NuWave Technology, Inc.
Service Terms and Conditions Agreement
This Service Terms and Conditions Agreement (“Service Agreement”), consisting of these terms and conditions, the COS (as defined below) and all other documents referenced herein, is entered into as of the date set forth on the COS by and between NuWave Technology, Inc. (“NuWave”) and the individual or entity named on the COS to which this Agreement is attached (“Customer”) and sets forth the terms and conditions under which NuWave will make available its Service (as defined below) Customer has elected to receive (collectively, the “Service”). This Service Agreement governs both residential and business Customers. “Affiliate” means an entity that controls, is controlled by or is under common control with NuWave.
By using the Service, Customer agrees to be bound by the terms of this Service Agreement and all documents incorporated by reference herein, including without limitation NuWave’s Privacy Policy, Broadband Consumer Disclosures and Open Internet Policy, and Additional Terms (terms and conditions that will govern a new service offering) as each may be amended from time to time. If there is a conflict between this Service Agreement and any Additional Terms, the Additional Terms shall govern.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT CUSTOMER UNDERSTANDS EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO CUSTOMER IN THE EVENT OF A DISPUTE. IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICE.
NuWave regularly updates and amends this Service Agreement, the Privacy Policy, the Broadband Consumer Disclosures and Broadband Consumer Disclosures and Open Internet Policy, the Website Terms of Use Agreement and other documents incorporated by reference in this Service Agreement. NuWave will communicate any such updates or amendments to Customer in accordance with Section 17(h).Customer may obtain, at no charge, a copy of the current Service Agreement or any documents incorporated by reference herein by visiting NuWave ’s website or by contacting NuWave.
1. GENERAL OVERVIEW
This Service Agreement governs the following components in NuWave’s Service and Customer may customize Customer’s residential or business Service based on Customer’s needs:
- Internet Access Service – Internet broadband service, as described on the NuWave’s website, including but not limited to NuWave Residential Wireless Internet and NuWave Business Wireless Internet.
- Static IP Address- a number that is assigned to a Customer by NuWave to be its permanent address on the Internet.
2. EQUIPMENT AND REQUIREMENTS FOR PROVISION OF THE SERVICE
(a) Customer Equipment. To use the Service, Customer must have a personal computer or other device and other equipment meeting NuWave’s most recent “Minimum Customer Equipment Specifications,” which are defined on the NuWave’s website and may be modified from time to time by NuWave. The Minimum Customer Equipment Specifications may change, and NuWave may make reasonable efforts to support previously acceptable configurations; however, NuWaveis not obligated to continue to provide such support. Although NuWave is under no obligation to do so, NuWave may, and Customer authorizes NuWave to, perform any updates and/or changes to Customer’s equipment, on-site or remotely, from time to time as NuWave deems necessary, in NuWave’s sole discretion. Customer will direct any questions concerning third-party hardware or software to the manufacturer. NuWave has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that Customer elect to use in connection with the Services. As set forth below and in the Broadband Consumer Disclosures and Open Internet Policy, Customer is not permitted to connect any harmful equipment to the NuWave Equipment (as defined below). Customer understands that failure to comply with this restriction may cause damage to NuWave’s network and subject Customer to liability for damages and/or other liability.Customer agrees to not alter, modify or tamper with the NuWave Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by NuWave.
(b) NuWave Equipment. Customer acknowledges that at the time of installation of the Service, the equipment listed on the confirmation of sale (the “COS”) was installed (such equipment listed in the COS, the “NuWave Equipment”). Customer further acknowledges that the NuWave Equipment may, at NuWave’s sole discretion, be refurbished or otherwise used equipment. Customer agrees that the NuWave Equipment was installed at a location and in a manner authorized by Customer. The NuWave Equipment is and shall remain the property of NuWave, and Customer will be subject to an “Equipment Rental Fee” under the terms set forth in the COS, unless Customer purchases equipment from NuWave outright, and will be provided to the Customer under the terms set forth in the COS. At such time as Customer or NuWave terminate the Service, Customer will return the NuWave Equipment to NuWave within 30 calendar days, and in accordance with NuWave’s then-current return procedures. In the event that Customer have not returned the NuWave Equipment within thirty (30) calendar days as set forth in the previous sentence, or in the event that the NuWave Equipment is damaged or otherwise inoperable, Customer will pay each applicable “Equipment Purchase Price” listed in the COS.
(c) Access to Customer’s Premises. Customer hereby grants NuWave and its Affiliates, and their respective employees, contractors and agents the right to enter Customer’s property and premises at any time for the purpose of operating or maintaining the NuWave Equipment or NuWave’s network, retrieving NuWave Equipment or fulfilling its obligations or exercising its rights under this Agreement. NuWave shall provide Customer with reasonable advance notice of any such planned access, except when, in the reasonable opinion of NuWave, an emergency or other exigent circumstance exists that would require NuWave to immediately enter Customer’s property and premises.
(d) Customer’s Obligation to Maintain Power to NuWave Equipment. Customer understands and agrees that: (i) Customer must provide electrical power and a continuous connection to the power grid to NuWave Equipment at all times (including, without limitation, when Customer is not using the Service), and (ii) Customer’s failure to provide such power and continuous connection may result in damage to the NuWave Equipment or to Customer’s computer, equipment, property or premises, for which damage Customer will be solely responsible.
(e) Replacement and Upgrade of NuWave Equipment
(i) Customer will be solely liable for, and NuWave shall have no obligation to repair, replace or otherwise upgrade, any NuWave Equipment that has been, in NuWave’s sole discretion, damaged or otherwise requires repair, replacement or upgrade as a result of damage or disruption caused by misuse or neglect or otherwise caused by Customer, including, without limitation, damage or disruption caused by Customer’s failure to comply with Section 2(d)herein or by Customer’s failure to comply with the last sentence of Section 2(a) herein.
