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Thank
you for choosing DIRECWAY®!
Please read this Subscriber Agreement
carefully since it contains important
contract rights and obligations between you
and DIRECWAY, as well as important
limitations on those rights.
SUBSCRIBER
AGREEMENT ORGANIZATION
This
Subscriber Agreement is organized into five
"Parts":
Part
I -- The Service, Subscribership and This
Subscriber Agreement;
Part
II -- Payment;
Part
III - Permitted Use and Restrictions on Use;
Part
IV --Grant of Important Rights by You to Us,
and Important Disclaimers, Acknowledgments
and Obligations
Part
V - General (Note: Although located at the
end of this Subscriber Agreement, these
terms are important.).
PART
I THE SERVICE, SUBSCRIBERSHIP AND THIS
SUBSCRIBER AGREEMENT
1.
THE SERVICE
The
Service consists of a satellite-based,
one-way broadcast or two-way
broadcast/receive system Internet access
Service in which DIRECWAY carries packets to
and from the Internet to your Personal
Computer..
2.
MODIFICATIONS; RIGHTS OF CANCELLATION OR
SUSPENSION
2.1
MODIFICATION OF THIS SUBSCRIBER AGREEMENT;
NOTICES.
Upon
notice published over the Service, we may at
any time modify this Subscriber Agreement,
including, without limitation, pricing and
billing terms. We may, but are not required
to, notify you by email, online via one of
more of the web sites within the DIRECWAY
Service, including myDIRECWAY.com, or other
electronic notice. In the event you do not
agree to such changes or additions, then you
must cancel your subscription and stop using
the DIRECWAY Service prior to the effective
date of such modifications. Your continued
use of the DIRECWAY Service after the
effective date of such modifications
constitutes your acceptance of such
modifications.
2.2
MODIFICATION OF THE SERVICE.
We
may discontinue, add to or revise any or all
aspects of the Service in our sole
discretion and without notice, including
access to support services, publications and
any other products or services ancillary to
the Service or membership. In particular, we
specifically reserve the right at our sole
discretion to modify, supplement, delete,
discontinue or remove any software, file,
publications, information, communication or
other content appearing on or transmitted
through the Service. We may, among other
things, (a) take any action that we deem
proper to prevent bulk emailing from
entering or leaving any email account and
the network email system, (b) delete email
messages if you email account has not been
accessed by you within a time established by
us from time to time, in our sole
discretion, (c) not process email or instant
messages due to space limitations, (d)
subject to our Statement on Privacy, make
available to third parties information
relating to DIRECWAY or its subscribers, (e)
withdraw, change, suspend or discontinue any
functionality or feature of the DIRECWAY
Service, (f) delete attachments due to
potentially harmful materials included
within such attachment, and (g) limit access
to the Service to prevent abusive
consumption and ensure fair access for all
subscribers. In the event that we determine
to undertake any such change, we may, but
are not required to, notify you by email,
online via one of more of the web sites
within the DIRECWAY Service, including
myDIRECWAY.com, or other electronic notice.
In the event you do not agree to such
changes, then you must cancel your
subscription and stop using the DIRECWAY
Service prior to the effective date of such
changes. Your continued use of the DIRECWAY
Service after the effective date of such
changes or additions constitutes your
acceptance of such changes.
In
addition, please note that we may
automatically check the version of DIRECWAY
System you are running and we may provide
upgrades to the System that will be
automatically downloaded to your system. In
addition, we may check the health and status
of your System to ensure that the
configuration of your computer is optimized
for use with DIRECWAY.
2.3
TERMINATION BY SUBSCRIBER.
In
the event that we modify this Subscriber
Agreement, the Service or related pricing or
billing terms, you may immediately terminate
your account and this Subscriber Agreement.
Subject to your payment of the cancellation
charges herein described, you may also do so
at any other time and for any reason or for
no reason upon thirty (30) days written
notice. You must terminate this Agreement in
accordance with the terms and conditions
specified herein; failure to do so may delay
or prevent us from knowing that a
termination was intended. In such event you
will continue to be liable under this
Agreement for all fees and charges until
such time as the Agreement has been properly
terminated or we have acknowledged such
termination in writing. In the event you
cancel your subscription to the DIRECWAY
Service prior to the expiration of the
minimum commitment period specified for your
applicable service plan, you may be subject
a cancellation fee of up to $700.
2.4
TERMINATION OR SUSPENSION BY DIRECWAY.
We
may immediately terminate your account and
this Subscriber Agreement in the event of
any breach of this Subscriber Agreement by
you or a user of your account. We reserve
the right in our sole discretion to
terminate your account and this Subscriber
Agreement at any time or to suspend (with or
without notice) or terminate access to or
use of the Service, in whole or in part. In
the event that we either terminate or
suspend your account and or this Agreement
for reasons other than breach of this
Agreement, then we shall provide you 30 days
notice of such suspension or termination.
