Advantas Internet ("Company") is an Internet access and Internet related service company. This member agreement ("Agreement") constitutes the entire agreement between you ("you" or "Member") as an authorized user of Company and Company. By using Company, you confirm your acceptance of, and agree to be bound by, this Agreement.
The Agreement has been formulated with the following goals in mind:
- Ensure security, reliability and privacy of Company systems and network, and the networks and systems of others
- Avoid situations that may cause Company to incur civil liability
- Maintain the image and reputation of Company as a responsible provider
- Preserve the value of Internet resources as a conduit for free expression
- Encourage the responsible use of net resources, discouraging practices which degrade the usability of network resources and thus the value of Internet services
- Preserve the privacy and security of individual users
1. Company Usage
1.1 You may send and receive electronic mail ("Email"), engage in conferences and chats, download and upload files and otherwise use Company as permitted by this Agreement, Company's policies and applicable law. Company policies relating to online conduct, storage and deletion of Email and uploaded files, conferences, and other matters are available online. Company reserves the right in its sole discretion to change Companies policies at any time.
1.2 You are responsible for your communications via Company. You may not, under any circumstances, do any of the following; (a) publish, post, distribute or disseminate defamatory, infringing, obscene or other unlawful material or information via Company; (b) use Company to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (c) intercept or attempt to intercept Email; (d) upload files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents; (e) upload files that contain a virus or corrupted data; (f) use Company in a manner that adversely affects the availability of its resources to other Members; (g) send Email to Members or the Internet community for any purpose other than personal communication, including to advertise or offer to sell goods or services to other Members (except as other wise expressly permitted by Company); (h) act, or fail to act, in your use of Company, in a manner that is contrary to applicable law or regulation. Your failure to observe any of the foregoing limitations may result in civil or criminal liability, as well as termination of your membership.
1.3 You agree to (a) maintain all equipment required for your access to and use of Company; (B) maintain the security of your Member identification, password and other confidential information relating to you Company account; and (c) be responsible for all charges resulting from use of your Company account, including unauthorized use prior to your notifying Company of such use and taking steps to prevent its further occurrence by changing your password. Information on how to protect the security of your Company account (including changing your password) is available.
1.4 System abuse is strictly prohibited. Company may terminate or modify service immediately and bill for any resulting support charges if the client engages in system abuse. Following is a list of actions defined to be system abuse. This list is non-exclusive, any action about which there is any doubt should be referred to Company for evaluation.
Actions that constitute system abuse include, but are not limited to:
- Attempting to circumvent user authentication or security of any host, network, or account on Company systems or the Internet large ( "cracking");
- Attempting, in any way, to interfere with or deny service to any user or any host on the Internet;
- Forging email or USENET posting header information;
- Sending large numbers of unsolicited mail messages (i.e. "junk mail"); this includes adding or attempting to add addresses to any mailing list without explicit positive consent of the addressee.
- Forwarding or posting "chain letters" (multiple forwarding) of any type;
- Posting inappropriate messages to USENET newsgroups e.g., posting large numbers of unsolicited posts indiscriminately ("spamming"),
- or posting encoded binary files to USENET newsgroups not specifically named for that purpose;
- Running or attempting to run applications capable of port scanning, network ping sweeps, ICMP queries, operating system detection, automated discovery tools, automated scripts or bots, denial-of-service attacks, smurf attacks, SYN flooding, Web pilfering or applications that try and obtain information not readily available or is public knowledge;
- Attempting to cancel, supersede, or otherwise interfere with email or USENET posts other than one's own;
- Engaging in harassment, whether through language, frequency, or size of messages;
- Using an account at another provider to promote Company's Website in an abusive manner;
- Using a Company account or network connection to collect replies to messages sent from another provider which violate these rules or those of that provider;
- Reselling Company services to third parties.
2. Operation
Company reserves complete and sole discretion with respect to the operation of Company. Company may, among other things: (a) delete Email if it has not been accessed by a Member within twenty - (20) days; (b) subject to Section 1, make available to third parties information relating to Company and Members; and (c) withdraw, suspend or discontinue any functionality or feature of Company. Company will not review or monitor the contents of Email except as required or allowed by applicable law or legal process.
