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Terms &
Conditions of Service
Effective June 1, 2000
This agreement governs the terms
and conditions under which POWER-NET INTERNET SERVICES
("POWER-NET") provides Internet access service to its
customers, including 24-hour access and e-mail addresses
(referred to in this Agreement as the "Service").
This Agreement is your contract for POWER-NET’s Internet
Service.
1. GENERAL.
POWER-NET, with the assistance of certain vendors,
("Vendors") provides Service to you as a subscriber
("Subscriber" or "you") subject to the terms and conditions
of this Agreement. By making use of the Service, you agree
to the terms and conditions of this Agreement ("Terms").
Every time you use the Service, you agree to POWER-NET’s
Terms. If POWER-NET changes the Terms in a way that you do
not accept, you may terminate Service as provided in Section
7 below.
You agree that by using the Internet access service you
represent that you are at least eighteen years of age and
that you are legally able to enter into this agreement.
2. CHANGES IN TERMS.
POWER-NET may change the Terms on not less than 10 days’
notice by electronic mail, posting on our website at
www.power-net.net, or
by U.S. mail. Your use of the Service after the effective
date of any change(s) in the Terms shall constitute your
acceptance of, and agreement to, such change(s).
3. BILLING AND CHARGES.
RATES.
You can learn the current
rates for Service and related fees by telephoning
1-800-464-1032 or by visiting our website at
www.power-net.net.
Basic rates are payable in advance on or before the first
day of POWER-NET’s monthly billing cycle. The basic rates
and use rates do not include taxes or governmentally
required surcharges, for which you are also responsible.
Your first month’s bill will be prorated through the last
calendar day of the month in which you sign up, and will
include the next month’s amount due plus any setup fee.
BILLING. Monthly account charges are
payable in advance. Bills are rendered monthly for the
following month of service, and billing cycles run from the
first calendar day through the last calendar day of each
month.
RELATED CHARGES. You are responsible
for any local or long-distance phone charges accrued in
connecting to POWER-NET. You are also responsible for
providing all equipment, including computer hardware and
software, used in connecting to POWER-NET.
BILLING DISPUTES. Unless you notify POWER-NET
of any error in POWER-NET’s billing within sixty (60) days
after it first appears on your account statement, the
statement will be deemed accepted by you for all purposes,
including resolution of inquiries made by your credit card
issuer. You release POWER-NET from all liabilities and
claims resulting from any billing error that is not reported
to POWER-NET within sixty (60) days after the date of the
statement on which it appears.
PAYMENT. Checks for payment should be made
payable to POWER-NET. If for any reason POWER-NET does not
receive timely payment from you (or from the credit card
issuer you designate if you elect to have POWER-NET charge
your credit card), you agree you will pay upon demand all
amounts due to POWER-NET. Your credit card agreement with
the issuer, and not this Agreement, governs your rights and
liabilities as a cardholder.
If you pay by credit card, you expressly authorize Power-Net
to charge the credit card account number associated with
your account for any access service charges that accrue from
month to month. You reauthorize Power-Net to charge your
designated credit card account each time you use the
Internet access service. This authorization will remain
valid until you terminate your authorization in writing.
You are responsible for all activities and charges
associated with your account. If any unauthorized charges
are made on or through your account, you are responsible for
such charges until you notify Power-Net of a breach of
security by calling Power-Net at 1-800-464-1032 to change
your password.
LATE PAYMENT; NON-PAYMENT. If POWER-NET does
not receive the full amount you owe for Service and related
fees by the start of the next billing cycle, POWER-NET shall
have the right to terminate your Service. If your POWER-NET
service is terminated because of your failure to pay any
past due amounts and you want to reactivate the service, you
agree to pay a reactivation fee of $7.50.
You shall be liable for all costs of collecting any unpaid
balance on your account(s) with POWER-NET, including
attorneys’ fees.
4. CONTENT. As used in this Agreement, "Content"
means the information, software, graphics, photographs,
video, speech, sounds, music and other material and services
communicated by POWER-NET through its Service.
