These Terms and Conditions shall govern the relationship between you (“Subscriber”) and Wabash Mutual Telephone/Wabash Communications, Inc. (“Wabash”).
(a) Upon Subscriber’s acceptance of these Terms and Conditions, Wabash will provide Subscriber with a right to send and receive internet transmissions through Wabash’s proprietary facilities (the “Service”). (b) The Service shall only be used in conjunction with stand-alone data devices. Subscriber acknowledges that Wabash does not provide Service for any server or desktop or any other device or equipment connected to a network. (c) The Subscriber acknowledges and agrees that the Service is for browsing only and that Subscriber may not host any FTP server, web server, or any other server in any form. (d) Wabash shall retain all right, title and interest to the Service including all copyrights, trademarks and all other intellectual property rights thereto. Subscriber shall not copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer, or allow any third party to copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer any Equipment, as defined below, software or other material provided under these Terms and Conditions for any purpose whatsoever. Any and all copyright notices and other proprietary legends shall not be removed from the Equipment, software or other material provided in connection with the Service. No use of trademarks is granted hereunder. Subscriber shall not grant any sublicenses, leases or other rights in the Service to any third party. All rights not expressly granted under these Terms and Conditions are expressly retained by Wabash.
- Charges and Payments.
(a) For Service provided and any other charges, including but not limited to rentals, numeric paging and faxing, during the period that Subscriber subscribes for the Service, Subscriber shall pay Wabash in accordance with Section 2(c). Wabash may, at its sole discretion, change its rates for the Service at any time. (b) All applicable excise, value added, utility, sales or use taxes, if any, shall be billed to Subscriber as separate items and shall be paid by Subscriber, or, in lieu thereof, Subscriber shall provide Wabash with a tax exemption certificate acceptable to the taxing authorities. (c) On a monthly basis, Wabash will either send an invoice to Subscriber or make a charge against the Subscriber’s credit card. For purchase order and pay-by-check Subscribers, payment shall be made in full by Subscriber upon receipt of invoice. Any invoiced amount not paid within 15 days of the date on the invoice shall incur a late fee. Charges based upon actual use of the Service shall be invoiced in the month following the month in which the charges were incurred. All amounts invoiced shall be deemed accepted and undisputed by Subscriber unless Subscriber notifies Wabash, as specified below, within thirty (30) days of an actual and bona fide dispute and provides Wabash with documentation sufficient to support such dispute. (d) For purchase order and pay-by-check Subscribers, payment shall be sent to: Wabash Communications, Inc., 6670 Wabash Road, Celina, Ohio 45822.
- Subscriber Service Plans.
Service shall be provided pursuant to one of the Subscriber Service Plans that are specified in the Service Pricing section of the website.
- Equipment Rental and Return.
Wabash will provide and or rent to Subscriber equipment sufficient to establish the Service, including but not limited to, a wireless PC Card, cellular modem, DSL modem or radio units (the “Equipment”). Subscriber acknowledges that the Equipment will at all times remain the property of Wabash. Subscriber understands that use of any Equipment other than that specifically provided and/or recommended by Wabash (“Unauthorized Equipment”) is not guaranteed to work with the Service. WABASH DISCLAIMS ANY WARRANTIES ON THE USE OF ANY UNAUTHORIZED EQUIPMENT. Subscriber agrees to maintain the Equipment in good maintenance and repair, ordinary wear and tear excepted. Subscriber may not sell, transfer, lease, encumber or assign any or all of the Equipment to any third party. Subscriber shall pay the full retail cost of, or the repair or replacement cost of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Equipment. Subscriber is responsible for any changes made to the Equipment, software and configuration after Wabash completes the Service set up, unless such changes are made by an authorized representative of Wabash. Upon the termination of the Service, Subscriber shall immediately return the Equipment to Wabash, either personally, via first class mail or through a reputable carrier such as UPS. Risk of loss to the Equipment shall remain with the Subscriber until Wabash is in physical receipt of the Equipment.
