INVENTIVE WIRELESS OF NEBRASKA LLC,
D/B/A VISTABEAM INTERNET
TERMS OF SERVICE CONTRACT
PLEASE READ THIS SERVICE CONTRACT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS SERVICE CONTRACT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO SUBSCRIBERS IN THE EVENT OF A DISPUTE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES.
This Terms of Service Contract (“Service Contract”) is by and between Inventive Wireless of Nebraska, LLC D/B/A Vistabeam Internet (hereinafter referred to as “Vistabeam,” we,” “our,” and “us”), 1225 Sage St., Gering NE 69341 and the residential or commercial subscriber (the person whose name appears on the account) (“Subscriber,” “you,” or “your”) for Vistabeam’s Internet Access Service (“IAS”), and traditional wireline, data, or voice over IP (“VoIP”) services (collectively, “Services”). Commercial Subscribers include commercial, non-commercial, governmental, educational or institutional entities, or other non-residential entities.
WHEREAS, Subscriber desires to pay Vistabeam for our Services on the terms and conditions contained in this Service Contract, with sufficient and adequate consideration from both parties, it is mutually agreed as follows:
Vistabeam regularly updates and amends this Service Contract, and the Service Agreements. Vistabeam will communicate any such updates or amendments to Subscriber in accordance with Section 18(h) herein. Subscriber may obtain, at no charge, a copy of the current Service Contract or any documents incorporated by reference herein by visiting Vistabeam’s website or by contacting Vistabeam.
1. GENERAL OVERVIEW. The individual whose signature appears on this Service Contract represents and warrants that he/she is the Subscriber, that he/she is of legal age to form a binding contract with Vistabeam in his/her state of residence and meet all of the foregoing eligibility requirements, or if Subscriber is a business entity, the individual signing this Service Contract represents and warrants he/she has legal authority to accept and execute this binding Service Contract on behalf of the Subscriber. Your use of the Services indicates that you have read, understood, and agree to follow and be bound by the terms and conditions of this Service Contract. If you do not meet all of these requirements, you must not apply for the Services.
2. MAINTENANCE PACKAGE. Subscriber understands, acknowledges and agrees that our Maintenance Package is automatically added to the Internet Access Service and that he/she may opt-out of the Maintenance Package any time by calling our office at 308-635-9434 or sending an email to firstname.lastname@example.org with an opt-out request.
3. TERM. The initial term of any residential IAS plan is month-to-month (“Initial Term”). The initial term of any commercial IAS plan is two years. The term for any other service contracted at the same time as IAS, such as VoIP, Commercial WiFi, or Video shall also be month-to-month for residential and two years for commercial. The effective date of the Initial Term is the date installation is completed (“Installation Date”).
4. SECURITY DEPOSIT, INSTALLATION FEES, AND PAYMENTS.
a. All invoices are due and payable in full upon receipt. Failure to fulfill any payment obligations in a timely manner as provided herein will be considered to be a violation of this Service Contract. In the event Subscriber's account becomes past due, Subscriber agrees to pay all costs reasonably incurred by Vistabeam, its agents, representatives, and Affiliates in collecting monies due on Subscriber's account. “Affiliate” means an entity that controls, is controlled by or is under common control with Vistabeam.
b. Subscriber authorizes Vistabeam to seek and acquire credit and related Subscriber information from reporting agencies furnishing such information for the purpose of ascertaining Subscriber’s credit and payment history. Vistabeam will use the information acquired about Subscriber’s credit history from others and to utilize such information in its decision regarding its provision of the Service to Subscriber. Subscriber understands, acknowledges and agrees that if in the sole discretion of Vistabeam, Subscriber's credit and/or financial information prove unsatisfactory at any time while Vistabeam is providing service to the Subscriber, the Services may be terminated.
c. Security Deposit. Vistabeam reserves the right to require a security deposit (“Security Deposit”) prior to the installation of Services and/or terminate this Service Contract if no Security Deposit is received by Vistabeam in a timely manner.
d. Installation Fees. Vistabeam will charge a fee to install the Services for both residential and commercial Subscribers. Subscriber understands, acknowledges and agrees that the Installation Fee will vary based on the location of the Subscriber, and complexity of the work necessary to connect the Subscriber to Vistabeam’s Services. The amount of the Installation Fee will be set forth in Customer Quote.
e. Initial Payment. At the time of installation of Vistabeam’s IAS, Subscriber is required to pay the “Installation Fee,” the “First Month Payment,” and any Additional Service Fees, as set forth in Customer Quote. The First Month Payment is the “Monthly Service Fee” set forth in Customer Quote, for a full month of IAS regardless of where the “Installation Date” falls in the calendar month. Together, the Installation Fee, First Month Payment, and any Additional Service Fees constitute the “Initial Payment.” Subscriber agrees that the Initial Payment is to be paid in consideration of Vistabeam’s making the IAS available on the terms and conditions set forth in this Service Contract, that VISTABEAM has earned the Initial Payment in full and that the Initial Payment is refundable only if the IAS is not working within seven (7) days of the Installation Date.
f. Monthly Fees. After the Initial Payment, Subscriber agrees to pay the applicable “Monthly Service Fee,” and any other recurring monthly fee(s) (collectively the “Monthly Fees”) on or before the first day of Subscriber’s “Monthly Billing Cycle.” Subscriber’s Monthly Billing Cycle begins on the Installation Date. Subscriber understands, acknowledges and agrees that the Monthly Service Fee is subject to change from time to time subject to advance notice by Vistabeam.
