PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE
SERVICE. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS
BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR
USE THE SERVICE.
Warranty Disclaimer
THE FOREGOING WARRANTIES SET FORTH ARE EXCLUSIVE AND NO OTHER
WARRANTY IS EXPRESSED OR IMPLIED.
CYBERONIC INTERNET COMMUNICATIONS, INC exercises no control
whatsoever over the content of the information passing through CYBERONIC INTERNET
COMMUNICATIONS, INC'S system. Use of any information obtained via CYBERONIC INTERNET
COMMUNICATIONS, INC is at User's risk. Neither CYBERONIC INTERNET COMMUNICATIONS, INC nor
any of its affiliates, its licensers, its contractors or their respective employees
warrant that the Service will be uninterrupted or error free; nor does CYBERONIC INTERNET
COMMUNICATIONS, INC make any warranty as to the results from use of the Service.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM COURSE
OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION GIVEN BY CYBERONIC INTERNET
COMMUNICATIONS, INC, ITS AFFILIATES, ITS LICENSERS, ITS CONTRACTORS OR THEIR RESPECTIVE
EMPLOYEES SHALL CREATE A WARRANTY. NEITHER CYBERONIC INTERNET COMMUNICATIONS, INC NOR ITS
AFFILIATES, ITS LICENSERS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WARRANTS THAT THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER
MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, CANCELBOTS, WORMS, TROJAN HORSES OR
OTHER HARMFUL COMPONENTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL CYBERONIC INTERNET COMMUNICATIONS,
INC, ITS AFFILIATES, ITS LICENSERS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
THAT RESULT IN ANY WAY FROM USER'S USE OF OR INABILITY TO USE THE SERVICE OR TO ACCESS THE
INTERNET OR ANY PART THEREOF, OR USER'S RELIANCE ON OR USE OF INFORMATION, SERVICES OR
MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS,
INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION,
ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR
DESTRUCTION OR UNAUTHORIZED ACCESS TO ALTERATION OF OR USE OF USER'S ACCOUNT, WHETHER FOR
BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION. IN THE EVENT CYBERONIC
INTERNET COMMUNICATIONS, INC IS FOUND LIABLE UNDER ANY CIRCUMSTANCE UNDER THE TERMS OF
THIS AGREEMENT, CYBERONIC INTERNET COMMUNICATIONS, INC'S LIABILITY SHALL BE LIMITED TO THE
UNUSED BALANCE OF USER'S SUBSCRIPTION PAYMENT PRO-RATED TO REFLECT THE CURRENT TERM.
If User is dissatisfied with the Service or with any terms,
conditions, rules, policies, guidelines or practices of CYBERONIC INTERNET COMMUNICATIONS,
INC in operating the Service, User's sole and exclusive remedy is to discontinue using the
Service.
Indemnification
Notwithstanding anything to the contrary herein contained, User
agrees to indemnify and hold CYBERONIC INTERNET COMMUNICATIONS, INC, its affiliates, its
licensers, its contractors or their respective employees harmless against any and all
liability, loss, claim, judgment, damage and expense including without limitation
attorney's fees and cost of litigation) incurred or suffered by CYBERONIC INTERNET
COMMUNICATIONS, INC, its licensers, its affiliates, its contractors, or their respective
employees as the result of any and all use of User's account whether authorized or not
authorized or as a result of the negligence, willful misconduct, or breach of any of the
terms of this Agreement by User, including but not limited to claims, liabilities, losses,
damage, judgment and expense which arise out of alleged injury or death of any person or
damage to property of every kind and description. User shall promptly notify CYBERONIC
INTERNET COMMUNICATIONS, INC in writing of any claim of which it is obligated under this
indemnity. User shall have the right to assume the defense of any such claim. User and
CYBERONIC INTERNET COMMUNICATIONS, INC shall confer as to and agree on the legal
counsel(s) to be selected in any such defense.
Age Limit
User represents to CYBERONIC INTERNET COMMUNICATIONS, INC that he
or she is 18 years of age or older. User understands that certain materials available from
Service provided under the terms of this Agreement may not be suitable for individuals
under the age of 18.
