VoIP Terms of Service
These Terms of Service constitute the agreement (“Agreement”) between Network Designs (“we,” “us” or “Network Designs”) and the user (“you,” “user” or “Customer”) of Network Designs residential and small business communications services and any related products or services (“Service”). This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service. If you purchased Equipment from a retail store, dealer or other provider other than Network Designs, you are a “Retail Customer” for purposes of this Agreement.
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. EMERGENCY SERVICES – 911 DIALING
Enhanced-911 or E-911 enables calls to be routed to Public Safety Answering Points (PSAP) such that both the calling phone number and the address are immediately available to the PSAP operator.
1.2 Description of Network Designs 911 Capabilities
Network Designs VoIP Services support E-911. You acknowledge and understand that the Service supports E911 access to emergency services ONLY IF THE SERVICE IS OPERATED FROM THE SERVICE LOCATION OF RECORD, and then only if the user has an active connection to the service, in accordance with these Terms of Service.
1.3. Service Outage
1.3.1 Power Failure or Disruption
You acknowledge and understand that 911 dialing does not function in the event of a power failure or disruption. Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service or 911 dialing.
1.3.2 Broadband Service / ISP Outage or Termination / Suspension or Termination by Network Designs
You acknowledge and understand that service outages or suspension or termination of service by your broadband provider and/or ISP or by Network Designs will prevent ALL Service including 911 dialing.
1.3.3 Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension of your account as a result of billing issues may prevent ALL Service, including 911 dialing.
1.3.4 Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason; such outage may prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
1.4 Failure to Designate the Correct Physical Address When Enrolling or Changing Your Address
Failure to provide the current and correct physical address and location of your Network Designs equipment during enrollment or change of address will result in any 911 communication you may make being routed to the incorrect local emergency service provider and will likely prevent a timely response to your emergency. This must be the actual physical street address where you are located, not a post office box, mail drop or similar address.
1.5 Use of Service From Different Location
You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your Network Designs Device to a different street address. Failure to provide the current and correct physical address and location of your Network Designs equipment will result in any 911 dialing you may make being routed to the incorrect local emergency service provider. This emergency service provider may not be able to provide emergency services.
1.6 Alternative 911 Arrangements
You acknowledge that Network Designs does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional E911 (911) services.
Network Designs 911 dialing cannot be used in conjunction with a Network Designs Soft Phone application, and is only available on Network Designs-certified Devices or Equipment.
1.9 Automated Number Identification
At this time it may or may not be possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. Network Designs system is configured in most instances to send the automated number identification information; however, one or more telephone companies, not Network Designs, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
1.10 Automated Location Identification
When calling from a mobile phone it is impossible to pinpoint your exact location. You acknowledge and understand that you will need to state the nature of your emergency promptly and clearly, including your location, as PSAP and emergency personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to find your location if the call is unable to be completed, is dropped or disconnected, if you are unable to speak to tell them your location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
1.11 Disclaimer of Liability and Indemnification.
We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Network Designs nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Network Designs, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
1.12 Alternate 911 Arrangements.
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
Unless otherwise specified by your signed Agreement, service is offered on a monthly basis for a term that begins on the date that Network Designs activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew with the original term unless you give us written notice of non-renewal at least thirty (30) days before the end of your term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month’s charges in the event that you do not provide the requisite thirty-days notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement
2.2 Residential Use of Service and Device.
If you subscribe to Network Designs’ residential services, the Service and the Device are provided to you solely for residential use. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the Device is, or at any time was, inconsistent with normal residential usage patterns. In addition, you will be required to pay our higher rates for commercial service for all periods in which your use of the Service or the Device was inconsistent with normal residential use.
2.3 Small Business Use of Service and Device.
If you subscribe to Network Designs’ Small Business services, the Service and Device are provided to you as a small business user. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of the aforementioned or similar activities.
2.4 Small Business Premium Use of Service.
If you subscribe to Network Designs’ Small Business Premium services, the Service is provided to you as a small business user. You shall not resell or transfer the Service to another party without our prior written consent. You are responsible for supplying, operating, and supporting the standard SIP based Customer Premise Equipment for use with the Service. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.
