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April 1, 2001
By subscribing to digital subscriber line (“DSL”) service of Sherwood
Mutual Telephone Association (“SMTA”), I am agreeing to the following
terms and conditions. By utilizing the DSL service of SMTA, I agree
not to use the DSL service of SMTA for any purpose, which violates U.S.,
state or local laws. I agree not to use DSL service of SMTA to interfere
with or disrupt network users, services or equipment.
Such interference or disruption includes, but is not limited to:
1. Distribution of unsolicited advertising or spamming;
2. Propagation of computer worms or viruses;
3. Disruption of service provided to others;
4. Use of the network to make unauthorized entry to other computational,
information or communication devices or resources.
SMTA provides its DSL service to you, subject to the following Customer
Agreement ("Agreement"). This is a legal agreement between you and
SMTA for the use of the DSL Internet access service and related features
(the "Service"). If you do not agree to the terms and conditions
in this Agreement, do not register for or use the Service. By using the
Service, you signify your agreement with the terms and conditions of this
Agreement. If you do not agree to all of the terms and conditions of this
Agreement, contact SMTA to cancel service immediately.
THE SERVICE: The Service consists of DSL
connectivity to the Internet, as well as access or connectivity to any of
the online resources, which may be provided by SMTA, or is available from
other service providers participating in or connected to SMTA's Service,
including without limitation, personal web pages available through SMTA.
Unless explicitly stated otherwise, any new features that enhance the
current Service shall be subject to the terms and conditions of this
Agreement. Some of the additional services may be provided without charge to
users of SMTA's Service, but separate charges may be applicable to some of
these other services. These charges may appear on your bill from SMTA, or
the providers of such services may bill them to you separately. Some other
providers may also have additional registration or eligibility requirements
in order to use their services. You acknowledge and agree that SMTA is not
responsible and shall not be liable, directly or indirectly, for any damage
or loss caused or alleged to be caused by or in connection with use of or
reliance on any content, goods or services available on or through their
respective providers.
SPEED: Due to DSL technology
characteristics, the maximum DSL Internet access speed deliverable to you
cannot be finally determined until time of installation. In the event
the ordered DSL service speed is not deliverable to you, you shall
automatically receive and accept the appropriate DSL service which we offer,
at the applicable lower rate, unless the ordered service speed is already
the lowest then offered by us or we are unable to offer service at any
speed, in which case no service shall be provided, and the Service Agreement
for DSL access shall be terminated with no liability to Customer or SMTA.
Speeds are not guaranteed by SMTA due to factors that may affect the actual
speed delivered, including loop length, condition of facilities, and
limitations in network design.
TERM AND TERMINATION: This Agreement for
the use of the Service will be in effect from the date your application is
accepted by SMTA. You may terminate this Agreement and your use of the
Service by written notice to SMTA (via e-mail, fax or U.S. mail). This
Agreement and your use of the Service may be terminated by SMTA at any time
with or without notice to you for any reason, including, without limitation,
for lack of use, nonpayment of fees, or if SMTA believes that you have
violated or acted inconsistently with the letter or spirit of this
Agreement. Pursuant to the Digital Millennium Copyright Act of 1998, SMTA
will terminate service to repeat copyright infringement offenders.
SMTA may also in its sole discretion and at any time discontinue providing
the service, or any part thereof, with or without notice to you. The
provisions of this customer agreement and all obligations of and
restrictions on you and any user of your account with respect to the Service
shall survive any termination of this Agreement.
SERVICE RATES; PAYMENT OF FEES; PENALTIES:
The rates and charges for the Service shall be as set forth in your
Acknowledgment package or otherwise in accordance with SMTA's rate schedule
as in effect from time to time, a copy of which will be available on-line on
the Service or otherwise shall be provided to you upon request. Rates and
charges, and other terms and conditions of the Service, are subject to
change by SMTA from time to time by notice to you provided on the Service or
otherwise. SMTA's accounting cycle begins on the first day of each
calendar month. You will be invoiced directly by SMTA in advance for one
calendar month of the Service. Charges for accounts that are
terminated, either by you or by SMTA, may be prorated to the date of
disconnection. You agree to pay the applicable fees as set forth on
your invoice by the due date, and to pay any interest or late fees incurred
for late payment of the required fees. In the event you do not pay the
fees invoiced to you by the due date, the Service will be inaccessible to
you until you pay all fees owed to SMTA as well as a reconnection fee.