2.5
CONTINUATION OF OBLIGATIONS.
Notwithstanding
any cancellation or termination of this
Subscriber Agreement or any your account,
nor any suspension or termination of access
to or use of the Service, you will remain
responsible for any obligations accrued to
the date of such action, including payment
of any charges that may be due as a result
of or in connection with such action(s).
Your payment and other obligations under
this Subscriber Agreement are not suspended
or affected by a suspension of access to or
use of the Service, in whole or in part, due
to a violation (actual, threatened, or
alleged) of this Subscriber Agreement or of
any law or legal obligation by your or any
user of your account.
3.
WHO MAY USE THE SERVICE? - RESPONSIBILITY
AND SUPERVISION
3.1
AGE AND ACCOUNT SETUP.
You
represent that you are at least 18 years of
age and have the right and ability to enter
into this Subscriber Agreement. You agree
that you are responsible for installing,
establishing and setting up, and for
verifying and maintaining, the account,
options, settings and other parameters under
which the Service is used, including
(without limitation) all related passwords
and user identification information. These
account functions may be performed only by a
person at least 18 years of age, without
exception.
3.2
MULTIPLE USE OF ACCOUNT.
Multiple
members of your household may share a single
ID number and account, if authorized by you
to use the account. In addition, up to five
(5) members of the same household may access
the service at any given time through the
same ID number or account.
3.3
INSTALLATION OF DIRECWAY EQUIPMENT
You
acknowledge and agree that we or our
designated service provider may be required
to access your premises or system in order
to install and maintain the components
necessary for you to access the DIRECWAY
Service. This may include opening your
computer to install, repair or replace
equipment or install software on your
computer at your location. By accepting this
Agreement, scheduling a service or
installation visit, and permitting us or our
service provider to enter your home, you
hereby authorize us or our service provide
to access your computer for the purpose of
installing, repairing or replacing the
components necessary. NEITHER WE NOR OUR
SERVICE PROVIDER SHALL HAVE ANY LIABILITY
WHATSOEVER FOR ANY LOSSES RESULTING FROM
INSTALLATION, REPAIR OR OTHER SERVICES,
INCLUDING WITHOUT LIMITATION, DAMAGE TO YOUR
PREMISES, LOSS OF SOFTWARE, DATA OR OTHER
INFORMATION FROM YOUR COMPUTER. This
limitation does not apply to any damages
arising from the gross negligence of willful
misconduct of any installation or
maintenance service provider. Timeframes for
installation, if any, are not guaranteed and
may vary depending on the types of services
requested and other factors.
3.4.
SUBSCRIBER RESPONSIBILITY.
You
shall be responsible for all access to and
use of the Service through your account or
password(s) and for any fees incurred for
service, or for software or other
merchandise purchased thereon, or any other
expenses incurred in accordance with the
terms of this Subscriber Agreement. You
promise to pay such amounts billed for such
service, software, or merchandise and any
related fees, taxes and charges. Permitted
users of your account are limited to family
members with your permanent residence. You
acknowledge that you are aware that areas
accessible on or 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
minors who use the Service through your
account. You hereby ratify and confirm any
obligations a minor using your account
enters into or assumes and any promises or
permissions such minor makes or gives.
PART
II PAYMENT
4.
FEES AND PAYMENT
4.1
FEES, TAXES AND OTHER CHARGES.
You
agree to pay, in accordance with the
provisions of the billing option you
selected, any registration, activation or
monthly fees, connect time charges, ISP
service charges, minimum charges and other
amounts charged to or incurred by you, or by
users of your account, at the rates in
effect for the billing period in which those
amounts are charged or incurred. You agree
to pay all applicable taxes related to your
use of the Service or the use of the Service
by users of your account. Information on
charges and surcharges (if any) that are to
be paid to us and are incurred by you or by
users of your account will be made available
to the you on the DIRECWAY web site, and you
agree that this is sufficient notice for all
purposes as to charges incurred and paid or
to be paid to us. We reserve the right to
increase fees, surcharges, monthly
subscription fees or to institute new fees
at any time upon 30 days prior notice. You
understand and acknowledge that you may not
receive a bill in the mail for your Service.
Additional terms relating to pricing,
billing and payment and which are an
integral part of this Subscriber Agreement
are set forth and available on the DIRECWAY
web site.
4.2
PAYMENT
Except
where additional methods of payment are
specifically required or permitted under
applicable law or regulation or as otherwise
agreed to by ourselves from time to time,
you agree that you will provide a major
credit or charge card (i.e., MasterCard,
Visa, American Express or Discover) that we
may charge for all Service fees or other
amounts payable under this Agreement.
