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Terms of Service - Personal DSL
1. Installation and Service:
a. Terms: QX.Net shall install or arrange installation
of products and services as set forth on the QX.Net DSL
Pricing Page. All installation fees, hardware charges and
recurring service fees for the first indicated period on your
first statement are due and must be paid on receipt. Installation
is deemed to be complete when QX.Net (or its representative)
is able to ping a computer at Customer's location through the DSL
connection, or the customer has verified the DSL line is operational.
Customer shall provide all necessary preparations required to
ensure proper installation, maintenance and operation of the
circuit; and will provide QX.Net (and its representatives and
suppliers) all reasonable access to Customer's premises and
telephone equipment to perform any acts pursuant to this
Agreement. Customer is responsible for costs of wiring beyond
the point of demarcation (the "demarc") as outlined in 1(b),
and for relocation of services once installed.
b. Inside Wiring: The demarc will be determined in the course of
installation; any wiring performed beyond this point is
considered "inside wiring." QX.Net (or its representative) will
perform inside wiring up to 100 feet, physical conditions and
building owner/management permitting. In some
cases, Customer will need to procure special permission,
insurance, and/or a 3rd-party contractor to complete inside
wiring; any fees and costs thereof are separate from QX.Net fees
and charges, and QX.Net will not provide any credit,
reimbursement, or discount for them.
c. Appointments: QX.Net DSL installation may require a,
or several appointments, wherein a technician comes to the
Customer's premises. QX.Net will exercise reasonable effort to
arrange these appointments when convenient for the Customer;
however, appointment dates are often arbitrarily assigned by
contractors. Customer is required to be present for all
appointments or else pay a "no access" fee. This fee will be
waived if: (i) QX.Net (or its representative) fails to inform
Customer of the upcoming appointment more than 24 hours before
8 AM of the appointment date; or (ii) Customer informs QX.Net by
phone or email, prior to 2 PM on the day before the
scheduled appointment, that Customer will not be present; or
(iii) Customer is available, but the contractor declares "no
access" and QX.Net determines to its satisfaction that the
contractor did not make a reasonable attempt to gain access.
d. Fulfillment and Cancellation: By ordering
QX.Net DSL Service, Customer agrees to allow QX.Net
a reasonable time to fulfill the order. QX.Net reserves the
right to charge a Cancellation Fee (not to exceed $300) on
orders cancelled without reasonable cause.
Upon cancellation, Customer is responsible for the return (to
QX.Net or a third party of QX.Net's choosing) of all hardware,
software, and/or other material goods provided in accordance
with this Agreement. Any such goods not returned within thirty
(30) days of cancellation will be billed to the Customer at
full price.
2. Term of Agreement:
This Agreement shall have a term of one year, unless a
different term is agreed upon in writing or set forth on the QX.Net
DSL Pricing Page. This term shall commence on the date of
installation completion and shall thereafter automatically renew
for successive equivalent or monthly terms as applicable, unless
terminated as set forth herein or unless written notice of
non-renewal by either party is delivered to the other party at
least thirty (30) days prior to the end of the then current term.
3. Moving:
If the Customer moves during the term of this Agreement and
would like to relocate the Service, Customer must place a
relocation request with QX.Net as soon as possible. This request
must contain the requested date of service termination, plus the
address and phone number of the new location if possible and the
prospective move-in date. Upon receiving a written or email
relocation request from Customer, QX.Net will suspend all monthly
fees from the requested termination date until service relocation
is completed. QX.Net will bill Customer for a new installation fee,
including applicable discounts, and Customer is subject to all
terms and conditions in part 1 of this Agreement as regards the
installation process at Customer's new premises. Billing cycle and
service term will recommence upon activation of QX.Net DSL
at the new location. If QX.Net and its agents are unable to provide
service to Customer's new location, the Agreement shall terminate
and applicable Early Termination fees (not to exceed $300) shall be
applied. If QX.Net has not yet received sufficient information from
Customer to process the relocation order thirty (30) days after
service termination, this Agreement is considered to be broken and
Early Termination fees will apply.