If you return a modem purchased from SMTA within 30 days of activation of
the Service, a 15% restocking charge will be applied. Returns of
modems purchased from SMTA after 30 days of activation of the Service is
prohibited.
INTERNET SERVICES AND IP ADDRESSES:
Providing Internet services (web/mail/news/chat/etc. servers) with SMTA DSL
service is expressly forbidden. IP assignments are not guaranteed or
permanently assigned, and may be changed at the sole discretion of SMTA.
One private IP address is provided per DSL account. Utilization of these IP
addresses by the customer for private (home/office) networks is strictly
forbidden.
THE RESPONSIBILITIES OF USER: You
agree not to transmit or publish on or over the Service any information,
software or other content, which violates or infringes upon the rights of
others. You agree to comply with all applicable laws, rules and
regulations in connection with the Service. You acknowledge and agree
that you are aware that certain content, services or locations of the
Service or of other parties that may be accessible through the Service may
contain material that is unsuitable for minors (persons under 18 years of
age) and that SMTA does not screen or censor such content with regard to
copyright, obscenity, safety, integrity or reliability. You agree to
supervise usage of the Service by any minors whom you permit to use the
Service.
ACCEPTABLE USE POLICIES: You acknowledge
and agree that SMTA has certain legal and ethical responsibilities with
respect to the provision of the Services. SMTA, therefore, strictly
prohibits system abuse, which includes, without limitation, the following
actions, a) upload, post, email or otherwise transmit any content that is
unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory,
vulgar, obscene, libelous, invasive of another’s privacy, hateful, or
racially, ethnically or otherwise objectionable; b) harm minors in any way;
c) impersonate any person or entity, including, but not limited to, an SMTA
official, forum leader, guide or host, or falsely state or otherwise
misrepresent your affiliation with a person or entity; d) forge headers or
otherwise manipulate identifiers in order to disguise the origin of any
content transmitted through the Service; e) upload, post, email or otherwise
transmit any content that you do not have a right to transmit under any law
or under contractual or fiduciary relationships (such as inside information,
proprietary and confidential information learned or disclosed as part of
employment relationships or under nondisclosure agreements); f) upload,
post, email or otherwise transmit any content that infringes any patent,
trademark, trade secret, copyright or other proprietary rights of any party;
g) upload, post, email or otherwise transmit any unsolicited or unauthorized
advertising, promotional materials, "junk mail," "spam,"
"chain letters," "pyramid schemes," or any other form of
solicitation, except in those areas (such as shopping rooms) that are
designated for such purpose; h) upload, post, email or otherwise transmit
any material that contains software viruses or any other computer code,
files or programs designed to interrupt, destroy or limit the functionality
of any computer software or hardware or telecommunications equipment; i)
disrupt the normal flow of dialogue, cause a screen to "scroll"
faster than other users of the Service are able to type, or otherwise act in
a manner that negatively affects other users' ability to engage in real time
exchanges; j) interfere with or disrupt the Service or servers or networks
connected to the Service, or disobey any requirements, procedures, policies
or regulations of networks connected to the Service; k) intentionally or
unintentionally violate any applicable local, state, national or
international law, including, but not limited to, regulations promulgated by
the U.S. Securities and Exchange Commission, any rules of any national or
other securities exchange, including, without limitation, the New York Stock
Exchange, the American Stock Exchange or the NASDAQ, and any regulations
having the force of law; l) "stalk" or otherwise harass another;
or m) collect or store personal data about other users. SMTA may take
such action as it deems appropriate against you for violations of these
policies, including, without limitation, removing any content that violates
this Agreement, terminating this Agreement and your use of the Service, and
cooperating with law enforcement officials by providing whatever information
may be requested upon presentation by such officials of appropriate
authorization from a court having jurisdiction over the subject matter.
However, there is no promise or obligation on our part to monitor or police
any such activity and SMTA will have no liability to any party for any other
party's violation of these policies.
