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Lexsar Solutions, Inc. Customer Agreement

This agreement (“Agreement”) is between Lexsar Solutions, Inc. (“Lexsar”, “we” or “us”) and the user (“you”, “user” or “Customer”) of the Service (“Service”).  This Agreement governs both the Service and any devices, such as Client Access Adapter, or any other IP connection device provided by Lexsar for use in conjunction with the Service (“Adapter”, “Device” or “Equipment”).  BY ENROLLING IN, ACTIVATING, USING OR PAYING FOR THE SERVICE OR DEVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, THAT YOU ARE OF LEGAL AGE, AND THAT YOU AGREE TO BE BOUND BY ALL TERMS HEREIN AND TO USE THE SERVICE IN COMPLIANCE WITH THE LEXSAR ACCEPTABLE USE AND PRIVACY POLICIES POSTED ON OUR WEB SITE WWW.LEXSAR.NET. IF YOU HAVE NOT READ AND UNDERSTOOD THIS ENTIRE AGREEMENT, AND DO NOT AGREE TO BE BOUND BY ITS TERMS, DO NOT USE THE SERVICE OR DEVICE, AND CANCEL THE SERVICE IMMEDIATELY BY CONTACTING LEXSAR VIA E-MAIL AT support@lexsar.net AND STATING YOUR NAME, ACCOUNT INFORMATION AND DESIRE TO CANCEL SERVICE.

1.   SERVICE

1.1   Term

Service is offered on an annual, monthly, daily or hourly basis.  The term for the annual or monthly begins on the date that your Service activates and ends on the day before the same date in the following year or month.  The term for daily begins upon first network log-in and expires at the end of the 24 hour increment.  The term for hourly begins upon first network log-in and expires at the end of the 1 hour increment.  Subsequent terms of the Service can be automatically renewed by you through the on-line web account management tool.  You are purchasing the Service for full year, monthly, daily or hourly terms, meaning that if you attempt to terminate Service prior to the end of the year, monthly, hourly or daily term, you will be responsible for the full charges to the end of the then-current term.  Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.

1.2   Equipment Requirements

The Service requires standard IP based customer premises equipment (“CPE”) which may be provided by Lexsar or by the Customer on a BYOD (Bring Your Own Device) plan pursuant to the terms of this Agreement.  Customer on a BYOD must secure his device. Use of the Service without such equipment is strictly prohibited.  If you elect to provide your own equipment, then you are solely responsible for maintaining it and ensuring that it is compatible with the Service, and you agree that if it is not compatible with, or properly configured for Service, Lexsar may terminate the Service at its sole discretion.  

1.3   Use of Service

If you have subscribed to Lexsar service, the Service is provided to you as a user.  This means that you agree not to, and may not, sell, resell, share or transfer the Service to any other person for any purpose, or make any charge for the use of the Service, without the prior express written permission from Lexsar.  Lexsar reserves the right to (1) immediately terminate the Service, and (2) charge an administrative fee of US$100.00 per day of service during which Customer engaged in prohibited activities, if Lexsar determines, in its sole discretion, that Customer's Service is/was being used for such prohibited activities or in any other manner prohibited by this Agreement. 

1.4   Prohibited Uses of Service

You agree to use the Service only for lawful purposes.  You agree not to use the Service for any unlawful purpose, including for example, using the Service in a way that (1) interferes with our ability to provide Service to you or other customers, or (2) avoids your obligation to pay for the Services.  You also agree not to use the Service for transmitting or receiving any communication or material of any kind which would (1) constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (2) encourage conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law.  Lexsar reserves the right to terminate the Service immediately and without advance notice if Lexsar, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the charges to the end of the current term.  If Lexsar, in its sole discretion believes that you have violated the above restrictions, Lexsar may forward the objectionable material, as well as your communications with Lexsar and your personally identifiable information to the appropriate authorities for investigation and prosecution, and by using the Service you thereby consent to such forwarding.

1.5   Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software

The Service and Device and any firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on Lexsar’s website's) are protected by trademark, copyright or other intellectual property laws and provisions.  All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Lexsar are and shall remain the exclusive property of Lexsar and nothing in this Agreement shall grant you the right or license to use such marks.  You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service.  You expressly agree that the Device is exclusively for use in connection with the Service and that Lexsar will not provide any passwords, codes or other information or assistance that would permit or enable you to use the Device for any other purposes.  If you decide to use the Service through an interface device not provided by Lexsar, which Lexsar reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Lexsar against any and all liability arising out of your use of such interface device with the Service.  You agree not to reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

1.6   Tampering with the Device and Service

You agree not to change the electronic serial number, MAC or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Lexsar in each instance which Lexsar may grant or deny in its sole discretion.  Lexsar reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges.  You agree not to disrupt or hack the Service or to make or attempt to make any use of the Service that is inconsistent with its intended purpose.

