NEXTLINK’S TERMS AND CONDITIONS
NextLink’s Terms and Conditions (the “Service Agreement”) is an agreement between AMG Technology Investment Group, LLC d/b/a NextLink Internet (“NextLink” or the “Company”) and its customers for Internet and/or voice services (“You,” “Your” or “Subscriber”) (NextLink and Subscriber, each a “Party” and, together, the “Parties). The Service Agreement outlines the terms under which NextLink is providing services to Subscriber and the associated obligations of both Parties.
PART I — THE SERVICE, AND THIS SERVICE AGREEMENT
1. THE SERVICE
The NextLink Service consists of (1) Voice over Internet Protocol (VoIP) phone service and/or (2) fixed wireless and/or fiber Internet access as indicated and agreed to at time of service origination.
2. MODIFICATIONS; RIGHTS OF TERMINATION OR SUSPENSION
2.1 MODIFICATION OF THIS SERVICE AGREEMENT; NOTICES.
At any time following delivery of effective notice, published by NextLink via Subscriber’s designated email, NextLink may modify this Service Agreement, including, without limitation, pricing and billing terms. Subscriber is required to ensure NextLink possesses a valid email address for Subscriber for notice purposes. In the event Subscriber does not agree to such modifications, then Subscriber must terminate the subscription and stop using the NextLink Service prior to the effective date of such modifications, which will be stated clearly in the Company’s notice to Subscriber. NextLink will comply with applicable state and federal notice requirements and, in all cases, will provide a minimum of 10 days’ notice of any modifications. Subscriber’s continued use of the NextLink Service after the effective date of such modifications constitutes Subscriber’s acceptance of same.
2.2 MODIFICATION OF THE NEXTLINK SERVICE
Pursuant to Section 2.1, NextLink may discontinue, add to or revise any or all aspects of the NextLink Service, including access to support services, publications and any other products or services ancillary to the NextLink Service. NextLink may, among other things, (a) subject to NextLink’s Statement on Privacy, make available to third parties information relating to NextLink or its subscribers, (b) withdraw, change, suspend or discontinue any functionality or feature of the NextLink Service, and (c) limit access to the NextLink Service to prevent abusive consumption and ensure fair access for all subscribers.
Please note that Subscriber authorizes NextLink to automatically check Subscriber’s premise equipment via the Internet and to provide upgrades via the Internet that will be automatically downloaded to Subscriber’s system. In addition, NextLink may check the health and status of Subscriber’s system, via the Internet, to ensure that the configuration of Subscriber’s equipment is optimized for use with the NextLink Service.
2.3 TERMINATION OF SERVICE AGREEMENT BY SUBSCRIBER
In the event that NextLink modifies this Service Agreement, Subscriber may immediately terminate Subscriber’s account and this Service Agreement, without liability for payment of any termination charges, by notifying NextLink via email at firstname.lastname@example.org within the notice period provided in Section 2.1. Subject to Subscriber’s payment of the termination charges herein described, Subscriber may also do so at any other time, for any reason or for no reason, upon thirty (30) days’ notice to NextLink via email at email@example.com. Subscriber must terminate this Service Agreement in accordance with the terms and conditions specified herein. Failure to do so may delay or prevent NextLink from knowing that a termination was intended. Subscriber will continue to be liable under this Service Agreement for all fees and charges until such time as this Service Agreement has been properly terminated. In the event that Subscriber terminates Subscriber’s subscription to the NextLink Service prior to the expiration of the minimum commitment period specified for the applicable service plan, Subscriber may be subject to a termination fee not to exceed $400.00 pursuant to the provisions of the monthly rate plan that Subscriber selected.
2.4 TERMINATION OR SUSPENSION OF SERVICE AGREEMENT BY NEXTLINK
In the event that NextLink either terminates or suspends Subscriber’s account or this Service Agreement for reasons other than breach of this Service Agreement, then NextLink shall provide Subscriber a minimum of fourteen (14) days’ notice, or other period of notice as required by applicable law, of such termination or suspension. Except as prohibited by applicable state and federal laws and regulations, NextLink may immediately, without prior notice, terminate Subscriber’s account and this Service Agreement in the event of a dangerous condition or a violation of a law or provision of this Service Agreement by Subscriber or any user of Subscriber’s account.
2.5 CONTINUATION OF OBLIGATIONS
Notwithstanding any termination of this Service Agreement or any portion of Your account, nor any suspension or termination of access to or use of the NextLink Service, Subscriber will remain responsible for any obligations accrued up to the date of such action(s), including payment of any charges that may be due as a result of or in connection with such action(s). Subscriber’s payment and other obligations under this Service Agreement are not suspended or affected by a suspension of access to or use of the NextLink Service, in whole or in part, due to a violation (actual, threatened or credibly alleged) of this Service Agreement or of any law or legal obligation, whether by Subscriber or any user of Subscriber’s account related to the NextLink Service.