(ii) Customer understands and agrees that NuWave’s ability to provide an appropriate quality of Service to Customer and the other customers on NuWave’s network may from time to time require upgrades or replacement of the NuWave Equipment, and Customer will be obligated to upgrade any personally owned equipment to meet the standards of the Minimum Customer Equipment Specifications as defined by NuWave on NuWave’s website as may be modified from time to time by NuWave.
(f) Customer understands, acknowledges and agrees that prior to NuWave servicing any Customer equipment or NuWave Equipment under contract with Customer, it is Customer’s responsibility to (A) back-up the data, software, information or other files stored on Customer’s computer or other device including but not limited to disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (B) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Customer’s equipment. Customer agrees that whether or not Customer requests back-up services from NuWave and/or its Operational Service Provider, neither NuWave nor its Operational Service Provider shall be liable under any circumstances for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media.
(g) Customer understands that the Service many not be compatible with, nor does it support, VoIP applications and Customer assumes all risk associated with the same. NuWave does not recommend Customer rely on wireless Internet of VoIP for emergency contacts (such as 911 calls) and NuWave cannot guarantee, and hereby expressly renounces, the reliability of such wireless Internet services.
3. CUSTOMER’S REPRESENTATIONS, RESPONSIBILITIES AND WARRANTIES
(a) If Customer is an individual, Customer represents and warrants that he or she is at least 18 years of age and has legal authority to execute this Agreement. If Customer is a business or commercial entity, Customer represents and warrants that the individual executing this Agreement has legal authority to execute this Service Agreement on behalf of Customer.
(b) Customer agrees that the Service is personal to Customer and agrees not to assign, transfer, resell or sublicense Customer’s rights under this Agreement unless specifically permitted by the terms of this Agreement. For residential Customers, Customer agrees that the Service and the NuWave Equipment shall be used only by Customer and by members of Customer’s immediate household living with Customer at the same address, and Customer will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured. For business Customers, Customer agrees that the Service and the NuWave Equipment shall be used only by Customer and by authorized members of Customer’s business located at the same address, and Customer will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured. Customer acknowledges that Customer is executing this Service Agreement on behalf of all persons who use the Service by means of the NuWave Equipment. Customer agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement and any other documents incorporated by reference in this Service Agreement, whether such breach results from Customer’s use of the Service or by another using Customer’s equipment or the NuWave Equipment.
(c) Customer represents and warrants that Customer will not use the Service in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any local, state or federal statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of NuWave or its Affiliates; or (vi) transmits any virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. NuWave reserves the right to suspend Customer’s access the Service at any time upon receipt of claims or allegations from third parties or authorities or if NuWave is concerned that Customer may have breached this Service Agreement. Customer (and not NuWave or its Affiliates, Operational Service Providers) remains solely responsible for Customer’s use of the Service and any material transmitted through the Service, and Customer warrants that Customer possess all rights necessary to transmit such material.
(d) Customer represents and warrants that the personal identifiable information (“Personal Information”)Customer provided and will provide to NuWave during the term of this Service Agreement, including without limitation Customer’s legal name, email address for communications with NuWave (such email address, as the same may be modified from time to time by Customer upon notice to NuWave, the “Account Email Address”), Service address, billing address, telephone number(s), and payment data (including without limitation information provided when authorizing Automated Clearing House payments or other recurring payments) and Non-Personal Information, such as but not limited to the number of computers on which the Service is being accessed(all such information, collectively, the “Customer Information” for purpose of this Service Agreement is accurate, complete and current. (In the Privacy Policy, Non-Personal Information may also be classified as Personal Information if it is directly associated with or reasonably linked to Customer’s account, computer or device.) Customer agrees to promptly notify NuWave, in accordance with the terms of this Service Agreement, upon the occurrence of any change in the status of Customer’s account (including, without limitation, the creation or removal of an Authorized User (as defined below)) or if there is any change in the Customer Information. Customer’s failure to provide and maintain accurate Customer Information with NuWave constitutes a breach of this Service Agreement.
(e) Customer agrees that Customer is responsible for anyone using the NuWave Equipment, Customer’s computer system, password, name or Customer name in connection with the Service (with or without Customer’s knowledge or consent) and for ensuring that anyone who uses the Service through the NuWave Equipment, Customer’s equipment or access to the Service, does so in accordance with the terms and conditions of this Service Agreement. Customer agrees to take all reasonable measures necessary to ensure that the Service is not used by another person without Customer’s consent. Customer understands, acknowledges and agrees that Customer is responsible for all use of the Service and Customer’s account whether Customer or someone else uses Customer’s account (with or without Customer’s permission).
(f) Customer is responsible for procuring and installing patches, any and all anti-virus and firewall software/hardware and operating system patches, updates or supplements that may be necessary for (i) the protection and maximum functionality of Customer’s computer and related equipment and the NuWave Equipment and (ii) the protection of NuWave’s network and other customers. For purposes of clarification, NuWave and its Affiliates hereby disclaim any and all responsibility and liability for any damages that may arise from Customer’s failure to procure or install the aforementioned security or other software and/or hardware and Customer agree that NuWave and its Affiliates shall have no liability for Customer’s failure to do the same.
(g) Customer represents that there are no legal, contractual or similar restrictions on the installation of the NuWave Equipment in the location(s) and in the manner authorized by Customer. Customer is responsible for ensuring compliance with all regulations, applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the NuWave Equipment and Service, for paying any fees or other charges and obtaining any permits or authorizations necessary for the installation of the NuWave Equipment and/or provision of the Service (collectively, “Legal Requirements”). Customer is solely responsible for any fines or similar charges for violation of any applicable Legal Requirements.
(h) Customer is responsible for backing up the data on Customer’s computer(s) and network(s) and NuWave shall have no liability whatsoever for any loss of data.
