Internet Service Agreement (“agreement”) Terms and Conditions

PLACEMENT OF YOUR ORDER FOR SERVICES FROM NCI DATACOM, INC., YOUR ACCEPTANCE OF THIS ORDER AND USE OF INTERNET SERVICES FROM NCI DATACOM, INC. CONSTITUTE ACCEPTANCE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT SET FORTH BELOW.

1. Services - Customer agrees to purchase network access services (“Services”) from NCI Data.com, Inc. (“NCI”). Services provided by NCI are for the sole use of the customer and not for resale of any kind without the prior written consent of NCI. NCI may, at its sole discretion, increase fees associated with the Services or terminate the Services as allowed under this Agreement and further set forth below. Once installed, all hardware and/or software is Customer’s responsibility, in that NCI has no control who uses or may change settings in the Customer’s equipment.
2. Billing - Customer agrees to pay all charges billed to Customer’s account, including applicable taxes in accordance with billing terms in effect at the time the fee or charge becomes payable. Recurring monthly fees are due and payable in advance of the first day of each monthly billing period for which the Customer has purchased Services. Customer agrees to pay a fee for processing unpaid checks or rejected credit cards. The initial payment may include non-recurring installation charges, including but not limited to, equipment, inside wiring and installation fees. Delinquent accounts are subject to immediate termination or suspension of Services. A Customer’s account is considered delinquent and customer will be subject to a late payment fee of 1.5% of the outstanding balance per month past due, if payment is not received by NCI within 5 days of date payment is due.
3. Term and Termination.
   1. This Agreement shall be effective immediately upon customer signing a service agreement. The Term shall commence on the date upon which the Service is made available for use by Customer.
   2. NCI may terminate the Agreement and/or cease or suspend the provision of the Service upon default of Customer.
      Default includes:
      1. the failure to pay any amount when due hereunder (after ten (10) days prior notice of such failure to pay);
      2. the filing of a petition in bankruptcy by or against Customer;
      3. and any material breach of this Agreement including but not limited to violation of NCI’s Acceptable Use Policy “AUP”, a copy of which is available at AUP, or conduct that NCI, in its sole discretion, believes may subject NCI to civil or criminal litigation, charges and/or damages. If NCI has suspended the Service for any reason above, NCI shall require a reconnection fee in order to resume Service and Customer agrees to pay such fee. Termination shall not relieve Customer's obligation to pay all fees for Service accrued and owing up to and including the date of termination, nor shall it preclude NCI from pursuing any other remedies available to it, at law or in equity.
   3. In the event a law or regulatory action prohibits, substantially impairs, or makes impracticable the provision of Service under this Agreement, as determined by NCI, NCI may, at is option and without liability, terminate this Agreement or modify the Service or the terms and conditions of this Agreement in order to conform to such action (“Regulatory Modification”); provided, however, that NCI shall provide sixty (60) days written notice prior to Customer of any such Regulatory Modification, unless NCI determines, in its good faith business judgment, that it is necessary to reduce the foregoing notice period. Use by Customer of the Service after implementation of a Regulatory Modification shall constitute acceptance by Customer of such changes.
4. Rights and Obligations of Customer. - Customer represents and warrants that (a) it has full right and authority to enter into this Agreement; (b) it will not use the Service in any manner which is in violation of any law or governmental regulation, or NCI’s AUP as amended from time to time by NCI, and which is incorporated by reference herein; (c) the “Customer Data” (as hereinafter defined) will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right; (d) the Customer Data will not include indecent or obscene material or constitute a defamation or libel of any third party and will not result in obligation to make payment of any third party and will not result in the obligation to make payment of any third party licensing fees; and (e) it will comply with all relevant export and encryption laws and regulations of the United States. For purposes of this Section 4, “Customer Data” shall mean the text, data, images, sounds, photographs, illustrations, graphics, programs, code and other materials transmitted through the Service hereunder.
