Customer Terms & Conditions
APX NET, INC CUSTOMER TERMS AND CONDITIONS
The Customer named on the APX Net (APX Net, Inc) Service Order Agreement and APX Net agree that the Terms and Conditions on the APX Net Service Order Agreement and these Terms and Conditions, constitute the agreement (the “Agreement”) for the provision of the Services selected by Customer and designated on a Service Order. Services may include APX Net commercial high-speed internet services (“Internet”), Wide Area Network (WAN) and all services provided under the agreement by APX Net Terms and Conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services.
GENERAL TERMS AND CONDITIONS DEFINITIONS
Active Order: An order is considered an Active Order upon signature by the Customer and APX Net at which time work begins by APX Net to implement requested services.
Affiliate: Any entity that controls, is controlled by or is under common control with APX Net.
Agreement: Consists of these Terms and Conditions and the Service Order Agreement executed by Customer and accepted by APX Net, any written Amendments to the Agreement executed by both Parties including any supplemental Terms and Conditions (“Amendment(s)”), and each Sales Order accepted by APX Net under the Agreement.
Amendment(s): Any written amendment to the Agreement, executed by both Parties, including any supplemental Terms & Conditions.
APX Net: The operating company that offers Internet Services, WAN and all services provided under the Agreement.
APX Net Managed Equipment: Any and all facilities, equipment or devices provided by APX Net or its authorized underlying carriers at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by APX Net Inc., shall not be considered APX Net Managed Equipment.
APX Net Website: The APX Net website where the Terms & Conditions, Acceptable Use Policy applicable to the Agreement, will be posted. The current URL for the website is https://apxnet.com/docs/APXNet_terms_and_conditions.pdf. APX Net may update the website documentation and/or URL, from time to time.
Confidential Information: All information regarding either Party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by the receiving Party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Service Order Agreement, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the Parties’ communications regarding such items.
Customer: The Company, Corporation, or other entity named on the Service Order Agreement.
Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
Demarcation Point: The point of interconnection between Customer’s and Carrier network(s).
Invoice: Provided monthly through electronic distribution. Charges will apply for paper invoice request.
Licensed Software: Computer software or code provided by APX Net or required to use the Services, including without limitation, associated documentation and all updates thereto.
Party: A reference to APX Net or the Customer; and in the plural, a reference to both companies.
Service(s): Internet and WAN services provided by APX Net to Customer described in one or more Service Order(s). All Services are for commercial use only. Services available under this Agreement are identified on the Service Order Agreement.
Service Commencement Date: The date(s) on which APX Net first makes Service available for use by Customer. A single Service Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.
Service Location(s): The Customer location(s) where APX Net provides the Services.
Service Order: A request for APX Net to provide the Services to Service Location(s) submitted by Customer to APX Net (a) on a then-current APX Net form designated for that purpose or (b) if available, through an APX Net electronic order processing system designated for that purpose.
Service Order Agreement: The Agreement under which all Service Orders are submitted to APX Net. Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Service Order Agreement.
Termination Charges: Charges that may be imposed by APX Net if, prior to the end of the applicable Service Term (a) APX Net terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges with respect to each terminated Service Order shall equal, in addition to all amounts payable by Customer in accordance with Section 5.3, One hundred percent (100%) of the remaining monthly fees that would have been payable by Customer under the Service Order if the Services described in the Service Order had been provided until the end of the Service Term. In the event the Agreement is terminated as herein described during the initial Service Term, Termination Charges shall also include one hundred percent (100%) of any amount incurred by APX Net or last-mile provider in connection with Custom Installation, as that term is defined in Section 2.7, for the Services provided by APX Net under the Service Order. If Customer chooses to cancel services, after acceptance of Service Order Agreement, by APX Net, and prior to any initial processing of Service Order, there will be a $950 Termination Charge. Timing of Cancellation.
ARTICLE 1: CHANGES TO THE AGREEMENT TERMS
APX Net may change or modify the Agreement, and any related policies from time to time (“Revisions”) by posting such revisions to the APX Net Website, Terms & Conditions. The Revisions are effective immediately upon posting to the APX Net website. Customer will receive notice of the Revisions in the next applicable monthly invoice.
ARTICLE 2. DELIVERY OF SERVICES
2.1 Orders. Customer shall submit to APX Net a properly completed Service Order Agreement to initiate Services to a Service Location(s). A Service Order shall become binding on the Parties when (i) it is specifically accepted by APX Net either electronically or in writing, (ii) APX Net begins processing the Services described in the Service Order or (iii) APX Net begins Custom Installation (as defined in Section 2.7) for delivery of the Services described in the Service Order, whichever is earlier. When a Service Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
2.2 Speed. Speeds of APX Net’s products and services are covered under each specific product Service Level Agreement (SLA).
2.3 Access. Customer, at no cost to APX Net, shall secure and maintain all necessary rights of access to Service Location(s) for APX Net to install and provide the Services, unless APX Net has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the APX Net Managed Equipment used to provide the Services within the Service Location(s). APX Net and its employees and authorized underlying carriers will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice from APX Net, Customer shall provide all required access to APX Net and its authorized personnel.
