Terms of Service

Any individual or entity receiving any product or service from CommFunction, LLC, formally known as Netcomm Internet Technologies, Inc. shall hereafter be referred to as "Customer". By accepting products and/or services provided by CommFunction, LLC, Client agrees to observe and abide by all of the provisions, terms, and requirements specified in this agreement. Customer's use of the services constitutes acceptance of this agreement. The term "CommFunction" includes all agents, employees, officers, directors, subcontractors, and assignees of CommFunction, LLC, a subsidiary of Wired Waters, Inc.

COMMFUNCTION AND CUSTOMER AGREE that the following terms and conditions will govern the services provided by CommFunction to Customer under this Agreement.  All contracts, schedules and other appendices signed now or at some future date are incorporated in its terms.  WHEREAS, CommFunction currently offers the following services that may be amended, added or deleted at anytime and from time to time without notice:

·          Internet Access Services

·          Voice Over IP / Video Over IP

·          Wide Area Networking

·          Server Co-Location

·          Web Hosting Services/Development

·          Consulting

·          Network Support Services

WHEREAS, Customer is desirous of certain aspects of these services. NOW THEREFORE, the parties agree as follows:

Section 1.  Scope of Terms and Conditions and Arranging for Services

1.1           This Agreement establishes the terms and conditions under which CommFunction will provide services to Customer as well as the process for you to obtain services from us.  Each of the services ordered by Customer is subject to our acceptance and availability of resources to provide the requested services.  CommFunction reserves the right to reject any order.

1.2           CommFunction will provide the services at the rates as set forth on CommFunction’s current Fee Schedule pursuant to the terms and conditions.  CommFunction specifically rejects any terms and conditions which may appear on any service order or otherwise not specifically agreed.  Neither Customer nor CommFunction will be bound by any order until CommFunction accepts it, but at that time, both Customer and CommFunction will be bound by these terms & conditions.

Section 2.  Term

This Agreement shall commence on the date of delivery of services and shall extend for a term of one year, unless sooner terminated as provided herein. Additional services added by addendum shall extend the term of this agreement to the expiration date of the longest addendum, or it’s renewal term.  At the expiration of the term, the Agreement may be extended on the same conditions and terms contained herein by agreement of the parties.  Unless otherwise agreed, this agreement, at the end of the initial term, becomes a month-to-month agreement with the use of the services as acceptance of the agreement term.

Section 3.  Charges and Payments

3.1                 For services provided under this Agreement, Customer shall pay all fees, including the monthly service fees, setup fees, and any other fees, as identified in CommFunction's then-current Fee Schedules incorporated by reference within each agreement for Addendum Services. All amounts are due within 30 days from the date of our invoice, delivered to CommFunction at the address stated on the invoice.  Invoices under this Agreement will be sent to your address as specified by you.  Failure to provide an accurate billing address does not relieve Customer from obligation to pay for services. Unless otherwise agreed in writing, all fees are subject to change without notice.  When you provide a check as payment, you authorize us to use information from the check to make a one-time electronic fund transfer from your account or to process the payment as a check transaction. You authorize us to collect a fee ($40 or 5% of check face plus a bank fee if allowed by state law) through electronic fund transfer from your account if your payment is returned unpaid.

3.2                 Unless otherwise provided in an Addendum Services, all fees are due in advance. Customer shall be liable for any monthly fee in full even if service is terminated before the end of the month.  If Customer fails to pay all outstanding bills more than seven (7) days after the due date, Customer is liable for a thirty-five dollar ($35.00) administrative surcharge, and Customer may have its account and/or work suspended. In the event services are interrupted, a reconnect fee of $25 will apply.  Suspension of an account and/or work does not relieve Customer from its obligation to pay any and all accrued fees, charges and costs due to CommFunction  Suspended service may be resumed by CommFunction, at CommFunction’s sole discretion, after CommFunction has received full payment of all amounts due.  Past due amounts are subject to an interest rate charge of one and one-half percent (1.5%) per month from the date of invoice, or the maximum rate permitted by law.  Customer agrees to pay all costs of collection, including reasonable attorneys' fees and collection agency fees.

3.3                 All fees and charges are exclusive of any and all handling charges and taxes that may be incurred or assessed by any jurisdiction.  All such charges and taxes are the responsibility of Customer.

Section 4.  Customer Agrees to Abide by CommFunction Operating Policies

Customer agrees that it shall abide by CommFunction’s operating policies, which may be amended from time to time at CommFunction’s sole discretion, and Customer agrees to indemnify, hold harmless and defend CommFunction against any claims arising from Customer’s failure to follow these guidelines:

·          Customer agrees not to post or transmit any message anonymously or under a false name.

·          Customer agrees not to post or transmit any message which is libelous, defamatory or which discloses private or personal matters concerning any person.

