Netzon Internet and Netzon.net (“ISP”)
End User Internet Access Terms of Service
By calling to access the Internet, Subscriber,
and/or any person using Subscriber's login identification name or login
identification names ordered by Subscriber, is deemed to have accepted the
items and conditions contained in this Internet Access Agreement (the "Agreement")
and shall be bound thereby.
1) DEFINITIONS
a) "Subscriber," as used herein, means
an individual, a corporation, or a legal entity who incurs usage charges
for the Service for its own use or who incurs such charges on behalf of
a third party, i.e., a User.
b) "User," as used herein, means a
Subscriber who uses Service or an individual, a corporation, or a legal
entity whose Service usage charges are incurred by a third party, i.e.,
Subscriber.
2) SERVICE
ISP, affiliated companies, including VISP Technologies,
and/or assigns, herein "ISP", will provide Subscriber and its
Users analog or digital access to the Internet, depending upon the rate
plan selected (the "Service"), subject to conditions generally
beyond the control of ISP, including the type and condition of the equipment
(personal computer, modem, etc.) of Subscriber and/or its Users. Service
may be temporarily unavailable or limited because of capacity limitations
and may be temporarily interrupted or curtailed due to equipment modifications,
upgrades, relocations, repairs, and similar activities necessary for the
proper operation of Service.
3) ACCEPTABLE USAGE OF DIAL-UP ACCOUNTS
Subscriber and its Users agree to use dial-up
accounts solely on an active, attended "dial-up" basis, meaning
only as needed and in no way on an unattended, standby or inactive basis
in order to maintain a connection. Without limitation of the foregoing,
Subscriber and its Users shall abide by the following provisions regarding
usage:
a) A dial-up account may be used for World Wide
Web browsing, reading or posting to Usenet (see Section 13 below) newsgroups,
sending, receiving and reading electronic mail and transferring files via
the file transfer protocol.
b) A dial-up account shall not be used to host
a dedicated server site on the Internet.
c) A dial-up account has only one mailbox for
incoming electronic mail unless additional mailboxes have been purchased
(unless ISP has provided additional mailboxes, at ISP's sole discretion).
d) Automated processes may not be used such as
checking e-mail or pinging the host to maintain a constant connection.
e) User ID Names will be issued to Subscriber
by ISP based upon availability. If the User ID name is surrendered by Subscriber
for any reason, ISP shall not be obliged to reserve that name.
f) ISP shall not be obligated to retain electronic
mail for longer than one month.
g) A dial-up account has 25 megabytes of server
space for Personal Subscriber web pages unless additional web space has
been purchased or otherwise expressly allocated. And no such space shall
be available for accounts that are promotional until they become billable
accounts (unless such space is made available during the promotional period,
at ISP's sole discretion).
h) User accounts that exceed reasonable dial-up
access usage may be flagged by ISP for the following (The industry average
for a dial-up account is about 35 hours a month or about an hour a day):
1) Upgrade to higher-use or dedicated-use accounts, subject to payment of
a higher subscriber rate, or 2) Transfer to non-usage-sensitive networks,
or 3) Charged for multiple logins, or 4) Deletion, in which case a refund
of unused months will be promptly provided; as determined by ISP.
4) ACCEPTABLE USAGE OF BROADBAND ACCOUNTS
In order to provide Subscribers with a quality
service and the best possible value, Subscriber agrees that access services
are not to be left unattended for extended periods using file sharing applications
such as Kazaa, Limewire, or Bittorrent. These services hog bandwidth and
increase costs to provide bandwidth to all Subscribers. Server software
such as ftp servers, web servers, or other always-on, high, sustained bandwidth
services and any other current or future technology or method for utilizing
a significant portion of the capacity of the delivered access circuit for
a sustained period of time are permitted with appropriate pricing that reflects
the cost to provide the service. Subscribers who require such services can
get pricing for sustained use circuits will be quoted on a case-by-case
basis from ISP and/or from ISP's partner providers.
5) INACTIVITY DISCONNECT POLICY
ISP reserves the right to disconnect a dial-up
account after 15 minutes of inactivity, as detected by ISP through electronic
means. This time is approximate and subject to change without notice in
ISP's sole discretion. Electronic or mechanical means to avoid an inactivity
disconnect are strictly prohibited. Electronic or mechanical means include,
but are not limited to, "pinging" the mail server, employing electronic
or software autodialer features to maintain an active connection or repeatedly
checking for e-mail by autolog-in to the mail server. ISP reserves the right
to electronically audit connections to enforce the above requirements.