2.4 Service Commencement Date. Upon installation and connection of the necessary facilities and equipment to provide the Services, APX Net shall notify Customer that the Services are available for use, and the date of such notice shall be called the “Service Commencement Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Commencement Date shall not relieve Customer of its obligation to pay applicable Service charges.
2.5 Carrier Partner Equipment. Carrier Partner Equipment is and shall remain the property of Carrier regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time APX Net may remove or change APX Net. Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any APX Net. Equipment or permit others to do so, and shall not use the APX Net. Equipment for any purpose other than that authorized by the Agreement. APX Net shall maintain APX Net Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at APX Net’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the APX Net Equipment. Customer is responsible for damage to, or loss of, APX Net Equipment caused by its acts or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of APX Net. Customer agrees not to take any action that would directly or indirectly impair APX Net’s title to the APX Net Equipment, or expose APX Net to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following APX Net’s discontinuance of the Services to the Service Location(s), APX Net retains the right to remove the APX Net Equipment including, but not limited to, that portion of the APX Net Equipment located within the Service Location(s). To the extent APX Net removes such APX Net Equipment; it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted. Customer is responsible for returning equipment in a timely manner.
2.5.1 APX Net Managed Equipment. Equipment owned by customer, managed by APX Net.
2.6 Customer-Provided Equipment. APX Net shall have no obligation to install, operate, or maintain Customer-Provided Equipment. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside wiring and equipment and facilities on the Customer’s side of the demarcation router, firewall and/or coaxial input connection. All Customer-Provided Equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by APX Net’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment. If customer makes change to Customer equipment resulting in difficulty or trouble report, Customer will be charged for troubleshooting.
2.7 Engineering Review. Each Service Order submitted by Customer shall be subject to an engineering review by APX Net. The engineering review will determine whether the outside plant must be extended, built or upgraded (“Custom Installation”) in order to provide the ordered Services at the requested Service Location(s). APX Net will provide Customer written notification in the event Service installation at any Service Location will require an additional one-time installation fee (“Custom Installation Fee”). Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Service Order with respect to the affected Service Location(s).
2.8 Administrative Web Site. APX Net may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). APX Net may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify APX Net if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and APX Net shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorized by Customer. APX Net shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. APX Net may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site. These terms and policies will be posted on the site.
ARTICLE 3. CHARGES, BILLING AND PAYMENT
3.1 Charges. Customer shall pay APX Net one hundred percent (100%) of the Custom Construction Fee prior to the installation of Service. Failure to pay Custom Construction Fee prior to Custom Install, will prevent hand-off of completed circuit. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable Service Order(s) or invoiced by APX Net. These charges may include, but are not limited to installation charges, monthly recurring service charges, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Flat-rated product pricing across multiple Service Location(s) are subject to change as a result of Customer requests for additions or deletions to Service Location(s). Invoices will be electronically distributed. Customer is responsible for providing accurate, current/updated email address to ensure electronic distribution of invoice. Customer is responsible for late fees that may accrue due to non- current or non-updated email address for electronic invoice distribution.
3.2 Payment of Bills. Except as otherwise indicated herein or on the Service Order(s), APX Net will invoice Customer in advance on a monthly basis for all Monthly Recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to APX Net for all invoiced amounts within thirty (30) days after the date of the invoice. Any amounts not paid to APX Net within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for the Services, from the date of installation to the first day of the new billing.
3.3 Partial Payment. Partial payment of any invoice will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by APX Net. No acceptance of partial payment(s) by APX Net shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
3.4 Payment by Credit Card. Upon Customer’s written request and APX Net’s acceptance of such request, APX Net. will accept certain credit card payments for charges generated under the Agreement, passing along the credit card processing fee to Customer. Present credit card processing fee is .04% of total invoice charges. By providing APX Net with a credit card number, Customer authorizes APX Net to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that APX Net stop charging the credit card. Customer agrees to provide APX Net with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If APX Net is unable to charge Customer’s credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by APX Net. APX Net may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
3.5 Payment by ACH/Wire Transfer. Customer has the option of providing payment by ACH or Wire Transfer, with prior notification to APX Net. If Wire Transfer is made, APX Net will charge a $25 Wire Handling Fee.
3.6 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide APX Net with credit information requested by APX Net. Customer authorizes APX Net to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to APX Net will be true and correct. APX Net, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, APX Net may require Customer to make a deposit (in an amount not to exceed an estimated two-months charge for the Services) as a condition to APX Net’s provision of the Services, or as a condition to APX Net’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by APX Net as security for payment of Customer’s charges. If the provision of Service to Customer is terminated, or if APX Net determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer’s account or will be refunded to Customer, as determined by APX Net.
3.7 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
3.8 Other Government-Related Costs and Fees. APX Net reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi- governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable, regardless of whether APX Net or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. These obligations may include those imposed on APX Net or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that APX Net or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. For example, customers are charged a monthly regulatory recovery fee to help defray APX Net’s contributions to municipal, state, and federal programs including, without limitation, universal service, telecom relay services for the visually/hearing impaired, and 911/E911 programs and infrastructure. This regulatory recovery fee is not a tax, and it is not government-mandated. Taxes and other government-related fees and surcharges may be changed with or without notice.