(i) Customer agrees to comply with the following terms and conditions for the use of Service:
(i) Service is provided for use in conformance with this Service Agreement. NuWave reserves the right to investigate suspected violations of the Service Agreement. When NuWave becomes aware of possible violations, NuWave may initiate investigation which may include gathering information from Customer or Customers involved and the complaining party, if any, and examination of Customer’s Material on NuWave’s servers. Customer’s Material collectively includes, but is not limited to, any software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content.
(ii) During an investigation, NuWave may suspend the account or accounts involved and/or remove Customer’s Material involved from its servers. If NuWave believes a violation of this Service Agreement has occurred, it may take responsive action at its sole discretion. Such action may include, but is not limited to, temporary or permanent removal of Customer’s Material from NuWave’s servers, warnings to Customer or Customers responsible, and the suspension or termination of the account or accounts responsible. NuWave, at its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Service Agreement could also subject the Customer to criminal or civil liability.
(j) Customer agrees to comply with the following terms for the use of Customer Materials:
(i) Lawful content in the public domain (e.g., images, video, audio, text, data, and programs) may be downloaded or uploaded using the Service. Customer may re-distribute content in the public domain. Customer assumes all risks regarding the determination of whether content is in the public domain.
(ii) Customer is prohibited from storing, distributing, or transmitting any unlawful content through the Service. Examples of unlawful content include but are not limited to direct threats of physical harm, child pornography and copyrighted, trademarked and other proprietary material used without proper authorization. Customer may not post, upload or otherwise distribute copyrighted content without the consent of the copyright holder. The storage, distribution, or transmission of unlawful content could subject Customer to criminal as well as civil liability, in addition to the actions outlined in Section 3(i) above.
(iii) Customer may not store or distribute certain other types of material on NuWave’s servers. Examples of prohibited material include, but are not limited to software, applications and programs containing viruses, trojans and other tools or technology that would compromise the security of NuWave or others.
(iv) Customer represents that when Customer transmits, uploads, posts, or submits any Customer Material using the Service, Customer has the legal right to do so and that Customer’s use of such Customer Material does not violate any copyright or trademark laws or any other third party rights.
(v) Customer agrees that if Customer’s Service is terminated for any reason, NuWave has the right to immediately delete all Customer Material, stored in or for Customer’s account, including but not limited to personal Websites and email, without further notice to Customer.
4. THE SERVICE AND PRIVACY
(a) NuWave has established a Privacy Policy (“Privacy Policy”), which governs NuWave’s collection, use, disclosure, management and security related to Customer’s personally identifiable information (“Personal Information”). Customer agrees that Customer received a copy of the then-in-effect Privacy Policy at the time Customer executed this Service Agreement. Subject to Section 17(g) herein, NuWave may update or amend the Privacy Policy at any time without Customer’s prior consent. NuWave will, however, provide notice of any such changes or amendments as stated in NuWave’s Privacy Policy. Customer understands, acknowledges and agrees that Customer’s continued use of the Service after notice of any changes or amendments have been provided will indicate Customer’s acceptance of such changes, except where further steps are required by applicable law. All such updates or amendments shall be deemed to be incorporated by reference into this Service Agreement.
(b) NuWave has no obligation to monitor content transmitted by use of, or other information related in any way to the provision or receipt of, the Service. However, Customer agrees that NuWave has the right to monitor the Service and any and all information or Customer Material transmitted through the Service or by use of the NuWave Equipment and information available to NuWave regarding Customer’s computer and other equipment in accordance with this Agreement. NuWave has the right at all times and without notice to remove, restrict access to or make unavailable any information or content residing on NuWave’s or its Affiliates’ or Operational Service Providers’ servers. NuWave has the right to monitor, review, retain or disclose any content or other information in NuWave’s possession about or related to Customer (including, without limitation, Customer Information), Customer’s use of the Service, or otherwise, as necessary to satisfy any applicable law, or otherwise as NuWave deems necessary or appropriate in NuWave’s sole discretion.
(c) Customer authorizes NuWave to make inquiries and to receive information about Customer’s credit history from others and to utilize such information in its decision regarding its provision of the Service to Customer.
(d) NuWave may require that Customer use a username and password combination or other reasonable procedures to confirm Customer’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service through NuWave’s authorized Customer service channels. Customer may also choose to designate an authorized user of Customer’s account (an “Authorized User”), who will be permitted to access Customer’s account information and make certain changes to Customer’s account. Customer will be solely liable for any and all action or inaction by any Authorized User.
5. PASSWORDS
(a) Residential accounts are for individual use only. Business accounts are for authorized personnel only.
(b) Residential Customers shall not share passwords or accounts with others. Business Customers shall only provide passwords to authorized personnel.
(c) NuWave shall provide or obtain passwords to protect Customer’s account and Services. In the event that the security of a Customer’s account or Service is compromised, NuWave shall provide Customer with a new password.
(d) NuWave may monitor the security of Customer’s passwords at any time. A Customer with an insecure password may be directed to change the password to one which complies with the above rules. Customers who repeatedly choose insecure passwords may be assigned a password by NuWave; continued failure to maintain password security may be grounds for account termination.
6. SYSTEM SECURITY
(a) Customer is solely responsible for maintaining the security of Customer’s computer(s)/device(s) and data and protection of Customer’s User ID, password and Personal Information and other data. NuWave strongly recommends the use and appropriate updating of commercial anti-virus, anti-spyware, firewall software, and encryption of data, to the extent feasible.
(b) Customer is prohibited from utilizing the Service to compromise the security or tamper with NuWave’s system resources or accounts on any of NuWave’s computers, routers, switches, servers, radios, modems, or any other equipment at NuWave or at any other site. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include but are not limited to password guessing programs, cracking tools, and network probing tools. Any attempt to access any of NuWave’s corporate assets is strictly prohibited.
