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Internet Access Subscription Agreement
UPDATED: 1 jAN 2002
This document and all attachments hereto constitute the terms of an Internet access subscription agreement between you ("Customer") and BottomLine Solutions, Inc. ("ISP"). By establishing an account with ISP or using the services of ISP, Customer agrees to be bound by the terms of this Agreement and to use the services of ISP in accordance with the terms of this Agreement. If Customer does not agree to the terms and conditions of this Agreement or to future modifications hereof by ISP, Customer shall not use, or shall terminate its use of, ISP=s system.
1. Customer's Representations to ISP. Customer represents and warrants to ISP as follows:
a. Customer is over 18 years of age, and has been advised by ISP that there is commercially available software which allows Internet users to filter out a substantial portion of the pornographic material available through the Internet.
b. Customer has been advised that ISP's services require ISP's access to continuous telephone services over which ISP has no control, and that although ISP has made commercially reasonable efforts to ensure continuity of the services provided under this Agreement, ISP does not guaranty uninterrupted or error-free service to Customer.
c. Customer has been advised that ISP may, in its discretion, make maintenance equipment resets resulting in the temporary disconnection of the services provided hereunder. ISP will attempt to make such temporary disconnections primarily between the hours of and .
d. Customer is aware that ISP does not control, and does not warrant, the accuracy or quality of the information obtained through the use of ISP's services.
e. Customer is aware that Internet transmissions are not necessarily secure and confidential, that Internet "hackers" periodically breach the security measures of Internet service providers and their users, that the Internet is frequently used to distribute destructive software viruses and worms, and that Customer is using the Internet through ISP's services at Customer's own risk.
2. Customer's Promises to ISP. Customer promises and covenants to ISP as follows:
a. Customer will use ISP's services in strict compliance with all local, state, federal and international laws and regulations, including, without limitation, the Communications Decency Act of 1996, the Digital Millennium Copyright Act of 1998, the Children=s Online Privacy Protection Act of 1998, the Electronic Communications Privacy Act, the Electronic Funds Transfer Act, the 1995 Digital Performance Right in Sound Recordings Act, the Arms Export Control Act, the Export Administration Act of 1979 (as amended),and the No Electronic Theft Act.
b. Customer will not violate the copyright, trademark, trade secret or privacy rights of any person or entity through the use of ISP's services, nor will Customer defame any person or entity through the use of ISP's services. Customer will not use ISP=s system to attack or injure others. Customer will not use ISP=s system to commit a crime, or to plan, encourage or help others commit a crime, including crimes relating to computers. Customer will not use the services provided hereunder to harm, or attempt to harm, minors in any way. Customer will not use the services provided hereunder for purposes of making threats, for harassment, for fraudulent activity, or for forgery or impersonation.
c. Customer will keep its password confidential so that no one else can access the services provided hereunder through Customer=s account. Customer will immediately notify ISP if Customer discovers any unauthorized use of its account.
d. Customer will not use ISP's services to Aspam@ any person or entity on the Internet, and will take immediate steps to prevent any other person or entity from Aspamming@ through the Customer's site.
e. Customer hereby acknowledges that Customer is not an agent of ISP. Customer will not represent to any person that Customer is an agent of ISP or attempt to act as an agent of ISP.
f. Customer will comply with all of ISP's published rules of conduct on ISP's servers, which may be amended from time to time.
3. Fees and Payment. Customer agrees to pay in advance to ISP all set-up fees and monthly fees for subscribed services as set forth in ISP=s Schedule of Fees. Customer shall provide all changes in billing address information to ISP within 30 days of the change. All prepaid fees paid to ISP are non refundable. Customer shall, in addition, pay on a monthly basis an additional fee for hours of service which exceed the number of monthly hours of service for which Customer has subscribed. If Customer=s monthly usage exceeds the hour limits set for their subscription level, ISP may upgrade Customer to the next greater subscription level and charge Customer the fees for that subscription level stated in the Schedule of Fees. All payment due to ISP shall be due and payable by Customer prior to the expiration date of Customer=s existing prepaid service. If payment is not received within 10 days of the expiration of Customer=s prepaid service, Customer=s account may be deactivated, suspended, or terminated by ISP. ISP reserves the right to change the fees set forth in its Schedule of Fees at any time and for any reason. When possible, ISP will provide to Customer at least 30 days advance notice of any such changes.