3.9 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to APX Net for the disputed amount of the invoice by the invoice due date. This can be submitted to email@example.com. The Parties shall negotiate in good faith to resolve the dispute. However, should the Parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to APX Net all disputed amounts shall become immediately due and payable to APX Net.
3.10 Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, APX Net may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Carrier Partner Equipment that Customer fails to return in accordance with the Agreement. If APX Net is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned APX Net Managed Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to APX Net under the Agreement or at law or in equity. If account goes to disconnection status, account balance must be brought to $0.00 to remove from disconnection status, applicable fees will apply. Customer must have current account balance at time of circuit hand-off.
3.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution. Customer will be required to enroll in scheduled ACH payment.
3.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. APX Net may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. APX Net reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer detailed in the Acceptable Use Policy.
3.13 Fee Schedule.
|Returned Check Fee||$ 45.00|
|Document Research Fee||$ 25.00 per document/invoice/contract|
|Service Transfer Fee||$ 50.00|
|Wire Transfer Fee||$ 25.00|
|Transfer of Ownership||$250.00|
|Copyright Infringement Fee||$100.00 per infringement|
|Credit Card Fee||.04% of total invoice charges|
ARTICLE 4. TERM
4.1 Agreement Term. This Agreement shall terminate upon the expiration or other termination of the final existing Service Order entered into under this Agreement. The term of a Service Order shall commence on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service. Unless otherwise stated in these Terms and Conditions, if a Service Order does not specify a term of service, the Service Term shall be one (1) year from the Service Commencement Date.
4.2 Service Order Renewal. Upon the expiration of the Service Term, this Agreement and each applicable Service Order shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless otherwise stated in these Terms and Conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term. Effective at any time after the end of the initial Service Term and from time to time thereafter, APX Net may, modify the charges for Internet Services.
ARTICLE 5. TERMINATION OF AGREEMENT AND/OR A SALES ORDER
5.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Order, or this Agreement in whole or part, at any time during the Service Term upon sixty (60) days prior notice to APX Net Inc., and subject to payment to APX Net Inc. of all outstanding amounts due for the Services, any and all applicable Termination Charges, and the return of any and all Carrier Partner Equipment.
5.2 Termination for Cause.
- If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, APX Net may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services. However, APX Net will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the Parties have reviewed the dispute and determined in good faith that the charge is correct.
- If either Party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting Party may terminate for cause any Service Order materially affected by the breach.
- A Service Order may be terminated by either Party immediately upon notice if the other Party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.
- Termination by either Party of a Service Order does not waive any other rights or remedies that it may have under this Agreement.
5.3 Effect of Expiration or Termination of the Agreement or a Service Order. Upon the expiration or termination of a Service Order for any reason: (i) APX Net may disconnect the applicable Service; (ii) APX Net may delete all applicable data, files, electronic messages or other information stored on APX Net’s servers or systems; (iii) if Customer has terminated the Service Order prior to the expiration of the Service Term for convenience, or if APX Net has terminated the Service Order prior to the expiration of the Service Term as a result of material breach by Customer, APX Net may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, permit APX Net access to retrieve from the applicable Service Locations any and all APX Net Managed Equipment. If Customer fails to permit access, or if the retrieved Equipment has been damaged and/or destroyed other than by APX Net or its agents, normal wear and tear excepted, APX Net may invoice Customer for the full replacement cost of the relevant APX Net Managed Equipment, or in the event of minor damage to the retrieved APX Net Managed Equipment, the cost of repair, which amounts shall be immediately due and payable; and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to APX Net.
5.4 Regulatory and Legal Changes. The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. APX Net may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects APX Net’s ability to provide the Services herein.
ARTICLE 6. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
6.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY APX NET OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF APX NET AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE APX NET EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OFSERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
6.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, APX NET EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APX NET DOES NOT WARRANT THAT THE SERVICES, APX NET EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR- FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, APX NET EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, APX NET EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
6.3 APX NET MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, APX NET EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
6.4 IN NO EVENT SHALL APX NET, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
6.5 Disruption of Service. Not withstanding the performance standard as identified in an SLA, the Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High-Risk Activities”). These High-Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from High-Risk Activities. APX Net shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer-Equipment; inability to obtain access to the Service Locations; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services.
6.6 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of APX Net, its Affiliates and Agents is limited to the maximum extent permitted by law.
ARTICLE 7. INDEMNIFICATION
7.1 Subject to Article 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent Contractors and Agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: (i) any Claim of any third Party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, APX Net Managed Equipment, and Licensed Software; and (ii) any Claim of any third Party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, APX Net Managed Equipment, and Licensed Software.
7.2 Indemnification Process. The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 7 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by APX Net, including, without limitation, end- user license agreements for the Licensed Software. APX Net, and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of APX Net; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
8.3 Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the APX Net Managed Equipment, Carrier Equipment or Customer-Provided Equipment. If APX Net has agreed to provide updates and changes, APX Net may perform such updates and changes remotely or on-site, at APX Net’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by APX Net. If customer fails to agree to such updates, APX Net will be excused from the applicable Service Level Agreement and other performance credits, and any and all liability and indemnification obligations regarding the applicable Service.