g. Subscriber bears the sole responsibility to timely pay Monthly Fees when due. Invoices will be sent via email to the Subscriber’s email address. Subscriber may also choose to receive the monthly invoice via postal mail for a $2.00 U.S. monthly fee (“Paper Invoice Fee”). It is Subscriber’s sole responsibility to have a valid email address on file with Vistabeam at all times. On-line billing is available if set up in advance by Subscriber and Vistabeam. Subscribers may pay invoices with cash, check, credit card or debit card (American Express, Master Card, Discover or Visa), or ACH (Automated Clearing House; direct withdrawal from checking or savings account) only. If Subscriber owes money on any account, Vistabeam may deduct the amounts owed from any existing credit Subscriber has or any security deposit provided or, if applicable, charge them to the bank or payment card account Subscriber has authorized Vistabeam to use.
h. Additionally, Subscriber will automatically be charged a twenty five-dollars ($25.00 U.S.) fee for any check or ACH payment returned for non-payment or insufficient funds, “ACH Non-Payment Fee.”
i. Vistabeam shall not be obligated to provide the Service during Monthly Billing Cycles for which Subscriber has not paid the applicable Monthly Fees in advance. If at any time Subscriber’s account has past due amounts or upon Subscriber’s violation of this Service Contract (including any documents incorporated by reference herein), Vistabeam may, in Vistabeam’s sole and absolute discretion, suspend provision of the Service to Subscriber and/or terminate this Service Contract. Amounts are past due if not paid before the first calendar day of Subscriber’s Monthly Billing Cycle. Subscriber understands, acknowledges and agrees that Vistabeam is not required to provide notice before suspending or disabling the Services and/or terminating the Subscriber’s account or this Agreement, and Vistabeam will not be liable to Subscriber or any authorized user for any such suspension, disabling or termination or any damages that may result therefrom. In order to restore service after a disconnection when equipment is still present at the service location, Subscriber agrees to pay the applicable “In Office Reactivation Fee” of $25.00 U.S. In order to restore service after a disconnection, Subscriber agrees to pay the applicable “Installation Fee” at Vistabeam’s discretion.
j. For all Vistabeam Services generally, Subscriber also agrees to pay all applicable federal, state, and local taxes and fees, including without limitation those imposed after the effective date of this Service Contract.
5. EQUIPMENT AND REQUIREMENTS FOR SERVICE
a. Subscriber Equipment. To use the Service, Subscriber must have a personal computer(s) or other device(s) and other equipment necessary to connect to the Service. Although Vistabeam is under no obligation to do so, Vistabeam may, and Subscriber authorizes Vistabeam to, perform any updates and/or changes to Subscriber’s equipment, on-site or remotely, from time to time as Vistabeam deems necessary, in Vistabeam’s sole discretion. Subscriber will direct any questions concerning third-party hardware or software to the manufacturer. Vistabeam has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that Subscriber elect to use in connection with the Services.
i. As set forth below and in the Open Internet Policy, Subscriber is not permitted to connect any harmful equipment to the Vistabeam Equipment (as defined below). Subscriber understands that failure to comply with this restriction may cause damage to the Vistabeam Networks and subject Subscriber to liability for damages and/or other liability.
ii. Subscriber agrees to not alter, modify or tamper with the Vistabeam Equipment or the Service, or to permit, encourage or solicit any other person to do the same, unless such person has been authorized to do so by Vistabeam.
iii. Subscriber understands, acknowledges and agrees that Vistabeam shall not be liable to Subscriber or any authorized user if changes in Vistabeam's facilities, operations, or Services rendered obsolete any equipment provided by the Subscriber or Authorized User (as defined below in Section 12), require modification or alteration of such equipment, or otherwise affected the performance of such equipment.
b. Vistabeam Equipment. Subscriber understands, acknowledges and agrees that the equipment listed on Appendix B is equipment owned by Vistabeam (“Vistabeam Equipment”) and agrees that the Vistabeam Equipment may, at Vistabeam’s sole discretion, be refurbished or otherwise used equipment. Subscriber certifies that the Vistabeam Equipment was installed at a location and in a manner authorized by Subscriber. The Vistabeam Equipment is and shall remain the property of Vistabeam, and Subscriber shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the Vistabeam Equipment to the Subscriber’s premises or otherwise. Subscriber and Vistabeam expressly understand, acknowledge and agree that the Vistabeam Equipment is not and shall not be considered a fixture to Subscriber’s premises.
At such time as Subscriber or Vistabeam terminate the Service, Subscriber will return the Vistabeam Equipment to Vistabeam within fifteen (15) calendar days in the same condition it was received (ordinary wear and tear excepted), and in accordance with Vistabeam’s then-current return procedures.
i. Equipment Replacement Fee. In the event that Subscriber has not returned the Vistabeam Equipment within fifteen (15) calendar days as set forth in the previous sentence, or in the event that the Vistabeam Equipment is damaged, destroyed, lost or stolen in Subscriber’s possession or otherwise inoperable, Subscriber will pay each applicable “Equipment Replacement Fee” listed in Appendix B, herein without any deduction or depreciation, wear and tear or physical condition of such Vistabeam Equipment. Vistabeam Equipment for Internet Access Service includes without limitation wireless router(s); modem(s), wired Ethernet hardware, point-to-point links and/or Software, as defined in Appendix A herein.
c. Access to Subscriber’s Premises. Subscriber hereby grants Vistabeam and its Affiliates, and their respective employees, contractors and agents the right to enter Subscriber’s property and premises at any time for the purpose of operating or maintaining the Vistabeam Equipment or Vistabeam’s network of various computers, servers, transmission equipment and other infrastructure in various states (collectively, the “Vistabeam Networks”), retrieving Vistabeam Equipment or fulfilling its obligations or exercising its rights under this Service Contract. Vistabeam shall provide Subscriber with reasonable advance notice of any such planned access, except when, in the reasonable opinion of Vistabeam, an emergency or other exigent circumstance exists that would require Vistabeam to immediately enter Subscriber’s property and premises.
