WIRELESS Services
provided to Customer will be suspended upon five (5) days notice. If an account
is suspended for non-payment, Customer must continue to pay the monthly fee for
DSL/WIRELESS Services.
7.4. Once an account has been suspended, it is the Customer’s responsibility to
contact NEITEL’s billing department at (563) 539-2122, or (877) 638-2122 to
make the necessary payment arrangements and to re-activate DSL/WIRELESS
Services. Customer will be subject to a fifteen dollar ($15.00) service charge
to re-activate DSL/WIRELESS Services.
7.5. If any instrument received in payment is returned to NEITEL unpaid,
Customer’s account will be considered to be in default, and in addition to the
amount due, Customer will be subject to a thirty dollar ($30.00) service
charge.
7.6. If Customer’s account is in default, Customer is subject to an interest
charge of 1.5% per month, or the maximum allowable rate under state law,
whichever is less, on any past-due balances.
7.7. If Customer defaults on an account, Customer agrees to pay, to the extent
permitted by law, NEITEL’s reasonable costs of collection, including, without
limitation, any attorneys’ fees that may have been incurred.
7.8. After thirty (30) days of having an account suspended for non-payment,
NEITEL may disconnect Customer’s account and terminate DSL/WIRELESS Services.
If Customer wishes to re-establish DSL/WIRELESS Services, Customer will be
required to do the following prior to receiving DSL/WIRELESS Services: submit a
new application with the then applicable application fee, and pay any
outstanding charges including, but not limited to, any early termination
charges due and owing, and to the extent permitted by law, expenses incurred in
attempting to collect unpaid fees, late charges and interest.
7.9. Unless Customer gives written notice to NEITEL of a good faith billing
dispute within sixty (60) days after payment of the disputed amount is due,
Customer waives any right to challenge the disputed amount and releases NEITEL
from all liabilities and claims resulting from any such billing dispute.
8. Termination of DSL/WIRELESS Services.
8.1. Termination of DSL/WIRELESS Services, whether by Customer or NEITEL, shall
be in accordance with this Section 8 of these DSL/WIRELESS Terms and Conditions
and the provisions of the service agreement signed by Customer. In the event of
a conflict between the provisions of this Section 8 of these DSL/WIRELESS Terms
and Conditions and the provisions of the service agreement signed by Customer,
the provisions of these DSL/WIRELESS Terms and Conditions shall control.
8.2. Termination by Customer.
8.2.1. Subject to Section 8.1 above, Customer may terminate the Internet Access
Agreement and DSL/WIRELESS Services provided pursuant thereto at any time, with
or without cause, upon written notice to NEITEL or by calling (563) 539-2122,
(563) 382-9889 or (877) 638-2122. Charges to Customer’s account will continue
to accrue until notice has been given to NEITEL.
8.2.2. If Customer provides NEITEL with notice of termination before the
fifteenth (15th) of the month, Customer shall be entitled to a refund for one-half
of the monthly fee Customer paid in advance, subject to offset of any
outstanding amounts owed. If Customer provides NEITEL with notice of
termination after the fifteenth (15th) of the month, Customer shall not be
entitled to a refund of any monthly fee Customer paid in advance.
8.3. Termination by NEITEL.
8.3.1. Subject to Section 8.1 above, NEITEL may terminate the Internet Access
Agreement and DSL/WIRELESS Services provided pursuant thereto for cause,
immediately and without prior notice, if: (i) thirty
(30) days after an account is suspended for non-payment, where Customer remains
in default; (ii) NEITEL believes, in its sole discretion, that Customer or User
has violated the Acceptable Use Policy (Section 3 above); (iii) Customer or
User commits a breach of any other terms and conditions of the Internet Access
Agreement and said breach is not cured within ten (10) days after NEITEL
provides Customer with notice of such breach; (iv) in response to a court or
government demand; or (v) if NEITEL determines, in its sole discretion, that
the integrity or normal operations of NEITEL’s network is at imminent risk.
8.3.2. NEITEL may terminate DSL/WIRELESS Services under a month-to-month
contract without cause, upon ten (10) days prior notice. NEITEL may not
terminate DSL/WIRELESS Services provided under a Term Contract without cause.
8.3.3. Charges to Customer will continue to accrue until the date of
termination.
8.3.4. If terminated without cause, Customer will be issued a refund for the
prorated portion of the monthly fee Customer paid in advance, for the portion
of the month after the date of termination, subject to offset of any
outstanding amounts owed.