8.4 Ownership of Numbers and Addresses. Customer acknowledges that use of the Services does not give it any ownership or other rights in any number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses.
8.5 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by APX Net, its agents, suppliers or Affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from APX Net or other owner of such material, is prohibited.
8.6 Request of Technical Support. In the event technical support is requested, the customer must (a) be current in its obligations with APX Net; (b) open a trouble ticket by calling 1-877-658-2724 or via email firstname.lastname@example.org; (c) provide customer name, APX Net account number; (d) service address and service description; (e) circuit id.
ARTICLE 9. CONFIDENTIAL INFORMATION AND PRIVACY
9.1 Disclosure and Use. All Confidential Information shall be kept by the receiving Party in strict confidence and shall not be disclosed to any third Party without the disclosing Party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving Party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving Party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each Party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
9.2 Exceptions. Notwithstanding the foregoing, each Party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving Party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving Party; (iii) is rightfully obtained by the receiving Party from a third Party without restriction as to disclosure, or is approved for release by written authorization of the disclosing Party; (iv) is developed independently by the receiving Party without use of the disclosing Party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
9.3 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
9.4 Monitoring. Except as otherwise expressly set forth in a SLA, APX Net shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that APX Net and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. APX Net reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in APX Net’s sole discretion, is unacceptable, undesirable or in violation of this Agreement.
9.5 Publicity. The Agreement provides no right to use APX Net’s trademarks, service marks or trade names, or to otherwise refer to APX Net in any marketing, promotional, or advertising materials or activities. Customer shall not issue any publication or press release relating to, or otherwise disclose the existence of, the Terms and Conditions of any contractual relationship between APX Net and Customer, except as permitted by the Agreement or otherwise consented to in writing by APX Net.
9.6 Passwords. APX Net may furnish Customer with user identifications and passwords for use in conjunction with certain Services, including without limitation, for access to certain non-public APX Net. Website materials. Customer understands and agrees that such information shall be subject to APX Net’s access policies and procedures.
9.7 Survival of Confidentiality Obligations. The obligations of confidentiality and limitation of use described in this Article 9 shall survive the expiration and termination of the Agreement for a period of two (2) years (or such longer period as may be required by law).
ARTICLE 10: USE OF SERVICE; USE AND PRIVACY POLICIES
10.1 Prohibited Uses and APX Net Use Policies. Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in violation of any law, rule, regulation, or policy of any government authority; (ii) in violation of any Use Policy (as defined below); (iii) for any use as to which Customer has not obtained all required government approvals, authorizations, licenses, consents, and permits; or (iv) to interfere unreasonably with the use of APX Net. service by others or the operation of the Network. Customer is responsible for assuring that any and all of its users comply with the provisions of the Agreement. APX Net reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if APX Net determines that such use is prohibited as identified herein, or information does not conform with the requirements set or APX Net reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Furthermore, to the extent applicable, Services shall be subject to APX Net’s acceptable use policies (“Use Policies”) that may limit use. The Use Policies and other security policies concerning the Services are posted on the Website, and are incorporated into this Agreement by reference. APX Net may update the Use Policies from time to time, and such updates shall be deemed effective immediately upon posting, with or without actual notice to Customer. APX Net’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
10.3 Privacy Note Regarding Information Provided to Third Parties. APX Net is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
10.4 Resale. Customer may not sell, resell, sublease, assign, license, sub-license, share, provide, or otherwise utilize in conjunction with a third Party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
10.5 Violation. Any breach of this Article 10 shall be deemed a material breach of this Agreement. In the event of such material breach, APX Net shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of APX Net, and then to notify Customer of the action that APX Net has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Majeure. Neither Party shall be liable to the other Party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Services rely, or other causes beyond the Party’s reasonable control, except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
11.2 Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably conditioned, delayed or withheld. The foregoing notwithstanding, APX Net may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, APX Net may partially assign its rights and obligations hereunder to any Party that acquires from APX Net all or substantially all of the Services deployed to Customer. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
11.3 Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via electronic delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to Customer shall be sent to the Customer billing email address provided by customer; notices to APX Net shall be sent to email@example.com, or to 2 School Street, Berwick Maine, 03901, Attn: Legal Counsel. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
11.4 Entire Understanding. The Agreement constitutes the entire understanding of the Parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any purchase order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of APX Net may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of APX Net who has not been specifically authorized to make such modifications shall be binding upon APX Net. No subsequent agreement among the Parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both Parties.
11.5 Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the Parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect
11.6 Survival. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or any Service Order, including without limitation representations, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Service Order.
11.7 Choice of Law. The domestic law of the State of Maine shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by Federal Law.
11.8 No Third-Party Beneficiaries. This Agreement does not expressly or implicitly provide any third Party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
11.9 No Waiver. No failure by either Party to enforce any rights hereunder shall constitute a waiver of such right(s).
11.10 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11.11 Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
11.12 Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
11.13 Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
October 29, 2020
Notice of Accessing, Collecting, Storing, Using and Disclosing Customer Information
- Provide for needed maintenance or operation of designed network or cable modem access services
- Services required by state or federal law
- Plan, implement or evaluate telecommunications services or management, under contract with APX Net
- Provide personal information pursuant to a lawful warrant or court or law enforcement order, after prior notice to you unless such notice is prohibited by law
- Provide personal information to emergency responders in situations involving an imminent threat to life or property
Below is a series of Frequently Asked Questions describing how APX Net uses and protects the information we collect about our customers, including information collected using APX Net’s Website. Provided below are additional details on categories of information we collect and use, the third parties with whom we share this information, the purposes for which we collect, use and share the information, and the approximate period of time that we retain the information.