6. VISTABEAM’S OBLIGATIONS
a. Service Level Agreement. In the event Subscriber experiences a service outage for more than twenty four (24) consecutive hours and is unable to transmit and receive information through the Vistabeam Networks to other portions of the Internet and Subscriber notifies Vistabeam immediately of such event and Vistabeam determines that such inability was caused by Vistabeam’s failure to provide said services for reasons within Vistabeam’s reasonable control and not as a result of any actions or inactions of Subscribers or any third parties (including failure of third party equipment), and such inability is not a result of scheduled maintenance of Vistabeam’s equipment or services, Vistabeam will, upon Subscriber's request, credit Subscriber's account the connectivity charges for the length of the outage. Subscriber credit may not exceed the Monthly Service Fee in any single calendar month.
b. Vistabeam may use various tools and techniques in order to efficiently and reasonably manage the Vistabeam Networks and to ensure compliance with Vistabeam’s Open Internet Policy (such tools and techniques, “Network Management Tools”). These may include detecting malicious traffic patterns and preventing the distribution of viruses or other malicious code or managing network resources through techniques such as limiting the number of simultaneous peer-to-peer sessions that Subscriber may conduct, limiting the aggregate bandwidth available for certain usage protocols such as peer-to-peer and newsgroups, and such other Network Management Tools as Vistabeam may from time to time determine appropriate.
c. Despite Vistabeam’s efforts, it is possible that a price for the Services (or a component of the Services) offered on Vistabeam’s website, or the description of a Service may be inaccurate in some part. In the event Vistabeam determines that a Service contains an inaccurate price or description, Vistabeam reserves the right to take any action Vistabeam deems reasonable and necessary, in Vistabeam’s sole discretion, to rectify the error, including without limitation, canceling Subscriber’s order, unless prohibited by law. Vistabeam may make improvements or changes to any of Vistabeam’s information, or Services described on Vistabeam’s website at any time without notice. Subscriber agrees to notify Vistabeam immediately if Subscriber becomes aware of any pricing or descriptive errors or inconsistencies with any Services Subscriber order and to comply with any corrective action that Vistabeam may take.
7. SUBSCRIBER’S OBLIGATIONS
a. Subscriber agrees that the Service is personal to Subscriber and agrees not to assign, transfer, resell or sublicense Subscriber’s rights under this Service Contract unless specifically permitted by the terms of this Service Contract. For residential Subscribers, Subscriber agrees that the Services and the Vistabeam Equipment shall be used only by Subscriber and by members of Subscriber’s immediate household living with Subscriber at the same service address, and Subscriber will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured. For commercial Subscribers, Subscriber agrees that the Service and the Vistabeam Equipment shall be used only by Subscriber and by authorized members of Subscriber’s business located at the same address, and Subscriber will not redistribute or share the Service with any others or transmit the Service over a wireless or other network that is not secured. Subscriber acknowledges that Subscriber is executing this Service Agreement on behalf of all persons who use the Service by means of the Vistabeam Equipment. Subscriber agrees that Subscriber is solely responsible and liable for any and all breaches of the terms and conditions of this Service Contract and any other documents incorporated by reference in this Service Contract, whether such breach results from Subscriber’s use of the Service or by another using Subscriber’s equipment or the Vistabeam Equipment.
b. Maintain Power to Vistabeam Equipment. Subscriber understands, acknowledges and agrees that: (i) Subscriber must provide electrical power to Vistabeam Equipment at all times (including, without limitation, when Subscriber is not using the Service), and (ii) Subscriber’s failure to provide such power and continuous connection may result in damage to the Vistabeam Equipment or to Subscriber’s computer, equipment, property or premises, for which damage Subscriber will be solely responsible.
c. Use of Vistabeam Equipment. Subscriber agrees that Subscriber is responsible for anyone using the Vistabeam Equipment, Subscriber’s computer system, password, name or Subscriber name in connection with the Service (with or without Subscriber’s knowledge or consent) and for ensuring that anyone who uses the Service through the Vistabeam Equipment, Subscriber’s equipment or access to the Service, does so in accordance with the terms and conditions of this Service Agreement. Subscriber agrees to take all reasonable measures necessary to ensure that the Service is not used by another person without Subscriber’s consent. Subscriber understands, acknowledges and agrees that Subscriber is responsible for all use of the Service and Subscriber’s account whether Subscriber or someone else uses Subscriber’s account (with or without Subscriber’s permission).
d. Subscriber is responsible for procuring and installing patches, any and all anti-virus and firewall software/hardware and operating system patches, updates or supplements that may be necessary for (i) the protection and maximum functionality of Subscriber’s computer and related equipment and (ii) the protection of the Vistabeam Networks and other Subscribers. For purposes of clarification, Vistabeam and its Affiliates hereby disclaim any and all responsibility and liability for any damages that may arise from Subscriber’s failure to procure or install the aforementioned security or other software and/or hardware and Subscriber agree that Vistabeam and its Affiliates shall have no liability for Subscriber’s failure to do the same.
e. Subscriber may not resell the Service in whole or in part to any third party, unless the Subscriber has entered into a reseller agreement with Vistabeam. Subscribers further agree that they will not, directly or indirectly, use Vistabeam Services in whole or in part to provide any form of service generally associated with an Internet service provider, or otherwise be in competition with Vistabeam.
f. Subscriber is responsible for backing up the data on Subscriber’s computer(s) and network(s) and Vistabeam shall have no liability whatsoever for any loss of data.
g. Subscriber shall acquire no proprietary interest in the Internet Protocol (“IP”) address(es) or telephone number(s) assigned by Vistabeam for Subscriber's use.
h. Subscriber is responsible for providing homeowner's insurance and coverage for any loss arising out of the theft, lightning, flood or any damages to equipment in Subscriber's possession provided by Vistabeam.
