This is an agreement between you and Midas Networks Inc. (“we or us”) for high-speed Internet access and related services and features (the “Service”).
1. Agreements Governing Use of Service.
These Midas Networks Inc. Terms and Conditions (“Terms and Conditions”), and the Midas Networks Inc. Service Agreement you signed or otherwise agreed to (together, the “Agreement”), govern the use of Service. These Terms and Conditions supersede any earlier issued versions and among other provisions, impose an early cancellation fee and may require arbitration of disputes.
2. Acceptance of Agreement by Activation.
BY ACTIVATING SERVICE WITH US YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not agree to the terms of this agreement do not accept Service.
3. Changes to Terms of Use.
We may modify these Terms and Conditions and/or increase the charges for Service (even if you have paid for Service is advance) at any time, upon notice to you. You may, upon receipt of such notice, terminate Service without incurring the cancellation fee (if any) by following the termination instructions set forth in the notice. Failure to terminate Service according to such instructions within fourteen (14) days after the notice shall mean you agreed to such modifications and/or increase, and you must pay us any additional charges even if you paid for Service in advance. You acknowledge that no Midas Networks Inc. employee or agent is authorized to make any representation or warranty with respect to this agreement, the Service or the equipment or to waive or alter any provisions of this agreement.
4. Use of Service.
You agree not to modify any equipment or use the Service or equipment for any unlawful, harassing, or abusive purposes, or in such a way as to create damage to our business, reputation, employees, subscribers, facilities, third parties, or to the public generally. You agree not to send unsolicited commercial text or email messages or any harassing, threatening, or obscene text or email messages. Any domain names you have previously registered or domain names that are registered by Midas Networks on your behalf remain the sole property of you and Midas Networks will not be held responsible for your actions with regard to your service. You agree that we may contact you using an email account of your designation to notify you of changes to or information about your account, the Service or this agreement.
5. Spam
Any spam complaints, (via any means, including but not limited to email, usenet posting, instant messaging, advertising a site hosted or colocated, IRC, SMB/NetBIOS), that after investigation are confirmed to have originated from a server or device attached to Midas Networks will result in investigative charges of $175.00 per complaint. If, during the investigation, the spam was found to have been relayed through misconfiguration, trojaned, or other exploit, the customer will be responsible for reconfiguring or repairing the system or device. If they are unable to repair or reconfigure the system or device within 24 hours or verbal, email, or written notification, Midas Networks reserves the right to physically disconnect the network interface(s) on the server or device. Customers who knowingly and repeatedly send or transmit messages resulting in complaints will have service terminated immediately, and must pay all investigative charges, plus reconnect/installation fees to have service restored. After the second incident of a customer knowingly sending or transmitting spam, service will be terminated, investigative charges applied, and the full balance owed for the remaining term of the contract will be due. In the event payment in full cannot be paid at the time of termination, Midas Networks will confiscate any and all equipment listed on the account and will hold for 60 days pending full payment of fees and services. If, after the 60-day period the account is still in collections, all equipment under the account will become property of Midas Networks Inc.
6. Copyright infringement
Customer bears all responsibility for material hosted on their sites, servers or devices. Complaints regarding copyright infringement under DMCA or other copyright law will forwarded to the customer for resolution with the copyright holder. Midas Networks may choose to investigate the complaint for our own records, but is not responsible for removal of materials from customer sites, servers, or devices.
7. Investigations of criminal or terrorist activities
Midas Networks will cooperate fully with city, county, state, federal, or other law enforcement agencies investigating any complaints of criminal or terrorist activities by our customers.
8. Investigations of civil lawsuits
Midas Networks will cooperate fully with city, county, state, federal, or other agencies investigating in relation to civil suits when proper documentation is supplied and verified.
9. Other network abuse, virus, trojan, worm, etc.
Midas Networks reserves the right to disconnect customer network connections, servers or devices without notification if they are deemed to be infected or exploited and are causing service disruptions or presenting other hazards to Midas Network’s other customers or the Internet community at large. Midas Networks will notify the emergency contacts for disconnected customers as soon as possible, and will assist customers in cleanup when staff time is available.