What categories of information does APX Net collect?
We collect customer information based on our business relationship with you and your use of our broadband cable modem services and other products we provide. Some examples include:
- Contact information that allows us to communicate with you, including your name, address, telephone number and email address
- Billing information related to your financial relationship with us, including your payment data, credit history
How is the information collected?
We collect customer information in a variety of ways, including:
- When you set up your account and interact with us regarding your account, perhaps through a third-party APX Net Agent
- When you choose to engage with us through our website
- When we interact with third parties such as credit agencies
Why is the information collected? How is the information used and how long is it retained?
- To generate your customer billing statement, and otherwise, in connection with billing and payment on your customer account
- To enable you to see your monthly invoice via secure access on the Internet (available to wholesale customers or commercial customers)
- To communicate with you about specific programs or opportunities offered by APX Net that may help you to lower your costs or realize other benefits
As a general policy, we collect and retain only as much personal information and only for such periods of time as is reasonably necessary to provide services to you or as authorized or required by law. We generally retain personal information about billing and retain individual customer billing records for seven years.
How does APX Net protect customer information from unauthorized access?
Is my customer information disclosed to others?
APX Net does not release personal customer information to any other person or business entity without your prior written consent. There are, however, certain exceptions that have been authorized or needed to provide services to you. APX Net may release personal information without your prior written consent as follows:
- To law enforcement officers, pursuant to legal process (such as a warrant or subpoena approved by a judge)
- To contractors providing utility-related services on behalf of APX Net—but only to the extent necessary to render the service and subject to confidentiality and security obligations
- To the USAC or FCC (or other governmental agencies with jurisdiction over APX Net) when they require such information
- To others as required by court order or by applicable laws, rules, or regulations governing APX Net
- To credit reporting agencies and collection agencies if your account is assigned for collection
- To emergency responders in situations of imminent threat to life or property We do not sell or provide personal customer information to third parties for their commercial benefit
What information do we collect about you on our Website and how do we protect the privacy of your information stored or exchanged on our Website?
Information We Collect
How We Use the Information
We ask you to provide personal information when you access various customer services offered on the website, and that information enables us to provide you with better service. We may use this information to contact you to respond to an inquiry that you send to APX Net or to keep you informed about APX Net and its services. If you send us an e-mail, then we consider e-mail communication to be at your consent, and we will e-mail you.
In order to provide you with services offered on our website, or to complete transactions or requests initiated by you on the website, we may transfer you to outside services provided by third-party operators. In certain instances, the third-party content may be “framed” in such a way it appears that you are still on APX Net’s website. In such cases, we will have agreements with those third parties whose websites you may be transferred to, under which the third parties agree to maintain the confidentiality of personal information about you and to use it only to help us serve you.
Our Use of Your IP Address. An Internet Protocol (“IP”) address is a number automatically assigned to your computer every time you browse the Internet. When you visit the website, our servers log your current IP address. We may use your IP address to help diagnose problems with our servers and to administer the website. Your IP address is not tied to your personal information and we do not use it to identify you when logging IP address data.
Once you log in to APX Net’s online services, any account information you enter or that is displayed in your browser window is secured using an industry standard security technology known as Secure Sockets Layer (“SSL”). By using SSL, we attempt to safeguard the confidentiality of your personal and financial information. Your browser must be capable of supporting SSL. Please check with your browser manufacturer for details.
How long does APX Net keep customer information?
APX Net maintains customer-specific and billing information for only as long as reasonably necessary, generally not more than seven years, in accordance with standards.
Can I give my own private information to a third party?
Yes, customers may authorize any third party to have access to their APX Net provided information.
Should I be concerned about giving my private information to a third party? What are the risks if I do so? What are my rights to restrict the use of my private information?
APX Net believes that there are many valuable and safe ways to share information with third parties. However, there are risks as well, as this information potentially contains personal data. Once provided to a third party, customers as well as APX Net may have little control of its further use. Therefore, it is important that you understand a third party’s intended purpose for using your information, its limitations for use and further sharing with other parties, and your rights as a consumer and owner of such information including your right not to authorize sharing of your information, before making a decision to give your consented authorization to share your information with any third party.
Internet Acceptable Use Policy
It is APX Net’s (APX Net, Inc) intent to provide our customers with the best high-speed Internet service possible. In order to accomplish this task, we have adopted this Policy. This Policy outlines acceptable use of the Service, as well as permissible and prohibited conduct for using the Service. This Policy, including its customer use restrictions, is in addition to the restrictions contained in the agreements and terms and conditions applicable to the Service (collectively, the “Agreement”) . All capitalized terms used in this AUP that are not defined here have the meanings given to them in the Agreement.
