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The following User Agreement applies to all customers who use
Cyber Wireless LLC services.
USER AGREEMENT
(Terms and
Conditions of Use)
1.
Cyber Wireless LLC Defined
Cyber
Wireless LLC
(hereinafter called “CW ” or the “Company”), an
Oregon Corporation, sells and installs radio, video
and computer related hardware, software and enterprise
solutions used in networking, telephony and internet
connectivity applications and provides direct
access to broadband (hereinafter referred to as
“Access Services”) through its proprietary wireless
network as well as other land based transmission lines
and wireless communications systems owned and operated
by others. CW is not a “telecommunications utility”
as defined in ORS Chapter 759.
2. Definition
of Customer, Subscriber and User
This
User Agreement (“Agreement”) is between CW and those
individuals or non-natural persons including, but not
limited to, corporations, limited liability companies,
limited liability partnerships, limited partnerships
or other discrete, legally established and recognized
corporate entities (“Person” or collectively
“Persons”) contracting with the Company for Access
Services (“Customer” or “Subscriber”) and/or Persons
using the Company’s Access Services through a
Customer’s account (“User”). Those individuals acting
on behalf of a non-natural Person shall be jointly and
severally liable for the acts of that entity.
A
“Customer” (or collectively “Customers”) shall be
defined herein as a Person who has contracted with the
Company for Access Services. In certain situations
this Person may also be referred to as a
“Subscriber”. The words Customer and Subscriber may
be used interchangeably within the context of this
Agreement. For the purpose of this Agreement a
Customer is always considered to be a “User” (as
defined below).
A
“User” (or Collectively “Users”) shall be defined
herein as any Person or Persons using Access Services
provided by the Company or a Customer with or without
the knowledge or approval of the Customer. In all
cases the Customer shall be jointly and severally
liable for any and all acts of a User or Users who
employ the Customer’s Access Services.
“Parties” shall mean, collectively, the Company and
Person or Persons entering into this Agreement.
Within
this Agreement the terms Customer, Customers, User,
Users, Subscriber and Subscribers may also be referred
to as “you” or “your” or “it” in certain contexts and
the Company may also refer to itself using the terms
“we”, “our” or “it “ in certain contexts. The use or
substitution of singular and plural pronouns shall be
construed to be consistent with the general meaning
and context in which they appear.
3. Access
Services
CW
provides broadband access through a network of
wireless radio signals, traditional telephone lines
and fiber optic cable. CW is not an Internet
service provider and does not provide web browsing,
hosting or e-mail services. Broadband access is
available twenty four hours per day, seven days a
week, excluding short maintenance periods and
unforeseen interruptions of service that occur
infrequently throughout the network, and subject to
certain limitations based on the User’s subscription
plan. A telephone line is not required to receive
service however Users must have a legally approved
sending and receiving device, a discrete power source
and an appropriate antenna to receive an CW radio
signal.
There
are no additional charges for the number of Log-on
attempts or a limit to the number of times the User
may attempt to log-on to the network. Unmetered or
unlimited access does not guarantee that every log-on
attempt is successful. Factors influencing successful
log-on attempts include the availability and operating
condition of various telephone companies’ equipment
and services, CW ’s equipment or services and the
User’s equipment.
All
User sessions are restricted to personal, attended,
interactive use only unless otherwise agreed, in
writing, by the Company. The User is not allowed to
keep the session alive by means of activating an
e-mail program that checks mail automatically in
predetermined time intervals, or any program which
periodically sends data to our system when the User is
not actively using the network. This includes, but is
not limited to, “ping bots” or other methods of
avoiding timed disconnection. Users who stay
connected for a exceptionally long period of time may
be disconnected or asked to purchase a commercial
access plan. CW reserves the right to disconnect
idle connections and limit usage as it feels is
appropriate to insure the highest level of service to
the greatest number of customers.
The
User is not permitted to run any type of on-line
server activity, connect to a BBS or other system
used by multiple persons without subscribing to a
commercial access plan specifically designed for such
use. Special rates are available upon request.