6) ACCESS
Service access will be provided via a local telephone
number where available. ISP is not responsible for any toll or other charges
in the event service access is not provided via a local telephone number,
for instance, if service access is provided via a toll call. If a local
telephone number is not available, the Service may be remotely accessed
via an 800 series number at an additional charge.
7) PRICE
Subscriber shall pay to ISP the charges associated
with the rate plan selected, including applicable taxes, 800 series number,
etc. If service access is not provided via a local telephone number, Subscriber
may also be responsible for toll or other charges.
8) PAYMENT
Subscriber shall be billed on a monthly, quarterly,
semiannual or annual basis. Payment will be deemed made when received by
ISP.
9) TERM AND TERMINATION
This Agreement becomes effective upon registration of Subscriber's login identification name and shall remain in effect for the period indicated in the rate plan selected or until terminated as provided herein. This Agreement shall continue in effect for consecutive additional terms following the Initial Term until either Party gives the other party notice of termination. Notice of termination shall be made by email, written letter or in person prior to the end of the Service period of the then current term.
If the Subscriber notifies ISP of their wish to terminate this agreement, the agreement is not considered terminated, until Subscriber receives a Cancellation Number from ISP. The Cancellation Number is the only acceptable verification that Service has been terminated.
10) CREDIT/REFUND POLICY
There are no refunds, partial or in-full, for
your account setup fee, the current month's or any previous month's membership
fee. If you have prepaid for additional months of membership, you may be
entitled to a refund for subsequent prepaid months.
11) LIMITATION OF LIABILITY
ISP SHALL NOT BE LIABLE FOR INTERRUPTIONS CAUSED
BY FAILURE OF EQUIPMENT OR SERVICES NOT PROVIDED BY ISP, FAILURE OF COMMUNICATIONS,
POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE CONTROL OF
ISP, NOR SHALL ISP BE LIABLE FOR PERFORMANCE DEFICIENCIES CAUSED OR CREATED
BY SUBSCRIBER'S OR ITS USER'S EQUIPMENT. SUBSCRIBER AND USER HEREBY RELEASE
ISP FROM LIABILITY ARISING FROM ANY CONTENT ACCESSED VIA THE SERVICE. ISP
PERFORMANCE UNDER THIS AGREEMENT SHALL BE EXCUSED IN CASE OF LABOR DIFFICULTIES,
GOVERNMENTAL ORDERS, CIVIL COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS
OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. ISP SHALL NOT BE LIABLE
IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR
ALTERATION OF SUBSCRIBER'' OR ITS USERS''EQUIPMENT, RENDER THE SAME OBSOLETE
OR OTHERWISE AFFECT ITS PERFORMANCE. IN NO EVENT SHALL ISP BE LIABLE FOR
ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT
NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY,
LOSS OF USE, ETC. THE LIABILITY OF ISP FOR ACTUAL PROVEN DAMAGES FOR ANY
CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION
OF SERVICE, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT OR IN TORT
OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO AN AMOUNT EQUIVALENT
TO CHARGES PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE SERVICE DURING
THE PERIOD SUCH DAMAGES OCCUR. ISP MAKES NO OTHER WARRANTIES OR REPRESENTATIONS,
EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICE, AND EXPRESSLY DISCLAIMS
WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE WARRANTY OF MERCHANTABILITY
AND ANY OTHER WARRANTY IMPLIED BY LAW.
12) INDEMNITY
Subscriber and User shall indemnify and hold
harmless ISP from and against any loss, cost, claim, liability, damage,
or expense (including reasonable attorney's fees) to third parties, relating
to or arising from the use of service by Subscriber, User, or any of their
personnel, whether or not Subscriber or User has knowledge of or has authorized
such access or use, including, without limitation, claims for libel, slander,
invasion of privacy, infringement of copyright, patent infringement (where
Subscriber or User has used, connected, or combined the Service with the
products or services of others), negligence, or tortious behavior. Subscriber
agrees to indemnify ISP along with any parties from whom ISP obtains network
service, and to hold them harmless from any claims resulting from the use
of the Service by Subscriber or its Users that damage another party or that
violate the law.