4. Payment and Billing:
Rates are as set forth on the QX.Net DSL price list on
the date the order is placed. Billing will commence on the date
Customer's DSL connection to QX.Net is activated. Customer may
prepay the charges for the yearly term (or other current term
duration) or pay the charges on a monthly or quarterly
basis. Unless otherwise agreed by QX.Net and Customer in writing,
Customer's billing cycle will be determined by the initial payment
amount as follows: If the initial payment covers a full year
(inclusive of applicable discounts), the billing cycle will equal
one year. If the initial payment covers less than one year, the
billing cycle will equal one month. Initial charges shall be
invoiced in advance, and are due on receipt of customers first statement.
Customer's billing cycle will be prorated to the 1st of the month from
the date of activation
and subsequent payments will be due on the date specified each billing
cycle. Charges more than 5 days overdue will subject Customer to
interruption of service. Such interruption does not relieve
Customer from the obligation to pay the recurring charge, and no
credit will be given for interruptions of service due to late
payment. QX.Net reserves the right to levy service charges and/or
collection fees on accounts more than 30 days overdue.
5. Obligations of Customer:
Customer shall use QX.Net services only for lawful purposes.
Customer shall not transmit, retransmit, or store material in
violation of any federal, state, or local law (statutory or common)
or regulation, including without limitation, laws or regulations
governing libel or slander, obscenity, threats or harassment and
infringement or other violation of trademark, copyright, trade
secret or proprietary rights. Customer is responsible for obeying
all of QX.Net's
Rules of Use, except where superceded by this agreement. Upon
notice from QX.Net, Customer shall promptly eliminate any hazard,
interference or service obstruction that hardware or software not
provided by QX.Net is causing, or is likely to cause. QX.Net will, at
its option, troubleshoot problems caused by such hardware or
software at Customer's request. Such services are billed at rates
in effect when such services are requested.
6. Rights and Obligations of QX.Net:
QX.Net shall install the products and services set forth on the
QX.Net DSL Pricing Page. Stated bandwidths apply only to the
circuit between Customer's Equipment and QX.Net. QX.Net warrants that
on the date of installation, the products and services shall be in
good working order and conform to order specifications. THE
FOREGOING WARRANTY IN IS LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. QX.Net makes
no other warranty, either express or implied, in regard to any or
all of the following: (a) information, products or services
provided to the Customer as a result of this Agreement; (b) the
availability, accuracy or content of information, products or
materials sent or received via services provided by QX.Net; (c)
service interruptions or network downtime. Services shall be
provided on a "best efforts" basis, but if service is completely
unavailable for a period exceeding eight (8) hours in a single day
for reasons solely attributable to QX.Net, Customer shall be
credited on a pro-rata basis for each such day. Applicable credits
and refunds shall be limited to recurring monthly or yearly service
fees ONLY for periods when service is unavailable; setup fees,
hardware cost, and other non-recurring fees are non-refundable.
QX.Net shall not be liable (either in contract or tort), for losses
or damages arising from unauthorized access, alteration, theft, or
destruction of the Customer's data files, programs, or information,
which is caused by accident or any other means, whether or not such
access occurs as a result of any act or omission by QX.Net. QX.Net
shall not be liable for any damages suffered by Customer for any
reason, including (but not limited to), loss of data resulting from
delays, nondeliveries, wrong deliveries, and any service
interruptions whether caused by the acts and omissions of QX.Net and
its employees or of the Customer or any other party. QX.Net shall
have no liability with respect to the content of any information
passing through its network.
7. Limitation of Liability.
In the event that the products or services
fail to conform in any manner to this Agreement or any
specifications of QX.Net, the Customer's sole remedy and
QX.Net's sole obligation shall be the repair or replacement of
the Equipment. IN NO EVENT WILL QX.Net BE LIABLE TO THE CUSTOMER
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF QX.Net HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. QX.Net SHALL NOT BE
LIABLE TO THE CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF REVENUE; LOSS OF CUSTOMERS, CLIENTS OR MEMBERS;
LOSS OF GOODWILL; OR LOSS OF PROFITS ARISING IN ANY MANNER FROM
THIS AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE OF ANY
OBLIGATIONS UNDER THIS AGREEMENT. Any cause of action arising out
of the provision of QX.Net products or services shall be
instituted within one year after the claim has arisen or such cause
of action be barred.
