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Updated 08/01/03
Note: All users are bound by this
terms of service.
DBS
Technologies. ("DBS
Technologies") agrees to
provide you ("User")
with those services
("Service") set forth on the
Application subject to User's
compliance with the terms and
conditions below.
PLEASE READ THIS AGREEMENT
CAREFULLY BEFORE ACCESSING THE
SERVICE. BY ACCESSING THE
SERVICE, YOU AGREE TO BE BOUND BY
THE TERMS AND CONDITIONS
BELOW. IF YOU DO NOT WISH TO BE
BOUND BY THESE TERMS AND
CONDITIONS, YOU MAY NOT ACCESS OR
USE THE SERVICE.
Warranty Disclaimer
THE
FOREGOING WARRANTIES SET FORTH
ARE EXCLUSIVE AND NO OTHER
WARRANTY IS EXPRESSED OR IMPLIED.
DBS
Technologies exercises no
control whatsoever over the
content of the information passing
through DBS Technologies' system.
Use of any information
obtained via DBS Technologies is
at User's risk. Neither DBS
Technologies nor any of its
affiliates, its licensees,
its contractors or their
respective employees warrant that the
Service will be uninterrupted or
error free; nor does DBS
Technologies make any warranty as
to the results from use of the
Service.
THE
SERVICE IS PROVIDED 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,
NONINFRINGEMENT, IMPLIED
WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR
PURPOSE OR ANY WARRANTIES ARISING
FROM COURSE OF DEALING OR
USAGE OF TRADE. NO ADVICE OR
INFORMATION GIVEN BY DBS
TECHNOLOGIES, ITS AFFILIATES, ITS
LICENSERS, ITS CONTRACTORS OR
THEIR RESPECTIVE EMPLOYEES SHALL
CREATE A WARRANTY. NEITHER DBS
TECHNOLOGIES NOR ITS AFFILIATES,
ITS LICENSERS, ITS CONTRACTORS
OR THEIR RESPECTIVE EMPLOYEES
WARRANTS THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE OR
THAT ANY INFORMATION, SOFTWARE OR
OTHER MATERIAL ACCESSIBLE ON THE
SERVICE IS FREE OF VIRUSES,
CANCELBOTS, WORMS, TROJAN HORSES
OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL DBS
TECHNOLOGIES, ITS AFFILIATES, ITS
LICENSERS, ITS CONTRACTORS OR
THEIR RESPECTIVE EMPLOYEES BE
LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT
RESULT IN ANY WAY FROM USER'S USE
OF OR INABILITY TO USE THE
SERVICE OR TO ACCESS THE INTERNET
OR ANY PART THEREOF, OR USER'S
RELIANCE ON OR USE OF INFORMATION,
SERVICES OR MERCHANDISE
PROVIDED ON OR THROUGH THE
SERVICE, OR THAT RESULT FROM
MISTAKES, OMISSIONS,
INTERRUPTIONS, DELETION OF FILES, ERRORS,
DEFECTS, DELAYS IN OPERATION OR
TRANSMISSION, ANY FAILURE OF
PERFORMANCE, COMPUTER VIRUS,
COMMUNICATION LINE FAILURE, THEFT
OR DESTRUCTION OR UNAUTHORIZED
ACCESS TO ALTERATION OF OR USE OF
USER'S ACCOUNT, WHETHER FOR BREACH
OF CONTRACT, NEGLIGENCE OR
UNDER ANY OTHER CAUSE OF ACTION.
IN THE EVENT DBS TECHNOLOGIES
IS FOUND LIABLE UNDER ANY
CIRCUMSTANCE UNDER THE TERMS OF THIS
AGREEMENT, DBS TECHNOLOGIES'
LIABILITY SHALL BE LIMITED TO THE
UNUSED BALANCE OF USER'S
SUBSCRIPTION PAYMENT PRO-RATED TO
REFLECT THE CURRENT TERM.
If
User is dissatisfied with the
Service or with any terms,
conditions, rules, policies,
guidelines or practices of DBS
Technologies in operating the
Service, User's sole and exclusive
remedy is to discontinue
using the Service.
