About
This Document
This document is your Terms
of Service Agreement (“Agreement”). It is an agreement made between you and
Westcom Broadband, Inc. ("Westcom"), explaining the rights and
responsibilities of Westcom and Westcom’s customers.
By ordering Internet service
from Westcom and by using provided Equipment or Service, you accept the terms
and conditions contained in this Agreement and agree to comply with its
requirements. Westcom is also bound by this Agreement, although we have the
right to update this Agreement and other policies.
We have done our best to make
this document and the other Westcom policies understandable. However, sometimes
it is necessary to include strict legal language.
Definitions
"Customer" or
"you" ("your," "yourself") means a person, a
corporation, or a legal entity who contracts to use the Westcom Service,
agreeing to pay for service and installation of equipment.
"User" means you
(the customer) and anyone else who uses your Westcom service and equipment.
"Service" means
basic network access from your premises to the Internet and transport of data
via a wireless modem as provided by Westcom.
"Equipment" means
certain software, a wireless outlet (if necessary), a wireless modem, a power
supply, an electrical surge protector, mounting bracket, Cat5 cable, and any
other Westcom-supplied equipment necessary to provide the Service.
"Westcom" or
"we" ("us," "our") means Westcom Broadband, Inc.,
a
“Activation” means
installation of basic Equipment in a standard customer environment and
commencement of service at Westcom’s data center.
Scope
of This Agreement
This Agreement shall be
governed by, construed under, and enforced in accordance with, the laws of the
state of
Your
Responsibilities
You agree to purchase
Internet service from Westcom, in accordance with the terms and conditions of
this Agreement.
You have certain responsibilities
as a party to this Agreement. Another section describes Westcom’s
responsibilities.
1)
You acknowledge that you accept this Agreement on
behalf of yourself, your users, and all persons who use the Equipment and/or
the Service through your computer.
2)
You have sole responsibility for ensuring that all
other users understand and comply with the terms and conditions of this
Agreement.
3)
You acknowledge and agree that you are solely responsible
and liable for any and all breaches of the terms and conditions of this
Agreement, whether such breach is the result of use of the Service and/or
Equipment by you or by another user of your computer.
4)
You agree to use your Westcom wireless broadband
service from your own premises (and not to share with other premises).
5)
You agree to provide Westcom with accurate and
complete billing information, including your legal name, address, and telephone
number. If your address, phone number, name, or other billing information
changes, you will notify us of the changes within 30 days or before your next
billing cycle.
6)
By ordering and paying for a Westcom account, or by
using the Westcom service, you affirm that you are 18 years of age or older, or
that you have parental or guardian consent to use the service.
7)
You agree not to operate any servers in your home
such as web servers, MP3 servers, video servers which would degrade the network
by allowing multiple external users to connect to your equipment over the
internet.
What
happens if you break this Agreement ("default")
If you default (break this
Agreement), Westcom may temporarily suspend or permanently close some or all of
your Service. Westcom alone makes this decision. Suspending or closing your
service does not limit Westcom’s remedies or incur any liability to you (that
is, we do not have to credit you for down time if you lose access because you
defaulted). "Default" means failure on your part to comply with this
Agreement. This includes getting behind on payments and breaking the provisions
of this Agreement or the associated policies, but is not limited to these
situations.
If you use your own equipment
with Service provided by Westcom in violation of any of the provisions of this
Agreement, Westcom will notify you and take such action as is necessary for the
protection of the Service for use by its other customers. This may include
discontinuing your Service.
Westcom reserves the right to
charge a reconnect fee for any discontinued Service that is subsequently
reconnected.
Westcom’s
Responsibilities
Westcom has certain
responsibilities as a party to this Agreement. Another section describes your
responsibilities.
1)
Westcom agrees to provide you with the Service and
the Equipment, providing that you comply with all of the terms and conditions
of this Agreement. We also agree to maintain the Equipment provided by Westcom,
and repair or replace it if necessary.