8. SUBSCRIBER’S REPRESENTATIONS AND WARRANTIES
a. Subscriber represents and warrants that the Subscriber’s personally identifiable information provided and will provide to Vistabeam during the term of this Service Contract, including without limitation Subscriber’s legal name, email address for communications with Vistabeam (such email address, as the same may be modified from time to time by Subscriber upon notice to Vistabeam), service address, billing address, telephone number(s), and payment data (including without limitation information provided when authorizing Automated Clearing House payments or other recurring payments) and Non-Personal Information, such as but not limited to the number of computers on which the Service is being accessed (all such information, collectively, the “Subscriber Information”) for purpose of this Service Contract is accurate, complete and current. Subscriber agrees to promptly notify Vistabeam, in accordance with the terms of this Service Contract, upon the occurrence of any change in the status of Subscriber’s account (including, without limitation, the creation or removal of an Authorized User as defined below in Section 12) or if there is any change in the Subscriber Information. Subscriber understands, acknowledged and agrees that failure to provide and maintain accurate Subscriber Information with Vistabeam constitutes a breach of this Service Contract.
b. Subscriber further represents and warrants that Subscriber will not use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any local, state or federal statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Vistabeam or its Affiliates; (v) accesses, discloses, uses, or disposes of any “Personal Information” as defined by the Federal Trade Commission without proper authorization or impersonates any person or entity, including without limitation, any employee or representative of Vistabeam or its Affiliates; or (vi) transmits any virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program.
c. Subscriber further represents and warrants that there are no legal, contractual or similar restrictions on the installation of the Vistabeam Equipment in the location(s) and in the manner authorized by Subscriber. Subscriber is responsible for ensuring compliance with all regulations, applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions or other restrictions related to the installation of the Vistabeam Equipment and Service, for paying any fees or other charges and obtaining any permits or authorizations necessary for the installation of the Vistabeam Equipment and/or provision of the Service (collectively, “Legal Requirements”). Subscriber is solely responsible for any fines or similar charges for violation of any applicable Legal Requirements.
9. TERMS AND CONDITIONS FOR SUBSCRIBER MATERIAL. Vistabeam reserves the right to investigate suspected violations of this Service Contract and if/when Vistabeam becomes aware of possible violations, Vistabeam may initiate an investigation that may include gathering information from Subscriber(s) involved and the complaining party, if any, and examination of anything installed by Subscriber on Vistabeam’s servers not provided by Vistabeam (collectively, “Subscriber Material”). Subscriber Material includes without limitation any software, computer programs, applications, data, photographs, video and/or audio content, text, files, and other information, including emails, address book and web storage content.
a. During an investigation, Vistabeam may suspend the Subscriber account(s) involved. After the investigation, if Vistabeam believes a violation of this Service Contract has occurred, it may take responsive action at its sole discretion. Such action may include without limitation temporary or permanent removal of Subscriber Material from Vistabeam’s servers, warnings to Subscriber(s) responsible, and the suspension or termination of the account(s) responsible. Vistabeam, at its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Service Contract could also subject the Subscriber to criminal and/or civil liability.
b. Lawful content in the public domain (e.g., images, video, audio, text, data, and programs) may be downloaded or uploaded using the Service. Subscriber may re-distribute content in the public domain. Subscriber assumes all risks regarding the determination of whether content is in the public domain.
d. Subscriber understands, acknowledges and agrees that if Subscriber’s Service is terminated for any reason, Vistabeam has the right to immediately delete all Subscriber Material, stored in or for Subscriber’s account, including without limitation personal websites and email, without further notice to Subscriber.
10. ACCEPTABLE USE POLICY.
a. “Acceptable Use” of Vistabeam’s IAS is hereby defined as the normal activities associated with the use of the Internet, including without limitation to usage of the Vistabeam Networks and any other facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, Email, and other Internet features. Depending on the account type, this may include: File storage on Vistabeam’s servers for Subscriber’s own personal web page and file access area (FTP), etc.
b. Activities specifically prohibited by Vistabeam include without limitation the following:
i. Background and/or server-type applications – Including without limitation to IRC bots, HTTP servers, MUDs, and any other harmful process which were initiated by the Subscriber that continues execution on the system upon Subscriber logout. FCC authorized smart home systems and IoT devices are excluded from this prohibition.
ii. Long-term storage of data – Long-term storage of data is referred to as the storage of files which are not used regularly in an account for an extended period of time. This specifically includes, without limitation, programs such as shareware programs which the Subscriber may download to their account for purposes of transferring to their home/business computer(s)/device(s). Such programs should be removed at such time as they are successfully transferred to the Subscriber’s own system(s).