You
agree not to make any deliberate attempt to cause
traffic levels to CW or its network(s) to rise
without reason or for malicious purpose (i.e.
transmitting large files to people for nefarious
purposes, “e-mail bombing”, transmissions intended to
raise the cost of another network provider’s access
through generating excessive traffic levels, etc.)
Scanning or using a Brute Force utility on any IP
address is strictly prohibited.
4. Internet
Warning
If you
use Access Services as a gateway to the Internet;
third party ISP’s or online search engines may list,
direct or otherwise link you to various websites that
may contain information or material that some people
find inappropriate or offensive. These websites are
not under the control of CW , and you acknowledge
that the Company is not responsible for the accuracy,
copyright compliance, legality, decency, or any other
aspect of the content of such sites. Accessing
objectionable or inappropriate material through the
use of our Access Services does not imply the
Company’s endorsement or any association with the
offensive content. CW provides only a gateway for
the User to connect to broadband. CW has no control
over material accessed by User on the Internet. Users
may avail themselves of any information or service(s)
available through digital transmission as long as it
is for legal purposes. Any User engaging in an
illegal activity will be immediately suspended from
access and reported to the appropriate law enforcement
authority.
5. Acceptance
of Terms Through Use
Access
Services provides Users the opportunity to share
bandwidth capacity the Company leases from others.
Users may sublease bandwidth capacity received from
the Company to other third parties consistent with the
terms and conditions contained herein. Customers
accept full responsibility for their use of any
bandwidth supplied by or through the Company’s Access
Services and shall not rely on the Company for any
Internet services generally associated with, or
provided by, an ISP including, but not limited to,
e-mail tools, web site hosting, Internet navigation
tools, electronic computer virus protection, or any
other data security safeguards. By using our Access
Services, you consent to all terms, conditions, and
notices contained or referenced herein. If you do not
agree to these Terms and Conditions of Use you are not
authorized to use our Access Services and are hereby
directed to refrain from doing so. CW may
unilaterally amend or otherwise modify this Agreement
from time to time without prior notice. The User
agrees that the Company’s posting of any amendments or
modifications on our access authorization website (www.oregoncoastcybercafe.com/hispeed_agree.htm)
shall constitute adequate notice to User and that User
will periodically consult this website for any changes
or amendments to this Agreement. CW may, but is not
under any obligation to, provide additional notice of
any amendment, modification or update to this
Agreement. If any material modification to this
Agreement is unacceptable to User it shall be User’s
responsibility to terminate their subscription as
provided in Section 4 of this Agreement. If User does
not terminate the Agreement then User’s continued use
will mean that he has accepted the amended or modified
Agreement.
6. Duration of
Agreement and Cancellation Policy
The
Initial Term as indicated on the Customer’s initial
contract for service or installation contract (“Order
Form”) shall begin upon commencement of the Access
Services to the Customer. After the Initial Term,
this Agreement shall automatically renew on a month to
month basis unless otherwise specified in writing
between the Parties or terminated by either party as
provided herein. During the Initial Term this
Agreement may not be terminated by the Customer for
any reason.
This
Agreement may be terminated by either party by giving
written notice at least 15 days prior to the
renewal/anniversary date of the Term or; by CW in
the event of nonpayment by the Customer or; by CW at
any time, without notice, if in the Company’s judgment
the Customer has in any way breached this Agreement.
If
CW terminates Customer’s Access Services pursuant to
any of the terms outlined in this Agreement CW shall
not refund to the Customer any fees paid or prepaid
in advance of such cancellation and the Customer shall
be obligated to pay all fees and charges accrued prior
to the effectiveness of such termination.
If
prior to the end of the agreed upon Term, the Customer
cancels the Access Services for any reason, or CW
terminates the Agreement due to Customer’s breach of
these Terms and Conditions of Use, the Customer will
be charged an early termination fee equal to the fee
for such account remaining in the term. At no point
shall the Customer receive a refund of any prepaid
service fees.
