1. Parties: This service agreement is between Hypersurf Internet INC. (PROVIDER) and each customer Individually (CLIENT).
2. Coverage of Service Agreement: This service agreement covers the INTERNET services only. Not covered by this agreement are the hardware, the communications lines and/or the software for access to the INTERNET, although the provider can sell those to the CLIENT subject to a different contract.
3. Price Subject to Change: PROVIDER reserves the right to change the price of the services reasonably at any time without notice.
4. Service Commencement Time: The Services will be activated usually the next working day provided that the CLIENT has everything necessary to be on the Internet and has submitted information to PROVIDER correctly. This does not apply to domain name registration, DSL, Palace, and other specialty services that require complicated setup.
5. Quality of Service: PROVIDER will make best efforts to provide high quality and uninterrupted services.
6. Fees: CLIENT agrees to pay set up fee, monthly fee, usage fee (if any), web traffic fee (if any), and bandwidth fee (if any). The set up fee and monthly fee is due upon sign up. All set up fees, and Domain Name registration fees are non refundable. There are no pro-rated refunds for unused time. All returned checks are subject to a $25.00 processing fee. For a listing of prices please see HyperSurf Internet Price List http://www.hypersurf.com/services.htm DSL service is subject to a separate contract.
7. Domain Name Registration: PROVIDER will register domain names for Clients for a fee. Additional Domain Names may be Routed or Parked for an additional cost. Non-CLIENT(S) of PROVIDER may Route and Park Domain Names for a fee. Provider shall not be responsible for any information submitted in error.
8. Collateral: CLIENT(S) servers and other equipment located at PROVIDER's premises will be used as collateral for unpaid bills and penalties. Such servers and equipment will not be released until client pay's bills and/or penalties in full.
9. Late Payment: CLIENT agrees to pay bill on time. A reasonable grace period (usually five days) is allotted for late payments. Failure to make payment to PROVIDER within a reasonable time will result in account deactivation. All accounts deactivated for payment issues are subject to a $15.00 re-enabling fee.
10. Billing Information Updates: CLIENT agrees to submit to PROVIDER any changes to the billing information promptly. This includes credit card information, billing address, and phone number changes.
11. Technical Assistance: PROVIDER shall offer to CLIENT, at no charge, general Technical Assistance via telephone or electronic mail, relating to the usage and operation of the Internet. PROVIDER assumes that the CLIENT has a basic understanding of their computer. PROVIDER will not train CLIENT in basic computer skills such as, but not limited to, deleting files, creating directories, and Web site development. Technical assistance at PROVIDERS office location is also available, however an hourly rate may apply depending upon the nature of the problem.
12. Policies: CLIENT agrees to comply strictly with PROVIDERS "Acceptable use policy" http://www.hypersurf.com/aup.html and "Copyright infringement policy" http://www.hypersurf.com/copyright.html, both policies are available on line. CLIENT understands that the services are subject to immediate termination without compensation for non-compliance with the policies. CLIENT is also responsible for the full amount of any tangible and intangible damages this may cause. PROVIDER reserves the right to change the policies from time to time to reflect the changing nature of the Internet.
13. Client Responsibility: CLIENT shall be solely responsible for the content of any transmissions which pass through the Internet Connection Service. CLIENT also agrees not to use the Internet Connection Service for illegal purposes, to transmit threatening, obscene, or harassing materials, or to interfere with or disrupt other network users, network services, or network equipment. CLIENT agrees not harass or be abusive to PROVIDER'S employees and contractors. CLIENT agrees not to use the service in a manner that violates any local, state or federal law. PROVIDER reserves the right to disable any account immediately and without warning in violation of the law and or the terms conditions contained in this agreement and PROVIDER'S other policies.
14. Phone Charges: PROVIDER has multiple local access numbers throughout the United States. It will be the responsibility of the CLIENT to make sure that a number being dialed to access the Internet is local and toll free to the CLIENT. CLIENT can do this by confirming a number with their phone company. PROVIDER is not responsible for information provided by PROVIDER'S staff or PROVIDER'S web sites, which proves inconsistent with local area phone companies. It is always the responsibility of the CLIENT to make sure they are dialing a local number with their phone company. PROVIDER will not be responsible for your phone bill for any reason.
15. Indemnification: CLIENT shall indemnify, defend by counsel reasonably accepted by PROVIDER, protect and hold PROVIDER harmless from and against any and all attorneys' fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to the web hosting and other services furnished by PROVIDER to the CLIENT.
16. Account Sharing: CLIENT agrees to keep his account information confidential. PROVIDER shall not be responsible for lack of privacy, large overtime bills or any other consequences of account sharing. Sharing of unlimited accounts is not prohibited, however each individual owner of an account shall be jointly and severally liable for that account.
17. Unlimited usage accounts: All unlimited usage accounts are subject to the following restrictions 1) Any kind of reselling, sharing, service providing to other parties, public use, hook up of servers, use of software for purposes other than regular Internet browsing etc. is strictly prohibited. 2) Violators accounts will be upgraded automatically without notice to a metered plan or canceled without compensation.
