This Agreement is made
and entered into by and between USAonline,
Inc., WhiteHorse Communications, HiLine,
Texas Online, et al (hereafter USA) and
Subscriber.
Access. Pursuant to the terms
of this Agreement, and upon the payment
of all fees and charges required to be paid
to USA, Subscriber shall have the right
to utilize the services of USA to access
the Internet. However, this access is conditioned
upon and shall be governed by the terms
and conditions contained in this Agreement.
By accessing USA, the Subscriber accepts
all terms and conditions contained herein.
Charges. Subscriber agrees to timely payment
of all charges, as set forth in this Agreement,
to USA. All charges shall be paid using
a major credit card, i.e. MasterCard, Visa,
American Express or Discover, unless other
arrangements have been made with USA for
the payment of the charges. In addition,
the following terms and conditions will
apply.
I. The installation charges plus one months
complete charges in advance will be paid
at the time your services are ordered or
at the time services are initiated. These
charges are non-refundable.
II. All charges must be paid within thirty
(30) days in advance. Failure of timely
payment of all charges within thirty (30)
days of the date of invoice constitutes
an event of default under the terms of this
Agreement. Upon default, Subscriber's service
is subject to disconnection without notice
to Subscriber. In the event USA agrees to
restore service to Subscriber, a reconnection
charge in the amount of $50.00 will be charged.
This charge, plus all past due amounts owed,
must be paid in full, before restoration
of service to USA will occur. Upon default,
credit will no longer be extended by USA
to Subscriber
III. USA may change the terms and conditions
of this Agreement and the charges for any
service it provides to Subscriber at any
time, with thirty (30) days prior notification
to Subscriber. The notice to Subscriber
may be made by e-mail of facsimile transmission.
By executing this Agreement, Subscriber
agrees to pay all new charges without prior
approval. In the event Subscriber is dissatisfied
with the amount of charges or any other
term and condition contained in this Agreement,
or any term and condition subsequently changed
by USA, then Subscriber's only remedy is
to cancel and terminate this Agreement in
accordance with the termination provisions
of this Agreement.
IV. USA may change the services provided
pursuant to this Agreement at any time with
thirty (30) days prior notification to Subscriber.
The notice to Subscriber may be made by
email or facsimile transmission.
Telephone Charges. Subscriber shall be solely
responsible for all telephone and telecommunication
changes, charges and fee for connecting
directly to USA. USA assumes no responsibility
or liability for any telephone charges,
including but not limited to long distance
charges, permitted user charges and/or equipment's
online costs incurred by Subscriber while
accessing USA or the Internet and such changes
are the sole responsibility of Subscriber.
Any disputes regarding telephone services
or bills are strictly between the Subscriber
and Subscriber's telephone company and/or
long distance provider.
Term. This Agreement shall remain in full
force and effect for one (1) year. This
contract is automatically renewed on the
anniversary date, under the same terms,
conditions and pricing, unless thirty (30)
days' prior written notice is given.
Termination. USA may terminate this Agreement
upon default by Subscriber in the performance
of any of Subscriber's obligations pursuant
to this Agreement. The waiver by USA of
any act of default by Subscriber shall not
constitute a waiver of any subsequent default.
Subscriber or USA may terminate this Agreement,
by giving thirty (30) days written notice.
Notice of termination may be provided by
e-mail or facsimile transmission. Subscriber
will not be entitled to receive any refund
for any used or unused time. Subscriber
shall be liable for the payment and all
fees due on the remainder of this one (1)
year Agreement. Upon termination of this
Agreement or the services contemplated hereunder,
Subscriber must either return all USA software
to USA or otherwise destroy it.
Lawful Use of Service. The service provided
by USA shall be used by Subscriber only
for lawful purposes. Subscriber warrants
and represents that Subscriber will use
the services provided by Subscriber and
the Internet in compliance with all state
and federal laws and regulations, including
all copyright and trademark laws and regulations.
USA may terminate service for any violation
of any law or regulation by Subscriber or
any person gaining access to USA or the
Internet through Subscriber. Subscriber
agrees to comply with the rules and regulations
for any other networks accessed through
USA. Use of any information obtained by
Subscriber through USA is at Subscriber's
own risk. USA specifically denies any responsibility
for the accuracy, quality or content of
information obtained through its services.
