THIS SUBSCRIBER AGREEMENT AND TERMS OF SERVICE (“Agreement”) is entered into by and between NEK Community Broadband Communications Union District dba NEK Broadband (“NEK Broadband”, “us”, “we” or “our”) and the person or entity who subscribes to our Internet services and/or all related services and features or products (“Customer”). By subscribing to and using our services, Customers agree to be bound by the terms of this Agreement and all documents incorporated herein, including NEK Broadband’s Privacy Policy.
- PROVISION OF SERVICE. NEK Broadband shall provide and Customer shall acceptInternet Service (all Internet related services provided by NEK Broadband offered hereinand hereinafter defined as “Service” or “Internet Service”) at the applicable rates andcharges, subject to the terms and conditions specified in this agreement. NEKBroadband shall provide each Customer with Internet access account ID’s by which thatCustomer may use our Internet system. The Customer shall not have any proprietaryright to the access account ID(s) provided to it by NEK Broadband. Except as otherwiseagreed by NEK Broadband in writing, NEK Broadband reserves the right to revise, in itssole discretion, the rates, terms, and conditions of its agreement with Customer upon atleast 25 days’ written notice to Customer, such notice to be given at least 25 days’ priorto the end of the then current contract term. Customer agrees to pay for Servicepursuant to such revised rates, terms and conditions, unless Customer terminates thisagreement in accordance with the terms and conditions of this agreement. NEKBroadband reserves the right to assign, designate or change access account ID(s)when, in its sole discretion, such assignment designation or change is reasonable ornecessary in the conduct of its business. Service is subject to transmission limitationscaused by atmospheric, topographical and any other such conditions. Additionally,Service may be temporarily refused, limited, interrupted or curtailed due to governmentregulations or orders, system capacity limitations, limitations imposed by an underlyingcommunications carrier, or because equipment modifications, upgrades, repairs orreallocations or other similar activities necessary or proper for the operation orimprovement of our Internet system. Customer is responsible for all persons who useCustomer’s account, unless Customer notifies NEK Broadband within 24 hours ofdiscovering unauthorized use of the account. Except for content labeled with NEKBroadband’s name, we assume no liability for any content or material accessed by theCustomer through the Service.
- USE OF SERVICE AND EQUIPMENT. Service and equipment are furnished for useby Customer for any lawful purpose. Customer warrants Customer is at least 18 yearsold.
- CUSTOMER SERVICE REQUESTS. Applications, including activation, change ordiscontinuance of Service, will be accepted from Customer in writing via email,telephone, facsimile transmission, via US mail or by other methods acceptable to NEKBroadband.
- TERM OF AGREEMENT. The initial term of this Agreement commences when theCustomer first uses the Internet Service we provide and continues through the last dayof the next calendar month. Unless the Customer or NEK Broadband cancels theservice in the manner described in this Agreement, the term of this agreement shall berenewed for successive one month terms. This Agreement runs for what is commonlycalled a month to month term.