3. WHO MAY USE THE SERVICE? – RESPONSIBILITY AND SUPERVISION
3.1 AGE AND ACCOUNT SETUP
Subscriber represents that Subscriber is at least 18 years of age and has the right and ability to enter into this Service Agreement. Subscriber agrees that Subscriber is responsible for installing, establishing, setting up, verifying and maintaining the account, options, settings and other parameters under which the NextLink Service is used, including, without limitation, all related passwords and user identification information. These account functions may be performed only by a person at least 18 years of age, without exception.
3.2 INSTALLATION OF NEXTLINK EQUIPMENT
Subscriber acknowledges and agrees that NextLink or its designated service provider may be required to access Subscriber’s premises or system in order to install and maintain the components necessary for Subscriber to access the NextLink Service. This may include opening Subscriber’s computer to install, repair or replace equipment or install software on Subscriber’s computer(s) at Your location and installing a VoIP compatible phone(s). By accepting this Service Agreement, scheduling a service or installation visit and permitting NextLink or its service provider(s) to enter Subscriber’s home or business, Subscriber hereby authorizes NextLink or its service provider(s) to access Subscriber’s computer(s) for the purpose of installing, repairing or replacing the necessary components. By requesting NextLink Service, any Subscriber that is not the owner of the property at which the NextLink Service is being installed (e.g., a tenant or lessee) agrees that Subscriber has obtained any necessary permission or clearance from the property owner for the installation. Subscriber shall bear all responsibility for any installation work for which the property owner’s permission has not been granted and for any associated damage to the property. Neither NextLink nor its service provider(s) shall have any liability whatsoever for any losses resulting from installation, repair or other services, including, without limitation, damage to Subscriber’s premises or loss of software, data or other information from Subscriber’s computer(s). This limitation does not apply to any damage arising from the gross negligence or willful misconduct of any installation or maintenance service provider. NextLink installs ground wire as a matter of course because the ground wire can protect electronic equipment and the premises from damage caused by electrical storms and lightning. Timeframes for installation, if any, are not guaranteed and may vary depending on the types of services requested and other factors. Subscriber further acknowledges and agrees that NextLink owns all equipment installed and provided in connection with the NextLink Service (including any VoIP telephones). Upon termination of this Service Agreement, Subscriber is responsible for returning all NextLink equipment within fifteen (15) days of termination.
3.3 SUBSCRIBER RESPONSIBILITY
Subscriber shall be responsible for all access to and use of the NextLink Service through Subscriber’s account or password(s) and for any fees incurred for service, software or other merchandise purchased thereon or any other expenses incurred in accordance with the terms of this Service Agreement. Except for items that are the subject of a bona fide dispute that has been noticed to NextLink pursuant to Section 4.2 of this Service Agreement, Subscriber promises to timely pay such amounts billed for services, software or merchandise and any related fees, taxes and charges. Permitted users of Subscriber’s account are limited to those entities to whom Subscriber provides access. Subscriber acknowledges that Subscriber is aware that areas accessible on or through the NextLink Service may contain material that is unsuitable for minors (persons under 18 years of age). Subscriber acknowledges sole responsibility to prevent minors from accessing unsuitable material through Subscriber’s account, including installation of filtering software. NextLink is not responsible for any content accessed by Subscriber or anyone who utilizes the NextLink Service.
PART II — PAYMENT
4. FEES AND PAYMENT
4.1 FEES, TAXES AND OTHER CHARGES
Subscriber agrees to pay, in accordance with the provisions of the monthly rate plan Subscriber has selected, any registration, activation or monthly fees, connect time charges, ISP service charges, minimum charges and other amounts charged to or incurred by Subscriber, or by users of Subscriber’s account, at the rates in effect for the billing period in which those amounts are charged or incurred. Subscriber agrees to pay all applicable taxes related to use of the NextLink Service by Subscriber or other users of Subscriber’s account. Information on charges and surcharges (if any) that are to be paid to NextLink and are incurred by Subscriber or by other users of Subscriber’s account will be made available to Subscriber on the NextLink website, and Subscriber agrees that this is sufficient notice for all purposes as to charges incurred, paid or to be paid to NextLink. NextLink reserves the right to increase fees, surcharges, monthly subscription fees or to institute new fees at any time following delivery of effective notice, as provided in Section 2.1. Unless required by applicable state or federal law or regulation, Subscriber understands and acknowledges that Subscriber may not receive a bill in the mail for Subscriber’s Service. Additional terms relating to pricing, billing and payment, which are an integral part of this Service Agreement, are set forth and available on the NextLink website and are incorporated herein by reference.