8. Termination of Services:
QX.Net may terminate this Agreement upon
default of Customer's payment or other obligations under this
Agreement. Customer may terminate this Agreement if circuit is
completely unavailable for a total of one hundred sixty-eight (168)
hours in a row for reasons solely attributable to QX.Net, its
representatives and contractors. This will be considered
termination with cause. In the event of termination with cause,
the applicable Early Termination Fee shall be waived. If Customer
terminates this Agreement for any reason other than termination
with cause, Customer shall pay an Early Termination Fee as
specified on the Personal DSL Order Form. Customers who have
prepaid for a period beyond their requested termination date will
receive a credit equal to the value of this period. This credit
will be applied toward the Early Termination Fee, and billed if
applicable for any remaining balance due. Any remaining credit
balance will be refunded to the Customer.
9. Nature of Information.
The Customer has been advised and
acknowledges that the Internet may contain information, materials,
and language that may be deemed adult in nature and inappropriate
or offensive. The Customer is further advised that there is no
effective way to limit access to certain materials on the
Internet. The Customer is responsible for all information received,
transmitted, and/or stored by the Customer and the Customer
releases QX.Net from and agrees to indemnify QX.Net against any and
all claims, losses or expenses relating to such information,
materials and language. This indemnification shall survive any
termination of this Agreement.
10. Indemnification.
The Customer shall indemnify and hold QX.Net
harmless from and against any and all lawsuits, claims, damages,
liabilities or expenses (including reasonable attorney's fees in
connection with the investigation, defense, or settling of any such
loss, claim, damage, action or proceeding) related to or arising
out of the Customer's use of the products or services provided by
QX.Net. This indemnification provision shall survive any
termination of this Agreement.
11. Proprietary Rights.
QX.Net grants Customer a non-exclusive,
non-transferable license to use the products and services provided
hereunder. Title and property rights, including all intellectual
property rights to such products and services, are and shall
remain with QX.Net, whether or not they are embedded in any
product. Customer recognizes that the products and services used
hereunder constitute valuable trade secrets of QX.Net. The Customer
shall use its best efforts to protect and keep confidential any
and all products and services used by it and shall not attempt to
copy, examine, in any way alter, or reengineer, reverse engineer,
tamper with, or otherwise misuse such products and services.
12. Transfer and Assignment.
Neither party, other than for collateral
purposes, may sell, assign or transfer this Agreement without the
prior written consent of the other party, except that QX.Net may
assign this Agreement to any of its affiliates (or any person who
acquires substantially all of the assets of QX.Net). Customer may
not resell IP accounts from a QX.Net-provided leased line,
including but not limited to, Serial Line Internet Protocol (SLIP)
or Point-to Point Protocol (PPP) dial-up accounts, Point-to-Point
Leased Lines, Frame Relay circuits, World Wide Web hosting
services, or any TCP/IP transmission that utilizes resources on
the QX.Net network without explicit written permission of QX.Net.
13. Force Majeure.
In the event QX.Net is prevented or hindered from
complying with any of the requirements of this Agreement by reason
of war, riots, embargoes, strikes or by operation of force majeure
or any federal or state law or any order, rule or regulation of
governmental authority, then, while so prevented, QX.Net's
obligation to comply with such requirement shall be suspended and
QX.Net shall not be liable for failure to comply therewith. Should
such occurrences continue for more than thirty (30) days, either
QX.Net or the Customer may terminate this Agreement without further
liability to the other.
14. Entire Agreement.
This Agreement sets forth the entire agreement
of the parties and may not be modified except by written amendment
executed by each of the parties. In the event any provision of this
Agreement is determined to be invalid, all other provisions shall
remain in full force and effect.
15. Choice of Law.
This Agreement shall be construed according to, and
be governed by, the laws of the State of Kentucky. USE OF QX.Net
DSL SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS AND
CONDITIONS.
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