·          Customer agrees not to post or transmit any message, data, image or program that is illegal.

·          Customer agrees not to post or transmit any message, data, image or program that would violate the intellectual property rights of others.

·          Customer agrees not to interfere with use of the Internet by any other CommFunction Customers or other users.

·          Customer agrees not to post or transmit any file which contains viruses, worms, "Trojan horses" or any other destructive features, regardless whether damage is intended or unintended by Customer.

·          Customer agrees not to post or transmit any message that is harmful, threatening, abusive or hateful.

·          Customer agrees not to list or send unsolicited mass e-mailings.

·          Customer agrees that its account shall be used solely by Customer.  Regardless whether Customer has actual control over the acts of third parties, Customer agrees that it has the last clear chance to avoid usage by third parties, and Customer indemnifies and holds CommFunction harmless for their usage.

Section 5.  System Security

5.1           Customer is prohibited from utilizing our services to compromise our security or to tamper with our system resources or accounts on any of our computers, routers, terminal servers, modems, or other equipment at our site or any other.  Use or distribution of tools designed for compromising security is prohibited.  Examples of the tools include, but are not limited to, password guessing programs, cracking tools, or network probing tools.  Any attempt to access our corporate assets is strictly prohibited.

5.2               In order to assist in resolving security incidents, we reserve the right to release your name to other system administrators.  We will also fully cooperate with law enforcement officials in investigating suspected violations.

Section 6:  Offensive or Adult Materials

6.1           CommFunction does not endorse adult content material of any kind.  Otherwise, CommFunction exercises no control over the content of materials, including but not limited to email, chat sessions, Usenet news postings, web pages or other content produced by users/subscribers, accessed through the Internet, including via CommFunction's network.  Some materials may be defamatory, inaccurate, abusive, obscene, profane, sexually oriented, threatening, racially offensive, discriminatory, or illegal and may be offensive to certain groups of individuals.  If customer allows a child under 18 years of age to access service to CommFUNCTION's network through customer's account, a parent or legal guardian must authorize such use verifying that the parent or legal guardian understands that the child will have access to such materials and that CommFUNCTION accepts no responsibility of monitoring and and/or controlling such access.

6.2           Customer agrees not to publish on or through CommFunction's network any such offensive material described above, or to conduct business, activities or solicit activities prohibited by law.

6.3           Customers operating Web sites or online services directed to children or operators of Web sites or online services who have actual knowledge that the person from whom they seek information is a child, agrees:

6.3.1    To post prominent links on their Web sites to a notice of how they collect, use, and/or disclose personal information from children;

6.3.2   To notify parents that they wish to collect information from their children and obtain parental consent prior to collecting, using, and/or disclosing such information;

6.3.3   Not to condition a child's participation in online activities on the provision of more personal information than is reasonably necessary to participate in the activity;

6.3.4   To allow parents the opportunity to review and/or have their children's information deleted from the operator's database and to prohibit further collection from the child; and to establish procedures to protect the confidentiality, security, and integrity of personal information they collect from children.

6.4.          Customer, by agreeing to the terms and conditions of this Agreement, releases CommFunction from all claims, including but not limited to those under the Children's Online Privacy Protection Act (15 U.S.C. 6501 et seq), arising from Customer's and other individuals' exposure to material that you or such other individuals may find offensive.

Section 7.  Indemnification

Customer agrees to defend, indemnify and hold CommFunction and its affiliates harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, relating to or arising from, any violation of this Agreement by Customer or those who access the service through Customer's account, or the use of the services or the Internet and the placement or transmission of any message, information, software, audio files or other materials on the Internet by Customer or by those who have access to the services through Customer's account.

Section 8.  CommFunction’s Monitoring and Termination Rights 

8.1           The parties expressly recognize that CommFunction cannot and does not screen content provided by any Internet users of the Service, however, the parties agree that CommFunction has the right, but not the obligation, to remove from its server or block access over the Internet to any Communications and materials that CommFunction believes, in its sole discretion, violate any of the policies enunciated in Section 4, or any laws of any jurisdiction served by CommFunction. The parties also agree that CommFunction may, in its sole discretion, terminate Customer’s account for any violation of the policies enunciated in Section 4.

8.2           CommFunction may disclose information regarding Customer's use of the Service to comply with applicable laws, including without limitation the Electronic Communications Privacy Act (18 U.S.C. 2701 et seq.), to comply with appropriate government requests, to operate CommFunction systems properly or to protect CommFunction or its customers.

8.3           CommFunction will cooperate with law enforcement authorities in investigating suspected lawbreakers.  CommFunction reserves the right to report to law enforcement any suspected illegal activity of which it becomes aware.