Except where additional methods of payment are specifically required to be accepted under applicable law or regulation or as otherwise agreed to by NextLink from time to time, Subscriber agrees that Subscriber will provide a major credit or charge card (e.g. MasterCard, Visa, American Express or Discover) or ACH bank authorization that NextLink may charge for all fees or other amounts payable under this Service Agreement. Additionally, Subscriber agrees that NextLink may pre-charge Subscriber’s monthly fee to the credit or charge card or bank account supplied by Subscriber during activation or subscription or as subsequently updated. With respect to such charges, the following authorization applies: Subscriber authorizes automatic credit or charge card billing by NextLink. Subscriber agrees that the charges described above will be billed to the credit or charge card that Subscriber provided when Subscriber applied for the NextLink Service or as subsequently updated. Subscriber must provide current, complete and accurate information for Subscriber’s billing account. Subscriber must promptly update all information in order to keep Subscriber’s account current, complete and accurate (such as a change in billing address, credit card number or expiration date). If Subscriber fails to provide NextLink with any of the foregoing information, Subscriber agrees that NextLink may continue billing Subscriber, using the most recently provided contact and billing information for any Service provided under Subscriber’s account, and Subscriber will be required to provide updated payment information and pay applicable late fees for any payments that become overdue as a result of unprocessed charges. Subscriber agrees that NextLink will not be responsible for any expenses that Subscriber may incur resulting from overdrawing Subscriber’s bank account or exceeding Subscriber’s credit limit as a result of an automatic charge made under this Service Agreement.
Subscriber agrees that all charges are considered valid unless disputed in writing via firstname.lastname@example.org, as provided in Section 24, within forty-five (45) days of the date of Subscriber’s credit or charge card bill, unless a longer period of time is required by applicable state or federal law or regulation. If Subscriber thinks a charge is incorrect or Subscriber needs more information, Subscriber should contact NextLink’s billing department. NextLink will email Subscriber a statement for each billing cycle showing payments, credit purchases and other charges.
Payment of the outstanding balance is due in full each month. Statements are issued every 30 days from the date Subscriber’s Service started and reflect receipt by such date of any payments submitted by Subscriber and any amounts received on behalf of Subscriber as a result of NextLink’s submission of charges against Subscriber’s identified credit card or bank account, as applicable. If Subscriber’s entire amount of payment (except for amounts that are the subject of a validly submitted dispute) is not received by NextLink within seven (7) days following the due date, NextLink will assess, as a late payment charge, the lesser of $5.00 or the maximum amount permitted by applicable law. NextLink may assign unpaid late balances to a collection agency for appropriate action. NextLink will charge Subscriber a $25 insufficient funds fee for any check or other instrument tendered to the Company by Subscriber and returned unpaid by a financial institution for any reason. Furthermore, if within thirty (30) days of a Statement presenting an amount due, NextLink does not receive full payment of the amount due from Subscriber (or has not agreed to payment arrangements for Subscriber), NextLink has the right to suspend or terminate Subscriber’s subscription to the NextLink Service. NextLink will make at least three (3) attempts to collect overdue payments from Subscriber prior to any such termination or suspension. NextLink’s attempts can include both phone calls and / or email correspondence.
NextLink may, but is not required to, accept partial payments from Subscriber. If partial payments are made, they will be applied to statements starting with the oldest outstanding statement. If Subscriber sends NextLink checks or money orders marked “payment in full,” or otherwise labeled with restrictive endorsements, NextLink can, but is not required to, accept them. Under no circumstances will acceptance of such payment instruments by NextLink cause the Company to lose or waive its rights to collect all amounts owed by Subscriber under this Service Agreement. In the case of late payment or non-payment for any of the NextLink Services ordered by Subscriber or any of the charges stated herein, Subscriber understands and agrees that NextLink may report such late payment or non-payment to the appropriate credit-reporting agencies. If NextLink chooses to use a collection agency or attorney to collect money that Subscriber owes NextLink, or to assert any other right which NextLink may have against Subscriber, Subscriber agrees to pay the reasonable costs of collection or other action including, but not limited to, the costs of a collection agency, reasonable attorney’s fees and court costs, insofar as permitted by applicable law.
4.3 COMMENCEMENT AND DURATION OF SUBSCRIBERSHIP FEES
Subscriber acknowledges that, subject to any exceptions granted by NextLink, a monthly fee will apply for each and every month, or portion thereof, from the date on which Subscriber enrolls in the NextLink Service until effective termination of Subscriber’s NextLink Service account. Subscriber’s account will continue until Subscriber terminates the account in accordance with the method(s) specified by NextLink, unless otherwise terminated in accordance with this Service Agreement. As stated above, Subscriber may terminate Subscriber’s account at any time pursuant to Section 2.3. The monthly subscription fee shall cease to apply for any months after the billing month in which Subscriber terminates Subscriber’s account in accordance with the terms and conditions stated herein.
If Subscriber’s NextLink Service is deactivated for any reason, including at Subscriber’s request or because of Subscriber’s failure to pay past due amounts, then in order to reactivate the service, Subscriber agrees to pay a reactivation fee in accordance with NextLink’s then-current rates. In addition, Subscriber must bring Subscriber’s account up to date by making payment in full of any outstanding balance, fees and charges. Subscriber will also be required to pay the current monthly bill in order to reactivate Subscriber’s account.