13) SUBSCRIBER RESPONSIBILITY
Subscriber shall ensure that its Users shall
comply with the terms and conditions of this Agreement. Any access to other
networks connected to ISP's network must comply with the rules of the other
networks. Subscriber shall not use or permit its end users to use the Services
in ways that violate laws, infringe the rights of others, interfere with
users of our network or other networks, or otherwise violate our Acceptable
Use Policy set forth on our Internet Services web site. For example, you
shall not distribute chain letters or unsolicited bulk electronic mail ("spamming");
propagate computer worms or viruses; use a false identity; attempt to gain
unauthorized entry to any site or network; distribute child pornography,
obscenity or defamatory material over the Internet; or infringe copyrights,
trademarks or other intellectual property rights. Subscriber further agrees
to comply with
14) USE OF SERVICE
Subscriber and its Users agree to abide by and
comply with the following terms and conditions:
a) Misuse of Service: Subscriber and its Users
shall not use the Service to make foul or profane expressions, to impersonate
another person with fraudulent or malicious intent, to contract another
person so as to annoy, abuse, threaten, or harass such other person, or
for any purpose in violation of law, or in such a manner as to interfere
unreasonably with the use of the Service by any of ISP's customers. Subscriber
and its Users shall not distribute chain letters of "junk" mail
(any unsolicited mail of a business or commercial nature) or engage in "Ponzi"
or "pyramid" schemes. The Service and underlying network may only
be used for lawful purposes. Transmission of any material in violation of
any
b) INTERFERENCE WITH THE RIGHTS OF THIRD PARTIES
In the event that ISP receives notice from a
third party, or in the event that ISP reasonably believes, that Subscriber's
or any User's use of the Service, either alone or in connection with products
or services of others, constitutes, causes, results in, induces or contributes
to either (I) defamation, invasion of privacy, or unfair competition, or
(ii) misuse, misappropriation of infringement of any patent, copyright,
trademark, trade secret or other proprietary or intellectual property right
of such third party, then ISP shall have the right, in its sole and exclusive
option and discretion, without prior notification to Subscriber or to User(s),
and without limiting any other rights or remedies ISP might have or incurring
any obligation or liability to Subscriber or to User(s), to temporarily
discontinue or permanently terminate, in whole or on part, furnishing of
Services to Subscriber or to User(s).
c) Usenet Policy and Posting Restrictions: Usenet
comprises a system of bulletin boards called newsgroups. Usenet access is
provided to dial-up customers of ISP. Subscriber and its Users shall not
post to newsgroups until they have familiarized themselves with the subjects
and established guidelines and restrictions of the newsgroup. All such Usenet
guidelines and restrictions are hereby incorporated herein by reference
and Subscriber and its Users unconditionally agree to adhere to them. These
guidelines and restrictions include, but are not limited to, the following:
- Only post articles that are relevant to the
newsgroup. Inappropriate or irrelevant postings are not appreciated by participants
of newsgroups nor are they allowed under Usenet protocols.
- Most newsgroups do not allow commercial postings.
Users should verify this restriction before making any such posting.
- Blanket postings to all or large numbers of
newsgroups simultaneously with disregard to the newsgroups' subject are
forbidden.
- Chain letters are not allowed to be posted.
- Unauthorized creation of newsgroups is prohibited.
d) Harm to Equipment, Software and Processes:
Subscribers agree unconditionally to not cause harm to ISP or third party
equipment, software, or processes used in connection with furnishing the
Service. In addition to constituting a default under this Agreement, any
breach of this provision may result in civil and/or criminal penalties pursuant
to applicable local, state and federal law.
e) Content, Accuracy of Information: ISP and
its affiliates, along with any parties from whom ISP obtains network services,
exercises no control whatsoever over the content of the information passing
through ISP's network. ISP makes no warranties of any kind, whether express
or implied, for the content of the information passing through its network.
Use of any information obtained via the ISP network is at Subscriber's and
its User's own risk or the risk of their affiliates. ISP specifically denies
any responsibility for the accuracy or quality of information obtained through
its Service.
f) Offensive and/or Harmful Information: The
Internet hosts some material deemed unfit for viewing and reading by minors
under the age of 18. Some sites contain information both in text and graphical
formats that Subscriber and/or Users may consider obscene and/or harmful.
Subscriber and/or Users agree to not hold ISP responsible for sites and
postings that could be considered obscene, lewd, offensive, and/or harmful.
Subscribers are responsible for their own monitoring and viewing habits
and their Users, including minors. ISP does not block, filter or screen
postings or sites on the Internet in whole or in part.
g) Inactive email accounts will have their storage
area purged and incoming email will be automatically suspended if service
is not used for a continuous 6 month period. Upon resumption of use, email
services will automatically be re-enabled.
