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1.
YOU AGREE TO
USE ALL SERVICES AT YOUR OWN RISK. ALL SERVICES ARE PROVIDED
AS IS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND
UNLESS REQUIRED BY APPLICABLE LAW. THE COMPANY SPECIFICALLY
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE
COMPANY BE LIABLE FOR ANY LOSS, LOSS OF DATA, OR OTHER DAMAGE,
INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR OTHER DAMAGES. THIS INCLUDES LOSS OF DATA
RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERIES, AND
ANY AND ALL SERVICES INTERRUPTIONS CAUSED BY THE COMPANY
PARTIES OR YOUR ERRORS OR OMISSIONS. TO THE FULLEST EXTENT
PERMITTED BY LAW, YOU WAIVE AND RELEASE ALL CLAIMS AND CAUSES
OF ACTION ACCRUED AT ANY TIME AND WHETHER KNOWN ON UNKNOWN,
AGAINST THE COMPANY AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, SUPPLIERS,
SUCCESSORS AND ASSIGNS (THE "COMPANY PARTIES") FOR ANY AND ALL
LOSS AND DAMAGE CAUSED IN WHOLE OR PART BY THE COMPANY PARTIES
AND/OR YOUR USE OF THE SERVICES. IF THIS WAIVER AND RELEASE IS
NOT GIVEN FULL EFFECT, THEN THE TOTAL AMOUNT OF ANY LIABILITY
OF THE COMPANY PARTIES, INCLUDING ALL ATTORNEY'S FEES AND
COSTS, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU
FOR THE SERVICES (EXCLUDING AMOUNTS PAID FOR OTHER GOODS OR
SERVICES PROVIDED BY THE COMPANY OR ITS AFFILIATES) FOR THE
ONE MONTH PRECEDING THE COMPANY'S RECEIPT OF WRITTEN NOTICE OF
YOUR CLAIM.
2.
All services
provided to the subscriber by the company may only be used for
lawful purposes. Transmission or storage of any information,
data, or material in violation of U.S. Federal or state
regulation or law is prohibited. This includes, but is not
limited to, material protected by copyright, trade secret, or
any other statute, threatening material, or obscene material.
The subscriber agrees to indemnify and hold harmless the
company from any claims resulting from the subscriber's use of
the service which damages either the subscriber or another
party or parties.
3.
You agree to
protect and indemnify the Company against any and all
liability, loss or expense arising from any breach by you of
any agreement related to the services, claims of libel, unfair
competition, unfair trademarks, trade names or patents,
violations of rights of privacy and infringement of copyrights
and property rights resulting from your use of the access and
other services provided by the Company.
4.
You agree
that your username and password and changes to both of these
items are your responsibility.
5.
The modems
utilized by the Company to provide Dial-up Services are
engineered for speeds up to 56k flex connectivity. However,
the Company cannot guarantee a 56k connection if telephone
company facilities or your modem are unable to support this
connection speed.
6.
The Company
shall not be responsible for any long distance charges
incurred while using its Internet Service. Each customer is
responsible for choosing a dial-up number that is designated
as a local call. If a local number is not available, or if the
customer chooses an incorrect number that is not designated as
a local call, the Company shall in no event be liable for any
long distance charges billed to the customer.
7.
You
acknowledge that the registration of a domain name confers no
legal right(including any trademark right) to that name, as
set forth in InterNIC regulations or similar regulations. Any
domain name associated with a closed account for which no
alternative name service has been arranged will be
unregistered.
8.
The Company
reserves the right to change its rates and otherwise modify
the terms and conditions of this Agreement at any time without
prior notice. In the event that you wish to terminate your
account, you, the customer, must either postal mail or fax the
Company a written request to terminate services. This
Agreement hereby supercedes all previous representations,
understanding, or agreements, written or oral, by or between
you and the Company, and shall prevail notwithstanding any
variance with terms and conditions of any and all orders
submitted.
9.
The Company
reserves the right to take whatever actions we deem
appropriate to enforce these policies. The Company also
reserves the right to change these policies without prior
notice at any time. The actions the Company takes may include
account suspension or termination. The Company does not issue
any credits for accounts cancelled due to policy violations.
The Company reserves the right to refuse service to anyone at
anytime for any reason.
10.
You
understand that the services provided by the Company may be
interrupted for several reasons. These include, but are not
limited to, malfunctions, maintenance, and improvement or as
required to protect network resources in the event of
malfunctions or misuse. You understand that it may not be
possible for you to receive advance notification of any such
interruption of service. The Company shall not be liable for
any delay in or failure to perform the services caused by
circumstances beyond its control such as those occasioned by
other companies or organizations, acts of God or other causes,
or which it could not have reasonably foreseen or any other
cause, which similarly impedes the providing of service.
11.
You agree
that this service is governed by the Laws of the
State/Province in which the Company resides. You agree that
the County in which the Company is located shall be the forum
for any legal action relating to the services provided.
12.
Any Internet
activity, which references back to the Company or its services
in a damaging manner, will result in suspension or termination
of account(s). Illegal Internet activity using or referencing
to the Company or an account or services provided by the
Company will result in immediate termination, possible
prosecution, and assessment of legal fees accrued.
13.
Use of the
Company's services and the access of your Internet account by
you as a company and/or an individual constitutes acceptance
of this Agreement in full. This Agreement is effective when
you first use the Company's services, including but not
limited to access to the Internet, and continues until service
terminated by either party. If this Agreement is terminated by
either party, you are still responsible for any charges on
your account.
