Service Agreement
 
   

   

Internet Access - Web Hosting - Web design
Service Agreement

This is a legal agreement between you and AcupoftheNet.com ("AcupoftheNet.com") for the use of the AcupoftheNet.com on-line gateway and Internet access service web hosting and all related features and services (the "Service"). If you do not agree to the terms and conditions in this Agreement, do not register for or use the Service. By completing the registration and/or 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, please return the client software and all associated materials to AcupoftheNet.com.

  1. The Service. The Service consists of dial-up Internet Protocol ("IP") connectivity to the AcupoftheNet.com on-line gateway, as well as access or connectivity to any of the information sources or services which may be provided by AcupoftheNet.com or be available from other service providers participating in or connected to AcupoftheNet.com's Service. Some of these additional services may be provided without charge to users of AcupoftheNet.com's Service, but separate charges may be applicable to some of these other services. These charges may appear on your bill from AcupoftheNet.com, or they may be billed to you separately by the providers of such services. Some other providers may also have additional registration or eligibility requirements in order to use their services. By posting updated versions of this Agreement on the Service or otherwise providing notice to you, AcupoftheNet.com 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, as to Service used by you after the date of such changes. The updated, on-line version of this Agreement shall supersede any prior paper or disk-based copies of this Agreement that may have been included in any browser software or related materials provided by AcupoftheNet.com.

  2. Term. This Agreement for the use of the Service will be in effect from the date your completed registration is accepted by AcupoftheNet.com. This Agreement and your use of the Service may be terminated by either you or AcupoftheNet.com at any time by written notice to the other, or by AcupoftheNet.com at any time with or without notice for your non-payment or other default. The provisions of paragraphs 4-9 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.

  3. Service Rates and Charges. The rates and charges for the Service shall be as set forth in your registration package or otherwise in accordance with AcupoftheNet.com'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 AcupoftheNet.com from time to time by notice to you provided on the Service or otherwise. You will be invoiced monthly for usage of the Service and for any other services utilized by you or other users of your account which are billed for by AcupoftheNet.com in connection with the Service (including any applicable taxes), either directly by AcupoftheNet.com or through your designated credit card company. If paid by credit card, the terms of the applicable credit card agreement will apply. Otherwise, payment for the Service and any such other services billed for by AcupoftheNet.com, including any applicable taxes, must be received by AcupoftheNet.com or its billing agent within thirty 30 days after the date of the invoice, and if any payment due hereunder is not made within thirty (30) days after the invoice date, late charges of one and one-half percent (1 1/2%) per month shall be due and payable with respect to such payment.

  4. Early Account Termination. You are responsible for, and will be charged, a $25.00 setup fee, upon early cancellation of service (under 30 days).

  5. Other Responsibilities of User. You agree that you will be the only user of your account ID and password and that you will not transfer or disclose either your account ID or password to any other person (except that you may at your own risk and on your own responsibility permit other members of your family or business associates to access the Service using your account ID and password), and that you will be responsible for all usage of the Service and any other services accessed through the Service on your account whether or not authorized by you. You agree to pay the applicable fees as set forth in your billing statement by the due date, and to pay any interest or late fees incurred for late payment of the required fees. 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 any others or to use the facilities and capabilities of the Service to conduct any business or activity or solicit the performance of any activity which is prohibited by law. You agree to comply with all applicable laws, rules and regulations in connection with the Service. You acknowledge 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). You agree to supervise usage of the Service by any minors whom you permit to use the Service.

  6. Limitation of Warranties and Liability; Disclaimer of Warranties. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER AcupoftheNet.com 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 AcupoftheNet.com 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 SERVICE AGREEMENT, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER AcupoftheNet.com 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 AcupoftheNet.com RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM AcupoftheNet.com MAY CONTRACT TO OPERATE VARIOUS AREAS ON THE SERVICE).

  7. Remedies of User. 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 AcupoftheNet.com to use commercially reasonable efforts to effectuate an adjustment or repair of the Service and, in the event such downtime exceeds twenty-four consecutive hours, to receive a pro-rata refund or credit of or against any charges otherwise payable for the Service for the period of Service downtime.

  8. 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 AcupoftheNet.com'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.

  9. Indemnification by User. You shall indemnify and hold harmless AcupoftheNet.com and any of its underlying service providers, information providers, licensors, 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.

  10. Use of Materials, Marks and Information.

    1. 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. All such rights are retained by AcupoftheNet.com, its affiliates and/or any third party owner of such rights.

