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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 12 PM and 1 AM.
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 forth above are
exclusive and in lieu of all others, oral or written, expressed or implied.
No ISP distributor, employee, or agent is authorized to modify or extend the
above warranties or remedies in any manner. Some states do not allow the
exclusion of implied warranties or the limitation of incidental or
consequential damages, so the above exclusions may not apply to some
Customers. This warranty gives Customer specific legal rights. Customer may also have other rights which
vary from state to state.
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.
13. Privacy Policy. ISP=s
privacy policy is stated on its web site.
ISP reserves the right to revise its privacy policy from time to time
without prior notice to Customer. All
changes in ISP=s privacy policy will be reflected in
the policy published on its web site.
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 Multnomah
County, Oregon, and the
parties expressly consent to the personal jurisdiction over them of any state
or federal court in Multnomah County, Oregon.
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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