4.5 ANCILLARY EQUIPMENT, SERVICES
It is Subscriber’s responsibility, at Subscriber’s own expense, to obtain, maintain and operate suitable and fully compatible equipment to access the NextLink Service. Subscriber acknowledges that such equipment may have been acquired by Subscriber separate and apart from this Service Agreement. Subscriber is solely responsible for maintaining equipment that Subscriber has acquired. NextLink makes no representation or warranties pursuant to this Service Agreement, either express or implied, regarding such Subscriber equipment (although Subscriber may have limited warranties under a separate purchase agreement from the seller or manufacturer of the equipment).
PART III — PERMITTED USE AND RESTRICTIONS ON USE
5. SOFTWARE LICENSE
Subject to the terms of this Service Agreement, NextLink grants to Subscriber a personal, non-exclusive, non-assignable and nontransferable license to use and display the software provided by or on behalf of NextLink (“Software”) only for purposes of accessing the NextLink Service on any machine(s) on which Subscriber is the primary user or which Subscriber authorizes for use by others. Unauthorized copying of the Software, including software that has been modified, merged or included with the Software, or the written materials associated therewith is expressly forbidden. Subscriber may not sublicense, assign or transfer this license or the Software, except as permitted by NextLink. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void. Subscriber agrees not to copy or duplicate or permit anyone else to copy or duplicate, any part of the Software or to create or attempt to create, or permit others to create or attempt to create, by reverse engineering or otherwise, the source programs, or any part thereof, from the object programs or from other information made available under this Service Agreement.
6. PROHIBITIONS ON USE OF THE SERVICE
6.1 PROHIBITED NETWORK USES
General Policy: The NextLink Service and equipment may not be used for any unlawful, fraudulent, harassing, or abusive purpose that is unlawful or prohibited by any policy applicable to the Service. By requesting NextLink Service, You agree that You will not use or allow others to use the Service and equipment in any manner that is unlawful or prohibited by any policy applicable to the Service. NextLink reserves the right, without notice or limitation, to restrict, limit, deny, terminate, end, modify, disconnect, or suspend Service if any individual uses the Service for any unlawful or prohibited purpose, or if NextLink determines, on a case-by-case basis, that action is necessary to protect its network, equipment, Service, business or other customers using the Service from harm or degradation resulting from such unlawful and prohibited uses. NextLink reserves the right to filter, restrict, block or remove any information or materials, in whole or in part, that it, in its sole discretion, deems to be in violation of any policy applicable to the Service, regardless of whether the information or materials, or their dissemination, is unlawful. NextLink does not have any obligation to monitor transmissions or postings (including, but not limited to, email, file transfer, blog, newsgroup and instant message transmissions) made on the NextLink Service. NextLink has the right, however, to monitor transmissions and postings for unlawful and prohibited uses of the Service.
Permitted Uses: The NextLink Service is for personal, residential, non-commercial uses only, unless otherwise specifically authorized by NextLink in writing. NextLink data service is provided only for personal uses, which include web surfing, sending and receiving email, photographs and other similar messaging activities and the non-continuous streaming of videos, downloading files or online gaming. NextLink voice service is provided only for live dialogue between, and initiated by, individuals for personal use.
Unlawful and Prohibited Uses: Unlawful and prohibited uses of the NextLink Service include, but are not limited to:
• Transmitting or facilitating any unsolicited or unauthorized advertising, telemarketing, promotional materials, “junk mail,” unsolicited commercial or bulk email, fax, transmission of recorded material or broadcast transmissions.
• Using voice service for monitoring services, operating a call center or conference line, extensive call forwarding, autodialed calls or other connections that do not consist of uninterrupted live dialogue between individuals.
• Reselling, redistributing, re-provisioning, retransmitting, renting or otherwise allowing third parties, other than household residents and guests, to use the Service, in whole or in part, by wired, wireless or other means, regardless of whether a fee is charged.
• Accessing, altering or destroying any other person or entity’s computer or computer system, network, software or data without their knowledge and consent; breaching, circumventing or probing user authentication or security of any user, host, network, network element, account or system; or attempting any of the foregoing.
• Impersonating any person or entity, creating a false identity, or otherwise misrepresenting Your identity or affiliation with any person or entity with the intent to deceive, including forging, falsifying, altering, removing, obscuring or engaging in unauthorized use of message headers, IP addresses, network MAC addresses, digital or manual signatures, sender addresses, domain names, uniform resource locators (URLs) or use of other techniques to disguise or obscure the origin of any communication or transmission using the NextLink Service, or attempting any of the foregoing.
• Engaging in activities that adversely affect the ability of other people or entities to use or enjoy the NextLink Service or other parties’ Internet-based services, including, but not limited to “denial of service” (DoS) attacks against another network host or individual user, such as “flooding” of networks, deliberate attempts to overload a service and attempts to “crash” a host; intercepting, interfering with, redirecting or disrupting email or other transmissions sent by or to others by using automated or manual routines, such as “auto-responders,” cancel bots or other similar routines; using, distributing or making available viruses, worms or Trojan horses, or other harmful code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
• Impairing the Service by, for example, placing abnormally high numbers of calls, sending or receiving very high numbers of messages, or repeatedly making calls of abnormally long duration compared with other NextLink customers.