It is the responsibility of all APX Net Business Services and commercial customers, and all others who have access to APX Net’s network and supplier’s networks, (“customer,” “you,” or “your”) to comply with this AUP and all APX Net policies. As a Service customer, it is your responsibility to secure your equipment so that it is not subject to external threats such as viruses, spam, and other methods of intrusion. Failure to comply with these or any other APX Net policies could result in the suspension or termination of your Service. If you do not agree to comply with all of these policies including the AUP, you must immediately stop use of the Service and notify APX Net so that your account may be closed. In this case, termination or other charges may apply.
Note: APX Net reserves the right to immediately terminate the Service and the Agreement if you engage in any of the prohibited activities listed in this AUP or if you use the APX Net Equipment or Service in a way which is contrary to any APX Net policies or any of APX Net’s suppliers’ policies. In this case, termination or other charges may apply. You must strictly adhere to any policy set forth by another service provider accessed through the Service.
Prohibited Uses and Activities
Prohibited uses include, but are not limited to, using the Service, Customer-Provided Equipment, APX Net Equipment or any other equipment used in connection with the Service to:
Prohibited uses include, but are not limited to, using the Service, Customer-Provided Equipment, APX Net Equipment or any other equipment used in connection with the Service to:
i) undertake or accomplish any unlawful purpose. This includes, but is not limited to, posting, storing, transmitting or disseminating information, data or material which is libelous, obscene, unlawful, threatening, defamatory, or which infringes the intellectual property rights of any person or entity, or which in any way constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, order or regulation;
ii) post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, offensive, indecent, pornographic, abusive, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
iii) access any other person’s computer or computer system, software, or data without their knowledge and consent; breach the security of another user; or attempt to circumvent the user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, or probing the security of other hosts, networks, or accounts;
iv) use or distribute tools designed or used for compromising security, such as password guessing programs, decoders, password gatherers, analyzers, cracking tools, packet sniffers, encryption circumvention devices, or Trojan Horse programs. Network probing or port scanning tools are only permitted when used to diagnose a problem with your local area network (“LAN”), or if explicitly authorized by the destination host and/or network. Unauthorized port scanning, for any reason, is strictly prohibited;
v) upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way information, software or other material obtained through the Service or otherwise which is protected by copyright or other proprietary right, without obtaining permission of the owner;
vi) copy, distribute, or sublicense any software provided in connection with the Service by APX Net or any third party, except that you may make one copy of each software program for back-up purposes only;
vii) restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service, including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to send or retrieve information;
viii) restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Service or any APX Net (or APX Net supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any APX Net (or APX Net supplier) facilities used to deliver the Service;
ix) resell the Service or otherwise make available to anyone outside the Premises the ability to use the Service (i.e. wi-fi, “hotspots,” or other methods of networking), in whole or in part, directly or indirectly, or on a bundled or unbundled basis, or resell the Service or otherwise make available to anyone inside the Premises the ability to use the Service except for users specifically authorized by APX Net in accordance with an applicable Service plan;
x) use the Service for operation as an Internet service provider or, unless done with APX Net approval in accordance with an applicable Service plan, use the Service as an end-point on a non-APX Net local area network or wide area network;
xi) make the Service available to anyone other than you or your authorized employees or contractors (i.e. members of the public, customers of an establishment, hotel or motel guests and patrons, or persons in a residence hall or apartment building) unless done with APX Net’s written approval in accordance with an applicable Service plan;
xii) transmit unsolicited bulk or commercial messages or “spam” in violation of law This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
xiii) send numerous copies of the same or substantially similar messages, empty messages, or messages which contain no substantive content, or send very large messages or files to a recipient that disrupts a server, account, newsgroup, or chat service;
xiv) distribute programs that remove locks or time-outs built into software (cracks);
xv) unless you subscribe to a Service plan that expressly provides for a static or statically assigned Internet protocol (“IP”) address, run programs, equipment, or servers from the Premises that provide network content or any other services to anyone outside of your Premises LAN (Local Area Network), also commonly referred to as public services or servers. Examples of prohibited services and servers include, but are not limited to, e-mail, Web hosting, file sharing, and proxy services and servers;
xvi) initiate, perpetuate, or in any way participate in any pyramid or other illegal soliciting scheme;
xvii) participate in the collection of e-mail addresses, screen names, or other identifiers of others (without their prior consent), a practice sometimes known as spidering or harvesting, or participate in the use of software (including “spyware”) designed to facilitate this activity;
xviii) collect responses from unsolicited messages;
xix) impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity;
xx) service, alter, modify, or tamper with the APX Net-Provided Equipment or Service or permit any other person to do the same who is not authorized by APX Net;
xxi) connect the APX Net-Provided Equipment to any computer outside of your Premises;
xxii) collect, or attempt to collect, personal information about third parties without their consent;
xxiii) interfere with computer networking or telecommunications service to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to “crash” a host; and
xxiv) violate the rules, regulations, or policies applicable to any network, server, computer database, or web site that you access.