7. Disclaimer
of Warranty
USER
AGREES THAT ITS USE OF THE COMPANY’S ACCESS SERVICES
AND RELIANCE UPON INFORMATION BY CW ARE ENTIRELY AT
USER’S SOLE RISK. ALL MATERIALS, INFORMATION,
SOFTWARE, PRODUCTS, OR SERVICES INCLUDED IN OR
AVAILABLE THROUGH ACCESS SERVICES (“CONTENT”) IS
PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITH
RESPECT TO ACCESS SERVICES, CW DOES NOT WARRANT THAT
THE CONTENT IS ACCURATE, RELIABLE, OR CORRECT; THAT
SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR
LOCATION; THAT DEFECTS OR ERRORS WILL BE CORRECTED;
THAT THE CONTENT IS FREE FROM “COMPUTER VIRUSES” OR
OTHER HARMFUL COMPONENTS OR; THAT THE SECURITY OF THE
USER’S SYSTEM OR DATA IS PROTECTED IN ANY WAY FROM
INFILTRATION BY OTHERS. THE COMPANY IS NOT
RESPONSIBLE FOR ANY LOSS THE USER MAY SUFFER AS A
RESULT OF USING CW ’S ACCESS SERVICES INCLUDING, BUT
NOT LIMITED TO LOSS RESULTING FROM DELAYS, IMPROPER OR
INCOMPLETE DELIVERY OF INFORMATION, HARDWARE OR
SOFTWARE FAILURE AND/OR INTERRUPTION OF SERVICE,
REGARDLESS OF THE CAUSE.
NEITHER CW , ITS OWNERS, EMPLOYEES, AGENTS, OR
AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT
PROVIDED IN CONJUNCTION THEREWITH. NEITHER CW NOT
ITS OWNERS, EMPLOYEES, AGENTS OR AFFILIATES MAKES ANY
WARRANTIES THAT THE ACCESS SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE
ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY,
RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR
MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE
APPLICATION OF THE ACCESS SERVICES. CW IS NOT
LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE
CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USER
THROUGH ACCESS SERVICES. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY ANY CW MEMBER, EMPLOYEE, OR
AGENT WILL CREATE A WARRANTY; NOR MAY USER OR ANY OF
USER’S OWNERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH
INFORMATION OR ADVICE. YOUR USE OF ACCESS SERVICES
IS SOLELY AT YOUR OWN RISK.
The
terms of this section shall survive any termination of
this Agreement.
8. Limitation
of Liability
Customer agrees neither CW nor any of its employees,
owners, or agents (“CW Person”) shall be held
responsible or liable for situations where the Access
Services are accessed by third parties through illegal
or otherwise unauthorized means, including situations
where such data is accessed through the exploitation
of security gaps, weaknesses or flaws (whether known
or unknown to CW at the time) which may exist in the
Access Services or the Company’s equipment used to
provide Access Services.
Under
no circumstances, including negligence, shall CW or
any of its employees, owners, or agents be liable for
any indirect, incidental, special, consequential or
punitive damages, or loss of profits, revenue, data or
use by Customer, any of its customers, any Reseller
Customer or any other third party, whether in an
action in contract or tort or strict liability or
other legal theory, even if CW has been advised of
the possibility of such damages. No CW Person shall
be liable to Customer, any of its customers, any
Reseller Customer or any other third party, for any
loss or damages that result or are alleged to have
resulted from the use of or inability to use the
Access Services, or that results from mistakes,
omissions, interruption, deletion of files, loss of
data, error, viruses, defects, delays in operations,
or transmission or any failure of performance, whether
or not limited to acts of God, communications failure,
theft, destruction or unauthorized access to CW ’s
records, programs, equipment or services.
Notwithstanding anything to the contrary in this
Agreement, CW ’s maximum liability under this
Agreement for all damages, losses, costs and causes of
action from any and all claims regardless of the legal
theory or the nature of the cause of action shall not
exceed the actual dollar amount paid by the Customer
for the Access Services which gave rise to such
damages, losses and causes of actions during the six
(6) month period prior to the date the cause of action
arose or the injury or loss occurred.
