Internet Service Agreement and Acceptable
This agreement by and between WARP DRIVE NETWORKS, INC., located
at 590 Valley Health Plaza, Paramus, NJ 07652 and the PERSON and/or COMPANY
which uses the services provided by WARP DRIVE hereinafter known
as CUSTOMER. This agreement supersedes any previous or original
agreement, oral or written, if such agreement exists.
Now, therefore, in consideration of the mutual covenants and
conditions herein contained and further considerations the parties
hereto do agree as follows:
Whereas, WARP DRIVE agrees to allow the customer access to certain
available networks and resources provided by WARP DRIVE, and whereas
the following terms, conditions shall apply:
1. CUSTOMERS RESTRICTIONS AND DUTIES:
Warp Drives services are only to be used for lawful purposes.
Any transmission or re-transmission of material in violation of
any Federal, State or local laws and/or regulations is expressly
prohibited. Warp Drive does not censor or monitor use of its
network(s) and represents that it has no liability to censor and/or
monitor the data transmitted over its network(s). Customer
agrees to indemnify Warp Drive from any claims or torts arising
out of customers use of Warp Drive services.
As a Warp Drive customer, you may not sell, assign or transfer
your service order without prior written consent of Warp Drive.
Warp Drive may at any time sell, assign or transfer this agreement
The provision of Warp Drives services and/or products is
subject to Warp Drives continuing approval of customer credit-worthiness.
All Warp Drive customers shall furnish financial information as
Warp Drive may, from time to time, request such information for
a re-evaluation of customer credit-worthiness.
Warp Drive exercises no control whatsoever over the content of
the information passing through Warp Drive. Warp Drive makes no
warranties of any kind, expressed or implied, for the service
it is providing. Warp Drive also disclaims any warranty of merchantability
or fitness for a particular purpose Warp Drive will not be responsible
for any damage suffered. This includes loss of data from delays,
nondeliveries, misdeliveries, or service interruptions caused
by its own negligence or your errors or omissions. Use of
any information obtained via Warp Drive is at your own risk. Warp
Drive specifically denies any responsibility for the accuracy
or quality of information obtained through its services.
Any access to other networks connected to Warp Drive must comply
with the rules appropriate for that network. Use of Warp Drive
itself may be for any lawful purpose. Use of Warp Drive for lawful
commercial purposes is both permitted and encouraged.
2. WARP DRIVE OBLIGATIONS AND DUTIES:
During the terms hereof, Warp Drive shall, subject to the terms
and conditions set forth herein, provide customer with access
to the Internet through Warp Drive. Any and all access to other
networks via Warp Drive must be in compliance with all policies
and rules of those networks. Warp Drive exercises no control whatsoever
over the content of any information passing through it. Stated
bandwidths apply only to customer to Warp Drive router port. No
guarantee to end-to-end bandwidth on the Internet is made or implied.
Warp Drive cannot guarantee the peering sessions between our customers
and other non-Warp Drive companies and/or networks.
3. WARP DRIVE SUPPLIED HARDWARE/SOFTWARE:
Title and property rights, including intellectual property rights
to services, are and shall remain with Warp Drive whether or not
they are embedded in any programming, software and/or hardware.
The customer recognizes that Warp Drives services and/or
products, programming and software hereunder constitute valuable
trade secrets of Warp Drive. The customer will use its best efforts
to protect and keep confidential any an all programming and software
used by it and shall never make any attempt to copy, examine,
in any way alter, re-engineer, tamper with, or otherwise misuse
such services, programs, hardware, etc.. . Warp Drive also disclaims
any warranty of merchantability or fitness for a particular purpose
Warp Drive will not be responsible for any damage suffered due
to software provided by Warp Drive.
4. NON-WARP DRIVE SUPPLIED HARDWARE/SOFTWARE:
Physical equipment and/or software products that are NOT provided
by Warp Drive are the responsibility of customer. Warp Drive will
not be responsible for the installation, service or support of
equipment and/or software that was not provided by Warp Drive.
Customer is responsible for the use and compatibility of hardware
and software not provided by Warp Drive. In the event that customer
uses hardware and software not provided by Warp Drive that impairs
customers use of Warp Drives services, customer shall nonetheless
be liable for payments to Warp Drive. Upon notice from Warp Drive
that the hardware and/or software not provided by Warp Drive is
causing or, in the sole opinion of Warp Drive, is likely to cause,
hazard, interference, or service obstruction, customer shall eliminate
the hazard interference or service obstruction immediately. Customer
will, if necessary, pay Warp Drive to troubleshoot problems caused
by such equipment and/or software not provided by Warp Drive.