Additionally, you agree that we may
pre-charge your monthly Service fee to the
credit or charge card supplied by you during
activation or subscription. With respect to
such charges the following authorization
applies: You authorize automatic credit or
charge card billing by ourselves. You agree
that the charges described above will be
billed to the credit or charge card that you
have provided when you applied for the
Service. YOU MUST PROVIDE CURRENT, COMPLETE,
AND ACCURATE INFORMATION FOR YOUR BILLING
ACCOUNT. YOU MUST PROMPTLY UPDATE ALL
INFORMATION IN ORDER TO KEEP YOUR ACCOUNT
CURRENT, COMPLETE AND ACCURATE (SUCH AS A
CHANGE IN BILLING ADDRESS, CREDIT CARD
NUMBER OR CREDIT CARD EXPIRATION DATE).
CHANGES TO SUCH INFORMATION CAN BE MADE AT
myDIRECWAY.com. IF YOU FAIL TO PROVIDE US
WITH ANY OF THE FOREGOING INFORMATION, YOU
AGREE THAT W MAY CONTINUE CHARGING YOU FOR
ANY SERVICE PROVIDED UNDER YOUR ACCOUNT. You
agree that all charges are considered valid
unless disputed in writing within fifteen
(15) days of the date you receive your
credit or charge card bill. You agree that
we will not be responsible for any expenses
that you may incur resulting from
overdrawing my bank account or exceeding my
credit limit as a result of an automatic
charge made under this Subscriber Agreement.
Credit card payment is not required for
residents of states where payment by credit
cards may not be made mandatory. If you
think a charge is incorrect or you need more
information, you should contact our billing
department. You must contact us within 60
days of receiving the statement on which the
error or problem appeared. We will make
available to you a statement for each
billing cycle showing payments, credit
purchases and other charges. Payment of the
outstanding balance is due in full each
month. If your payment is not received by us
before the next statement is issued, you may
be charged interest on the delinquent
balance at the rate of one and one-half
percent (1.5%) per month, prorated on a
daily basis. Furthermore, if we do not
receive payment from you before your next
statement is issued, we have the right to
suspend or cancel your subscription to the
Service without notice. We may, but are not
required to, accept partial payments from
you. If partial payments are made, they will
be applied to statements starting with the
oldest outstanding statement. If you send us
checks or money orders marked "payment
in full" or otherwise labeled with
restrictive endorsements, we can, but are
not required to, accept them, without losing
any of our rights to collect all amounts
owed by you under this Agreement. In the
case of late payment or non-payment for any
of the DIRECWAY Services ordered by you or
any of the charges stated herein, you
understand and agree that we may report such
late payment or non-payment to the
appropriate credit reporting agencies. If we
choose to use any collection agency or
attorney to collect money that you owe us or
to assert any other right which we may have
against you, you agree to pay the reasonable
costs of collection or other action
including, but not limited to, the costs of
a collection agency, reasonable attorney's
fees, and court costs, as provided by
applicable law.
4.3
COMMENCEMENT AND DURATION OF SUBSCRIBERSHIP
FEES.
You
acknowledge that (subject to any exceptions
granted by us) a monthly subscribership fee
will apply for each and every month (or
portion thereof) that you are a Subscriber.
Your account will continue until you cancel
the account in accordance with the method or
methods specified by us (unless otherwise
terminated in accordance with this
Subscriber Agreement). As stated above, you
may cancel your account at any time, subject
to payment of the cancellation fee, if
applicable. The monthly subscription fee
shall cease to apply for any months after
the billing month in which you cancel or
terminate your account in accordance with
the terms and conditions stated herein.
4.4
REACTIVATION
If
your service is inactivated because you did
not submit payment on time or for any other
reason, in addition to payment of past due
amounts, we may require a deposit before
reactivating your DIRECWAY Service, which
shall not exceed one (1) year subscription
fees. Amounts deposited by you will appear
on your statement as a credit, and service
charges and other fees will be invoiced as
set forth above. Any unpaid amounts will be
deducted each billing cycle from the credit
amount. Credit amounts shall not earn or
accrue interest. If your DIRECWAY service is
inactivated for any reason, including at
your request or because of your failure to
pay past due amounts, and you want to
reactivate the service, you agree to pay a
reactivation fee in accordance with our then
current rates. In addition you must bring
your account up to date by making payment in
full of any outstanding balance, fees and
charges.
4.5
ANCILLARY EQUIPMENT, SERVICES.
It
is your responsibility, at your own expense,
to obtain, maintain, and operate suitable
and fully compatible terminal equipment, and
communication devices required to access the
Service. You are responsible for all
telephone charges incurred in connection
with using the Service. YOU ACKNOWLEDGE THAT
CERTAIN SUBSCRIBER EQUIPMENT MAY HAVE BEEN
ACQUIRED BY YOU SEPARATE AND APART FROM THIS
SUBSCRIBER AGREEMENT. YOU ARE SOLELY
RESPONSIBLE FOR MAINTAINING SUCH SUBSCRIBER
EQUIPMENT. WE MAKE NO REPRESENTATION OR
WARRANTIES PURSUANT TO THIS SUBSCRIBER
AGREEMENT, EITHER EXPRESS OR IMPLIED,
REGARDING SUCH SUBSCRIBER EQUIPMENT --
ALTHOUGH YOU MAY HAVE LIMITED WARRANTIES
UNDER A SEPARATE PURCHASE AGREEMENT.