LIMITATION OF WARRANTIES AND LIABILITY; DISCLAIMER OF WARRANTIES: YOU
EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER SMTA
NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS,
LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES SMTA OR ANY OF ITS UNDERLYING SERVICE
PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY
WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE
SERVICE IS DISTRIBUTED ON AN "AS IS", "AS AVAILABLE"
BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN
THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,
RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS CUSTOMER
AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER SMTA NOR
ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS,
EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL,
INDIRECT OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PARTY AS A RESULT
OF THE OPERATION OR MALFUNCTION OF THE SERVICE, REGARDLESS OF WHETHER OR NOT
SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU
EXPRESSLY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY
TO ALL CONTENT OR OTHER SERVICES AVAILABLE THROUGH THE SERVICE. YOU AGREE
THAT YOU WILL NOT IN ANY WAY HOLD SMTA RESPONSIBLE FOR ANY SELECTION OR
RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH
THE SERVICE (INCLUDING THOSE WITH WHOM SMTA MAY CONTRACT TO OPERATE VARIOUS
AREAS ON THE SERVICE).
YOUR REMEDIES: Your sole and exclusive
remedy for any failure or non-performance of the Service (including any
associated software or other materials supplied in connection with the
Service) shall be for SMTA to use commercially reasonable efforts to repair
the Service.
LIMITATION OF LIABILITY: In the event that a court should hold that the
limitations of liabilities or remedies available as set forth in this
Agreement, or any portions thereof, are unenforceable for any reason, or
that any of your remedies under this Agreement fail of their essential
purpose, you expressly agree that under no circumstances shall SMTA's total
liability to you or any party claiming by, through or under you for any
cause whatsoever, and regardless of the form of action, whether in contract
or in tort, including negligence, in the aggregate, exceed the amount of
charges paid by you for use of the Service under this Agreement during the
twelve-month period preceding the date such claim first arose.
INDEMNIFICATION BY YOU: You shall
indemnify and hold harmless SMTA and any of its underlying service
providers, information providers, licensers, employees or agents from and
against any and all claims, demands, actions, causes of action, suits,
proceedings, losses, damages, costs, and expenses, including reasonable
attorneys fees, arising from or relating to your use of the Service, or any
act, error, or omission of you or any user of your account in connection
therewith, including, but not limited to, matters relating to incorrect,
incomplete, or misleading information; libel; invasion of privacy;
infringement of a copyright, trade name, trademark, service mark, or other
intellectual property; any defective product or any injury or damage to
person or property caused by any products sold or otherwise distributed
through or in connection with the Service; or violation of any applicable
law.
USE OF MATERIALS, MARKS AND INFORMATION:
You retain any copyright, trademark, patent or other intellectual property
rights in the material or the products, services, processes or technology
created by you and posted or uploaded to the Service. SMTA reserves
the right to use and/or copy such material in the day-to-day operation of
its business. You may use, copy and distribute the materials found on
the Service for internal, noncommercial, informational services only. All
copies that you make of the material must bear any copyright, trademark or
other proprietary notice, which pertain to the material being copied. Except
as authorized in this paragraph, you are not being granted a license under
any copyright, trademark, patent or other intellectual property right in the
material or the products, services, processes or technology described
therein. SMTA, its affiliates and/or any third party owner of such rights
retain all such rights. The SMTA company name and logo and all related
product and service names, design marks and slogans are the property of SMTA.
You are not authorized to use any SMTA name or mark in any advertising,
publicity or in any other commercial manner without the prior written
consent of SMTA. Any feedback, data, answers, questions, comments,
suggestions, ideas or the like, which you send to SMTA will be treated as
being non-confidential and nonproprietary. SMTA assumes no obligation
to protect such information from disclosure and will be free to reproduce,
use, and distribute the information to others without restriction.
SMTA will also be free to use any ideas, concepts, know-how or techniques
contained in such information for any purpose whatsoever including but not
limited to developing, manufacturing and marketing products and services
incorporating such information. SMTA may also use your status as a
subscriber to the Service for the purpose of marketing to you other SMTA
products and services.
ENDORSEMENTS: All product and service
marks contained on or associated with the Service that are not SMTA’s
marks are the trademarks of their respective owners. References to any
names, marks, products or services of third parties or hypertext links to
third party sites or information do not necessarily constitute or imply
SMTA's endorsement, sponsorship or recommendation of the third party,
information, product or service.
PERSONAL WEB PAGES: SMTA makes
personal web pages available as a feature of its SMTA DSL Service as set
forth in your acknowledgment package. If you subscribe to this feature the
following provisions of this Section shall apply (in addition to the other
provisions of this Agreement): SMTA may provide a listing/link to your
personal web page on its service portal or other mechanisms. By subscribing
to the personal web page feature, you authorize and grant SMTA the right to
use your name, web site address and similar information in such listing or
directory sites or applications. You may use the complete address (URL)
granted to you as part of the personal web page feature (which may have
names or marks of SMTA embedded therein) so long as you are obtaining the
personal web page feature from SMTA hereunder, but only for the purpose of
identifying the location of your personal web page on SMTA's Service.