2)
We will do our best to provide uninterrupted
Internet connectivity. However, like any other Internet service provider, the
Service may experience temporary slowdowns or interruptions caused by:
a)
Overload
b)
Abuse
c)
Equipment failure, modifications, upgrades,
relocations, or repairs, and similar activities necessary for the proper
operation of the Service
d)
Disasters (please read about "force
majeure")
3)
Westcom will provide basic instructions on how to
use the Service. These instructions will appear on the Westcom website. You may
also obtain technical support for the Westcom provided Equipment or Service
either via phone or email as designated by your plan. We cannot provide
technical support for operating systems, your personal hardware, or software
not provided by Westcom.
4)
If Westcom wireless broadband Service cannot be made
to work initially at your location because of distance, hills, trees, or any
other cause, you will be refunded 100% of your money. If Westcom wireless broadband Service cannot
be made to work at your location after 1 or more months of service, you will be
refunded the pro-rated amount of the payment you have made to us, subject to
this Agreement. You must return the equipment in good condition. Westcom has no
other liability if your location proves impossible for Service.
Force
Majeure (Disasters, Etc.)
Neither you nor Westcom is
liable for any delay or failure in performance of any part of this Agreement
caused by any event beyond your (our) control and without your (our) fault or
negligence.
These events include, but are
not limited to, the kinds of situations known legally as "Force
Majeure." Force Majeure refers to a number of situations that could affect
you and Westcom in performing your obligations:
1)
acts of civil or military authority
2)
terrorist acts
3)
nuclear accidents
4)
inability to secure transportation facilities, hardware
or software products, or services of other persons
5)
government regulations
6)
riots
7)
strikes
8)
acts or omissions of transportation or common
carriers
9)
embargoes
10)
insurrections
11)
extended power blackouts
12)
natural disasters
13)
epidemics
14)
fires
15)
severe weather conditions
16)
environmental disturbances
17)
war
18)
explosions
19)
legal and/or regulatory constraints
If a Force Majeure condition
occurs, the party injured by the other party’s inability to perform has two
options (detailed below). You (we) have 30 days to choose which one. If you do
not inform Westcom (or vice versa) of your selection within 30 days of being
notified of a Force Majeure situation, the second option goes into effect.
1)
You or Westcom, whichever is the injured party, may
terminate the Agreement if such Force Majeure condition results in a delay or
failure to perform which continues for more than 30 calendar days
2)
Westcom may suspend the Service for the duration of
the delaying cause and buy or sell a similar service. You may deduct the time
you have contracted for with some other provider from the time you contracted
for with Westcom. Then, after the emergency is over, you may resume Westcom
service under your original Agreement.
Westcom is not liable for any costs incurred by you from using another
provider.
Setting
Up Your Service
Activation
The Activation fee for your
Service plan includes basic Equipment and labor to get your computer
online. Equipment includes a wireless modem
(subscriber module), a mounting bracket for the wireless modem, a power supply,
a surge protector, and up to 75’ of Cat5 cable. Installation includes mounting the bracket,
hardware and wireless modem on your building, running up to 75’ of Cat5 cable
on the exterior of your building to a location where you would like the cable
to come into your building, the drilling of a hole (up to 12” thick), taking
the cable through the hole and into the room on the other side of the hole that
was drilled and terminating the cable end to an RJ-45 data grade connector into
the power supply. This means there will
need to be an available AC power outlet in the room where the Cat5 cable comes
into the building. There must also be an
outside electrical ground near the location of the hole where the external
surge suppressor can be mounted and grounded.
Westcom will then connect the
Cat5 to an Ethernet port on your computer and configure the network settings on
your computer such that you may access the Service. Most newer computers come with an Ethernet
port, however if your computer does not have one, you may install one yourself
or have Westcom install it (for an additional fee).
If you have a unique
situation where you need more than these basic services, Westcom will provide a
quote for these services and/or hardware.