Customer understands, acknowledges and agrees that if
CW takes any corrective action under this Agreement
because of an action of Customer or one of its
customers that corrective action may adversely affect
other customers of Customer or other Reseller
Customers, and Customer agrees that CW shall have no
liability to Customer, any of its customers or any
Reseller Customer due to such corrective action by the
Company.
This
limitation of liability reflects an informed and
voluntary allocation of risks between the Parties and
applies to risks both known and unknown that may exist
in connection with this Agreement. The terms of this
section shall survive any termination of this
Agreement.
9.
Indemnification
The
User(s) agree to indemnify, defend and hold harmless
CW and its subsidiary and affiliated companies, and
each of their respective, members, owners, officers,
directors, employees, shareholders and agents (each an
“indemnified party”) and , collectively, “indemnified
parties”) from and against any and all claims,
damages, losses, liabilities, suits, actions, demands,
proceedings (whether legal or administrative), and
expenses (including, but not limited to, reasonable
attorney’s fees) threatened, asserted, or filed by a
third party against any of the indemnified parties
arising out of or relating to User’s use of the Access
Services, any violation by User of this Agreement, any
breach of any representation, warranty or covenant of
User contained in this Agreement or any acts or
omissions of User. The terms of this section shall
survive any termination of this Agreement.
10. Lawful Use
and Prohibited Uses and Activities
User
shall use CW Access Services only for lawful
purposes and in accordance with all applicable
federal, state and local laws, statutes, ordinances,
rules and regulations. User shall not engage in any
prohibited use or activity outlined herein. Violation
of any of the prohibited uses enumerated below or
violation of the law will result in immediate
termination of Access Services. CW will fully
cooperate in any investigation which is requested by
parties alleging to be impacted by your behavior while
using the Company’s Access Services, and we reserve
the right to turn over to authorities, we deem
appropriate, any evidence or information we discover
relating to any illegal activity. This information
may include that which can be discerned from the
“finger” command to third parties. (This normally
includes your full name, login id and time of last
system access.)
CW
may
immediately take corrective action, including
disconnection or discontinuance of any Access Services
if User engages in any of the prohibited uses or
activities set forth in this Agreement. Customer
agrees that CW shall have no liability to User,
Customer or any of Customer’s customers due to any
corrective action that the Company may take
(including, without limitation, discontinuance of
Access Service).
1.
Violations of Intellectual Property Rights
User agrees that it shall not violate any intellectual property rights
and that it shall not resell services to any party
which violates intellectual property rights. Any
violation of any individual or entity’s intellectual
property rights including, rights of privacy and
rights of publicity are prohibited. In addition, any
activity that infringes on any patent, trademark,
trade secret, copyright, right of publicity, or other
proprietary right of any party is prohibited.
2.
Spamming
User agrees not to send spam or resell its services to anyone who sends
spam. The term “spam” includes, but is not limited
to, the sending of unsolicited bulk and/or commercial
e-mail messages over the Internet or maintaining an
open SMTP policy. In the event of a dispute CW
reserves the right to determine, in its sole and
absolute discretion, whether e-mail recipients were
from an opt-in e-mail list.
3.
Misrepresentation of Transmission Information
User agrees not to forge, misrepresent, omit, or delete message headers,
return mailing information and/or Internet protocol
addresses to conceal or misidentify the origin of any
message or to resell Access Services to anyone who
engages in said conduct.
4.
Viruses and Other Destructive Activities
Use of the Access Services for creating or sending malicious, destructive
or nuisance code, examples of which include, but are
not limited to, viruses, worms and Trojan horses, or
for pinging, flooding or mail-bombing, or engaging in
denial of service attacks is prohibited and is a
breach of this Agreement. User also agrees not to
engage in any other activity that is intended to
disrupt or interfere with, or that results in the
disruption of or interference with, the ability of
others to effectively use the Access Services (or any
connected network, system, service or equipment).