• Generating excessive levels of Internet traffic through continuous, unattended streaming, downloading or uploading of videos, music or other files; through continuous active network connections to the Internet, for example, through a web camera or machine-to-machine connections that do not involve active participation by a person; or by operating hosting services including, but not limited to, web or game hosting.
• Engaging in conduct that is defamatory, libelous, harassing, threatening, abusive, obscene, deceptive, sexually explicit, cruel or racist, or which espouses, promotes or incites bigotry, hatred or racism, or which in any way constitutes or encourages conduct that would constitute a criminal offense or give rise to a civil liability.
• Engaging in conduct that is fraudulent, including advancing any type of financial scam such as “pyramid schemes,” “Ponzi schemes,” or “chain letters.”
• Violating the rules, regulations, terms of service or policies applicable to any network, server, computer database, service, application, system or website that you access or use.
• Using the NextLink Service to transmit or disseminate child pornography or solicit sex with minors.
• Using or attempting to use the NextLink Service in any manner designed to avoid incurring charges or otherwise avoid being required to pay for such usage.
6.2 NEXTLINK COPYRIGHT INFRINGEMENT & DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
General Policy: NextLink respects the intellectual property rights of others. You are prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws (by rights of privacy or publicity) or other proprietary right of any party unless You own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information including images or photographs that are made available through the NextLink Service. NextLink assumes no responsibility, and you assume all risks, regarding the determination of whether material is in the public domain or may otherwise be used by You for such purposes.
Repeat Infringer Policy: In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), NextLink’s policy is to terminate, in appropriate circumstances, the Service access of any Subscriber or account holder who is a repeat infringer. The Subscriber will be designated a repeat infringer if they have violated the General Policy in this Section 6.2 three (3) times.
“Three Strike” Policy: NextLink maintains a graduated “Three Strike” policy. If Subscriber is found in violation of the General Policy in this Section 6.2, Subscriber will be subject to the following:
(1) First Offense – An infringement case will be created, Subscriber will be notified of the offense via email and Subscriber will be forwarded copies of the DMCA takedown notice received by the Company and NextLink’s DMCA Copyright Policy.
(2) Second Offense – For a second offense, Subscriber will be issued the same notices as provided for a first offense. In addition, Subscriber will be notified of the offense via phone and will be required to acknowledge the offense via phone within five (5) business days or face suspension of service.
(3) Third Offense – Subscriber’s NextLink Service will be terminated.
Any Subscriber communications in response to Company correspondence regarding alleged infringement, including, but not limited to, the notices described above in this Section 6.2, should be directed to
NextLink’s designated Copyright Agent:
NextLink Infringement / Abuse Agent
95 Parker Oaks Lane
Hudson Oaks, TX 76087
6.3 COMPLIANCE WITH LAWS
Subscriber agrees to comply with all applicable laws, rules and regulations in connection with the NextLink Service, Subscriber’s use of the NextLink Service and this Service Agreement.
PART IV — GRANT OF IMPORTANT RIGHTS BY YOU TO NEXTLINK, AND IMPORTANT DISCLAIMERS, ACKNOWLEDGMENTS AND OBLIGATIONS
7. COPYRIGHT AND LICENSES
NextLink reserves all copyrights and other rights in and to any content available through the NextLink Service which is identified as, claimed by NextLink as or known by you to be proprietary to NextLink or our licensors.
8. NO ENDORSEMENT
NextLink does not endorse or in any way vouch for the accuracy, completeness, truthfulness or reliability of any service, opinion, advice, communication, information or other content on or made available through the NextLink Service. None of such content should be construed or understood to constitute or reflect the views or approval of NextLink or any of its subsidiaries or affiliates. NextLink does not recommend that such content be relied on for reaching important decisions or conclusions without appropriate verification and, as appropriate, professional advice.
9. INTERNET CONTENT AND MATERIAL
Subscriber acknowledges that Internet sites, and use of the Internet, might consist of, include and/or provide access to images, sound, messages, text, services or other content and material that may be unsuitable for minors and that may be objectionable to many adults. Subscriber acknowledges that NextLink is not responsible for any such content or material and agrees that access to same through use of the NextLink Service is at Subscriber’s sole risk. The reliability, availability, legality, performance and other aspects of resources accessed through the Internet are beyond NextLink’s reasonable control and are not in any way warranted or supported by NextLink or its third party contractors. Subscriber acknowledges that safeguards relative to copyright, ownership, appropriateness, reliability, legality and integrity of content may be entirely lacking with respect to the Internet and content accessible through the Internet. Subscriber confirms that Subscriber assumes all risks and liability of any use of the Internet through Subscriber’s account, including Subscriber’s continuous compliance with the NextLink Service Agreement.