    2. The AcupoftheNet.com company names and logos and all related product and service names, design marks and slogans are the property of AcupoftheNet.com or its affiliates. You are not authorized to use any AcupoftheNet.com name or mark in any advertising, publicity or in any other commercial manner without the prior written consent of AcupoftheNet.com.

    3. Any feedback, data, answers, questions, comments, suggestions, ideas or the like, which you send to AcupoftheNet.com will be treated as being nonconfidential and nonproprietary. AcupoftheNet.com assumes no obligation to protect such information from disclosure and will be free to reproduce, use, and distribute the information to others without restriction. AcupoftheNet.com 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.  may also use your status as a subscriber to the Service for the purpose of marketing to you other AcupoftheNet.com products and services.

  11. Endorsements. All product and service marks contained on or associated with the Service that are not AcupoftheNet.com 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 AcupoftheNet.com's endorsement, sponsorship or recommendation of the third party, information, product or service.

  12. Browser Software. If any Internet browser or other software has been provided to you for use with the Service, you agree to be bound by and to comply with the terms and conditions of the separate software license which is applicable to and was provided to you along with such software.

  13. Personal Web Pages. AcupoftheNet.com may make personal Web pages available as an optional feature of its AcupoftheNet.com Service. If you subscribe to such feature the following provisions of this Section shall apply (in addition to the other provisions of this Agreement:

    1. AcupoftheNet.com may provide a listing/link to users' personal Web pages on its AcupoftheNet.com Service gateway or other mechanisms. By subscribing to the personal Web page feature, you authorize and grant AcupoftheNet.com 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 AcupoftheNet.com embedded therein) so long as you are obtaining the personal Web page feature from AcupoftheNet.com hereunder, but only for the purpose of identifying the location of your personal Web site on AcupoftheNet.com's Service. Otherwise, you shall not utilize the name or any marks of AcupoftheNet.com or any of its affiliates in any press releases, promotional materials or other commercial manner without the express prior written approval of AcupoftheNet.com in each instance.

    2. 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 site shall remain with you (or the party which supplied such materials to you). Ownership of any software developed or modified by AcupoftheNet.com and all graphics, text or other information or content materials supplied or furnished by AcupoftheNet.com for incorporation into your personal Web site, shall remain with AcupoftheNet.com (or the party which supplied such materials to AcupoftheNet.com), and may be used only while you are obtaining the personal Web page feature from AcupoftheNet.com. The domain name and address (URL) granted to you for use with the personal Web page feature shall remain the property of AcupoftheNet.com, shall be used by you only so long as you are obtaining the personal Web page feature from AcupoftheNet.com hereunder, and may be subject to change by AcupoftheNet.com or the InterNIC or other applicable Internet domain name registry or granting authority from time to time. AcupoftheNet.com reserves the right to approve subscriber Uniform Resource Locator (URL's) that will be used in conjunction with a AcupoftheNet.com registered domain name and personal Web page feature. URL's registered using a AcupoftheNet.com owned domain name are non transferable by subscribers upon account termination and will be retained by AcupoftheNet.com.

    3. You acknowledge and agree: (i) that the primary function of AcupoftheNet.com's personal Web page feature as it relates to your personal Web site is to facilitate access by end users to the information provided through your personal Web site; (ii) that AcupoftheNet.com 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 site; 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 site. You 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 site. You shall indemnify and hold harmless AcupoftheNet.com 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 site 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.

  14. General.

    1. AcupoftheNet.com 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 regulated telephone network or any other occurrence commonly known as force majeure.

    2. Your right to use the Service is not transferable and is subject to any limits established by AcupoftheNet.com, and by your credit card company if billing is through a credit card.

    3. 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.

    4. This Agreement and the Service shall be governed by the laws of the State of Missouri, without regard to its conflicts of laws provisions. 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.

    5. This Agreement and any modifications published by AcupoftheNet.com over the Service constitute the entire and only agreement between you and AcupoftheNet.com with respect to the Service and supersede all other communications and agreements with regard to the subject matter hereof. Your use of the Service is also governed by AcupoftheNet.com's Acceptable Use Policies applicable to the Service, which are available on-line via the Service and which are subject to change by AcupoftheNet.com from time to time.

    6. You are responsible for and must provide all telephone and other equipment, software (other than any browser software that may be provided by AcupoftheNet.com) and services necessary to access the Service, including any interexchange (interLATA) long distance service which must be provided by the carrier or other provider of your choice.

 

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