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.