8.4. Early Termination Charges. In the event NEITEL is providing DSL/WIRELESS
Services to Customer under a Term Contract, and prior to the expiration of the
initial term of said Term Contract: (i) Customer
terminates the Internet Access Agreement; or (ii) NEITEL terminates the
Internet Access Agreement pursuant to Section 8.3.1, Customer shall pay an
early termination charge that is equal to the applicable installation fee
waived at installation, plus any fees assessed by the local exchange carrier to
NEITEL as a result of early termination.
8.5. Upon termination of the Internet Access Agreement, all rights granted to
Customer shall immediately cease and terminate.
8.6. Termination of the Internet Access Agreement does not release Customer
from the obligation to pay all accrued charges under the Internet Access
Agreement.
9. Change in Rates, Terms and Conditions. To the extent permitted by law,
NEITEL reserves the right to change, in its sole discretion, the rates, terms
and conditions applicable to its DSL/WIRELESS Services (i.e. the Internet
Access Agreement) including, but not limited to, any features of such
DSL/WIRELESS Services. Any change shall be effective thirty (30) days after
providing written notice to Customer. Customer’s use of NEITEL’s DSL/WIRELESS
Services after the effective date of any change shall constitute Customer’s
acceptance of and agreement to such change. If Customer does not agree to be
bound by such change, Customer should proceed directly to Section 8 of these
DSL/WIRELESS Terms and Conditions, Termination of DSL/WIRELESS Services, and
follow the appropriate directions to terminate the Internet Access Agreement
and cease using NEITEL’s DSL/WIRELESS Services. Early termination charges under
Section 8.4 of these DSL/WIRELESS Terms and Conditions shall not apply to
Customers who terminate the Internet Access Agreement as a result of a change
in rates, terms and conditions under this Section 9 of the DSL/WIRELESS Terms
and Conditions, where the change in rates, terms, and conditions materially
alters the DSL/WIRELESS Services.
10. Vacation Status.
10.1. Customers may not temporarily suspend (i.e., place on Vacation Status)
DSL/WIRELESS Services for any period.
11.
Login/Usernames and E-mail Addresses.
11.1. Any means of identification assigned to Customer by NEITEL including, but
not limited to, login/usernames and e-mail addresses, will remain the property
of NEITEL and at NEITEL’s sole discretion may be altered or replaced at any
time. Customer has no right to continued use of the login/username or e-mail
address.
11.2. Upon termination of DSL/WIRELESS Services, Customer’s login/username and
e-mail address will be eligible for reassignment immediately.
11.2.1. If DSL/WIRELESS Services are terminated by Customer or by NEITEL
without cause, NEITEL will, upon request, forward e-mail to a destination of
Customer’s choice at cost to Customer.
Upon said termination of forwarding, by Customer thereafter, NEITEL will
refuse to accept or forward incoming e-mail messages.
11.2.2. If DSL/WIRELESS Services are terminated by NEITEL for cause, NEITEL
will not provide e-mail forwarding, and will refuse to accept incoming e-mail
messages.
12. E-mail Message Retention Policy.
NEITEL will not delete any read or unread e-mail messages that remain on its
server(s) except that, if Customer is over their specified storage limit, any
new messages will be rejected by the server(s).
13. NO WARRANTIES.
13.1. CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK FOR ITS’ OWN OR ANY USER’S
USE OF NEITEL’S DSL/WIRELESS SERVICES AND THE INTERNET.
13.2. NEITEL’S DSL/WIRELESS SERVICES ARE PROVIDED ON AN “AS-IS” AND
“AS-AVAILABLE” BASIS. NEITEL MAKES NO WARRANTIES OR GUARANTEES AS TO THE
CONTINUOUS AVAILABILITY OF THE DSL/WIRELESS SERVICES, ANY SPECIFIC FEATURE OF
THE DSL/WIRELESS SERVICES, OR THAT DSL/WIRELESS SERVICES WILL BE UNINTERRUPTED
OR ERROR FREE.
13.3. NEITEL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY
DISCLAIMS ANY WARRANTY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR
ANY WARRANTY ARISING BY USAGE OR TRADE, COURSE OF DEALING OR COURSE OF
PERFORMANCE WITH RESPECT TO ITS DSL/WIRELESS SERVICES. THIS DISCLAIMER SHALL
APPLY TO ALL ADVICE, ASSISTANCE, DATA, INFORMATION, OR SERVICES, NOW OR
SUBSEQUENTLY FURNISHED, DELIVERED OR MADE AVAILABLE BY NEITEL, ITS AFFILIATES,
CONTRACTORS, EMPLOYEES OR AGENTS. NO ADVICE OR INFORMATION GIVEN BY NEITEL, ITS
AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS SHALL CREATE A WARRANTY.