1.7   Theft of Service or Device

You agree to notify Lexsar immediately, in writing or by calling the Lexsar customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used.  When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service.  Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. 

1.8   Fair Access Policy

To ensure fair Internet access for all Lexsar subscribers, Lexsar maintains a Fair Access Policy (FAP). This policy establishes an equitable balance in Internet access for all Lexsar subscribers. Lexsar assigns a download threshold to each service plan that limits the amount of data that may be continuously downloaded within specified time periods. Subscribers who exceed this limit will experience a temporary reduction of speed.

2.   WARRANTIES

THE TERM “LEXSAR” AS USED IN THIS SECTION SHALL MEAN LEXSAR SOLUTIONS, INC. AND ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS AND ANY OTHER SERVICE PROVIDER THAT FURNISHES SERVICES OR DEVICES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE OR THE DEVICE.

LEXSAR MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.  LEXSAR DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTIONS, ERROR, AND DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION.  LEXSAR DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.  IF CUSTOMER PURCHASED THE DEVICE NEW FROM LEXSAR AND THE DEVICE INCLUDED A LIMITED WARRANTY AT THE TIME OF PURCHASE, CUSTOMER MUST REFER TO THE SEPARATE LIMITED WARRANTY DOCUMENT FOR INFORMATION ON THE LIMITATION AND DISCLAIMER OF SUCH WARRANTY.  IF CUSTOMER’S DEVICE DID NOT INCLUDE A LIMITED WARRANTY FROM LEXSAR AT TIME OF PURCHASE, CUSTOMER AGREES THAT IT ACCEPTS THE DEICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT.  THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST LEXSAR TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.

3.  CHANGES TO THIS AGREEMENT

Lexsar may change the terms and conditions of this Agreement from time to time.  Changes to this Agreement supersede all previously agreed to electronic and written Terms and Conditions.  IF YOU CONTINUE TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICES AFTER ANY CHANGES IN THE PRICES, CHARGES, AND/OR TERMS AND CONDITIONS HAVE BEEN MADE, YOU AGREE TO THE CHANGES. 

4.  CHARGES/PAYMENTS AND BILLING RESOLUTION

4.1 Charges

Customer must be at least 18 years old.  The current price list and fee structure for the Service (“Charges”) is acknowledged and is posted at www.lexsar.net.  Lexsar reserves the right to change Charges at any time.  Customer agrees to pay all Charges to Customer’s Account in accordance with billing terms in effect at the time the Charge becomes payable.  We will bill all charges on a monthly basis, including but not limited to: activation fees, monthly Service fees, surcharges, and applicable taxes, disconnection fees, advanced feature charges, equipment purchases and shipping and handling charges.  Customer agrees to provide Lexsar with accurate and complete billing information, including legal name, email ID, address, telephone number and credit card/billing information, and to report to Lexsar all changes to this information within thirty (30) days of any change, including any change in the expiration date of Customer’s credit card. The Charge is due and payable in advance of the respective billing period for which the Customer has purchased Service.  Delinquent accounts may be suspended or canceled at the sole discretion of Lexsar.  Lexsar may bill an additional charge to reinstate a suspended or canceled account.

4.2 Payments

Lexsar accepts payments by credit card.  Some plans may allow for the invoicing of services and payment by personal check.  Your initial use of the Service authorizes Lexsar to charge all amounts due Lexsar as stated in the Agreement on the credit card account number on file with Lexsar, or on any other credit card provided by Customer if the original card expires or is replaced.  This authorization will remain valid until 30 days after Lexsar receives your written notice terminating Lexsar’s authority to charge your credit card.  Lexsar may terminate your Service at any time, in its sole discretion, if any charge to your credit card on file with Lexsar is declined or reversed, if your credit card expires and you have not provided Lexsar with a new valid and approved credit card, or in case of any other non-payment of account charges.  Termination of Service for a declined or expired credit card, reversed charges or non-payment leaves you fully liable to Lexsar for all charges accrued before termination and for costs incurred by Lexsar to collect all monies owed by Customer. 

4.3 Billing Resolution

In order to resolve service, support or billing issues regarding the Service or to receive further information regarding the use of the Service, Customer should contact Lexsar Customer Service Department by email at support@lexsar.net, or you may call Lexsar at 1-573-374-2288.  All Charges are considered valid unless disputed in writing within 60 days of the billing date.  Adjustment will not be made for Charges that are more than 60 days old.