- Early Termination Fees.
Subscriber may terminate the Service by contacting Wabash at (800) 988-1618 between 8:00am-5:00pm EST, Monday-Friday or by following the procedures specified in the Wabash website. Subscriber agrees to pay in full any termination fee associated with such termination. Wabash service plans as specified at the time of subscription to the Service require a minimum one-year commitment. Early termination is subject to payment of the balance due on the installation fee. Wabash may offer special service plans at certain times. These special service plans will be subject to these terms and conditions and associated early termination fees.
- Limitations on Use.
Subscriber is solely responsible for the information or other material distributed or voluntarily received while using the Service (“Subscriber’s Materials”). Subscriber agrees that Subscriber’s Materials and use of the Service, as applicable, (a) shall not infringe on any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity (and, accordingly, Subscriber shall not upload, post or transmit, in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary right without obtaining permission of the owner); (b) shall not violate any applicable law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control and laws regarding false advertising); (c) shall not be defamatory, libelous, unlawfully threatening or unlawfully harassing; (d) shall not be obscene or contain child pornography and shall not be distributed to anyone who is not legally permitted to receive such materials; and (e) shall not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Subscriber shall not (i) distribute or allow anyone else to distribute unsolicited commercial e-mail through the Service account; (ii) engage in “Ponzi” or pyramid schemes; (iii) attempt to gain access to any other person’s computer, software, or data without the knowledge and consent of such person or to circumvent the user authentication or security of any host, network, or account (including without limitation, by accessing data not intended for Subscriber, logging into a server or account Subscriber is not expressly authorized to access, or probing the security of other networks or otherwise using tools designed for compromising security, such as password guessing programs, cracking tools, packet sniffers or network probing tools); (iii) impersonate another person with fraudulent or malicious intent; (iv) restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Service, including, without limitation, generating levels of traffic sufficient to impede others’ ability to send or retrieve information, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to “crash” a host; (v) knowingly disrupt the Service or take any other action that imposes an unreasonable or disproportionately large load or burden on the Service’s infrastructure and network or otherwise improperly disrupt or impede the Service and/or Wabash’s ability to deliver the Service and monitor the Service network: or (vi) resell the Service or otherwise charge others to use the Service. Subscriber is responsible for any misuse of the Service, even if the inappropriate activity was committed by a friend, family member, guest, employee or customer with access to Subscriber’s account. It is Subscriber’s responsibility to take steps to ensure that others do not gain unauthorized access to the Service through Subscriber’s account. Wabash, through the Service, acts as a passive conduit for Subscriber’s online distribution and publication of information but has no obligation to monitor the Service and/or the content available through use of the Service. However, Wabash reserves the right to monitor bandwidth, usage, and content from time to time to identify violations of this Policy; and/or to protect the network and Service users. Wabash may take any responsive actions it deems appropriate. Such actions include but are not limited to, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, temporary reduction of a user’s network speed to a level designed to ensure that sufficient bandwidth is generally available to the Services users, and the immediate suspension or termination of all or any portion of the Service ordered by a user. Wabash will have no liability for any such responsive actions, and any such actions are not Wabash’s exclusive remedies. Wabash may take any other legal or technical action it deems appropriate. Wabash reserves the right to investigate suspected violations of this Section 7, including the gathering of information from the user or users involved and the complaining party, if any, and examination of material on Wabash’s servers and network. During an investigation, Wabash may suspend the account or accounts involved and/or remove material which potentially violates this Policy. Subscriber hereby authorizes Wabash to cooperate with (i) law enforcement authorities in the investigation of suspected criminal violations, and (ii) system administrators at other Internet service providers or other network or computing facilities in order to enforce the provisions hereof. Such cooperation may include providing Subscriber’s username, IP address, or other identifying information. Upon termination of an account, Wabash is authorized to delete any files, programs, data and e-mail messages associated with such account. The failure of Wabash to enforce this Section 7, for whatever reason, shall not be construed as a waiver of any right to do so at any time.
