WESTPHALIA TELEPHONE COMPANY AND WESTPHALIA BROADBAND INC
TERMS & CONDITIONS OF SERVICE
Westphalia Telephone Company and Westphalia Broadband, Inc. Terms and Conditions of Service (“Terms”) govern the use of Internet services (“Service”) provided to WBI/WTC customers (“Customer”). These Terms are in addition to any restrictions contained in the Acceptable Use Policy (“AUP”), which can be found at: www.4wbi.net
The Customer is responsible for complying with the Terms. Customer’s failure to comply with the Terms will result in the suspension or termination of Customer’s account. If the Customer does not agree to comply with these Terms, Customer must immediately stop all use of the Service and notify WBI/WTC to close Customer’s account(s).
1. GENERAL. WBI/WTC, with the assistance of certain vendors (“Vendors”) provides Service to the Customer subject to the Terms. Every time the Customer uses the Service, Customer agrees to abide by all of the Terms. If WBI/WTC changes the Terms in a way that Customer does not accept, Customer may terminate the Service as provided in Section 7 below. Customer agrees that by using the Service, Customer represents that Customer is at least eighteen (18) years of age and that Customer is legally able to enter into a contract to use the Service.
2. CHANGES IN TERMS. WBI/WTC may change the Terms on not less than ten (10) days’ notice by any one of the following means: electronic mail, posting on the WBI/WTC website, or by U.S. mail. Customer can send questions regarding these Terms to, and report violations of it at operations@4wbi.net . To report illegal content on the Internet go to www.ftc.gov. Customer’s use of the Service after the effective date of any change(s) in the Terms shall constitute Customer’s acceptance of and agreement to such change(s).
3. BILLING AND CHARGES.
RELATED CHARGES. Customer is responsible for any local or long-distance charges accrued in connecting to the Service. Customer is also responsible for providing all equipment, including computer hardware and software, used in connecting to the Service.
BILLING DISPUTES. Unless Customer notifies WBI/WTC of any error in WBI/WTC billing within thirty (30) days after it first appears on Customer’s account statement, the statement will be deemed accepted by Customer for all purposes, including resolution of inquiries made by Customer’s credit card issuer. The Customer releases WBI/WTC from all liabilities and claims resulting from any billing error that is not reported to WBI/WTC within thirty (30) days after the date of the statement on which it appears.
PAYMENT. Checks for payment should be made payable to Westphalia Broadband Inc. or Westphalia Telephone Co. Checks, money orders and credit cards are acceptable forms of payment. Credit card payments may be made over the phone by calling (855) 878-0210.
Payments can be mailed or dropped off at our office: P.O. Box 368, 109 E. Main St, Westphalia, MI – 48894
If for any reason WBI/WTC does not receive timely payment from Customer (or from credit card issuer Customer designates if Customer elects to have WBI/WTC charge Customer’s credit card), Customer agrees to pay upon demand all amounts due to WBI/WTC. Customer’s agreement with credit card issuer, and not these Terms, govern Customer’s rights and liabilities as a cardholder.
Customer is responsible for all activities and charges associated with Customer’s account. If any unauthorized charges are made on or through Customer’s account, Customer is responsible for such charges until WBI/WTC is notified of a breach of security by calling
(855) 878-0210.
LATE PAYMENT; NON-PAYMENT. If WBI/WTC does not receive the full amount Customer owes for the Service and related fees by the due date of an invoice, WBI/WTC shall have the right to terminate Customer’s Service. If Customer’s Service is terminated because of a failure to pay any past due amounts or any other breach of WBI/WTC Terms or AUP and Customer would like to reactive the Service, Customer agrees to pay a reactivation fee of Thirty-Four and 00/100 Dollars ($34.00).
4. CONTENT. Content means the information, software, graphics, photographs, video, speech, sounds, music and other material and services
communicated by WBI/WTC through its Service.
NO REPRESENTATIONS. WBI/WTC makes no representations as to, and Customer must bear the risk of relying on, the accuracy, completeness or usefulness of any Content. As a matter of policy, WBI/WTC does not screen or filter any Content. However, WBI/WTC and its Vendors reserve the right (but not the responsibility) to remove Content that WBI/WTC and its Vendors deem harmful or offensive. Accordingly, Customer acknowledges that neither WBI/WTC nor any of its Vendors shall have any
liability for any action or inaction by WBI/WTC or any of its Vendors with respect to Content.