(c) NuWave reserves the right to release the login names of Customers involved in violating system security to system administrators at other sites, in order to assist them in resolving security incidents. NuWave will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers, subject to NuWave’s Privacy Policy and applicable law.
7. ACCEPTABLE USAGE AND PROHIBITED INTERNET SERVICE ACTIVITIES
(a) “Acceptable Usage of Internet Service” is hereby defined as the normal activities associated with the use of the Internet, including but not limited to usage of NuWave’s systems and network facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet features. Depending on the account type, this may include:
(i) file storage on NuWave’s servers for Customer’s own personal web page and file access area (FTP), etc.
(b) “Prohibited Internet Service Activities” specifically prohibited by NuWave include but are not limited to the following:
(i) Background and/or server-type applications – Including but not limited to IRC bots, HTTP servers, MUDs, and any other process which were initiated by the Customer that continues execution on the system upon Customer logout.
(ii) Long-term storage of data – Long-term storage of data is referred to as the storage of files which are not used regularly in an account for an extended period of time. This specifically includes, but is not limited to, programs such as shareware programs which the Customer may download to their account for purposes of transferring to their home computer(s)/device(s). Such programs should be removed at such time as they are successfully transferred to the Customer’s personal system.
(iii) Flooding or abuse of other users – Flooding is a fairly common occurrence on the Internet, and one which is dealt with strictly by NuWave. Flooding takes place in numerous ways, including, but not limited to, ICMP flooding, mail bombing (sending large amounts of email repeatedly to a person for purposes of harassment), phishing, mass mailings to multiple addresses via bulk email, MSG/CTCP flooding on IRC, as well as other, less common methods. “Bulk Email” is defined as the same or similar email messages sent to more than 25 recipients.
(iv) Attempts to compromise system and/or network security – Programs such as packet sniffers, password crack programs, and similar utilities found to be running from Customer’s account are prohibited. This also includes attempts to hack into non-NuWave systems.
(v) Sharing of accounts – Sharing Customer’s Internet Service with another party for purposes of avoiding payment for a second Service is strictly prohibited. Customer may connect multiple computers/devices within a single location to Customer’s modem, router, and/or radio to access the Internet Service, but only through a single NuWave-issued IP address.
(vi) PPP/SLIP emulation software – Since PPP/SLIP is a product offered by NuWave, Customers desiring such access are required to sign up for that service rather than attempting to emulate it by software. Any such software will be removed from Customer’s account by NuWave immediately when found.
(vii) Bulk broadcast data – This includes flood pinging, broadcast pinging, multicast, or IGMP use outside of the private network.
(viii) Port scanning.
(ix) Conducting business through a residential account – The residential Customer Internet accounts provided by NuWave are designed for the home/casual Customer and may not provide the level of service, capacity or speed required for conducting business. Therefore, conducting business with a residential account is not advisable. Please contact NuWave’s sales department to upgrade to a business account.
(x) Excessive use of system resources – This includes, but is not limited to, the continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system. Customer may not resell Service.
(xi) Email abuse – Email abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals, the sending of harassing and/or threatening messages to other users, and the forging of email addresses so as to make the email appear to be from another user.
(xii) USENET news abuse – Similar to email abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted.
(xiii) Pyramid/money-making schemes – Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited.
(xiv) Pirated software – Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. This includes most commercial applications such as Adobe Photoshop, Microsoft Office, etc. Such activities are prohibited by Federal law and are thus not allowed in any form on NuWave. Such prohibition also includes the unauthorized copying of copyrighted material including, but not limited to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited.
(xv) High-traffic websites – Residential internet service is intended to provide access to individuals only. As most individuals primarily download content, rather than upload it,the performance for everybody on the systems is optimal. However, some individuals occasionally choose to host content on their account that could degrade performance for other users.Due to this, NuWave has had to implement certain limitations on the amount of web hosting traffic an individual customer’s account can receive. Typically an account can safely upload250 MB per day without causing excessive load. Accounts generating more than this daily amount may be charged an overage fee, as set forth in the Broadband Consumer Disclosures.
8. PENALTIES FOR VIOLATIONS OF SERVICE AGREEMENT
(a) Prohibited Internet Service Activities as defined in Section 7herein are subject to immediate termination of Customer’s account and any and all criminal and civil penalties available under the law. The penalties imposed on Customer for such violations will vary based on the level of the offense.Typically Customer will receive a warning on the first offense. However, if the offense is severe enough, NuWave reserves the right to disable the account immediately. Accounts which have been disabled for abuse will not be re-opened. It is vital for NuWave to provide a quality service for all Customers, and NuWave will not tolerate Customers who through their actions hinder NuWave in that endeavor. It is also important for NuWave to have a non-intrusive presence to the rest of the Internet, and thus prohibit activities that adversely affect Customers on other service providers and their associated networks. To this end, NuWave reserves the right to modify and/or disable Service at any such time the Customer violates this Service Agreement.
(b) NuWave will not reimburse Customer when Service has been suspended or disabled due to violations of this Service Agreement.
(c) If Service is disconnected for non-payment, NuWave is not obligated to re-connect Customer’s Service. However, if Customer desires re-connection, and NuWave agrees to do so, Customer agrees to pay a “Re-installment Fee” plus any amount past due under Customer’s COS. The amount of the re-installment fee is set forth on the Customer’s COS.
9. SOFTWARE LICENSES AND THIRD PARTY SERVICES
(a) NuWave may provide Customer software for use in connection with the Service which is owned by NuWave or its third party licensors, third party suppliers, and Operational Service Providers (“Software”). Such software will be subject to an additional fee. NuWave reserves the right periodically to update, upgrade, or change the Software remotely or otherwise and to make related changes to the settings and software on Customer’s computer(s)/device(s) or Equipment, and Customer agrees to permit such changes and access to Customer’s computer(s)/device(s) and Equipment. Customer may use the Software only in connection with the Service and for no other purpose.