Indemnification
Notwithstanding anything to the
contrary herein contained, User
agrees to indemnify and hold DBS
Technologies, its affiliates, its
licensees,
its contractors or their
respective employees harmless against
any and all liability, loss,
claim, judgment, damage and expense
including without limitation
attorney's fees and cost of
litigation) incurred or suffered
by DBS Technologies, its
licensees, its affiliates, its
contractors, or their respective
employees as the result of any
and all use of User's account
whether authorized or not
authorized or as a result of the
negligence, willful misconduct,
or breach of any of the terms of
this Agreement by User,
including but not limited to
claims, liabilities, losses,
damage, judgment and expense which
arise out of alleged injury
or death of any person or damage
to property of every kind and
description. User shall promptly
notify DBS Technologies in
writing of any claim of which it
is obligated under this
indemnity. User shall have the
right to assume the defense of
any such claim. User and DBS
Technologies shall confer as to and
agree on the legal counsel(s) to
be selected in any such
defense.
Age
Limit
User
represents to DBS
Technologies that he or she is 18
years of age or older. User
understands that certain materials
available from Service
provided under the terms of this
Agreement may not be suitable
for individuals under the age of
18.
Sexually Explicit Materials
User
understands that the Internet
contains unedited materials some
of which are sexually explicit
or may be offensive. User accesses
such materials at his or her
own risk. DBS Technologies has no
control over and accepts no
responsibility whatsoever for such
materials.
Prohibited Uses
User
may not:
restrict or inhibit any other user
from using and enjoying the
Internet;
post
or transmit any unlawful,
threatening, abusive, libelous,
defamatory, obscene,
pornographic, profane, or
otherwise objectionable information of
any kind, including without
limitation any transmissions
constituting or encouraging
conduct that would constitute a
criminal offense, give rise to
civil liability, or otherwise
violate any local, state, national
or international law,
including without limitation the
U.S. export control laws and
regulations;
post
on web
space provided any sexually
explicit materials or
materials that may be offensive.
post
or transmit any information
or software which contains a
virus, cancelbot,
Trojan horse, worm or other
harmful component;
post, publish, transmit,
reproduce, distribute or in any
way exploit any information,
software or other material
obtained through the Service for
commercial purposes (other than as
expressly permitted by the
provider of such information,
software or other material);
upload, post, publish, transmit,
reproduce, or distribute in any
way, information, software or
other material obtained through
the Service which is protected
by copyright, or other proprietary
right, or derivative works
with respect thereto, without
obtaining permission of the
copyright owner or right holder;
upload, post, publish, transmit,
reproduce, transmit or distribute
in any way any component of
the Service itself or derivative
works with respect thereto;
send
unsolicited advertising or
promotional materials to other
network users (See section titled
"MESSAGING");
allow users to run Maillist,
Listserv
or any form of auto-responds
from User's account;
run
or activate processes while
User is not logged in;
violate the security of any
computer network, crack passwords
or security encryption codes,
transfer or store illegal material
including that deemed
threatening or obscene, or engage
in any kind or illegal
activity;
attempt to defeat any idle timer
or system tool intended to enforce
the part-time and personal
nature of User's connection,
including the use of pingbots
and other methods of avoiding
timing disconnection (See section
titled "LIMITATIONS OF
DIAL-UP SERVICES"); or
violate any of the rules,
regulations and policies of those
networks and computer systems
accessed via User's account.
DBS
Technologies has no obligation
to monitor the Service. However,
User agrees that DBS
Technologies has the right to
monitor the Service electronically
from time to time and to disclose
any information as may be
necessary to satisfy any law,
regulation or other governmental
request, to operate the Service
properly, or to protect itself
or its subscribers. DBS Technologies will not
intentionally monitor or disclose
any private E-mail message
unless required by law. DBS
Technologies reserves the right to
refuse to post or to remove any
information or materials, in
whole or in part, that, in its
sole and absolute discretion, are
unacceptable, undesirable, or in
violation of this Agreement.
DBS Technologies reserves the
right to suspend access to the
Service for User's account. The
account's suspension may be
rescinded within the sole and
absolute discretion of DBS
Technologies following payment of
a reconnection charge, to be
determined by DBS Technologies in
its sole and absolute
discretion.
Messaging
User
agrees to limit their use of
the DBS Technologies service,
specifically regarding the use of
DBS Technologies' electronic
(email) services, to the following
restrictions:
Unauthorized Use of Relay Servers
User
agrees that any unauthorized
use of any email server located
throughout the Internet for the
purposes of relaying or
distributing messages is prohibited.