4.6
CORPORATE BUSINESS AND EDUCATIONAL ACCOUNTS.
If
your account is a qualified business or
educational account and approved by us for
corporate or educational billing, charges
for the services provided under this
Subscriber Agreement will be accumulated and
identified by Subscriber ID number and will
normally be invoiced following the end of
the month in which the service is provided.
Terms of payment on all charges are net, ten
(10) days in U.S. dollars. If any payment
due hereunder is not made by you 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, and we may, in
addition, at its sole discretion and without
notice to you, (a) suspend our performance
under this Subscriber Agreement and you and
your designated users' access to and use of
the Service, or (b) terminate this
Subscriber Agreement and your and your
designated users' access to and use of the
Service. Notwithstanding any acknowledgment
of a purchase order, any provision or
condition in any purchase order, voucher, or
other memorandum from you which is in any
way inconsistent with, or adds to, the
provisions of this Subscriber Agreement is
null and void.
PART
III PERMITTED USE AND RESTRICTIONS ON USE
5.
SOFTWARE LICENSE
Subject
to the terms of this Subscriber Agreement,
we grant to you a personal, non-exclusive,
non-assignable and nontransferable license
to use and display the software provided by
or on behalf of ourselves only for purposes
of accessing the Service
("Software") on any machine(s) on
which you are the primary user or which you
authorize for use. Unauthorized copying of
the Software, including software that has
been modified, merged or included with the
Software, or the written materials
associated therewith is expressly forbidden.
You may not sublicense, assign or transfer
this license or the Software except as
permitted by ourselves. Any attempt to
sublicense, assign or transfer any of the
rights, duties or obligations under this
license is void. You agree that you shall
not copy or duplicate or permit anyone else
to copy or duplicate, any part of the
Software, or create or attempt to create, or
permit others to create or attempt to
create, by reverse engineering or otherwise,
the source programs or any part thereof from
the object programs or from other
information made available under this
Subscriber Agreement.
6.
SPECIFIC RESTRICTIONS ON USE OF THE SERVICE
6.1
PROHIBITED CONDUCT.
You
agree not to use the Service as follows: (a)
for any unlawful, improper or criminal
purpose or activity; (b) to post or transmit
information or communications that, whether
explicitly stated, implied, or suggested
through use of symbols, are obscene,
indecent, pornographic, sadistic, cruel, or
racist in content, or of a sexually explicit
or graphic nature; or which espouses,
promotes or incites bigotry, hatred or
racism; or which might be legally actionable
for any reason; (c) to attempt to access or
access the accounts of others, to spoof or
attempt to spoof the URL or DNS address, or
to attempt to penetrate or penetrate our
security measures or other entities' systems
("hacking") whether or not the
intrusion results in corruption or loss of
data; (d) to bombard individuals or
newsgroups with uninvited communications,
data or information, or other similar
activities, including but not limited to
"spamming", "flaming" or
denial or distributed denial of service
attacks; (e) to transmit unsolicited
voluminous emails (for example, spamming) or
to intercept, interfere with or redirect
email intended for third parties using the
Service; (f) to introduce viruses, worms,
harmful code and/or Trojan horses on the
Internet; (g) to post information on
newsgroups which is not in the topic area of
the newsgroup; (h) to interfere with another
person's usage or enjoyment of the Internet
or this Service; (i) to post or transmit
information or communications that are
defamatory, fraudulent, obscene or
deceptive, including but not limited to
scams such as "make-money-fast"
schemes or "pyramid/chain"
letters; (j) to damage the name or
reputation of DIRECWAY, DIRECTV, Hughes
Network Systems, Hughes Electronics
Corporation or any of their respective
parents, affiliates and subsidiaries, or any
third parties; (k) to transmit confidential
or proprietary information, except solely at
your own risk; (l) to violate our or any
third party's copyright, trademark,
proprietary or other intellectual property
rights, including trade secret rights; (m)
to generate excessive amounts (as determined
in our sole discretion) of Internet traffic,
or to disrupt net user groups or email use
by others; (n) to engage in activities
designed to or having the effect of
degrading or denying Service to DIRECWAY
users or others (including activities that
compromise a server, router, circuit or
software; (o) to use any name or mark of
DIRECWAY, DIRECTV, Hughes Network Systems,
Hughes Electronics Corporation, or their
respective parents, affiliates or
subsidiaries, as a hypertext link to any Web
site or in any advertising publicity or
other commercial manner; (p) to use your
DIRECWAY account for the purpose of
operating a server of any type; (q) to use
the Service or the Internet in a manner
intended to threaten, harass, or intimidate
others; (r) to cause the screen to
"scroll" faster than other
subscribers or users are able to type to it,
or any action that has a similar disruptive
effect, on or through the Service; (s) to
use the Service to disrupt the normal flow
of online dialogue, (t) to use the Service
to violate any operating rule, policy or
guideline of any other online services
provider or interactive service; (u) to
attempt to subvert or to aid third parties
to subvert, the security of any computer
facility or system connected to the
Internet; (v) to impersonate any person or
using a false name while using the Service;
(w) to install "auto-responders,"
"cancel-bots" or similar automated
or manual routines which generate excessive
amounts of net traffic, or disrupt net user
groups or email use by others; (x) to make
false or unverified complaints against any
DIRECWAY subscriber, or otherwise abusing
any of our complaint response procedures;
(y) to export software or any information in
violation of US export laws; or (z) to use
the Service in contravention of the
limitations of the pricing plan you have
chosen.