10. SUBSCRIBER INFORMATION
10.1 USE AND CONTROL OF INFORMATION
Subscriber acknowledges that advertising and promotion may occur on the NextLink Service and that neither Subscriber nor any other user shall have any claim with respect to any proceeds from such activities.
10.3 COMMUNICATION WITH SUBSCRIBERS
NextLink may, from time to time, provide online, telefax, telephone, email, mail and other communications to Subscriber on matters pertaining to the NextLink Service. Subscriber acknowledges that communications with NextLink, NextLink’s representatives and NextLink’s contractors may be monitored or reviewed for quality control and other reasonable business purposes.
11. WARRANTIES AND LIABILITIES
11.1 DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY
Subscriber expressly agrees that use of the NextLink Service is at Subscriber’s sole risk. Neither NextLink nor any of its information or content providers, service providers, licensors, employees or agents represent or warrant that the NextLink Service will be uninterrupted, secure or error free. The NextLink Service is distributed on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose or otherwise, except for those warranties, if any, which are implied by and incapable of exclusion, restriction or modification under the laws applicable to this Service Agreement. No oral advice or written information given by NextLink, its employees, dealers and licensors, or the like, shall create a warranty, nor shall Subscriber rely on any such information or advice.
In particular, because NextLink, through the NextLink Service, may provide Subscriber with electronic access to Internet content and material that may be originated by independent publishers or providers, and is not augmented by NextLink, the Company cannot and does not warrant the accuracy of any such information, and NextLink shall not be liable in any manner whatsoever for any errors, omissions or inaccuracies relating thereto. Subscriber is solely responsible for Subscriber’s experience of and/or reliance upon such content. NextLink, its dealers, distributors, agents, employees or any third-party content provider shall have no individual or joint liability in connection with Subscriber’s use of or interaction with content accessed through the NextLink Service.
No oral or written information or advice given by NextLink, its dealers, distributors, agents, employees or any third-party content provider, shall create any warranty in, or to, the NextLink Service or the content, and Subscriber remains responsible for any reliance upon such information or advice. Notwithstanding the foregoing, Subscriber may have other rights, which vary from state to state.
11.2 LIMITATION OF LIABILITY
To the maximum extent permitted by law, neither NextLink nor any of its information or content providers, service providers, licensors, employees or agents shall be liable for any direct, indirect, incidental, special, punitive or consequential damages arising out of Subscriber’s use of the NextLink Service, or inability to use the NextLink Service, or out of any breach of any representation or warranty in connection with this Service Agreement. Without in any way limiting the foregoing, if for any reason, by operation of law or otherwise, any portion of the foregoing limitation of liability shall be voided, then in such event NextLink’s maximum, sole, and exclusive liability, and the liability of its dealers, distributors, agents, employees or third party content providers, if any, shall be limited to general monetary damages in an amount not to exceed the total amount actually paid to NextLink by Subscriber for the NextLink Service furnished under this Service Agreement during and for a period of time commencing upon the occurrence of such error, defect or failure and ceasing upon the discovery of same, in whole or in part; provided, however, that in no event shall such period of time exceed the twelve (12) month period immediately preceding the date which such error, defect or failure is first discovered, in whole or in part.
11.3 APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS
Subscriber expressly acknowledges that the provisions of Section 11 shall also apply to any and all claims relating to “acquired material” and any other content available through the NextLink Service. Subscriber agrees that Subscriber will not in any way hold NextLink responsible for any selection or retention of, or the acts or omissions of, third parties in connection with the NextLink Service, including those with whom NextLink may contract to operate various areas on or features of the NextLink Service.
11.4 FULL APPLICABILITY
The foregoing exclusions or limitations of liability apply regardless of any allegation or finding that a remedy failed its essential purpose, regardless of the form of action or theory of liability (including, without limitation, negligence) and even if NextLink or others were advised or aware of the possibility or likelihood of such damages or liability.
SUBSCRIBER AGREES TO INDEMNIFY NEXTLINK AGAINST ALL CLAIMS, LIABILITY, DAMAGES, COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY’S FEES, ARISING OUT OF OR RELATED TO ANY AND ALL USE OF THE NEXTLINK SERVICE. THIS INCLUDES, WITHOUT LIMITATION, RESPONSIBILITY FOR ALL SUCH CONSEQUENCES OF SUBSCRIBER (OR THAT OF ANY USER OF SUBSCRIBER’S ACCOUNT) VIOLATION OF THIS SERVICE AGREEMENT OR PLACEMENT ON OR OVER THE NEXTLINK SERVICE, OR RETRIEVAL FROM OR THROUGH SAME, OF ANY SOFTWARE, FILE, INFORMATION, COMMUNICATION OR OTHER CONTENT.
13. THIRD PARTY BENEFICIARIES
The provisions of Sections 11 and 12 are for the benefit of NextLink and its respective contractors, information or content providers, service providers, licensors, employees and agents; each shall have the right to assert and enforce such provisions directly on its own behalf.