Subscriber specifically agrees not to upload,
post, or reproduce, in any way, any materials
protected by copyright without the permission
of the copyright owner. Only public domain
files, or files which the author has given
express consent for on-line distribution
may be uploaded to the software libraries
or other files by Subscriber. Any other
software may not be uploaded to the USA
or Internet software libraries. USA, at
its sole discretion, reserves the right
to refuse posting of files and to remove
files. USA, at its sole discretion, further
reserves the right to immediately terminate,
without notice, any Subscriber who misuses
the software libraries.
ECPA NOTICE: We reserve the right to monitor
any and all communications through or with
USA facilities. You agree that USA facilities
are not to be considered a secure communications
medium for the purpose of the CPA. And that
no expectation of privacy is afforded.
a. Accounts are for your personal use only.
Consuming more than one modem line, loaning
your account to others, connecting a BBB
or other system used by multiple persons
via any class of services described here,
and group use of user logins are explicitly
prohibited. Violations of this policy will
be dealt with as theft of service and will
result in back billing at organizational
rates to the inception of your subscription.
USA may also prosecute these violations
under civil and criminal law.
b. You agree not to obstruct the system's
identification procedures in electronic
communications that you initiate. Anonymous
services may be used, provided that you
do not attempt to impersonate others.
c. The transmission of unsolicited advertising
through mass-electronic mail (SPAM), Usenet
postings to inappropriate groups, or other
direct transmission is prohibited. However,
posts made to appropriate Usenet groups
as well as general commercial use of USA
is encouraged.
d. Subscriber agrees to not abuse the system
and its resources, including any quotas
on disk usage which may be imposed and policies
on the use of resources (such as Usenet)
which reach beyond this system. You agree
not to attempt to violate the security of
this system or its authentication and accounting
procedures.
e. Use of NSFNet resources for purposes
not in the furtherance of education and
research are prohibited. If in doubt about
the affiliation of sites and any acceptable
use policies which may apply, please contact
our system administrator (send email to
root).
f. Use of a Pingbot or other mechanism to
defeat the 20-minute idle timeout is specifically
prohibited.
Physical Equipment and/or Software. Subscriber
is responsible for obtaining and maintaining
all equipment necessary to connect to USA
and the Internet. USA will not be liable
or responsible for the installation and/or
service on equipment and/or software provided
by Subscriber, including software provided
by USA, once software has left the possession
of USA. Subscribers are responsible for
the use and compatibility of hardware and
software not provided by USA. In the event
that Subscriber uses hardware and/or software
that impairs the Subscriber's use of USA
services, Subscriber shall nonetheless be
liable for regular payments to USA. Upon
notice from USA that any of the hardware
and/or software used by Subscriber is causing
or, in the sole opinion of USA, is likely
to cause hazardous interference or service
obstruction, Subscriber shall eliminate
the hazard interference or service obstruction
immediately. Subscriber may consult with
USA for purposes of correcting problems
caused by such equipment and/or software.
However, USA may charge a fee for such services.
USA will not be responsible or liable if
any changes in hardware, software, or services
causes Subscriber's equipment to become
obsolete, or in need of modifications to
protect and preserve the total performance
of USA on an end to end basis or to protect
the USA backbone and those networks attached
to the USA. Subscriber is responsible and
liable for any and all repairs to Subscriber's
equipment.
Release and Indemnity Agreement. Subscriber
understands and agrees that USA is a conduit
entity through which Subscriber may obtain
access to the Internet. Subscriber desires
to utilize the services of USA as a conduit
to enable Subscriber to access the information,
programs and other services provided by
the Internet. Subscriber acknowledges and
agrees that USA exercises no control over
the content of the materials that may be
accessed through USA or the Internet and
that the materials accessed may be offensive,
and may include adult materials or information.