2.5 Prohibited Uses.
(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Network Designs will provide information in response to law enforcement requests, subpoenas, court orders, to protect it’s rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Network Designs will provide information in response to law enforcement requests, subpoenas, court orders, to protect it’s rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others
2.6 Use of Service and Device by Customers outside the United States.
Although we encourage you to use the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to terminate your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device outside of the United States or Canada.
2.7 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.
(a) Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
(b) Unauthorized Usage of Device; Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
2.8 Tampering with the Device or Service.
You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
2.9 Theft of Service.
You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
2.10 Return of Device (Does Not Apply to Business Premium Customers)
Customers may return the Device to us within fourteen (14) days of the termination of Service to receive a credit for the purchase price of the hardware fee provided that:
* the Device is in original condition, reasonable wear and tear excluded;
* the original documentation is returned with the Device, together with the original packaging, all parts, and accessories;
* prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at firstname.lastname@example.org or (530) 223-3479; and
* you pay all costs of shipping the Device back to us.
If you disconnect multiple lines, we will issue you a credit for all hardware fees upon receipt of all Devices in accordance with the requirements set forth above. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact our customer care department immediately at email@example.com or (530) 223-3479.
2.11 Number Transfer on Service Termination.
Upon the termination of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:
* such new service provider is able to accept such number;
* your account has been properly terminated;
* your account is completely current, including payment for all charges and applicable termination fees; and
* you request the transfer upon terminating your account.
2.12 Service Distinctions.
The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
2.13 Ownership and Risk of Loss.
You will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.
2.14 No 0+ or Operator Assisted Calling.
May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2.15 Directory Listing.
The phone numbers you obtain from us may be listed in telephone directories and is determined on a per Service basis. Phone numbers transferred from your local phone company will retain the original listing. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
2.16 Incompatibility with Other Services.
(a) Home Security Systems. The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently is not compatible with prior versions of the AOL broadband service and there may be other services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
3. CHARGES; PAYMENTS; TAXES; TERMINATION
When the service is activated, you must provide us with a valid email address and a credit or debit card number from a card issuer that we accept. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including but not limited to:
* activation fees;
* monthly Service fees;
* international usage charges;
* equipment purchases;
* termination fees; and
* shipping and handling charges.
The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $50.
3.2 Billing Disputes.
You must notify us in writing within seven days after receiving your credit or debit card statement if you dispute any Network Designs charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:
ATTN: 3NG BILLING DEPT.
9015 NW 94th Ave Floor 2
Doral, Fl. 33172
3.3 Payment and Collection.
(a) Payment. We only accept payment by credit or debit card. Your subscription to the Service authorizes us to charge your credit or debit card. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card, whereupon we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate your Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.
(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
3.4 Termination; Discontinuance of Service.
We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus the termination and hardware fee, if applicable, all of which will immediately become due and payable.
You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
3.6 Termination Fee.
For customers on an annual term, you will be charged 75% of the remaining value of your agreement. For customers on a monthly term, you will be charged a termination fee of $49.99 per voice line if your Service is terminated for any reason during the first twelve months following the activation of your Service.
Non-recurring charge to you for cancelled LNP (Number porting) requests.
Cancellations with more than 48 hours before FOC will be billed at $20.00 per telephone number.
Cancellations with less than 48 hours before FOC will be billed at $75.00 per telephone number.
Customer initiated snap-backs will be billed $350.00 per telephone number.
3.7 Money Back Guarantee; Limitations and Conditions.
(a) Residential and Small Business Customers. We offer a 30-day money back guarantee from the date of activation of your Service (different periods apply for Retail Customers depending on the applicable offer details contained in the advertising or online content of the retail store or dealer that sold the Retail Customer the Equipment). The money back guarantee applies only to the first-ordered line per account, not to additional or secondary lines. We will refund the activation fee, the monthly charge for the first month of Service, shipping charges and the termination fee provided that: you have not exceeded 250 minutes of usage; you cancel your Service within the applicable period; you return the Device to us in original condition, normal wear and tear excluded, within 14 days after the cancellation of your Service; the Device is returned in the original packaging with the UPC or bar code intact and is accompanied by all components, accessories, parts, manuals, registration cards and other documentation; and prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at firstname.lastname@example.org or (530) 223-3479. Federal excise taxes and any other applicable taxes cannot be refunded. You will be responsible for any charges for international usage, payphone calls to Network Designs toll free numbers and directory assistance. We reserve the right to terminate or revoke this money back guarantee at any time, without prior notice.
