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MartNet Usage and Service Agreement
USAGE AGREEMENT FOR ALL MARTNET PRODUCTS AND SERVICES
This agreement (the "Agreement") is by and between MartNet Communications, duly authorized and existing under the laws of the State of Pennsylvania with its main office at 1241 Carpenter Street, Philadelphia, PA 19147; and the Customer (Company or individual User of this Service) for the provision by MartNet Communications or its subcontractors of certain computer networking software and services as more particularly described below and is considered executed upon the Customer's usage of the MartNet service.
ARTICLE I - TERMS AND DEFINITIONS
Any individual or entity receiving any product or service MartNet Communications shall hereafter be referred to as Client. By accepting products and/or services provided by MartNet Communications, Client agrees to observe and abide by all of the provisions, terms, and requirements specified in this document. Recurring Charges are defined as charges agreed upon at a set rate for services rendered including, but not limited to, unlimited use dial up and shell accounts, Web Hosting Services, dedicated analog and digital Internet Access, and Server Co-location fees. Usage charges are defined as additional charges incurred for services including, but not limited to, additional bandwidth used but not covered under terms or recurring services. Products are defined as physical merchandise purchased from MartNet including, but not limited to, computer and telecommunications hardware, consulting services, and hardware maintenance contracts.
ARTICLE II - BILLING AND SERVICE FEES
MartNet Communications shall bill Client for services rendered at the published rate of such services at the time rendered. Client will be given advance notice of any change in recurring service fees. MartNet Communications reserves the right to change published rates and recurring service fees for service at any time, and agrees to provide no less than 30 days or one billing cycle, whichever is greater, prior notice to the Client. Recurring charges are billed monthly and are due prior to the billed month. Monthly fee for the first month is pro rated to the end of the month. For each month thereafter, the full monthly fee is due for any part of a month in which service is provided. No proration on the term for cancellation by the Customer for any prepayment is allowed. No refunds will be issued for unused service. Payment for a particular interval of time (one month, six months, year) constitutes agreement to this service contract for that time interval. Usage charges, if any, are billed upon completion of the billed month and are due by the end of the following month. Accounts in default are subject to a late fee of $5.00 or 5% per month, whichever is greater, on the outstanding balance. MartNet Communications shall bill Client for products sold at the quoted cost of such products at the time sold. Charges for products sold are due upon receipt of product. Accounts in default are subject to a late fee of $5.00 or 5% per month, whichever is greater, on the outstanding balance. A complete fee schedule is available from us upon request, and is available on the World Wide Web at http://www.martnet.com/. Unless otherwise stated in writing, our current, posted fees will apply to any and all MartNet services rendered. Fees for a particular service may also be amended to Article IV of this agreement. Although any paid subscription fee is non-refundable, each Client is free to terminate his or her subscription at any time for any reason. MartNet may terminate a subscription without notice if it reasonably concludes that any Client has breached these terms or applicable rules. MartNet shall be free to terminate its provision of this service, or any portion of this service, at any time on one month's notice or sooner if such cessation is beyond its reasonable control. To terminate your MartNet account, you must notify MartNet of your intention to do so. This can be done by telephone, or in writing. We will make every effort to comply to your request. However it is the customers responsibility to monitor their credit card or billing statement to ensure they are no longer being billed by MartNet Communications. If a customer does notice a discrepancy in there billing statement, they have 30 days from the date on the statement to inform MartNet of the error. If notification is not made, MartNet cannot be liable for refunds over 30 days without proof of notification.
