(Terms and Conditions of Use)
1. VANIR BROADBAND, INC. Defined
Vanir Broadband, Inc. (hereinafter called “Vanir Broadband, Inc.” or the “Company”), an Oregon Corporation, sells and installs radio, video and computer related hardware, software and enterprise solutions used in networking, telephony and internet connectivity applications and provides direct access to broadband (hereinafter referred to as “Access Services”) through its proprietary wireless network as well as other land based transmission lines and wireless communications systems owned and operated by others. Vanir Broadband, Inc. is not an Internet service provider (ISP) or a “telecommunications utility” as defined in ORS Chapter 759.
2. Definition of Customer, Subscriber and User
This User Agreement (“Agreement”) is between Vanir Broadband, Inc. and those individuals or non-natural persons including, but not limited to, corporations, limited liability companies, limited liability partnerships, limited partnerships or other discrete, legally established and recognized corporate entities (“Person” or collectively “Persons”) contracting with the Company for Access Services (“Customer” or “Subscriber”) and/or Persons using the Company’s Access Services through a Customer’s account (“User”). Those individuals acting on behalf of a non-natural Person shall be jointly and severally liable for the acts of that entity.
A “Customer” (or collectively “Customers”) shall be defined herein as a Person who has contracted with the Company for Access Services. In certain situations this Person may also be referred to as a “Subscriber”. The words Customer and Subscriber may be used interchangeably within the context of this Agreement. For the purpose of this Agreement a Customer is always considered to be a “User” (as defined below).
A “User” (or Collectively “Users”) shall be defined herein as any Person or Persons using Access Services provided by the Company or a Customer with or without the knowledge or approval of the Customer. In all cases the Customer shall be jointly and severally liable for any and all acts of a User or Users who employ the Customer’s Access Services.
“Parties” shall mean, collectively, the Company and Person or Persons entering into this Agreement.
Within this Agreement the terms Customer, Customers, User, Users, Subscriber and Subscribers may also be referred to as “you” or “your” or “it” in certain contexts and the Company may also refer to itself using the terms “we”, “our” or “it “ in certain contexts. The use or substitution of singular and plural pronouns shall be construed to be consistent with the general meaning and context in which they appear.
3. Access Services
Vanir Broadband, Inc. provides broadband access through a network of wireless radio signals, traditional telephone lines and fiber optic cable. Vanir Broadband, Inc. is not an Internet service provider and does not provide web browsing, hosting or e-mail services. Broadband access is available twenty four hours per day, seven days a week, excluding short maintenance periods and unforeseen interruptions of service that occur infrequently throughout the network, and subject to certain limitations based on the User’s subscription plan. A telephone line is not required to receive service however Users must have a legally approved sending and receiving device, a discrete power source and an appropriate antenna to receive a Vanir Broadband, Inc. radio signal.
There are no additional charges for the number of Log-on attempts or a limit to the number of times the User may attempt to log-on to the network. Unmetered or unlimited access does not guarantee that every log-on attempt is successful. Factors influencing successful log-on attempts include the availability and operating condition of various telephone companies’ equipment and services, Vanir Broadband, Inc.’s equipment or services and the User’s equipment.
All User sessions are restricted to personal, attended, interactive use only unless otherwise agreed, in writing, by the Company. The User is not allowed to keep the session alive by means of activating an e-mail program that checks mail automatically in predetermined time intervals, or any program which periodically sends data to our system when the User is not actively using the network. This includes, but is not limited to, “ping bots” or other methods of avoiding timed disconnection. Users who stay connected for a exceptionally long period of time may be disconnected or asked to purchase a commercial access plan. Vanir Broadband, Inc. reserves the right to disconnect idle connections and limit usage as it feels is appropriate to insure the highest level of service to the greatest number of customers.
The User is not permitted to run any type of on-line server activity, connect to a BBS or other system used by multiple persons without subscribing to a commercial access plan specifically designed for such use. Special rates are available upon request.
You agree not to make any deliberate attempt to cause traffic levels to Vanir Broadband, Inc. or its network(s) to rise without reason or for malicious purpose (i.e. transmitting large files to people for nefarious purposes, “e-mail bombing”, transmissions intended to raise the cost of another network provider’s access through generating excessive traffic levels, etc.) Scanning or using a Brute Force utility on any IP address is strictly prohibited.