14. LIMITATION OF LIABILITY.
14.1. DSL/WIRELESS SERVICES ARE SUBJECT TO OCCASIONAL TEMPORARY INTERRUPTIONS
OR IRREGULARITIES, AND TRANSMISSION LIMITATIONS CAUSED BY ATMOSPHERIC,
TOPOGRAPHICAL AND OTHER LIKE CONDITIONS. ADDITIONALLY, DSL/WIRELESS SERVICES
MAY BE TEMPORARILY REFUSED, LIMITED, INTERRUPTED OR CURTAILED DUE TO GOVERNMENT
REGULATIONS OR ORDERS, SYSTEM CAPACITY LIMITATIONS, LIMITATIONS IMPOSED BY AN
UNDERLYING COMMUNICATIONS CARRIER, OR BECAUSE OF EQUIPMENT MODIFICATIONS,
UPGRADES, REPAIRS OR REALLOCATION OR OTHER SIMILAR ACTIVITIES NECESSARY OR
PROPER FOR THE OPERATION, REPAIR, MAINTENANCE OR IMPROVEMENT OF NEITEL’S
NETWORK. NEITEL SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY DAMAGES OF WHATEVER
TYPE OR NATURE WHICH MAY RESULT, EITHER DIRECTLY OR INDIRECTLY, FROM ANY SUCH
TEMPORARY INTERRUPTIONS OF DSL/WIRELESS SERVICES.
14.2. NEITEL SHALL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE SUSTAINED BY
CUSTOMER CAUSED BY THE ACT OR OMISSION TO ACT OF ANY THIRD PARTY OR ANY ACT OR
OMISSION TO ACT WHICH IS BEYOND NEITEL’S CONTROL.
14.3. IN NO EVENT WILL NEITEL BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL,
CONSEQUENTIAL, INDIRECT, RELIANCE, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, BUT
NOT LIMITED TO, DAMAGES, FOR LOSS OF GOOD WILL, WORK-STOPPAGE, COMPUTER FAILURE
OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS OR BUSINESS
INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE NEITEL’S
DSL/WIRELESS SERVICES, EVEN IF NEITEL OR ITS AUTHORIZED REPRESENTATIVE(S) HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.4. CUSTOMER ACKNOWLEDGES THAT INTERNET SYSTEMS USE PUBLIC ACCESS FACILITIES
TO TRANSMIT VOICE AND DATA COMMUNICATIONS AND THAT THE DSL/WIRELESS SERVICES
MAY NOT BE COMPLETELY PRIVATE. NEITEL IS NOT LIABLE TO CUSTOMER FOR ANY CLAIMS,
LOSS, DAMAGES OR COST WHICH MAY RESULT FROM LACK OF PRIVACY WHILE ACCESSING THE
INTERNET VIA NEITEL’S DSL/WIRELESS SERVICES.
14.5. NEITEL EXERCISES NO CONTROL WHATSOEVER OVER THE FORM, CONTENT OR NATURE
OF THE INFORMATION, SOFTWARE, GRAPHICS, PHOTOGRAPHS, VIDEO, SPEECH, SOUNDS,
MUSIC, AND OTHER MATERIAL AND SERVICES COMMUNICATED THROUGH THE INTERNET
(HEREINAFTER COLLECTIVELY REFERRED TO AS “DATA”).
14.5.1. NEITEL MAKES NO REPRESENTATIONS, WARRANTIES, OR PROMISES AS TO, AND
CUSTOMER MUST BEAR THE RISK OF RELYING ON, THE ACCURACY, COMPLETENESS, OR
USEFULNESS OF ANY DATA. EXCEPT AS PART OF ANY ANTI-SPAM AND ANTI-VIRUS
FILTERING SERVICE, NEITEL DOES NOT SCREEN OR FILTER ANY DATA. NEITEL HAS NO
OBLIGATION TO SCREEN, FILTER OR MONITOR DATA. ACCORDINGLY, NEITEL SHALL HAVE NO
LIABILITY WHATSOEVER FOR ANY ACTION OR INACTION BY NEITEL WITH RESPECT TO DATA.
