| Revision
January 1, 2000
GetSite
agrees to provide you ("User") with those services
("Service") set forth on the Application subject
to User's compliance with the terms and conditions
below.
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.
GetSite
exercises no control whatsoever over the content
of the information passing through GetSite's system.
Use of any information obtained via GetSite is at
User's risk. Neither GetSite 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 GetSite 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 GetSite, ITS AFFILIATES, ITS LICENSERS, ITS CONTRACTORS
OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY.
NEITHER GetSite 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 GetSite, 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 GetSite
IS FOUND LIABLE UNDER ANY CIRCUMSTANCE UNDER THE
TERMS OF THIS AGREEMENT, GetSite'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 GetSite 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 GetSite, 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 GetSite, 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 GetSite 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 GetSite shall confer
as to and agree on the legal counsel(s) to be selected
in any such defense.
GetSite
shall indemnify, defend and hold harmless USER from
any and all damages, liabilities, costs and expenses
(including reasonable attorney’s fees) incurred
by USER as a result of any claims that the Service,
when used within the scope of this Agreement, infringes
any copyright, trademark or trade secret of any
third party, provided that USER promptly notifies
GetSite in writing of any such claim and promptly
tenders the control of the defense and settlement
of any such claim to GetSite, at GetSite’s expense
and with GetSite’s choice of counsel.
Age
Limit
User
represents to GetSite that none of it’s employees
are 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. GetSite 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;
•
run or operate like services via connections into
or received from GetSite;
•
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.
GetSite
has no obligation to monitor the Service. However,
User agrees that GetSite 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. GetSite will
not intentionally monitor or disclose any private
E-mail message unless required by law. GetSite 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.
GetSite 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 GetSite following payment of a reconnection charge,
to be determined by GetSite in its sole and absolute
discretion.
Messaging
User
agrees to limit their use of the GetSite service,
specifically regarding the use of GetSite’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.
•
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 GetSite 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. Furthermore, violation of any of these
terms, relating to the terms described within this
"Messaging" section of this document, will result
in the IMMEDIATE PENALTY of $200. GetSite RESERVES
THE RIGHT TO CHARGE USER’S CREDIT CARD, IF ON FILE
FOR USE IN PAYMENT OF GetSite SERVICES, A ONE-TIME
FEE OF $200 PER VIOLATION OF THESE TERMS. IN THE
EVENT USER PRE-PAYS FOR THEIR GetSite SERVICE VIA
CASH, CHECK, OR MEANS OTHER THAN CREDIT CARD, GetSite
RESERVES THE RIGHT TO INVOICE AND HOLD USER RESPONSIBLE
FOR THE ONE-TIME FEE OF $200 PER VIOLATION OF THESE
TERMS. User also agrees to the immediate termination
of GetSite services for violation of any of these
terms.
Limitation
of Dial-Up Services
Although
GetSite 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 GetSite services by any such User, which
restricts overall GetSite system availability for
other such Users. These limitations apply only to
Dial-Up access services offered by GetSite.
•
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 GetSite 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 GetSite
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
Payment
on the first day of each month. Dishonored checks
are subject to a collection fee to be determined
by GetSite in its sole and absolute discretion and
User's account may be suspended until the account
is current. If payment is not received within ten
(5) days of the due date, service will be terminated
and a setup fee of $19.95 will be added to charges
for additional Service.
GetSite
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 GetSite utilizes an attorney
to collect any unpaid amounts, User shall be responsible
for the payment of all of GetSite's attorneys' fees
and costs in the collection of these sums.
GetSite
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.
No
Confidentiality
Information
transmitted through GetSite and through the Internet
in general is not confidential. GetSite can not
and shall not guarantee privacy or protection of
any User. GetSite 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 GetSite.
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
GetSite
does not and will not perform system backups on
any User's E-mail account(s). GetSite 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, GetSite will
not provide historical data, to any party for any
reason, regarding any system or Internet activity.
GetSite
does not and will not perform system backups on
any User's personal web site account(s). GetSite
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, GetSite will
not provide historical data, to any party for any
reason, regarding any system or Internet activity.
Failure
to Comply With Terms and Conditions
GetSite
may deny User access to all or part of the Service
without notice if User engages in any conduct or
activities that GetSite in its sole discretion believes
violates any of the terms and conditions in this
Agreement. If GetSite denies User access to the
Service because of such a violation, User shall
have no right (1) to access through GetSite 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
GetSite, and GetSite 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 GetSite’s system for periods exceeding (8) eight
hours, in any single continuous session. User authorizes
GetSite to enforce these restrictions by appropriate
software and network measures, automated and manual.
User
agrees to notify GetSite 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 GetSite.
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.
GetSite'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.
GetSite
may modify this Agreement from time to time by placing
a notice of such modification at http://www.GetSiteinc.com/tos.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 State of Florida
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.
GetSite
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 GetSite.
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
GetSite as the defendant, shall be proper only in
a venue determined by GetSite.
In
any action between GetSite and User to enforce any
of the terms of this Agreement, GetSite shall be
entitled to recover expenses, including reasonable
attorney's fees.
If
there is any conflict between this Agreement and
the GetSite Wholesale Service Agreement, the GetSite
Wholesale Service Agreement shall control.
|
