Welcome to the neXband Communications, Inc. site. These are the terms and conditions that you must follow if you use our site. Your use of our site indicates your acceptance of these terms and conditions.
Excepting these limited uses, you may not reproduce, distribute, transmit, or otherwise exploit the Content in any way. In particular, you may not include the Content in any other publication or product, or on any other Web site or computer network. In addition, you must abide by all other terms, conditions, and restrictions contained in any other agreement associated with the Content throughout our site.
Disclaimers OUR SITE AND THE CONTENT ARE PROVIDED TO YOU ON AN "AS IS" BASIS. WE MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.
Although we use our reasonable best efforts to ensure the accuracy of the Content on our site, we make no representations or warranties as to the accuracy, correctness, or reliability of the Content. Further, we make no representations or warranties that the functional aspects of our site will be uninterrupted or error-free, or that our site or the server that makes it available are free of viruses or other harmful components. (Because some jurisdictions do not allow for the exclusion of implied warranties, some of these exclusions may not apply to you.) You acknowledge that your use of our site is at your own risk.
As a convenience, our site links to other sites that may be of interest to you but are not under our control. These links do not imply an endorsement by neXband, and we are not responsible for the availability of or the content contained in any linked site.
Limitation of Liability Neither neXband nor our Content providers will be responsible or liable to you for any direct, incidental, consequential, indirect, or punitive damages that result from your access to or use of the Content on our site.
Additional Terms You are bound by this agreement when you access our site and until you have destroyed all Content that you have downloaded or copied from our site; you are, in addition, bound by this agreement whether you downloaded or copied the Content under the terms of this agreement or otherwise. This agreement is governed by the laws of the State of Mississippi, USA, without giving effect to any principles of conflicts of law. We reserve the right to make changes to our site and to this agreement at any time without notice.
The registration of a domain name confers no legal right to that name. Any domain name associated with a closed account for which no alternative name service has been arranged will be unregistered.
neXband is open to the public. You are solely responsible for your usage of neXband and any statement you make on neXband may be deemed a "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
This agreement is effective when you first use neXband and continues until termination by either party. You may cancel your service at any time by notifying neXband. If this agreement is terminated by either party, you are still responsible for any charges on your account. Once notice of termination is received by either party, no further charges shall be made to your account beyond those incurred up to the date of termination. neXband can change this agreement at any time upon giving reasonable notice to you in either written or electronic format. You may not amend or change this agreement unless neXband agrees to it writing.
You agree to use all neXband services and facilities at your own risk. neXband specifically disclaims all warranties of merchantability and fitness for a particular purpose. In no event shall neXband be liable for any loss, or loss of data, or other commercial damage, including but not limited to special, incidental, consequential or other damages. You agree to protect and indemnify neXband against any and all liability, patents, violations of rights of privacy and infringement of copyrights and proper rights resulting from your use of neXband.
You agree that this service is governed by the Laws of the State of Mississippi. You agree that the city of Jackson and the County of Hinds in which neXband Communications is located shall be the forum any legal action to our services.
neXband reserves the right to refuse service to anyone at any time. However, if neXband should deem it necessary to initiate termination of services with you, neXband specifically agrees to provide reasonable notice to you in order to allow you to download any files. neXband Communications and you agree that the spirit of this agreement is a reasonable business contract. Both parties agree to live up to the spirit of the contract on a best effort basis, and provide reasonable notice to one another concerning changes to this agreement or cancellation of service should this be necessary for any reason.
The aforementioned terms and general information are not all inclusive and are subject to change at the sole discretion of neXband Communications, Incorporated.
In consideration of the mutual premises of the parties, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, neXband agrees to provide to Customer with, and Customer agrees to accept, access to the Internet (the "Service") upon the following terms and conditions, including attachments and documents incorporated herein by reference.
1. Definitions. "Customer" refers to the Customer described above. "neXband" refers to neXband Internet-Intranet Operations, Inc. The "Effective Date" is the date when Customer begins use of neXband's services. The "Service" means neXband's Internet access service, an enhanced service, as described in the Service Description, as revised from time to time, which is attached hereto as Attachment 1.
2. Rates and Charges. Attachment 2 to this Agreement, incorporated by this reference, contains the applicable rates and charges for the Service. Revisions of the applicable rates and charges which result in any price increases will become effective thirty (30) days after neXband provides written notice to Customer of its intent to revise such rates and charges. Notwithstanding the above, in the event that Customer receives notice of such price modification, and such modification would result in an effective increase over the applicable fees charged to Customer as of the Effective Date.
3. Payment. Customer agrees to pay all charges incurred. Charges shall be invoiced monthly and payment shall be due upon receipt. Late charges of 1-3/4 percent (1-3/4%) per month or the highest rate permitted by law will accrue daily on all amounts not paid within thirty (30) days written notice that it does not wish to renew.
4. Term. The term for the Service ("Term") is set forth on Attachment 2 and shall automatically renew for successive thirty(30) day Terms at neXband's then current month-to-month rates, regardless of the original Term, unless either party provides the other thirty(30) days written notice that it does not wish to renew.