6.2
DIRECWAY FAIR ACCESS POLICY
To
ensure equal Internet access for all
subscribers, we maintain a running average
fair access policy. Fair access establishes
an equitable balance in Internet access
across the DIRECWAY Services by service plan
for all DIRECWAY customers regardless of
their frequency of use or volume of traffic.
To ensure this equity, you may experience
some temporary throughput limitations.
DIRECWAY Internet access is not guaranteed.
This policy applies to all service plans
including "Unlimited" plans where
customers' use of the service is not limited
to a specific number of hours per month.
6.3
ILLEGAL OR COMPETITIVE PURPOSES.
You
agree not to use the Service nor any of its
elements or related facilities or
capabilities to conduct any business or
activity, or solicit the performance of any
activity, which is prohibited by or would
violate any applicable law, rule, regulation
or legal obligation.
6.4
COMPLIANCE WITH LAWS.
You
agree to comply with all applicable laws,
rules and regulations in connection with the
Service, your use of the Service and this
Subscriber Agreement.
PART
IV GRANT OF IMPORTANT RIGHTS BY YOU TO US,
AND IMPORTANT DISCLAIMERS, ACKNOWLEDGMENTS
AND OBLIGATIONS
7.
COPYRIGHT AND LICENSES
7.1
RESERVATION OF RIGHTS.
We
reserve all copyrights and other rights in
and to any content available through the
Service which is identified as, claimed by
us as, or known by you to be, proprietary to
us (or our licensors). The content on the
Service is protected under applicable
copyright law, including as a collective
work. All copying, modification,
distribution, publication or other use by
you, or by any user of your account, of any
such content or other works is prohibited,
except as expressly permitted by ourselves.
8.
NO ENDORSEMENT
We
do not endorse or in any way vouch for the
accuracy, completeness, truthfulness or
reliability of any service, opinion, advice,
communication, information or other content
on or made available through the Service.
None of such content should be construed or
understood to constitute or reflect the
views or approval of DIRECTV, Hughes Network
Systems, Inc., Hughes Electronics
Corporation or any of the subsidiaries or
affiliates. We do not recommend that such
content be relied on for reaching important
decisions or conclusions without appropriate
verification and, as appropriate,
professional advice.
9.
INTERNET
YOU
ACKNOWLEDGE THAT INTERNET SITES, AND USE OF
THE INTERNET, MIGHT CONSIST OF, INCLUDE
AND/OR PROVIDE ACCESS TO IMAGES, SOUND,
MESSAGES, TEXT, SERVICES OR OTHER CONTENT
AND MATERIAL THAT MAY BE UNSUITABLE FOR
MINORS AND THAT MAY BE OBJECTIONABLE TO MANY
ADULTS. YOU ACKNOWLEDGE THAT WE ARE NOT
RESPONSIBLE FOR ANY SUCH CONTENT OR MATERIAL
AND AGREES THAT ACCESS TO SAME THROUGH USE
OF THE SERVICE IS AT YOUR SOLE RISK. The
reliability, availability, legality,
performance and other aspects of resources
accessed through the Internet are beyond our
reasonable control and are not in any way
warranted or supported by ourselves or our
third party contractors. You acknowledge
that safeguards relative to copyright,
ownership, appropriateness, reliability,
legality and integrity of content may be
entirely lacking with respect to the
Internet and content accessible through it.
You confirm that you assume all risk and
liability of any use of the Internet through
your account, including your continuous
compliance with the Subscriber Agreement.
10.