14.5.2. NEITEL RESERVES THE RIGHT (BUT SHALL HAVE NO OBLIGATION) TO MONITOR
DATA AND TO REMOVE DATA THAT NEITEL DEEMS UNACCEPTABLE, UNDESIRABLE, OR IN
VIOLATION OF THE INTERNET ACCESS AGREEMENT INCLUDING, BUT NOT LIMITED TO,
NEITEL’S ACCEPTABLE USE POLICY. NEITEL RESERVES THE RIGHT TO DISCLOSE ANY DATA
AND TO IDENTIFY THE RESPONSIBLE CUSTOMER AS MAY BE REQUIRED BY LAW, OR TO
OPERATE NEITEL’S DSL/WIRELESS SERVICES PROPERLY, OR TO PROTECT ITSELF OR ITS
OTHER CUSTOMERS.
14.5.3. CUSTOMER ACKNOWLEDGES THAT INTERNET SYSTEMS MAY CARRY MATERIAL WHICH
MAY BE CONSIDERED ABUSIVE, PROFANE OR SEXUALLY OFFENSIVE AND THAT NEITEL IS NOT
LIABLE TO CUSTOMER FOR ANY CLAIMS, LOSS, DAMAGES OR COST WHICH MAY RESULT FROM
SUCH MATERIAL.
14.5.4. EXCEPT AS REQUIRED BY LAW, NEITEL SHALL HAVE NO DUTY OR OBLIGATION TO
ADVISE CUSTOMER OF ANY RISK THAT MAY ARISE FROM THE AVAILABILITY, USE,
POSSESSION OR TRANSMISSION OF DATA OR PROVIDE ANY INFORMATION TO CUSTOMER
RELATING THERETO, EVEN IF AT ANY TIME NEITEL MAY ATTEMPT TO DO SO.
14.6. WITHOUT LIMITING THE EFFECT OF ANY OTHER PROVISION IN THIS SECTION 14,
NEITEL’S SOLE LIABILITY, IF ANY, FOR LOSS OR DAMAGE ARISING OUT OF THE
MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE
DSL/WIRELESS SERVICES OR TRANSMISSION OF DSL/WIRELESS SERVICES PROVIDED BY
NEITEL OR ANY UNDERLYING COMMUNICATIONS CARRIER, OR FOR LOSSES OR DAMAGES
ARISING OUT OF THE FAILURE OF NEITEL OR ANY UNDERLYING COMMUNICATIONS CARRIER
TO MAINTAIN PROPER STANDARDS OF MAINTENANCE AND OPERATION, OCCURRING IN THE
COURSE OF FURNISHING DSL/WIRELESS SERVICES AND NOT CAUSED BY THE NEGLIGENCE OR
WILLFUL ACTS OR OMISSIONS OF THE CUSTOMER OR ANY USER, SHALL NOT EXCEED THE
AMOUNT PAID BY CUSTOMER TO NEITEL FOR SAID DSL/WIRELESS SERVICES FOR THE MONTH
DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR OR DEFECT
OCCURS.
14.7. EXCEPT AS PERMITTED UNDER SECTION 14.6, IF CUSTOMER IS DISSATISFIED WITH
THE DSL/WIRELESS SERVICES OR WITH ANY TERMS, CONDITIONS, RULES, POLICIES,
GUIDELINES OR PRACTICES OF NEITEL IN OPERATING THE DSL/WIRELESS SERVICES,
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THE INTERNET ACCESS
AGREEMENT.
15. Indemnification.
15.1. Customer shall at all times defend, indemnify and hold harmless NEITEL,
its officers, directors, employees, agents, vendors, contractors, underlying
communications carriers, including upstream Internet Service/access providers,
from and against any and all claims, liabilities, losses, judgments, costs,
damages and expenses, including reasonable attorneys fees, related to or
arising from the following:
15.1.1. Any violation of the Internet Access Agreement including, but not
limited to, the Acceptable Use Policy, by Customer or User;
15.1.2. Customer’s or User’s use of NEITEL’s DSL/WIRELESS Services or the
Internet or the placement or transmission of any Data or other materials on the
Internet, for any claim including, but not limited to, claims for liable,
slander, invasion of privacy, infringement of any patent, trademark, copyright
or trade secret, and invasion and/or alteration of private records or data;
15.1.3. Negligent or willful acts or omissions of Customer’s or User’s
officers, directors, employees, agents, vendors, contractors in connection with
or arising out of, among other things, the construction, installation,
maintenance, presence, use, or removal of equipment or software, whether or not
provided by NEITEL, which are connected or to be connected to NEITEL’s
DSL/WIRELESS Services;
15.1.4. Negligent or willful acts or omissions of Customer’s or User’s
officers, directors, employees, agents, vendors, contractors in connection with
or arising out of, among other things, use of NEITEL’s DSL/WIRELESS Services; and
15.1.5. Any claims for infringement of any third party proprietary right,
including copyright, patent, trade secret and trade mark rights, arising from
the use of NEITEL’s DSL/WIRELESS Services and any services, equipment or
software not provided by NEITEL, or Customer’s alteration of any equipment or
software provided by NEITEL.
