The date of this Service Agreement is September 1, 2002.
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 OnlineAnywhere.com ("The
Co."). 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 OnlineAnywhere.com's Web site at http://www.onlineanywhere.com/privacy.html
| 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 OnlineAnywhere.com ("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. OnlineAnywhere.com may change this
Agreement at any time; such changes will be effective immediately
upon transmission of notice by e-mail, postal mail, 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 as set forth
below.
1.2. Please refer to your initial signup communications
for specific information with respect to your service level.
OnlineAnywhere.com may discontinue or alter any service level
or aspect of the Service at any time, without notice, without
liability and in OnlineAnywhere.com's sole discretion.
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Your
Obligations
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| 2.1. You agree to provide OnlineAnywhere.com with accurate,
current and complete information, to the extent required by
OnlineAnywhere.com
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 OnlineAnywhere.com by sending e-mail to abuse@OnlineAnywhere.com.
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 OnlineAnywhere.com, including without limitation information
of the types specified in Section 2.4 below. Depending on
the access numbers you select, your location and your calling
plan, connecting to the access number(s) you select may cause
you to incur long distance charges on your telephone bill.
For a list of access numbers and their locations, call 1-866-966-5463
OnlineAnywhere.com or visit http://www.OnlineAnywhere.com/coverageareas.html.
To find out whether you will incur any charges and, if so,
the amounts of such charges, please contact your local telephone
company. OnlineAnywhere.com will not be responsible for any
such charges incurred.
2.4. You expressly permit and authorize OnlineAnywhere.com
(and such third parties as may be authorized by
OnlineAnywhere.com, subject to the Privacy Statement) to furnish
you, electronically when you use the Service or by any other
means selected by OnlineAnywhere.com, information prepared
by OnlineAnywhere.com or by (or on behalf of) other entities,
including advertising information and solicitations. You acknowledge
that any such information, advertisements and solicitations
are an inseparable part of the Service, and you understand
and agree that the furnishing of such information, advertisements
and solicitations to you cannot be terminated unless the Service
is also terminated. Some third parties furnishing you with
advertisements and solicitations through the Service may permit
you to "opt out" of receiving such communications
from them, in which case you can do so by following the instructions
they provide. However, OnlineAnywhere.com is not responsible
for any such party's failure to comply with its own "opt
out" policies, nor does OnlineAnywhere.com endorse the
views or content of any third party advertisements or solicitations.
All such advertisements and solicitations will be understood
to be "requested" by you through the act of using
the Service, and each time you use your account reaffirms
such request.
OnlineAnywhere.com'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 OnlineAnywhere.com's
Guidelines for Acceptable Use. You acknowledge that the Service
is provided only for personal use by you and members of your
household, and not for corporate or excessive commercial use
or for use by organizations or other groups of users.
2.6. You agree that OnlineAnywhere.com 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 OnlineAnywhere.com'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. You acknowledge that OnlineAnywhere.com 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 OnlineAnywhere.com 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 OnlineAnywhere.com'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 OnlineAnywhere.com.
You also acknowledge that OnlineAnywhere.com reserves the
right to change these general practices and limits at any
time, in its sole discretion, with or without notice.
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Content
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| 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,
OnlineAnywhere.com does not pre-screen such materials, but that
OnlineAnywhere.com 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 OnlineAnywhere.com, in its sole discretion, determines
to be in violation of the Guidelines. You further acknowledge,
however, that OnlineAnywhere.com 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
OnlineAnywhere.com 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 OnlineAnywhere.com 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 OnlineAnywhere.com 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 OnlineAnywhere.com 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.
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| Software
License |
| 4.1. OnlineAnywhere.com 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 OnlineAnywhere.com and may be used only to connect to the
Service from the United States of America and such other locations
as OnlineAnywhere.com 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.
Notwithstanding the foregoing, OnlineAnywhere.com 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 rom 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 OnlineAnywhere.com, you agree
not to access the Service by any means other than through
the interface that is provided by OnlineAnywhere.com 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 OnlineAnywhere.com 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 OnlineAnywhere.com's suppliers are direct and intended
third party beneficiaries of this Agreement.
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| Fees |
| 5.1. As a subscriber of the Service you are solely responsible
for any charges to your account and any activities conducted
through your account. By using a credit card or other payment
method to pay for any billable portions of the Service, you
expressly authorize OnlineAnywhere.com or its agents to charge
all fees and other charges incurred in connection with your
service to the credit card or other payment method you have
designated, and such authorization will remain valid unless
revoked by you pursuant to Section 8.2. If you use a credit
card and OnlineAnywhere.com does not receive payment from the
card issuer or its agents, you agree to pay all amounts due
upon demand by OnlineAnywhere.com. Fees are non-refundable,
except as otherwise provided in this Agreement.