Wabash will not sell, rent, or furnish Subscriber’s name or specific information to any third party, except as required by law. [Wabash may provide advertisers or others with aggregate information about our subscribers and business.] No assurance can be given that e-mail will remain private.
- Service, Remedy, and Limitation on Remedy.
In the event that the Service is interrupted or some other difficulty is experienced with the Service, Subscriber may call the phone number printed in the applicable documentation provided by Wabash. Wabash shall endeavor to correct problems attributable to the Service as soon as reasonably practicable. The foregoing sets forth Subscriber’s sole and exclusive remedy with respect to such problems.
All general notices or other communications hereunder shall be deemed to have been duly given by Wabash to the Subscriber when posted on Wabash’s website. For notices to an individual Subscriber, Wabash shall at its option send notices via postal mail service or e-mail. E-mail notices will be deemed given within 12 hours of delivery by Wabash. Subscriber shall provide any notices to Wabash either via e-mail to firstname.lastname@example.org or postal mail service sent to the following address: Wabash Communications, Inc., 6670 Wabash Road, Celina, Ohio 45822-1731, Attention: Customer Service.
10. Termination by Wabash.
(a) If any payment is not made in a timely manner, as specified in Section 2, Wabash may (reserving cumulatively all other rights and remedies available to it at law or in equity) at its sole option and discretion, and without prior notice to Subscriber, terminate the Subscriber’s membership and/or Subscriber’s access to and use of the Service. (b) If Subscriber is otherwise in default of its obligations under these Terms and Conditions, Wabash may, in addition to all other rights or remedies available to Wabash, immediately terminate Subscriber’s membership and/or Subscriber’s access to and use of the Service. (c) If Wabash is prevented from providing any of the Service by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental authority, or a notice from a government agency or department indicates Wabash is not permitted to provide any part or all of the Service, Wabash may immediately cease providing such Service without liability to Subscriber. Nothing herein shall be construed to require Wabash to seek waiver of any law, rule, regulation or restriction, or seek judicial review or appeal of any court order. (d) Wabash may in its sole discretion and with or without cause, terminate Subscriber’s membership upon 30 days prior written notice to Subscriber. Upon termination, Wabash will immediately stop providing all Service, including but not limited to sending of or delivering to Subscriber any e-mails. Further, upon termination, Subscriber shall return any rented Equipment pursuant to the return procedures specified in Section 4. Wabash shall not be liable to Subscriber or any third party for any reason for Wabash’s terminating the Service or the Subscriber’s membership.
- File Security
Data sent via the Service may be intercepted by unauthorized third parties possessing certain types of equipment and/or technology. Wabash shall not be liable for any such unauthorized access by such third parties. Subscriber assumes full responsibility for the establishment of appropriate security measures (including, without limitation, the selection of passwords) to control access to Subscriber’s equipment and information.
- Security Deposit.
Wabash shall have the right, from time to time, at its sole discretion, to require Subscriber to deposit with Wabash such sums, as Wabash deems appropriate, to secure the prompt and faithful performance by Subscriber of Subscriber’s obligations under these Terms and Conditions (“Security Deposit”). Wabash shall have the right, at its discretion, to apply all or a portion of the Security Deposit in total or partial satisfaction of the non-performance by Subscriber. The use of all or any portion of the Security Deposit by Wabash shall not deprive Wabash of any other rights or remedies otherwise available to Wabash nor shall such use of the Security Deposit by Wabash constitute a waiver by Wabash of Subscriber’s non-performance. In the event that Wabash should use any portion of the Security Deposit pursuant to this provision, Subscriber shall immediately restore the Security Deposit to its original amount, or such other amount specified by Wabash. Except as otherwise provided by law, Wabash shall not pay interest on any sums retained as a Security Deposit.
- Exclusion of Warranty.