15.2. NEITEL shall promptly notify Customer of any claim or litigation to which
this indemnity applies, and Customer shall assume the defense of any such claim
or litigation. NEITEL reserves the right, at its own expense, to assume the
exclusive defense and control of any matter for which NEITEL is entitled to
indemnification under the Internet Access Agreement.
16. Resale of DSL/WIRELESS Services. Customer is prohibited from reselling any
of the DSL/WIRELESS Services provided by NEITEL.
17. Copyright Violation Reporting Information. In compliance with the Digital
Millennium Copyright Act of 1998, NEITEL offers information for the reporting
of a copyright violation on, or using, NEITEL’s DSL/WIRELESS Services. NEITEL’s
Copyright Violation Reporting Information is available at
http://www.neitel.com/main/policies.html#copy.
18. Assignment. Customer may not assign its rights or delegate any obligations
under the Internet Access Agreement, in whole or in part, without the prior
written consent of NEITEL. NEITEL may assign its rights and delegate its
obligation under the Internet Access Agreement, in whole or in part, at any
time, upon notice, but without consent of Customer.
19. Force Majeure. NEITEL shall in no event be liable
or responsible to Customer for any delay or failure in the performance of any
part of the Internet Access Agreement to the extent such delay or failure is
caused by fire; flood; explosion; war; strike; power blackout; earthquake;
volcanic action; water; embargo; labor dispute; government requirement; civil
or military authority; acts of God; public enemy; terrorist act; or inability
to secure raw materials, products, labor permits, rights of way or transportation
facilities; breakage or accident to equipment or facilities; temporary failure
of equipment or facilities; freezing of equipment or facilities; acts or
omissions of carriers or suppliers; acts or failure to act of any government
authority; or any other cause beyond the reasonable control of NEITEL or any
underlying communications carrier, whether or not similar to the foregoing.
NEITEL shall endeavor to give Customer prompt notice of any such delay or
failure.
20. Notice. Except as otherwise provided herein, all notices hereunder shall be
in writing, to the following addresses:
20.1. If to NEITEL:
20.1.1. by personal delivery: 800 South Main Street
Monona, IA 52159
20.1.2. by certified U.S. Mail, NEITEL
postage pre-paid, return P.O. Box 835
receipt requested: Monona, IA 52159
20.1.3. by e-mail: notices@NEITEL.com
20.2. If to Customer:
20.2.1. NEITEL home page (www.neitel.com);
20.2.2. Customer’s e-mail address; or
20.2.3. The address identified on the application form signed by Customer, by
certified U.S. Mail, postage pre-paid, return receipt requested.
20.3. Notice shall be deemed to have been given on the date that the same is
personally delivered; three (3) days after, deposited in the U.S. Mail, postage
pre-paid, certified mail, return receipt requested or the date of actual
receipt, whichever is earlier; or on the same date sent via e-mail if sent
before 5:00 p.m. (if the e-mail is not sent before 5:00 p.m., notice shall be
deemed to have been given on the next calendar day).
20.4. NEITEL and Customer may change their addresses for purposes of notice by
giving written notice to the other party of such change in the same manner as
is provided above.
21. Non-Waiver. No waiver shall be implied by the failure of NEITEL or Customer
to insist on performance of any of the terms or conditions of the Internet
Access Agreement or to exercise any right or privilege granted to such party.
No express waiver by NEITEL or Customer shall be construed as waiving any
breach of the Internet Access Agreement or the performance of any of the terms
or conditions not specified in the express waiver, and then only for the time
and to the extent stated therein. One or more waivers of any covenants, term or
condition shall not be construed as a waiver of a subsequent breach of the same
covenant, term or condition.
22. Severability. If any provision of the Internet Access Agreement shall be
held to be invalid under any applicable laws, such invalidity shall not affect
any other provision of the Internet Access Agreement that can be given affect
without the invalid provision, and to this end, the provisions hereof are
severable.
23. Governing Law. The Internet Access Agreement, and the rights and
obligations of the parties thereto, shall be governed by and construed in
accordance with the laws of the State of Iowa.