Terms & Agreements
REVISED 07.01.2005 This Agreement is made between Maui Global Communications Corporation ('MGCC') and the Customer that has subscribed to the Maui Gateway Internet Services. MGCC is pleased to provide the services and facilities set forth hereunder on the terms and conditions contained herein and in any exhibits or attachments hereto. Customer and any persons using any services or facilities provided by MGCC hereunder accepts the terms and conditions contained in this Internet Services Agreement ('the Agreement').
1. SERVICE AND FACILITIES: MGCC agrees to provide, and Customer and users under the Customer (hereinafter the 'Customer') agrees to receive, access to the MGCC network, including but not limited to, the Internet, Telnet, or Dial-up service, according to the terms and conditions of this Agreement.
2. PRICE: Customer agrees to pay MGCC all charges relating to the use of Customer's accounts according to rates and prices stated on said fee schedule at the time of commencement, INCLUDING A ONE-TIME NON REFUNDABLE SETUP FEE as stated therein. CUSTOMER AGREES THE ONE-TIME SETUP FEE IS NON REFUNDABLE. MGCC will charge a $20.00 service fee (plus applicable taxes) for any Customer logon name changes made after service is initiated. All prices are subject to Hawaii State General Excise Tax (GET).
3. PAYMENT: Customer shall be invoiced and billed according to the billing plan selected. Payment will be deemed made when received by MGCC.
3.1 If the customer has chosen the credit card payment plan to have a credit card charged for usage fees, MGCC reserves the right to charge the credit card when services fees are due. 3.2 When paying by check, Customer expressly authorizes MGCC to debit Customer's account for the amount of a check returned unpaid by Customer's bank, plus a $20 returned check fee.
3.3 Payment made with any restrictive writing will be processed without MGCC losing any rights under this Agreement. No payment made with any restrictive language, including but not limited to "paid in full" shall operate as an accord and satisfaction without the prior written approval of MGCC's Accounting Manager.
4. TERM: The Agreement shall become effective on the date activated by Customer by payment of MGCC's fees, and shall remain in effect until MGCC receives a written, or on-line cancellation notice, or until terminated by MGCC. MGCC reserves the right to refuse service to anyone. Further, MGCC may terminate this agreement at any time, for any reason, subject to five days advance written notice delivered via e-mail.
5. LIMITATIONS OF LIABILITY; CREDIT:
5.1 GENERALLY. After Service is initiated, there will be no credits or reductions against the charges for Service for downtime or interruption of Service. MGCC service is provided on an 'as is, as available' basis. No warranties, expressed or implied, including, but not limited to, those of merchantability or fitness for a particular purpose, are made with respect to service provided by MGCC or any information or software therein. This includes but is not limited to any reimbursement for losses of income due to disruption of service by MGCC or its providers. All Customer accounts are subject to events of beyond the control of MGCC, for which customer agrees MGCC shall have no legal liability. Even when Customer is in compliance with all of the terms and conditions of this Agreement, Service may be temporarily unavailable or limited because of capacity limitations and may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs, and similar activities necessary for the proper operation of Service. The temporary unavailability of the Service shall not constitute ground for any claim by Customer against MGCC, and Customer waives any and all such claims.
5.1 NON LIABILITY & INDEMNITY: MGCC is not responsible for any damages arising from Customer's use of MGCC or by Customer's inability to use Service, including but not limited to any consequential, special or similar damages, even if MGCC has been advised of the possibility of such damages. Customer acknowledges and agrees that the liability of MGCC, if any, arising out of any kind of legal claim (whether in contract, tort or otherwise) in any way connected with the Service, shall not exceed the fees actually paid by Customer during any one year period during which Customer subscribed to and paid for the Service.
Customer agrees to indemnify, defend and hold harmless MGCC, along with any parties from whom MGCC obtains network services, from, and against any loss, cost, claim, liability, damage, or expense, (including reasonable attorneys' fees) to any third party which in any way relates to or arises out of the use of the Service by Customer, it agents, employees, and independent contractors, whether or not Customer has knowledge of or has authorized such access or use, including, without limitation, claims for libel, slander, invasion of privacy, infringement of copyright, patent infringement (where Customer has used, connected, or combined the Service with the products or services of others).
