Please
read this Service Agreement carefully. Together with the Guidelines for
Acceptable Use and the Privacy Statement, it governs your use of the Internet
access and other information, communication and transaction services
(collectively called the Service) provided to you by AcmeNet, Inc.
("AcmeNet"). This Agreement, the Guidelines and the Privacy Statement
supersede all prior communications and agreements with regard to their subject
matter; the current version of each may be found at AcmeNet's Web site at http://www.acmenet.net/
Service
1.1. By completing the enrollment process
to become a subscriber of the Service or by using the Service or any software
provided by AcmeNet ("Software") other than to read this Agreement,
you agree to accept the terms of the Agreement (including the Guidelines and
the Privacy Statement) as if you had signed it. AcmeNet may change this
Agreement at any time; such changes will be effective immediately upon
transmission of notice by e-mail, postal mail, posting on AcmeNet Web site or
any other means. Each time you use the Service reaffirms your acceptance of the
then-current Agreement. If you do not wish to be bound by this Agreement, you
may discontinue using the Service and the Software and immediately terminate
your account and AcmeNet membership as set forth below.
1.2. Please refer to your initial signup communications for specific
information with respect to your service level. AcmeNet may discontinue or
alter any service level or aspect of the Service at any time, without notice,
without liability and in AcmeNet's sole discretion.
Your Obligations
2.1. You
agree to provide AcmeNet with accurate, current and complete information, to
the extent required by AcmeNet for your registration as a subscriber of the
Service or at any time thereafter, and to maintain and to update this
information as required to keep it accurate, current and complete. You agree in
your enrollment and in your use of the Service not to impersonate any other person
or entity, and you represent that you are either 13 years of age or older, or
have obtained consent to use the Service from your parent or guardian.
2.2. You are responsible and liable for any activity by any person who uses
your account with the Service. Other users of your account will be bound by
this Agreement as if they were you. You are responsible for maintaining the
confidentiality of your password and for any liability resulting from
disclosure of your password. You agree that, upon becoming aware that your
password or account is (or possibly is) being used without authorization, you
will immediately change your password and notify AcmeNet by sending an e-mail
to support@acmenet.net
2.3. You are responsible for obtaining and maintaining the equipment and
telephone services necessary to access and use the Service and for any
telephone charges associated with connecting to and using the Service,
including without limitation any telephone charges associated with the
transmission to or from your computer of any information sent by or on behalf
of AcmeNet, including without limitation information of the types specified in
Section 2.4 below. Depending on the access numbers you accept or select, your
location and your calling plan, connecting to the access number(s) you accept
or select may cause you to incur long distance or additional charges on your
telephone bill. For a list of access numbers and their locations, call
1-866-815-4506 or visit www.acmenet.net.
To find out whether you will incur any charges and, if so, the amounts of such
charges, please contact your local telephone company. You are solely
responsible for all telephone charges incurred by your use of the AcmeNet
Services and AcmeNet will not reimburse you for any such charges.
2.4. AcmeNet's policies relating to privacy and the collection and use of
subscriber information are set forth in the Privacy Statement, which forms an
integral part of this Agreement.
2.5. You agree in using the Service to comply with AcmeNet's Guidelines for
Acceptable Use. You acknowledge that you and members of your household, and not
for corporate or excessive commercial use or for use provide the Service only
for personal use by organizations or other groups of users.
2.6. You agree that AcmeNet may establish general practices and limits
concerning use of the Service. These may include, among others, the maximum
number of days that unread e-mail messages will be retained by the Service, the
maximum number of e-mail messages that may be sent from or received by an
account on the Service, the maximum size of any e-mail message that may be sent
from or received by an account on the Service, the maximum disk space that will
be allocated on AcmeNet's servers on a subscriber's behalf, and the maximum
number of times (and the maximum duration for which) a subscriber may access
the Service in a given period of time. AcmeNet owns the AcmeNet email service
and network including, without limitation, email addresses. Email in inactive
or terminated accounts may be deleted in accordance with AcmeNet's policies.
AcmeNet uses a variety of techniques to eliminate email or attachments that
AcmeNet believes are unsolicited, inappropriate or harmful. In doing so,
AcmeNet may block or delete email or attachments sent by you or to you, even
though such email or attachments may not be unsolicited, inappropriate or
harmful. You agree that AcmeNet is not responsible for any email or attachments
that are blocked or deleted for any reason and that you have no right, and
AcmeNet has no obligation, to retrieve or access any such deleted or blocked
email or attachments you acknowledge that AcmeNet may implement prioritization
practices in connection with accessing the Service and that your ability to establish
and maintain a connection to the Service may be limited, in connection with
such practices or otherwise. You acknowledge that any limits AcmeNet
establishes may differ for different portions of the Service, and in particular
may be set at different levels for subscribers based on factors determined in
AcmeNet's sole discretion, which may or may not include, among others, a
subscriber's chosen service level, specific usage patterns, geographic
location, the particular telecommunications carrier through which a connection
to the Service is attempted or established, and/or a subscriber's participation
in certain programs designed to generate revenues for AcmeNet. You acknowledge
that AcmeNet may restrict or limit the use of third party software or services
in connection with the Services you also acknowledge that AcmeNet reserves the
right to change these general practices and limits at any time, in its sole
discretion, with or without notice
Content
3.1. You
acknowledge that information, communications, photographs, video, graphics,
software, music, sounds and other materials may be accessible to you through
your use of the Service. You acknowledge that, as a matter of policy, AcmeNet
does not pre-screen such materials, but that AcmeNet has the right (but not the
obligation) to remove from its computer servers materials (including, without
limitation, materials created, posted, uploaded or transmitted by you) that
AcmeNet, in its sole discretion, determines to be in violation of the
Guidelines. You further acknowledge, however, that AcmeNet does not have the
capability to monitor, review, restrict, edit or remove materials made
available by third parties on the Internet, and you agree that you must
evaluate, and bear all risks associated with, the use of any materials,
including any reliance on the accuracy, completeness, or usefulness of such
materials. The fact that AcmeNet provides a link to a particular Web page is
not an indication that we endorse that site's policies or the content or
products available from that particular site.
