PLEASE READ THE TERMS AND CONDITIONS CAREFULLY.
BY USING THESE SERVICES, (i) YOU ACKNOWLEDGE THAT YOU ARE AN ADULT (18 YEARS OR OLDER) AND (ii) YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN EFFECT AND AS UPDATED BY WEBJOGGER FROM TIME TO TIME. IN ADDITION, BY PLACING AN ORDER FOR THE SERVICES, YOU ACKNOWLEDGE THAT WEBJOGGER WILL COMMENCE PROCESSING SUCH ORDER AND THAT YOU WILL INCUR EXPENSES AND OBLIGATIONS IMMEDIATELY.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES AND YOU SHOULD CANCEL YOUR ORDER. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, WEBJOGGER WILL BE UNDER NO OBLIGATION TO PROVIDE YOU WITH THE SERVICES.
REVISIONS MAY BE MADE FROM TIME TO TIME WITHOUT PRIOR NOTICE OF CHANGES. THE MOST RECENT VERSION OF THE TERMS AND CONDITIONS MAY BE FOUND AT http://www.webjogger.net/terms_of_service/wireless.htm. YOU MAY REQUEST SAME IN WRITING TO WEBJOGGER AT INFO@WEBJOGGER.NET. FOR PURPOSES OF THE TERMS AND CONDITIONS, YOU WILL BE REFERRED TO AS THE “CUSTOMER.”
TERMS AND CONDITIONS
This Services Order Confirmation and Acknowledgment of Terms and Conditions shall serve as confirmation of customer’s wireless service order with WEBJOGGER INTERNET SERVICES, (“WEBJOGGER”) and customer’s acceptance of such order, including acceptance of all of the terms and conditions (“Terms and Conditions”) set forth below, and will authorize WEBJOGGER to provide Customer with the Services (as defined below) for period agreed to by Customer upon placing an order for the Services.
Customer agrees to purchase wireless and/or network access services (“Services”) from WEBJOGGER. Customer shall be responsible for obtaining and maintaining any equipment needed to access, connect to, or use the Services. Customer shall be responsible for insuring that such equipment is compatible with the Services. Services provided by WEBJOGGER are for the sole use of customer and not for resale of any kind without the prior written consent of WEBJOGGER, which may be given at its sole discretion. WEBJOGGER prohibits any provision of service to parties other than the customer herein, whether by selling same or delivering the service without charge. In the event that customer attempts to resell the Services, WEBJOGGER may, at its sole discretion, increase the fees associated with the Services, or terminate the Services.
3. Term of Agreement:
This agreement has an initial term of one year (the “Initial Term”). If service is not terminated by either party not less than 45 days prior to the first anniversary of the agreement then it shall automatically renew itself for 1 year and continue to do so until terminated in accordance with the 45 day provision above. The Initial Term begins the day the wireless connection is successfully installed by WEBJOGGER, as recorded in its database. If WEBJOGGER cannot successfully deliver the Service, this contract is implicitly terminated without penalty or cost. Termination notice shall be delivered in writing via certified mail return receipt requested to address listed in this document.
4. Rates and Payment Terms:
The Rates will be in effect for the Initial Term, and may be changed by WEBJOGGER after the end of the Initial Term by giving Customer written or e-mailed notice of the new Rates at least thirty (30) days before their effective date, or by posting the rates on the WEBJOGGER web site. In addition to the Rates, WEBJOGGER will bill Customer for all federal, state, county, and local taxes, surcharges, fees, and universal service contribution on the Services. Charges for the Services will begin when the Services are installed. Payments for Services will be made through monthly charges to Customer’s credit card, unless Customer has been approved for monthly – or bi-monthly, quarterly, or yearly — invoicing. Customer may pre-pay by check or money order, if customer prefers not to pay via credit card, or customer may be billed monthly, but a credit card number is required in all cases to secure customer’s account with WEBJOGGER. Customer must keep WEBJOGGER informed of any changes in customer’s credit card information, or customer will be in default under this agreement. Bad checks will incur additional fees of $50 plus any fees incurred by WEBJOGGER to collect sums due including, but not limited to, reasonable attorney’s fees, costs and interest. Bad check fees will be due before continuing services can be rendered.