NO REPRESENTATIONS. POWER-NET makes no
representation as to, and you must bear the risk of relying
on, the accuracy, completeness or usefulness of any Content.
As a matter of policy, POWER-NET does not screen or filter
any Content. However, POWER-NET and its Vendors reserve the
right (but not the responsibility) to remove Content that
POWER-NET and its Vendors deem harmful or offensive.
Accordingly, you acknowledge that neither POWER-NET nor any
of its Vendors shall have any liability for any action or
inaction by POWER-NET or any of its Vendors with respect to
Content.
PROPRIETARY RIGHTS; INTELLECTUAL PROPERTY. You
agree to abide by all copyrights, trademarks and other
intellectual property and proprietary rights associated with
any and all Content.
PARENTAL GUIDANCE. You acknowledge that the
Content may include material inappropriate for minors, and
you further acknowledge that POWER-NET recommends you
supervise your minors’ use of the Service directly and/or
consider using commercially available tools that enable you
to restrict access to certain Internet areas and other
features of the Service that may be inappropriate for
minors, at your sole cost and risk. POWER-NET makes no
warranties with respect to such tools.
PROHIBITED ACTIVITIES. POWER-NET reserves the
right to terminate your Service immediately without notice
if, in POWER-NET’s sole discretion the Internet services
provided by POWER-NET are being resold by you. POWER-NET
also reserves the right to terminate your Service
immediately without notice if, in POWER-NET’s sole
discretion, your access to the Service is used in such
manner that it restricts or inhibits any other person from
using the Service, and, in particular, you agree not to use
or to allow others to use the Service, directly or
indirectly, to:
(a) Post, transmit, or promote any unlawful, harmful,
threatening, abusive, harassing, defamatory, vulgar,
obscene, sexually explicit, hateful, or racially,
ethnically, or otherwise objectionable or offensive Content;
(b) Harass, threaten, embarrass, or cause distress, unwanted
attention or discomfort to any other person;
(c) Disrupt the normal flow of dialogue in a chat room or on
a message board or otherwise act in a manner that negatively
affects any other person;
(d) Impersonate any person or entity, or communicate under a
false name or a name you are not entitled or authorized to
use;
(e) Post or transmit chain letters or pyramid schemes;
(f) Post or transmit any unsolicited advertising,
promotional materials or other forms of solicitation to
other persons, except in those areas that are expressly
designated for such a purpose, or collect the screen name of
any other POWER-NET subscriber without permission;
(g) Post or transmit any communication or solicitation
designed or intended to obtain password, account or private
financial information from any other person;
(h) Violate any operating rule, policy or guideline of any
other service provider;
(i) Violate any applicable local, state, national,
international or foreign law, including but not limited to
any rule or regulations having the force of law.
(j) You acknowledge that Content is provided by persons and
entities not under the control of POWER-NET and that such
other service providers have their own terms and conditions
of use and you further acknowledge that violation of any of
those terms of use may subject you to termination of
Service. Your use of POWER-NET’s Service and the Internet is
solely at your own risk.
5. LIMITATION OF LIABILITY. POWER-NET exercises no
control whatsoever over the content of the information
accessed through POWER-NET’s Internet Services. POWER-NET’s
Internet Services are provided on an "as is, as available"
basis, without warranty of any kind, expressed or implied,
including, but not limited to, the warranties of
performance, merchantability and fitness for a particular
purpose. POWER-NET and/or contributors shall have no
liability whatsoever to you for any claim(s) relating in any
way to (a) your inability or failure to perform research or
related work or to work properly or completely, or (b) any
lost profits or consequential, exemplary, incidental,
indirect or special damages relating in whole or in part to
your rights hereunder or use of, or inability to use, POWER-NET’s
Internet Services. POWER-NET will not be responsible for any
damage suffered by you, including, but not limited to, loss
of data resulting from delays, non-deliveries, mis-deliveries
or service interruptions caused by its own negligence or
your errors or omissions. Use of any information obtained
via POWER-NET’s Internet Services is at your sole risk.
POWER-NET specifically disclaims any responsibility for the
accuracy or quality of information obtained through POWER-NET’s
Internet Services.