All the Equipment remains the
property of Westcom and must be returned in good working condition when Service
is terminated, otherwise you will be responsible for full retail replacement
costs.
Paying
for Your High-Speed Broadband Internet
Price
You will pay Westcom the
monthly rate and other fees and charges associated with your service plan and
activation fee, including applicable sales taxes, as established by Westcom.
Westcom reserves the right to
modify the rates, fees and charges at any time.
You have the right to be
notified of price changes at least 30 days before the new rate takes effect.
You acknowledge that you may
incur additional charges while using the Service. If you make purchases over
the Internet, those transactions are between you and the seller, and have
nothing to do with your relationship with Westcom.
Billing/Payment
You will be paying for
Service from the 1st of the month to the end of the month. Each month you will be billed for the
following month of Service (you are pre-paying for each month of Service). Westcom will send the monthly statement (your
bill) by
Your First Bill
If you signup on or before
the 20th of the month, your first bill will include your activation
fee, the pro-rated amount of service for first month and the first full pre-pay
month of service. If you signup after
the 20th of the month, your first bill will include your activation
fee, the pro-rated amount of service for the first month, the first full month
of service and the following month’s pre-pay of service.
Activation Fee
You will be charged for your
activation fee (per your service plan) on your first (1st) monthly
statement. You may pay it all the first
month or make payments for up to 1 year.
The minimum amount due each month is one-twelfth (1/12th) of
the activation fee. There will be an
additional $3 service fee charged each month for making payments on the
activation fee. There will be NO service
fee if the activation fee is paid 100% the first (1st) month.
Forms of Payment
You may pay for your Westcom
Service by check, money order, cashier’s check, credit card or direct deposit
from your savings or checking account.
You may also have automatic payment setup (either credit card or a bank
account such as checking or savings). If
you have automatic payment setup, Westcom's billing software will automatically
charge your account on the first (1st) of each month. If payment is refused, automatic payment will
be cancelled and you will be notified via
If your account becomes
overdue, you will receive a notice by mail or email and your account will be
temporarily suspended until payment is received. If you have not paid for 30 days, we reserve
the right to close your Service. You will still owe Westcom for any unpaid
balances and you are obligated to return all Equipment back to Westcom or you
will be billed for the cost of the Equipment.
Westcom will charge $10 for
late payments. If your account is
closed, there will be a $50 reactivation fee.
A service charge of $25 will be assessed for each check that is returned
to Westcom for insufficient funds.
Westcom does not issue
refunds for partial months.
Term
This Agreement becomes
effective on the date in which you sign this Agreement. However billing does NOT start until your
Westcom Service is installed and activated.
You will not receive your first bill from Westcom until the first
billing cycle which is the 20th of every month (see “Your First
Bill” above). This Agreement remains in
effect until terminated. It will continue in effect on a year-to-year basis
after the first year until such time as your Westcom account is closed by you
or by Westcom.
Credit
for down time
Although we will make every
effort to maintain your Service at all times, you have the right to be credited
for Service if Westcom is unable to deliver Service for more than a continuous
twenty-four (24) hour period of time. In such a case, we will credit you with
1/30 of the monthly charge for each continuous twenty-four (24) hour period
from the time until Service is restored.
1)
The 24 hours must be continuous. You cannot add up
shorter periods.
2)
To receive credit you must notify Westcom that your
service is not working.
3)
Most types of outage do not qualify for credit.
Please read the next subsection for more information.
Events
that don’t qualify for credit
Most temporary service
outages do not qualify for credit.
1)
You will not get credit for problems in the Service
caused by your own or others’ negligence or willful act (except as provided
above) or for problems caused by weather or disaster-like situations. Please
see Force Majeure. "Willful acts" include system failures caused by
viruses, "hacking," "cracking," and other forms of remote
malice.
2)
You will not get credit for loss of connectivity
caused by technicians working to modify or repair Westcom's equipment.