3.2. You acknowledge that materials available through the Service may be
protected by copyright, trademarks, and other intellectual property rights. You
agree that your use of such materials is governed by all applicable laws and
regulations, and by any further restrictions placed on such materials by their
owners or licensors.
3.3. You acknowledge that the Service may provide certain public areas (e.g.
message boards, newsgroups, forums, and public mailing lists), and that AcmeNet
is a distributor (and not a publisher) of information disseminated by persons
using the Service. By posting, uploading or transmitting material to any such
area, you are requesting AcmeNet and/or its partners to make such material
available to others, and you are acknowledging that placing such material in a
public area will result in copies of such material being transmitted to others.
By posting, uploading or transmitting material to any public area, you (i)
grant to AcmeNet and/or its partners a worldwide, royalty-free, perpetual,
irrevocable, non-exclusive license (including the waiver of any moral rights)
to use, reproduce, modify, adapt, publish, distribute, display, and create
derivative works from, such material (in whole or in part) and to incorporate
it into other works in any form, media or technology (whether now known or
later developed) and (ii) warrant that the owner of any rights in the material,
including intellectual property and moral rights, has waived such rights and
has given you the right to grant the license described above
Software License
4.1.
AcmeNet grants to you a personal, non-transferable, non-exclusive license to
use the Software (in object code form only) to access the Service subject to
the terms and conditions of this Agreement. The Software is licensed, not sold,
to you by AcmeNet and may be used only to connect to the Service from the
United States of America and such other locations as AcmeNet may authorize.
4.2. You may copy and archive the Software, and you may distribute copies of
the Software to third parties, provided that all such copies contain the same
copyright notice and proprietary markings as are on the original Software; and
provided further that you do not sell, transmit or otherwise dispose of any
copy for compensation or as part of a commercial offer. Not withstanding the
foregoing, AcmeNet may, at any time, and in its sole discretion, prohibit your
distribution or your further distribution of the Software to third parties and
require you to discontinue any such activity.
4.3. You agree not to translate, reverse engineer, reverse compile, disassemble
or make derivative works from the Software. You agree not to modify the
Software in any manner or form, or to use modified versions of the Software including,
without limitation, for the purpose of obtaining unauthorized access to the
Service or disabling features of the Software or Service. Except as may be
permitted by AcmeNet, you agree not to access the Service by any means other
than through the interface that is provided by AcmeNet or its partners for use
in accessing the Service.
4.4. The Software includes certain cryptographic software that may be subject
to any applicable export controls, including the U.S. Export Administration
Act. The Software may not be exported to any country or to any foreign entity
or "foreign person" to the extent prohibited under applicable
government regulations. By downloading or using the Software, you are
acknowledging and agreeing to the foregoing limitations on your right to export
or re-export the Software, and are also representing and warranting that you
are neither on any applicable government's lists of export precluded parties
nor otherwise ineligible to receive software containing cryptography that is
subject to any applicable export controls.
4.5. You acknowledge and agree that (i) you are not acquiring the license
granted hereunder on behalf of a government agency and (ii) the license granted
hereunder is not being acquired pursuant to a government contract.
4.6. You acknowledge that AcmeNet and its suppliers retain all title, rights
(including, without limitation, intellectual property rights) and interest in
the Software, except as expressly licensed in this Agreement. All rights in the
content, information and materials accessed through use of the Software are the
property of the applicable content owner and may be protected under
intellectual property and other applicable laws. You agree that AcmeNet's
suppliers are direct and intended third party beneficiaries of this Agreement
Fees
No Warranties
6.1. You
agree that use of the Service is at your sole risk. You acknowledge that the
Service may provide access to the Internet, but that the Internet is not owned,
operated or managed by AcmeNet.