USE AND CONTROL OF INFORMATION; MEMBER
COMMUNICATION; ADS
We
may, without obligation, liability or
notice, except to the extent prohibited by
applicable law, distribute, loan, sell or
otherwise share with other persons or
entities user lists as well as aggregate
information. Aggregate information includes
information constituting or descriptive of
demographic information, habits, usage
patterns, preferences, survey data or other
descriptive or related data which do not
rely on providing to recipients the identity
of any particular user of the Service. This
shall not be construed to limit our use of
other information not addressed in this
Section 10. We will be free, in our
reasonable good faith discretion and without
notice, to provide Subscriber and user
information and records to the courts, law
enforcement agencies, or others involved in
prosecuting claims or investigations for
conduct or conditions alleged or believed to
be illegal or to violate or threaten the
rights of any person or entity, and to
maintain and use internally such information
and records. Information generated by or in
connection with our administration of the
Service shall be and remain our exclusive
property. We may also from time to time
provide online, telefax, telephone, email,
mail and other communications to our
Subscribers and users on matters pertaining
to the Service, its features, its sponsors
or its use without compensation to them or
reimbursement of costs for doing so, but
shall do so reasonably and in good faith.
You acknowledge that communications with us,
our representatives and our contractors may
be monitored or reviewed for quality control
and other reasonable business purposes. You
also acknowledge that advertising and
promotion may occur on the Service and also
that neither you nor any user shall in any
event have any claim with respect to any
proceeds from such activities.
11.
DISCLAIMER OF WARRANTIES AND EXCLUSION OF
LIABILITY
11.1
DISCLAIMER OF WARRANTIES, LIABILITY AND
RESPONSIBILITY.
YOU
EXPRESSLY AGREE THAT USE OF THE SERVICE IS
AT YOUR SOLE RISK. NEITHER WE NOR ANY OF OUR
INFORMATION OR CONTENT PROVIDERS, SERVICE
PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS
WARRANT THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DO WE OR
ANY OF OUR INFORMATION OR CONTENT PROVIDERS,
SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR
AGENTS MAKE ANY WARRANTY AS TO THE RESULTS
TO BE OBTAINED FROM USE OF THE SERVICE,
INCLUDING ANY MINIMUM UPLOAD OR DOWNLOAD
SPEEDS. THE SERVICE IS DISTRIBUTED 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 OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE, EXCEPT FOR THOSE
WARRANTIES, IF ANY, WHICH ARE IMPLIED BY,
AND INCAPABLE OF EXCLUSION, RESTRICTION OR
MODIFICATION UNDER, THE LAWS APPLICABLE TO
THIS SUBSCRIBER AGREEMENT. WE EXPRESSLY
DISCLAIM ANY REPRESENTATION OR WARRANTY THAT
THE DIRECWAY SERVICE WILL BE ERROR FREE,
SECURE OR UNINTERRUPTED OR OPERATE AT ANY
MINIMUM SPEED. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY OURSELVES, OUR
EMPLOYEES, DEALERS, AND LICENSORS OR THE
LIKE SHALL CREATE A WARRANTY; NOR SHALL YOU
RELY ON ANY SUCH INFORMATION OR ADVICE.
IN
PARTICULAR, BECAUSE WE MAY PROVIDE ITS
SUBSCRIBERS WITH ELECTRONIC ACCESS TO THE
CONTENT AVAILABLE ON THE SERVICE, WHICH
CONTENT MAY BE ORIGINATED BY INDEPENDENT
PUBLISHERS AND/OR PROVIDERS AND WHICH
CONTENT IS NOT AUGMENTED BY OURSELVES, WE
CANNOT AND DO NOT WARRANT THE ACCURACY OF
ANY OF THE INFORMATION AS ORIGINATED BY SAID
INDEPENDENT PUBLISHERS AND/OR PROVIDERS, AND
WE SHALL NOT BE LIABLE IN ANY MANNER
WHATSOEVER FOR ANY ERRORS, OMISSIONS, OR
INACCURACIES RELATING THERETO. IF DEFECTIVE,
YOU - NOT OURSELVES, OUR DEALERS,
DISTRIBUTORS, AGENTS, EMPLOYEES OR ANY
THIRD-PARTY CONTENT PROVIDER - ASSUME THE
CONSEQUENCES RESULTING THEREFROM.
NO
ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN
BY OURSELVES, OUR DEALERS, DISTRIBUTORS,
AGENTS, EMPLOYEES OR ANY THIRD-PARTY CONTENT
PROVIDER, SHALL CREATE ANY WARRANTY IN OR TO
THE DIRECWAY SERVICE OR THE CONTENT, AND YOU
MAY NOT RELY ON ANY SUCH INFORMATION OR
ADVICE. THIS WARRANTY GIVES YOU SPECIFIC
LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
11.2
LIMITATION OF LIABILITY.
