Customers using NewWave’s High Speed Internet Service agree to the following:
“Computer” means Customer’s personal computer that will be used to access NewWave’s High Speed Internet Service (“Service”). A Computer will need to meet certain requirements that will be specified by NewWave.
“Equipment” means the cable modem and any other equipment, if necessary, to be installed at a Customer’s premises.
“Software” means the computer software licensed for the limited use described in this Agreement by NewWave to Customer to enable a Computer to access the Service through the Equipment, as described in Section 4a. If “Software” is installed on more than one Computer that number must be specified in this Agreement and additional charges will apply.
a. This Agreement sets forth the terms and conditions which apply to the use of the Service by Customer. No representation, warranty, term or condition, other than as specifically set forth in this Agreement, shall be binding on the Parties.
b. Customer is responsible for all use of Customer’s Account in all circumstances including under any screen name or Password by any person. Customer will ensure that all use of Customer’s Account complies fully with this Agreement. Customer shall be responsible for protecting the confidentially of Customer’s passwords. Customer shall also be responsible for notifying NewWave of any changes in Account information (e.g. address, phone, etc.).
c. Customer represents and warrants that he or she is at least 18 years of age. Customer may, at his/her discretion, permit minors to use the Service under adult supervision. Customer is solely responsible for monitoring all material that is accessed by minors using the Customer’s account.
d. Either NewWave or Customer may terminate Service at any time for any reason. If Customer has accepted a special pricing package, some termination charges may apply. Customers may terminate their Accounts upon sending written notice to NewWave via E-mail, fax or postal service. Customer is responsible for all fees up to the date of termination of Service. Customer agrees that the obligation to pay amounts due under this Agreement will survive termination of this Agreement.
e. The provisions of this Agreement may be modified and/or supplemented by NewWave at any time and your continued use of the Service following any such modification or supplement shall constitute acceptance.
f. Transfer of the Account or any Customer’s rights or obligations, hereunder to any other person or entity, or to a new residence, is strictly prohibited without prior authorization from NewWave.
g. The Service is available in a variety of service tier packages that have different maximum data transfer rates, and different limits on the total data volume that Customer may transfer in a billing month (“Service Tier Packages”). The total data volume is the sum of both the downstream traffic (the traffic Customer receives) and upstream traffic (traffic Customer sends). The total data volume permitted for each Service Tier Package is called the “data transfer allowance.” The data transfer allowance increases as the download speed of the Service Tier Package offered by NewWave increase. Price lists for each Service Tier Package are available from the local NewWave office and are available at www.newwavecom.com/internetpricing.
h. When Customer exceeds the data transfer allowance for Customer’s chosen Service Tier Package in any billing month, NewWave will notify Customer and work with him/her to diagnose the cause. When Customer exceeds the data transfer allowance for two consecutive months, NewWave may upgrade Customer to the Service Tier Package that has the lowest data transfer allowance that exceeds the Customer’s actual data transfer usage. Customer shall be responsible for paying the rates associated with this Service Tier Package.
i. The bandwidth associated with any particular Service Tier Package is an average available over the billing month and is made available on a “best efforts” basis. Customer understands and agrees that NewWave does not guarantee that any particular amount of bandwidth on the NewWave network at any given time, or that any speed or throughput of customer’s connection to the NewWave network will be available to the customer at any given time. Customer understands and agrees that the speed of the Service provided at Customer’s site will vary depending upon a number of factors, including Customer’s computer system(s) and associated equipment, network congestion, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond NewWave’s control, and system failures, modifications, upgrades, and repairs.
j. Customer understands that NewWave may use various tools and techniques (“Network Management Practices”) in order to effectively manage its networks and to ensure compliance with NewWave’s Acceptable Use Policies. A description of NewWave’s Network Management Practices is available at http://www.newwavecom.com/agreements-policies. NewWave’s Acceptable Use Policy is available at http://www.newwavecom.com/agreements-policies. NewWave routinely monitors its network and traffic patterns and makes changes to its Network Management Tools as it deems necessary to manage and improve overall network performance. NewWave’s Network Management Tools are nondiscriminatory and do not target any specific content, application, service or device.