5. Termination. To terminate the Service, Customer must provide neXband with thirty(30)days prior written notice, and any such termination may include early termination charges as provided in Attachment 2.
6. Rights and Obligations of Customer.
(a) Installation and Maintenance. Customer shall at its own expense undertake all necessary preparations required to comply with neXband's installation and maintenance instructions. In addition, if any routers or other Customer premises equipment is being supplied to Customer by neXband, it shall be supplied to Customer pursuant to the terms and conditions of a separate agreement.
(b) Restrictions. Customer shall not do any of the following or permit any of Customer's Customer or authorized user, or other third parties to do any of the following. neXband, Inc. considers the practices below to constitute abuse of our service, therefore neXband, Inc.'s terms and conditions of service prohibit these practices. Engaging in one of more of these practices may result in termination of the offender's account and/or access to neXband, Inc. services.
(i) Shall not resell or allow to be resold "bandwidth" which includes, but is not limited to, dial up access, newsgroups, mail, or any other form of internet service without the express written consent of neXband.
(ii) Restrict or inhibit any other user from using and enjoying the Service and /or the Internet.
(iii) Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state national or international law, including without limitations the U.S. intentionally and/or export control laws and regulations;
(iv) upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copy right owner or right holder;
(v) abuse or fraudulently use the Service in any way not specifically set forth herein.
(vi) participate or allow the use of spamming to non public e-mail addresses.
This includes but is not limited to the following:
To post ten (10) or more messages similar in content to Usenet or other newsgroups, forums, email mailing lists or other groups or lists; To post to any Usenet or other newsgroup, forum, email mailing list or other similar group or list articles which are off-topic according to the charter or other owner-published FAQ or description of the group or list; To send unsolicited emailings to more than ten (10) email users, if such unsolicited emailings could reasonably be expected to provoke complaints; To falsify user information provided to neXband, Inc. or to other users of the service in connection with use of an neXband, Inc. service; To engage in any of the foregoing activities by using the service of another provider, but channeling such activities through an neXband, Inc. account, remailer, or otherwise through an neXband, Inc. service or using an neXband, Inc. account as a maildrop for responses or otherwise using the services of another provider for the purpose of facilitating the foregoing activities if such use of another part's services could reasonably be expected to adversely affect an neXband Inc. service;
(c) Blocking Mechanisms. In addition, neXband, Inc. reserves the right, where feasible, to implement technical mechanisms which block multiple postings as described above before they are forwarded or otherwise sent to intended recipients.
(d) Limitations. Nothing contained in this policy shall be construed to limit neXband, Inc.'s actions or remedies in any way with respect to any of the foregoing activities, and neXband, Inc. reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including without limitation to taking action to recover the costs and expenses of identifying offenders and removing them from the neXband, Inc. service, and levying cancellation charges to cover neXband, Inc.'s costs in the event of disconnection of access for the causes outlined above. In addition, neXband, Inc. reserves at all times all rights and remedies available to it with respect to such activities at law or in equity.
7. Equipment or Software not Provided by neXband.
(a) No Responsibility. neXband shall not be responsible for the installation, operation and/or maintenance of equipment or software not provided by neXband; nor shall neXband be responsible for the transmission or reception by equipment or software not provided by neXband.
(b) Customer Responsibility. Customer shall be responsible for the use and compatibility of equipment and/or software not provided by neXband. In the event that Customer uses equipment or software not provided by neXband which impairs Customers'' use of the Service, Customer shall nonetheless be liable for payment for the Service. Upon notice from neXband that the equipment or software not provided by neXband is causing or is likely to cause hazard, interference or service obstruction, Customer shall, if necessary, pay neXband to troubleshoot difficulties caused by equipment or software not provided by neXband. neXband shall not be responsible if any changes in the Service cause equipment or hardware not provided by neXband to become obsolete, require modification or alteration, or otherwise affect performance of equipment or hardware not provide by neXband. Customer shall at all times be solely responsible for providing and/or maintaining Customer's network facilities at all location points from the originating point of Customer to the terminating point of neXband. In the event neXband and Customer should enter into a separate agreement for the maintenance and servicing of equipment provided by neXband, also such maintenance and services shall be provided pursuant to the terms and conditions of that separate maintenance agreement.
8. Rights and Obligations of neXband: Disclaimer of Warranties.
(a) Disclaimer of Warranties. Customer understands that Customer and its Customers or authorized users may access the Internet through the Service. Customer understand further than neither neXband nor any of its affiliate operates or controls the Internet in any way, and that all merchandise, information and services offered or made available or accessible on the Internet are offered or made available or accessible by third parties who are not affiliated with neXband or its affiliates. Customer ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER'S USE AND ITS CUSTOMERS' AND AUTHORIZED USERS' USE OF THE SERVICE AND THE INTERNET. NEITHER neXband NOR ITS AFFILIATES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OR TITLE OR NON INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE INTERNET, AND THEY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY CUSTOMER'S RESPONSIBILITY AND CUSTOMER'S CUSTOMER'S AND AUTHORIZED USERS' RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY.