5.
Malicious or Unauthorized Hacking
User agrees to not conduct or promote any “Hacking” activity and agrees
that “Hacking” as herein defined includes but is not
limited to, the following activities: illegally or
without authorization, accessing computers, accounts
or networks; penetrating or attempting to penetrate
security measures; transmitting software viruses or
any other computer code, files, or programs that are
designed or intended to disrupt, damage, or limit the
functioning of any software, hardware, or
telecommunications equipment or to damage or obtain
unauthorized access to any data or other information
or any third party; port scans, stealth scans, and
other activities designed to assist in malicious or
unauthorized “Hacking” or “Cracking”. Any such
activity on the part of User is a material breach of
this Agreement.
6.
Export
Control Violations
The exportation of encryption software outside the United States and/or
violations of United States law relating to the
exportation of software is prohibited.
7.
Child
Pornography
The use of the Access Service to store, post, display, transmit,
advertise or otherwise make available child
pornography is prohibited. Additionally, you agree
you will not knowingly solicit or collect personal
information from a minor (anyone under 18 years old).
Personal information includes, but is not limited to,
name, address, and telephone number or the name of
minor’s school. CW will, as required by law, notify
law enforcement agencies if and when it becomes aware
of the presence of child pornography being transmitted
through the Access Services.
8.
Other
Illegal Activities
The use of the Access Services to engage in any activities that are
determined by CW , in its sole and absolute
discretion, to be illegal or which in the Company’s
opinion are likely to be found to be illegal is
prohibited. Such illegal or potentially illegal
activities include, but are not limited to, storing,
posting, displaying, transmitting or otherwise making
available Ponzi or pyramid schemes, chain letters, any
other form of unauthorized solicitation, or any form
of lottery or gambling, password cracking information,
fraudulently charging credit cards or displaying
credit card information or other private information
of third parties without their consent, and failure to
comply with applicable on-line privacy laws (i.e.
“harvesting” or illegally collecting information about
other Users on this network or illegally securing
information for the purpose of transmitting or
facilitating transmission of unsolicited bulk
electronic e-mail communications). CW will
cooperate fully with appropriate law enforcement
agencies in connection with any and all illegal
activities occurring on or through the Access
Services.
9.
Obscene, Defamatory, Abusive or Threatening Language
Use of the Access Services to store, post, transmit, display or otherwise
make available the following is strictly prohibited:
obscene, defamatory, harassing, abusive, defamatory,
vulgar, libelous, deceptive, fraudulent or threatening
language; any activity that is invasive of another’s
privacy, tortuous, or victimizes, harasses, degrades,
or intimidates an individual or group of individuals
on the basis of religion, gender, sexual orientation,
race, ethnicity, age or disability; contains explicit
or graphic descriptions or accounts of sexual acts
(including but not limited to sexual language of a
violent or threatening nature directed at another
individual or group of individuals).
10.
Other
Prohibited Activities
Engaging in any activity that, in CW ’s sole and absolute discretion,
disrupts, interferes with or is harmful to (or
threatens to disrupt, interfere with, or be harmful
to) the Access Services, the Company’s business,
operations, reputation, goodwill, Customers and/or
customer relations, or the ability of the Company’s
Users to effectively use the Access Services is
prohibited. Such prohibited activities include making
available any program, product or service that is
designed to or could be used to violate this
Agreement. In addition, the failure by a User to
cooperate with CW in correcting or preventing
violations of this Agreement is, in itself, a
violation of this Agreement.