Otherwise, you shall not utilize the name or any marks of SMTA or any of its
affiliates in any press releases, promotional materials or other commercial
manner without the express prior written approval of SMTA in each instance.
Ownership of all graphics, text or other information or content materials
supplied or furnished by you for incorporation into or delivery through your
personal web page shall remain with you (or the party which supplied such
materials to you). Ownership of any software developed or modified by SMTA
and all graphics, text or other information or content materials supplied or
furnished by SMTA for incorporation into your personal web page, shall
remain with SMTA (or the party which supplied such materials to SMTA), and
may be used only while you are obtaining the personal web page feature from
SMTA. The domain name and address (URL) granted to you for use with the
personal web page feature shall remain the property of SMTA, shall be used
by you only so long as you are obtaining the personal web page feature from
SMTA hereunder, and may be subject to change by SMTA or applicable Internet
domain name registry or granting authority from time to time. SMTA
reserves the right to approve subscriber Uniform Resource Locator (URL's)
that will be used in conjunction with an SMTA registered domain name and
personal web page feature. URL's registered using an SMTA owned domain name
are not transferable by subscribers upon account termination and will be
retained by SMTA. You acknowledge and agree: (i) that the primary
function of SMTA's personal web page feature as it relates to your personal
web page is to facilitate access by end users to the information provided
through your personal web page; (ii) that SMTA has no proprietary,
financial, or other interest in any of the content or information that may
be described in or made available through your personal web page; and (iii)
that you are solely responsible for the content, quality, performance, and
all other aspects of the information or other content contained in or
provided through your personal web page. You represent and warrant that you
will own or have the right to use and offer all such information or other
content in the manner in which the same will be used, offered or provided in
connection with your personal web page prior to posting it on your personal
web page. You shall indemnify and hold harmless SMTA from and against any
and all claims, demands, actions, causes of action, suits, proceedings,
losses, damages, costs, and expenses, including reasonable attorneys fees,
arising from or relating to your personal web page or an end user's use
thereof, or any act, error, or omission of yours in connection therewith,
including, but not limited to, matters relating to incorrect, incomplete, or
misleading information; libel; invasion of privacy; infringement of a
copyright, trade name, trademark, service mark, or other intellectual
property; or violation of any applicable law.
GENERAL: SMTA shall not be
responsible for any delay in delivery or performance of any of its duties
hereunder due to acts of God, acts or omissions of any telephone network or
any other occurrence commonly known as force majeure. Your right to
use the Service is not transferable and is subject to any limits established
by SMTA. No action, regardless of form, arising out of the Service or
this Agreement may be brought by you or any party claiming by, through or
under you more than one year after the cause of action has arisen.
This Agreement and the Service shall be governed by the laws of the State of
Ohio, without regard to its conflicts of laws provisions. By using the
Service, you agree that any disputes between you and SMTA shall be brought
exclusively in the State of Ohio or the United States District Court for the
District of Ohio. If any provision or provisions hereof shall be held to be
invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not be in any way affected
or impaired thereby. This Agreement and any modifications published by
SMTA over the Service constitute the entire and only agreement between you
and SMTA with respect to the Service and supersede all other communications
and agreements with regard to the subject matter hereof. By posting updated
versions of this Agreement on the Service or otherwise providing notice to
you, SMTA may modify the terms of this Agreement or prices for the Service,
and may discontinue or revise any or all other aspects of the Service in its
sole discretion and without prior notice. All such changes shall become
effective upon posting of the revised Agreement on the Service. The updated,
on-line version of this Agreement shall supersede any prior paper copies of
this Agreement that may have been included in the Acknowledgment package,
any browser software or related materials provided by SMTA.
You are responsible for and must provide all telephone
premise wiring and other equipment, software, and services necessary to
access the Service. SMTA will cooperate with law enforcement officials
in the pursuit of information or access to data when presented with
appropriate authorization from a court having jurisdiction over the subject
matter. You release and hold SMTA harmless for any disclosure of
information, including personally identifiable information, e-mail,
confidential information or contact information, to such law enforcement
officials in response to such subpoenas or court orders. SMTA will
cooperate with requests for information accompanying subpoenas or similar
court orders for disclosure of information in civil cases.
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