iii. Flooding or abuse of other users – Flooding is a fairly common occurrence on the Internet, and one which is dealt with strictly by Vistabeam. Flooding takes place in numerous ways, including, without limitation, ICMP flooding, mail bombing (sending large amounts of email repeatedly to a person for purposes of harassment), phishing, mass mailings to multiple addresses via bulk email not in compliance with the federal CAN-SPAM Act, MSG/CTCP flooding on IRC, as well as other, less common methods. “Bulk Email” is defined as the same or similar email messages sent to more than twenty-five (25) recipients.
iv. Attempts to compromise system and/or network security – Programs such as packet sniffers, password crack programs, and similar utilities found to be running from Subscriber’s account are prohibited. This also includes attempts to hack into non-Vistabeam systems.
v. Sharing of accounts – Sharing Subscriber’s IAS with another party for purposes of avoiding payment for a second Service is strictly prohibited. Subscriber may connect multiple computers/devices within a single location to Subscriber’s modem, router, and/or radio to access the Internet Service, but only through a single Vistabeam-issued IP Address.
vi. PPP/SLIP emulation software – Since PPP/SLIP is a product offered by Vistabeam, Subscribers desiring such access are required to sign up for that service rather than attempting to emulate it by software. Any such software will be removed from Subscriber’s account by Vistabeam immediately when found.
vii. Bulk broadcast data – This includes flood pinging, broadcast pinging, multicast, or IGMP use outside of the private network.
viii. Port scanning – Use of any application, software, or technique to scan any host’s ports.
ix. Conducting business through a residential account – The residential single-Subscriber Internet accounts provided by Vistabeam are designed for the home/casual Subscriber and may not provide the level of service, capacity or speed required for conducting business. Therefore, conducting business with a residential account is not advisable. Please contact a Vistabeam customer service representative to upgrade to a commercial account.
x. Excessive use of system resources – This includes without limitation the continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system. Subscriber may not resell or redistribute Service.
xi. Email abuse – Email abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals not in compliance with the CAN-SPAM Act, the sending of harassing and/or threatening messages to other users, and the forging of email addresses so as to make the email appear to be from another user.
xii. USENET news abuse – Similar to email abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted.
xiii. Pyramid/money-making schemes – Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited.
xiv. Pirated software – Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. This includes most commercial applications such as Adobe Photoshop, Microsoft Office, etc. Such activities are prohibited by Federal law and are thus not allowed in any form on Vistabeam. Such prohibition also includes the unauthorized copying of copyrighted material including, without limitation to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited.
xv. High-traffic websites – Residential Internet service is intended to provide access to individuals only. As most individuals primarily download content, rather than upload it, the performance for everybody on the systems is optimal. However, some individuals occasionally choose to host content on their account that could degrade performance for other users. Due to such circumstances, Vistabeam may have to implement certain limitations on the amount of web hosting traffic an individual Subscriber’s residential account can receive.
xvi. Storing Distributing or Transmitting unlawful content– Subscriber is prohibited from storing, distributing, or transmitting any unlawful content through the Service. Examples of unlawful content include without limitation direct threats of physical harm, child pornography and copyrighted, trademarked and other proprietary material used without proper authorization. Subscriber may not post, upload or otherwise distribute copyrighted content without the consent of the copyright holder.
xvii. Storing Distributing or Transmitting other unlawful material – Subscriber may not store or distribute certain other types of material on Vistabeam’s servers. Examples of other prohibited material include without limitation software, applications and programs containing viruses, Trojans and other tools or technology that would compromise the security of Vistabeam or others.
12. SUBSCRIBER SECURITY AND PASSWORDS. Vistabeam may require that Subscriber use a username and password combination or other reasonable procedures to verify and authenticate Subscriber’s identity when requesting or otherwise accessing account information, making changes to the Service or performing other functions related to the Service through Vistabeam authorized Subscriber service channels. Commercial Subscribers may also choose to designate an authorized user of Subscriber’s account (an “Authorized User”), who will be permitted to access Subscriber’s account information and make certain changes to Subscriber’s account. Residential Subscribers may not designate an Authorized User. All Subscribers will be solely liable for any and all action or inaction by any person that has access to Subscriber’s account, whether that person was authorized or not.
a. Residential accounts are for individual and personal use only; commercial accounts are for authorized personnel only. Residential Subscribers shall not share passwords or accounts with others. Commercial Subscribers shall only provide passwords to authorized personnel.
b. Vistabeam shall provide or obtain passwords to protect Subscriber’s account and Services. In the event that the security of a Subscriber’s account or Service is compromised, Vistabeam shall provide Subscriber with a new password upon authentication of the Subscriber’s identity. Such authentication may include verification of account information, a security question, and/or PIN.
c. Vistabeam may monitor the security of Subscriber’s passwords at any time. A Subscriber with an insecure password may be directed to change the password to one which complies with the above rules. Subscribers who repeatedly choose insecure passwords may be assigned a password by Vistabeam; continued failure to maintain password security may be grounds for account termination.
d. Subscriber is solely responsible for maintaining the security of Subscriber’s computer(s)/device(s) and data and protection of Subscriber’s Information User ID, password, account number and other data. Vistabeam strongly recommends the use and appropriate updating of commercial anti-virus, anti-spyware, firewall software, and encryption of data, to the extent feasible.
e. Subscriber is prohibited from utilizing the Services to compromise the security or tamper with the Vistabeam Networks, resources or accounts on any of Vistabeam’s computers, routers, switches, servers, radios, modems, or any other equipment at Vistabeam or at any other website. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include without limitation password guessing programs, cracking tools, and network probing tools. Any attempt to access any of Vistabeam’s corporate assets is strictly prohibited.
f. Subscribers understand, acknowledge and agree that Vistabeam reserves the right to release the login names and IP Address(es) of Subscribers involved in violating system security to system administrators at other websites, in order to assist them in resolving security incidents. Vistabeam will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers, subject to applicable law.