11. Choice of
Law and Forum
This
Agreement shall be governed in all respects by Oregon
law without regard to the conflict of law provisions
thereof. Both Parties submit to personal jurisdiction
in Oregon. Any controversy or claim arising out of,
relating to or in connection with this Agreement, or
breach thereof, shall be subject to arbitration
administered by the American Arbitration Association
(“AAA”) in accordance with its then existing
Commercial Arbitration Rules (collectively, the “AAA
Rules”) and judgment upon the award rendered by the
arbitrator may be entered in any court having
jurisdiction thereof. The place of arbitration shall
be Portland, Oregon, or any other place selected by
mutual agreement of the parties. An award rendered in
connection with an arbitration pursuant to this
Section shall be final and binding upon the parties
and the parties agree and consent that the arbitral
award shall be conclusive proof of the validity of the
determinations of the arbitrations set forth in the
award, and any judgment upon such an award may be
entered and enforced in any court of competent
jurisdiction. The parties agree that the award of the
arbitral tribunal will be the sole and exclusive
remedy between them regarding any and all claims and
counterclaims between them with respect to the subject
matter of the arbitrated dispute. The parties hereby
waive all in personam jurisdictional defenses
in connection with any arbitration hereunder or the
enforcement of an order or award rendered pursuant
thereto, In any legal action, the prevailing party
will be entitled to recover all legal expenses in
connection with the action, including but not limited
to its costs, both taxable and non-taxable, and
reasonable attorney’s fees. The terms of this section
shall survive any termination of this Agreement.
12. Disclosure
of Customer Information and Legal Process
Although CW will ordinarily maintain strict User
confidentiality there are certain exceptions where the
Company may disclose any information in its
possession, including, without limitation, information
about Users and their broadband access activity in
order to comply with a court order, subpoena, summons,
discovery, request, warrant, statute, regulation or
official government request, to protect CW or others
from harm, and/or to ensure the proper operation of
the Access Services. CW has no obligation to notify
any person, including the User about whom the
information is sought or that CW has provided the
information. User acknowledges the above exceptions
and agrees to them without reservation.
CW
makes
no claims or warranties regarding the security of its
system or network, User’s files or User’s
communication or data transfer. Third party
encryption tools or “fire walls” should be employed by
User to help ensure privacy of a file data or e-mail
messages.
CW
automatically gathers certain usage information. This
information is used to monitor the load on our network
as a whole and scans individual Customer’s “traffic”
in order to provide adequate bandwidth for the system
and equitably assign costs based on usage. All
information concerning Users is confidential and not
distributed or sold to third parties.
Customer agrees to notify the Company if you move or
otherwise change your mailing address. Customer
further agrees to provide a regular postal address
which is your primary legal residence. We will not
disclose this information to any third party except
upon presentation of a valid warrant or court order.
We reserve the right to use this information for
internal purposes and to advise Customer of new
service and product offerings.
13. Force
Majeure
CW
shall
not be liable for failure or delay in performing its
obligations hereunder if such failure or delay is due
to circumstances beyond its reasonable control,
including, without limitation, acts of any
governmental body, war, insurrection, sabotage,
embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in
transportation, unavailability of, interruption or
delay in telecommunications or third party services,
failure of third party software or hardware or
inability to obtain raw materials, supplies or power
used in or equipment needed for provision of the
Services.
14.
Discontinuation of Services
Violation of any of the Terms and Conditions of Use
may result in the immediate termination of Access
Services without notice and the forfeiture of the
remainder of Customer’s subscription fee. Serious
violations may result in civil or criminal
prosecution. CW , in its sole and absolute
discretion, may discontinue any and all classes of
service or refuse service for any reason whatsoever.
15. User
Responsibilities
Each
Customer is responsible for payment for all charges
associated with its account. In the event of any
unauthorized access to your account, the Customer must
notify CW in writing, e-mail, in person or by phone;
however, the Customer will remain responsible for all
charges until CW is notified. All accounts are
personal and nontransferable. Not more than one
concurrent User session per account is permitted at
any time. The Customer is prohibited from lending or
giving his or her password to others. Customers are
responsible for the set-up and configuration of their
own hardware, software and receiving antennae used to
access the CW network.