ARTICLE III - TERMS OF SERVICE
Use of all MartNet services and resources is governed by the document titled MartNet Rules and Regulations, which shall be attached hereto as Exhibit A, unless otherwise stipulated in this contract. Use of all MartNet services and resources must comply with all Local, State, and Federal laws of Philadelphia, Pennsylvania, USA. MartNet Communications can terminate this account at will for any reason it solely determines. The Customer specifically waives the right to sue or ability to subrogate those rights for any losses. If MartNet Communications terminates the account for any reason other than failure to pay any and all fees associated with the account, MartNet Communications will refund any unused portion of the service (which, in this case, will be prorated). This service may only be used for lawful purposes. Materials and/or transmission in violation of any local, state, Federal or international regulation(s) is prohibited. This includes, but is not limited to, copyrighted material, threatening or obscene material, or material protected by trade secret. Customer agrees to indemnify and hold harmless MartNet Communications from any claims resulting from Customer's use of this service which damages Customer or any third party. All services to be provided by the Customer either in part or in total through MartNet Communications are appropriate subject to relevant Federal and State and International regulations. If these same services are offered through other networks, MartNet Communications accepts no responsibility for their authorization. MartNet Communications, or other relevant authorities may determine inappropriate usage of this service and the service may be revoked at MartNet Communications discretion.
Client is responsible for protecting all account passwords and for any authorized or unauthorized use made of Client's account. Client agrees to comply with the rules appropriate to any network to which Client may gain access via the services of MartNet Communications. Client acknowledges that any proprietary, confidential, or otherwise valuable information that Client desires to keep confidential should not be transmitted over any part of the Internet, nor reside on computers connected to the Internet. Client will not transmit or make available to the Internet any material that is illegal, libelous, tortuous, or likely to result in action against MartNet Communications or its clients. Client agrees that under no circumstances will the Client use MartNet Communications equipment and/or electronic mail addresses in connection with the sending of unsolicited electronic mail messages, commercial or otherwise, including, but not limited to, the sending of unsolicited mass mailings from another service which in any way implicates the use MartNet Communications service, equipment or any MartNet Communications electronic mail address.
Access and Network Usage
MartNet Communications shall require local access (via the public switched telephone system) to provide the Customer a link to MartNet. It is understood that MartNet Communications does not normally own or control the various cable, telecommunications or other facilities to which it may provide access, except those specifically identified as belonging to MartNet Communications. Arrangements for use of, or access to, such facilities must be made with those who own or control them. The Customer is responsible for providing, operating and maintaining the necessary cabling, computer hardware and computer software used for this service at their site. All local access installation and dial up costs are the responsibility of the Customer.
MartNet access shall be offered to the Customer in accordance with the criteria set by MartNet Communications as defined in Exhibit A. The Customer shall be responsible for user/access security and network access. MartNet Communications provides no user access security with respect to any the Customer facilities or facilities of others. MartNet Communications will assist in network security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so.
We offer private electronic mail on our system as a service to our subscribers. We will endeavor to keep all of your e-mail private, viewable only by you and the person to whom you address it, except: We, as system operators, may need to look at your electronic mail if we believe it is necessary to protect ourselves or other users from injury or damage. For example, if we have reason to believe a caller is involved in unlawful activities, which creates any risk that the authorities could seize our system, we will review his or her electronic mail for our own protection. We will not, however, monitor electronic mail unless we believe it is being misused. We will not deliberately disclose electronic mail to other users. If we believe certain electronic mail is connected with unlawful activities, we may disclose it to the authorities to protect our system, ourselves and other users. Remember that the person to whom you send electronic mail does not need to keep it secret. The sender or receiver of the electronic mail has the right to make it public. If the authorities ever search or seize our system, they may gain access to your private electronic mail. In that case, we cannot assure they will not review it. Remember that you have personal rights of privacy that even the government cannot legally violate, though you may have to go to court to enforce those rights. Except as expressly provided herein or as required by law, MartNet will not disclose the contents of private electronic mail to anyone other than addressees, authorized recipients, or those to whom such disclosure is necessary to assure forwarding or delivery. MartNet may use for its own purposes non-public information regarding system use by its subscribers (other than private electronic mail) and any information regarding the contents of public postings. MartNet will not reveal to any third party, including other members, any detailed, non-public information that identifiably discloses any member's specific use of the system, unless the member has received advance notification that the type of information involved will he disclosed or unless such disclosure is required to operate the system or by authorized demands of law enforcement authorities or by court order compelling disclosure of information within MartNet's control.