(b) Certain Software may be accompanied by an end user license agreement (“EULA”) from NuWave or a third party. NuWave’s use of the Software is governed by the terms of that EULA and by this Agreement, where applicable. Customer may not install or use any Software that is accompanied by or includes a EULA unless Customer first agrees to the terms of the EULA.
(c) For Software not accompanied by a EULA, Customer is hereby granted a revocable, non-exclusive, non-transferable license by NuWave or its applicable third party licensor(s) or Operational Service Provider to use the Software (and any corrections, updates and upgrades thereto). Customer may not make any copies of the Software. Customer agrees that the Software is confidential information of NuWave or its third party licensors/Operational Service Providers and that Customer will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by NuWave or its third party licensors/Operational Service Providers. Customer may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. Customer may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. Customer is not granted any title or rights of ownership in the Software. Customer acknowledges that this license is not a sale of intellectual property and that NuWave or its third party licensors/Operational Service Providers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.
10. CUSTOMER’S PAYMENT OBLIGATIONS
Failure to fulfill any payment obligations in a timely manner as provided herein will be considered to be a violation of this Service Agreement and Customer’s COS.
(a) Deposit. Prior to the Installation Date defined in the COS, Customer may be required to pay an “Initial Deposit,” set forth in the COS. At the time of installation of the Service, Customer is required to pay the “Basic Installation Fee” and “First Service Payment” set forth in the COS.The First Service Payment is payment for a full Billing Cycle; at the termination of Service the First Service Payment will be prorated and any credit will be applied to Customer’s final payment. Together, any Initial Deposit, Basic Installation Fee Due, and First Service Payment constitute the “Total Deposit”. Customer agrees that the Total Deposit is to be paid in consideration of NuWave’s making the Service available on the terms and conditions set forth in this Service Agreement, that NuWave has earned the Total Deposit in full and that the Total Deposit is refundable only if the Service is not working within seven (7) days of the Installation Date.
(b) Customer agrees to pay the Basic Installation Fee and the First Service Payment, as well as any recurring Service Fee on or before the first day of Customer’s “Billing Cycle”. Customer may elect a monthly, semimonthly, quarterly or annual Billing Cycle, and may change their Billing Cycle election per notification to NuWave per the notification procedures set forth in Section 17(h). Except as set forth on the COS, Customer’s Billing Cycle begins on the day Customer signs the COS. Notwithstanding the foregoing, NuWave may modify Customer’s Billing Cycle upon at least 15 calendar days’ advance notice to Customer.
(c) Customer agrees to pay the applicable “Service Fee”set forth in the COS , in advance, prior to the first day of the Billing Cycle, on or before the eleventh (11) day of each calendar month. The Service Fee for the first month includes the pro-rated fees of the first billing term of service and the Service Fee. For each Billing Cycle thereafter, the full Service Fee is due for any part of a billing term for which service is provided.
(d) Customer bears the sole responsibility to timely pay the Service Fee when due. Bills will be sent via email to the Customer’s Account Email Address. It is Customer’s sole responsibility to have a valid Account Email Address on file with NuWave. On-line billing is available if set up in advance with Customer and NuWave. Customers may pay their bill with cash, check, credit card or debit card (Master Card, Discover or Visa), or ACH (Automated Clearing House; direct withdrawal from checking or savings account) only. NuWave may require a deposit or other guaranteed form of payment (such as payment card or bank account debit authorization) from Customer. If Customer owes money on any account, NuWave may deduct the amounts owed from any existing credit Customer has or any security deposit provided or, if applicable, charge them to the bank or payment card account Customer has authorized NuWave to use.
(e) For each Billing Cycle with respect to which Customer does not pay on time (including without limitation if Customer’s Service Fee is not received by NuWave on or before the first day of the Billing Cycle), Customer agrees to pay the “Billing Administrative Fee” as established by NuWave from time to time. Customer and NuWave specifically agree that the Billing Administrative Fee is not a late fee, but rather is intended to compensate NuWave for its additional expense incurred in processing irregular payments, and may be changed at any time without notice to Customer. There is also a “Returned Check Fee” established on the COS for the administrative costs related to returned checks.
(f) NuWave shall not be obligated to provide the Service during Billing Cycles for which Customer has not paid the applicable Service Fee in advance.If at any time Customer’s account has past due amounts or upon Customer’s violation of this Agreement (including any documents incorporated by reference herein), NuWave may, in NuWave’s sole and absolute discretion, suspend provision of the Service to Customer and/or terminate this Agreement.Amounts are past due if not paid before the first calendar day of Customer’s Billing Cycle. Customer understands, acknowledges and agrees that NuWave is not required to provide notice before suspending the Service and/or terminating this Agreement, and NuWave will not be liable to Customer or any Authorized User for any such suspension or termination or any damages that may result therefrom. In order to restore service after a disconnection, Customer agrees to pay the applicable “Re-installment Fee” set forth in the COS.
(g) In order for Customer to terminate the Service, Customer shall follow the termination procedures described in Section 16. Customer agrees to pay the “ Service Fee” set forth in the COS, which may change from time to time subject to advance notice by NuWave. All accounts 60 days or more past due will be turned over to collections and Service discontinued permanently.
(h) Customer also agrees to pay all applicable federal, state, and local taxes and fees, including, but not limited to, those imposed after the date of execution of the COS.