4. Additional Fees and Payment.
a. Set-up fees will be due and payable by Customer to ISP if this Agreement is terminated prior to six months after the commencement of services hereunder: (i) by Customer, for any reason; or (ii) by ISP, due the violation of this Agreement by Customer.
b. If Customer=s account is suspended by ISP, a reconnect fee shall be due and payable by Customer. Requests for changes to Customer=s account that require administrative action by ISP will incur charges for such services.
c. Any past due amounts due to ISP by Customer will incur finance charges. Customer will pay any reasonable charges by ISP resulting from any NSF (insufficient funds) checks written by Customer to ISP. Customer will, in addition, pay the cost of any necessary collection efforts by ISP. If Customer=s account is suspended by ISP for delinquent payment, charges for the account will continue to accrue until the account is terminated.
d. Information on the charges described herein is set forth in ISP=s Schedule of Fees. Amounts of any charges set forth herein, not found in ISP=s Schedule of Fees, may be obtained by Customer upon request from ISP. The amounts of all fees or charges that may be billed by ISP may also be available on ISP=s website. All charges by ISP to Customer will be considered valid unless contested by Customer within 60 days of the billing date.
5. Consultation, Repair, and On-Site Support Fees. Services provided by ISP to Customer hereunder do not include free advisory, repair or consultation services. ISP has no obligation for on-site support, reinstallation or repair service other than as a billable service that may be provided by ISP. Fee rates for such additional services will be set forth in ISP=s Schedule of Fees.
6. Automatic Renewal and Termination by Customer. This Agreement shall renew automatically for successive monthly periods unless terminated by Customer or terminated or suspended by ISP. Subscriber may terminate this Agreement, effective as of the last day of prepaid service, by submitting to ISP a written request to terminate by five or more days prior to the last day of prepaid service. In the event of termination by Customer or by ISP, Customer will remain responsible after termination for all charges incurred up to the effective date of termination.
7. Use of Services. Connections to ISP=s system that are unused for periods of 15 minutes or more may be terminated automatically by ISP. Any use by Customer of Akeep-alive@ software or application configurations that accomplish a similar result will be cause for termination of service by ISP. Customer shall not transmit data, worms, viruses or programs that cause the disruption of ISP or Internet service for others. Customer shall not permit the use of Customer=s account by others except under Customer=s direct supervision. Customer shall not use the services provided hereunder for purposes of operating long-term unidirectional functions, such as Internet radio. Customer shall not use the services of ISP provided hereunder to distribute unsolicited advertising.
8. Access Software. ISP does not sell or provide access software as part of, or in conjunction with, the services provided to Customer hereunder. If ISP, in its discretion, chooses to use software such as Netscape to initialize Customer=s access to the services provided hereunder, such software will be considered as Ashareware.@ Customer=s use of, or access to, such Ashareware@ provided by ISP shall be temporary only. Customer shall obtain no permanent or other legal rights regarding such software. Within 90 days from the date of commencement of service to Customer hereunder, Customer shall purchase or supply any software necessary to access the services provided hereunder. ISP does not provide Aback-up@ access software.
9. Indemnification. Customer will defend, indemnify and hold ISP harmless from any claim, expense, loss, damage, or other liability, including, without limitation, attorneys' fees, arising out of or connected with any misrepresentation, breach of covenant, breach of warranty, failure to perform, or any other breach of this Agreement by Customer.
10. Disclaimer of Warranties. ISP warrants that it will make commercially reasonable efforts to provide consistent, quality services. However, ISP does not warrant that its services will be free from delay, interruption, or transmission errors. ISP does not warrant that services provided hereunder will be error-free or free of viruses or other harmful components. Except as warranted above, the Customer understands and agrees that it is obtaining ISP's services on an "AS IS, AS AVAILABLE" basis, and at Customer's own risk. ISP makes no other warranty with respect to ISP's services, either express or implied. ISP specifically disclaims all implied warranties, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose, and any implied warranties under the Uniform Computer Information Transactions Act, as may be adopted from jurisdiction to jurisdiction.