We want our system to be a worthwhile place for all our users. This does not mean everyone can do whatever they choose on this system, regardless of its effects on others. It is our job to accommodate the common needs of all users while striving to meet our own goals for the system. We will not monitor all messages and file transfers. We want to keep the message and file traffic moving quickly and smoothly - this goal would be defeated if we monitored everything on the system. However, if we set: (or hear about) messages or other activities that violate the rules or threaten the order or security of the system, we will take appropriate action. If a caller persists in posting messages or transferring files that we previously warned him should not be on our system, those messages will be deleted, and he or she may he locked out. If we discover any users violating the rules, especially the prohibition against unlawful activities, we will act firmly and swiftly. Depending on the circumstances, the caller involved will be warned, or simply locked out. If the caller has done anything to put us or other users in jeopardy, we may contact the authorities. We do not plan on doing any of these things. If all users act with respect and regard for us and other users, there will never be any problems. But if problems arise, we will assert control over our system against any caller who threatens it. And in this Agreement, you acknowledge that control.
Access to Other Networks
The Internet is made up of many interconnected public and private networks. Use of other networks may sometimes require approval of the respective network authorities and use will be subject to any acceptable usage policies such networks establish. Examples of such networks include but are not limited to the Internet II, AOL, NSFNET and other private networks. Use of MartNet services and resources to violate policies of other public and private networks is a violation of this agreement.
Limitation of Liability
Neither party shall be liable to the other for any loss, damage, liability, claim or expense arising out of or in relation to this Agreement or the provision of the service or equipment, however caused, whether grounded in contract, tort (including negligence) or theory of strict liability. In no event shall either party be liable for any incidental or consequential damages arising out of or in relation to this Agreement.
MartNet Communications makes no warranty with respect to any software or hardware used or provided by MartNet Communications in connection with this service. Any patent, trademark, trade secret or warranty infringements, whether actual or alleged, are the direct responsibility of the manufacturer of said hardware or software product. MartNet Communications assumes no responsibility for any actions or liabilities arising from the possession or use of these software or hardware products.
Client acknowledges that MartNet Communications makes no warranty of any kind, expressed or implied, regarding the reliability or suitability for a particular purpose of its services. MartNet Communications disclaims any warranty of merchantibility or fitness for a particular purpose. Client acknowledges and understands MartNet Communications exercises no control over the nature, content, or reliability of the information delivered to Client from the Internet via MartNet Communications. Client acknowledges MartNet Communications is not liable for any errors or interruption in Internet access service provided to Client, whether within or outside the control of MartNet Communications. Under no circumstances shall MartNet Communications be held responsible for damages or loss suffered by Client, including but not limited to special, incidental, consequential, or punitive damages, as a result of Client's direct or indirect use MartNet Communications services including, but not limited to, errors, delays, loss of information, or interruptions in service caused by Client's or MartNet Communicationsí or a third party's negligence, fault, misconduct, or failure to perform. Client acknowledges that Internet access service may be temporarily unavailable for scheduled or unscheduled maintenance, and for other reasons within and outside of the control of MartNet Communications. Under no circumstances do any such errors, delays, loss of information, or interruptions in service nullify or modify this agreement or any other agreement or contract entered into by MartNet Communications and Client. MartNet Communications reserves the right to refuse or terminate service to Client at any time.
The Customer shall not sell, transfer, or assign this Agreement without the prior written consent of MartNet Communications. Any act in derogation of the foregoing shall be null and void; provided, however, that any such assignment shall not relieve the Customer of their obligations under this Agreement.
Severability and Entire Agreement
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect. This Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral.
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