Warp Drive will not be responsible if any changes in hardware,
software or services, cause equipment not provided by Warp Drive
to become obsolete, require modification or alteration, or in
any other way affect the total performance of Warp Drive on an
end-to-end basis and protect the Warp Drive backbone network and
those networks attached to the Warp Drive network. In the case
of customer owned hardware and/or software connected to Warp Drive
network, customer is totally responsible for any and all service
to that equipment. Warp Drive, at its option, can supply technical
services in the form of consulting and/or service to Warp Drive
customers at their request. Such services are billed at rates
set forth on the Warp Drive pricing sheet and/or rates that are
in effect at the time such services are requested. Warp Drive
has the right to refuse any such technical services at its
sole desecration. On leased telephone lines, no matter who the
leasing party is, Warp Drive must have free and open access to
such lines. This will allow Warp Drives operations people
to test and isolate most types of trouble that the customer and/or
Warp Drive might experience.
The term of this agreement is defined by the customers
billing choice and will appear on the customers invoice
and nowhere else within this document. This agreement automatically
renews unless canceled by customer sixty(30) days prior to contract
expiration/renewal. Automatic renewal includes customers who choose
to pay by credit card. This means that at then end of the customer
billing period (30 days, 6 months, 12 months...) the customer
agrees to allow Warp Drive to renew their service agreement by
charging the service fees to their credit card automatically each
billing period until termination of customers account. Warp
Drive reserves the right to terminate service without prior notice
for any customer for any reason it deems necessary including but
not limited to; the transmission of illegal content or materials,
the use of Warp Drive services for illegal practices, E-MAIL or
Usenet news SPAMMING, attempt to steal Warp Drive services or
services from other Internet networks or commercial services provided
over the Internet.
Rates are set forth on the Warp Drive PRICING and ORDER form.
Prices for delivery of service are FOB nearest or best suited
POP for connection. Warp Drive reserves the right to change its
rates by notifying customer within forty-five(45) days in advance
of the effective changes. Warp Drive will provide forty-five(45)
days written notice of an increase in base prices. Following a
mailing of a notice of an increase in base prices, customer shall
have ten days from the effective date of the increase to provide
Warp Drive with a written request to terminate service. In such
a case customer shall incur no termination fees. If customer does
not give notice of its intent to terminate, customers existing
service shall be billed at the new base prices. If customer elects
to terminate, said termination will be effective thirty days following
receipt of customers notice to terminate, and customer will be
responsible for all charges during said thirty day period at the
rate previously charges to customer.
Payment for a given period of service is due prior to the 1st
of the first month of that billing period. Acceptance of services
is defined by successful login into Warp Drive and/or the transmission
of IP packets over Warp Drives network. These charges are
NONREFUNDABLE. Customer will be invoiced on the first day of the
billing period on a Net 10 days basis. If services are suspended
or interrupted for non-payment, there will be a restoration charge
of $10.00 and all overdue charges must be paid prior to service
reinstatement. No services will be restored until all amounts
are paid in full. Warp Drive will reconnect customers service
as quickly as able to do so after payment has been received. All
late payments will be subject to an interest fee of 1.5% per month.
This policy will be strictly enforced. Customer will pay all applicable
sales and use taxes as well as all duties or levies on products
Accounts are in default if payment is not received ten days after
due date. If customers check is returned to Warp Drive unpaid,
customer is immediately in default and is liable for a returned
check charge of $25.00 Accounts in default are subject to immediate
service interruption or termination. Such interruption or termination
does not relieve customer from the obligation to pay the monthly
charge and any past due amounts.
Processing of your order begins when your deposit is received.
Billing for your Warp Drive service will normally commence immediately.
However, in certain circumstances billing may occur when an Warp
Drive hub and a functioning telephone circuit are prepared to
route packets to your site.
Payment for dial-up Internet services entitles customer to 80
hours of timed access to the Internet, 3 E-Mail addresses and
up to 15 megabytes of disk space for E-Mail and up to 5 megabytes
of disk space on Warp Drive servers to be used for personal Web
site space. Personal Web space refers to non-commercial content
only. Personal Web site space is permitted a maximum of 3000 hits
per month, additional hits may be billed at $0.015 per hit. Each
'userID' is permitted one login session at a time. Multiple simultaneous
login sessions for a single userID may result in a $10.00 charge
for each occurance. This agreement does not entitle the customer
to an unlimited Internet access service.
Prompt payment of services qualifies Customer to receive one(1)
free month of access in the event that the user experiences a
busy signal when dialing into an Warp Drive access point. One(1)
free month refers to a maximum credit of $19.95 per month. The
maximum of 5 free months can be issued due to busy signals per
calendar year. This offer is null and void if the user does not
contact an Warp Drive representative or leave a voice mail message
in the technical support mail box within one hour of the incident.
The free month of access is also null and void if the Warp Drive
technical logs show that a busy signal due to all lines being
busy was not possible at the time reported by the customer. The
free month policy is also null and void in the case that the busy
signal was due to technical problems related to Bell Atlantic
facilities. Customer may qualify for only one free month per month.
These terms and conditions supersede all previous representations,
understandings or agreements and shall prevail notwithstanding
any variance with terms and conditions of any other order submitted.
Use of Warp Drive constitutes acceptance of these terms and conditions.
To terminate contractual and/or long-term service, customer must
provide Warp Drive with 30 days written notice of termination.