18. Right of Refusal: PROVIDER has the right to refuse service to anyone.
19. Limited Liability: PROVIDER shall not be liable under any circumstances for any special, consequential, incidental or exemplary damages arising out of or in any way connected with this agreement or the product, including but not limited to damages or lost profits, loss of use, lost data, phone bills, communication lines bills, loss of privacy, damages to third party even if PROVIDER has been advised of the possibility of such damages. The foregoing limitation of liability shall apply whether any claims based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose or otherwise. It is the CLIENT(S) responsibility for the usage of his account and any consequences of this usage. CLIENT understands and agrees to access information on the Internet at own risk. PROVIDER does not censor the Internet and does not control the data that is transmitted to CLIENT. PROVIDER is not responsible for information on the Internet, which may be unedited, uncensored, and offensive.
20. No returns: PROVIDER will not return collected fees for services.
21. Cut off period for billing errors: A 60 days cut off period is set for billing error claims. CLIENT agrees that he has no rights to claim any billing errors for period earlier than 60 days from the date of the claim. All bills are final after 60 days.
22. Ten Day Trial: PROVIDER offers to CLIENT a 10 day money-back guarantee on NEW accounts (Set Up/Activation Fees, and domain name registration fees however, are Non-Refundable). This ten day trial period does not apply to dedicated lines, DSL, Palace, or any special accounts that require a labor intensive set up, such as but not limited to, DNS configuration.
23. Terms/Cancellation: CLIENT(S) account is not "monitored" for inactivity and PROVIDER does not assume that you wish to cancel if you have not used your account for dial-in purposes. CLIENT can terminate the services with advance notice in writing via U.S. mail, or by telephone only. After initial contact by telephone CLIENT is required to send termination letter by electronic mail to ensure both parties understand termination date. CLIENT understands that there will be no reimbursement and no pro-rate if he decides to terminate the services before the end of a prepaid term, regardless of the reason for the termination. Once you have canceled the account, you are responsible for monitoring any charges that may occur. You are responsible for any usage fees up to the date of cancellation. PROVIDER can terminate this agreement at the end of a billing period, with a 30 days notice. PROVIDER can terminate the agreement immediately without any compensation if CLIENT does not comply with the "Acceptable use policy" available on-line at this address http://www.hypersurf.com/aup.html . The DSL services are being sold with 1 year term. A cancellation before the expiration of the term for DSL services will result in early termination fee and penalties, see DSL agreement provided to you or call HyperSurf Internet, Inc.
24. Entire Agreement: This Agreement, the Acceptable Use Policy, and PROVIDER'S other user policies posted on PROVIDER'S website, constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.
25. Disclaimer of Warranties: PROVIDER disclaims all express and implied warranties, including the warranties of merchantability and fitness for a particular purpose. PROVIDER shall not be liable for any damage that user may suffer arising out of use, or inability to use the Internet connection service or products provided hereunder. PROVIDER shall not be liable for unauthorized access by third parties to PROVIDER transmission facilities or premise equipment or for unauthorized access to or alteration, theft, loss, or destruction of PROVIDERS customer data files, programs, procedures, or information through accident, fraudulent means or devices, or any other method.
26. Modification: This Agreement shall not be canceled or nullified, but may be amended, modified, or revised by PROVIDER at any time in any manner. Notice of any amendment, modification, or revision will be posted at this Internet site location.
27. Waiver: Performance of any obligation required of a party there-under may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
28. Separability: If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed separable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.
29. Governing Law: This Agreement was entered into in the State of California and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of California applicable to contracts entered into and performed entirely within the State of California.
30. Choice of Forum: Any action at law or in equity arising under this Agreement shall be filed only in Courts of the State of California for the County of Alameda or the United States District Court for the Northern District of California. The parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
31. Authority to Execute: Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn't assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement. CLIENT agrees that he/she is at least 18 years of age (or have written permission from a parent or guardian to use this service) and will abide by the policies of PROVIDER.
32. Advice of Legal Counsel: Each party acknowledges and represents that, in executing this Agreement, it has received advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. Further, each party and their counsel have cooperated in the drafting and preparation of this Agreement. It shall be deemed their joint work product and may not be construed against any party be reason of its preparation or word processing.
33. Benefit of Successors and Assigns: This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and except as otherwise provided herein, their respective legal successors and permitted assigns.
34. Cumulative Remedies: Except as specifically provided herein, no remedy made available to either party hereunder is intended to be exclusive of any other remedy provided hereunder or available at law or in equity.
35. No Partnership or Agency: Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis-à-vis one another.
36. No Third Party Beneficiaries: Nothing contained in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parties hereto, to any person or entity other than such parties, unless so stated to the contrary.
37. Excused Performances: Provider shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond Provider's reasonable control. In the event of any such delay or failure, the parties shall defer performance of the Services to a date and time mutually agreeable.
38. Captions: The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
39. Gender: Where the context so requires, the masculine gender shall include the feminine or neuter, and the singular shall include the plural and the plural the singular.
40. Recitals: The recitals above set forth are incorporated herein by reference.
41. Mediation/Arbitration: The parties agree to resolve any dispute arising under this agreement by first seeking a remedy by mediation and Arbitration under the rules and laws of the California Courts.
42. Attorney's Fees: The prevailing party in any litigation arising out of this agreement shall have the right to collect reasonable attorney's fees from the opposing side.
If any part of this agreement is unacceptable to you, you must immediately terminate service with PROVIDER.