3)
You will not get credit for interruptions of service
less than continuous 24 hours long.
4)
You will not get credit for not using your Service.
If you believe that Westcom
has billed you in error, you must contact Westcom in writing, by email at billing@Westcombroadband.com
or by calling us within 60 days of the invoice or transaction date of the
charge. Refunds or adjustments will not be given for any charges more than 60
days old.
Deposit
At this time Westcom does not
require a deposit. However, we reserve the right to collect a deposit from you
as security for your performance of all of your obligations under this
Agreement. Some types of accounts may always require a deposit.
Closing
or Changing Your Account
To modify or close your
account with Westcom, you must notify us via email, fax, or letter with your
signature on the request. To add services or close an account, you must
identify yourself to Westcom's satisfaction. This is to protect you from
someone else making changes to your account.
ANNUAL ACCOUNT EARLY
CANCELLATION FEE: If you cancel your account before 12 months have lapsed, you
will have the option to either: a) pay a flat cancellation fee of $299; or b)
pay the remaining months of service – whichever is less. After the first year of service, early
cancellation fees do not apply.
You agree that upon
termination of this Agreement:
1)
You will pay Westcom in full for your use of the
Equipment and the Service up to the effective date of termination of this
Agreement or the date on which the Service and Equipment have been disconnected
and returned to Westcom, whichever is later. You will not receive a partial
refund if you terminate service part-way through a month. If you pre-pay, you
will receive a refund for service not used (excluding partial months).
2)
You will allow Westcom employees or contractors to
access your premises to remove the Equipment. This may mean coming in your
house and climbing on your roof. We agree to arrange a time that is convenient
for you.
3)
You will return all of the Equipment to
Westcom. Not returning the equipment in good condition is considered a
default and you will be responsible for the cost of all the Equipment. You will need to call Westcom to coordinate a
time when Westcom can come out to remove the Equipment.
Credit
for closed accounts
If you cancel your Westcom
service, we will refund that part of your latest payment which covers time you
will not use excluding payment for partial months. Your activation, setup and
installation fees are non-refundable. You will always be refunded at the rate
you paid. That is, if you got a discount, you will be refunded at the discount
level, not at the standard level.
Computer
Equipment
Your
own computer equipment
You are responsible for your
own equipment that you use with the Westcom service. For this Agreement to be
valid, your computer must meet minimum requirements (as determined solely by
Westcom). It must:
1)
Be technically and operationally compatible with the
Service. Westcom's responsibility for your Internet connectivity stops at the
downstream end of the Equipment. You are responsible for providing equipment
capable of receiving and transmitting electronic data through a standard port.
2)
Be compliant with applicable Federal Communications
Commission rules and regulations.
Home
networks and Reselling Service
You may access the Internet
via Westcom from secondary computers on a home network within the limits of the
Acceptable Use Policy. Your home network is not part of your Westcom Service or
Equipment. By accepting this Agreement, you explicitly acknowledge that Westcom
will not provide technical support for equipment or software that is not part
of the Westcom Service or Equipment.
Allowing someone to connect
to your home network from outside your premises and use your Westcom service is
strictly prohibited. If you do this, you will be liable for service charges,
activation fees and other penalties for each computer that is connecting to
your home network and we may close your
account.
Giving someone outside your
household your Westcom email name and password is called "account
sharing" and is strictly prohibited.
You may not resell Westcom
Service to anyone.
Backing
up your data before installation or repair
There is an extremely remote
possibility that the installation, use, inspection, maintenance, repair, and
removal of the Westcom Equipment may result in damage to your computer. You
therefore agree to back up all existing computer files by copying them to
another storage medium before installation of the Equipment. Westcom has no
liability whatsoever for any damage to or loss or destruction of any of your
equipment, software, files, data, or peripherals.