Under no circumstances and under no legal theory, tort,
contract or otherwise, shall POWER-NET or its Vendors be
liable to you or any other person for any indirect, special,
incidental or consequential damages of any character
including, without limitation, damages for loss of goodwill,
work stoppage, computer failure or malfunction, or any and
all other commercial damages or losses, or for any damages
in excess of POWER-NET’s list price for a license to the
Software and Documentation, even if POWER-NET shall have
been informed of the possibility of such damages, or for any
claim by any other party. This limitation of liability shall
not apply to liability for death or personal injury to the
extent applicable law prohibits such limitation.
Furthermore, some states do not allow the exclusion or
limitation of incidental or consequential damages, so this
limitation and exclusion may not apply to you.
6. INDEMNIFICATION. You agree that upon request by
POWER-NET you will defend, indemnify and hold harmless
POWER-NET, its officers, directors, agents, employees and
Vendors, from all claims, liabilities and expenses,
including attorneys’ fees, that arise from your breach of
this Agreement. POWER-NET reserves the right, at its own
expense, to assume the exclusive defense and control of any
matter otherwise subject to indemnification for such matter.
7. TERM AND TERMINATION. This agreement shall become
effective on the date the service application is entered
into POWER-NET’s system (no later than the end of one
business day after receipt of application). POWER-NET, at
its sole discretion, may terminate this agreement
immediately or suspend your access to the service upon any
breach of this Agreement by you.
You are responsible for notifying POWER-NET of your wish to
terminate your account if desired. Charges will continue to
accrue until the last day of the month in which you notify
POWER-NET of account termination, or until 3 days after
nonpayment, at which point POWER-NET will suspend your
account. After 25 days of nonpayment, POWER-NET will close
your account; you will then be required to re-subscribe
according to policies in effect at that time in order to
continue service.
Licenses granted hereunder will terminate automatically if
you fail to comply with the limitations described herein.
Upon termination, you must destroy all copies of the
Software and Documentation.
REFUNDS. Upon termination of Service,
POWER-NET will refund any unused portion of basic rates paid
in advance. For customers who prepaid for their Internet
access service six (6) or twelve (12) months in advance,
POWER-NET will refund an amount equal to the number of
unused months times the basic monthly rate that would have
applied if the customer had not paid in advance. Referral
and other credits applied to an account are non-refundable.
8. ALLOWABLE USE. POWER-NET’s Internet Services may
only be used for lawful purposes. Transmission of any
material in violation of any federal or state statute or
regulation is prohibited. This includes, but is not limited
to, copyrighted material, material legally judged to be
threatening or obscene, or material protected by trade
secret. You agree to indemnify and hold harmless POWER-NET
from any claims resulting from your use of POWER-NET’s
Internet Services.
All UNIX shell accounts provided by POWER-NET may only be
used interactively while dialed in. They may not be used to
run processes unattended or while not dialed in including,
but not limited to, any IRC bot, cron job or screen.
Commercial advertising is an accepted and welcome use of the
Internet. However, there are appropriate and inappropriate
places for Internet advertising. Unsolicited commercial
advertisements are not allowed in e-mail, and will result in
account suspension or cancellation and fines as stated in
Additional Charges.
Commercial advertisements are unwelcome in most Usenet
discussion groups and on most e-mail mailing lists.
Inappropriate posting may result in account suspension or
cancellation. See the newsgroup or mailing list’s charter
for whether advertising is allowed or not. "Spamming," or
sending a message to many different off-topic newsgroups, is
particularly unethical and will be treated accordingly.
Sending a message, especially an advertisement, to more than
six recipients is considered spamming unless the individuals
have specifically requested to be added to a mailing list on
that topic. E-mail is a person-to-person medium, not a
broadcast medium.
You agree to abide by POWER-NET’s policies concerning use of
POWER-NET’s Internet Services. Unsolicited advertisements
via e-mail, or via discussion groups whose charter does not
explicitly allow advertisements, is specifically not an
allowable use. POWER-NET reserves the right to suspend
access to service for your account(s) upon an indication of
disallowed use or credit problems, including delinquent
payments or rejection of credit card charges.