Fraudulent Addressing
User
agrees that the purposeful
distribution of any email message
where the return address,
originator's address, or any other
identifiable aspect of the
message has been purposefully
altered, is prohibited. User may
not purposefully misrepresent the
origination information of any
email messages sent while using
the DBS Technologies service.
Fraudulent Content
User
agrees to be held responsible
for the distribution of fraudulent
materials.
VIOLATION OF ANY OF THESE TERMS
WILL RESULT IN IMMEDIATE
TERMINATION OF SERVICES. FURTHERMORE,
VIOLATION OF ANY OF THESE TERMS,
RELATING TO THE TERMS DESCRIBED
WITHIN THIS "MESSAGING"
SECTION OF THIS DOCUMENT, WILL
RESULT IN THE IMMEDIATE PENALTY OF
$200. DBS TECHNOLOGIES
RESERVES THE RIGHT TO CHARGE
USER'S CREDIT CARD, IF ON FILE FOR
USE IN PAYMENT OF DBS TECHNOLOGIES
SERVICES, A ONE-TIME FEE OF
$200 PER VIOLATION OF THESE TERMS.
IN THE EVENT USER PRE-PAYS
FOR THEIR DBS TECHNOLOGIES SERVICE
VIA CASH, CHECK, OR MEANS
OTHER THAN CREDIT CARD, DBS
TECHNOLOGIES RESERVES THE RIGHT TO
INVOICE AND HOLD USER RESPONSIBLE
FOR THE ONE-TIME FEE OF $200
PER VIOLATION OF THESE TERMS. USER
ALSO AGREES TO THE IMMEDIATE
TERMINATION OF DBS TECHNOLOGIES
SERVICES FOR VIOLATION OF ANY OF
THESE TERMS.
Limitation of Web Hosting Services
Although DBS Technologies
advertises "Unlimited
Bandwidth" in regards to some of
its services there are several
limitations applied. The sole
purpose of these limitations are
intended to prevent use of DBS
Technologies services by any
actions by User which restricts
system availability for other such
Users. These limitations
apply only to Hosting offered by
DBS Technologies.
Restricted Content
You
agree not to post any of the
following restricted contents:
Illegal, Abusive or Unethical
Activities include, but are not
limited to, pornography,
obscenity, nudity, violations of
privacy, hacking, computer
virus, gambling, or promotion of
gambling, and any harassing or
harmful materials or uses, as
determined by us. You agree to
indemnify and hold us harmless
from any claim resulting from
your publications or use of
Illegal, Abusive or Unethical
materials.
Bandwidth Restrictions
Although we advertise unlimited
bandwidth, we reserve the right to
inform you that you must
transfer your website if an
excessive amount of bandwidth is
being used. If the request is not
met within 5 days, we do
reserve the right to remove the
website from our system.
Limitation of Dial-Up Services
Although DBS Technologies
advertises "Unlimited
Access" in regards to some of
it's Dial-Up services, there are
several limitations applied.
The sole purpose of these
limitations are intended to limit the
amount of unnecessary use of DBS
Technologies services by any
such User, which restricts overall
DBS Technologies system
availability for other such Users.
These limitations apply only
to Dial-Up access services offered
by DBS Technologies.
Idle
Timeout
User
agrees to have their online
session automatically terminated
after ten (10) minutes of
consecutive inactivity. Inactivity
is defined as less than 500
bytes of data transferred between
User's modem and the DBS
Technologies service.
Maximum Single Session
User
agrees to have an online
session automatically terminated
after five (5) hours of
consecutive time, regardless of
data transferred during such
specific online session.
Minimum Re-Connect Limit
User
understands they cannot log
back onto the DBS Technologies
system for a time period of one
(1) minute following the
termination of their previous online
session, regardless of the reason
for the previous session's
termination.
Multiple, Concurrent Online
Sessions
User
agrees to maintain no more
than one (1) concurrent online
session for each PPP/ISDN account
purchased.
Network 2 Access Restrictions
User
agrees to not use the service
as a dedicated connection. The
determination of what a dedicated
connection is shall be at the sole
determination of DBS
Technologies. Service is provided
as an unlimited service
provided that you may not use the
provided connection as a
dedicated connection.