11. SERVICE LEVEL AGREEMENT AND REFUNDS
(a) Service Level Agreement. In the event Customer experiences a Service outage for more than three (3) consecutive days and is unable to transmit and receive information through NuWave’s network to other portions of the Internet and Customer notifies NuWave immediately of such event and NuWave determines that such inability was caused by NuWave’s failure to provide said services for reasons within NuWave’s reasonable control and not as a result of any actions or inactions of Customer or any third parties (including failure of third party equipment), and such inability is not a result of scheduled maintenance of NuWave’s equipment or services, NuWave will, upon Customer’s request, credit Customer’s account the connectivity charges for the length of the outage. Customer credit may not exceed the Service Fee in any single calendar month.
(b) Refunds. If Service cannot be supplied by NuWave for any reason, a full refund will be given for any prepaid Service Fee and equipment returned in new resalable condition. Service may be cancelled without penalty within30 days of service installation for quality of service issues. A full refund will be given for equipment returned in new resalable condition and for any remaining portion of prepaid service charges pro-rated daily. All other payments are non-refundable.
12. DISCLAIMER OF WARRANTIES
(a) CUSTOMER EXPRESSLY AGREES THAT CUSTOMER USES THE SERVICE AND THE NUWAVE EQUIPMENT AT CUSTOMER’S SOLE RISK. THE SERVICE AND NUWAVE EQUIPMENT ARE PROVIDED ON AN “AS-IS”AND “AS AVAILABLE” BASIS AND EXCEPT TO THE LIMITED EXTENT SPECIFICALLY SET FORTH IN SECTION 2 HEREIN, IF APPLICABLE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANT ABILITY. NEITHER NUWAVE NOR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD PARTY SUPPLIERS OR SOFTWARE LICENSORS WARRANTS: (I) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICE; (II) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (III) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; OR (IV) THAT ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA OR FILES CUSTOMER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO CUSTOMER’S COMPUTER OR DEVICE. THIS INCLUDES, BUT IS NOT LIMITED TO, INCIDENTS OF FILE SHARING, PRINT SHARING OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO CUSTOMER’S COMPUTER, DEVICE, OR NETWORK OR NUWAVE EQUIPMENT, OR TO MONITOR CUSTOMER’S ACTIVITY AND CONDUCT WHILE USING THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM NUWAVE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
(b) In addition, NuWave may, in its sole discretion, make available to Customer security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, parental control software, anti-spyware or anti-adware software for Customer’s use on Customer’s computer system(s) in conjunction with the Service. Any such security software provided by NuWave to Customer is intended to provide only a minimal level of protection to Customer’s computer system(s). CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT NUWAVE AND ITS AFFILIATES, AGENTS, THIRD-PARTY SUPPLIERS AND LICENSORS OF ANY SUCH SECURITY SOFTWARE, DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. CUSTOMER UNDERSTANDS AND AGREES THAT NUWAVE AND ITS AFFILIATES,AGENTS, THIRD PARTY SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM(S) (OR THE INFORMATION STORED THEREIN) THAT MAY RESULT FROM USE OF THE SECURITY SOFTWARE OR FROM ITS NON-PERFORMANCE.
(c) EXCEPT AS SPECIFICALLY SET FORTH IN THE COS, CUSTOMER UNDERSTANDS AND AGREES THAT NEITHER NUWAVENOR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS OR THIRD PARTY SUPPLIERS GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON NUWAVE’S NETWORK OR THAT ANY SPEED OR THROUGHPUT OF CUSTOMER’S CONNECTION TO NUWAVE’S NETWORK WILL BE AVAILABLE TO CUSTOMER. Customer understands, acknowledges and agrees that the availability and speed of the Service provided at Customer’s premises may vary depending upon a number of factors, including Customer’s computer system(s), associated equipment and other devices accessing the Service, the terrain and location of Customer’s premises, foliage between NuWave Equipment and other components of NuWave’s network, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond NuWave’s control and system failures, modifications, upgrades and repairs.
(d) Customer understands, acknowledges and agrees that NuWave is NOT responsible for: obstructions that might be erected or grow between Customer’s antenna and NuWave’s network antenna causing a degradation or loss of service; equipment upgrades necessary over time to address changes in foliage or other reasons; debris or ice on antenna; re-aiming the antenna; reconfiguration of network settings due to, but not limited to, tampering or re-installation of operating systems; physical or electronic damage to Customer’s or third party’s person or equipment, including but not limited to damage caused by lightning or by the equipment itself; damage caused by hackers or viruses; or loss of data, whether such data resides on NuWave servers or not.
(e) Customer understands, acknowledges and agrees that NuWave may in the future offer other Customers on NuWave’s network Service with specific minimum service standards (including, without limitation, minimum standards for speed, bandwidth, latency or availability) (such minimum service standards that may be offered in the future “Future Enhanced Service”). Customer further understands, acknowledges and agrees that NuWave shall be under no obligation to provide any Future Enhanced Service to Customer unless and until NuWave and Customer have executed a new agreement with respect to such Future Enhanced Service, which agreement may include, without limitation, such increased or modified Service Fee and additional terms and conditions as NuWave and Customer may agree.
(f) Customer understands, acknowledges and agrees that NuWave may use various tools and techniques in order to efficiently and reasonably manage its networks and to ensure compliance with NuWave’s Broadband Consumer Disclosures and Open Internet Policy and Section 7 above (such tools and techniques, “Network Management Tools”). These may include detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code or managing network resources through techniques such as limiting the number of simultaneous peer-to-peer sessions that Customer may conduct, and such other Network Management Tools as NuWave may from time to time determine appropriate. Customer also understands, acknowledges and agrees that, to allocate bandwidth across all of its Customers, NuWave may employ traffic-management technology, including but not limited to packet-reset technology, which technology may materially slow the uploading of certain files.
(g) Customer understands, acknowledges and agrees that, in order to provide redundancy or increased efficiency or otherwise to enhance NuWave’s network, NuWave may install additional equipment at Customer’s premises, and any such equipment not set forth in the COS shall be deemed to be NuWave Equipment for the purposes of this Agreement. Customer further understands, acknowledges and agrees that NuWave may use the NuWave Equipment to provide Service to others in a manner that secures and separates Customer’s traffic and local area network from Service provided to others.