- LIMITATION OF NEK Broadband’S LIABILITY.(a)CUSTOMER UNDERSTANDS THAT ALTERNATIVE AND COMPETING INTERNETCOMMUNICATIONS CARRIERS ARE AVAILABLE TO CUSTOMER; OCCASIONALINTERRUPTION OR IRREGULARITIES IN THE SERVICE MAY OCCUR; ANYPOTENTIAL HARM FROM INTERRUPTIONS OR IRREGULARITIES IN THESERVICE IS SPECULATIVE IN NATURE; NEK BROADBAND CANNOT OFFER THESERVICE AT RATES WHICH REFLECT ITS VALUE TO EACH CUSTOMER; AND WEASSUME NO RESPONSIBILITY OTHER THAN THAT CONTAINED IN THISAGREEMENT. ACCORDINGLY, CUSTOMER AGREES THAT EXCEPT AS LIMITEDBY LAW, NEK Broadband’S SOLE LIABILITY FOR LOSS OR DAMAGE ARISING OUTOF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTSIN THE SERVICE OR TRANSMISSION OF SERVICE PROVIDED BY NEKBROADBAND OR ANY UNDERLYING COMMUNICATIONS CARRIER, OR FORLOSSES OR DAMAGES ARISING OUT OF THE FAILURE OF NEK Broadband ORANY UNDERLYING COMMUNICATIONS CARRIER TO MAINTAIN PROPERSTANDARDS OF MAINTENANCE AND OPERATION SHALL BE AS FOLLOWS:(i)A CREDIT ALLOWANCE AS DESCRIBED IN SUBSECTION 5(a)(iii) BELOW, WILLBE MADE AT CUSTOMER’S REQUEST IN THE FORM OF A PRO-RATAADJUSTMENT OF THE FIXED MONTHLY CHARGES BILLED TO CUSTOMER.FIXED MONTHLY CHARGES ARE THE MONTHLY CHARGES FOR ACCESS ANDOPTIONAL FEATURES PER ACCESS ACCOUNT ID, ALL AS DESCRIBED IN THERATE SHEET IN EFFECT AT THE TIME OF INTERRUPTION.(ii)SUCH CREDIT ALLOWANCE WILL BE BASED UPON THE PERIOD OF THE TIMEWHICH SUCH MISTAKES, OMISSIONS, DELAYS, ERRORS OR DEFECTS IN THESERVICE OR ITS TRANSMISSION CAUSED INTERRUPTIONS IN THE RENDERINGOF THE SERVICE. ANY SUCH PERIOD OF TIME AN INTERRUPTION OCCURSWILL BE MEASURED FROM THE TIME IT IS REPORTED TO NEK Broadband. INTHE EVENT CUSTOMER IS AFFECTED BY SUCH INTERRUPTION FOR A PERIODOF LESS THAN 24 HOURS, NO SUCH ADJUSTMENT SHALL BE MADE. WHEN ANINTERRUPTION EXCEEDS 24 HOURS, THE LENGTH OF THE INTERRUPTIONWILL BE MEASURED IN 24 HOUR DAYS. A FRACTION OF A DAY CONSISTING OFLESS THAN 12 HOURS WILL NOT BE CREDITED, BUT A PERIOD OF 12 HOURSOR MORE WILL BE CONSIDERED AN ADDITIONAL DAY.(iii)THE CREDIT ALLOWANCE WILL BE COMPUTED BY DIVIDING THE LENGTH OFTHE SERVICE INTERRUPTION BY A STANDARD 30 DAY MONTH AND THENMULTIPLYING THE RESULT BY NEK Broadband’S FIXED MONTHLY CHARGES FOREACH INTERRUPTED ACCESS ACCOUNT ID. IN NO CASE WILL THE CREDITEXCEED THE FIXED MONTHLY CHARGES.(iv)A CREDIT ALLOWANCE WILL NOT BE GIVEN FOR MISTAKES, OMISSIONS,INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS, OR CURTAILMENTS IN THESERVICE CAUSED BY THE NEGLIGENCE OR WILLFUL ACT OF CUSTOMER OROTHER PARTIES, OR MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS,ERRORS, OR DEFECTS CAUSED BY FAILURE OF EQUIPMENT OR SERVICE NOTPROVIDED BY NEK BROADBAND.(v)THE SERVICE FURNISHED BY NEK BROADBAND, IN ADDITION TO THELIMITATIONS SET FORTH PRECEDING, IS ALSO SUBJECT TO THE FOLLOWINGLIMITATION: THE LIABILITY OF NEK BROADBAND FOR LOSS OR DAMAGESARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORSOR DEFECTS IN THE SERVICE, ITS TRANSMISSION OR FAILURES OR DEFECTSIN FACILITIES OF THE UNDERLYING COMMUNICATIONS CARRIER, OCCURRINGIN THE COURSE OF FURNISHING SERVICE AND NOT CAUSED BY THENEGLIGENCE OF THE AUTHORIZED USER, OR THE UNDERLYINGCOMMUNICATIONS CARRIER IN FAILING TO MAINTAIN PROPER STANDARDS OFMAINTENANCE AND OPERATION AND TO EXERCISE REASONABLESUPERVISION, SHALL IN NO EVENT EXCEED AN AMOUNT EQUIVALENT TO THEPROPORTIONATE FIXED MONTHLY CHARGE TO THE AUTHORIZED USER FORSERVICE DURING THE PERIOD OF TIME IN WHICH SUCH MISTAKES,OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS IN SERVICE, ITSTRANSMISSION, OR FAILURES OR DEFECTS IN FACILITIES FURNISHED BY NEKBroadband OR THE UNDERLYING COMMUNICATIONS CARRIER OCCURRED.(b)NEK Broadband shall in no event be liable for service or equipment interruptions ordelays in transmission, errors or defects in service or equipment, when caused by actsof God, fire, war, riots, government authorities, default of supplier, or other causesbeyond our or any underlying communications carrier’s control.