You are responsible for any misuse of the Service, even if the misuse was committed by an employee, contractor, customer, or guest with access to your Service account. Therefore, you must take steps to ensure that others do not use your account to gain unauthorized access to the Service by, for example, strictly maintaining the confidentiality of your Service login and password. In all cases, you are solely responsible for the security of any device you choose to connect to the Service, including any data stored or shared on that device. APX Net recommends against enabling file or printer sharing of any sort unless you do so in strict compliance with all security recommendations and features provided by APX Net and the manufacturer of the applicable file or printer sharing devices. Any files or devices you choose to make available for shared access on a LAN, for example, should be protected with a strong password or as otherwise appropriate.
Inappropriate Content and Transmissions
APX Net reserves the right, but not the obligation, to refuse to transmit or post and to remove or block any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful. Neither APX Net nor any of its affiliates, suppliers, or agents have any obligation to monitor transmissions or postings made on the Service. However, APX Net and its affiliates, suppliers, and agents have the right to monitor these transmissions and postings from time to time for violations of this Policy and to disclose, block, or remove them in accordance with the Agreement and any other applicable policies.
The Service may not be used to send unsolicited bulk or commercial messages in violation of law and may not be used to collect responses from unsolicited e-mail sent from accounts on other Internet hosts or e-mail services that violate this Policy or the acceptable use policy of any other Internet service provider. Moreover, unsolicited e-mail may not direct the recipient to any web site or other resource which uses the Service. Activities that have the effect of facilitating unsolicited commercial e-mail or unsolicited bulk e-mail in violation of law, whether or not the e-mail is commercial in nature, are prohibited. Forging, altering, or removing electronic mail headers is prohibited. You may not reference APX Net or the APX Net network (e.g. by including “Organization: APX Net” in the header or by listing an IP address that belongs to APX Net, APX Net’s supplier’s Networks or the APX Net network) in any unsolicited e-mail even if that e-mail is not sent through the APX Net network or Service.
APX Net Service plans limit the storage of messages on APX Net’s servers to a set number of days and may set a fixed upper limit on the number of messages that you may send or receive through the Service. Neither APX Net nor any of its suppliers shall have any liability for the deletion of, or failure to store, messages or of the mis-delivery of, failure to deliver or the untimely delivery of messages.
APX Net is not responsible for forwarding e-mail sent to any APX Net, .net or other APX Net provided e-mail account which has been suspended or terminated. This e-mail will either be returned to the sender, ignored, deleted, or stored temporarily at APX Net’s sole discretion. In the event that APX Net believes in its sole discretion that any subscriber name, account name, or email address (collectively, an “identifier”) on the Service may be used for, or is being used for, any misleading, fraudulent, or other improper or illegal purpose, APX Net(i) reserves the right to block access to and prevent the use of any such identifier and (ii) may at any time require any customer to change his or her identifier. In addition, APX Net may at any time reserve any identifiers on the Service for APX Net’s own purposes.
Messages posted to newsgroups must comply with the written charters or FAQs for those newsgroups as well as any other terms and conditions applicable to any particular newsgroups or provider of newsgroups. Advertisements, solicitations, or other commercial messages should be posted only in those newsgroups whose charters or FAQs explicitly permit them. You are responsible for determining the policies of a given newsgroup before posting to it. APX Net reserves the right to discontinue access to any newsgroup at any time for any reason. APX Net Service plans limit the amount of newsgroup content that may be downloaded.
You alone are responsible for the contents of your instant messages and the consequences of any instant messages. APX Net assumes no responsibility for the timeliness, mis-delivery, deletion or failure to store instant messages.
Web Site Hosting
As part of the Service, APX Net may provide you with web site hosting, access to web pages that you have developed, and storage space (collectively, “APX Net Web Site Hosting”), or under an applicable Service plan you may provide or obtain your own web site hosting and related services (collectively, “Customer Web Site Hosting”). You are solely responsible for any information that you or others publish or store using APX Net Web Site Hosting or Customer Web Site Hosting, and for the compliance with this Policy of APX Net Web Site Hosting and Customer Web Site Hosting. You must ensure that the intended recipient of any content made available through APX Net Web Site Hosting or Customer Web Site Hosting is appropriate. For example, you must take appropriate precautions to prevent minors from receiving or accessing inappropriate content. APX Net reserves the right to remove, block, or refuse to post or store any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether this material or its dissemination is unlawful. This includes but is not limited to obscene material; defamatory, fraudulent or deceptive statements; threatening, intimidating or harassing statements, or material which violates the privacy rights or property rights of others (copyrights or trademarks, for example). For purposes of this Policy, “material” refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs and scripts, video recordings, and audio recordings. APX Net may remove or block content that you publish or attempt to publish using APX Net Web Site Hosting and terminate your APX Net Web Site Hosting and/or your use of the Service if we determine that you have violated the terms of this Policy. In this case, termination or other charges may apply.
Network, Bandwidth, Data Storage and Other Limitations
You must comply with all current bandwidth, data storage, and other limitations on the Service established by APX Net and its suppliers. You must ensure that your activity (including, but not limited to, use made by you or others of the Service (including Web Site Hosting) does not restrict, inhibit, interfere with, or degrade any other user’s use of the Service, nor represent (in the sole judgment of APX Net) an overly large burden on the network. In addition, you must ensure that your activities do not restrict, inhibit, interfere with, disrupt, degrade, or impede APX Net’s ability to deliver the Service and monitor the Service, backbone, network nodes, and/or other network services.