3. Member Representations
You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Agreement and to use Company in accordance with this Agreement. You agree to be financially responsible for your use of Company (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.
4. Content
Company does not endorse or stand behind the accuracy, truthfulness or reliability of any information (including statements of opinion or advice) provided on or by means of Company, other than information provided by authorized Company spokespersons. Statements made in forums, e-mail and discussion groups reflect only the views of their authors. Neither forum managers nor Content Service Providers are authorized Company spokespersons, and their views do not necessarily reflect those of Company. Advice received via Company should not be relied upon for important personal or financial decisions and you should consult an appropriate professional for specific advice tailored to your situation. Software or content (email, etc.) obtained from the use of Company Services may contain viruses or other harmful features, and Member is solely responsible for protecting its equipment and software from such matters. Through the use of the Service, Member may obtain or discover content, which is offensive or illegal, and Member assumes the risk and is solely responsible for its access to such content.
5. Ownership
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising Company, are wholly owned by Company. Company has a compilation copyright in Company but does not possess, claim ownership of or exert control over individual uploaded files, Web pages or Personal Web pages or the intellectual property contained therein.
6. Customer Premises Equipment
All equipment supplied and installed by Company at Member's premises, except for any equipment purchased and paid for in full by Member, will remain the property of Company or its assigned agents. Member shall not alter, modify or tamper with the equipment nor will Member relocate the equipment. Member may not mortgage, sell, transfer, lease, encumber or assign all or part of the equipment to any third party. Member shall pay for the full retail cost of the repair or replacement of any lost, stolen, un-returned, damaged, mortgaged, sold, transferred, leased, encumbered or assigned equipment or part hereof, together with any costs incurred by Company in obtaining or attempting to obtain possession of any such equipment.
7. No Warranties and Limitation of Liability
7.1 Company and all company software and services are provided "as is," and company makes no express or implied representations or warranties to you regarding the usability, condition or operation thereof. Company makes no representations or warranties regarding goods or services provided by Internet sites no in the direct or indirect control of company. Company does not warrant that access to or use of company will be uninterrupted or error-free, or that company or company software or services will meet any particular criteria of performance or quality. Company expressly disclaims all implied warranties, including without limitation, warranties of merchantability, title, and fitness for a particular purpose, non-infringement, compatibility, security or accuracy.
7.2 Your use of company and all company software and services is at your own risk. You assume full responsibility and risk of loss resulting from your downloading and/or use of files or other material (including company software) obtained through company. You agree that company, and providers of telecommunications and network services for company, will not be liable for damages (including consequential or special damages) rising out of your use of or inability to use company or any company software or services, and you hereby waive any claims with respect thereto, whether based on contractual, tort or other grounds, even if company has been advised of the possibility of damages. Company's liability to you for breach of this agreement is limited to the amount actually paid by you for access to and use of company. You hereby release company from any and all obligations, liabilities and claims in excess of this limitation.
7.3 The installation, use, inspection, maintenance, repair and removal of equipment by company may result in service outages or potential damage to member's computer. Member therefore agrees to back-up all existing computer files by copying them to another storage medium prior to installation of the equipment. Company shall have no liability whatsoever for any damage to or loss or destruction of any of member's equipment, software, files, data, or peripherals.
8. Acceptable Use
Member acknowledges that the Wireless Internet Service is to be used only for client-side access to the Internet. Client-side access is defined as all traffic initiated from the Member's computer. For example, client side access does not permit the use of Company for serving content through, but not limited to, FTP, HTTP, SMTP, POP3, Game Servers, Audio files, Video files or any service which requires service initiation from outside the Member's computer or network.
9. Charges
9.1 Company will not provide you with a statement of charges on your credit card account when such charges are incurred and/or paid. Unless you notify Company of any discrepancies or irregularities within forty-five (45) days after they first appear in your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release Company from all liability and claim of loss resulting from any error discrepancy that is not reported to Company within forty-five (45) days of its publication date.