5. Expedited Connections:
Expedited connections within four (4) business days or less may at WEBJOGGER’s sole discretion incur an expedite charge to be determined by WEBJOGGER on a case by case basis.
6. Additional Fees:
In the event that special construction or additional equipment or additional labor are required — including, but not limited to, longer cable, additional grounding, higher tower or mast hardware, or specialized antennas, and the installation thereof — additional equipment and labor fees may be charged.
Additional labor and materials can be purchased or contracted from WEBJOGGER to fix problems caused by any obstruction(s) that might be erected or grow between Customer premises and WEBJOGGER repeater causing degradation or loss of service; debris or ice on antenna, re-aiming the antenna later than 14 days after installation, installing hardware and/or software in a different computer after initial installation, re-configuration of network settings due to, but not limited to tampering, re-installation of operating system, accidental removal or moving the hardware to another computer.
WEBJOGGER reserves the right to charge additional labor fees to diagnose, repair and/or replace equipment damaged while installed at customer premises, provided equipment has been subjected to unusual physical or electrical stress, misuse, neglect, accident or abuse, or damaged by any other external causes.
7. Payment, Default and Remedies:
Customer shall be billed on the first of each month, for one month’s service in advance. Payment by Customer shall be due to WEBJOGGER within thirty (30) days from the date of the invoice. Accounts with past due invoices will be subject to late fees, consisting of an 1.5% monthly finance charge. Service to past due accounts may at Webjogger’s discretion be temporarily suspended and those accounts may be subject to a $20.00 reconnection fee once payment in full of all past due amounts is received. Suspension of service does not remove the Customer from the obligation to pay Webjogger the contracted monthly fees. Customer may be considered in Default of the Agreement if (a) payment for any Service has not been made within five (5) days after WEBJOGGER has sent customer a notice via e-mail that such payment is overdue and (b) for any other breach of this Agreement that is not remedied within ten (10) days after notice of such breach, or for any breach of WEBJOGGER’s Acceptable Use Policy for Internet Access Service. If customer is in Default of this Agreement, WEBJOGGER may terminate all Services under this Agreement without further notice to customer and customer will be charged an early termination fee of $250.
8. Early Termination Charges:
WEBJOGGER may terminate this Agreement for cause for the following: (a) failure of Customer to timely pay for Service, as stated in more detail in “Payment, Default, and Remedies” above; (b) if in WEBJOGGER’s opinion Customer has violated any terms or conditions of this Agreement, WEBJOGGER’s Acceptable Use Policy, and any other policies, procedures or Agreements of WEBJOGGER that apply to Service hereunder; or (c) if in the opinion of WEBJOGGER Customer’s use of Services could disrupt or adversely impact WEBJOGGER’s business operations; provided however that in the event of termination under (b), Customer shall have 30 days from receipt of the notice of termination in which to correct any and all deficiencies and/or breaches of this Agreement. Customer may terminate for cause in the event WEBJOGGER fails to perform its obligations hereunder, provided WEBJOGGER shall have 30 days from receipt of the notice of termination in which to correct the matter.
Any termination shall not relieve Customer of any liability incurred prior to such termination. Additionally, if WEBJOGGER terminates this Agreement for cause, or Customer terminates this Agreement without cause, prior to the end of the Initial or Renewal Term(s), Customer shall be liable for, and shall pay to WEBJOGGER within 30 days of such termination, all monthly recurring charges associated with the terminated Services for the balance of the Term.
Customer approves in advance the removal of any equipment owned by WEBJOGGER. Customer agrees to hold WEBJOGGER harmless in connection with removal of any equipment as well as for any claim of losses resulting from placing an account on hold or suspending service or terminating service pursuant to terms of this agreement.
9. Limited Warranty – Wireless Service:
WEBJOGGER warrants that, subject to the limitations set forth below, the Wireless service will operate in substantial accordance with the terms of this Agreement. The limitations include:
A. NO 911 SERVICE. Customer is hereby notified that Wireless Service provides only point-to-point communication services, and does not provide 911, E911, or other emergency, operator or ancillary services that are usually available through local telephone services.