Sexually Explicit Materials
User understands that the Internet contains unedited materials
some of which are sexually explicit or may be offensive. User accesses such materials at
his or her own risk. CYBERONIC INTERNET COMMUNICATIONS, INC has no control over and
accepts no responsibility whatsoever for such materials.
Prohibited Uses
User may not:
restrict or inhibit any other user from using and enjoying the
Internet;
post or transmit any unlawful, threatening, abusive, libelous,
defamatory, obscene, pornographic, profane, or otherwise objectionable information of any
kind, including without limitation any transmissions constituting or encouraging conduct
that would constitute a criminal offense, give rise to civil liability, or otherwise
violate any local, state, national or international law, including without limitation the
U.S. export control laws and regulations;
post or transmit any information or software which contains a
virus, cancelbot, trojan horse, worm or other harmful component;
post, publish, transmit, reproduce, distribute or in any way
exploit any information, software or other material obtained through the Service for
commercial purposes (other than as expressly permitted by the provider of such
information, software or other material);
upload, post, publish, transmit, reproduce, or distribute in any
way, information, software or other material obtained through the Service which is
protected by copyright, or other proprietary right, or derivative works with respect
thereto, without obtaining permission of the copyright owner or rightholder;
upload, post, publish, transmit, reproduce, transmit or
distribute in any way any component of the Service itself or derivative works with respect
thereto;
send unsolicited advertising or promotional materials to other
network users (See section titled "MESSAGING");
allow users to run Maillist, Listserv or any form of
auto-responds from User's account;
run or activate processes while User is not logged in;
violate the security of any computer network, crack passwords or
security encryption codes, transfer or store illegal material including that deemed
threatening or obscene, or engage in any kind or illegal activity;
attempt to defeat any idle timer or system tool intended to
enforce the part-time and personal nature of User's connection, including the use of
pingbots and other methods of avoiding timing disconnection (See section titled
"LIMITATIONS OF DIAL-UP SERVICES"); or
violate any of the rules, regulations and policies of those
networks and computer systems accessed via User's account.
CYBERONIC INTERNET COMMUNICATIONS, INC has no obligation to
monitor the Service. However, User agrees that CYBERONIC INTERNET COMMUNICATIONS, INC has
the right to monitor the Service electronically from time to time and to disclose any
information as may be necessary to satisfy any law, regulation or other governmental
request, to operate the Service properly, or to protect itself or its subscribers.
CYBERONIC INTERNET COMMUNICATIONS, INC will not intentionally monitor or disclose any
private E-mail message unless required by law. CYBERONIC INTERNET COMMUNICATIONS, INC
reserves the right to refuse to post or to remove any information or materials, in whole
or in part, that, in its sole and absolute discretion, are unacceptable, undesirable, or
in violation of this Agreement. CYBERONIC INTERNET COMMUNICATIONS, INC reserves the right
to suspend access to the Service for User's account. The account's suspension may be
rescinded within the sole and absolute discretion of CYBERONIC INTERNET COMMUNICATIONS,
INC following payment of a reconnection charge, to be determined by CYBERONIC INTERNET
COMMUNICATIONS, INC in its sole and absolute discretion.
Messaging
User agrees to limit their use of the CYBERONIC INTERNET
COMMUNICATIONS, INC service, specifically regarding the use of CYBERONIC INTERNET
COMMUNICATIONS, INC's electronic (email) services, to the following restrictions:
Mass Mailing
User is restricted to the transmission, or distribution, of no
more than fifty (50) recipients, or addresses, per email message. This does not assume
User is allowed to send such messages several times to groups smaller than the fifty (50)
limit. Mass unsolicited commercial email ("spam") sent using a Cyberonic
Internet Communications, Inc. connection constitutes illegal use per US Code Title 47,
Sec.227(b)(1)(C).
Unauthorized Use of Relay Servers
User agrees that any unauthorized use of any email server located
throughout the Internet for the purposes of relaying or distributing messages is
prohibited.