4. Internet Warning
If you use Access Services as a gateway to the Internet; third party ISP’s or online search engines may list, direct or otherwise link you to various websites that may contain information or material that some people find inappropriate or offensive. These websites are not under the control of Vanir Broadband, Inc., and you acknowledge that the Company is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. Accessing objectionable or inappropriate material through the use of our Access Services does not imply the Company’s endorsement or any association with the offensive content. Vanir Broadband, Inc. provides only a gateway for the User to connect to broadband. Vanir Broadband, Inc. has no control over material accessed by User on the Internet. Users may avail themselves of any information or service(s) available through digital transmission as long as it is for legal purposes. Any User engaging in an illegal activity will be immediately suspended from access and reported to the appropriate law enforcement authority.
5. Acceptance of Terms Through Use
Access Services provides Users the opportunity to share bandwidth capacity the Company leases from others. Users may sublease bandwidth capacity received from the Company to other third parties consistent with the terms and conditions contained herein. Customers accept full responsibility for their use of any bandwidth supplied by or through the Company’s Access Services and shall not rely on the Company for any Internet services generally associated with, or provided by, an ISP including, but not limited to, e-mail tools, web site hosting, Internet navigation tools, electronic computer virus protection, or any other data security safeguards. By using our Access Services, you consent to all terms, conditions, and notices contained or referenced herein. If you do not agree to these Terms and Conditions of Use you are not authorized to use our Access Services and are hereby directed to refrain from doing so. Vanir Broadband, Inc. may unilaterally amend or otherwise modify this Agreement from time to time without prior notice. The User agrees that the Company’s posting of any amendments or modifications on our access authorization website (www.vanirbb.com) shall constitute adequate notice to User and that User will periodically consult this website for any changes or amendments to this Agreement. Vanir Broadband, Inc. may, but is not under any obligation to, provide additional notice of any amendment, modification or update to this Agreement. If any material modification to this Agreement is unacceptable to User it shall be User’s responsibility to terminate their subscription as provided in Section 4 of this Agreement. If User does not terminate the Agreement then User’s continued use will mean that he has accepted the amended or modified Agreement.
6. Duration of Agreement and Cancellation Policy
The Initial Term as indicated on the Customer’s initial contract for service or installation contract (“Order Form”) shall begin upon commencement of the Access Services to the Customer. After the Initial Term, this Agreement shall automatically renew on a month to month basis unless otherwise specified in writing between the Parties or terminated by either party as provided herein. During the Initial Term this Agreement may not be terminated by the Customer for any reason.
This Agreement may be terminated by either party by giving written notice at least 15 days prior to the renewal/anniversary date of the Term or; by Vanir Broadband, Inc. in the event of nonpayment by the Customer or; by Vanir Broadband, Inc. at any time, without notice, if in the Company’s judgment the Customer has in any way breached this Agreement.
If Vanir Broadband, Inc. terminates Customer’s Access Services pursuant to any of the terms outlined in this Agreement Vanir Broadband, Inc. shall not refund to the Customer any fees paid or prepaid in advance of such cancellation and the Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination.
If prior to the end of the agreed upon Term, the Customer cancels the Access Services for any reason, or Vanir Broadband, Inc. terminates the Agreement due to Customer’s breach of these Terms and Conditions of Use, the Customer will be charged an early termination fee equal to the fee for such account remaining in the term. At no point shall the Customer receive a refund of any prepaid service fees.
7. Disclaimer of Warranty
USER AGREES THAT ITS USE OF THE COMPANY’S ACCESS SERVICES AND RELIANCE UPON INFORMATION BY VANIR BROADBAND, INC. ARE ENTIRELY AT USER’S SOLE RISK. ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, OR SERVICES INCLUDED IN OR AVAILABLE THROUGH ACCESS SERVICES (“CONTENT”) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITH RESPECT TO ACCESS SERVICES, VANIR BROADBAND, INC. DOES NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE, OR CORRECT; THAT SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE CONTENT IS FREE FROM “COMPUTER VIRUSES” OR OTHER HARMFUL COMPONENTS OR; THAT THE SECURITY OF THE USER’S SYSTEM OR DATA IS PROTECTED IN ANY WAY FROM INFILTRATION BY OTHERS. THE COMPANY IS NOT RESPONSIBLE FOR ANY LOSS THE USER MAY SUFFER AS A RESULT OF USING VANIR BROADBAND, INC.’S ACCESS SERVICES INCLUDING, BUT NOT LIMITED TO LOSS RESULTING FROM DELAYS, IMPROPER OR INCOMPLETE DELIVERY OF INFORMATION, HARDWARE OR SOFTWARE FAILURE AND/OR INTERRUPTION OF SERVICE, REGARDLESS OF THE CAUSE.