(h) Customer understands, acknowledges and agrees that NuWave does not warrant that Service descriptions, information, graphic depictions, fees, product and or other components of the Service are accurate, reliable, updated, current, complete or error-free. Despite NuWave’s efforts, it is possible that a price for the Service (or a component of the Service) offered on NuWave’s website, or the Service description may be inaccurate in some part. In the event NuWave determines that a Service contains an inaccurate price or description, NuWave reserves the right to take any action NuWave deems reasonable and necessary, in NuWave’s sole discretion, to rectify the error, including without limitation, canceling Customer’s order, unless prohibited by law. NuWave may make improvements or changes to any of NuWave’s information, or Services described on NuWave’s websites at any time without notice. Customer agrees to notify NuWave immediately if Customer becomes aware of any pricing or descriptive errors or inconsistencies with any Services Customer order and to comply with any corrective action that NuWave may take.
(i) THIS SERVICE AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
13. LIMITATION OF LIABILITY
(a) STATUTE OF LIMITATIONS: CUSTOMER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.
(b) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL NUWAVE OR ITS AFFILIATES, AGENTS, OPERATIONAL SERVICE PROVIDERS, THIRD PARTY LICENSORS OR THIRD PARTY SUPPLIERS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR AGENTS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS SERVICE AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO CUSTOMER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF NUWAVE UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 US).
(c) ADDITIONALLY, NUWAVE WILL HAVE NO LIABILITY FOR THE FOLLOWING:
(i) FOR ANY AMOUNT IN THE IN EXCESS OF ONE HUNDRED DOLLARS ($100.00 US);
(ii) FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES;
(iii) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER;
(iv) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
(v) FOR ANY DAMAGES OR LOSS DUE TO CUSTOMER’S FAILURE TO BACK UP ANY EQUIPMENT AS REQUIRED IN SECTION 2(f) HEREIN;
(vi) ANY LACK OR BREACH OF SECURITY CUSTOMER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE;
(vii) FOR ANY MATTER BEYOND NUWAVE’S REASONABLE CONTROL;
(viii) FOR ANY INTERFERENCE OR INCOMPATIBILITY WITH OR DISRUPTION OF ANY NON-VOICE SYSTEMS, WHETHER CAUSED BY THE TELEPHONY SERVICE, INTERNET SERVICE, EQUIPMENT, OR OTHERWISE; OR
(ix) CUSTOMER’S USE OF THE SERVICE FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS SERVICE AGREEMENT.
(d) Customer understands, acknowledges and agrees that NuWave may block traffic to or from any source, including, without limitation, the deletion of any electronic mail, as it deems necessary to secure its network or eliminate spam. Customer agrees that NuWave shall be entitled to damages if Customer transmits or is otherwise connected with the transmission of spam. Customer agrees that NuWave is entitled to actual damages, however, if actual damages cannot be reasonably calculated, Customer agrees to pay NuWave liquidated damages of five dollars for each piece of spam transmitted from or otherwise connected with Customer’s account. Customer will be charged at NuWave’s hourly rate of $145.00, and in the minimum be charged for at least one (1) hour, for NuWave’s response to complaints from, and clean-up for, unsolicited commercial mailing, unauthorized bulk mailings and/or server violations
(e) Customer understands, acknowledges and agrees that when using the Service to access the Internet or any other online network or service, there are certain risks that may enable other Internet users to gain access to or use of Customer’s computer(s) or other equipment. Customers are responsible for putting in place and should put in place all appropriate security measures when using the Service. Customers are responsible for any misuse of the Service that occurs through Customer’s account, whether by a member of Customer’s household or an authorized or unauthorized third party.
(f) This Section 13, Limitation of Liability, will survive termination or expiration of this Service Agreement, whether terminated by the Customer or the NuWave, for any reason.
14. AGREEMENT TO ARBITRATE
(a) CUSTOMER AND NUWAVE AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN CUSTOMER AND NUWAVE THAT THEY ARE NOT ABLE TO RESOLVE THROUGH GOOD FAITH DISCUSSION. The agreement between Customer and NuWave to arbitrate all disputes and claims between them is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between Customer and NuWave, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory,claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising), claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class and claims that may arise after the termination of this Agreement. For the purposes of this Section 14, references to Customer include Customer’s subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the Service. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND NUWAVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THIS AGREEMENT. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(b) A party who intends to seek arbitration must first send to the other, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to NuWave must be addressed to NuWave at the address set forth in this Service Agreement for notices.An Arbitration Notice to Customer must be addressed to Customer at Customer’s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and NuWave do not reach an agreement to resolve the claim within 60 calendar days after the Arbitration Notice is received, Customer or NuWave may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by NuWave or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or NuWave is entitled.
(c) The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or written request to the NuWave. The arbitrator shall be bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction. Unless Customer and NuWave agree otherwise, any arbitration hearings shall take place in Mercer County, Ohio. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both parties including, without limitation, legal fees and expenses.
(d) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. CUSTOMER AND NUWAVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and NuWave agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(e) Notwithstanding any provision in this Agreement to the contrary, Customer and NuWave agree that if NuWave makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Customer may reject any such change by sending NuWave written notice within 30 days of the change. By rejecting any future change, Customer agrees that Customer will arbitrate any dispute between Customer and NuWave in accordance with the language of this provision.