(b) Business Plus Money Back Guarantee. We offer Business Plus subscribers a 30-day money back guarantee from the date of activation of Service. The money back guarantee applies only to the first-ordered service package, not to additional or secondary orders. We will refund the activation fee and monthly charge for first month of Service provided that: you have not exceeded 1,500 minutes of usage; and you may cancel your Service within the 30-day period. Federal excise taxes and any other applicable taxes cannot be refunded. You will remain responsible for any charges for international usage, payphone calls to Network Designs toll free numbers and directory assistance. We reserve the right to terminate or revoke this money back guarantee at any time, without prior notice.
3.8 Payphone Charges.
If you use our “Toll Free Plus” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.
3.9 Charges for Directory Calls (411).
We will charge you $0.99 for each call made to Network Designs directory assistance.
3.9 Charges for International Calls.
International calling is not enabled by default. You will need to contact Network Designs by phone, email, or online portal, and request that it is enabled for your account. Once, this is enabled, then you can add funds through the portal. These calls are prepaid, and your credit card will be charged when clicking the ‘Submit’ button.
4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
4.1 Limitation of Liability.
We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
* an act or omission of an underlying carrier, service provider, vendor or other third party;
* equipment, network or facility failure;
* equipment, network or facility upgrade or modification;
* force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
* equipment, network or facility shortage;
* equipment or facility relocation;
* service, equipment, network or facility failure caused by the loss of power to you;
* outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
* any act or omission by you or any person using the Service or Device provided to you; or
* any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.
4.2 Disclaimer of Liability for Damages.
IN NO EVENT WILL Network Designs, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
4.3 Indemnification and Survival.
(a) Indemnification. You shall defend, indemnify, and hold harmless Network Designs, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
4.4 No Warranties on Service.
WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER Network Designs NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF Network Designs’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY Network Designs OR Network Designs’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
4.5 Device Warranties.
(a) Limited Warranty. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.
(c) Retail Customer Limited Warranty. For Retail Customers only, we will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Retail Customer limited warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. A Retail Customer’s sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 2.10. Retail Customer must include with the returned Device a letter stating that the Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. The Retail Customer limited warranty will also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein.
(d) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
4.6 No Third Party Beneficiaries.
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.
5.1 Governing Law.
The Agreement and the relationship between you and us is governed by the laws of the State of Florida without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the state of Florida and waive any objection as to venue or inconvenient forum.
5.2 Mandatory Arbitration and No Jury Trial.
Any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Miami, Florida. The arbitrator’s decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, Florida.
5.3 No Waiver of Rights.
Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
5.4 Entire Agreement.
This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and Network Designs and govern the use of the Service by you, members of your household, guests and employees. This Agreement supersedes any prior agreements between you and Network Designs and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
6. FUTURE CHANGES TO THIS AGREEMENT
We may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on http://www.reddingtech.com/termsandconditions.html. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.
Data Terms of Service
SERVICE. Network Designs will provide you with dedicated access to the Internet, subject to the terms and conditions set forth herein (the “Service”). Speeds on the various plans will vary depending on many factors, including but not limited to distance from the local service provider’s central office, internet congestion, upload and download speed of your destination server. Service is provided in conjunction with a circuit provider, which may be your local phone company. The circuit provider retains the right to cancel the service before or after installation at their sole discretion at any time. Although pre-qualification provides a good measure of certainty regarding service availability, it is not a guarantee of service. We recommend waiting until service is installed and tested for a few weeks before assuming that service will be available and of good quality.