16. Charges and
Billing
The
Customer is responsible for the payment of Access
Services provided by CW in advance in accordance
with the Company’s fee schedule, which is incorporated
herein by reference and may be amended from time to
time. Charges and rates are generally determined by
the volume of bandwidth used by the Customer. Billing
can be arranged in a variety of ways. Please consult
with a CW representative for a service plan and
billing procedure that is appropriate for your pattern
of use.
Fees
may be paid by credit card, debit card, money order,
check or cash. In the event the Customer elects to
pay with a credit card, Customer authorizes CW to
charge all fees owed to such credit card at the time
they become due. Customer agrees to pay a $35.00
(thirty-five dollars) late fee if Customer’s account
or accounts become more than ten (10) calendar days
overdue (a “delinquent” account) or if Customer’s
credit card is not accepted when a charge is processed
or if Customer’s check is returned for non-sufficient
funds. Fees for renewal periods after the Initial
Term shall become due monthly prior to the first day
of such renewal period. CW may impose a debt
service charge equal to one and one-half percent
(1.5%) of the overdue balance for each month or
portion thereof the overdue amount remains unpaid. In
addition, in the event that any amount due CW
remains unpaid for a period of five (5) calendar days
after such payment is due, CW , in its sole
discretion, may immediately terminate this Agreement,
and/or suspend Access Services. Customer agrees that
CW may charge a $35.00 (thirty-five dollars) fee to
reinstate accounts that have been terminated or
suspended. All taxes, fees and governmental charges,
if any, relating to the Access Services provided
hereunder shall be paid by the customer in addition to
the Company’s regular charges for service.
Customer agrees that CW may charge in advance all
fees due for Access Services provided to the Customer
under this Agreement to the credit card supplied by
Customer prior to the commencement of service or at
any time thereafter and Customer specifically agrees
not to chargeback payments CW processes through
Customer’s credit card.
Customer acknowledges and specifically agrees that
chargebacks (which might occur if Customer disputes
CW charges directly with Customer’s credit card
bank) are unlawful if CW ’s service has been
rendered. If Customer has a fee dispute with CW he
shall settle such dispute with CW without initiating
any chargeback procedures. Any chargeback will evoke
an automatic $150.00 (one-hundred-fifty dollars)
service fee for which Customer shall be held
responsible in future collecting procedures.
17. Special
Provisions Applicable to Resellers
CW
from time to time may offer reseller programs which
will permit Customers to resell certain portions of
bandwidth allocated to Customer. If Customer chooses
to resell all or a portion of the Access Services
provided by the Company the Customer shall remain a
CW customer for all purposes under this Agreement.
Each and every Customer’s customer or Customer’s User
shall be bound by the terms of this Agreement.
The
Customer agrees that if it resells any portion of
CW ’s Access Services, the purchaser of the resold
services will become a Customer’s customer (a
“Reseller Customer”). A Reseller Customer shall not
become a Customer of CW , and CW shall not be
required to provide technical or other support to any
Reseller Customer. Reseller agrees to take all
necessary measures to preclude CW from being made a
party to any agreement with any Reseller Customer.
Customer agrees and acknowledges that if they become a
Reseller they will be authorized to resell CW
provided Access Services on a non-exclusive basis
only. Customer’s right to resell CW Access Services
shall in no way preclude CW from marketing and
selling CW ’s own products and services through its
own members, employees, affiliates, other resellers or
any other third party. CW expressly reserves the
right to allow third parties to resell CW Access
Services on any terms the Company may choose including
terms which may be more favorable to said third
parties than they are to CW Reseller Customers.
Reseller acknowledges that the non-payment by any
customer of Reseller shall in no way relieve Reseller
of any duty in this Agreement including, but not
limited to, the duty to timely pay all fees when
due. Reseller shall be solely responsible for all
sales, use, transfer, privilege, excise or other taxes
and duties which are levied or imposed on CW and
Reseller under this Agreement and any and all
transactions between Reseller and Reseller Customers.
Reseller shall be solely responsible for compliance
with any regulations governing the export of the
Access Services (or any portion thereof).