B. Quality of Service: Customer understands and acknowledges that the actual transmission speeds may vary from the transmission speeds that Customer might otherwise expect, due to such factors as the line-of-sight (LOS), distance to transceiver, and other operation characteristics of the facilities and equipment used in the Services. It is possible that there may be other operational impediments that may preclude or delay the actual installation, repair and maintenance of Wireless Services to Customers’ premises. WEBJOGGER reserves the right to terminate this Agreement without liability to Customer if WEBJOGGER is not able to provide, repair or maintain Services to Customer premises. WEBJOGGER will use commercially reasonable efforts to provide installation, repair and maintenance services. If Customer experiences a substantial reduction in transmission speed or significant interruption of service, Customer should notify WEBJOGGER who will undertake commercially reasonable efforts to restore the Services. WEBJOGGER will not be responsible for service issues relating to Customer’s computer, network or software.
C. The limited warranty shall not apply if: (i) Customer’s equipment has been subjected to unusual physical or electrical stress, misuse, neglect, accident or abuse, or damaged by any other external causes; (ii) the Services or related equipment has been installed, repaired or altered by any one other than WEBJOGGER’S technical support or its subcontractors or affiliates, without prior written approval; or (iii) the Services or related equipment is used in violation of applicable law or in violation of instruction furnished by WEBJOGGER, if any.
D. The foregoing limited warranties shall be in lieu of and shall exclude all other express or implied warranties, including without limitation, warranties of merchantability, and fitness for a particular use or purpose.
10. Permitting & Landlord Approval:
It is the Customer’s responsibility to obtain any required permits or to gain landlord approval for the placement of the antenna on the Customers building. WEBJOGGER may assist Customer or provide this service to Customer for an additional charge.
Landlord consents to the installation, maintenance, and removal of the equipment described herein and required by Customer to receive services.
Authorized Signature Landlord ____________________________________________
Name (Print) :______________________________________ Date:_______________
11. Shared use:
Customer understands and acknowledges that “shared use, unlimited data transfer” accounts are allowed to use any portion of the available bandwidth, allocated to shared high-speed accounts, on WEBJOGGER’s computer network, including WEBJOGGER’s connection to the internet. Additionally, the shared use account that the customer chooses to pay for has an associated “priority service level”. This service level will affect the priority the computers in WEBJOGGER’s network assign to Customer’s computer(s) request(s) for high-speed bandwidth. Customer is entitled to use as much bandwidth as the average user in the Customer’s service level. If Customer’s average bandwidth usage exceeds the average bandwidth usage of the total number of customers in his/her service level, WEBJOGGER reserves the right to: (i) increase customer’s monthly fees if customer desires to remain at the same level of usage; (ii) decrease the priority assigned to Customer’s requests, in order to fairly distribute the amount of bandwidth on the network among all users; (iii) offer Customer a “dedicated account”; (iv) or terminate customer’s Services.
12. Use of Services:
Customer agrees not to use the Services in a manner prohibited by any federal or state law or regulation. Transmission of any material in violation of federal or state law or regulation, including, but not limited to any copyrighted material, material protected by a trade secret or material or messages that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable in any manner or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation, is prohibited.
Webjogger reserves the right to delete unused Customer email boxes @webjogger.net after six (6) months of no usage. An email box will be considered unused if a POP3 connection (i.e. from an email program such as Outlook Express) or an HTTP connection through Webjogger’s webmail interface has not been established to it within a six month period.
Customer agrees not to resale services of any nature from their Wireless connection to WEBJOGGER. In the event any Wireless Customer attempts to resale services on the network, WEBJOGGER may, at its sole discretion, increase the fees associated with the Services, or terminate the Services.