13. TERMINATION. Vistabeam reserves the right to suspend or terminate Subscriber’s account and access to the Services at any time upon receipt of claims or allegations from third parties or authorities, or if Vistabeam is concerned that Subscriber may have breached this Service Contract. Subscriber (and not Vistabeam, OUR Affiliates, or Operational Service Providers) remains solely responsible for Subscriber’s use of the Service and any material transmitted through the Service, and Subscriber warrants that Subscriber possesses all rights necessary to transmit such material. An Operational Service Provider is a third party owned company that provides or performs services on Vistabeam’s behalf, to help serve Subscribers better, or to perform functions in order to support Vistabeam’s Services and operations.
a. Subscriber’s Termination. IF SUBSCRIBER CANCELS THE SERVICE OR ANY ASPECT THEREOF FOR ANY REASON, VISTABEAM SHALL NOT BE REQUIRED TO REFUND SUBSCRIBER ANY PORTION OF THE MONTHLY FEES PAID BY SUBSCRIBER FOR THE MONTH IN WHICH CANCELLATION OCCURS, UNLESS REQUIRED OTHERWISE BY STATE LAW.
i. Subscriber may terminate the Service no less than fifteen (15) days prior to the end of the monthly term. A Subscriber’s termination notice must be sent by Subscriber via email, fax, or U.S. postal mail to Vistabeam’s current address as set forth in Section 18(h) of this Service Contract. Vistabeam may take reasonable steps to verify Subscriber’s identity and authority before effecting such termination. Upon termination, Subscriber agrees to pay any account balance in full and to return any Vistabeam Equipment within fifteen (15) days of the expiration of the Term or pay the Equipment Replacement Price as required under Section 5 and Appendix B.
ii. Subscriber agrees to return all Vistabeam Equipment installed for the Services upon cancellation or termination of the Services for any reason. Equipment not returned to Vistabeam within fifteen (15) days after effective date of termination will be billed at the following rates set forth in Appendix B of this Service Contract.
b. Vistabeam Termination. Vistabeam may terminate this Service Contract in the event the Subscriber is in breach of any material term of this Service Contract, including failure to pay any amount for service when due. This right to terminate shall be in addition to any other remedy set forth in this Service Contract or the policies of Vistabeam.
i. The Service and all Service features are subject to availability on an ongoing basis. Subscriber understands that Vistabeam may cease to offer the Services or any Service feature at any time, for any reason or no reason, and without notice to Subscriber. Without limiting the generality of the foregoing, Vistabeam may suspend, disconnect or terminate the Service at any time without prior notice if Vistabeam believes in its sole discretion that Subscriber has (A) failed to pay Subscriber’s bill when due, (B) threatened or harassed any Vistabeam employee, agent or contractor or (C) violated any other provision of this Service Contract. In its reasonable discretion, Vistabeam may terminate the Service on thirty (30) days notice to Subscriber.
ii. In the event that Subscriber’s account is suspended, disconnected or terminated, no refund, including installation or other fees paid by Subscriber to Vistabeam, shall be granted. Moreover, Vistabeam shall not be responsible for the return of Subscriber’s data stored on Vistabeam’s servers, including web and email servers. Subscriber understands, acknowledges and agrees that Vistabeam has no obligation to visit Subscriber’s premises upon termination to reconfigure Subscriber’s computer(s) or for any other reason.
14. DISCLAIMER OF WARRANTIES.
a. SUBSCRIBER EXPRESSLY AGREES THAT SUBSCRIBER USES THE SERVICES AND THE VISTABEAM EQUIPMENT AT SUBSCRIBER’S SOLE RISK. THE SERVICE AND VISTABEAM EQUIPMENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND EXCEPT TO THE LIMITED EXTENT SPECIFICALLY SET FORTH IN SECTION 3 HEREIN, IF APPLICABLE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NEITHER VISTABEAM, NOR ITS AFFILIATES, SHAREHOLDERS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND OPERATIONAL SERVICE PROVIDERS (COLLECTIVELY, “VISTABEAM-RELATED ENTITIES”), OUR THIRD PARTY SUPPLIERS OR SOFTWARE LICENSORS WARRANT: (i) TO UNINTERRUPTED, TIMELY OR SECURE USE OF SERVICE; (ii) THAT THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS; (iii) THAT THE SERVICE WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS, EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED; OR (vi) THAT ANY SUBSCRIBER INFORMATION, DATA OR FILES, OR SUBSCRIBER MATERIAL SUBSCRIBER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO SUBSCRIBER’S COMPUTER OR DEVICE. THIS INCLUDES, WITHOUT LIMITATION TO, INCIDENTS OF FILE SHARING, PRINT SHARING OR USE OF OTHER MEANS THAT ENABLE INTERNET USERS TO GAIN ACCESS TO SUBSCRIBER’S COMPUTER, DEVICE, OR NETWORK OR VISTABEAM EQUIPMENT, OR TO MONITOR SUBSCRIBER’S ACTIVITY AND CONDUCT WHILE USING THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM VISTABEAM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
b. Additionally, Vistabeam may, in its sole discretion, make available to Subscriber security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, parental control software, and anti-spyware or anti-adware software for Subscriber’s use on Subscriber’s computer system in conjunction with the Service. Any such security software provided by Vistabeam to Subscriber is intended to provide only a minimal level of protection to Subscriber’s computer system(s). SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE VISTABEAM-RELATED ENTITIES AND THIRD-PARTY SUPPLIERS AND LICENSORS OF ANY SUCH SECURITY SOFTWARE, DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. SUBSCRIBER UNDERSTANDS AND AGREES THAT VISTABEAM AND VISTABEAM-RELATED-ENTITIES, THIRD PARTY SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S COMPUTER SYSTEM(S) (OR THE INFORMATION STORED THEREIN) THAT MAY RESULT FROM USE OF THE SECURITY SOFTWARE OR FROM ITS NON-PERFORMANCE.
c. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SERVICE CONTRACT, SUBSCRIBER UNDERSTANDS AND AGREES THAT NEITHER VISTABEAM NOR THE VISTABEAM-RELATED ENTITIES GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON THE VISTABEAM NETWORKS OR THAT ANY SPEED OR THROUGHPUT OF SUBSCRIBER’S CONNECTION TO THE VISTABEAM NETWORKS WILL BE AVAILABLE TO SUBSCRIBER. Subscriber understands, acknowledges and agrees that the availability and speed of the Service provided at Subscriber’s premises may vary depending upon a number of factors, including Subscriber’s computer system(s), associated equipment and other devices accessing the Service, the terrain and location of Subscriber’s premises, foliage between Vistabeam Equipment and other components of the Vistabeam Networks, Internet traffic, and other factors such as system capacity limitations, governmental actions, geographic, atmospheric and other variable conditions beyond the control of Vistabeam and that its Services may be interconnected with the publicly switched telephones or with another carrier's network.
d. Subscriber also understands, acknowledges and agrees that IAS require certain physical arrangements of Vistabeam facilities and are subject to the availability of such facilities. Vistabeam reserves the right to limit the length of a Subscriber’s communications when necessary.
e. THIS CONTRACT GIVES SUBSCRIBER SPECIFIC LEGAL RIGHTS, AND SUBSCRIBER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
15. LIMITATION OF LIABILITY
a. STATUTE OF LIMITATIONS. SUBSCRIBER MUST BRING ANY CLAIM OR LAWSUIT WITHIN ONE (1) YEAR THE CLAIM OR SUIT ARISES.
b. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL VISTABEAM, THE VISTABEAM-RELATED ENTITIES, THIRD PARTY LICENSORS OR SUPPLIERS, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, OR AGENTS, AND ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS SERVICE CONTRACT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO SUBSCRIBER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE AGGREGATE LIABILITY OF VISTABEAM UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 U.S.).
c. SUBSCRIBER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT VISTABEAM WILL HAVE NO LIABILITY FOR THE FOLLOWING:
i. FOR ANY AMOUNT IN THE IN EXCESS OF ONE HUNDRED DOLLARS ($100.00 U.S.);
ii. FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING WITHOUT LIMITATION, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR WIRELINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES;
iii. FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER;
iv. FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
v. FOR ANY DAMAGES OR LOSS DUE TO SUBSCRIBER’S FAILURE TO BACK UP ANY EQUIPMENT AS REQUIRED IN SECTION 3(f) HEREIN;
vi. ANY LACK OR BREACH OF SECURITY SUBSCRIBER OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE;
vii. FOR ANY MATTER BEYOND VISTABEAM’S REASONABLE CONTROL;
viii. FOR ANY INTERFERENCE OR INCOMPATIBILITY WITH OR DISRUPTION OF ANY NON-VOICE SYSTEMS, WHETHER CAUSED BY THE TELEPHONY SERVICE, INTERNET SERVICE, EQUIPMENT, OR OTHERWISE;
ix. FOR ANY ACT OR OMISSION OF ANOTHER CARRIER FURNISHING A PORTION OF THE SERVICES, FACILITIES OR EQUIPMENT TO SUBSCRIBER.; OR
x. SUBSCRIBER’S USE OF THE SERVICE FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS SERVICE CONTRACT.
d. This Section 15, Limitation of Liability, will survive termination or expiration of this Service Contract, whether terminated by the Subscriber or by Vistabeam, for any reason.
16. AGREEMENT TO ARBITRATE. SUBSCRIBER AND VISTABEAM AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN SUBSCRIBER AND VISTABEAM THAT THEY ARE NOT ABLE TO RESOLVE THROUGH GOOD FAITH DISCUSSION. This mutual agreement between Subscriber and Vistabeam to arbitrate all disputes and claims between them is intended to be broadly interpreted. It includes without limitation: claims arising out of or relating to any aspect of the relationship between Subscriber and Vistabeam, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising), claims that are currently the subject of purported class action litigation in which Subscriber is not a member of a certified class and claims that may arise after the termination of this Service Contract. For the purposes of this Section 16, references to Subscriber include Subscriber’s subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all Authorized Users or unauthorized users or beneficiaries of the Service.
a. SUBSCRIBER AGREES THAT, BY ENTERING INTO THIS SERVICE AGREEMENT, SUBSCRIBER AND VISTABEAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THIS SERVICE AGREEMENT.
b. This Service Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Service Agreement.
c. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice (“Arbitration Notice”). An Arbitration Notice to Vistabeam must be addressed to Vistabeam at the address set forth in this Service Agreement for notices. An Arbitration Notice to Subscriber must be addressed to Subscriber at Subscriber’s then-current billing address. The Arbitration Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Subscriber and Vistabeam do not reach an agreement to resolve the claim within 60 calendar days after the Arbitration Notice is received, Subscriber or Vistabeam may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Vistabeam or Subscriber shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Subscriber or Vistabeam is entitled.