PROPRIETARY RIGHTS; INTELLECTUAL PROPERTY. Customer agrees to abide by all copyrights, trademarks and other intellectual property and proprietary rights associated with any and all Content.
PARENTAL GUIDANCE. Customer acknowledges that the Content may include material inappropriate for minors, and Customer further acknowledges that WBI/WTC recommends Customer supervises minors use of the Service directly and/or consider using commercially available tools that restricts access to certain Internet areas and other features of the Service that may be inappropriate for minors, at Customer’s sole cost and risk. WBI/WTC makes no warranties with respect to such tools.
PROHIBITED USES AND ACTIVITIES. WBI/WTC reserves the right to terminate Customer’s Service immediately without notice if, in WBI/WTC’s sole discretion, the Services provided by WBI/WTC are being resold by Customer. WBI/WTC also reserves the right to terminate Customer’s Service immediately without notice if, in WBI/WTC’s sole discretion, Customer’s access to the Service is used in such manner that restricts or inhibits any other person from using the Service, in particular, Customer agrees not to use or to allow others to use the Service, directly or indirectly, to:
(a) Post transmit, or promote any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, hateful, or racially, ethnically, or otherwise objectionable or offensive Content;
(b) Harass, threaten, embarrass, or cause distress, unwanted attention or discomfort to any other person;
(c) Disrupt the normal flow of dialogue in a chat room or on a message board or otherwise act in a manner that negatively affects any other person;
(d) Impersonate any person or entity, or communication under a false name or a name Customer is not entitled or authorized to use;
(e) Post or transmit chain letters or pyramid schemes;
(f) Post or transmit any unsolicited advertising, promotional materials or other forms of solicitation to other persons, except in those areas that are expressly designated for such a purpose, or collect the screen name of any other WBI/WTC subscriber without permission;
(g) Post or transmit any communication or solicitation designed or intended to obtain password, account
or private financial information from any other person;
(h) Violate any operating rule, policy or guideline of any other service provider;
(i) Violate any applicable local, state, national, international or foreign law, including but not limited to any rule or regulations having the force of law;
(j) Customer acknowledges that Content is provided by persons and entities not under control of WBI/WTC and that such other service providers have their own Terms and Conditions regarding the use of the service(s). Customer further acknowledges that violation of any of those Terms and Conditions may result in the termination of Customer’s Service. Customer’s use of WBI/WTC’s Service and the Internet is solely at Customer’s own risk.
5. LIMITATION OF LIABILITY. WBI/WTC exercises no control whatsoever over the Content of the information accessed through WBI/WTC’s Services. WBI/WTC’s Services are provided on an “as-is, as available” basis, without warranty of any kind, expressed or implied, including but not limited to the warranties of performance, merchantability and fitness for a particular purpose. WBI/WTC and/or contributors shall have no liability whatsoever to Customer for any claim(s) relating in any way to (a) Customer’s inability or failure to perform research or related work or to work properly or completely, or (b) any lost profits or consequential, exemplary, incidental, indirect or special damages relating in whole or in part to Customer’s rights hereunder or use of, or inability to use, WBI/WTC’s Services. WBI/WTC will not be responsible for any damage suffered by Customer, including, but not limited to, loss of data resulting from delays, non-deliveries, mis-deliveries or service interruptions caused by its own
negligence or Customer’s errors or omissions. Use of any information obtained via WBI/WTC’s Service is at Customer’s sole risk. WBI/WTC specifically disclaims any responsibility for the accuracy or quality of information obtained through WBI/WTC’s Services.
Under no circumstances and under no legal theory, tort, contract or otherwise, shall WBI/WTC or its Vendors be liable to Customer or any other party for any indirect, special, incidental or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, or for any damages, even if WBI/WTC shall have been informed of the possibility of such damages. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Furthermore, some states do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to the Customer.