6.2. With respect to information, goods and services provided or accessed on or
through the Service or otherwise available on the Internet, AcmeNet (i) has no
responsibility or obligation with respect to (and does not endorse) any
information, good or service, (ii) makes no warranties whatsoever (express or
implied) with regard to any information, good or service (including, without
limitation, warranties of accuracy, completeness, usefulness, merchantability,
safety or fitness for a particular purpose), (iii) will not be a party to a
transaction between you and any other user of the Service and (iv) will not be
liable, under any circumstance, for any loss, cost or damage arising directly
or indirectly from any act or omission of any person or from any information,
good or service; except to the extent the foregoing may not be disclaimed under
law. AcmeNet does not assume liability to subscribers or any other users or
members of user’s household for any failure to enforce the Guidelines.
6.3. ACMENET AND ITS PARTNERS DO NOT WARRANT THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE NOR MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED
FROM THE USE OF THE SERVICE. ACMENET DOES NOT GUARANTEE CONNECTIVITY AT ANY
TIME, FOR ANY LENGTH OF TIME OR AT ANY SPEED. THE SERVICE AND THE SOFTWARE ARE
PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT ANY
WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT
LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. . ACMENET
DOES NOT WARRANT THAT ACMENET SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY
SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS
THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY INTERNET SERVICE OR
ACMENET SERVICES IN PARTICULAR. NO ORAL ADVICE OR WRITTEN (INCLUDING
ELECTRONIC) INFORMATION PROVIDED BY ACMENET, ITS EMPLOYEES, AFFILIATES, AGENTS,
REPRESENTATIVES, LICENSORS OR AUTHORIZED USERS WILL CREATE A WARRANTY, NOR
SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
6.4. UNDER NO CIRCUMSTANCES (INCLUDING NEGLIGENCE AND FUNDAMENTAL BREACH) WILL
ACMENET OR ANYONE ELSE INVOLVED IN PROVIDING THE SERVICE OR SOFTWARE BE LIABLE
FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR
LOSSES FROM OR THROUGH THE USE OF OR INABILITY TO USE THE SERVICE OR THAT
RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL,
DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF
PERFORMANCE, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. ACMENET'S ENTIRE
LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE OR THE SERVICE
WILL BE REPLACEMENT OF MEDIA CONTAINING THE SOFTWARE THAT ACMENET DEEMS TO BE
DEFECTIVE OR THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU DURING THE PRIOR
YEAR, IF ANY. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS
AGREEMENT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF LIABILITY PROVISIONS,
ACMENET'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY.
Indemnification
You agree
to indemnify and hold harmless AcmeNet and its affiliates and their respective
officers, directors, employees and agents against any liability, damages or
other expenses (including attorneys' fees and costs) arising from your use of
the Service (including, without limitation, your dissemination of any
information on the Service).
Termination
8.1.
AcmeNet may terminate your access to the Service and your account at any time,
for cause or for no cause, with or without written (including electronic)
notice. Upon termination, you will have no right to continue to use the Service
or access any stored content on the Service (and any such content will be
forfeited). You acknowledge that if an account on the Service is terminated (or
if you delete your account from AcmeNet's central computers), any unread e-mail
sent prior to termination (or deletion of your account) may be deleted from the
Service.
8.2. You may cancel billing for your service at any time by calling Acmenet's cancellation service number (which is 1-866-815-4506 as of the date of this Agreement),
provided that you will remain liable for any fees to which you have committed at the time of registration. ALL CANCELLATIONS WILL BE EFFECTIVE STARTING ON
YOUR NEXT SERVICE ANNIVERSARY DATE. YOU WILL BE LIABLE FOR THE COST AND FEES FOR ALL SERVICE UP TO CANCELLATION DATE. If you are dissatisfied
with this Agreement or any terms, policies, or practices of Acmenet in operating the Service, any content available through the Acmenet, or any change to any of
the foregoing, your sole recourse is to cancel your service. Deleting your account from Acmenet's central computers or removing the Software from your computer
will not cancel billing for your service.
Miscellaneous
9.1. The failure of either
you or AcmeNet to insist upon or enforce strict performance by the other of any
provision of the Agreement will not be construed as a waiver of any provision
or right. Neither the course of conduct between you and AcmeNet nor trade
practice will act to modify any provision of the Agreement.
9.2. If any provision of this Agreement is held to be unenforceable for any
reason, that provision will be reformed only to the extent necessary to effect
the original intentions of the parties, and the remainder of this Agreement
will remain in full force and effect.
9.3. This Agreement and its enforcement will be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
conflicts-of-law principles. You consent to the exclusive jurisdiction of the
state and federal courts situated in the State of New York in connection with
any action arising under this Agreement or relating to the Service or Software,
and to having any judgment or order from such jurisdiction recognized in any
other court, tribunal or other governmental body in order to have the same
enforced against you. Any cause of action brought by or on behalf of you with
respect to this Agreement, the Service or Software must be commenced within one
year after the claim or cause of action arose.
9.4. Information for
California Residents. Under California Civil Code Section 1789.3, users that
are residents of California are entitled to the following consumer rights
information: the Complaint Assistance Unit of the Division of Consumer Services
may be contacted in writing at 400 R Street, Suite 1080, Sacramento, CA 95814
or by telephone at (916) 445-1254.
9.5. For the purposes of this
Agreement, references to including shall mean "including, without
limitation," unless such language is already set forth.