14. Shared Applications:
Customer understands and acknowledges that WEBJOGGER will not allow use of the “shared bandwidth services” for applications such as Napster, Gnutella, KazaA, and others like it that transform customer’s computer into a “server” of documents to the internet. Specifically, customer understands and acknowledges that WEBJOGGER reserves the right at its sole discretion to limit traffic, including but not limited to, that which is generated by uploads and/or downloads of files from such applications.
15. Propietary Infromation:
Customer understands that WEBJOGGER prohibits conduct that is violative of any copyright or other law of any nation, state, municipality or trade organization which protects proprietary information.
16. Limitation of Liability:
A. ANY LIABILITY OF WEBJOGGER ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES AND NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS) IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES.
B. NOTWITHSTANDING THE FOREGOING, WEBJOGGER’S TOTAL LIABILITY TO ANYONE UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, STATUTORY, COMMON LAW, OR PERSONAL OR BODILY INJURY CLAIMS) SHALL NOT EXCEED THE AMOUNT THAT CUSTOMER WOULD HAVE PAID WEBJOGGER UNDER THIS AGREEMENT DURING THE PERIOD OF TIME THAT SUCH LIABILITY WAS INCURRED, OR FIVE HUNDRED DOLLARS ($500.00) WHICHEVER IS LESS.
C. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING THE PRICES FOR SERVICE UNDER THIS AGREEMENT.
Customer, its agent, successor and/or assigns expressly agrees to indemnify and hold harmless WEBJOGGER from and against any and all claims, actions or causes of actions whether for alleged damage to real property, contractual claims or personal injury claims, including but not limited to claims which allege injury (ies) allegedly sustained from the installation of, or operation of the wireless service, including, but not limited to claims for injury resulting from the transmission of the signal (s) which delivers the service. Customer further releases WEBJOGGER from any responsibility or liability related to the accuracy, quality for confidentiality of any information available by or through WEBJOGGER’s systems and/or the wireless network. Customer’s release of WEBJOGGER includes any action(s) or inaction by WEBJOGGER, which amount to negligence. Customer further agrees to indemnify and hold harmless WEBJOGGER from and against any and all claims actions causes of action, losses or damages including attorney’s fees which in any way arise from Subscribees installation of, use of, or termination of WEBJOGGER’s services herein.
Customer agrees that Webjogger will not be held responsible for loss of business due to the use of these services.
Customer agrees to indemnify Webjogger and hold Webjogger harmless from all losses or damages (including but not limited to court costs and reasonable attorneys’ fees) arising out of or resulting from Customer’s failure to strictly abide by these Terms and Conditions.
WEBJOGGER may assign this Agreement without Customer’s prior consent and all of WEBJOGGERs’ rights, title, and interest herein shall inure to the benefit of such assignee, its successors and assigns. This Agreement shall not be assignable by Customer except with the written consent of WEBJOGGER. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
18. Force Majeure:
WEBJOGGER will not be responsible for any failure to perform any obligation or provide any Services hereunder because of any Act of God or nature, strikes, work stoppage, equipment or facilities shortages, governmental acts, directives or abuse, war, riot or civil commotion, or any other force beyond our immediate and reasonable control.
19. Entire Agreement; Amendments in Writing; Severability:
This Agreement, which includes all Attachments and Schedules referenced herein, if any, constitutes the entire Agreement between the Customer and WEBJOGGER concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. Any changes to this Agreement, or any amendment or supplement to the Agreement must be in writing and signed by WEBJOGGER to be enforceable. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the original intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
Webjogger reserves the right, and Customer agrees to the same, to respond and yield to the order upon service of any Subpoena Duces Tecum executed by a court of law, without notice to the Customer. Webjogger shall serve as the sole arbiter to resolve any disputes regarding the language herein and its interpretation.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Dutchess County, New York by a single arbitrator who has special knowledge of the industry or technology involved in the dispute.
21. Faxed Copies:
Customer may sign this Agreement and fax it to WEBJOGGER, and it will have the same effect as if the original signed document had been returned to WEBJOGGER. In proving this Agreement, it will not be necessary for WEBJOGGER to produce or account for the original document signed by Customer if the faxed copy is produced by WEBJOGGER.
Last Updated: September, 2013