14.
There is no
discount for the Company to forward your email or website, if
you choose to terminate your account with the Company. For
this reason, it is recommended that you continue your account
with the Company for as long as necessary for forwarding
purposes. As long as the Company forwards your email or
website, you will need to continue your account with the
Company.
15.
The Company
bills for most services in advance. Purchasers of the
Company's services agree to be bound by the Uniform Consumer
Credit Code of the State in which the Company resides. A
service charge of 1 1/2% per month will be charged on all past
due amounts. If your account is referred to collection,
purchaser agrees to pay any collection costs incurred
including reasonable attorney's fees, filing fees and court
costs.
16.
Unless
otherwise requested, billing statements will be sent via
e-mail. If you wish to have your billing statement sent to you
via postal mail, you will be assessed a $5.00 fee for each
bill sent to you.
17.
Personal or
commercial checks for monthly subscription services are due
before the first day of each month. All returned checks are
subject to a $40 returned check fee.
18.
All credit
cards will be charged automatically for each billing period.
If you dispute a valid credit card charge levied by the
Company, your account with the Company will be disabled and
you will be charged a $40.00 service fee. The subscriber
agrees to pay all billed amounts according to the card issuer
agreement until the subscriber cancels the account.
19.
Any partial
use of service constitutes a minimum of a one month charge.
20.
Accounts
disabled are subject to a $5.00 reactivation fee. Accounts
will not be reactivated until this fee is received by company.
21.
As a
subscriber to the Company's services, you are not permitted to
use your Internet connection to sell or advertise goods or
services. This is only permitted to those who have purchased a
business account or a virtual server.
22.
With respect
to dial-up accounts, the Company's usernames are limited to
one dial-in at a time. Multiple concurrent dial-ins using the
same username are not permitted. This limitation does not
apply to email or any other aspect of your account. Abuse and
violation of the rules may result in termination without
refund.
23.
If you have
not purchased dedicated services, you are not permitted to use
your dial-up account to continually connect to the Internet
for web/ftp/mail or other services. Unlimited accounts are not
dedicated accounts and do not provide for fixed connectivity
of unlimited duration. The Company reserves the right to
disconnect users who are idle or have been connected for an
exorbitant amount of time (approximately in excess of 150
hours per month, the general industry standard for determining
abuse, or an excessive use per day exceeding a normal work
day). The Company has implemented an abuse prevention program
and has the discretion to apply network management techniques,
idle timers, maximum concurrent connect timers, and other
management tools to monitor and disconnect any user who abuses
the policy and remains connected for excessive periods through
implementing improper techniques or otherwise violating the
Company's policies. These parameters may be changed at any
time at the Company's discretion. If you require a dedicated
connection, you should notify the Company, which may offer a
dedicated connection in your area.
24.
The use of
your account to send out any bulk and/or unsolicited e-mail,
commercial or otherwise (spamming), is strictly prohibited.
Bulk e-mail (spamming) is defined as identical or similar
e-mail messages sent to 25 or more recipients where such
e-mail has not been specifically requested by the recipient.
Any violation of this policy may result in the immediate
termination of your account, at the sole discretion of the
Company. If you violate this spamming policy, you will be
assessed the following fines and penalties, which you hereby
agree to pay:
a.
First
offense: $100.0
b.
Second
offense: $500.00
c.
Third
offense: $500.00 and automatic termination of your account.
25.
The posting
of any advertisement or other commercial solicitation to any
newsgroup is prohibited. The Company reserves the right to
determine whether a post constitutes an advertisement or
commercial solicitation. The posting of a single article or
substantially similar articles to an excessive number of
newsgroups or mailing lists, or continued posting of articles
that are off-topic is strictly prohibited. A posting will be
considered off-topic when it provokes complaints from the
regular readers of the newsgroup or is deemed so by the
Company. A violation of this policy will result in the
immediate termination of your account.
26.
Impersonating another user or otherwise falsifying one's user
name in e-mail or any post to any newsgroup or mailing list is
strictly prohibited.
27.
In addition
to any other fees and penalties that may be assessed by the
Company, as provided herein, you shall be held liable for any
and all costs incurred by the Company as a result of your
violation of any terms and conditions of this Agreement. This
includes, but is not limited to, attorneys' fees and costs
resulting from Postmaster responses to complaints from and the
cleanup of unsolicited commercial mailings and/or unauthorized
bulk mailings and/or news server violations. The Company's
current hourly rate for Postmaster responses to complaints and
cleanup of unsolicited commercial mailings and/or unauthorized
bulk mailings and/or news server violations is US $100 per
hour, with a minimum one (1) hour charge, plus US $1 for each
bulk-email or Usenet message sent, plus US $1 per complaint
received. These rates are subject to change at any time
without notification.
28.
You are not
permitted to resell or redistribute the Internet connection to
other parties.
29.
In the event
you want to cancel the Service, you must notify the Company in
writing thirty (30) days prior to such cancellation. This
notice must either be faxed or mailed to the Company or
otherwise delivered in accordance with the Company’s policies.
30.
The
subscriber certifies that he or she is 18 years of age or
older.
31.
The company
shall have the right to suspend or cancel service to the
subscriber at any time, and for any reason, without notice.
32.
As used in
this Customer Use Agreement, the term the "Company" refers to
NetFX, Inc.
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