Bway.net Terms and Conditions of Sale
1. Installation and Service. Bway.net shall install products and services
as set forth on Bway.net's DSL Service Order. The installation charges,
hardware charges and the first months total recurring fees are required to
be paid at the time services are ordered and are non-refundable. Customer
shall provide all necessary preparations required to comply with
Bway.net's installation, maintenance and operational specifications; and
will provide Bway.net, and its suppliers of communication services and
equipment, reasonable access to Customer's premises (including free access
to all leased telephone lines), to perform any acts required by this
Agreement. Should the Customer fail to appear at the scheduled
installation place and time, Customer shall be liable for "no show"
charges. Customer is responsible for costs of wiring extended beyond the
point of demarcation, and for relocation of services once installed.
2. Term of Agreement. This Agreement shall have a term of one year, unless
a different term is set forth on Bway.net's DSL Service Order, commencing
on the date of installation and shall thereafter automatically renew for
successive one year or monthly terms as applicable, unless terminated as
set forth herein or unless written notice of non-renewal by either party
is delivered to the other party at least thirty (30) days prior to the end
of the then current term.
3. Payment and Billing. Rates are set forth on Bway.net's DSL Service
Order. Billing will commence on the date Customer's connection to Bway.net
is activated. Customer may prepay the charges for the current term or pay
the charges on a monthly or quarterly basis. Initial charges shall be
invoiced in advance and payment is due upon receipt. Customer's monthly
billing cycle will commence with the date of installation and subsequent
payments will be due on that date each month. Charges more than 30 days
overdue will subject Customer to interruption of service. Such
interruption does not relieve Customer from the obligation to pay the
recurring charge. Interest charges of 1.5% per month, (or the highest
amount permitted by law), will accrue daily on all amounts more than 30
days overdue.
4. Obligations of Customer. Customer shall use Bway.net's services only
for lawful purposes. Customer shall not transmit, retransmit, or store
material in violation of any federal, state, or local law (statutory or
common) or regulation, including without limitation, laws or regulations
governing libel or slander, obscenity, threats or harassment and
infringement or other violation of trademark, copyright, trade secret or
proprietary rights. Upon notice from Bway.net, Customer shall promptly
eliminate any hazard, interference or service obstruction that hardware or
software not provided by Bway.net is causing, or is likely to cause. Any Bway.net ADSL client running a local area network (LAN) on
the provided circuit MUST use a router to terminate that circuit. Use of
a hub alone is a violation of our terms and may subject the client to
termination for cause on the basis of "Use of the system in such a way as
to willfully or negligently burden our resouces" as described in our
standard Terms of Service. Bway.net will, at its option, troubleshoot problems caused by such
hardware or software at Customer's request. Such services are billed at
rates set forth on the Bway.net website and/or at rates in effect when
such services are requested.
5. Rights and Obligations of Bway.net. Bway.net shall install the products
and services set forth on Bway.net's DSL Service Order. Stated bandwidths
apply only to the circuit attached to Customer's router port. Bway.net
warrants that on the date of installation, the products and services shall
be in good working order and conform to Bway.net's specifications.
THE FOREGOING WARRANTY IN IS LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE
Bway.net makes no other warranty, either express or implied, in regard to
any or all of the following: (a) information, products or services
provided to the Customer as a result of this Agreement (b) the
availability, accuracy or content of information, products or materials
sent or received via services provided by Bway.net, service interruptions
or network downtime. Services shall be provided on a "best efforts"
basis, but if service is completely unavailable for a period exceeding
eight (8) hours in a single day for reasons solely attributable to
Bway.net, Customer shall be credited on a pro-rata basis for each such
day. Bway.net shall not be liable (either in contract or tort), for
losses or damages arising from unauthorized access, alteration, theft, or
destruction of the Customer's data files, programs, or information, which
is caused by accident or any other means, whether or not such access
occurs as a result of any act or omission by Bway.net. Bway.net shall not
be liable for any damages suffered by Customer for any reason, including
(but not limited to), loss of data resulting from delays, nondeliveries,
wrong deliveries, and any service interruptions whether caused by the acts
and omissions of Bway.net and its employees or of the Customer or any
other party. Bway.net shall have no liability with respect to the content
of any information passing through its network.
6. Limitation of Liability. In the event that the products or services
fail to conform in any manner to this Agreement or any specifications of
Bway.net, the Customer's sole remedy and Bway.net's sole obligation shall
be the repair or replacement of the Equipment.