Equipment
supplied by Westcom
Westcom agrees to maintain
the Equipment in working condition for the lifetime of this Agreement. In case of Equipment failure, Westcom will
troubleshoot, diagnose, repair, or replace the Equipment as soon as possible
All equipment supplied by
Westcom, except for any item that you buy and pay for in full, remains the
property of Westcom and must be returned when Service is terminated. You may
not mortgage, sell, transfer, lease, encumber, or assign all or part of the
equipment.
If you lose or break the
Equipment, or turn it over to someone else as described in the previous
paragraph, you must pay Westcom the full retail cost of the repair or
replacement. If Westcom spends money in the effort to get the equipment back,
you must also pay those costs.
You will not modify, tamper
with, or move the Equipment. If you need the equipment moved, call or send a
request to Westcom and Westcom will relocate the Equipment for you at a time
that you and Westcom agree on.
You authorize Westcom and its
employees, agents, contractors and representatives to enter your premises in
order to install, maintain, inspect, repair, and remove the Equipment. Westcom
agrees to arrange a convenient time with you for these activities.
Limitation
of Liability
WESTCOM SHALL NOT BE LIABLE FOR INTERRUPTIONS CAUSED
BY FAILURE OF EQUIPMENT OR SERVICE NOT PROVIDED BY ITS, FAILURE OF
COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE
CONTROL OF WESTCOM,
Eavesdropping.
Westcom uses an encryption technology to transmit data. Even so, there is a
slight risk that you could be subject to "eavesdropping." This means
that other parties may be able to access, monitor, and/or decode your traffic.
This risk of eavesdropping exists not only over Westcom’s network, but also on
the Internet and all other electronic data networks. Because of this risk, you
should not send any sensitive or confidential information, such as credit card
numbers or other financial information, medical information, or trade secrets,
over the network except via secure technologies such as SSL (secure, encrypted
web pages). Any information you send over the network is sent at your sole
risk. Email is not secure unless encrypted, and sometimes not even then.
Home
Networks. Your home network is not part of your Westcom service. Any security
risks associated with your wireless or wired home network are independent of
the Service. Westcom has no responsibility for the security or operation of
computer equipment other than the Westcom Equipment.
Westcom has a right to claim
economic damages from you if you violate the Westcom Agreement or its
associated policies and cause Westcom significant economic harm.
Indemnity
You and your users shall
indemnify and hold harmless Westcom from and against any loss, cost, claim,
liability, damage, or expense (including reasonable attorneys’ fees) to third
parties, relating to or arising from the use of the Service by you, your users,
or others using your access, whether or not you know of or have authorized such
access or use, including, without limitation, claims for libel, slander,
invasion of privacy, infringement of copyright, patent infringement (where you
or your users have used, connected, or combined the Service with the products
or services of others), negligence, or tortuous behavior.
Intellectual
Property
Ownership
of Newly Developed Systems
All past, present, and future
computer programs, software, drawings, diagrams, specifications, and other
materials licensed or developed by Westcom or its suppliers, in connection with
delivering the Service, whether or not developed at your specific request,
remain the property of Westcom. You do not acquire sublicense or rights
in these items by virtue of this Agreement or the provision of the Service.
Service
Marks and Trade Names
Except as specifically set
out in this Agreement, nothing in this Agreement shall grant, suggest, or imply
any authority for you to use the name, trademarks, service marks, or trade
names of Westcom for any purpose whatsoever without the prior written consent
of Westcom. If you intend to use Westcom’s corporate or trade name, logo,
trademark, or service mark in any kind of published material, you must show the
proposed use to Westcom and get Westcom’s approval in writing before you
publish or release the material. This requirement covers advertising, sales
promotions, press releases, or other publicity matter relating to this
Agreement.
Dispute
Resolution
Both you and Westcom desire
to resolve disputes arising out of this Agreement without litigation.