Subscriber hereby releases and discharges
USA its agents, employees, officers, directors,
insurers and assigns from any and all causes
of action, damages, demands, judgments and
any other causes of action that Subscriber
may have arising out of the information
or materials which Subscriber may access
or obtain from using USA to access or retrieve
information, services or other material
from the Internet. Subscriber hereby indemnifies
and holds USA, its agents, employees, officers,
directors, insurers and assigns harmless
from any losses, claims, demands, judgments,
attorney fees, costs or other expenses incurred
or suffered by USA, its agents, employees,
officers, directors, insurers, and assigns
and arising out of Subscriber's access to
USA, or the Internet, including any of Subscriber's
actions for such things as computer fraud,
computer vandalism, invasion of privacy,
interests of another, introduction of virii,
and objectionable or questionable content
of mail, newsgroup posting, or any other
use of the Internet.
Authority. By executing this Agreement,
Subscriber represents and warrants that
Subscriber has the capacity and authority
to enter into this Agreement. USA is not
required to enable or connect Subscriber's
access to USA or the Internet, unless and
until USA is satisfied that Subscriber has
the capacity and authority to enter into
this Agreement. USA shall not be required
to enable or connect access to the Internet
on behalf of a minor unless and until this
Agreement is signed by the minor's parent,
custodian or legal guardian. By executing
this Agreement, Subscriber acknowledges
that the biographical information provided
below is true and correct. Subscriber's
address as stated below may be used by USA
for all billing and notification purposes
as set forth in this Agreement.
Warranties. USA makes no warranties of any
kind, express or implied, including any
implied warranty of merchantability or fitness
for a particular purpose in connection with
the services provided by USA pursuant to
the terms of this Agreement.
Limit of Liabilities. USA shall not be liable
for any direct, indirect, consequential
or reliance damages, whether foreseeable
or not, or for any damage to property, loss
of profits, costs of replacement services,
or claims by Subscriber or for any service
problems caused by any defect, delay, unavailability
or failure in the service provided by USA
or by any other cause. USA shall not be
liable for any service defect caused by
forces outside of its control, including
accidents, cable cuts, fires, floods, emergencies,
government regulations, wars or acts of
God.
Consultation. USA, at its own option, can
supply technical services in the form of
consulting and/or services to Subscriber's
request. Such services will be billed at
the rate(s) set forth in the USA pricing
sheet or at rates that are in effect at
the time such services are requested or
rendered. USA has the right to refuse any
such technical services at its option and
discretion. USA will have free access to
Subscriber's telephone lines for these purposes.
Opinions not those of USA. Subscriber understands
and agrees that the opinions and advice
and all other information expressed by Subscriber's
information providers or other third parties
on USA or the Internet are those of the
particular provider and are not the opinions
or advice of USA. Subscriber understands
that USA exercises no control whatsoever
over the content of the information passing
through it.
Entire Agreement. This Agreement, together
with any handwritten terms on the reverse
hereof, constitutes the entire Agreement
between the parties hereto. The terms and
conditions of the Agreement shall be interpreted
and enforced pursuant to the laws of the
State of Texas. If any one provision of
this Agreement is declared null, void, unenforceable
or ambiguous, such a determination will
not effect any of the other terms of this
Agreement and all other Agreements shall
remain in full force and effect.
If Subscriber is applying for an Internet-accessible
Account (all classes of service), Subscriber
agrees to be bound by the Internet Account
Terms and Conditions of Access, and agrees
to comply with any and all Acceptable Use
Policies that may be enforced for the communications
that the Subscriber initiates. Subscriber
understands that Subscriber is solely responsible
for determining the acceptable uses of any
network, which Subscriber causes to be transferred
by Subscriber's actions while using Internet
services, and for compliance with applicable
policies.
Resale. Any resale of any service provided
by USA without USA's prior written, express,
consent is prohibited. Subscriber agrees
not to resell or obtain any compensation
in any form, directly or indirectly, from
any other person or entity for access, products,
service, or contents through USA without
the express written consent of USA. This
Agreement is not shareable. Each person
who uses USA must be a Subscriber in their
own right. Subscriber will not allow any
unauthorized person or entity to utilize
USA or the Internet. Subscriber may not
distribute user's id and passwords to the
USA service or the Internet to others.
Jurisdiction and Venue. In any dispute between
Subscriber and USA, the parties agree that
venue will be in Midland County, Midland,
Texas and that the State of Texas will have
exclusive jurisdiction over any cause of
action arising out of any dispute concerning
this Agreement or any of the obligations
by either party pursuant to the Agreement.