9. ACCESS. Dial-up accounts are limited to 320 hours
of access per calendar month. Use in excess of 320 hours per
month will be subject to additional charges. Accounts may
not be used for automated, unsupervised use of the Internet
or simultaneous connections by multiple people. Accounts may
not be kept connected with a keep-alive of any sort, such as
setting an e-mail program to check mail periodically
unattended. POWER-NET may disconnect dial-up connections
after extended periods of inactivity or unauthorized use.
10. RESPONSIBILITY FOR ACCOUNT USE. You are
responsible for all use of your account(s) and
confidentiality of password(s). POWER-NET will suspend or
change access upon notification that your password has been
stolen, lost or otherwise possibly compromised. POWER-NET is
not responsible for your personal files residing online on
POWER-NET owned and controlled computers. You shall be
responsible for independent backup of your data stored
online. You shall be responsible for all access to and use
of POWER-NET’s Internet Services by your personnel or by
means of your equipment, whether or not you have knowledge
of or authorize such access or use. If the subscriber is
less than 18 years of age, these terms must be agreed to by
a parent or legal guardian, who is responsible for all
charges related to the use of subscriber’s account(s).
11. UNAUTHORIZED USE OF ACCOUNT. POWER-NET will take
the appropriate steps, with the assistance of customer, if
needed, to eliminate any use or attempted use of an
Internet account or computer without the owner’s
authorization. Such attempts include "social engineering"
(tricking other people into releasing their passwords),
password cracking, security hole scanning, denial-of-service
attacks (ping-flooding, sending packets with an illegal
packet size, UDP flooding, half-open TCP connection
flooding, etc.) and the like. Harassment or abusive use of
e-mail and other Internet services is a rare but serious
misuse of Internet resources. POWER-NET will handle
incidents of harassment on a case-by-case basis, consulting
with all parties involved. Any unauthorized use of accounts
or computers by a POWER-NET customer, whether or not the
attacked account or computer belongs to POWER-NET, will
result in action against the attacker. Possible actions
include warnings, account suspension or cancellation, and
legal action, according to the seriousness of the attack.
12. LIMITATIONS ON RESOURCE USE. POWER-NET reserves
the right to impose limits on the total amount of disk space
and other resources available for your use on
POWER-NET-operated computers. Dial-up account users are
subject to a limit of 10 MB of disk space for all their disk
use, including incoming mail files and personal web pages.
POWER-NET reserves the right to remove files that exceed
this limit. POWER-NET reserves the right to delete without
notice personal files that have not been accessed for more
than one month.
13. E-MAIL PRIVACY. Electronic mail passes through
multiple mail servers on the Internet as it passes from
source to destination. One can never be guaranteed privacy
from every possible mail server; therefore, someone seeking
total privacy should use some encryption scheme to render
their messages unreadable by eavesdroppers. With regards to
POWER-NET’s mail servers, POWER-NET places a high value on
privacy and will only examine users’ mail when absolutely
required, for example when troubleshooting e-mail delivery
problems or being presented with a search warrant for the
information.
14. ILLEGAL MATERIAL. POWER-NET bears certain legal
liabilities for the use of its computer network and
equipment. As such, POWER-NET must require that its
customers do not use POWER-NET’s network for illegal
purposes. When presented with a search warrant, POWER-NET is
obligated to release any information named therein, and will
cooperate with the authorities in any criminal investigation
of inappropriate Internet use.
However, POWER-NET recognizes that the legal status of the
Internet has not yet been resolved satisfactorily, either
through legislation or court precedent. Therefore POWER-NET
must make certain decisions regarding the illegality of
various specific actions. Among the actions POWER-NET
considers illegal and therefore does not allow on its
network are: unauthorized distribution of copyrighted
material; exploitation of minors; and unauthorized use of
computer resources. POWER-NET believes the First Amendment
rights of free speech, freedom of the press and freedom of
association apply to the Internet to the same degree as they
do to print media and that any attempt to infringe upon
those rights is void of legitimacy.