Accordingly, except for action seeking a temporary restraining order or
injunction related to the purposes of this Agreement, or suit to compel
compliance with this dispute resolution process, you and Westcom agree to use
the following alternative dispute resolution procedure as the sole remedy with
respect to any controversy or claim arising out of or relating to this
Agreement or its breach.
At a written request, you and
Westcom will appoint a knowledgeable, responsible representative to meet and
negotiate in good faith to resolve any dispute arising under this Agreement.
Both parties intend that business representatives who are not lawyers conduct
these negotiations. The location, format, frequency, duration, and conclusion
of these discussions shall be left to the discretion of the representatives.
Upon agreement, the representatives may use alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and
correspondence among the representatives for purposes of these negotiations
shall be treated as confidential information developed for purposes of
settlement, exempt from discovery and production, which shall not be admissible
in the arbitration described below without the concurrence of all parties.
Documents identified in or provided with such communications that are not
prepared for purposes of the negotiations are not so exempted and may, if
otherwise admissible, be admitted in evidence in the arbitration.
If the negotiations do not
resolve the dispute within 60 days of the initial written request, the parties
shall submit the dispute to binding arbitration before a single accredited
arbitrator (pursuant to the Commercial Arbitration Rules of the American
Arbitration Association). You or Westcom may demand such arbitration in
accordance with the procedures set out in those rules. Discovery in such
arbitration shall be controlled by the arbitrator. Westcom shall select an arbitrator.
The arbitration hearing shall
be commenced within 120 days of the demand for arbitration. The
arbitration shall be held in
You and Westcom will each
bear your own costs of these procedures. Anyone seeking discovery will
reimburse the other party for the costs of production of documents, which
includes search time and reproduction costs. Copyright
© 2003 by Westcom Broadband, Inc. All rights reserved.
Westcom Broadband, Inc.
Customer Service Agreement
Support:
Service Plan:
____________________ Activation date
is: _____/_____/_____
Activation fee:
$_________ Monthly Service fee:
$__________
This plan provides ____kbps/Mbps of service, ___GBs of data
transfer per month, 1 Email address, and allows 2 PCs to connect to the Westcom
Service. Additional data transfer is
available for $0.02/1MB. Additional
Residential & Business plans are available (for more email and monthly data
transfer).
IMPORTANT: This service is
ONLY for the physical location identified below and cannot be shared with any
other person or locations.
The initial term of this Service
Agreement is _______ month(s). This
Agreement automatically extends beyond the initial term as a month-to-month
Agreement. By signing this document, you
agree to the terms and conditions set forth in the entire Customer Service
Agreement (www.westcombroadband.com/agreements.htm)
and the Acceptable Use Policy (www.westcombroadband.com/aup.htm).
____ (initial): For your protection, antivirus, antispyware
and firewall software is required on all PC’s connected to Westcom Internet
service. For more information, visit www.microsoft.com/athome/security.
All-inclusive
security suites to consider include: www.trendmicro.com/home/
or www.mcafee.com or www.symantecstore.com
All customer premise
equipment (
Equipment: 1-9000SMC, 1-PS,
1-Antenna, 1-Mast, Cat5 cable, _______
Requested Email
Addresses:
Email:
_________________@westcombroadband.com Email:
________________@westcombroadband.com
To
configure your email client (Outlook), setup as
Contact Name:
___________________________ Email
Address (for billing): _________________________
Installation Address:
Mailing Address:
Primary Phone:
_______________________ Secondary
Phone: _______________________
Method of Payment: 1) Credit (preferred) V/M D/C
OR 2) Check
Acct Number: _______ -
_______ -_______ -_______ Exp. Date:
____ /____
Signature:
_________________________________________ Date_____________
Note: Your wireless equipment
operates at 5.7Ghz or 900Mhz. Other
wireless equipment such as cordless phones (even some 2.4Ghz and 5.8Ghz phones
use 900Mhz – check the manual), pagers, monitoring systems, etc. can also
operate at 5.7Ghz or 900Mhz and interfere with the signal.