5.2. You may change your designated payment method by contacting
OnlineAnywhere.com in the manner specified for that purpose
on OnlineAnywhere.com's Web site or by calling the OnlineAnywhere.com
customer service number (which is 1-866-966-5463 as of the
date of this Agreement). OnlineAnywhere.com reserves the right
to accept other forms of payment or to modify the forms of
payment it will accept. If OnlineAnywhere.com elects to authorize
alternative or additional methods of payment, your designation
of such a method of payment will be deemed to be an authorization
to OnlineAnywhere.com to bill you, in a manner appropriate
to your designated payment method, for all fees and other
charges incurred in connection with your service.
5.3. If OnlineAnywhere.com does not receive the amount of
your account balance within 30 days of the applicable invoice
date,
an additional 1.5% (or the highest amount permissible by law,
if less) per month of the amount outstanding may be added
to
your invoice as a late charge. You will be liable for all
attorney and collection fees arising out of OnlineAnywhere.com's
efforts
to collect any unpaid balance of your account. If you believe
that a billing discrepancy has occurred, you must notify
OnlineAnywhere.com within 90 days after the date of the relevant
account statement from your credit card issuer or financial
institution or such amounts will be deemed to have been accepted
by you. You agree to release OnlineAnywhere.com from any liability
for any error or discrepancy that is reported to OnlineAnywhere.com
after such period.
5.4. Your subscription to any billable portion of the Service
will continue and renew automatically, unless terminated by
OnlineAnywhere.com or until you notify OnlineAnywhere.com
pursuant to Section 8.2 of your decision to terminate your
subscription to a portion of the Service. OnlineAnywhere.com
reserves the right at any time to change its fees and charges
for use of portions of the Service, to institute new or additional
fees, and to change its policies, methods, and procedures
with respect to pricing, billing, cancellations, and surcharges.
Although OnlineAnywhere.com expects to provide e-mail or other
notice to you prior to increasing the price you pay for the
Service, OnlineAnywhere.com shall not be required to do so
before making any of the changes described. You may obtain
current pricing information for different service levels,
as well as information about policies, methods and procedures
with respect to pricing, billing, cancellation and surcharges
(i) by calling the OnlineAnywhere.com customer service number
(which is 1-866-966-5463 as of the date of this Agreement),
(ii) through OnlineAnywhere.com's Web site, or (iii) by sending
e-mail to billing@onlineanywhere.com. OnlineAnywhere.com may
modify the means of accessing rates and billing information
in its sole discretion.
5.5. In addition to fees for your subscription to any billable
portion of the Service, you agree to pay all sales, use, value-added,
personal property or other governmental taxes or levies imposed
on fees for the Service or goods or services that you purchase
through the Service.
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| 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 OnlineAnywhere.com.
6.2. With respect to information, goods and services provided
or accessed on or through the Service or otherwise available
on
the Internet, OnlineAnywhere.com (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.
OnlineAnywhere.com does not assume liability to subscribers
or others for any failure to enforce the Guidelines.
6.3. OnlineAnywhere.com 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. OnlineAnywhere.com 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. NO ORAL ADVICE OR WRITTEN (INCLUDING ELECTRONIC)
INFORMATION PROVIDED BY OnlineAnywhere.com, 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 OnlineAnywhere.com
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.
OnlineAnywhere.com'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY
WITH RESPECT TO THE SOFTWARE OR THE SERVICE WILL BE REPLACEMENT
OF MEDIA CONTAINING THE SOFTWARE THAT OnlineAnywhere.com 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, OnlineAnywhere.com'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.
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| Indemnification |
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You agree to indemnify and hold harmless OnlineAnywhere.com
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).
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| Termination |
| 8.1. OnlineAnywhere.com 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 OnlineAnywhere.com'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 OnlineAnywhere.com's cancellation service number
(which is 1-866-966-5463 as of the date of this Agreement)
or by using such other means as OnlineAnywhere.com may make
available from time to time, provided that you will remain
liable for any fees to which you have committed at the time
of registration. If you are dissatisfied with this Agreement
or any terms, policies, or practices of OnlineAnywhere.com
in operating the Service, any content available through the
OnlineAnywhere.com Service, or any change to any of the foregoing,
your sole recourse is to cancel your service. Deleting your
account from OnlineAnywhere.com's central computers or removing
the Software from your computer will not cancel billing for
your service.
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| Miscellaneous |
| 9.1. The failure of either you or OnlineAnywhere.com 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 OnlineAnywhere.com
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 forceand 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.
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