15) DEFAULT
Upon a default by Subscriber, ISP may, in its
sole discretion, without prior notification and without limiting its remedies
or incurring any liability to Subscriber, either temporarily discontinue
or permanently terminate the furnishing of Service to Subscriber in whole
or in part. "Default" means any failure by Subscriber to comply
with any term of this Agreement, including without limitation, failure to
make timely payment of any amount due ISP or failure to comply with the
restrictions on use of Service set forth in Section 13. Where Subscriber's
equipment is used with Service provided by ISP in violation of any of the
provisions herein, ISP will notify Subscriber and take such action as is
necessary for the protection of the Service for use by its other customers.
Subscriber shall discontinue such use of the equipment or correct the violation
immediately and shall confirm in writing to ISP within five days that such
use has ceased or that the violation has been corrected, and if Subscriber
fails to do so, ISP will disconnect Subscriber's Service, without any credit
allowance, until such time as Subscriber complies with the provisions hereof.
ISP reserves the right to charge a reconnect fee for any discontinued Service
that is subsequently reconnected.
16) NO WARRANTIES
ISP makes no warranties, express or implied with
respect to this agreement or the services provide with respect to this agreement,
including, but not limited to dialup, dsl, internet access, email, news
services, web hosting services, personal web space, spam filtering, virus
filtering or any other services provided pursuant to this agreement. There
are no implied warranties for the merchantability and fitness for any particular
purpose. No representation or statement made by ISP or any of its agents
or employees, oral or written, including, but not limited to, any specifications,
descriptions or statements provided or made to Customer by ISP shall be
binding upon ISP as a warranty or otherwise.
17) EQUIPMENT
Subscriber shall be responsible to provide for
the proper installation, operation, and maintenance of Subscriber's equipment
used in connection with the Service, and Subscriber shall ensure that such
equipment is technically and operationally compatible with the Service and
in compliance with applicable Federal Communications Commission rules and
regulations.
18) RESOLUTION OF DISPUTES:
a) The parties desire to resolve disputes arising
out of this Agreement without litigation. Accordingly, except for action
seeking a temporary restraining order or injunction related to the purposes
of this Agreement, or suit to compel compliance with this dispute resolution
process, the parties agree to use the following alternative dispute resolution
procedure as their sole remedy with respect to any controversy or claim
arising out of or relating to this Agreement or its breach.
b) At the written request of a party, each party
will appoint a knowledgeable, responsible representative to meet and negotiate
in good faith to resolve any dispute arising under this Agreement. The parties
intend that these negotiations be conducted by non-lawyer, business representatives.
The location, format, frequency, duration, and conclusion of these discussions
shall be left to the discretion of the representatives. Upon agreement,
the representatives may utilize other alternative dispute resolution procedures
such as mediation to assist in the negotiations. Discussions and correspondence
among the representatives for purposes of these negotiations shall be treated
as confidential information developed for purposes of settlement, exempt
from discovery and production, which shall not be admissible in the arbitration
described below or in any lawsuit without the concurrence of all parties.
Documents identified in or provided with such communications that are not
prepared for purposes of the negotiations are not so exempted and may, if
otherwise admissible, be admitted in evidence in the arbitration or lawsuit.
c) If the negotiations do not resolve the dispute
within 60 days of the initial written request, the dispute shall be submitted
to binding arbitration by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. A party may demand
such arbitration in accordance with the procedures set out in those rules.
Discovery shall be controlled by the arbitrator and shall be permitted to
the extent set out in this section. Each party may submit in writing to
a party, and that party shall so respond, to a maximum of any combination
of 35 (none of which may have subparts) of the following: interrogatories,
demands to produce documents and requests for admission. Each party is also
entitled to take the oral deposition of one individual of another party.
Additional discovery may be permitted upon mutual agreement of the parties.
The arbitration hearing shall be commenced within 60 days of the demand
for arbitration. The arbitration shall be held in Josephine County, Oregon.
The arbitrator shall control the scheduling so as to process the matter
expeditiously. The parties may submit written briefs. The arbitrator shall
rule on the dispute by issuing a written opinion within 30 days after the
close of hearings. The times specified in this section may be extended upon
mutual agreement of the parties or by the arbitrator upon a showing of good
cause. Judgement upon the award rendered by the arbitrator may be entered
in any court having jurisdiction.
d) Each party shall bear its own costs of these
procedures. A party seeking discovery shall reimburse the responding party
the costs of production of documents ( to include search time and reproduction
costs). The parties shall equally split fees of the arbitration and the
arbitrator.
19) MISCELLANEOUS
This Agreement shall be governed
by, construed under, and enforced in accordance with, the laws of the state
of