1)
DEFINITIONS:
a)
“Subscriber,”
or “You,” 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,” “we,” “our,” or “us”
will provide Subscriber and its Users analog or Digital Subscriber Line
(DSL), or other form of 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)
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.
5)
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 if such services is available.
6)
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.
7)
PAYMENT POLICIES: Subscriber shall be billed on a monthly, quarterly,
semiannual or annual basis. Payment will be deemed made when received
by ISP.
a)
Payment in Advance:
The Initial setup fee and payment for the term of service be made in
advance of the creation of the account. Setup fees are non-refundable.
b)
Monthly Processing
Schedule: All accounts are due by the 25th of each month and ISP allows
5 days grace before accounts are automatically suspended for late or
non-payment in the evening of the last day of the month. For convenience
only, email reminder notices are sent to all users who are due on approximately
the 10th, 20th and 25th, to your default username. If you would like
to have your reminders messages sent to another address, please update
this information by emailing our customer service department.
Accounts that are billed to preauthorized credit cards or debited from
a checking account are processed on the 20th of the previous month to
ensure we have time to reach you if there is a problem processing your
payment.
c)
You are responsible
for monthly remittance of service fees regardless of errors in with
delivery of your invoice errors in your emailed invoice. We expect you
to be aware of your term and pay when due.
d)
Forms of Payment:
Payment for services can be made with VISA, Master Card and American
Express. We may also accept Money Orders, business or personal
checks.
e)
Suspended Account:
If the full amount due is not received by last day of each month, your
account will be automatically suspended to prevent incursion of additional
wholesale network charges levied on ISP by our network providers.
f)
Returned Checks: Any
check returned for insufficient funds (NSF) will be charged a $20.00
return check fees to cover processing costs and the returned check fees
charged by our bank.
g)
Billing Discrepancies:
Any discrepancies with the billing must be presented in writing, or
email to customer service within 30 days of the error. Such notification
shall NOT relieve the obligation to make all payments included amounts
disputed by the due date. We make every effort to keep accurate records,
but mistakes can happen. If an error is found, we will make it right.
h)
To cancel, please
submit your request by email to customer service. Cancellations requests
must be received prior to the beginning of the next billing cycle in
order to avoid additional charges to your account.
i)
NON-USAGE OF AN ACCOUNT
IS NOT PROOF OF CANCELLATION OF SERVICE. Subscribers are responsible
for full payment on all accounts whether or not the account is ever
utilized until such time as the account is cancelled by appropriate
notice.
8)
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 on-line notice or other notice of termination
at least thirty (30) calendar days prior to the expiration of the then-current
term. In the event Subscriber terminates the Service hereunder,
then without limitation to any other remedy ISP may have, Subscriber
will pay to ISP upon discontinuance of the Service a termination charge
equal to the applicable monthly rate times the number of months remaining
in the term.
9)
CREDIT: There shall be no credits, reductions, or setoff
against the charges for Service for downtime or interruption of Service
unless such Service interruption exceeds 24 hours in duration.
ISP shall provide Subscriber with a credit equal to 1/30 of the recurring
monthly charge for Service for each twenty-four hour period from the
time of notice of interruption until Service restoration, provided Subscriber
notifies ISP of the Service interruptions. No adjustments shall
be made by accumulating periods on non-continuous interruption.
A credit allowance will not be given for mistakes, omissions, interruptions,
delays, errors or defects caused by failure of equipment or of Service
as described in Section 2.
10)
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.
11)
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.
12)
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 U.S.
export laws concerning the transmission of technical data and other
regulated materials via the Services.
13)
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 U.S. or state regulation is
prohibited. This includes, but is not limited to: copyrighted
material, material which is threatening or obscene, or material protected
by trade secret. In addition, ISP generally reserves the right
in its sole discretion to either temporarily discontinue, or permanently
terminate furnishing the Service upon notice to Customer in the event
Customer uploads any information that is libelous, defamatory or that
violates or infringes any right of privacy of any Persons; uploads any
messages, data images or programs that are indecent, obscene or pornographic;
use the facilities and capabilities of ISP to conduct or solicit the
performance of any illegal activity or to conduct any other activity
that infringes the rights of ISP or any third party; or upload any information,
messages, data, images or programs that is discriminatory or otherwise
offensive as determined by ISP in its sole discretion.
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.
14)
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.
15)
NO WARRANTIES. ISP makes no warranties, express or implied with
respect to the Services provided pursuant to this Agreement, including,
but not limited to, the implied warranties or merchantability and fitness
for a 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.
16)
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.
17)
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.
18)
MISCELLANEOUS: This Agreement shall be governed by, construed under, and enforced in accordance
with, the laws of the state of Oregon. In the event of a conflict between
this Agreement and any applicable tariff, the tariff shall prevail.
If any provision of this Agreement shall be held to be invalid or unenforceable,
the validity and enforceability of the remaining provisions of this
Agreement shall not be affected thereby. This Agreement embodies
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings,
whether written or oral, and all contemporaneous oral agreements and
understandings relating to the subject matter hereof. ISP May
amend the terms and conditions of this Agreement by giving Subscriber
30 days’ prior on-line notice. This Agreement is subject
to modification by any authorized regulatory agency. ISP may assign
this Agreement without limitation, but Subscriber may not assign this
Agreement without ISP’s prior written consent. This Agreement
shall be binding on the parties hereto and their respective personal
and legal representatives, successors, and permitted assigns.