PROVIDERS. The application of certain terms herein vary depending on whether the phone line or circuit for a Subscriber is AT&T (an “AT&T Subscriber”), Verizon (a “Verizon Subscriber”), or Covad (a “Covad Subscriber”). Network Designs breaks out each phone line or circuit for a Subscriber by Networks. A Subscriber in “Network 1” or “Network 2” is a AT&T Subscriber, a Subscriber in “Network 3” is a Verizon Subscriber, and a Subscriber in “Network 4” is a Covad Subscriber, and a Subscriber in “Network 6” is a Qwest Subscriber.
SUBSCRIBER INFORMATION. You acknowledge that you are eighteen (18) years of age or older, and you agree that you have the legal authority to enter into this Agreement and affirm that the information you supply to us is correct and complete. You understand that Network Designs relies on the information you supply and that providing false or incorrect information may result in Service delays or the suspension or termination of your Service. You agree to promptly notify Network Designs whenever your personal or billing information changes, including without limitation, your name, address, telephone number, and credit card number and expiration date, if applicable.
GENERAL PRICING AND FEES. Network Designss prices are shown in the Pricing Schedule and you will be charged based on the Plan and Options you select during the ordering process. A Subscriber who selects a “Month to Month” Plan (a “Monthly Subscriber”) will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Monthly Subscriber at the time of order. However, such monthly prices are subject at any time to increase to Network Designss then current prices. A Subscriber who selects a “1 Year Contract” Plan (an “Annual Subscriber”) will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Annual Subscriber at the time of order. Such monthly prices for Annual Subscribers are guaranteed for the initial twelve (12) month Term. Following the initial twelve (12) month Term, an Annual Subscriber will automatically become a Monthly Subscriber and will pay Network Designss then current prices, subject to increase as described above, unless such Subscriber registers for a new “1 Year Contract” Plan at such time, to the extent available. An Annual Subscriber may upgrade or downgrade their DSL Service to a different speed plan during their initial (12) month Term. Any such Annual Subscriber so upgrading or downgrading may, at the time of upgrade or downgrade, select either (a) a “Month to Month” rate, in which case such Subscriber shall continue to be subject to all of the terms and conditions of this Agreement for the remainder of such Subscriber’s initial twelve (12) month Term and following such initial Term, such Subscriber will automatically become a Monthly Subscriber and will pay Network Designss then current prices, subject to increase as described above, unless such Subscriber registers for a new “1 Year Contract” Plan at such time, to the extent available or (b) a “1 Year Contract” Plan, in which case such Subscriber’s initial twelve (12) month Term shall restart on the date of such upgrade, provided that such Subscriber shall continue to be subject to all of the terms and conditions of this Agreement for the period prior to such upgrade or downgrade. In addition to regular fees set forth in the Pricing Schedule, you agree to pay all other charges, including but not limited to applicable taxes, network usage and surcharges, including charges imposed against Network Designs by third party providers that it passes on to you. The taxes and surcharges may vary on a monthly basis; any variations will be reflected in your monthly charge. The current Supplier Surcharge Recovery is one dollar and ninety-three cents ($1.93) for all clients. Texas Residents are also subject to an Internet Tax on all monthly services of eight and three-tenths percent (8.3%) after the first twenty-five dollars ($25.00). When possible, Network Designs will break out such charges on the monthly invoice. You may change your plan speed at any time. A fifty dollar ($50.00) downgrade fee will apply to any AT&T Subscriber, Verizon Subscriber, or Qwest Subscriber who downgrades their speed. A ninety-nine dollar ($99.00) fee will apply to any Covad Subscriber who upgrades or downgrades their speed. A fifty dollar ($50.00) fee will apply to any Subscriber who switches from a Static IP to a Dynamic IP. Promotional packages are only available to first time Network Designs Subscribers.
SETUP AND ACTIVATION FEES. Upon entering into this Agreement, a non-refundable setup fee will apply to all Monthly Subscribers. Upon entering into this Agreement, a non-refundable activation fee of ninety nine dollars ($99.00) for Annual Subscribers and one hundred forty nine dollars for Monthly Subscribers will apply to all Covad Subscribers.