NEITHER VANIR BROADBAND, INC., ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER VANIR BROADBAND, INC. NOT ITS OWNERS, EMPLOYEES, AGENTS OR AFFILIATES MAKES ANY WARRANTIES THAT THE ACCESS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE APPLICATION OF THE ACCESS SERVICES. VANIR BROADBAND, INC. IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USER THROUGH ACCESS SERVICES. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY VANIR BROADBAND, INC. MEMBER, EMPLOYEE, OR AGENT WILL CREATE A WARRANTY; NOR MAY USER OR ANY OF USER’S OWNERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE. YOUR USE OF ACCESS SERVICES IS SOLELY AT YOUR OWN RISK.
The terms of this section shall survive any termination of this Agreement.
8. Limitation of Liability
Customer agrees neither Vanir Broadband, Inc. nor any of its employees, owners, or agents (“Vanir Broadband, Inc. Person”) shall be held responsible or liable for situations where the Access Services are accessed by third parties through illegal or otherwise unauthorized means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Vanir Broadband, Inc. at the time) which may exist in the Access Services or the Company’s equipment used to provide Access Services.
Under no circumstances, including negligence, shall Vanir Broadband, Inc. or any of its employees, owners, or agents be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Vanir Broadband, Inc. has been advised of the possibility of such damages. No Vanir Broadband, Inc. Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Access Services, or that results from mistakes, omissions, interruption, deletion of files, loss of data, error, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Vanir Broadband, Inc.’s records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, Vanir Broadband, Inc.’s maximum liability under this Agreement for all damages, losses, costs and causes of action from any and all claims regardless of the legal theory or the nature of the cause of action shall not exceed the actual dollar amount paid by the Customer for the Access Services which gave rise to such damages, losses and causes of actions during the six (6) month period prior to the date the cause of action arose or the injury or loss occurred.
Customer understands, acknowledges and agrees that if Vanir Broadband, Inc. takes any corrective action under this Agreement because of an action of Customer or one of its customers that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Vanir Broadband, Inc. shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by the Company.
This limitation of liability reflects an informed and voluntary allocation of risks between the Parties and applies to risks both known and unknown that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
The User(s) agree to indemnify, defend and hold harmless Vanir Broadband, Inc. and its subsidiary and affiliated companies, and each of their respective, members, owners, officers, directors, employees, shareholders and agents (each an “indemnified party”) and , collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to User’s use of the Access Services, any violation by User of this Agreement, any breach of any representation, warranty or covenant of User contained in this Agreement or any acts or omissions of User. The terms of this section shall survive any termination of this Agreement.
10. Lawful Use and Prohibited Uses and Activities
User shall use Vanir Broadband, Inc. Access Services only for lawful purposes and in accordance with all applicable federal, state and local laws, statutes, ordinances, rules and regulations. User shall not engage in any prohibited use or activity outlined herein. Violation of any of the prohibited uses enumerated below or violation of the law will result in immediate termination of Access Services. Vanir Broadband, Inc. will fully cooperate in any investigation which is requested by parties alleging to be impacted by your behavior while using the Company’s Access Services, and we reserve the right to turn over to authorities, we deem appropriate, any evidence or information we discover relating to any illegal activity. This information may include that which can be discerned from the “finger” command to third parties. (This normally includes your full name, login id and time of last system access.)
Vanir Broadband, Inc. may immediately take corrective action, including disconnection or discontinuance of any Access Services if User engages in any of the prohibited uses or activities set forth in this Agreement. Customer agrees that Vanir Broadband, Inc. shall have no liability to User, Customer or any of Customer’s customers due to any corrective action that the Company may take (including, without limitation, discontinuance of Access Service).
1. Violations of Intellectual Property Rights
User agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity’s intellectual property rights including, rights of privacy and rights of publicity are prohibited. In addition, any activity that infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party is prohibited.
User agrees not to send spam or resell its services to anyone who sends spam. The term “spam” includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of a dispute Vanir Broadband, Inc. reserves the right to determine, in its sole and absolute discretion, whether e-mail recipients were from an opt-in e-mail list.