5. ACCEPTABLE USE POLICY

All Customers of the Service agree to and must comply with the Acceptable Use Policy (“AUP”) posted at www.lexsar.net.  Customer represents and agrees that Customer has reviewed those materials. Customer acknowledges that there is content on the Internet or otherwise available through the Service which may be offensive, or which may not be in compliance with all local laws, regulations and other rules. Lexsar assumes no responsibility for and exercises no control over the content contained on the Internet or is otherwise available through the Service. All content accessed or received by the Customer is used by Customer at his or her own risk, and Lexsar and its employees shall have no liability resulting from the access or use of such content by the Customer.

6. SYSTEM AND NETWORK SECURITY

Lexsar is committed to maintaining a public network for ease of use and makes no guarantees or representations regarding the security of its network. Lexsar recommends the use of personal firewall software and a VPN client to attach to private networks. Lexsar support routable IP addresses to all connection types to support a corporate VPN.

7. PRIVACY:  MONITORING THE SERVICE

Lexsar is under no obligation to monitor the Service, but Lexsar Solutions Inc. may do so from time to time and Lexsar may disclose information regarding Customer’s use of the Services for any reason and at its sole discretion in order to satisfy applicable laws, regulations, governmental requests, or in order to operate and deliver the Services in an effective manner, or to otherwise protect Lexsar and its customers. Lexsar agrees to comply with the terms of Lexsar Privacy Policy as set forth on Lexsar Web site, as it may be amended from time to time.

8.  RESTRICTIONS

Customers agree not to run any servers in conjunction with the Services, including but not limited to, electronic mail, NAT, DHCP and DNS servers. In the event any Lexsar Customer attempts to utilize a server on the network, Lexsar may, at its sole discretion, increase the fees associated with the Service, or terminate the Service.

9.  TERMINATION/DISCONTINUANCE OF SERVICE


Lexsar reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion.  If Lexsar discontinues providing the Service generally, or terminates or suspends your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges.  If your Service is terminated or suspended for any stated reason, including without limitation violation of any terms of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Lexsar or of a third party provider to which Lexsar is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee if applicable, all of which immediately become due, payable and chargeable to your credit card.

10.  Disclaimer of Liability

THE SERVICES PROVIDED BY LEXSAR ARE PROVIDED “AS IS.” LEXSAR MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT LEXSAR EXERCISES NO CONTROL OVER THE NATURE, CONTENT OR RELIABILITY OF THE INFORMATION AND/OR DATA PASSING THROUGH ITS NETWORK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LEXSAR ITS DEALERS, AGENTS, CONTRACTORS OR EMPLOYEES SHALL CREATE A WARRANTY AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. LEXSAR MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE QUALITY, ACCURACY OR VALIDITY OF THE INFORMATION AND/OR DATA RESIDING ON OR PASSING THROUGH ANY NETWORK. USE OF ANY INFORMATION AND/OR DATA OBTAINED FROM OR THROUGH SERVICES PROVIDED BY LEXSAR WILL BE AT CUSTOMER’S OWN RISK. CUSTOMER ACKNOWLEDGES THAT LEXSAR IS NOT LIABLE FOR ANY ERRORS OR INTERRUPTION IN THE INSTALLATION PROCESS OR IN PROVIDING THE SERVICES, WHETHER WITHIN OR OUTSIDE THE CONTROL OF LEXSAR UNDER NO CIRCUMSTANCES SHALL THE CUSTOMER HOLD LEXSAR RESPONSIBLE FOR ANY FORM OF DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSSES) SUFFERED FROM, BUT NOT LIMITED TO ERRORS, DELAYS, LOSS OF INFORMATION, DELAYS IN THE INSTALLATION OR PROVISIONING PROCESS, OR INTERRUPTIONS IN THE SERVICES CAUSED BY THE CUSTOMER, LEXSAR OR A THIRD PARTY’S NEGLIGENCE, FAULT, MISCONDUCT OR FAILURE TO PERFORM. CUSTOMER UNDERSTANDS THAT TELECOMMUNICATION AND/OR NETWORK ACCESS SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED OR UNSCHEDULED MAINTENANCE AND FOR OTHER REASONS WITHIN AND OUTSIDE OF THE DIRECT CONTROL OF LEXSAR UNDER NO CIRCUMSTANCES DO ANY SUCH ERRORS, DELAYS, INTERRUPTIONS IN SERVICES OR LOSS OF INFORMATION NULLIFY OR MODIFY THESE TERMS AND CONDITIONS. LEXSAR RESERVES THE RIGHT TO REFUSE OR TERMINATE SERVICES TO A CUSTOMER AT ANY TIME WITHOUT CAUSE. THE INTERNET CONTAINS UNEDITED MATERIALS, WHICH MAY BE SEXUALLY EXPLICIT, OR MAY BE OFFENSIVE TO YOU OR OTHERS ACCESSING THE SERVICES. LEXSAR HAS NO CONTROL OVER SUCH MATERIALS AND ACCEPTS NO RESPONSIBILITY FOR SUCH MATERIALS.