PAYMENT, LATE FEES AND OTHER CHARGES. There is no money back guarantee for any Services unless specifically written in a special one time promotion. There are no pro-rated refunds for unused time. Unless otherwise stated in the Pricing Schedule, Network Designs will invoice Subscribers monthly. Invoices will be on a full calendar month basis. New Subscribers who enter into this Agreement after the first day of any month will be billed on a pro-rated basis for their first month of Service and thereafter on a full calendar month basis. Subscribers agree to pay within ten (10) days from receipt of an invoice. If a Subscriber does not pay an invoice within such ten (10) day period, Network Designs may deny, discontinue or otherwise suspend such Subscriber’s Service until full payment is received. Subscribers are responsible for paying monthly subscription fees while Services are suspended due to non-payment. All accounts suspended for non-payment are subject to a ten dollar ($10.00) re-activation fee. Subscribers are responsible for any disputed charges beyond sixty (60) days from the date of the charge. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges. Subscribers must pay a twenty-five dollar ($25.00) service charge on all returned checks, disputed credit cards, and credit card chargebacks. Past due accounts will accrue a monthly charge of one and one-half percent (1.5%) of the past due balance or one dollar ($1.00), whichever is greater.
EQUIPMENT. Network Designs will provide an AT&T, Verizon, Covad or Qwest Subscriber with the free use of a modem (California use tax is required in California). Subscriber must return to Network Designs the complete modem kit in a useable condition at Subscriber’s expense within thirty (30) days of termination of the Service by Subscriber or Network Designs. Subscriber must pay ninety-nine dollars and ninety cents ($99.90) plus applicable taxes to purchase any modem Subscriber does not return to Network Designs in working condition within such thirty (30) day period.
SOFTWARE. In connection with our provision of the Service, we may provide to you, via download, CD, other media, or other delivery method, the use of certain software which is owned by Network Designs or its third party licensors, providers and suppliers, and which may be provided free or for a fee, including client and/or network security software (the “Software”). We reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of or for use with the Service and for no other purpose. The Software may be accompanied by an end user license agreement from Network Designs or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement
TERM. This Agreement is effective upon Subscriber’s acceptance as provided above and shall continue until terminated by Subscriber or Network Designs pursuant to this Agreement. Each Monthly Subscriber is on automatically renewing monthly terms beginning on the first day of each calendar month (or, for the first monthly term, the full or partial month beginning with Subscriber’s acceptance as provided above). An Annual Subscriber is on a twelve (12) month term beginning on the day such Subscriber accepts the terms of this Agreement as provided above. An Annual Subscriber who upgrades or downgrades to a “Month to Month” rate during their initial twelve (12) month Term pursuant to section 4, shall continue to be on the same twelve (12) month Term. An Annual Subscriber who upgrades or downgrades to a “1 Year Contract” Plan during their initial twelve (12) month Term pursuant to section 4, shall begin a new initial twelve (12) month Term on the date of such upgrade. Following the initial twelve (12) month Term, an Annual Subscriber will automatically become a Monthly Subscriber.
TERMINATION BY SUBSCRIBER. Subscriber may terminate this Agreement at any time for any reason by providing Network Designs with a thirty (30) day written notice in the form of a valid written termination request and paying all fees and other charges accrued or otherwise payable under the terms of this Agreement. Such thirty (30) day period begins on the date on which Network Designs receives Subscriber’s valid written termination request. A Monthly Subscriber’s termination will be effective on the later of (a) the end of last day of the calendar month during which such thirty (30) day period ends (e.g., a valid written termination request received by Network Designs any time during January will result in termination effective at the end of February) or (b) the end of last day of the calendar month requested by the Monthly Subscriber. An Annual Subscriber’s termination, if received by Network Designs at least thirty (30) days prior to the end of their twelve (12) month term, will be effective at the end of such twelve (12) month term, unless such Annual Subscriber requests an earlier date. Notwithstanding the foregoing provisions of this section 11, if Network Designs receives a written termination request from a Subscriber, Network Designs may, in its sole discretion, terminate this Agreement on a date earlier than the date otherwise prescribed by this section 11. If this Agreement is terminated prior to the end of an Annual Subscriber’s twelve (12) month term, such Annual Subscriber must pay, in addition to all fees and other charges accrued or otherwise payable under the terms of this Agreement, an early termination fee in the amount of two hundred and fifty dollars ($250.00) (“Early Termination Fee”). In the event an Annual Subscriber terminates this Agreement prior to the end of their twelve (12) month term because of a service-related problem not caused by the Subscriber that Network Designs has failed to cure after what Network Designs determines in its sole discretion to be a reasonable amount of time based on the circumstances, the Subscriber is entitled to a waiver of the Early Termination Fee. For such waiver to apply, the reason for the waiver stated above must have occurred before termination and the Subscriber must report such reason for termination to Network Designs in its valid written termination request. Network Designs must in turn be given the opportunity to resolve the problem and the Subscriber must be willing to troubleshoot with Network Designs as well as be available for and authorize the dispatch of a network provider technician. Network Designs does not monitor Subscriber accounts for activity, and absence of activity or cancellation of a Subscriber’s telephone number will never constitute a termination request. A written termination request is valid only if it includes your DSL phone number, main username, date you wish the service to be cancelled and the reason for canceling and is submitted via email to email@example.com.