3. Misrepresentation of Transmission Information
User agrees not to forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of any message or to resell Access Services to anyone who engages in said conduct.
4. Viruses and Other Destructive Activities
Use of the Access Services for creating or sending malicious, destructive or nuisance code, examples of which include, but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this Agreement. User also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Access Services (or any connected network, system, service or equipment).
5. Malicious or Unauthorized Hacking
User agrees to not conduct or promote any “Hacking” activity and agrees that “Hacking” as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks; penetrating or attempting to penetrate security measures; transmitting software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information or any third party; port scans, stealth scans, and other activities designed to assist in malicious or unauthorized “Hacking” or “Cracking”. Any such activity on the part of User is a material breach of this Agreement.
6. Export Control Violations
The exportation of encryption software outside the United States and/or violations of United States law relating to the exportation of software is prohibited.
7. Child Pornography
The use of the Access Service to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Additionally, you agree you will not knowingly solicit or collect personal information from a minor (anyone under 18 years old). Personal information includes, but is not limited to, name, address, and telephone number or the name of minor’s school. Vanir Broadband, Inc. will, as required by law, notify law enforcement agencies if and when it becomes aware of the presence of child pornography being transmitted through the Access Services.
8. Other Illegal Activities
The use of the Access Services to engage in any activities that are determined by Vanir Broadband, Inc., in its sole and absolute discretion, to be illegal or which in the Company’s opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available Ponzi or pyramid schemes, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling, password cracking information, fraudulently charging credit cards or displaying credit card information or other private information of third parties without their consent, and failure to comply with applicable on-line privacy laws (i.e. “harvesting” or illegally collecting information about other Users on this network or illegally securing information for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic e-mail communications). Vanir Broadband, Inc. will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Access Services.
9. Obscene, Defamatory, Abusive or Threatening Language
Use of the Access Services to store, post, transmit, display or otherwise make available the following is strictly prohibited: obscene, defamatory, harassing, abusive, defamatory, vulgar, libelous, deceptive, fraudulent or threatening language; any activity that is invasive of another’s privacy, tortuous, or victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals).
10. Other Prohibited Activities
Engaging in any activity that, in Vanir Broadband, Inc.’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Access Services, the Company’s business, operations, reputation, goodwill, Customers and/or customer relations, or the ability of the Company’s Users to effectively use the Access Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a User to cooperate with Vanir Broadband, Inc. in correcting or preventing violations of this Agreement is, in itself, a violation of this Agreement.
11. Choice of Law and Forum
This Agreement shall be governed in all respects by Oregon law without regard to the conflict of law provisions thereof. Both Parties submit to personal jurisdiction in Oregon. Any controversy or claim arising out of, relating to or in connection with this Agreement, or breach thereof, shall be subject to arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then existing Commercial Arbitration Rules (collectively, the “AAA Rules”) and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Portland, Oregon, or any other place selected by mutual agreement of the parties. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personam jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto, In any legal action, the prevailing party will be entitled to recover all legal expenses in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees. The terms of this section shall survive any termination of this Agreement.
12. Disclosure of Customer Information and Legal Process
Although Vanir Broadband, Inc. will ordinarily maintain strict User confidentiality there are certain exceptions where the Company may disclose any information in its possession, including, without limitation, information about Users and their broadband access activity in order to comply with a court order, subpoena, summons, discovery, request, warrant, statute, regulation or official government request, to protect Vanir Broadband, Inc. or others from harm, and/or to ensure the proper operation of the Access Services. Vanir Broadband, Inc. has no obligation to notify any person, including the User about whom the information is sought or that Vanir Broadband, Inc. has provided the information. User acknowledges the above exceptions and agrees to them without reservation.
Vanir Broadband, Inc. makes no claims or warranties regarding the security of its system or network, User’s files or User’s communication or data transfer. Third party encryption tools or “fire walls” should be employed by User to help ensure privacy of a file data or e-mail messages.
Vanir Broadband, Inc. automatically gathers certain usage information. This information is used to monitor the load on our network as a whole and scans individual Customer’s “traffic” in order to provide adequate bandwidth for the system and equitably assign costs based on usage. All information concerning Users is confidential and not distributed or sold to third parties.
Customer agrees to notify the Company if you move or otherwise change your mailing address. Customer further agrees to provide a regular postal address which is your primary legal residence. We will not disclose this information to any third party except upon presentation of a valid warrant or court order. We reserve the right to use this information for internal purposes and to advise Customer of new service and product offerings.