6. CUSTOMER RESPONSIBILITY: Customer shall ensure that all parties using its account shall comply with the terms and conditions of this Agreement, the Internet protocol and the MGCC protocol. For reference, MGCC's Acceptable Use Policy may be found at http://www.cchono.com/termsofservice.html.
7. COMMERCIAL USE: Use of MGCC for advertising, promoting or selling a commercial product or service without a MGCC Business Account is prohibited without prior written approval of MGCC. Taking credit card orders requires the Secure Forms Service in addition to a MGCC Business Account. Reselling of web space on the MGCC server is restricted to Hosting Reseller Accounts only. All other reselling of web space on the MGCC server is prohibited without prior written approval of MGCC.
8. Customer is responsible for all usage of Customer's account(s) and confidentiality of password(s). MGCC will suspend access or change access to Customer's account(s) immediately upon notification by Customer that the password may have been lost, stolen, or otherwise compromised.
9. Customer is responsible for all local and long distance telephone charges incurred by connecting to MGCC.
10. Monthly dues must be paid on a timely basis to maintain Customer's membership privileges. Monthly dues charges will continue regardless of use or nonuse until Customer cancels the account by notifying MGCC in writing 30 days in advance. Customers may cancel at any time with the 30 day written notice, unless bound by a specific term or Agreement. Payments more than 10 days late may be assessed a 5% late payment charge and/or result in suspended services. Accounts suspended for non-payment may be assessed an additional reactivation charge. In the event of cancellation of service, Customer is responsible for the full current month's charges unless MGCC receives a cancellation notice 30 days prior to the next billing cycle. Cancellation notice must be signed by the original subscriber of the account and may be submitted by U.S. mail or faxed.
11. MGCC reserves the right to change prices upon 30 days notice published online. MGCC may modify these terms and conditions upon notice published online via MGCC. Customer's use of MGCC services after such notice shall constitute Customer's acceptance of the modifications to this Agreement.
12. USE OF SERVICE: Customer and users of Customer's account agree to abide by and comply with the following:
12.1 MISUSE OF SERVICE: Service may only be used for lawful purposes. The use of the Service for illegal activities of any kind will result in termination of the account. It is the responsibility of the Customer to be aware of both U.S. and state regulations concerning:
12.1 (a) Unauthorized use of equipment, software, or processes used in connection with furnishing the Service.
12.1 (b) Impersonation of another person with fraudulent or malicious intent.
12.1 (c) The use of copyrighted material, material that is threatening or obscene, or material protected by trade secret.
12.1 (d) In the event that this account is not used in accordance with all applicable laws, MGCC reserves the right to cooperate with any and all law enforcement agencies.
12.2 E-MAIL: Sending harassing or mass unsolicited email (commonly referred to as 'UCE' or 'Spam') is prohibited. Forging header information in e-mail is prohibited. Use of telecommunications messaging programs or software designed for mass spamming or storage of such programs on MGCC's servers is prohibited. Impersonating other users by forging one's email address is prohibited.
12.3 INTERNET RELAY CHAT: Use of IRC 'bots' or storing them on MGCC's servers is prohibited. Flooding, cloning, spoofing, harassment, or otherwise hindering the ability of others to properly use IRC is prohibited.
12.4 WORLD WIDE WEB: Pages containing pornography or nude images may not be stored on MGCC's web servers. Any other adult-oriented material should have warning and disclaimer pages, if not password protection. Use of text or images created by others without their permission is copyright infringement and is prohibited.
12.4 (a) For information about charges which may apply to high-traffic web sites, see MGCC's information about setting up home pages. Sites which receive extremely high traffic may, at MGCC's sole discretion, be required to move from the Customer web server to another MGCC web server.
12.5 PUBLIC FTP SITES: Use of MGCC's FTP server for advertising purposes requires a MGCC Business account. Reselling FTP space is restricted to Hosting Reseller Accounts only. All other reselling of FTP space is prohibited. Files containing pornography or nude images may not be stored on MGCC's FTP server. Using MGCC's FTP server for the exchange of pirated software or software designed to facilitate copyright infringement, unauthorized use of computer systems, credit card fraud, or other illegal activity is prohibited.
12.6 STORAGE/TRANSFERRING OF FILES: Storing, transferring, or allowing to be transferred (this includes FTP and the Web) any internal MGCC file that is not located in the Customer's own directory structure and owned by the Customer is prohibited. This includes, but is not limited to, sending via FTP, allowing outside access to, mailing, or otherwise giving access to any file that is not owned by the Customer.