TERMINATION BY Network Designs. If, in Network Designs’s sole discretion, (a) a Subscriber is in breach of any of the terms of this Agreement (including but not limited to the Acceptable Use Policy); (b) a Subscriber’s use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Network Designss servers or other equipment, or the use and enjoyment of other users; (c) a Subscriber acts in an abusive or menacing manner when dealing with Network Designs’s technical support staff, customer service staff or any other Network Designs employees or representatives; (d) Network Designs receives an order from a court to terminate a Subscriber’s Service; or (e) Network Designs for any reason ceases to offer the Service, then Network Designs at its sole election may terminate or suspend such Subscriber’s Service immediately without notice. For a termination in accordance with this paragraph, Subscriber remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the Early Termination Fee and equipment charges set forth herein, if applicable.
TERMINATED SUBSCRIBER. Network Designs, in its sole discretion may refuse to accept a Subscriber’s application for renewal or resubscription following a termination or suspension of such Subscriber’s use of the Service. If a Subscriber’s Service is terminated for any reason, such Subscriber, upon approval by Network Designs, may enter into a new Agreement and must pay a new setup or activation fee as provided above. Upon the termination of a Subscriber’s use of the Service, Network Designs has the right to immediately delete all data, files and other information stored in or for the Subscriber’s account without further notice to the Subscriber.
SPEED OF SERVICE. Speed rate depends upon the Subscriber’s Plan and line capabilities (e.g., loop length, line condition, gauge of copper wire and Phone Company provisioning). The maximum speed for ADSL is stated under optimal conditions and may vary significantly. Speeds are subject to a 20% overhead (e.g., 768k stated speed = 768k times 80% throughput = 614k actual speed). Minimum speeds are offered for a AT&T Subscriber and are based on the package’s listed minimum speed minus 20% overhead (e.g., 384-1500k/128-256k stated speed = 384k times 80% throughput = 307k actual speed.) Actual speeds that fit the 80% of the minimum throughput criteria are considered acceptable. A Verizon, Covad or Qwest Subscriber has no minimum speeds. All Services are provided on an AS IS basis and throughput speeds are not guaranteed.
EASY ISP CHANGE FOR AT&T SUBSCRIBERS. Completing the AT&T ISP change form authorizes AT&T to terminate DSL service with your current Internet service provider and further authorizes AT&T to establish DSL service with Network Designs. Opting to use the ISP change process will reduce or eliminate the amount of downtime that you may experience when switching from your current Internet service provider to Network Designs. Most Subscribers experience less than twenty four (24) hours of downtime during this process but overall downtime can be between zero (0) and four (4) business days. You are responsible, and you hold Network Designs harmless, for any and all early termination, cancellation or other fees, charges or obligations resulting from your change of Internet service provider.