d. The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Service Agreement, and shall be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or written request to the Vistabeam. The arbitrator shall be bound by the terms of this Service Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are reserved to the decision of a court of competent jurisdiction. Unless Subscriber and Vistabeam agree otherwise, any arbitration hearings shall take place in Scotts Bluff County, Nebraska. The right to a hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The party initiating arbitration proceedings shall bear all the arbitration-related costs and expenses of both parties including, without limitation, legal fees and expenses.
e. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. SUBSCRIBER AND VISTABEAM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Subscriber and Vistabeam agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
f. Notwithstanding any provision in this Service Agreement to the contrary, Subscriber and Vistabeam agree that if Vistabeam makes any future change to this arbitration provision (other than a change to the address to which an Arbitration Notice is to be sent), Subscriber may reject any such change by sending Vistabeam written notice within thirty (30) days of the change. By rejecting any future change, Subscriber agrees that Subscriber will arbitrate any dispute between Subscriber and Vistabeam in accordance with the language of this provision.
17. INDEMNIFICATION. Subscriber agrees to indemnify, defend and hold harmless Vistabeam, the Vistabeam-Related Entities, and our third party licensors and suppliers and each of their respective, officers, directors, shareholders, employees, agents, representatives and contractors, and each of their successors and assigns (collectively, the “Vistabeam Indemnitees”) from and against all losses, expenses, damages and costs, (including reasonable attorneys' fees) and other claims or actions brought against any Vistabeam Indemnitee(s) related to Subscriber’s use of the Service or any violation of this Service Contract and all other documents incorporated herein by reference) including, without limitation, claims that Subscriber’s use of the Services infringed on the patent, copyright, trademark or other intellectual property right of any third party or Subscriber’s violation of any law or the rights of another and claims resulting from Subscriber’s negligence. Subscriber agrees to pay any attorneys’ fees incurred by any Vistabeam Indemnitees in connection with the defense of any such third-party claims or actions. Vistabeam reserves the right to assume the defense and control of any matter subject to indemnification by Subscriber, in which event Subscriber will cooperate with Vistabeam in asserting any available defenses.
18. GENERAL PROVISIONS.
a. This Service Contract (including all documents incorporated herein by reference) constitutes the entire agreement with respect to the Service. This Service Contract supersedes and nullifies all prior understandings, promises and undertakings made orally or in writing by or on behalf of the parties with respect to the subject matter of this Service Contract.
b. The Parties agree that any Affiliates, Operational Service Providers, agents, third party suppliers and licensors of Vistabeam are intended beneficiaries of this Contract. Except as set forth in the previous sentence, this Service Contract is not intended to give and does not give any rights or remedies to any person other than Subscriber and Vistabeam.
c. No agency, partnership, joint venture, or employment relationship is created as a result of the Service Contract and neither party has any authority of any kind to bind the other in any respect.
d. Vistabeam shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Vistabeam’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "RF noise" interference).
e. This Service Contract and all matters arising out of or related to this Service Contract shall be governed by the laws of the State of Nebraska without regard to conflicts of law provisions. Subject to the agreement between Subscriber and Vistabeam with respect to arbitration of any disputes, Subscriber agrees that the state courts of Scotts Bluff County, Nebraska and the federal courts closest in proximity to Vistabeam alone shall have jurisdiction over all disputes arising under this Service Contract and Subscriber consents to the personal jurisdiction of those courts.
f. Vistabeam’s failure to exercise or enforce any right or provision of this Service Contract shall not constitute a waiver of such right or provision. If any term, covenant, condition or provision of this Service Contract shall, to any extent, be held invalid, illegal or unenforceable, the remainder of this Service Contract shall not be affected and each remaining term, covenant, condition and provision shall be valid and enforceable to the fullest extent permitted by law or construed as nearly as possible to reflect the original intentions of the parties.
g. Vistabeam may change, amend, alter, or modify this Service Contract and any document incorporated by reference herein at any time. Vistabeam may notify Subscriber of any change either by posting that change on Vistabeam’s website (www.vistabeam.com), and by sending Subscriber an email or by U.S. first-class mail. If Subscriber continues to use the Service after such notice has been made, Subscriber agrees that such continued use shall be deemed to be Subscriber’s acceptance of those changes. The current version of this Service Contract, as the same may be modified by Vistabeam from time to time, shall supersede any prior version of this Service Contract that may have been provided to Subscriber at any time.
h. Except as specifically set forth in this Service Contract, any notices under this Service Contract shall be effective as follows:
i. If to Subscriber: notice shall be made by (A) email to Subscriber’s email address; (B) by first-class mail to Subscriber at Subscriber’s billing address then on file with Vistabeam; or (C) when posted to the Announcements page of Vistabeam’s website. If by email, such notice shall be deemed effective when transmitted by Vistabeam. If by first-class mail, such notice shall be deemed effective upon the earlier of (1) three (3) business days after dispatch or (2) at such time as actually received by Subscriber.
ii. If to Vistabeam: notice shall be made exclusively by first-class mail to Vistabeam at 1225 Sage Street, Gering, Nebraska 69341, or such other address as Vistabeam may from time to time publish to Subscriber, and such notice shall be deemed effective upon receipt.
i. Subscriber may not assign this Service Contract, or Subscriber’s rights or obligations under this Service Contract, without Vistabeam’s prior written consent, and any purported assignment by Subscriber without such consent shall be void. Vistabeam may transfer or assign any portion or all of this Service Contract at any time without notice to Subscriber, and Subscriber waives any notice that may be required by law.
j. Sections 2 through 18 herein shall survive any termination or expiration of this Service Contract.