IN NO EVENT WILL BWAY.NET BE LIABLE TO THE CUSTOMER FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES EVEN IF BWAY.NET HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. BWAY.NET SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE; LOSS OF CUSTOMERS, CLIENTS
OR MEMBERS; LOSS OF GOODWILL; OR LOSS OF PROFITS ARISING IN ANY MANNER
FROM THIS AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE OF ANY
OBLIGATIONS UNDER THIS AGREEMENT.
Any cause of action arising out of the provision of Bway.net's products or
services shall be instituted within one year after the claim has arisen or
such cause of action be barred.
7. Termination of Services. Bway.net may terminate this Agreement upon
default of Customer's payment or other obligations under this Agreement.
Customer may terminate this Agreement if circuit is completely unavailable
for a total of one-hundred and twenty (120) hours over the course of the
initial term for reasons solely attributable to Bway.net. This will be
considering termination for cause. In the event of termination for cause
the applicable Cancellation Fee shall be reduced by fifty (50%) percent.
If Customer terminates this Agreement for any reason beside termination
for cause, Customers paying monthly or quarterly shall pay a Cancellation
Fee as specified on the Service Order Confirmation, and Customers who have
prepaid pursuant to Section 3 may receive a refund based on the unexpired
portion of the term minus the Cancellation Fee, or if the Cancellation Fee
exceeds the amount on deposit, Customer will pay Bway.net the difference
between the Cancellation Fee and the prepaid unexpired portion on deposit.
8. Nature of Information. The Customer has been advised and acknowledges
that the Internet may contain information, materials, and language that
may be deemed adult in nature and inappropriate or offensive. The Customer
is further advised that there is no effective way to limit access to
certain materials on the Internet. The Customer is responsible for all
information received, transmitted, and/or stored by the Customer and the
Customer releases Bway.net from and agrees to indemnify Bway.net against
any and all claims, losses or expenses relating to such information,
materials and language. This indemnification shall survive any termination
of this Agreement.
9. Indemnification. The Customer shall indemnify and hold Bway.net
harmless from
and against any and all lawsuits, claims, damages, liabilities or expenses
(including reasonable attorney's fees in connection with the
investigation, defense, or settling of any such loss, claim, damage,
action or proceeding) related to or arising out of the Customer's use of
the products or services provided by Bway.net. This indemnification
provision shall survive any termination of this Agreement.
10. Proprietary Rights. Bway.net grants Customer a non-exclusive,
non-transferable license to use the products and services provided
hereunder. Title and property rights, including all intellectual property
rights to such products and services, are and shall remain with Bway.net,
whether or not they are embedded in any product. Customer recognizes that
the products and services used hereunder constitute valuable trade secrets
of Bway.net. The Customer shall use its best efforts to protect and keep
confidential any and all products and services used by it and shall not
attempt to copy, examine, in any way alter, or reengineer, reverse
engineer, tamper with, or otherwise misuse such products and services.
11. Transfer and Assignment. Neither party, other than for collateral
purposes, may sell, assign or transfer this Agreement without the prior
written consent of the other party, except that Bway.net may assign this
Agreement to any of its affiliates (or any person who acquires
substantially all of the assets of Bway.net). Customer may not resell IP
accounts from a Bway.net provided leased line, including but not limited
to, Serial Line Internet Protocol (SLIP) or Point-to Point Protocol (PPP)
dial-up accounts, Point-to Point Leased Lines, Frame Relay circuits, or
any TCP/IP transmission that utilizes resources on Bway.net's network
without explicit written permission of Bway.net. This prohibition does not
apply to resale of space on World Wide Web servers.
12. Force Majeure. In the event Bway.net is prevented or hindered from
complying with any of the requirements of this Agreement by reason of war,
riots, embargoes, strikes or by operation of force majeure or any federal
or state law or any order, rule or regulation of governmental authority,
then, while so prevented, Bway.net's obligation to comply with such
requirement shall be suspended and Bway.net shall not be liable for
failure to comply therewith. Should such occurrences continue for more
than thirty (30) days, either Bway.net or the Customer may terminate this
Agreement without further liability to the other.
13. Entire Agreement. This Agreement sets forth the entire agreement of
the parties and may not be modified except by written amendment executed
by each of the parties. In the event any provision of this Agreement is
determined to be invalid, all other provisions shall remain in full force
and effect.
14. Choice of Law. This Agreement shall be construed according to, and be
governed by the laws of the State of New York.
USE OF BWAY.NET SERVICES CONSTITUTES ACCEPTANCE
OF THESE TERMS AND CONDITIONS.
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