INSTALLATION. Unless otherwise requested by the Subscriber, the first available installation date will be provided. Any installation date provided to a Subscriber is only an estimate and is no way a guaranteed installation date. Subscribers understand and agree that circumstances may arise which delay a Subscribers estimated installation date and any such delay will not be considered a breach of this Agreement by Network Designs. Payment for your initial month’s service (and if applicable: setup fees, installation fees, and equipment) must be received prior to your turn-on date in order for your setup instructions and IP information to be released to you. If your payment is not received by your turn-on date, you will be responsible for the service fees even though your IP and setup information has not been provided to you. A Subscriber’s computer must be equipped with an Ethernet Network Interface (NIC) card for proper DSL operation. Network Designs does not include a PCI NIC card as part of the modem package.
SELF-INSTALLATION. Self-installation allows the Subscriber to install their DSL equipment. This option provides service to the minimum point of entry (“MPOE”) of your phone service. Your MPOE is normally located outside your building. Inside wiring and inside wiring repair is not included with this option. If inside wiring or inside wiring repair is required, you must contract with your circuit provider or other professional for such work at your own cost. Faulty inside wiring is not grounds for cancellation of your contract. Multi-line phones, phone systems, alarm system or special phone configuration may require a professional installation or special multi-line phone filters. Network Designs does not provide nor is responsible for any special equipment including but not limited to a POTS splitter or multi-line phone filters. A required professional installation, need for special equipment in order to establish a connection or an incompatible phone line or phone system is not grounds for cancellation of your contract. A sixty dollar ($60.00) transfer fee will apply to any AT&T or Verizon Subscriber and a one hundred dollar ($100.00) transfer fee will apply to any Covad or Qwest Subscriber who must transfer their service to a standard phone line due to an incompatible phone line or phone system.
PROFESSIONAL INSTALLATION. Subscribers may request a Professional Installation for a one-time fee of two hundred dollars ($200.00) in the case of an AT&T Subscriber, and one hundred forty-nine dollars ($149.00) in the case of a Qwest Subscriber. The Professional Installation includes setup of Subscriber’s DSL modem only, including inside wiring if needed. It does not include installation of Subscriber’s network card or setup of Subscriber’s computer. Professional Installations are not available to Verizon Subscribers. If a Verizon Subscriber requires a Professional Installation it is the Subscriber’s responsibility to hire a third party technician.
SUBSCRIBER SUPPLIED MODEM. If a Subscriber supplies their own modem, the Subscriber assumes the risk of service incompatibility. Incompatible Subscriber modems or other Subscriber equipment shall not relieve Subscribers from any of their obligations under this Agreement while troubleshooting defective or incompatible equipment even if Subscriber’s Service is down during such periods of troubleshooting.
SUBSCRIBER PREMISE EQUIPMENT. The PPPoE connection will allow one computer to use your DSL connection. Static IP accounts include a DSL bridge which can be used ahead of one computer or router provided by you. Network Designs does not provide support for router(s). All packages include basic instructions and support.
TECHNICAL SUPPORT. Network Designs assumes that the Subscriber has a basic understanding of their computer. Network Designs will not train you in basic computer skills (e.g., deleting files or creating directories). Technical support is intended to facilitate the setup of your properly functioning computer system for access to our services. Your computer must recognize your modem or network card, and receive a dial tone or network link connectivity before any technical support will be dispensed. Our technical support staff is not trained to, has no obligation to and will not assist you in installing and/or troubleshooting modems, network cards, routers, complex network configurations or telephone lines, neither will they provide any technical assistance or support for any third party Software. Network Designs is not responsible for connection problems due to a computer that is infected with viruses, spyware or malware. It is the Subscriber’s responsibility to initiate and be available for technical support during Network Designs’s hours of operation. If a Subscriber wishes to utilize Network Designs’s technical support, the Subscriber must be available to help troubleshoot the connection or computer setup. Network Designs does not provide on-site technical support. However phone company technicians may be dispatched to troubleshoot the circuit with a Subscriber’s approval. The Subscriber is solely responsible for all charges involved with dispatching a technician to troubleshoot their line. For AT&T Subscribers and Verizon Subscribers, charges are currently sixty dollars ($60.00) per visit or truck roll which includes one-half (1/2) hour of work and thirty-five dollars ($35.00) for each additional one-half (1/2) hour of work. For Covad Subscribers, charges are currently ($175.00) per visit which includes one-half (1/2) hour of work. For Qwest Subscribers, charges are currently ($100.00) per visit which includes one-half (1/2) hour of work. All such charges are subject to change with no prior notice. Subscriber understands and agrees that any such technician or other person dispatched to troubleshoot Subscriber’s line is not an employee or agent of Network Designs and Network Designs is not liable for any damages, costs or expenses relating to or arising from any acts, errors or omissions by any such technician or other person.