14. LIABILITY FOR UNAUTHORIZED USE OF EQUIPMENT AND SERVICE
Subscriber agrees to notify NextLink before Subscriber moves or vacates the location where Subscriber’s NextLink equipment is installed. Upon notification, NextLink will de-install its equipment located on the outside of Subscriber’s premises. NextLink will coordinate with Subscriber a time in which NextLink can retrieve any NextLink equipment inside Subscriber’s premises. Subscriber is considered the registered recipient of the NextLink Services until NextLink receives notice of termination as set forth in this Service Agreement, and Subscriber will be liable for any charges or fees incurred by the use of Subscriber’s NextLink equipment by anyone else up to the time that NextLink receives Subscriber’s notice, unless otherwise provided by state law. If Subscriber’s NextLink equipment is stolen or otherwise removed from Subscriber’s premises without Subscriber’s authorization, Subscriber must notify NextLink immediately, or Subscriber may be liable for payment for unauthorized use of Subscriber’s NextLink system. Subscriber will not be liable for such unauthorized use after NextLink has received Subscriber’s notification.
15. PROPRIETARY RIGHTS
NextLink and/or third party content providers own all rights, title and interest to certain copyrighted content provided by the NextLink Service, and Subscriber may not copy, distribute, transmit or publish in any form, including printed, electronic, digitized, audio or otherwise, or modify all or any portion of any content which is identified as copyrighted without the prior written consent of the copyright holder. Notwithstanding the foregoing, Subscriber may store one (1) copy of the copyrighted content on Subscriber’s computer(s) for Subscriber’s personal use for a period not to exceed thirty (30) calendar days. All copyright or other proprietary rights notices contained in or associated with the content must be preserved in or on any copies made of such material. The placement of any proprietary material in any public posting area or any software library, without the consent of the owner/copyright holder, is in violation of this Service Agreement.
PART V – GENERAL
16. LIMITS ON TRANSFERS & ASSIGNMENTS; OTHER LIMITS
Unless otherwise agreed to by NextLink in writing, Subscriber’s rights to use the NextLink Service, or to designate other users of Subscriber’s account, may not be assigned or transferred and are subject to any limits established by NextLink, or by Subscriber’s credit card company or other billing institution, as applicable. Attempts by Subscriber to assign or transfer these rights without written approval of NextLink will constitute a violation of this Service Agreement and the Company may de-activate Subscriber’s account.
17. CHOICE OF LAW
This Service Agreement is made in the State of Texas. This Service Agreement and all of the Parties respective rights and duties in connection herewith, including, without limitation, claims for violation of state consumer protection laws, unfair competition laws and any claims in tort, shall be governed by and construed in accordance with the laws of the State of Texas, in the United States.
18. CONSTRUCTION AND DELEGATION
Neither the course of conduct between the Parties nor trade practices shall act to modify the provisions of this Service Agreement. NextLink may authorize or allow its contractors and other third parties to provide services necessary or related to making the NextLink Service available, and to perform obligations and exercise NextLink’s rights under this Service Agreement, and NextLink may collect payment on their behalf, if applicable.
If any term of this Service Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, it shall be construed in such a way as to render such term enforceable while still giving as much effect as possible to the original intentions of such term. If this cannot be done, and the entire term is held to be invalid, illegal or unenforceable, and cannot be so repaired, then the term shall be considered to be stricken from this Service Agreement as if it had not been included from the beginning. In any such case, the balance of this Service Agreement shall remain in effect in accordance with its remaining terms, notwithstanding such invalid, illegal or unenforceable term.
19.2 DISCRETIONARY ENFORCEMENT
NextLink may enforce or decline to enforce any or all of the terms of this Service Agreement in its sole discretion. In no event shall NextLink be required to explain, comment on, suffer liability for or forfeit any right or discretion based on the enforcement, non-enforcement or consistency of enforcement of such terms.
Captions used in this document are for convenience only and shall not be considered a part of this Service Agreement or be used to construe its terms or meaning.
The provisions of any Sections of this Service Agreement which by their nature should continue shall survive any termination of this Service Agreement.
This Service Agreement shall automatically renew for successive one (1) year terms unless at least ninety (90) days prior to the end of the current one (1) year term, either Party gives written notice to the other Party of their intent to terminate the Service Agreement. No termination fees shall be applicable in such successive terms of this Service Agreement.
All notices required of Subscriber pursuant to this Service Agreement shall be sent via email to email@example.com. Except as otherwise specified herein, all notices required of NextLink pursuant to this Service Agreement shall be sent via email to the Subscriber, using the email address that Subscriber has most recently provided to the Company for such purposes.
22. 911 SERVICE AND ALARM SYSTEM NOTICE
NextLink voice service includes 911/E911 (“911”) access to emergency services. The Company provides this access pursuant to section 9.5 of the FCC’s rules. 47 C.F.R. § 9.5. See https://www.fcc.gov/consumers/guides/voip-and-911-service for additional information.