12.7 HACKING/CRACKING SOFTWARE, UTILITIES, OR FILES: Any program, utility, or file that can be used to allow unauthorized access or gain unauthorized information about a computer, network, or file is prohibited. Storage of these archived programs, software, utilities, or files in an archived format and only for personal use or download is acceptable. Removing such files from their archived or compressed state, attempts to run and/or attempting to compile or use such software is prohibited.
13. CAUSES FOR ACCOUNT TERMINATION. Violation of any of the provisions of this section may, IN MGCCS SOLE DISCRETION, result in termination of Customer's account.
13.1 FAILURE TO OBEY RULES AND REGULATIONS: Any Customer covered by this Agreement fails to obey any present or future MGCC rule or regulation.
13.2 LATE PAYMENTS: MGCC does not receive a monthly payment on or before its due date.
13.3 FALSE STATEMENTS: Any material statement by the Customer in this Agreement is false.
13.4 NON-PAYMENT OF FUNDS: Failure to use this account(s) does not relieve the Customer of payment obligations, except as specifically provided in this Agreement.
13.5 DEFAULT ON THIS AGREEMENT: In the event the Customer defaults on this Agreement, MGCC may suspend or revoke the Customer's membership privileges and the Customer may have to reapply for membership at the price MGCC is charging to new members. The Customer agrees to pay MGCC's reasonable attorneys' fees and court costs, where permitted, in collecting the amount remaining in the Customer's contract as stated in the sales order.
13.5 (a) MGCC, AT ITS SOLE DISCRETION, MAY TERMINATE THIS AGREEMENT IMMEDIATELY, OR SUSPEND CUSTOMER'S ACCESS TO THE SERVICE UPON ANY BREACH OF THIS AGREEMENT BY CUSTOMER, INCLUDING, BUT NOT LIMITED TO, REFUSAL, OR FAILURE TO PAY FOR SERVICES PROVIDED, OR BY SOLE JUDGEMENT OF MGCC THAT CUSTOMER MAY BE PERFORMING ACTIVITIES HARMFUL TO MGCC OR ITS USERS, EMPLOYEES, VENDORS, BUSINESS RELATIONSHIPS, OR ANY OTHER USERS OF THE INTERNET.
14. MISCELLANEOUS: This document and the rights and duties of the parties shall be governed by and interpreted according to the laws of the State of Hawaii. Non-enforcement of any section of this Agreement does not constitute waiver or consent and MGCC reserves the right to enforce this Agreement at its sole discretion. If any one or more paragraphs in this Agreement is found to be unenforceable or invalid, Customer's and MGCC's Agreement on all other paragraphs shall remain valid.
14.1 MGCC reserves the right to change, without notice, the Service, including, but not limited to, access, procedures, hours of operation, menu structures, commands, documentation, vendors and services offered.
14.2 MGCC reserves the right in its sole discretion to delete any information entered into MGCC by Customer. MGCC and its authorized representatives shall have the right, but shall not be obligated, to remove publicly viewable information.
14.3 Customer hereby warrants and agrees that any material submitted for publication on MGCC through Customer's accounts does not violate or infringe on any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything obscene or libelous. Software intended to facilitate any such violations or infringements may not be stored on MGCC.
14.4 MGCC may assign this Agreement, its rights here under and its ownership of said service and commitment at anytime without notice.
14.5 MGCC reserves the right to terminate or change priority of any process started by said Customer.
14.6 MGCC is not responsible for Customer's personal files residing on MGCC. Customer is responsible for independent backup of Customer's data stored on MGCC.
14.7 MGCC reserves the right to delete Customer's personal files after one or both parties terminates this Agreement.
14.8 MGCC Interactive Usage: Dialup connections are not intended to be full-time dedicated connections and will be disconnected after 20 minutes of inactivity. Customer agrees not to use any automatic method to avoid disconnection, and agrees to keep the connection active only when the Customer is actively using it, and not to provide public information services over the connection. MGCC reserves the right to impose restrictions on accounts MGCC deems to be in violation of these conditions.
14.9 MGCC reserves the right to terminate this agreement, and the Service to any Customer at any time, for any reason, subject to five days advance written notice delivered via e-mail.
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