MAINTAINING CURRENT TELEPHONE SERVICE. DSL service shares the Subscriber’s current telephone line and service. It is the Subscriber’s sole responsibility to maintain the phone line and phone number of original installation in continuous working order with the local phone company in order to receive the Services. A Subscriber who disconnects telephone service remains responsible for monthly service fees, Early Termination Fees and all other fees, charges and other obligations provided for in this Agreement. A sixty dollar ($60.00) transfer fee will apply to any AT&T or Verizon Subscriber and a one hundred dollar ($100.00) transfer fee will apply to any Covad or Qwest Subscriber who changes their current telephone service. This includes but is not limited to change of phone number, change of phone line or change of service location. A change in phone service will result in downtime while service is reestablished.
IP ADDRESSES. Each Subscriber is allowed one (1) computer device per IP address. Upon expiration, cancellation or termination of this Agreement, a Subscriber must relinquish any IP addresses or address blocks assigned to them by Network Designs. Network Designs may choose to assign any Subscriber a new IP address at any time.
ACCEPTABLE USE. Subscriber agrees to use the DSL Service in accordance with Network Designss acceptable use policy (“Acceptable Use Policy”) published at http://www.reddingtech.com/. Network Designs reserves the right to make changes to the Acceptable Use Policy without notice.
WARRANTIES AND LIMITATIONS OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT AND SOFTWARE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY Network Designs (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). Network Designs (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY Network Designs OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF Network Designs TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
Network Designs DOES NOT WARRANT OR GUARANTEE THAT DSL SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF Network Designs HAS ACCEPTED YOUR ORDER FOR DSL SERVICE. THE PROVISIONING OF DSL SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR Network Designs SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY Network Designs -PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
Network Designs DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY Network Designs WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. Network Designs SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. Network Designs MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. Network Designs MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL Network Designs (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF Network Designs HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 30 ALSO APPLY TO Network DesignsS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH Network Designs (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), Network DesignsS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
Network Designs RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS Network Designs (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEEMNT OR SUBJECTING Network Designs (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIOINAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF Network Designs (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
LINKS. Network Designs or third parties may provide links to websites other than http://www.reddingtech.com or other resources. Because Network Designs has no control over such websites and resources, you acknowledge and agree that Network Designs is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that Network Designs will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
INDEMNIFICATION. You agree to defend, indemnify and hold harmless Network Designs from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, the Software, the Equipment or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment or the Internet.
REVISIONS. Network Designs may revise the terms and conditions of this Agreement from time to time (including any of the policies which may be applicable to usage of the Service) by posting such revisions to our website at http://www.reddingtech.com/. Subscribers agree to visit this page and the links thereon periodically to be aware of and review any such revisions. Increases to the monthly price of the Service for Monthly Subscribers shall be effective beginning with the calendar month following the calendar month in which such increases are posted. Revisions to any other terms and conditions shall be effective upon posting. By continuing to use the Service after revisions are in effect, a Subscriber accepts and agrees to the revisions and to abide by them. Any Subscriber who does not agree to the revision(s) must terminate their Service immediately.
ASSIGNMENT. You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. Network Designs may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
CHOICE OF LAW. You and Network Designs agree that the substantive laws of the State of California, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND Network Designs CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, including California laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
COMPLIANCE. Network Designss failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
THINGS BEYOND Network DesignsS CONTROL. Network Designs will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
ENTIRE AGREEMENT. This Agreement, including all policies posted on Network Designss website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and Network Designs with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
NOTICE. Notices by Network Designs to you shall be deemed given: (a) when sent to your Network Designs email address, (b) when deposited in the United States mail addressed to you at the address you have specified in your account options or (c) when hand delivered to your home, as applicable.
SURVIVAL. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.