9.2 Company reserves the right to suspend or terminate your Company membership without notice upon rejection of any card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to Company when Company believes you are liable for the charge. If you are paying by invoice, Company reserves the right to suspend or terminate your membership without notice upon payment being returned because of insufficient funds. Such rights are in addition to and not in lieu of any other legal rights or remedies available to Company.
9.3 You agree to pay a late charge on all amounts due but not timely paid and which remain unpaid for fifteen (15) days after due date. The late charge will equal $5.00 per overdue invoice until paid. Company reserves the right to refer your account to a third party for collection in the event of ongoing default.
9.4 Your Company membership fee is payable in advance and is non-refundable. You agree that Company submit charges for your membership fee each month without further authorization from you, until you provide prior notice that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before Company reasonably could act on your notice.
9.5 You must promptly notify Company of changes to: (a) the account number or expiration date of your designated card and (b) if invoiced, your billing address. You must also promptly notify Company if your card is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your Member identification or password.
9.6 If you are paying membership fee with invoice or statement, your membership fee is payable in advance and is nonrefundable. Invoices are sent on or about the anniversary date of your account. The anniversary date is the date at which your account became active or installed. If your account became active between the 7th and the 23rd of the month you will be bill on the 15th of each month. If your account became active between the 24th and the 6th of the month you will be billed on the 1st of each month. Accounts with membership fees forty-five- (45) days overdue will be terminated and a $25.00 fee will be applied to restore service.
10. Assignment; Household Use; Minors
Your Company membership is personal. Subject only to this Section10, you agree not to assign, transfer or sublicense your rights as a Member. You may allow other members of your household or business to use your Company account, provided that you hereby agree to pay all charges that they incur and to be responsible for all other aspects of their usage. You acknowledge that you are aware that some areas of the Internet may contain material that is unsuitable for minors, and you agree to supervise usage by minors whom you permit to use your Company account.
11. Effective date; termination; changes to terms
11.1 This Agreement shall remain in effect throughout the term (the "Term") specified by Member at signup. Unless terminated in writing thirty- (30) days or more prior to the end of the Term, this Agreement will automatically renew for a subsequent Term of one year. After the expiration of the subsequent term, the Agreement will continue on a month-to-month basis. If the Member terminates the Agreement during the Term, the Member will be liable for a termination fee. If the Member cancels within the first 3rd of the Term of the Agreement the termination fee will be the monthly rate times the number of months remaining on the contract times 80%. If the member cancels within the second 3rd of the Term of the Agreement the termination fee will be the monthly rate times the number of months remaining on the contract times 60%. If the member cancels within the last 3rd of the Term of the Agreement the termination fee will be the monthly rate times the number of months remaining on the contract times 40%.
11.2 Your account with Company is valid until canceled by you in a written confirmation, through a telephone confirmation with a Company representative or other means provided by Company. Company will not accept account cancellations by e-mail.
11.3 Termination of service does not constitute relief from amounts owed prior to termination. Company reserves the right to terminate or suspend your Company membership without prior notice.
11.4 Company reserves the right to change this Agreement at any time by posting changes online. You are responsible for reviewing regular information posted online to obtain timely notice of such changes. Your non-termination or continued use of Company after changes are posted constitutes your acceptance of this Agreement as modified by the posted changes.
12.General
12.1 This Agreement is governed by the laws of the State of New Mexico, USA. You consent to the exclusive jurisdiction and venue of courts in San Juan County, New Mexico in all disputes rising out of or relating to your use of Company or your Company membership.
12.2 You acknowledge that no joint venture, partnership, employment, or agency relationship exists between you and Company, as a result of your use of Company or your Company membership. You agree not to hold yourself out as a representative, agent or employee of Company, and that Company will not be liable by reason of any representation, act or omission to act by you.
12.3 Company's performance under this Agreement is subject at all times to existing laws and legal process and nothing contained in this Agreement is in derogation of Company's right to comply with law enforcement requests or requirements relating to a Member's use of Company or information provided to or gathered by Company with respect to such use.
12.4 This Agreement constitutes the entire agreement between Company and you with respect to your use of Company and your Company membership. This Agreement supersedes all prior or contemporaneous communications and proposals, whether oral or written, between Company and you with respect thereto.