THE SERVICE AND EQUIPMENT PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WABASH MAKES AND SUBSCRIBER RECEIVES, NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE OR EQUIPMENT. WABASH DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICE OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICE. SUBSCRIBER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK AND DISCRETION AND WABASH WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO SUBSCRIBER OR SUBSCRIBER’S PROPERTY. WABASH DOES NOT MAKE ANY WARRANTY PERTAINING TO ANY GOODS OR SERVICES PURCHASED, OBTAINED, SECURED OR ACQUIRED THROUGH THE SERVICE OR ANY TRANSACTION ENTERED INTO THROUGH THE SERVICE.
AS A MATERIAL PART OF THE CONSIDERATION PAID BY SUBSCRIBER FOR THE SERVICE PROVIDED BY WABASH, THE PARTIES AGREE THAT WABASH SHALL IN NO EVENT BE LIABLE TO THE SUBSCRIBER AND ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF ANY SERVICE PERFORMED OR NOT PERFORMED BY WABASH, OR FOR ANY OR ALL LOSS OR DAMAGE DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF A THIRD PARTY’S UNAUTHORIZED ACCESS TO SUBSCRIBER’S DATA TRANSMITTED OVER THE WABASH PROPRIETARY FACILITIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. This Section 14 reflects the allocation of risk between the parties. The limitations specified in this Section 14 will survive and apply even if any limited remedy specified herein is found to have failed of its essential purpose.
Subscriber shall indemnify Wabash and its partners, parents, subsidiaries, affiliates, directors, officers, employees and agents from and against any claims, demands or liability (including any losses, costs, expenses, and attorney’s fees) arising out of or resulting from any injury (including death) to persons, damage to property or other types of claims, including but not limited to slander, libel or plagiarism, directly or indirectly, caused by the Service and due to the acts or omissions of Subscriber.
- Modifications, Improvements and General Administration.
Wabash reserves the right to change any provision in these Terms and Conditions by posting such on the Wabash website. Such changes shall take effect when such changes are posted on Wabash’s website pursuant to Section 7. Further, Wabash reserves the right, from time to time, to make changes in the configuration of the Wabash proprietary facilities, rules of operation, accessibility periods, Subscriber identification procedures, type and location of equipment, allocation and quantity of resources utilized, programming languages, administrative and operational algorithms and designation of the control center serving Subscriber at any particular address. Wabash may perform all of the Service as specified in these Terms and Conditions directly or may have some or all of the Service performed by its subsidiaries, affiliates or subcontractors.
Subscriber may not assign its rights or obligations hereunder without the prior written consent of Wabash. Any attempted assignment or delegation in contravention of this Section 17 shall be null and void and the Subscriber’s Service will immediately terminate.
- Force Majeure.
Neither party shall be deemed in default of these Terms and Conditions for delay, failure in performance, loss or damage due to any cause beyond its reasonable control, including, without limitation, fire, strike, embargo, explosion, power irregularities, earthquake, nuclear accident, volcanic action, flood, labor disputes, civil disturbances, government requirement, civil or military authority, acts of God or public enemy, inability to secure products or transportation facilities, acts or omissions of common carriers or other causes beyond its reasonable control, whether or not similar to the foregoing.