13. Force Majeure
Vanir Broadband, Inc. shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services, failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
14. Discontinuation of Services
Violation of any of the Terms and Conditions of Use may result in the immediate termination of Access Services without notice and the forfeiture of the remainder of Customer’s subscription fee. Serious violations may result in civil or criminal prosecution. Vanir Broadband, Inc., in its sole and absolute discretion, may discontinue any and all classes of service or refuse service for any reason whatsoever.
15. User Responsibilities
Each Customer is responsible for payment for all charges associated with its account. In the event of any unauthorized access to your account, the Customer must notify Vanir Broadband, Inc. in writing, e-mail, in person or by phone; however, the Customer will remain responsible for all charges until Vanir Broadband, Inc. is notified. All accounts are personal and nontransferable. Not more than one concurrent User session per account is permitted at any time. The Customer is prohibited from lending or giving his or her password to others. Customers are responsible for the set-up and configuration of their own hardware, software and receiving antennae used to access the Vanir Broadband, Inc. network.
16. Charges and Billing
The Customer is responsible for the payment of Access Services provided by Vanir Broadband, Inc. in advance in accordance with the Company’s fee schedule, which is incorporated herein by reference and may be amended from time to time. Charges and rates are generally determined by the volume of bandwidth used by the Customer. Billing can be arranged in a variety of ways. Please consult with a Vanir Broadband, Inc. representative for a service plan and billing procedure that is appropriate for your pattern of use.
Fees may be paid by credit card, debit card, money order, check or cash. In the event the Customer elects to pay with a credit card, Customer authorizes Vanir Broadband, Inc. to charge all fees owed to such credit card at the time they become due. Customer agrees to pay a $35.00 (thirty-five dollars) late fee if Customer’s account or accounts become more than ten (10) calendar days overdue (a “delinquent” account) or if Customer’s credit card is not accepted when a charge is processed or if Customer’s check is returned for non-sufficient funds. Fees for renewal periods after the Initial Term shall become due monthly prior to the first day of such renewal period. Vanir Broadband, Inc. may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance for each month or portion thereof the overdue amount remains unpaid. In addition, in the event that any amount due Vanir Broadband, Inc. remains unpaid for a period of five (5) calendar days after such payment is due, Vanir Broadband, Inc., in its sole discretion, may immediately terminate this Agreement, and/or suspend Access Services. Customer agrees that Vanir Broadband, Inc. may charge a $35.00 (thirty-five dollars) fee to reinstate accounts that have been terminated or suspended. All taxes, fees and governmental charges, if any, relating to the Access Services provided hereunder shall be paid by the customer in addition to the Company’s regular charges for service.
Customer agrees that Vanir Broadband, Inc. may charge in advance all fees due for Access Services provided to the Customer under this Agreement to the credit card supplied by Customer prior to the commencement of service or at any time thereafter and Customer specifically agrees not to chargeback payments Vanir Broadband, Inc. processes through Customer’s credit card.
Customer acknowledges and specifically agrees that chargebacks (which might occur if Customer disputes Vanir Broadband, Inc. charges directly with Customer’s credit card bank) are unlawful if Vanir Broadband, Inc.’s service has been rendered. If Customer has a fee dispute with Vanir Broadband, Inc. he shall settle such dispute with Vanir Broadband, Inc. without initiating any chargeback procedures. Any chargeback will evoke an automatic $150.00 (one-hundred-fifty dollars) service fee for which Customer shall be held responsible in future collecting procedures.
17. Special Provisions Applicable to Resellers
Vanir Broadband, Inc. from time to time may offer reseller programs which will permit Customers to resell certain portions of bandwidth allocated to Customer. If Customer chooses to resell all or a portion of the Access Services provided by the Company the Customer shall remain a Vanir Broadband, Inc. customer for all purposes under this Agreement. Each and every Customer’s customer or Customer’s User shall be bound by the terms of this Agreement.