CUSTOMER UNDERSTANDS THAT THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICE, EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO CUSTOMERS COMPUTERS) OR OTHER HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON.  SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES.  LEXSAR SOLUTIONS, INC. SHALL NOT HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, HARDWARE, DATA OR FILES.

 Except for the refund or credit as expressly provided in Section 6, in no event (including negligence) will Lexsar be liable for any direct, indirect, incidental, special or consequential damages arising out of the use of or inability to use the Service, action taken to protect the Service or the breach of any warranty. 

11. Assignment and Successors in Interest

Customer may not assign his/her rights under this Agreement without Lexsar prior written consent.

12.  Mandatory Arbitration

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT (BUT NOT ANY CLAIMS ARISING OUT OF COMMERCIAL ACTIVITIES OR THE THEFT OR OTHER UNAUTHORIZED RECEIPT OF ANY LEXSAR SERVICES ON THE PART OF THE CUSTOMER) SHALL BE RESOLVED BY BINDING ARBITRATION COMMENCED WITHIN ONE YEAR UNDER THE THEN-CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (OR ANY CONSUMER RULES ADOPTED BY THE AMERICAN ARBITRATION ASSOCIATION TO WHICH BOTH PARTIES AGREE), EXCEPT THAT EITHER PARTY MAY SEEK EQUITABLE OR INJUNCTIVE RELIEF ONLY IN AN APPROPRIATE COURT OF LAW OR EQUITY.  NO CLAIM SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MAY BE COMBINED WITH A CLAIM SUBJECT TO RESOLUTION BEFORE COURT OF LAW OR EQUITY.  THE ARBITRATION OF DISPUTES SHALL BE DETERMINED BY THE ARBITRATOR.  ANY AWARD OF THE ARBITRATOR SHALL BE IN WRITING AND SHALL STATE THE REASONS FOR THE AWARD.  JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION.  THE ARBITRATOR SHALL NOT HAVE THE POWER TO AWARD ANY DAMAGES IN EXCESS OF THE APPLICABLE LIMITS SET FORTH IN OR EXCLUDED UNDER SECTIONS 5 AND 12 OF THIS AGREEMENT.  THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1 TO 16, SHALL GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS PARAGRAPH.  EACH PARTY SHALL BEAR ITS OWN EXPENSES AND THE COST OF ARBITRATOR'S) SHALL BE SHARED EXCEPT THAT CUSTOMER MAY RECOVER HIS/HER FILING AND ARBITRATOR'S)’ FEES IF CUSTOMER IS THE PREVAILING PARTY.  THE PARTIES EXPRESSLY WAIVE ANY ENTITLEMENT TO ATTORNEYS’ FEES OR PUNITIVE DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW.  CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT BE PERMITTED.  THE ARBITRATOR SHALL NOT HAVE THE POWER TO ORDER PRE-HEARING DISCOVERY OF DOCUMENTS OR THE TAKING OF DEPOSITIONS, BUT MAY COMPEL ATTENDANCE OF WITNESSES AND THE PRODUCTION OF DOCUMENTS AT THE HEARING.

13. Indemnification 

Customer shall indemnify and hold Lexsar harmless against any and all claims, including attorneys’ fees, arising out of or related in any way to the use of the Service.  Lexsar is not responsible for losses, damages and liabilities resulting from, rising out of, or connected with any breach of, or non-fulfillment of any representation, warranty, covenant or agreement made by or other obligation of Customer contained in this Agreement.

14.  Venue/Choice of Law

This Agreement shall be construed in accordance with the laws of the State of Kansas (excluding rules regarding conflicts of law) and the United States of America. In the event of any dispute, the parties submit to the personal jurisdiction of and venue in the Superior Court of the state of Kansas and the federal courts located in Johnson County KS.

15. Entire Agreement

This Agreement, the Acceptable Use and Privacy Policy and other Customer policies posted on Lexsar Solutions Web site constitute the entire agreement and understanding concerning the use of the Service between the Customer and Lexsar may revise, amend or modify this Agreement and other Customer policies and agreements, at any time and in any manner. 

Last Updated 2/3/2010

 

 

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