(c)Customer acknowledges that Internet systems use public access facilities to transmitdata communications and that the service may not be completely private. NEKBroadband is not liable to Customer for any claims, loss, damages or cost which mayresult from lack of privacy on the system.(d)Customer acknowledges that Internet systems may carry material which may beconsidered abusive, profane, sexually explicit or offensive and that NEK Broadband isnot liable to Customer for any claims, loss, damages or cost which may result from suchmaterial being available to Customer or someone using Customer’s account through theInternet Service.(e)Customer agrees to use the Service in a way that does not violate any applicable lawor which would subject NEK Broadband to liability for Customer’s actions. Customerhereby agrees to indemnify and hold NEK Broadband harmless against any loss, cost,damage or fees (including attorney’s fees and disbursements), claims for libel, slander,or infringement on intellectual property rights or copyright from the material transmitted, received or stored in any form over our facilities by Customer or those using Customer’s equipment or Account I.D.; against claims for infringement of patents arising from combining or using apparatus or systems of Customer with our facilities or anycommunications carrier; and against all other claims arising out of any act or omissionof Customer in connection with the use of the facilities or Service provided by NEKBroadband.
- DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIESa) CUSTOMER ACKNOWLEDGES AND AGREES THAT NEK BROADBAND IS NOTTHE MANUFACTURER OF EQUIPMENT AND INTERNET PACKAGE SOFTWARE,AND NEK Broadband HEREBY DISCLAIMS ALL REPRESENTATIONS ANDWARRANTIES, DIRECT OR INDIRECT, EXPRESS OR IMPLIED, WRITTEN ORORAL, IN CONNECTION WITH THE EQUIPMENT OR SERVICE OR INTERNETPACKAGE SOFTWARE (WHETHER PURCHASED OR LEASED BY CUSTOMERFROM NEK BROADBAND OR ANOTHER), INCLUDING BUT NOT LIMITED TO ANYAND ALL EXPRESS AND IMPLIED WARRANTIES OF SUITABILITY, DURABILITY,MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NEKBROADBAND, TO THE EXTENT PERMITTED BY LAW, ASSIGNS TO CUSTOMERANY AND ALL MANUFACTURERS’ WARRANTIES RELATING TO EQUIPMENT ORINTERNET PACKAGE SOFTWARE PURCHASED BY CUSTOMER, AND CUSTOMERACKNOWLEDGES RECEIPT OF ANY AND ALL SUCH MANUFACTURERS’WARRANTIES.(b)CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVEREMEDY IN CONNECTION WITH ANY DEFECTS IN THE EQUIPMENT ORSOFTWARE, INCLUDING MANUFACTURE OR DESIGN, SHALL BE AGAINST THEMANUFACTURER OF THE EQUIPMENT OR SOFTWARE UNDER THEMANUFACTURER’S WARRANTIES AND THAT NEK BROADBAND SHALL HAVE NOLIABILITY TO CUSTOMER IN ANY EVENT FOR ANY LOSS, DAMAGE, INJURY, OREXPENSE OF ANY KIND OR NATURE RELATED DIRECTLY OR INDIRECTLY TOANY EQUIPMENT OR SOFTWARE OR SERVICE PROVIDED HEREUNDER.WITHOUT LIMITING THE ABOVE, NEK BROADBAND SHALL HAVE NO LIABILITYOR OBLIGATION TO CUSTOMER, IN EITHER CONTRACT OR TORT, FOR SPECIAL,INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BYCUSTOMER, SUCH AS, BUT NOT LIMITED TO, CLAIMS OR DAMAGES FORPERSONAL INJURY, WRONGFUL DEATH, LOSS OF USE, LOSS OF ANTICIPATEDPROFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ORECONOMIC LOSSES OF ANY KIND INCURRED BY CUSTOMER DIRECTLY ORINDIRECTLY RESULTING FROM OR RELATED TO ANY EQUIPMENT OR SERVICEOR SOFTWARE DESCRIBED HEREUNDER, WHETHER OR NOT CAUSED BY OURNEGLIGENCE, TO THE FULL EXTENT SAME MAY BE DISCLAIMED BY LAW. ANYREFERENCES TO EQUIPMENT OR SOFTWARE IN THIS PARAGRAPH SHALL BEDEEMED TO APPLY TO ALL EQUIPMENT OR SOFTWARE PURCHASED BYCUSTOMER OR LEASED BY CUSTOMER FROM NEK BROADBAND OR ANOTHERLESSOR. UNDER CERTAIN LAWS THE EXCLUSION OR LIMITATION OFINCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY. YOU MAY ALSOHAVE OTHER LEGAL RIGHTS.