(a) Except as otherwise specifically stated in these Terms and Conditions, the provisions of these Terms and Conditions are for the benefit of the parties hereto and not for any other person. (b) Any additional or different terms of Subscriber’s purchase order, whether or not such terms materially alter these Terms and Conditions, shall be deemed objected to by Wabash unless these Terms and Conditions are expressly amended in writing by the parties hereto. Execution of a Subscriber’s purchase order shall not operate as an amendment to these Terms and Conditions. Whenever printed, typed, stamped or written provisions of Subscriber’s purchase order conflict with these Terms and Conditions, these Terms and Conditions shall control. (c) Waiver by Wabash of any default by Subscriber shall not be deemed a continuing waiver of such default or a waiver of any other default. (d) The terms and conditions contained in these Terms and Conditions that by their sense and content are intended to survive the performance hereof by either or both parties hereunder shall so survive the completion of performance, cancellation or termination of Subscriber’s membership. (e) These Terms and Conditions shall be construed in accordance with the laws of the State of Ohio without regard to any conflicts of law. If any legal action or other proceeding is brought for the enforcement of these Terms and Conditions, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions hereof, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, whether or not the action or proceeding goes to final judgment, in addition to any other relief which it or they may be entitled to. Any reference herein to attorneys’ fees shall include attorneys’ fees incurred in both trial and appellate levels. (f) If any of the provisions of these Terms and Conditions shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable these Terms and Conditions, but rather (unless a failure of consideration would result therefrom) these Terms and Conditions shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Wabash and Subscriber shall be construed and enforced accordingly. (g) These Terms and Conditions merges all prior written and oral communications between the parties and defines the entire agreement of the parties regarding the subject matter hereof.
Wabash Mutual Telephone Network Management Policies
Wabash Mutual Telephone is committed to providing broadband access service based on network management policies that protect and empower our broadband access customer, and maximize the benefits of the Internet experience for all customers.
II. General Policies
A. Wabash Mutual Telephone will manage its network and provide access in accordance with the Federal Communications Commission’s (FCC’s) Open Internet Rules (adopted December 21, 2010) and in compliance with any future Internet policies or rules adopted by the FCC. To ensure Open Access to the Broadband Internet, Wabash Mutual Telephone will not unjustly or unreasonably:
- Block, interfere with or degrade an end user’s ability to access, use, send, post, receive, or offer lawful content (including fair use), applications, or services of the user’s choice;
- Block, interfere with or degrade an end user’s ability to connect and use the end user’s choice of legal devices that do not harm the network;
- Prevent or interfere with competition among network, application, service or content providers;
- Engage in discrimination against any lawful Internet content application, service or service provider with respect to network management practices, network performance characteristics, or commercial terms and conditions;
- Give preference to affiliated content, applications, or services with respect to network management practices, network performance characteristics, or commercial terms and conditions;
- Charge a content, application, or service provider for access to the company’s broadband Internet access service and end users based on differing levels of quality of service or prioritized delivery of Internet protocol packets;
- Prioritize among or between content, application and services or among or between different types of content, application, and service unless the end user requests to have such prioritization.
B. Wabash Mutual Telephone will:
- Provide connection and transport services to the public Internet to customers;
- Negotiate in good faith with all requesting parties making a bona fide request of interconnection or wholesale services;
- Provide rates and terms for interconnection that are reasonable and nondiscriminatory
III. Network Security and Congestion Management Policies
For the Safety and privacy of our access customers and with respect for all customers, Wabash Mutual Telephone;
- Utilizes standard industry practices for safeguarding children, intellectual property rights and our customer’s privacy and security;
- Follows standard best efforts for Internet delivery with respect to allocation of capacity without differentiation among applications, providers, or sources;
- Complies with applicable laws and regulations, including the Children’s Online Privacy Protection Act, with requires the consent of parent or guardian for the collection of personally identifiable information of children under 13;
- Uses generally accepted technical measures to provide acceptable service liverls to all customers, such as application-neutral bandwidth allocation, as well as measures to address services attacks, illegal content and other harmful activities to protect network integrity and reliability; and
- Reserves the right to prioritize traffic based on real time and non-real time applications during heavy congestion periods based on generally accepted technical measures.
IV. Commercial Pricing
Please check our website for pricing information: www.wabash.com
Contact Information: If you have any questions about the Wabash Mutual Telephone Network Management Polices, you can contact us by call our business office at 419-942-1111 or writing us at 6670 Wabash Road, Celina, OH 45822. You can also contact us by email at: email@example.com
FOR COMPLETE COMPANY POLICIES AND CUSTOMER TERMS, GO TO www.bright.net
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