15. INDEMNIFICATION
Customer agrees to indemnify, defend and hold harmless NuWave, its Affiliates, Operational Service Providers, agents, third party licensors and suppliers and their respective members, officers, directors, employees, agents, representatives and contractors, and each of their successors and assigns (collectively, the “NuWave Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys’ fees) and other claims brought against any NuWave Indemnitee(s) related to Customer’s use of the Service or any violation of this Service Agreement and all other documents incorporated herein by reference) including, but not limited to, claims that Customer’s use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third party, Customer’s violation of any law or the rights of another and claims resulting from Customer’s negligence. Customer agrees to pay any attorneys’ fees incurred by NuWave and/or any other NuWave Indemnitee in connection with the defense of any such third-party claims. NuWave reserves the right to assume the defense and control of any matter subject to indemnification by Customer, in which event Customer will cooperate with NuWave in asserting any available defenses.
16. TERMINATION OF THE SERVICE
(a) IF CUSTOMER CANCELS THE SERVICE OR ANY ASPECT THEREOF FOR ANY REASON, NUWAVE SHALL NOT BE REQUIRED TO REFUND CUSTOMER ANY PORTION OF THE SERVICE FEE PAID BY CUSTOMER FOR THE MONTH IN WHICH CANCELLATION OCCURS, UNLESS REQUIRED OTHERWISE BY STATE LAW.
(b) Customer may terminate the Service at any time during the Billing Cycle. Termination notices must be sent to NuWave as set forth in Section 17(h) of this Service Agreement. NuWave may take reasonable steps to verify Customer’s identity and authority before effecting such termination. Upon termination, Customer agrees to pay any account balance and to return any NuWave Equipment within thirty (30) days of expiration of the Billing Cycle or pay the Equipment Purchase Price as set forth in Section 2(b) herein.Any portion of the First Service Payment or Service Fee that is credited to Customer’s account will be applied to the final account balance.
(c) The Service and all Service features are subject to availability on an ongoing basis. Customer understands that NuWave may cease to offer the Service or any Service feature at any time, for any reason or no reason, and without notice to Customer. Without limiting the generality of the foregoing, NuWave may suspend, disconnect or terminate the Service at any time without prior notice if NuWave believes in its sole discretion that Customer has (i) failed to pay Customer’s bill when due, (ii) threatened or harassed any NuWave employee, agent or contractor,or (iii) violated any other provision of this Service Agreement.
(d) If the Service to Customer is disconnected for any reason or Service is suspended in accordance with this Agreement, NuWave may charge Customer (i) for Service during the period of disconnection or suspension in accordance with applicable federal and state law and (ii) reasonable disconnection and reconnection fees.
(e) In the event that Customer’s account is suspended, disconnected or terminated, no refund, including of fees paid by Customer to NuWave, shall be granted. Moreover, NuWave shall not be responsible for the return of data stored on NuWave’s servers, including web and email servers. Customer agrees that NuWave has no obligation to visit Customer’s home upon termination to reconfigure Customer’s computer(s) or for any other reason.
(f) Sections 3 through 7, and 10 through 17 herein shall survive any termination or expiration of this Agreement.
17. GENERAL PROVISIONS
(a) This Service Agreement (including all documents incorporated herein by reference) constitutes the entire agreement with respect to the Service. This Service Agreement supersedes and nullifies all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.
(b) The Parties agree that any Affiliates, Operational Service Providers, agents, third party suppliers and licensors of NuWave are intended beneficiaries of this Service Agreement. Except as set forth in the previous sentence, this Agreement is not intended to give and does not give any rights or remedies to any person other than Customer and NuWave.
(c) No agency, partnership, joint venture, or employment relationship is created as a result of the Service Agreement and neither party has any authority of any kind to bind the other in any respect.
(d) NuWave shall not be liable for any failure to perform its obligations here under where such failure results from any cause beyond NuWave’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference).
(e) This Service Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Ohio without regard to conflicts of law provisions. Subject to the agreement between Customer and NuWave with respect to arbitration of any disputes, Customer agrees that the federal and state courts of Ohio alone shall have jurisdiction over all disputes arising under this Service Agreement and Customer consents to the personal jurisdiction of those courts.
(f) NuWave’s failure to exercise or enforce any right or provision of this Service Agreement shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of this Service Agreement shall, to any extent, be held invalid, illegal or unenforceable, the remainder of this Service Agreement shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties.
(g) NuWave may change, amend, alter, or modify this Service Agreement at any time. NuWave may notify Customer of any change either by posting that change on NuWave ’s website (www.NuWaveTech.com), and by sending Customer an email or by U.S. mail. If Customer continues to use the Service after such notice has been made, Customer agrees that such continued use shall be deemed to be Customer’s acceptance of those changes. The current version of this Service Agreement, as the same may be modified by NuWave from time to time, shall supersede any prior version of this Service Agreement that may have been provided to Customer at any time.
(h) Except as specifically set forth in this Service Agreement, any notices under this Agreement shall be effective as follows:
(i) If to Customer: notice shall be made by (i) email to Customer’s Account Email Address; (ii) by first-class mail to Customer at Customer’s billing address then on file with NuWave; or (iii) when posted to the Announcements page of NuWave ’s website. If by email, such notice shall be deemed effective when transmitted by NuWave. If by first-class mail, such notice shall be deemed effective upon the earlier of (a) three business days after dispatch or (b) at such time as actually received by Customer.
(ii) If to NuWave: notice shall be made by first-class mail to NuWave at 3259 St. Rt. 219, Coldwater, Ohio, 45828,by email to sidneyr@nuwavetechinc.com, or such other address as NuWave may from time to time publish to Customer, and such notice shall be deemed effective upon receipt.
(i) Customer may not assign this Agreement, or Customer’s rights or obligations under this Service Agreement, without NuWave’s prior written consent, and any purported assignment by Customer without such consent shall be void. NuWave may transfer or assign any portion or all of this Service Agreement at any time without notice to Customer, and Customer waives any notice that may be required by law
Customer and NuWave have executed this Service Agreement by their signatures (or, in the case of NuWave, the signature of NuWave’s authorized person) on the COS.