You further agree to comply with all APX Net network, bandwidth, and data storage and usage limitations established by APX Net in its sole discretion. You must ensure that your bandwidth consumption using the Service does not exceed the limitations that are now in effect or may be established in the future. If your use of the Service results in the consumption of bandwidth in excess of the applicable limitations, that is a violation of this Policy. In such cases, APX Net may, in its sole discretion, terminate or suspend your Service account or request that you subscribe to a version of the Service with higher bandwidth usage limitations if you wish to continue to use the Service at higher bandwidth consumption levels. In the event of termination, termination or other charges may apply.
APX Net is committed to complying with U.S. copyright and related laws, and requires all customers and users of the Service to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Service (or any part of the Service) in any manner that constitutes an infringement of third-party intellectual property rights, including rights granted by U.S. copyright law. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. It is APX Net’s policy in accordance with the DMCA and other applicable laws to reserve the right to terminate the Service provided to any customer or user who is either found to infringe third party copyright or other intellectual property rights, including repeat infringers, or who APX Net believes in its sole discretion is infringing these rights. APX Net may terminate the Service at any time with or without notice for any affected customer or user. In this case, termination or other charges may apply.
Copyright owners may report alleged infringements of their works by sending APX Net’s authorized agent a notification of claimed infringement that satisfies the requirements of the DMCA. Upon APX Net’s receipt of a satisfactory notice of claimed infringement for these works, APX Net will respond expeditiously to either directly or indirectly (i) remove the allegedly infringing work(s) stored on the Service, if housed on a hosted APX Net, Inc Web Site or APX Net-hosted Web Site or (ii) disable access to the work(s). APX Net, Inc will also notify the affected Customer or user of the Service of the removal or disabling of access to the work(s). If the affected Customer or user believes in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then that person may send a counter notification to APX Net Upon APX Net’s receipt of a counter notification that satisfies the requirements of DMCA, APX Net will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA’s procedures with respect to a received counter notification. In all events, you expressly agree that APX Net will not be a party to any disputes or lawsuits regarding alleged copyright infringement.
Copyright owners may send APX Net a notification of claimed infringement to report alleged infringements of their works to:
Heidi Burns Wood, APX Net, Inc
PO Box 842, Berwick, ME 03901
Phone: (207) 752-5014
Copyright owners may view and print a notification of claimed infringement form in HTML format. Complete the form and return it to APX Net. APX Net doesn’t require that you use this form, and copyright owners may use their own notification of claimed infringement form that satisfies the requirements of Section 512(c)(3) of the U.S. Copyright Act. Under the DMCA anyone who knowingly makes misrepresentations regarding alleged copyright infringement may be liable to APX Net, the alleged infringer, and the affected copyright owner for any damages incurred in connection with the removal, blocking, or replacement of allegedly infringing material.
If a notification of claimed infringement has been filed against you, you can file a counter notification with APX Net’s designated agent using the contact information shown above. All counter notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act.
Violation of Acceptable Use Policy
APX Net does not routinely monitor the activity of Service accounts for violation of this AUP. However, in our efforts to promote good citizenship within the Internet community, we will respond appropriately if we become aware of inappropriate use of our Service. Although APX Net has no obligation to monitor the Service and/or the network, APX Net and its suppliers reserve the right at any time to monitor bandwidth, usage, transmissions, and content from time to time to operate the Service; to identify violations of this Policy; and/or to protect the network, the Service and APX Net users.
APX Net prefers to advise customers of inappropriate behavior and any necessary corrective action. However, if the Service is used in a way which APX Net or its suppliers, in their sole discretion, believe violate this AUP, APX Net or its suppliers may take any responsive actions they deem appropriate. These actions include, but are not limited to, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and the immediate suspension or termination of all or any portion of the Service. In this case, termination or other charges may apply. Neither APX Net nor its affiliates, suppliers, or agents will have any liability for any these responsive actions. These actions are not APX Net’s exclusive remedies and APX Net may take any other legal or technical action it deems appropriate.
APX Net reserves the right to investigate suspected violations of this AUP, including the gathering of information from the user or users involved and the complaining party, if any, and examination of material on APX Net’s servers and network. During an investigation, APX Net may suspend the account or accounts involved and/or remove or block material which potentially violates this Policy. In this case, termination or other charges may apply. You expressly authorize APX Net and its suppliers to cooperate with (i) law enforcement authorities in the investigation of suspected legal violations, and (ii) and system administrators at other Internet service providers or other network or computing facilities in order to enforce this Policy. This cooperation may include APX Net providing available personally identifiable information about you to law enforcement or system administrators, including, but not limited to, username, subscriber name, and other account information. Upon termination of your account, APX Net is authorized to delete any files, programs, data and e-mail messages associated with your account.
The failure of APX Net or its suppliers to enforce this AUP, for whatever reason, shall not be construed as a waiver of any right to do so at any time. You agree that if any portion of this Policy is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.
You agree to indemnify, defend and hold harmless APX Net and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) resulting from you engaging in any of the prohibited activities listed in this AUP or resulting from your violation of the AUP or of any other posted APX Net policy related to the Service. Your indemnification will survive any termination of the Agreement.
Revised and Effective October 2020