Fraudulent Addressing
User agrees that the purposeful distribution of any email message
where the return address, originator's address, or any other identifiable aspect of the
message has been purposefully altered, is prohibited. User may not purposefully
misrepresent the origination information of any email messages sent while using the
CYBERONIC INTERNET COMMUNICATIONS, INC service.
Fraudulent Content
User agrees to be held responsible for the distribution of
fraudulent materials.
VIOLATION OF ANY OF THESE TERMS WILL RESULT IN IMMEDIATE
TERMINATION OF SERVICES.
Limitation of Dial-Up Services
Although CYBERONIC INTERNET COMMUNICATIONS, INC advertises
"Unlimited Access" in regards to some of it's Dial-Up services, there are
several limitations applied. The sole purpose of these limitations are intended to limit
the amount of unnecessary use of CYBERONIC INTERNET COMMUNICATIONS, INC services by any
such User, which restricts overall CYBERONIC INTERNET COMMUNICATIONS, INC system
availability for other such Users. These limitations apply only to Dial-Up access services
offered by CYBERONIC INTERNET COMMUNICATIONS, INC.
Idle Timeout
User agrees to have their online session automatically terminated
after ten (10) minutes of consecutive inactivity. Inactivity is defined as less than 500
bytes of data transferred between User's modem and the CYBERONIC INTERNET COMMUNICATIONS,
INC service.
Maximum Single Session
User agrees to have an online session automatically terminated
after eight (8) hours of consecutive time, regardless of data transferred during such
specific online session.
Minimum Re-Connect Limit
User understands they cannot log back onto the CYBERONIC INTERNET
COMMUNICATIONS, INC system for a time period of one (1) minute following the termination
of their previous online session, regardless of the reason for the previous session's
termination.
Multiple, Concurrent Online Sessions
User agrees to maintain no more than one (1) concurrent online
session for each PPP/ISDN account purchased.
Terms of Payment
User shall be responsible for any and all fixed and accumulative
charges for User's account. The first month service fee (or other available billing period
selected) is due upon account setup. Each month (or other billing period selected) on the
date of the application, User's account shall be charged the monthly access and any other
fees for the new month plus any accumulated charges for prior months. Failure to use this
account(s) does not relieve User of payment obligations.
A credit card User agrees to allow CYBERONIC INTERNET
COMMUNICATIONS, INC to bill his or her card on each successive billing date without
obtaining User's permission after the initial charge. A credit card User shall notify
CYBERONIC INTERNET COMMUNICATIONS, INC of any changes in credit card number or expiration
date. If the card is not honored for any reason, CYBERONIC INTERNET COMMUNICATIONS, INC
will attempt to notify the card holder by using the telephone information given at sign-up
and by E-mail. CYBERONIC INTERNET COMMUNICATIONS, INC will call the card holder, and if
alternative billing has not been established within five (5) days, the account will be
terminated. Restoring the account will be subject to a setup fee of $10.00.
If payment is by check, payment due dates are indicated on User's
invoice. Dishonored checks are subject to a collection fee to be determined by CYBERONIC
INTERNET COMMUNICATIONS, INC in its sole and absolute discretion and User's account may be
suspended until the account is current. If payment is not received within five (5) days of
the due date, service will be terminated and a setup fee of $10.00 will be added to
charges for additional Service.
CYBERONIC INTERNET COMMUNICATIONS, INC maintains the right to
terminate Service for any unpaid subscriptions. Accounts in default are subject to an
interest charge of 1.5% per month on the outstanding balance. Termination of Service shall
not relieve User from the obligation to satisfy outstanding invoices. In the event
CYBERONIC INTERNET COMMUNICATIONS, INC utilizes an attorney to collect any unpaid amounts,
User shall be responsible for the payment of all of CYBERONIC INTERNET COMMUNICATIONS,
INC'S attorneys' fees and costs in the collection of these sums.
CYBERONIC INTERNET COMMUNICATIONS, INC reserves the right to
change prices at any time without prior notice to it's customers or the public. Price
changes will not be retroactive for existing customers, regardless of the length of their
existing service subscription.
Please verify the access number you are using from our list is in
your local calling area. It is strictly customer's responsibility for all toll charges
from local and long distance phone company.