8.4           If CommFunction receives a complaint or otherwise becomes aware of any possible violation of this Agreement, it may, in its sole discretion, initiate an investigation.  Customer agrees to cooperate with any such investigation.

8.5           Customer agrees that Customer may be liable for any damage to CommFunction, CommFunction's equipment, or CommFunction's system that is associated with the delivery of the Service as well as any damage to third parties, in the event Customer engages in any conduct that is Commonly referred to as access violations (hacking/cracking), data theft, spamming, mass emailing, junk emailing, "mail bombing," "news-bombing," automated bulk mailing of messages, content or Communications or any other prohibited activity listed in this Agreement.

8.6           WHEN USING SERVICES, DATABASES, COMPUTER SYSTEMS OR WEB SITES OF OTHERS PROVIDED VIA COMMFUNCTION'S NETWORK, CUSTOMER AGREES TO COMPLY WITH ANY OF THEIR COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW OR PROPRIETARY RIGHTS.

Section 9.  Liability Limitations

THE SERVICES AND GOODS PROVIDED BY COMMFUNCTION ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND TO CUSTOMER OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; AND 7) TITLE.  CUSTOMER AGREES THAT ANY EFFORTS BY COMMFUNCTION TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY COMMFUNCTION WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.  CUSTOMER FURTHER AGREES THAT COMMFUNCTION SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF COMMFUNCTION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO CUSTOMER'S WEB SITE BY CUSTOMER OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES.

Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states CommFunction's liability is limited to the full extent permitted by law.

Section 10.  CommFunction Not Liable for Delays or Defaults

CommFunction shall not be liable for delays or defaults in furnishing goods or services, if such delays or defaults on the part of CommFunction are due to:

·          Acts of God or of a public enemy;

·          Acts of the United States or any state or political subdivision thereof;

·          Fires, terrorist acts, severe weather, hurricanes, tornadoes, floods, earthquakes, natural disasters, explosions or other catastrophes;

·          Embargoes, epidemics or quarantine restrictions;

·          Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind;

·          Delays of supplier or delay of transportation for any reason;

·          Causes beyond the control of CommFunction in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Customer reporting problems or furnishing information or materials.  Acceptance of delivery of goods or services shall constitute a waiver and release of CommFunction by Customer for any claim for damages, setoff, discount or other liability on account of delay.

Section 11.  Third Party Transactions at Customer’s Peril

The parties expressly recognize that CommFunction does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with CommFunction.  CommFunction does not make any express or implied warranties, representations or endorsements to Customer or any third party whatsoever with regard to any information, products or services provided through CommFunction and obtained or contracted over the internet, including, without limitation, warranties of: 1) merchantability; 2) fitness for a particular purpose; 3) effort to achieve purpose; 4) quality; 5) accuracy; 6) non-infringement and 7) title.  CommFunction shall not be liable to customer or any third party for any cost or damage arising either directly or indirectly from any transaction involving third parties’ information, products or services.  Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Customer.  In such jurisdictions, CommFunction’s liability is limited to the full extent permitted by law.

Section 12.  Downloading of Data or Files at Customer’s Peril

The parties expressly recognize that CommFunction cannot and does not guarantee or warrant that files available for downloading through CommFunction will be free of infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. Customer agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Customer’s particular requirements for accuracy of data input and output, and for maintaining a means external to CommFunction for the reconstruction of any lost data. The parties also expressly recognize that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Customer, and access to such materials by Customer is done at Customer’s sole risk. 

Section 13.  Termination  

13.1               Continuing Obligations.  Any termination pursuant to this Agreement or the Addendum Services provided herein shall not relieve either party of obligations previously incurred, including but not limited to payment of fees and warranty, confidentiality, and indemnities as provided herein.

13.2               Material Breach.  Subject to the provisions of this Section 8, in the event of a material breach either party may terminate this Agreement without liability by giving the other, defaulting party written notice of the breach and the non-defaulting party's intention to terminate the Agreement on thirty (30) days written notice unless said breach is cured.  If, prior to such termination date, the defaulting party cures the breach, then the notice of termination shall be withdrawn and this Agreement shall continue.  Otherwise, the Agreement will terminate automatically effective on the thirty-first day after notice. 

13.3             Cancellation.  Cancellation by Customer prior to installation is subject to a Disconnect/Cancellation Fee of $200 plus a 20% restocking fee for any equipment, hardware or software purchased for the Customer.  The Customer shall have the option to unilaterally terminate this agreement by giving CommFunction advance 30-day written notice of its intention to terminate on the condition that the services provided are actually disconnected on or before the termination date and, within 30 days of the termination, the Customer fully pays the balance due on the Customer's account as of the date of termination, plus any Disconnect/Cancellation Fees due and 50% of the monthly charges remaining for the first-year term only. In addition, any equipment that was provided free of charge, must be returned to CommFunction within 30 days of the termination.

