Terms
of Service for Wireless
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 service@WEBJOGGER.net.
FOR PURPOSES OF THE TERMS AND CONDITIONS, YOU WILL BE REFERRED TO
AS THE "CUSTOMER."
TERMS AND CONDITIONS
1. Definitions:
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.
2. Service:
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.
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 client 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:
Customer must notify WEBJOGGER in writing of intention to terminate
no less than 45 days prior to termination date to avoid additional
monthly charges. Customer will be responsible for the early termination
fee of $250.00. If Customer terminates this Agreement before the
end of the Initial Term without a 45 day written notice, Customer
will also be responsible for all service charges that would have
been incurred for the next 60 days of the billing cycle and $250.00
early termination fee. Customer approves in advance the $250.00
charge on his/her credit card for the early termination fee and
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 Client 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.
13. Restrictions:
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.
17. lndemnification/Release:
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.
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.
20. Arbitration:
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: April, 2007
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