6. INDEMNIFICATION. Customer agrees that upon request by WBI/WTC Customer will defend, indemnify and hold harmless WBI/WTC, its officers, directors, agents, employees and Vendors, from all claims, liabilities and expenses, including attorney fees that arise from Customer’s breach of these Terms. WBI/WTC reserves the right, at its own expense, to assume the exclusive defense and control of any matter which is otherwise subject to indemnification for such matter.
7. TERM AND TERMINATION. These Terms are effective on the date the Customer begins to use the WBI/WTC service. WBI/WTC, at its sole discretion, may terminate this Agreement immediately or suspend Customer’s access to the Service upon any breach of these Terms by Customer.
After thirty (30) days of nonpayment, WBI/WTC will close Customer’s account. If Customer’s account is closed by WBI/WTC for non-payment, Customer will need to bring their account current before WBI/WTC, at its sole discretion, will consider allowing Customer to re-subscribe for Service. If Customer is approved to re-subscribe to the WBI/WTC Service, Customer will be subject to a re-activation fee and the Customer will be subject to the Terms in effect at that time. Licenses granted hereunder will terminate automatically if Customer fails to comply with the Terms.
REFUNDS. Upon termination of Service, WBI/WTC will refund any unused portion of basic rates paid in advance. For Customer’s who prepaid for their Service six (6) or twelve (12) months in advance, WBI/WTC will refund an amount equal to the number of unused months times the basic monthly rate that would have applied if the Customer had not paid in advance. Referral and other credits applied to an account are non-refundable.
ALLOWABLE USE. WBI/WTC’s Services may only be used for lawful purposes. Transmission of any material in violation of any federal or state statute or regulation is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret. Customer agrees to indemnify and hold harmless WBI/WTC from any claims resulting from Customer’s use of WBI/WTC’s Services in violation of this section.
Commercial advertising is an accepted and welcome use of the Internet. However, there are appropriate and inappropriate places for Internet advertising. Unsolicited commercial advertisements are not allowed in e-mail, and will result in account suspension or cancellation and fines as stated in Additional Charges.
Commercial advertisements are unwelcome in most Usenet discussion groups, other on-line forums and on most e-mail mailing lists. Inappropriate posting may result in account suspension or cancellation.
See the newsgroup or mailing list’s charter for whether advertising is allowed or not. “Spamming,” or sending a message to many different off-topic newsgroups, is particularly unethical and will be treated accordingly. Sending a message, especially an advertisement, to more than six recipients is considered spamming unless the individuals have specifically requested to be added to a mailing list on that topic. E-mail is a person-to-person medium, not a broadcast medium.
Customer agrees to abide by WBI/WTC’s policies concerning use of WBI/WTC’s Services. Unsolicited advertisements via e-mail, or via discussion groups whose charter does not explicitly allow advertisements, is specifically not an allowable use. WBI/WTC reserves the right to suspend access to Service for Customer account(s) upon an indication of disallowed use or credit problems, including delinquent payments, returned or NSF checks or rejection of credit card charges.
9. ACCESS. Dial-up accounts may not be used for automated, unsupervised use of the Internet or simultaneous connections by multiple people. Accounts may not be kept connected with a keep-alive of any sort, such as setting an e-mail program to check mail periodically unattended. WBI/WTC may disconnect dial-up connections after extended periods of inactivity or unauthorized use.
10. RESPONSIBILITY FOR ACCOUNT USE. Customer is responsible for all use of Customer’s account(s) and confidentiality of password(s). WBI/WTC will suspend or change access upon notification that a Customer password has been stolen, lost or otherwise compromised. WBI/WTC is not responsible for Customer’s personal files residing on any WBI/WTC owned and controlled computers or servers.
Customer shall be responsible for independent backup of Customer data stored online. Customer is responsible for all access to and use of WBI/WTC’s Services by Customer or by means of Customer equipment, whether or not Customer has knowledge of or authorizes such access or use. If the subscriber is less than eighteen (18) years of age, these Terms must be agreed to by a parent or legal guardian, who is responsible for all charges related to the use of subscriber’s account(s).