In case of early termination of any contract or order customer
will pay according to the following formula:
(Number of months in service) * ((next lowest contractual pricing)
- (actual contractual pricing))
i.e. If customer ordered a one year contract and paid X per month,
and decided to cancel three months into the contract, the customer
would be liable for the difference between X and the monthly contract
price Y times the number of months actually in service.
In the event of termination of this agreement Warp Drive may:
A. Declare all amounts owed to Warp Drive hereunder to be immediately
due and payable.
B. Deny customer further access to the internet through Warp
Drive hereunder without liability on the part of Warp Drive to
9. LIMITATION OF LIABILITY:
In no event shall Warp Drive be liable to customer for any damages
resulting from or related to any failure or delay of Warp Drive
in providing access to the Internet under this agreement. It is
expressly understood and agreed that Warp Drive has not made any
guarantees or promises with regard to the exact date of the complete
installation and operational status of customer.
Warp Drive shall not be liable to customer for any delays in
the performance of services hereunder or for the failure to perform
hereunder if such delays or failures are due to strikes, inclement
weather, acts of god, or other causes beyond Warp Drives
reasonable control. Warp Drive will not be responsible for performance
of its obligations hereunder where delayed or hindered during
war, riots, embargoes, strikes, or other acts of its vendors
and suppliers, concealed acts of workman (whether of Warp Drive
or others) or accidents. Warp Drive will attempt to notify customer
in the event of any of the foregoing occurrences should any such
occurrence continue for more that 30 days, Warp Drive or customer
may cancel service for the affected services and/or products with
no further liability.
In no event shall Warp Drive be liable to customer for any indirect,
special or consequential damages or lost profits arising out of
or related to this agreement, the performance or breach thereof,
or the accuracy or correctness of databases or the information
contained therein, even if Warp Drive has been advised of the
Any claim or legal action arising out of failure, malfunction
or defect in Warp Drive services or goods, or arising from this
contract in any respect, shall be brought to light within a period
of one year following the occurrence of said claim or said claim
shall be deemed waived. Warp Drives liability to customer
hereunder, if any, shall, in no event, exceed the total amount
customer paid to Warp Drive hereunder.
Warp Drive will not be responsible for any damages suffered by
customer in anything related to this agreement. These damages
may include, but are not limited to, loss of data resulting from
delays, nondeliveries, wrong deliveries, and any and all service
interruptions caused by Warp Drive and its employees by
its own negligence or customers errors or omissions.
10. INDEMNITY AND HOLD HARMLESS:
As a customer of Warp Drive, and as a user or its services,
your company agrees to indemnify and to hold harmless Warp Drive
from any and all claims resulting from your use of the service
which causes damage to you any other party. Warp Drive shall not
be liable, neither in contract or in tort, for protection from
unauthorized access of its customers transmission facilities
or customer owned remise equipment, or for unauthorized access
to or alteration of, or theft or destruction of, a customers data
files, programs or information, through accident, fraudulent means
or devices, or any other method, even should such access occur
as a result of Warp Drives negligence.
Warp Drive shall not be liable in any way responsible for claims
or damages caused by customer, through fault, negligence or failure
to perform customers responsibilities, claims against a customer
by any other party, any act of omission of any party furnished
services and/or products; or for the installation and/or removal
of any equipment supplied by any service provider or Warp Drive.
11. DISCLAIMER OF WARRANTIES:
Warp Drive makes no warranties, express or implied, including,
but not limited to, any warranties or merchantability of fitness
for any particular purpose.
These terms and conditions cannot be modified except by written
notice from Warp Drive or by written amendment signed by both
parties. No agent, employee or representative of Warp Drive has
the authority to bind the parties to any representation or warranty
unless such is specifically included in this agreement, the Warp
Drive internet service order form, or with a written amendment
thereto. Notice to parties of disputes arising under this agreement
shall be sent by registered mail to the parties at the address
shown on the most recent services order.
13. ENTIRE AGREEMENT:
This agreement is the sole agreement between the parties relating
to the subject matter hereof and supersedes all prior understandings,
writings, proposals, representations or communications, oral or
written, of either party.
This agreement shall be interpreted in its entirety in
accordance with the laws of the State of New Jersey.
By using the services provided by Warp Drive you acknowledge
that you understand that title 18 of the United States code prohibits
fraud by wire, including illegal use of services such as telephone,
telegraph, etc., and that using Warp Drive' service facilities
with an intent to commit fraud, is a federal offense punishable
by a fine up to $50,000 and up to one(1) year in prison.
15. POSSIBLE ADDITIONAL PHONE CHARGES:
WARNING: We do not warrant or promise that any of the following
numbers are local to you. In particular, we urge you to note even
an access number that shares your area code or appears to be located
in your general geographic region may not necessarily be a local
number to you. Substantial toll telephone charges may apply to
numbers that you do not verify as local to your individual area
or calling plan.
Your local telephone company can tell you whether any of the
below telephone numbers are in fact local to you. We urge you
to check with your local telephone company before selecting a
number from below.