11. Limitation of Remedies and Liability. Use of ISP=s system is entirely at Customer=s sole risk. As the sole and
exclusive remedy available to Customer for ISP's breach of any warranty or
other term of this agreement, ISP will refund to Customer that portion of
Customer's monthly service fee for which Customer did not receive ISP's
services as warranted. In no event will ISP be liable for special,
incidental or consequential damages arising from the use, or inability to use,
ISP's services, even if ISP has been advised of the possibility of such damages.
ISP shall not be liable for the loss of information arising from the use of
ISP's services. ISP's maximum liability for any claim arising from
Customer's use of ISP's services under this Agreement, including, without
limitation, claims based upon ISP's negligence, shall be limited to the refund
of service fees paid to ISP by Customer for the 12-month period preceding
Customer's claim. The warranties and remedies set
12. Right to Review Contents. ISP shall have the right, in its sole discretion, to review the contents of any material passing through its servers to or from Customer in the event ISP receives credible information suggesting that Customer is violating the law, ISP's published rules of conduct, or the terms of this Agreement. Nothing in this Agreement shall be construed to create any obligation on the part of ISP to review the content of materials passing through its servers.
14. Proprietary Rights of ISP. All aspects of ISP=s system are, and shall remain, the exclusive property of ISP. The intellectual property rights owned by ISP include the rights to all protectable components of ISP=s system, including, but not limited to, the computer software, the related documentation, the system=s Alook and feel,@ the end-user interfaces, the name of ISP=s system, many of its individual components, and the collective works consisting of sequences of all public messages on ISP=s system.
15. Right to Modify, Suspend, Terminate, and Delete. ISP reserves the absolute right to modify, suspend, or terminate the services provided under this Agreement without prior notice to Customer. Modifications of this Agreement may be made by ISP through posting on ISP=s home page, or by e-mail to Customer, or by delivery of a written amendment to Customer. ISP may, at any time, require Customer to change Customer=s log-in code or password. ISP reserves the right to delete or restrict access to all program and data files associated with Customer=s account and/or other information Customer has on ISP=s system. Any incoming e-mail sent to terminated or suspended accounts will not be forwarded to another account. Instead, it will be bounced back to sender. If your account included space on ISP=s servers, anything stored on this space will be deleted on termination. All provisions of this Agreement shall survive termination of this Agreement by either ISP or Customer.
16. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Oregon and applicable federal law without regard to or application of Oregon=s conflict of law provisions.
17. Jurisdiction, Venue. The parties agree that any suit, action or arbitration proceeding
arising out of or relating to this agreement shall be brought in
18. Attorneys Fees. If either party to this Agreement breaches any term of this Agreement, then the non-breaching party shall be entitled to recover all expenses of whatever form or nature, costs and attorneys' fees reasonably incurred to enforce the terms of the Agreement, whether or not suit is filed, including such costs or fees as may be awarded in arbitration or by a court at trial or on appeal. In addition, in the event either party to this Agreement becomes a debtor subject to the United States Bankruptcy Code, the non-debtor party shall be entitled to recover any expenses, costs and fees, including attorneys' fees, incurred in connection with enforcing its rights against the debtor party, whether those rights arise under this contract or involve matters arising solely under the Bankruptcy Code.
19. Amendments. This Agreement may be amended or modified only by a written instrument executed by the parties which expressly states the intent of the parties to modify or amend this Agreement.
20. Severability. If any provisions of this Agreement are held to be invalid or otherwise unenforceable, the enforceability of any remaining provisions of this Agreement will not be impaired thereby.
21. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of the Agreement, and supersedes all prior discussions, negotiations, understandings, representations, and agreements, whether oral or written. All terms of this Agreement are contractual and not mere recitals.
SEASURF INTERNET SERVICES A DIVISION OF INTERNETPARTNERS, INC.
UPDATED: jAN 2002
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