a. Customer agrees to pay for the Service to which he/she has subscribed herein, including applicable charges for installation and all applicable local, state or federal fees or taxes. Monthly charges for the Service are set forth on a separate price list, are published online, and are subject to change. Service charges will be billed monthly in advance and are payable on the first of the month.
b. An administrative late charge may be charged on accounts 15 days past due. There will be only one such administrative charge for each month’s charges not paid when due.
c. If Customer discontinues the Service he/she will be required, in addition to payment of all overdue balances, to pay a reconnect charge or trip charge (where applicable) before reconnection. In addition, if Customer is leasing a modem from NewWave, Customer is responsible for paying a modem return charge and any previously agreed to charges, if NewWave must come to the Customer’s site.
d. NewWave may charge a service fee for all returned checks and bank card or charge card chargebacks.
e. Customer will be responsible for all expenses (including reasonable attorneys’ fees) incurred by NewWave in collecting any amounts due in accordance with this Agreement and unpaid by Customer.
4. Customer Conduct, Operating Policies and Conditions of Use
a. Customer shall use the Service for lawful purposes only. Customer shall not post or transmit through the Service any material (including any message or series of messages) that violates or infringes in any way upon the rights of others (including copyright), that is unlawful, threatening, abusive, obstructive, harassing, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law.
b. RESALE OF THE SERVICE, OR COMMERCIAL USE OF NEWWAVE TRADE OR SERVICE MARKS IS STRICTLY PROHIBITED WITHOUT EXPRESS WRITTEN APPROVAL FROM NEWWAVE AND A CONTRACT FOR PAYMENT OF RELATED FEES. Service is sold to a single Customer for use in a single household. Any attempt to resell or distribute service without the express written permission of NewWave may result in immediate termination of service and possible criminal prosecution.
c. Customer shall not make the Service available to anyone outside the Premises (i.e. via wi-fi, or other methods of networking), in whole or in part, directly or indirectly, or on a bundled or unbundled basis. The Service is for personal and non-commercial use only and you agree not to use the Service for operation as an Internet service provider or for any business enterprise or purpose, or as an end-point on a non-NewWave commercial local area network or wide area network. NewWave’s Service is not intended to run any Web servers, FTP servers, Game Servers, or similar applications. If customer is found to be running any of these services, NewWave reserves the right to immediately discontinue Customer’s Service.
d. The Service contains copyrighted material, trademarks and other proprietary information, and the entire contents of the Service are copyrighted as a collective work under the United States copyright laws. Customer may download copyrighted material solely for Customer’s personal use. Except as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded material will be permitted without the express prior written consent of NewWave and, where applicable, the third party copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution or copyright notice shall be made.
e. Customer shall not upload, post or otherwise make available on the Service any material protected by copyright, trademark or other proprietary right without the express permission of the owner thereof. Customer may upload public domain materials and is responsible for and assumes all risks with respect to the determination of whether materials are in the public domain.
5. Service and Repairs
NewWave will use commercially reasonable efforts to respond to service calls related to the Service in a timely manner. NewWave will attempt to correct interruptions of Service, due to technical malfunction, at NewWave’s expense. The cost of such correction will be billed to the Customer if the repair requires a Customer site visit that is determined in NewWave’s sole judgment to be a result of Customer negligence, lack of knowledge, software, Customer installed wiring, hardware or any problem not caused by NewWave. Other repair or replacement will be at Customer’s expense.