Reseller shall not resell the Access Services under
CW ’s brand name. Accordingly, nothing in this
Agreement constitutes a license to Reseller to use or
resell any of the Company’s Intellectual Property
Rights as defined in this Agreement.
18.
CW as a
Reseller or Licensor
In
order to provide its Access Services, CW is acting
only as a reseller or licensor of equipment,
bandwidth, hardware and software that were
manufactured or supplied by third parties not
affiliated with the Company (“Third Party Products”).
CW shall not be responsible for any changes in the
Access Services that cause the Third Party Products to
become obsolete, require modification or alteration,
or otherwise affect the performance of the Access
Services. Any malfunction or manufacture defects of
Third Party Products either sold, licensed, or
provided by CW to Customer or purchased directly by
Customer used in connection with the Access Services
will not be deemed a breach of CW ’s obligations
under this Agreement. Any rights or remedies Customer
may have regarding ownership, licensing, performance
or compliance of Third Party Products is limited to
those rights extended to the Customer by the
manufacturer of such Third Party Products. The
Customer is entitled to use any Third Party Products
supplied by CW only in connection with Customer’s
permitted use of the Access Services.
Customer shall use its best efforts to protect and
keep confidential all intellectual property provided
by CW to Customer with respect to any Third Party
Product and shall make no attempt to copy, alter,
reverse engineer, or tamper with such intellectual
property or to use it other than in connection with
the Access Services. Customer shall not resell,
transfer, export or re-export any Third Party Product,
or any technical data derived therefrom, in violation
of any applicable United States or foreign law.
19. Bandwidth
Usage
Customer agrees that CW will monitor and meter
Customer’s bandwidth usage and, in the event that
Customer exceeds the bandwidth usage allocated to it,
may take corrective action which may, at the Company’s
sole discretion, include the assessment of additional
charges, disconnection or discontinuance of any and
all of the Access Services or termination of this
Agreement. Customer agrees that in the event of a
dispute CW monitoring reports shall be the final
method of determining how much bandwidth was used and
agrees to pay the excess charges when due. Customer’s
log files may also be used to determine usage. Binary
files such as images, video and sound (i.e. MP3, WAV,
RA, GIF, JPG but not limited to those file extensions)
may only account for a maximum of 50% of Customer’s
total bandwidth usage before the Customer must upgrade
to a higher performance solution.
20. Intellectual
Property Rights
User
acknowledges that CW owns or has secured the right
to use all trade names, trademarks, service marks,
inventions, copyrights, trade secrets, patents,
know-how, and other intellectual property rights
relating to the Access Services. User further
acknowledges and agrees that nothing in the Agreement
shall constitute a license to User or Customer to
resell or trade under any of CW ’s intellectual
property or that licensed to the Company by others.
21.
Non-Assignment
The
User and/or Customer shall not have the right to
assign this Agreement without the prior written
consent of CW This Agreement shall be binding upon
and inure to the benefit of all Users and Customers
and CW and their successors and permitted assigns.
22. Entire
Agreement; Severability
This
Agreement, together with the Order Form and any other
documents or agreements identified in this Agreement,
represent the entire agreement between the parties,
and supersedes all previous representations,
understandings or agreements. If any portion of this
Agreement shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void,
the parties agree that the remainder of this Agreement
shall remain in full force and effect.
Customer and/or User hereby represents that he, she or
it is either, an individual entering this Agreement
for his or her personal use and is over eighteen (18)
years of age, or a corporation, limited partnership,
limited liability company, limited liability
partnership or other legal entity, duly organized and
in good standing under the laws of the state of its
organization and in Oregon and the person acting on
behalf of the Customer and/or User is duly authorized
to accept, execute and deliver this Agreement on their
behalf.
_______________________________________________________
____________________
Signature
Date
_______________________________________________________
Printed name
_______________________________________________________
Home
Address
_________________________________________
Billing
Address
_________________________________________
Home &
Cell Phone
_________________________________________
E-mail
address
_____________________________________________________
CW
Agreement acceptance signature
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