10. Term: Termination of Service.
This agreement begins on the date Service is activated (or otherwise deemed to have been accepted as provided in Paragraph 2) and will continue until terminated by you or us in the manner provided in this agreement. Notwithstanding termination you will still be liable for payment of any amounts due or other obligations incurred before or upon termination, whether the Agreement is ended by you or us. If you select a plan with a fixed term longer than one month (such as an annual plan or promotional plan), the term of Service shall continue for the number of full months applicable to the term selected (the “Fixed Term”). Service for plans without a Fixed Term may be terminated by you providing thirty (30) days notice to us. At the expiration of a Fixed Term, this Agreement will continue unless we terminate Service for any reason upon three (3) days notice other than breach, in which case, we may terminate without prior notice, or you terminate Service for any reason by providing thirty (30) days notice to us. If you breach this Agreement or attempt to terminate Service prior to the end of the Fixed Term, you agree to pay us, as a reasonable estimate of our damages and in addition to other amounts owed, a cancellation fee equal to half of the remaining amount (which you agree may be deducted from your deposit, or automatically billed to your account). In addition, we may keep any amounts prepaid by you sufficient to cover any accrued charges and fees related to the Service you have used. In the event payment in full cannot be paid at the time of termination, Midas Networks will confiscate any and all equipment listed on the account and will hold for 60 days pending full payment of fees and services. If, after the 60-day period the account is still in collections, all equipment under the account will become property of Midas Networks Inc.
11. Default: Termination.
You will be in default of this Agreement if you: do not pay any sum when due, breach this Agreement, fail to perform your obligations under this Agreement or in any other agreement between you and us, become the subject of any proceeding under the Bankruptcy Code or become insolvent. In any such case, you shall remain responsible for payment of all charges and fees (including any early termination fee) due us under this Agreement (including any charges after a Bankruptcy filing), which charges will be immediately due and payable. We have the right to discontinue Service and/or terminate this Agreement without prior notice to you upon your default under this agreement. If we agree to renew Service to you after discounting Service, you agree to pay reactivation charges. Our remedies hereunder are not exclusive but are in addition to all other remedies provided by the law.
12. Modifying Your Account.
Unless you have selected a special promotional plan or accepted promotional pricing, you may, upon written notice to us and payment of a transfer fee (if any) addressed by us, change to another plan beginning with the next billing cycle. Any Fixed Term will remain unchanged by any modification to your account. If, in our sole discretion, we allow you to temporarily suspend your account, the Fixed Term will be extended by the length of the temporary suspension.
13. Billing and Payment Charges.
You agree to pay in full each month all charges for Service under this Agreement, including regular monthly Service and Usage (if any) charges. You will be charged for Service and other features on a monthly billing cycle basis, unless the Service is delivered to you using special promotional plans completely at our discretion. We may change your billing cycle at any time. Any taxes, fees, costs or charges imposed on us as a result of providing the Service or equipment will be added to your charges as provided in Paragraph 9. If we have agreed that you may pay for charges with a credit card, we will charge the credit card, when we bill for the charges, for all amounts or other obligations incurred before termination. You also authorize us to charge your credit card at or after termination of Service to pay what you owe (including, but not limited to, payment of any cancellation fee). If you have not authorized charges to be made to a credit card, or if you revoke such authorization, or for any reason your credit card issuer does not pay us, we must receive payment from you on or before the due date, or we may suspend or terminate your Service without prior notice. Charges, including disputed amounts, must be paid by the date shown on the monthly invoice. You agree that (a) time is of the essence (b) it would be impractical to fix the exact amount of our damages if you fail to pay promptly; and (c) in the event we do not receive you payments by the due date shown on your monthly invoice, your payment is past due and you shall pay us default interest of the lower of 1.5% per month (or any portion thereof) of any past due amount until paid, or the highest amount permitted by law. If you believe your bill contains any incorrect charges, you must notify us of such disputed charges within sixty (60) days (except as provided in Paragraph 13) from the date of the first bill that contains the disputed charges or you waive your right to dispute those charges. We may require you to describe your dispute in writing. Any written communications concerning disputed amounts owed must be sent to Midas Networks Inc., P.O. Box 4230, Cedar Park, TX 78630-4230. If we accept late or partial payments or payments marked “Paid in Full” or similar notations, it will not waive any of our rights hereunder to collect all amounts that you owe us nor will it constitute an accord and satisfaction. We may charge you a returned check fee of $20 or such lesser amount as may be required by law for any check returned for insufficient funds. We will discontinue Service without prior notice to you if we suspect any unlawful or fraudulent use of the Service. You agree to reasonably cooperate with us in investigating suspected unlawful or fraudulent use.
14. Taxes.
Any applicable sales, use, excise, public utility or other taxes, fees or regulatory costs, including without limitation fees, costs or charges imposed on you or us as a result of providing the Service will be added to your charges as permitted by law. If you are exempt from payment of any such taxes you may provide us with an original Tax Exempt Document. Tax exemption will only apply to charges incurred after the date we receive the Tax Exempt Document (you cannot receive credit for any taxes already paid by you). The address you have provided to us is used to bill federal, state and local taxes and fees that we are required to collect from you. In some cases this address may indicate that you live in one local jurisdiction (for example city or county) when you actually live in another. This could result in an incorrect charge for certain taxes and fees. If you have been incorrectly billed for any tax or fee, please contact Midas Networks Inc. by writing or phone so that any incorrect charges may be removed from your account. You must notify us within ninety (90) days from the date of the first bill that contained the incorrectly billed taxes or fees or you waive your right to dispute those charges.