11. UNAUTHORIZED USE OF ACCOUNT. WBI/WTC will take the appropriate steps, with the assistance of Customer, if needed, to eliminate any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include “social engineering” (tricking other people into releasing their passwords), password cracking, security hole scanning, denial-of-service attacks (ping-flooding, sending packets with an illegal packet size, UDP flooding, half-open TCP connection
flooding, etc.) and the like. Harassment or abusive use of e-mail and other Internet services is a rare but serious misuse of Internet resources. WBI/WTC will handle incidents of harassment on a case-by-case basis, consulting with all parties involved. Any unauthorized use of accounts or computers by a WBI/WTC customer, whether or not the attacked account or computer belongs to WBI/WTC, will result
in action against the attacker. Possible actions include warnings, account suspension or cancellation, and legal action, according to the seriousness of the attack.
12. LIMITATIONS ON RESOURCE USE. WBI/WTC reserves the right to impose limits on the total amount of disk space and other resources available for Customer’s use on WBI/WTC e-mail system. Dial-up account users are subject to a limit of 10MB of disk space for all their disk use, including incoming mail files and personal web pages. WBI/WTC reserves the right to remove files that exceed this limit.
13. E-MAIL PRIVACY. Electronic mail passes through multiple mail servers on the Internet as it passes from source to destination. One can never be guaranteed privacy from every possible mail server; therefore, someone seeking total privacy should use some encryption scheme to render their message unreadable by eavesdroppers. With regards to WBI/WTC’s mail servers, WBI/WTC places a high value on privacy and will only examine user’s mail when absolutely required, for example when troubleshooting e- mail delivery problems or being presented with a search warrant for the information.
14. ILLEGAL MATERIAL. WBI/WTC bears certain legal liabilities for use of its computer network and equipment. As such, WBI/WTC must require that its Customers do not use WBI/WTC’s network for illegal purposes. When presented with a search warrant, WBI/WTC is obligated to release any information named therein, and will cooperate with the authorities in any criminal investigation of inappropriate Internet use.
However, WBI/WTC recognizes that the legal status of the Internet has not yet been resolved satisfactorily, either through legislation or court precedent. Therefore, WBI/WTC must make certain decisions regarding the illegality of various specific actions. Among the actions WBI/WTC considers illegal and therefore does not allow on its network are: unauthorized distribution of copyrighted material; exploitation of minors; and unauthorized use of computer resources. WBI/WTC believes the First Amendment rights of free speech, freedom of the press and freedom of association apply to the Internet to the same degree as they do to print media and that any attempt to infringe upon those rights is void of legitimacy.
15. EXPORT CONTROLS. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Yugoslavia, Iran, Syria or any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specifically Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using software, Customer agrees to the foregoing and represents and warrants that Customer is not located, under the control of, or a national or resident of any such country or on any such list.
In addition, if the licensed Software is identified as a not-for-export product (for example, on the box,
media or on the installation process), then the following applies: except for export to Canada for use in Canada by Canadian citizens, the software and any underlying technology may not be exported outside the United States or to any foreign entity or “foreign person” as defined by U.S. Government regulations, including without limitation, anyone who is not a citizen, national or lawful permanent resident of the United States. By downloading or using the software, Customer agrees to the foregoing and warrants that Customer is not a “foreign person” or under the control of a foreign person.
16. EFFECT OF THE TERMS AND CONDITIONS. These Terms and Conditions (which includes the current and any future Schedules hereto) represent the complete agreement concerning the Services provided by WBI/WTC to the Customer and supersede all prior Terms and Conditions between them. The use of WBI/WTC’s Service by Customer is expressly made conditional on Customer’s assent to the Terms set forth herein.
17. FORCE MAJEURE. WBI/WTC’s performance hereunder is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor disputes, inability to obtain necessary supplies and the like.
18. SEVERABILITY. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and all other provisions are unaffected.
19. GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Michigan except as governed by Federal law. The parties expressly consent to the venue and jurisdiction of the courts located in Ingham County, Michigan. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly included. WAIVER. Failure of any party to enforce any provision of the Terms shall not constitute or be construed as a waiver of the right to enforce such provision.
20. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure of software and documentation by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-
7013, or at 252.211-7015, and in similar clauses in the NASA FAR Supplement.
21. NOTICES. Except as otherwise provided herein, all notices hereunder shall be given in writing to:
Westphalia Telephone Co.
P.O. Box 368
109 E. Main St.
Attn: Legal Department
Westphalia, MI 48894