(b) Unedited Materials. Customer UNDERSTANDS FURTHER THAT THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO SOME PEOPLE. CUSTOMER, CUSTOMER'S CUSTOMERS AND ALL AUTHORIZED USERS ACCESS SUCH MATERIALS AT CUSTOMER'S OWN RISK. neXband HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
(c ) No Warranty. THE SERVICE IS PROVIDED ON AN "AS IS " AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR TITLE, NON INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY neXband, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER neXband NOR ITS AFFILIATES WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
(d) Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL neXband, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER'S (OR CUSTOMER'S CUSTOMERS' OR AUTHORIZED USERS') USE OF OR THEREOF, OR CUSTOMER'S (OR CUSTOMER'S CUSTOMERS' OR AUTHORIZED USERS') RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECT,DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
(e) Limitation of Remedies. If Customer is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of neXband in operating the Service, Customer's sole and exclusive remedy is to terminate this Agreement in accordance with Section 5 above and discontinue using the Service.
(f) Right to Monitor Service. neXband has no obligation to monitor the Service. However, Customer agrees that neXband has the right to monitor the Service electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its subscribers. neXband will not intentionally monitor or disclose any private electronic-mail message unless required by law. neXband reserves the right to refuse to post or to remove any information or materials, in whole or in part, that in its sole discretion, are unacceptable, undesirable, or in violation of the Agreement.
9. Failure to Comply With Agreement. neXband may deny Customer access to all or part of the Service without notice if Customer engages in any conduct or activities that neXband in its sole discretion believes violates any of the terms and conditions in this Agreement. If neXband denies Customer access to the Service because of such a violation, neither Customer nor Customer's Customer or authorized users shall have any right (1) to access through neXband any materials stored on the Internet, (2) to obtain any credit(s) otherwise due to Customer, and such credit(s) will be forfeited, (3) to access third party services, merchandise or information on the Internet through neXband, and neXband shall have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility for any consequences resulting from lack of notification.
10. Indemnity. Customer agrees to defend, indemnify and hold neXband and its affiliates harmless from any and all liabilities, costs and expenses, including reasonable attorneys' fees, related to or arising from: (a) any violation of this Agreement by Customer, Customer's Customer or authorized users or their Customers; (b) the use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by Customer, Customer's Customer or authorized users or their Customer: (c) negligent acts or omissions of Customer's officers, employees, agents or contractors in connection with the construction, installation, maintenance, presence, use or removal of systems, channels or terminal equipment or software not provided by neXband which are connected or are to be connected to the service: and (d) claims for infringement of patents arising from the use of equipment and software, apparatus and systems not provided by neXband in connection with the Service.
(a) No Waiver. neXband's failure to insist upon or enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provisions of this Agreement.
(b) Governing Law; Arbitration. This Agreement shall, in all respects be governed by and enforced in accordance with the laws of the State of Mississippi, without regard to its choice of law provisions. Any dispute or controversy between the parties relating to the Agreement shall be submitted to and resolved by binding arbitration by a single arbitrator under the commercial rules of the American Arbitration Association ("AAA"). Except to the extent otherwise agreed by the parties, arbitration shall be in the State of Mississippi at a site selected by the AAA. The parties agree that this Agreement involve interstate commerce and that this provision is enforceable under the laws of the State of Mississippi and the Federal Arbitration Act; provided, however, the parties agree that this provision shall not prevent or prohibit a party from seeking injunctive or similar relief in any federal district court or state court of competent jurisdiction pending the outcome of such arbitration. Except to the extent otherwise provided in the arbitrator's order, the prevailing party at the arbitration shall have the costs of arbitration paid for by the other party. The arbitrator's order shall be binding and enforceable in the above-referenced court or the state court located in Mississippi. Further, the parties hereby consent to the jurisdiction and venue of such court and waive any right to object to such jurisdiction and venue.
(c) Entire Agreement. This Agreement constitutes the entire agreement between Customer and neXband with respect to the Service.
(d) Counterparts. This Agreement constitutes the entire agreement between Customer and neXband with respect to the Service.
(e) Third Parties. The provisions of this Agreement and the rights and obligations created hereunder are intended for the sole benefit of neXband and Customer, and do not create any right, claim or benefit on the part of any person not a party to this Agreement.
(f) Survival of Provisions. Any obligations of the parties relating to moneys owed, as well as those provisions relating to confidentiality, assurances of payment, limitations on liability and actions in indemnification, survive termination of this of this Agreement.
(g) Unenforceable Provisions. The illegality or unenforceability of any provision of the Agreement does not affect the legality or enforceability of any other provision or portion. If any provision or portion of this Agreement is deemed illegal or unenforceable for any reason, there shall be deemed to be made such minimum change in such provision or portion as is necessary to make it valid and enforceable as so modified.
(h) Addendum. Any changes to this Agreement shall be listed in Exhibit "A:, (the Addendum").