Right to Cancel
CYBERONIC INTERNET COMMUNICATIONS, INC reserves the right to
cancel Service for any reason without prior notice.
Cancellations must be requested via telephone during regular business hours (8am to 5pm).
Pre-paid accounts who cancel before their year is completed, will be charged a one-time
$50 processing fee. Any remaining balance will then be refunded to the customer. CYBERONIC
INTERNET COMMUNICATIONS, INC will not refund shipping & handling fees or any one-time
start-up fee. Cancellations after the first of the month will be charged for that month.
User must notify CYBERONIC INTERNET COMMUNICATIONS, INC via
telephone or in writing to cancel Service. Cancellations submitted to CYBERONIC INTERNET
COMMUNICATIONS, INC via electronic mail shall not be honored. Fees for any setup, shipping
and handling, and the first month's Service are not refundable.
No Confidentiality
Information transmitted through CYBERONIC INTERNET
COMMUNICATIONS, INC and through the Internet in general is not confidential. CYBERONIC
INTERNET COMMUNICATIONS, INC can not and shall not guarantee privacy or protection of any
User. CYBERONIC INTERNET COMMUNICATIONS, INC reserves the right to monitor any User's
transmissions when deemed necessary for providing proper service and/or to protect the
rights and property of CYBERONIC INTERNET COMMUNICATIONS, INC.
Customer Information
Unless required by court order, subpoena or other legal request,
or upon the advice of counsel, and unless User notifies CYBERONIC INTERNET COMMUNICATIONS,
INC to the contrary by calling 508/753-4545, CYBERONIC INTERNET COMMUNICATIONS, INC may
publish User's name and other consumer information in one or more directories which may be
accessed by other Internet users. In addition, unless User notifies CYBERONIC INTERNET
COMMUNICATIONS, INC to the contrary as provided above, CYBERONIC INTERNET COMMUNICATIONS,
INC may make such information available to third parties from time to time. User
understands further that merchants on the Internet may have access to such information and
may make it available to third parties in accordance with their normal practices unless
User notifies those merchants directly that User does not wish such information to be made
available.
Non-transferable
The right to use the Service is not transferable. Accounts are
for User's use only. User shall be responsible for the confidentiality of User's password.
Loaning User's account to others, connecting a system used by multiple persons, group use
of user log-ins, and consuming more than one modem line are explicitly prohibited. If User
has multiple accounts, then User shall be limited to one log-in session per system account
at any time. Violation of those terms shall constitute theft of Service and may be
prosecuted under civil and criminal law.
Purchases on the Service
If User wishes to make purchases on the Service, User may be
asked by the merchant or information or service provider from whom User is making the
purchase to supply certain information, including credit card or other payment mechanism
information. User agrees that all information User may provide any merchant or information
or service provider on the Service for purposes of making purchases shall be accurate,
complete and current. The merchants and information and service providers offering
merchandise, information and services on the Service set their own prices and may change
prices or institute new prices at any time. User agrees to pay all charges incurred by
users of User's account and credit card or other payment mechanism at the prices in effect
when such charges are incurred. User shall also be responsible for paying any applicable
taxes relating to purchases on the Service.
No System Backup
CYBERONIC INTERNET COMMUNICATIONS, INC does not and will not
perform system backups on any User's E-mail account(s). CYBERONIC INTERNET COMMUNICATIONS,
INC shall not be held responsible for any lost E-mail data, email attachments, or any
E-mail message contents, regardless of the reasoning for data loss or system causes.
Except as otherwise set forth herein, CYBERONIC INTERNET COMMUNICATIONS, INC will not
provide historical data, to any party for any reason, regarding any system or Internet
activity.
CYBERONIC INTERNET COMMUNICATIONS, INC does not and will not
perform system backups on any User's personal web site account(s). CYBERONIC INTERNET
COMMUNICATIONS, INC shall not be held responsible for any lost web data, web files, or any
web site contents, regardless of the reasoning for data loss or system causes. Except as
otherwise set forth herein, CYBERONIC INTERNET COMMUNICATIONS, INC will not provide
historical data, to any party for any reason, regarding any system or Internet activity.