13.4              Post-Termination Rights

13.4.1     Fees Owed to CommFunction.  After termination by any party for any reason, CommFunction shall retain the right to recover all accrued charges due and owing by Customer to CommFunction.

13.4.2  Customer’s Continued Indemnification.  Customer’s indemnification of CommFunction under provisions within this Agreement and any Addendum herein shall survive expiration or earlier termination.

Section 14.  Confidential Information

14.1             Confidentiality.  Each party may be given access to confidential or proprietary information of the other (“Proprietary Information”).  The parties each agree to maintain in confidence the Proprietary Information of the other with the same standard of care which the receiving party uses to safeguard its own proprietary information, but in no event less than reasonable care, if the Proprietary Information is furnished on a confidential basis and marked or identified as confidential or proprietary when first disclosed.  The obligations herein will not apply to any Proprietary Information which (i) is or becomes available to the public order than by breach of this Agreement by the receiving party, (ii) is rightfully received by the receiving party from a third party without confidentiality limitations, (iii) is independently developed by the receiving party’s employees, or (iv) is known to the receiving party without any restriction as to use or disclosure prior to first receipt of same from the disclosing party.

Section 15.  Release of News, Information and Advertisement  

Neither party shall, without the prior written consent of the other, release any information to which the Agreement applies nor make any news releases or public announcements relating to the terms of this Agreement.

Section 16.  Notices

All notices shall be in writing and shall be deemed given when personally delivered or sent by registered mail, return receipt requested, postage prepaid, or by facsimile, cable or telex confirmed by letter, addressed as follows:

If to CommFunction, LLC:

                                CommFunction LLC

                                P.O. Box 1521

Port Salerno, FL 34992

Tel: (772) 324-2000

                                Fax: (772) 324-2002

If to Customer:  to such other address as either party may hereafter designate in writing by like notice.

Section 17.  General

17.1         No delay on the part of either party in exercising any of its respective rights hereunder or the failure to exercise the same nor the acquiescence in or waiver of a breach of any term, provision or condition of this Agreement shall be construed to operate as a waiver of any such rights or acquiescence thereto, except for the specific instance of delay, waiver or acquiescence.

17.2         This Agreement and the rights and obligations hereunder may not be assigned by Customer without the prior written consent of CommFunction.

17.3         This Agreement is deemed to have been entered into in Florida, and its interpretation, construction and remedies for its enforcement or breach are to be applied in accordance with the laws of the State of Florida without reference to principles of choice and conflicts of laws.

17.4            Section and paragraph headings used in this Agreement are for convenience only and are not to be deemed or construed to be part of this Agreement.

17.5       Customer is responsible for payment of all Local, State or Federal taxes, surcharges or fees due for services and products provided by CommFunction. These charges are subject to change and will be adjusted on Customer’s bill as necessary. If Customer is tax exempt appropriate documentation must be provided to CommFunction to make the appropriate adjustments to billing and reporting.

17.6         This Agreement does not create an agency, joint venture or partnership between CommFunction and Customer.  Neither party shall impose or create any obligation or responsibility, express or implied, or make any promises, representations or warranties on behalf of the other party, other than as expressly provided herein.

17.7         If any term or provision of this Agreement, or the application thereof to any person or under any circumstance, shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such terms to the persons or under circumstances other than those as to which it is invalid or unenforceable, shall be considered severable and shall not be affected thereby, and each term of this Agreement shall be valid and enforceable to the fullest extent permitted by law.  The invalid or unenforceable provisions shall, to the extent permitted by law, be deemed amended and given such interpretation as to achieve the economic intent of this Agreement.

Section 18.  Arbitration  

                Customer and CommFunction each agree that any dispute regarding this Agreement shall be submitted to arbitration to and shall be resolved in accordance with the rules of the JAMS/Endispute for expedited cases then in effect.  The arbitrator(s) shall be mutually selected by the parties or in the event the parties cannot mutually agree, then appointed by JAMS/Endispute.  Any arbitration shall be held in Martin County, Florida and the arbitrator(s) shall apply Florida law.  Judgment upon any award rendered by the arbitrator(s) shall be final and may be entered in any court of competent jurisdiction.  The court and/or arbitrator(s) shall award costs and expenses (including reasonable attorney’s fees) to the prevailing party in any litigation or arbitration.

Section 19.  Entire Agreement 

This Agreement, together with the Appendices or Addendums referred to herein, constitutes the entire Agreement and understanding of the parties with regard to the matters covered and herein have merged all prior and collateral representations, promises or conditions, whether oral or written.  No amendment or modification of any of the provisions contained herein shall be binding upon either party unless made in writing and signed by a duly authorized representative of each party.