TO
THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER
WE NOR ANY OF OUR INFORMATION OR CONTENT
PROVIDERS, SERVICE PROVIDERS, LICENSORS,
EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING
OUT OF USE OF THE SERVICE OR INABILITY TO
USE THE SERVICE OR OUT OF ANY BREACH OF ANY
REPRESENTATION OR WARRANTY. WITHOUT IN ANY
WAY LIMITING THE FOREGOING, IF FOR ANY
REASON, BY OPERATION OF LAW OR OTHERWISE,
ANY PORTION OF THE FOREGOING LIMITATION OF
LIABILITY SHALL BE VOIDED, THEN IN SUCH
EVENT OUR MAXIMUM, SOLE, AND EXCLUSIVE
LIABILITY, OUR DEALERS, DISTRIBUTORS,
AGENTS, EMPLOYEES OR THIRD PARTY CONTENT
PROVIDER, IF ANY, SHALL BE LIMITED TO
GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO
EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO
OURSELVES BY YOU FOR SERVICES FURNISHED
UNDER THIS SUBSCRIBER AGREEMENT DURING AND
FOR A PERIOD OF TIME COMMENCING UPON THE
OCCURRENCE OF SUCH ERROR, DEFECT OR FAILURE
AND CEASING UPON THE DISCOVERY OF SUCH, IN
WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN
NO EVENT SHALL SUCH PERIOD OF TIME EXCEED
THE TWELVE (12) MONTH PERIOD IMMEDIATELY
PRECEDING THE DATE WHICH SUCH ERROR, DEFECT
OR FAILURE IS FIRST DISCOVERED IN WHOLE OR
IN PART.
11.3
APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES
INVOLVING OTHERS.
YOU
EXPRESSLY ACKNOWLEDGE THAT THE PROVISIONS OF
THIS SECTION 11 SHALL ALSO APPLY TO ANY AND
ALL CLAIMS RELATING TO "ACQUIRED
MATERIAL" AND ANY OTHER CONTENT
AVAILABLE THROUGH THE SERVICE. YOU AGREE
THAT YOU WILL NOT IN ANY WAY HOLD US
RESPONSIBLE FOR ANY SELECTION OR RETENTION
OF, OR THE ACTS OR OMISSIONS OF, THIRD
PARTIES IN CONNECTION WITH THE SERVICE
(INCLUDING THOSE WITH WHOM WE CONTRACT TO
OPERATE VARIOUS AREAS ON OR FEATURES OF THE
SERVICE).
11.4
FULL APPLICABILITY.
THE
FOREGOING EXCLUSIONS OR LIMITATIONS OF
LIABILITY APPLY REGARDLESS OF ANY ALLEGATION
OR FINDING THAT A REMEDY FAILED OF ITS
ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF
ACTION OR THEORY OF LIABILITY (INCLUDING,
WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF
WE OR OTHERS WERE ADVISED OR AWARE OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR
LIABILITY.
11.5
POSSIBLE EXCEPTIONS.
SOME
STATES OR JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF CERTAIN DAMAGES,
SO THE ABOVE LIMITATIONS OR EXCLUSIONS MIGHT
NOT APPLY TO THAT EXTENT.
12.
INDEMNITY
You
agree to indemnify us against all claims,
liability, damages, costs and expenses,
including but not limited to reasonable
attorneys fees, arising out of or related to
any and all use of your account. This
includes, without limitation, responsibility
for all such consequences of your (or that
of any user of your account) violation of
this Subscriber Agreement or placement on or
over, or retrieval from or through, the
Service of any software, file, information,
communication or other content.
13.
THIRD PARTY BENEFICIARIES
The
provisions of Sections 11 and 12 are for the
benefit of us and our respective
contractors, information or content
providers, service providers, licensors,
employees and agents; and each shall have
the right to assert and enforce such
provisions directly on its own behalf.
14.
LIABILITY FOR UNAUTHORIZED USE
You
agree to notify us immediately after you
sell, give away or otherwise transfer your
DIRECWAY equipment to anyone else. You are
considered the registered recipient of the
DIRECWAY services until we receive such
notice, and you will be liable for any
charges or fees incurred by the use of your
DIRECWAY equipment by anyone else up to the
time that we receive your notice, unless
otherwise provided by State law. You may not
assign or transfer your service without our
written consent. If you do, we may
inactivate your service. If your DIRECWAY
equipment is stolen or otherwise removed
from your premises without your
authorization you must notify DIRECWAY
Customer Care Center immediately, or else
you may be liable for payment for
unauthorized use of your DIRECWAY system.
You will not be liable for unauthorized use
after we have received your notification.
15.
PROPRIETARY RIGHTS
Except
for public domain material, all
copyrightable content distributed over the
DIRECWAY Service is copyrighted by ourselves
or the third-party content provider. We
and/or such third party content providers
own all right title and interest to such
content and you may not copy, distribute,
transmit or publish, in any form, including
printed, electronic, digitized, audio or
otherwise, or modify all or any portion of
such content without the prior written
consent of the copyright owner; provided,
however, that you may store one copy of the
content on your personal computer for your
personal use for a period not to exceed
thirty calendar days. All copyright or other
proprietary rights notices contained in or
associated with the content or contained
therein must be preserved in, or on, any
copies made of such material. The placement
of copyrighted material in any public
posting area, or any software library,
without the consent of the copyright owner
is in violation of this Subscriber
Agreement.