Network 1 Access Restrictions
User
agrees that for all Network 1
locations, that they will be
limited to 150 hours of access per
month. If a customer exceeds the
150 hour limit, there account
will be temporarily disabled until
the first of the next month.
Terms of Payment
A
credit card User agrees to allow
DBS Technologies to bill his or
her card on each successive
billing date without obtaining
User's permission after the
initial charge. A credit card User
shall notify DBS Technologies
of any changes in credit card
number or expiration date. If the
card is not honored for any
reason, DBS Technologies will
attempt to notify the card holder
by using the telephone
information given at sign-up or by
E-mail. DBS Technologies will
call the card holder, and if
alternative billing has not been
established, the account will be
terminated. Restoring the
account will be subject to a fee
of $10.00 at DBS Technologies
sole and absolute discretion.
If
payment is by check, payment
due dates are indicated on User's
invoice. Dishonored checks are
subject to a collection fee to be
determined by DBS Technologies
in its sole and absolute
discretion and User's account may be
suspended until the account is
current. If payment is not
received, service will be
terminated and a fee of $10.00 will be
added to charges for additional
Service.
DBS
Technologies maintains the
right to terminate Service for any
unpaid subscriptions.
Accounts in default are subject to
an interest charge of 2.5%
per month on the outstanding
balance. Termination of Service
shall not relieve User from the
obligation to satisfy
outstanding invoices. In the event
DBS Technologies utilizes an
attorney to collect any unpaid
amounts, User shall be
responsible for the payment of all
of DBS Technologies'
attorneys' fees and costs in the
collection of these sums.
DBS
Technologies reserves the
right to change prices at any time
without prior notice to it's
customers or the public. Price
changes will not be retroactive
for existing customers, regardless
of the length of their
existing service subscription.
Right to Cancel
DBS
Technologies reserves the
right to cancel Service for any
reason without prior notice.
Pre-paid service is
non-refundable. DBS Technologies will not
refund any shipping or handling
fees. Cancellations after the
first of the month will be charged
for that month.
User
must notify DBS Technologies
in writing 30 days before the next
billing date in order to
cancel service. Cancellations
shall not be honored by electronic
mail. Fees for any setup,
shipping and handling, and monthly
service charges placed by DBS
Technologies are
non-refundable.
No
Confidentiality
Information transmitted through
DBS Technologies and through the
Internet in general is not
confidential. DBS Technologies can
not and shall not guarantee
privacy or protection of any User.
DBS Technologies reserves the
right to monitor any User's
transmissions when deemed necessary
for providing proper service
and/or to protect the rights and
property of DBS Technologies.
Customer Information
Unless required by court order,
subpoena or other legal request,
or upon the advice of counsel,
DBS Technologie may publish User's
name and other consumer
information in one or more
directories which may be accessed by
other Internet users. In addition,
unless User notifies DBS
Technologiesto the contrary as
provided above, DBS Technologies
may make such information
available to third parties from time
to time. User understands further
that merchants on the Internet
may have access to such
information and may make it available to
third parties in accordance with
their normal practices unless
User notifies those merchants
directly that User does not wish
such information to be made
available.
Non-transferable
The
right to use the Service is
not transferable. Accounts are for
User's use only. User shall
be responsible for the
confidentiality of User's password.
Loaning User's account to others,
connecting a system used by
multiple persons, group use of
user log-ins, and consuming more
than one modem line are explicitly
prohibited. If User has
multiple accounts, then User shall
be limited to one log-in
session per system account at any
time. Violation of those terms
shall constitute theft of Service
and may be prosecuted under
civil and criminal law.
Purchases on the Service
If
User wishes to make purchases
on the Service, User may be asked
by the merchant or information
or service provider from whom User
is making the purchase to
supply certain information,
including credit card or other
payment mechanism information.
User agrees that all information
User may provide any merchant or
information or service provider
on the Service for purposes of
making purchases shall be
accurate, complete and current.
The merchants and information
and service providers offering
merchandise, information and
services on the Service set their
own prices and may change
prices or institute new prices at
any time. User agrees to pay
all charges incurred by users of
User's account and credit card
or other payment mechanism at the
prices in effect when such
charges are incurred. User shall
also be responsible for paying
any applicable taxes relating to
purchases on the Service.