5. Fiber Optic Service - Installation of fiber optic ("fiber") service may require the installation of a leased fiber/ethernet switch at the customer's location. The customer agrees to assume all responsibility for properly maintaining this switch in good working order. Customer further agrees to return this switch in good working order (as determined by NCI) upon termination of their service agreement. If the switch is not returned or NCI determines it is not in good working order, NCI may charge Customer for replacement.
   Upon expiration of Customer's initial service agreement period, the service agreement will automatically renew for a 12-month period at currently applicable rates. This automatic renewal will continue annually on the anniversary date of the initial service agreement. Customer may cancel by providing a written notice within 30, but not less than 15 days prior to the renewal date.
6. Disclaimer of Liability. - THE SERVICES OF NCI ARE PROVIDED “AS IS.” NCI MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. IN NO EVENT SHALL NCI, ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OF ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) WHETHER OR NOT NCI HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. NCI’S LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT EQUAL TO THE AVERAGE MONTHLY RECURRING CHARGE FOR THE SERVICE PAID TO BY CUSTOMER PURSUANT TO THIS AGREEMENT. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
   Customer acknowledges that NCI exercises no control over the quality, validity, nature, content or reliability of the information passing through the network. No oral or written information or advice given by NCI, its dealers, agents or employees shall create a warranty. Use of any information obtained from or through the Services provided by NCI will be at Customers own risk. Customer acknowledges that NCI is not liable for any errors or interruption in the Services, whether within our outside of control of NCI. Under no circumstances shall the customer hold NCI responsible for any form of damages or losses including direct, indirect, consequential or incidental damages of losses suffered from, but not limited to errors, delays, loss of information of interruptions in Services caused by the customer, NCI, or third party’s negligence, fault, misconduct of failure to perform. Customer understands that telecommunication and/or network access Services may be temporarily unavailable for scheduled or unscheduled maintenance and for reasons within or outside of the direct control of NCI.
7. Indemnification. - Customer agrees to defend, indemnify and hold NCI and its affiliate harmless from any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or arising from: (a) any breach of this Agreement by Customer; (b) the use of the Service or the Internet or the placement or transmission of any information, software or other materials on the Internet by Customer, including but not limited to any Customer data; (c) acts or omissions of Customer, Customer’s agents or contractors in connection with, among other things, the installation, maintenance, presence, use or removal of equipment or software not provided by NCI connected or to be connected to the Service; and (d) claims for infringement of any third party proprietary right, including copyright, patent, trade secret, and trademark rights, arising from the use of any services, equipment and software not provided by NCI.
8. Injunctive Relief Available. - In the event of a breach or threatened breach of any provision of this Agreement by Customer, Customer agrees that damages to be suffered by NCI will not be fully compensable in money damages alone, and accordingly, NCI shall, in addition to other available legal or equitable remedies, be entitled to an injunction against such breach or threatened breach.
9. Miscellaneous.
   1. This Agreement shall be governed by the laws of the State of Washington with venue in Okanogan County, Washington. Any cause of action Customer may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. In any proceeding to enforce the terms of this Agreement, the party prevailing shall be entitled to recover all of its expenses, including, without limitation, reasonable attorney’s fees.
   2. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed as nearly as possible to reflect the original intent of the parties and the remainder of the provisions shall remain in full force and effect.
   3. NCI’s failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any of its rights hereunder.
   4. The terms and conditions of its Agreement shall prevail notwithstanding any different or additional terms and conditions of any purchase order or other form for purchase or payment submitted by Customer to NCI.
   5. Sections 3, 4, 6, 7, 8 and 9 shall expressly survive termination of this Agreement.
   6. NCI is acting as an independent contractor and shall have exclusive control of the manner and means of performing its obligations.
   7. NCI will not be responsible for performance of its obligations hereunder where delayed or hindered by, war, riots, embargos, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its control.
   8. This Agreement, including the AUP (as such AUP may be amended from time to time), and the Service Order, constitutes the entire agreement between Customer and with respect to the Service.
10. These Terms and Conditions contain the entire agreement and understanding concerning the Services and supersede all prior negotiations, discussions and proposed agreements, whether electronic, written or oral. The Terms and Conditions may be modified at any time by NCI and the latest version of the Terms and Conditions may be found here.