PART
V GENERAL
16.
LIMITS ON TRANSFERS; OTHER LIMITS
Unless
otherwise agreed in writing, your right to
use the Service, or to designate other users
of your account, is not transferable and is
subject to any limits established by
ourselves, or by your credit card company or
other billing institution, as applicable.
17.
CHOICE OF LAW
This
Subscriber Agreement is made in the State of
Maryland. This Subscriber Agreement and all
of the parties respective rights and duties
in connection herewith, including, without
limitation, claims for violation of state
consumer protection laws, unfair competition
laws, and any claims in tort shall be
governed by and construed in accordance with
the laws of the State of Maryland, in the
United States, excluding it conflicts of
laws provisions. Any such controversy or
claim shall be settled by arbitration, and
administered by the American Arbitration
Association under its Commercial Arbitration
Rules. Any such arbitration will be held in
Washington, D.C. The arbitrator will be an
expert in the field of Internet services.
The arbitrator’s award shall be final and
binding and judgment on the award rendered
by the arbitrator may be entered in any
court having jurisdiction thereof. There
shall be no class action arbitration
pursuant to this agreement. Any cause of
action brought by you, or by users of your
account, with respect to the Service or this
Subscriber Agreement must be instituted
within one year after the claim or cause of
action has arisen or be barred. The United
Nations Convention on Contracts for the
International Sale of Goods does not apply
to this Subscriber Agreement and it is
acknowledged that this is a services
contract and not a contract for the sale of
goods. You agree that this Subscriber
Agreement is set forth in the English
language for the mutual convenience and
benefit of the parties. A printed version of
this Subscription Agreement and of any
notice given in electronic form shall be
admissible in judicial and administrative
proceedings relating to or based upon this
Subscription Agreement to the same extent
and subject to the same conditions as other
business documents and records originally
generated and maintained in printed form.
18.
CONSTRUCTION AND DELEGATION
Neither
the course of conduct between parties nor
trade practice shall act to modify the
provisions of this Subscriber Agreement. We
may authorize or allow our contractors and
other third parties to provide to services
necessary or related to making the Service
available and to perform obligations and
exercise our rights under this Subscriber
Agreement, and we may collect payment on
their behalf, if applicable. The provisions
of any Sections of this Agreement, which by
their nature should continue, shall survive
any termination of this Subscriber
Agreement.
19.
MISCELLANEOUS
Where
notification by ourselves is contemplated by
or related to this Subscriber Agreement,
notice may be made by any reasonable means,
including, but not limited to, email or
publication over the Service. If any term of
this Subscriber Agreement is found by a
court of competent jurisdiction to be
invalid, illegal or unenforceable, it shall
be construed in such a way as to eliminate
the offending aspects while still giving as
much effect as possible to the intentions of
such term. If this cannot be done and the
entire term is invalid, illegal or
unenforceable and cannot be so repaired,
then the term shall be considered to be
stricken from this Subscriber Agreement as
if it had not been included from the
beginning. In any such case, the balance of
this Subscriber Agreement shall remain in
effect in accordance with its remaining
terms notwithstanding such invalid, illegal
or unenforceable term. We may enforce or
decline to enforce any or all of the terms
of this Subscriber Agreement in our sole
discretion. In no event shall we be required
to explain, comment on, suffer liability for
or forfeit any right or discretion based on
its enforcement, non-enforcement or
consistency of enforcement of these terms.
Captions used in this document are for
convenience only and shall not be considered
a part of this Subscriber Agreement or be
used to construe its terms or meaning.
20.
ASSIGNMENT OF ACCOUNT
We
may sell, assign or transfer your account to
a third party without notice to you. In the
absence of a notice of such sale or
transfer, you must continue to make all
required payments to us in accordance with
your billing statement.
21.
ENTIRE AGREEMENT
This
Subscriber Agreement, as published over the
Service, as well as the additional online
documents specifically referred to herein as
being a part of this Subscriber Agreement,
constitute the entire and only agreement
with respect to the subject matter hereof
(collectively, the Subscriber Agreement)
between you and ourselves, applicable also
to all users of your account. This
Subscriber Agreement supersedes all
representations, proposals, inducements,
assurances, promises, agreements and other
communications with respect to the subject
matter hereof except as expressly set forth
in this document. By executing the online
sign-up procedure or any other procedure we
have establish to activate your DIRECWAY
account, you agree to the terms and
conditions of this Subscriber Agreement.
This Subscriber Agreement can be amended
only in the manner expressly provided for in
this Subscriber Agreement.
[END
OF AGREEMENT]
Revised
09/03/03
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