- INDEMNIFICATION AND RELEASE. Customer agrees to release, defend, indemnifyand hold harmless NEK Broadband, its officers and employees, to the full extentpermitted by law from and against any and all claims, damages, liabilities andexpenses, including legal and attorney fees, of any nature arising directly or indirectlyout of this agreement, including, without limitation, claims for personal injury or wrongfuldeath to Customer or users of the equipment, products or services provided by NEKBroadband or used in conjunction with such equipment, products or services providedby us and arising out of the manufacture, purchase, operation, condition, maintenance,installation, return or use of the equipment or service, or arising by operation of law,whether the claim is based in whole or in part on negligent acts or omissions of NEKBroadband, its agents or employees.
- OPERATING RULES. Customer agrees not to publish on or over the Internet contentwhich violates or infringes upon the rights of any other. If NEK Broadband is challengedby any third party regarding the suitability of Customer’s content, we may at our solediscretion delete Customer’s content from the Internet service. Customer agrees not tosend unsolicited electronic mail to NEK Broadband’s subscribers without our explicitwritten permission for each instance of communication.
- RATES AND CHARGES. The rates and charges for Internet Service and the ratesand charges for optional services provided by NEK Broadband are as set by us fromtime to time. The initial rates for Internet Service and optional services, as well asCustomer payment options, are provided on the rate sheet included in the package withthis Agreement. NEK Broadband reserves the right to change the rates for InternetService and optional services, as well as Customer payment options, from time to time.We will notify Customer of any change in rate and payment option by electronic mailand by posting a notice of the change in rates and charges on the Internet Service.Unless otherwise agreed by NEK Broadband, Customer will be billed in advance formonthly access base rate charges and, if applicable, in arrears for extended connecttime, bandwidth and use charges. the(a)Unless otherwise agreed by NEK Broadband, payment is due to NEK Broadband asstated on the attached rate sheet included with this Agreement.(b)Customer shall be responsible for payment of charges for all services furnished byNEK Broadband, including without limitation, Service establishment fees, Serviceconnection charges and charges for enhanced features, sales and use taxes, othertaxes required by law, fees or other extraction imposed by or for any municipal or otherpolitical authority against us. Rates and charges shall be based on prices in effect at thetime Service is furnished.(c)Payments received after the due date may incur a late payment charge of the lessorof 1.5% per month or the highest rate permitted by law of the unpaid balance for eachmonth or fraction thereof that such balance shall remain unpaid.(d)In the event Customer’s equipment is lost, stolen or otherwise absent fromCustomer’s possession and control, Customer shall nonetheless be liable for all useand other charges attributable to the Internet access account ID until such time as NEKBroadband is notified of the loss, theft, or other occurrence.(e)When payment for Service or equipment is returned, a charge of $15 may be madeby NEK Broadband for each time such item is returned unpaid to us for any reasonexcept to the extent limited by law.(f)Unless otherwise agreed to by NEK Broadband, Customer shall be responsible for alloutstanding charges for service rendered and shall be responsible for all chargesthrough the end of the billing cycle within which termination occurs, without proration of any such charge.(g)For the first month of service only, all rates and charges will be prorated based on thenumber of days the service was in use.