No
System Backup
DBS
Technologies does not and will
not perform system backups on any
User's E-mail account(s). DBS
Technologies shall not be held
responsible for any lost E-mail
data, email attachments, or any
E-mail message contents,
regardless of the reasoning for
data loss or system causes.
Except as otherwise set forth
herein, DBS Technologies will not
provide historical data, to any
party for any reason, regarding
any system or Internet
activity.
DBS
Technologies does not and will
not perform system backups on any
web sites. DBS Technologies
shall not be held responsible for
any lost web data, web files,
or any website contents,
regardless of the reasoning for data
loss or system causes. Except as
otherwise set forth herein, DBS
Technologies will not provide
historical data, to any party for
any reason, regarding any system
or Internet activity.
Failure to Comply With Terms and
Conditions
DBS
Technologies may deny User
access to all or part of the
Service without notice if User
engages in any conduct or
activities that DBS Technologiesin its
sole discretion believes violates
any of the terms and
conditions in this Agreement. If
DBS Technologies denies User
access to the Service because of
such a violation, User shall
have not right (1) to access
through DBS Technologies any
materials stored on the Internet,
(2) to obtain any credit(s)
otherwise due to User, and such
credit(s) shall be forfeited,
(3) to access third party
services, merchandise or information
on the Internet through DBS
Technologies, and DBS Technologies
shall have no responsibility to
notify any third-party providers
of services, merchandise or
information nor any responsibility
for any consequences resulting
from lack of notification.
Miscellaneous
User
agrees to remain signed into
the network only when actually
making use of same, and to
disconnect when idle for
significant periods of time (more than
10 minutes). User also agrees to
not remain connected to DBS
Technologies' system for periods
exceeding (8) eight hours, in
any single continuous session.
User authorizes DBS Technologies
to enforce these restrictions by
appropriate software and
network measures, automated and
manual.
User
agrees to notify DBS
Technologies if User moves or
otherwise changes his or her
mailing address or phone number,
and to list a truthful name,
postal address and telephone
number on the forms User supplies
to DBS Technologies.
In
the event that any portion of
this Agreement is held to be
unenforceable, the unenforceable
portion shall be construed in
accordance with applicable law as
nearly as possible to reflect the
original intentions of the
parties and the remainder of the
provisions shall remain in full
force and effect.
DBS
Technologies' failure to
insist upon or enforce strict
performance of any provisions of
this Agreement shall not be
construed as a waiver of any
provision or right. neither the
course of conduct between
parties nor trade practice shall
act to modify any provision of
this Agreement.
DBS
Technologies may modify this
Agreement from time to time by
placing a notice of such
modification on our website, and
User's continued use of the
Service following notice of such
modification shall be deemed to
be User's acceptance of any such
modification. It is User's
responsibility to check this
online area regularly to determine
whether this Agreement has been
modified. If User does not agree
to any modification of this
Agreement, User must immediately
stop using the Service.
This
Agreement shall be governed
by and construed in accordance
with the laws of the State of
Texas without regard to its
conflicts of law provisions. Any
cause of action User may have with
respect to the Service must
be commenced within one (1) year
after the claim or cause of
action arises or such claim or
cause of action is barred.
DBS
Technologies shall not be
liable or deemed to be in default
for any delay or failure in
performance under this Agreement
or interruption of service
resulting directly or indirectly
from acts of God, civil or
military authority, acts of public
enemy, war, riots, civil
disturbances, insurrections,
accidents, dire, explosions,
earthquakes, floods, the elements,
strikes, labor disputes,
shortages of suitable parts,
materials, labor or transportation
or any cause beyond the reasonable
control of DBS Technologies.
Venue for litigation of any
dispute, controversy, or claim
arising out of, in connection
with, or in relation to this
Agreement, or the breach thereof,
naming DBS Technologies as the
defendant, shall be proper only
in a venue determined by DBS
Technologies.
In
any action between DBS
Technologies and User to enforce
any of the terms of this
Agreement, DBS Technologies shall
be entitled to recover
expenses, including reasonable
attorney's fees.
This Agreement constitutes the
entire agreement between User
and DBS Technologies with respect
to the Service.
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