15. WEB SERVICE. POWER-NET provides free personal web
pages to dial-up customers. POWER-NET includes web service
in its enhanced package and hosts commercial web pages for a
fee. In all cases, the web pages reside on POWER-NET’s
computer equipment, giving POWER-NET some ethical
responsibility for the content of such pages. POWER-NET will
handle potentially inappropriate web pages on a case-by-case
basis. Examples of inappropriate information include
downloadable virus code and obscenity.
Personal web space (provided free to dial-up subscribers
with an URL like http://users.power-net.net/~joeuser/) may
not be used for purposes that can be deemed as an attempt to
sell a product or service. POWER-NET separately offers
commercial web hosting.
Domain name service is an additional service offering to
those who desire it. You are responsible for domain name
registration with authorities and for any fees they may
charge.
POWER-NET grants you non-exclusive, non-transferable,
limited license to store documents on a POWER-NET Internet
World Wide Web server, and to use the server at burst
bandwidth speeds up to POWER-NET’s full capacity. Sustained
average bandwidth use, as measured by POWER-NET, over the
course of any seven (7) days shall not exceed 64 kilobits
per second (Kbps). POWER-NET shall notify you if this limit
is exceeded, after which you have two (2) weeks to lower the
bandwidth use, or incur an additional charge of $100 per
month per 64 Kbps of sustained average bandwidth use.
16. EXPORT CONTROLS. None of the Software or
underlying information or technology may be downloaded or
otherwise exported or re-exported (a) into (or to a national
or resident of) Cuba, Iraq, Libya, North Korea, Yugoslavia,
Iran, Syria or any country to which the United States has
embargoed goods; or (b) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the
U.S. Commerce Department’s Table of Denial Orders. By
downloading or using the Software, you agree to the
foregoing and represent and warrant that you are not located
in, under the control of, or a national or resident of any
such country or on any such list.
In addition, if the licensed Software is identified as a
not-for-export product (for example, on the box, media or on
the installation process), then the following applies:
except for export to Canada for use in Canada by Canadian
citizens, the Software and any underlying technology may not
be exported outside the United States or to any foreign
entity or "foreign person" as defined by U.S. Government
regulations, including without limitation, anyone who is not
a citizen, national or lawful permanent resident of the
United States. By downloading or using the Software, you
agree to the foregoing and warrant that you are not a
"foreign person" or under the control of a foreign person.
17. EFFECT OF AGREEMENT. This Agreement (which shall
include the current and future Schedules hereto) represents
the complete agreement concerning this license between the
parties and supersedes all prior agreements and
representations between them. The acceptance of any purchase
order placed by you is expressly made conditional on your
assent to the terms set forth herein and not those contained
in your purchase order.
18. FORCE MAJEURE. POWER-NET’s performance hereunder
is subject to interruption and delay due to causes beyond
its reasonable control such as acts of God, acts of any
government, war or other hostility, civil disorder, the
elements, fire, explosion, power failure, equipment failure,
industrial or labor disputes, inability to obtain necessary
supplies and the like.
19. SEVERABILITY. If any provision of this Agreement
is held to be unenforceable for any reason, such provision
shall be reformed only to the extent necessary to make it
enforceable, and all other provisions are unaffected.
20. GOVERNING LAW. This Agreement shall be governed
by and construed under the laws of the state of Michigan
except as governed by Federal law. The application of the
United Nations Convention of Contracts for the International
Sale of Goods is expressly included.
WAIVER. Failure of any party to enforce any
provision of this Agreement shall not constitute or be
construed as a waiver of such provision or of the right to
enforce such provision.
21. U.S. GOVERNMENT RESTRICTED RIGHTS. Use,
duplication or disclosure of Software and Documentation by
the Government is subject to restrictions set forth in
subparagraphs (a) through (d) of the Commercial
Computer-Restricted Rights clause at FAR 52.227-19 when
applicable, or in subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFARS
252.227-7013, or at 252.211-7015, and in similar clauses in
the NASA FAR Supplement.
22. NOTICES. Except as otherwise provided herein, all
notices hereunder shall be given in writing to:
Power-Net Internet Services
402 N. Mission St.
Mt. Pleasant, MI 48858
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