- DEFAULT AND WAIVER(a)In the event that Customer shall default in the payment when due of any sum duehereunder, or in the event of any default or breach of the terms and/or conditions of thisagreement, or if any proceeding in bankruptcy, receivership or insolvency or petition forreceivership shall be instituted by or against Customer, NEK Broadband, at its option,may:(i)Proceed by appropriate court action or actions to enforce performance by Customerof the applicable covenants and terms of this agreement or to recover damages for thebreach thereof; and/or(ii)Terminate this agreement, whereupon all rights and interests of customer shallterminate and Customer shall remain liable for all Services provided through the date oftermination.(b)Customer shall pay to NEK Broadband on demand any and all past due amountswhich NEK Broadband may sustain by reason of such default or breach by Customer,together will all other charges as provided by this agreement, reasonable attorney’s feesincurred by us in connection with such breach or default by Customer and all othercosts and expenses incurred by us in collecting such amounts. All amounts shall bepayable by Customer without set off or deduction of any kind.(c)The remedies provided in favor of NEK Broadband in the event of default shall not bedeemed to be exclusive but shall be in addition to all other remedies in its favor existingat law.(d)No failure on the part of NEK Broadband to exercise any right or remedy arisingdirectly or indirectly under this agreement shall operate as a waiver of any right orremedy it may have nor shall an exercise of any right or remedy by us preclude anyother right or remedy we may have.
- ASSIGNMENTS. Neither this agreement nor Customer’s rights hereunder shall beassignable by Customer except with NEK Broadband’s prior written consent. Theconditions hereof shall bind any permitted successors and assigns of Customer.
- ENTIRE AGREEMENT AND GOVERNING LAW. Customer acknowledges receipt ofthis agreement, which includes the writing on both sides of this document, and that thisagreement contains the entire agreement between the parties relating to the servicesand/or equipment described in this agreement and that NEK Broadband and itsemployees have not made orally or in writing any representations, warranties oragreements inconsistent with the terms of this agreement. No modification, change oralteration of any of the terms of this agreement shall be valid unless in writing andsigned by NEK Broadband and Customer except as otherwise provided herein. Thisagreement supersedes all prior agreements and understandings, both oral and written,with respect to the subject matter hereof. Customer agrees to notify us within 30 days ofany change of Customer’s address. This agreement shall be governed by, construedand enforced in accordance with the laws of the State of Vermont.
- SEVERABLE PROVISIONS. If any part of this agreement is contrary to or prohibited byor deemed invalid under applicable laws and regulations of any applicable jurisdiction, the remaining provisions and parts thereof shall remain and be construed in full force and effect to the extent permitted by law.
- RENEWAL AND TERMINATION. Unless Customer or NEK Broadband terminates thisagreement as provided herein, and except as otherwise agreed, upon completion of anyinitial term of this agreement, this agreement shall renew on a month-to-month basis. Notice of Customer’s intent to terminate this agreement shall be made in writing to NEK Broadband by email at ; by mail at P.O. Box 712, Hardwick, Vermont 05843 or via phone (877) NEK-Fibe(r)/(877) 635-3423 or by other methods acceptable to us. NEK Broadband reserves the right not to renew this agreement at any time prior to the conclusion of the initial or any renewal term by giving Customer notice of same.