The Customer agrees that if it resells any portion of Vanir Broadband, Inc.’s Access Services, the purchaser of the resold services will become a Customer’s customer (a “Reseller Customer”). A Reseller Customer shall not become a Customer of Vanir Broadband, Inc., and Vanir Broadband, Inc. shall not be required to provide technical or other support to any Reseller Customer. Reseller agrees to take all necessary measures to preclude Vanir Broadband, Inc. from being made a party to any agreement with any Reseller Customer. Customer agrees and acknowledges that if they become a Reseller they will be authorized to resell Vanir Broadband, Inc. provided Access Services on a non-exclusive basis only. Customer’s right to resell Vanir Broadband, Inc. Access Services shall in no way preclude Vanir Broadband, Inc. from marketing and selling Vanir Broadband, Inc.’s own products and services through its own members, employees, affiliates, other resellers or any other third party. Vanir Broadband, Inc. expressly reserves the right to allow third parties to resell Vanir Broadband, Inc. Access Services on any terms the Company may choose including terms which may be more favorable to said third parties than they are to Vanir Broadband, Inc. Reseller Customers. Reseller acknowledges that the non-payment by any customer of Reseller shall in no way relieve Reseller of any duty in this Agreement including, but not limited to, the duty to timely pay all fees when due. Reseller shall be solely responsible for all sales, use, transfer, privilege, excise or other taxes and duties which are levied or imposed on Vanir Broadband, Inc. and Reseller under this Agreement and any and all transactions between Reseller and Reseller Customers. Reseller shall be solely responsible for compliance with any regulations governing the export of the Access Services (or any portion thereof).
Reseller shall not resell the Access Services under Vanir Broadband, Inc.’s brand name. Accordingly, nothing in this Agreement constitutes a license to Reseller to use or resell any of the Company’s Intellectual Property Rights as defined in this Agreement.
18. Vanir Broadband, Inc. as a Reseller or Licensor
In order to provide its Access Services, Vanir Broadband, Inc. is acting only as a reseller or licensor of equipment, bandwidth, hardware and software that were manufactured or supplied by third parties not affiliated with the Company (“Third Party Products”). Vanir Broadband, Inc. shall not be responsible for any changes in the Access Services that cause the Third Party Products to become obsolete, require modification or alteration, or otherwise affect the performance of the Access Services. Any malfunction or manufacture defects of Third Party Products either sold, licensed, or provided by Vanir Broadband, Inc. to Customer or purchased directly by Customer used in connection with the Access Services will not be deemed a breach of Vanir Broadband, Inc.’s obligations under this Agreement. Any rights or remedies Customer may have regarding ownership, licensing, performance or compliance of Third Party Products is limited to those rights extended to the Customer by the manufacturer of such Third Party Products. The Customer is entitled to use any Third Party Products supplied by Vanir Broadband, Inc. only in connection with Customer’s permitted use of the Access Services.
Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Vanir Broadband, Inc. to Customer with respect to any Third Party Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Access Services. Customer shall not resell, transfer, export or re-export any Third Party Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
19. Bandwidth Usage
Customer agrees that Vanir Broadband, Inc. will monitor and meter Customer’s bandwidth usage and, in the event that Customer exceeds the bandwidth usage allocated to it, may take corrective action which may, at the Company’s sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all of the Access Services or termination of this Agreement. Customer agrees that in the event of a dispute Vanir Broadband monitoring reports shall be the final method of determining how much bandwidth was used and agrees to pay the excess charges when due. Customer’s log files may also be used to determine usage. Binary files such as images, video and sound (i.e. MP3, WAV, RA, GIF, JPG but not limited to those file extensions) may only account for a maximum of 50% of Customer’s total bandwidth usage before the Customer must upgrade to a higher performance solution.
20. Intellectual Property Rights
User acknowledges that Vanir Broadband, Inc. owns or has secured the right to use all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how, and other intellectual property rights relating to the Access Services. User further acknowledges and agrees that nothing in the Agreement shall constitute a license to User or Customer to resell or trade under any of Vanir Broadband, Inc.’s intellectual property or that licensed to the Company by others.
The User and/or Customer shall not have the right to assign this Agreement without the prior written consent of Vanir Broadband, Inc. This Agreement shall be binding upon and inure to the benefit of all Users and Customers and Vanir Broadband, Inc. and their successors and permitted assigns.
22. Entire Agreement; Severability
This Agreement, together with the Order Form and any other documents or agreements identified in this Agreement, represent the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the parties agree that the remainder of this Agreement shall remain in full force and effect.
Customer and/or User hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over eighteen (18) years of age, or a corporation, limited partnership, limited liability company, limited liability partnership or other legal entity, duly organized and in good standing under the laws of the state of its organization and in Oregon and the person acting on behalf of the Customer and/or User is duly authorized to accept, execute and deliver this Agreement on their behalf.