15. Limitation of Liability.
Unless stated in a separate Service Level Agreement (SLA), we shall not be liable for any deficiency in performance caused in whole or in part by act or omission of an underlying carrier or service provider, equipment or facility failure. Unit failure, network problems, or network capacity, equipment or facility upgrade or modification, acts of God, strikes, fire, war, riot, government actions, equipment or facility shortage or relocation or causes beyond our reasonable control. SERVICES ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHATSOEVER, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVEN IF MIDAS NETWORKS INC. OR ANY OF MIDAS NETWORKS INC. AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THEY WILL NOT BE LIABLE TO YOU OR ANY OF YOUR EMPLOYEES, AGENTS, CUSTOMERS, OR ANY THIRD PARTIES FOR ANY DAMAGES ARISING FROM THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR LOSS OF PRIVACY DAMAGES; PERSONAL INJURY OR PROPERTY DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM INTERRUPTION OR FAILURE OF SERVICE, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, COST OF REPLACEMENT PRODUCTS AND SERVICES, THE INABILITY TO USE THE SERVICE, THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION OR MESSAGE TRANSMITTED TO OR RECEIVED BY YOU, OR LOSSES RESULTING FROM ANY GOODS OR SERVICE PURCHASED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. THE MAXIMUM AGGREGATE LIABILITY OF MIDAS NETWORKS INC. AND ANY OF MIDAS NETWORKS INC. AFFILIATES TO YOU AND THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY AND ALL DAMAGES, INJURY, OR LOSSES ARISING FROM ANY AND ALL CLAIMS AND/OR CAUSES OF ACTION RELATED TO THE SERVICE SHALL BE TO RECOVER THE PRORATED MONTHLY OR OTHER CHARGES TO YOU FOR THE APPLICABLE SERVICE OR EQUIPMENT. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES YOU AGREE THAT OTHER PARTS OF THIS AGREEMENT RELY UPON THE INCLUSION OF THIS PARAGRAPH. THE LIMITATIONS SET FORTH IN THE PRECEEDING TWO PARAGRAPHS ARE INDEPENDENT OF EACH OTHER AND BOTH THE LIMITATION OF DAMAGES AND LIMITATION OF REMEDY SET FORTH ABOVE WILL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OR ALL PARTS OF THE LIMITED REMEDY SET FORTH IN THE PARAGRAPH IMMEDIATELY ABOVE.
16. Indemnification.
You agree to defend, indemnify and hold us, any underlying carrier, and any Midas Networks Inc. affiliates harmless from and against any and all claims, demands, actions, liabilities, costs or damages arising out of your use of the Service or your violation of this Agreement. You further agree to pay our reasonable attorney’s and expert witness fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this paragraph.
17. Assignment.
We may assign in whole or in part our rights or duties under this Agreement without prior notice to you and upon such assignment we shall be released from all liability hereunder. You may assign this Agreement only with our prior written consent. Subject to this restriction, this Agreement shall inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective parties.
18. Notices.
Written notices to you shall be considered given on the date deposited in the U.S. Mail addressed to you at the billing address shown in our billing records or immediately upon delivery using electronic means such as email. Written notice to us shall be considered given when received by our registered agent or us.
19. Severability.
If any provision of these Terms and Conditions is held to be contrary to law, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, and the balance of the provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate this Agreement.
20. Governing Law; Venue and Statue of Limitations.
This Agreement, its validity, construction and performance, shall be governed by the laws of the state of Texas. Arbitration proceedings or any actions to enforce an arbitral award shall be in the state where your Service is principally provided. Except as otherwise provided in this Agreement, and unless prohibited by law, any controversy, claim or dispute must be brought by you within one (1) year of the date you are entitled to assert such claim.
21. Entire Agreement.
This Agreement consisting of Midas Networks Inc. Service Agreement and Midas Networks Inc. Terms and Conditions represents the final and entire Agreement between you and us regarding the Service and any equipment. Except as otherwise provided in this Agreement, no prior or subsequent handwritten, typed, or oral change to this Agreement will be valid unless we accept it in writing. Our failure at any time to require strict performance by you or any other subscribers of any of the provisions herein shall not waive or reduce our right thereafter require strict compliance with any provisions of this Agreement.
22. Signing Authority/Authorized User.
You acknowledge that you are of legal age, have received a true copy of this Agreement and have read and clearly understand the terms of this Agreement and if subscribing on behalf of a corporation or other entity, are fully authorized to legally bind such entity. You acknowledge that you are responsible for all charges incurred by any person you authorize to access you account, or to use the Service.
23. Survival.
The following provisions shall survive any termination of this Agreement for any reason: paragraphs 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, and 16.