VoIP service does not support traditional 911 access to emergency services. In particular, it is essential that the physical location (street address) of the caller (the “Registered Location”) be registered with the Company to ensure correct routing of emergency calls. Therefore, it is extremely important that Subscriber provide NextLink with the correct address where the equipment and the NextLink Service is or will be located. Subscribers are only permitted to use the NextLink Service, including VoIP voice service, at the address associated with the Subscriber’s account. Subscriber must also promptly update this address if it changes and may do so in any of the following ways:
• Call Customer Service at 682-333-0747 or toll-free at 855-NXT-LINK (698-5465)
• Log into the NextLink Subscriber Portal and make the change
Your call will be routed directly to the nearest public-safety operator. Even with a correctly registered service address, however, some emergency agencies may not be able to automatically determine the location of the 911 call and Subscriber understands that in such circumstances, Subscriber, or any other caller, may need to provide the physical location of the emergency.
NextLink voice service includes an uninterruptible power supply (UPS) intended to provide up to eight (8) hours backup power in the event of power outages. In the event that Subscriber’s Internet service experiences an outage as a result of a power outage beyond the coverage of the UPS or for some other reason, Subscriber will be unable to make 911 calls using NextLink’s VoIP service. In such event, Subscriber is encouraged to use a cellular phone to call 911. Subscriber should also notify any employees or guests regarding these potential limitations. A Service suspension or termination (regardless of the reason) will prevent Subscriber or any other party from using the NextLink Service, including the ability to make 911 calls.
Subscribers who have an alarm system connected to NextLink’s VoIP service may also experience outages if the Internet connection or power is down. As such, NextLink encourages Subscribers to use a cellular phone based alarm system.
As required by the FCC, the Company notifies You, the Subscriber, that 911/E911 service may not be available through your NextLink VoIP service or may have less availability than traditional E911 services in circumstances including, but not limited to (i) relocation of Subscriber’s VoIP equipment, (ii) use of a non-native telephone number; (iii) a broadband connection failure; (iv) loss of electrical power and delays in the registration (or update) of your service address in the emergency services databases.
NextLink provides You with this information when service is initiated and provides warning stickers or equivalent labels for placement in Subscriber’s location to alert individuals regarding the potential limitations of access to emergency services. In the event that Subscriber requires additional labels for use in Subscriber’s location, please contact the Company.
23. FORCE MAJEURE
If the performance of this Service Agreement or any obligations hereunder is prevented, restricted or interfered with by reason of earthquake, fire, flood or other casualty or due to strikes, riot, storms, explosions, acts of God, war, terrorism or a similar occurrence or condition beyond the reasonable control of either or both Parties, the Party so affected shall, upon giving prompt notice to the other Party, be excused from such performance during such prevention, restriction or interference, and any failure or delay of performance reasonably deemed to result therefrom shall not be considered a breach of this Service Agreement.
NextLink and Subscriber agree to arbitrate all disputes and claims related to the NextLink Service between them. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (1) claims arising out of or relating to any aspect of the relationship between the Parties, whether based in contract, tort, statute, fraud, misrepresentation or other legal theory; (2) claims that arose before this or any prior Service Agreement (including but not limited to, claims relating to advertising); (3) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (4) claims that may arise after the termination of this Service Agreement.
This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission or state regulatory commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, You and NextLink are each waiving the right to a trial by jury or to participate in a class action. This Service 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 Service Agreement.
A Party who intends to seek arbitration must first send notice of the dispute to the other Party. The notice to NextLink must be sent via email to firstname.lastname@example.org. Notices to the Subscriber will be sent via certified mail to the last mailing address on file. The notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If NextLink and Subscriber do not reach an agreement to resolve the claim within thirty (30) days after notice pursuant to this provision is received, Subscriber or NextLink may commence an arbitration proceeding. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Service Agreement. The arbitrator is bound by the terms of this Service Agreement. All issues are for the arbitrator to decide, except that any issue(s) relating to the scope and enforceability of the arbitration are for a court of appropriate jurisdiction to decide. Any arbitration hearings will take place in the county of Subscriber’s billing address. Subscriber is responsible for paying the non-refundable filing fee and the costs of its own attorney. NextLink shall be responsible for paying the arbitrator fees and hearing fees. The prevailing Party is entitled to recover their attorneys’ fees if awarded by the arbitrator.
25. ENTIRE AGREEMENT
This Service Agreement, including rates, products and services agreed to at time of service or purchase origination and incorporated herein by reference, as provided above in Section 4.1, constitutes the entire and only agreement with respect to the subject matter hereof between Subscriber and NextLink, applicable also to all users of Subscriber’s account. This Service Agreement supersedes all representations, proposals, inducements, assurances, promises, agreements and other communications with respect to the subject matter hereof, except as expressly set forth in this document. By executing this Service Agreement, the Parties agree to the terms and conditions of this Service Agreement. This Service Agreement can be amended only in the manner expressly provided for in this Service Agreement.