6. Service Interruptions -- Force Majeure
In the event of complete failure of Service due to technical malfunction for twenty-four (24) consecutive hours or more, Customer is entitled to a prorated credit upon request. To qualify for an adjustment, Customer must request a credit within thirty (30) days of the failure. NewWave shall have no liability, including as set forth in this Section 6, for interruption of Service due to circumstances beyond its control, including without limitation, acts of God, natural disaster, regulation or government acts, fire, civil disturbance, strike or weather.
7. Disclaimer of Warranty -- Limitation of Liability
a. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. NEITHER NEWWAVE OR THEIR AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT OR INFORMATION SERVICE PROVIDERS OR LICENSORS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SERVICE. CERTAIN CONTENT MAY BE OBJECTIONABLE OR UNSUITABLE FOR MINORS AND CUSTOMER IS RESPONSIBLE FOR AND MUST EXERCISE HIS/HER OWN DISCRETION WHEN ALLOWING MINORS TO USE THE SERVICE.
b. NEWWAVE DOES NOT WARRANT, AND SHALL NOT BE RESPONSIBLE IN ANY REGARD FOR ANY MERCHANDISE OR SERVICES ORDERED THROUGH THE SERVICE FROM THIRD PARTIES OR OTHER COMMERCIAL TRANSACTIONS WITH THIRD PARTIES. CUSTOMER SHALL BE RESPONSIBLE FOR ALL SUCH CHARGES AND SHALL INDEMNIFY NEWWAVE FOR ALL LIABILITY IN CONNECTION THEREWITH.
c. THE SERVICE, THE EQUIPMENT AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
d. EXCEPT AS PROVIDED IN SECTION 7, IN NO EVENT (INCLUDING NEGLIGENCE) WILL NEWWAVE OR THEIR AFFILIATES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE (INCLUDING THE CONTENT INCLUDED THEREIN OR THE INFORMATION SERVICES ACCESSED THEREBY), THE EQUIPMENT OR THE SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR OUT OF THE BREACH OF ANY WARRANTY.
e. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF NEWWAVE UNDER THIS AGREEMENT EXCEED ONE MONTH’S TOTAL PAYMENT PAID BY CUSTOMER TO NEWWAVE.
f. CUSTOMER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 7 SHALL APPLY TO ALL CONTENT AND THE SERVICE, AND ARE FOR THE BENEFIT OF NEWWAVE AND THEIR AFFILIATES.
NewWave shall have the right, but not the obligation, to monitor the bandwidth usage with the ability to charge more if it is excessive. NewWave does not undertake any obligation to monitor, review or determine the acceptability or accuracy of any information transmitted by Customer using the Service. Customer shall be responsible for and shall indemnify NewWave Communications from any liability resulting from Customer’s information transmitted using the Service, including for defamation, copyright, trademark or other proprietary right infringement, or otherwise.
Customer agrees to defend, indemnify and hold harmless NewWave Communications, its affiliates and third party content and service providers and their respective officers, directors, employees and agents, from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Service by Customer or otherwise arising out of the use of the Customer’s Account.
NewWave may provide Notice to Customers, from time to time about various matters, either on-line or by phone or by U.S. Mail. Notice by Customer to NewWave must be given by electronic message or conventional mail, unless otherwise specified in this Agreement. For the purposes of delivering notice to NewWave, Customer shall address its communications to: NewWave Communications, ATTN: Internet Service, One Montgomery Plaza, 4th Floor, Sikeston, Missouri 63801.
This Agreement and any operating rules for the Service established by NewWave now or hereafter constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter; provided that any other special pricing agreement or subscription or customer agreement relating to Customer’s cable television service with NewWave shall remain in full force and effect. Acceptance of Service or execution of this Agreement shall constitute acceptance of the terms and conditions herein. This Agreement shall be construed in accordance with the laws of the State of Missouri, without regard to its conflict of laws rules. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable laws as nearly as possible to reflect the original intentions of the Parties as set forth herein, and the remainder of the Agreement shall remain in full force and effect. No waiver by either Party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default. Monthly Broadband usage may be monitored and limited.