Failure to Comply With Terms and Conditions
CYBERONIC INTERNET COMMUNICATIONS, INC may deny User access to
all or part of the Service without notice if User engages in any conduct or activities
that CYBERONIC INTERNET COMMUNICATIONS, INC in its sole discretion believes violates any
of the terms and conditions in this Agreement. If CYBERONIC INTERNET COMMUNICATIONS, INC
denies User access to the Service because of such a violation, User shall have not right
(1) to access through CYBERONIC INTERNET COMMUNICATIONS, INC any materials stored on the
Internet, (2) to obtain any credit(s) otherwise due to User, and such credit(s) shall be
forfeited, (3) to access third party services, merchandise or information on the Internet
through CYBERONIC INTERNET COMMUNICATIONS, INC, and CYBERONIC INTERNET COMMUNICATIONS, INC
shall have no responsibility to notify any third-party providers of services, merchandise
or information nor any responsibility for any consequences resulting from lack of
notification.
Miscellaneous
User agrees to remain signed into the network only when actually
making use of same, and to disconnect when idle for significant periods of time (more than
10 minutes). User also agrees to not remain connected to CYBERONIC INTERNET
COMMUNICATIONS, INC's system for periods exceeding (8) eight hours, in any single
continuous session. User authorizes CYBERONIC INTERNET COMMUNICATIONS, INC to enforce
these restrictions by appropriate software and network measures, automated and manual.
User agrees to notify CYBERONIC INTERNET COMMUNICATIONS, INC if
User moves or otherwise changes his or her mailing address or phone number, and to list a
truthful name, postal address and telephone number on the forms User supplies to CYBERONIC
INTERNET COMMUNICATIONS, INC.
In the event that any portion of this Agreement is held to be
unenforceable, the unenforceable portion shall be construed in accordance with applicable
law as nearly as possible to reflect the original intentions of the parties and the
remainder of the provisions shall remain in full force and effect.
CYBERONIC INTERNET COMMUNICATIONS, INC'S failure to insist upon
or enforce strict performance of any provisions of this Agreement shall not be construed
as a waiver of any provision or right. neither the course of conduct between parties nor
trade practice shall act to modify any provision of this Agreement.
CYBERONIC INTERNET COMMUNICATIONS, INC may modify this Agreement
from time to time by placing a notice of such modification at
http://www.cyberonic.com/announce.html, and User's continued use of the Service following
notice of such modification shall be deemed to be User's acceptance of any such
modification. It is User's responsibility to check this online area regularly to determine
whether this Agreement has been modified. If User does not agree to any modification of
this Agreement, User must immediately stop using the Service.
This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts without regard to its conflicts of law
provisions. Any cause of action User may have with respect to the Service must be
commenced within one (1) year after the claim or cause of action arises or such claim or
cause of action is barred.
CYBERONIC INTERNET COMMUNICATIONS, INC shall not be liable or
deemed to be in default for any delay or failure in performance under this Agreement or
interruption of service resulting directly or indirectly from acts of God, civil or
military authority, acts of public enemy, war, riots, civil disturbances, insurrections,
accidents, dire, explosions, earthquakes, floods, the elements, strikes, labor disputes,
shortages of suitable parts, materials, labor or transportation or any cause beyond the
reasonable control of CYBERONIC INTERNET COMMUNICATIONS, INC.
Venue for litigation of any dispute, controversy, or claim
arising out of, in connection with, or in relation to this Agreement, or the breach
thereof, naming CYBERONIC INTERNET COMMUNICATIONS, INC as the defendant, shall be proper
only in a venue determined by CYBERONIC INTERNET COMMUNICATIONS, INC.
In any action between CYBERONIC INTERNET COMMUNICATIONS, INC and
User to enforce any of the terms of this Agreement, CYBERONIC INTERNET COMMUNICATIONS, INC
shall be entitled to recover expenses, including reasonable attorney's fees.
This Agreement constitutes the entire agreement between User and
CYBERONIC INTERNET COMMUNICATIONS, INC with respect to the Service.
