THESE TERMS AND
CONDITIONS STATE IMPORTANT REQUIREMENTS REGARDING YOUR USE OF SYMPEL'S INTERNET
ACCESS SERVICE AND YOUR RELATIONSHIP WITH SYMPEL. YOU SHOULD READ THEM
CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND
OURS.
ANY USE OF OUR SERVICE IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE
FOLLOWING TERMS AND CONDITIONS.IF YOU
DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE AND YOU
MUST TERMINATE YOUR SERVICE IMMEDIATELY.USE OF OUR SERVICE CONSTITUTES AN EXPRESS ACCEPTANCE OF THESE TERMS AND
THEIR CONDITIONS.
1.SERVICES, USES and FEATURES
1.1 These Terms of Service (the "Agreement") are entered into by
and between the subscriber ("you", "your" or
"Subscriber") and SYMPEL, Inc. ("SYMPEL", “SYMPEL
COMMUNICATIONS”,"us" or
"we"). You are deemed to have accepted this Agreement upon the
earlier of: (a) your submission of an online order; (b) your use of the Service
(see Paragraph 2); or (c) your retention of the Software or Equipment we
provide beyond 30 days following delivery. This Agreement is made up of the
terms below, plus the Acceptable Use Policy, Privacy Policy, and the other
policies and materials specifically referred to in these Terms of Service, all
of which are incorporated herein by reference. The Agreement and related
policies are also set forth on the SYMPEL website (http://www.sympel.com)
("Website") and can be found under the Terms of Service Section from
the home page. The Agreement sets forth the terms and conditions under which
you agree to use the Service, and under which SYMPEL agrees to provide the
Service to you. You may also receive additional copies of this Agreement either
by telephoning SYMPEL at (415) 243-8870 or by writing to us at SYMPEL,
Inc.,300 Brannan, Attention: Mr.
Wan.
1.2. DEFINITION OF SERVICE. For purposes of this Agreement, the term
"Service" shall mean the SYMPEL Internet access service, including
all Software, if applicable (as defined in Paragraph 9 below), Equipment,
technical support, email and other features, products and services provided by
SYMPEL under the pricing plan that you have selected. For purposes of this
Agreement, "Equipment" shall mean the antenna, radio, Ethernet
connection, modem, router and/or other equipment provided by SYMPEL for use
with your Service.”
1.3. AUTHORIZED USE AND RESPONSIBILITIES OF USERS.
1.3.1 You acknowledge that you are 18 years of age or older,
and you agree that you have the legal authority to enter into this Agreement
and affirm that the information you supply to us is correct and complete. You
understand that SYMPEL relies on the information you supply and that providing
false or incorrect information may result in Service provisioning or delivery
delays or the suspension or termination of your Service. You agree to promptly
notify SYMPEL whenever your personal or billing information changes (including
for example, your name, address, telephone number, and credit card number and
expiration date).
1.3.2 We will provide you with or, if available in your area for your chosen
Service, an IP address or User ID and if applicable, a SYMPEL User Name
(hereafter collectively, "User ID") for each account purchased to
enable you to access the Service. You agree to protect your User ID and to pay
for all activity associated with it.
1.3.3 You agree that you are responsible for all use on your account, including
any secondary accounts or sub-accounts registered to your primary account. You
understand this means that you accept full liability and responsibility for the
actions of anyone who uses the Service via your account, or any secondary
accounts, with or without your permission. You also agree to use the Service
only within the United States..
1.3.4 If you subscribe toService:
You may not resell theService, use it for high volume purposes, or engage in similar
activities that constitute resale (commercial or non-commercial), as
determined solely by SYMPEL.
You may connect multiple computers/devices within a
single home or office location to yourmodem and/or router to access the Service, but only through a
singleaccount and a single IP
address obtained from SYMPEL.You
expressly agree and understand that in the event additional
computers/devices are used through a single account, the connection speed
may be adversely impacted.
You may not use theService to host any type of server personal or commercial in
nature.
1.3.5
SYMPEL reserves the right to audit connections electronically to enforce these
or any other provisions of the Agreement.
1.4. PRIVACY SYMPEL will treat your personal information in accordance
with its current Privacy Policy, subject to change from time to time, which is
posted on the Website under the Terms of Service Section. You agree to the
terms of the Privacy Policy, which describes SYMPEL's use and disclosure of
information about your account and your use of the Service.
1.5. ACCEPTABLE USE. You agree to comply with the terms of the
Acceptable Use Policy, which is attached hereto as Attachment 1 and which also
may be found posted on the Website under the Terms of Service Section of the
home page..
1.6. REVISIONS. We may revise the terms and conditions of this Agreement
from time to time (including any of the policies which may be applicable to
usage of the Service) by posting such revisions to the Website at the home page
under News. You agree to visit these pages periodically to be aware of and
review any such revisions. Increases to pricing shall be effective thirty (30) days
after posting; revisions to any other terms and conditions shall be effective
upon posting. By continuing to use the Service after revisions are in effect,
you accept and agree to the revisions and to abide by them. If you do not agree
to the revision(s), you must immediately terminate your Service..
1.7. ALIASES. SYMPEL may issue email aliases (alternate email addresses)
based upon availability of the alias selected, and the service used. If you
surrender your alias by changing it, or if your account is terminated for any
reason, SYMPEL will not reserve that alias for you or receive or forward emails
addressed to that alias.
1.8. AVAILABILITY OF SERVICE.
1.8.1 Availability, rate, speed and bandwidth of the Service
you select may vary from that as generally marketed. The Service is provided on
an AS IS basis and throughput speeds, and availability of your Service are
subject to the terms of Paragraph 6..
1.8.2 SYMPEL or its suppliers may, at any time, without notice or liability,
restrict the use of the Service or limit its time of availability in order to
perform maintenance activities and to maintain session control..
1.9. THIRD PARTY SERVICES.
If you
subscribe to or otherwise use any third party services offered by or through
SYMPEL, your use of any such services is subject to the terms of services of
such third party service provider. You agree to comply with such provider's
terms of service and that the third party provider is solely responsible for
delivery of its service(s) to you and your use of them. Third party services
include, but are not limited to, portal, music, gaming, storage and photography
services that SYMPEL may elect to make available from time to time. Violation
of such third party provider's terms of service may, in SYMPEL's sole
discretion, result in the termination of your Service.
1.10. PERSONAL WEB SPACE AND STORAGE.
Personal Web Space ("PWS") may be made available to you as an
optional feature of the Service. Additional terms and conditions applicable to
PWS, including pricing if applicable, are posted on the Website at “Services”.
In the event of a breach by you of this Agreement or the terms and conditions
applicable to PWS, SYMPEL reserves the right immediately to terminate your PWS
without notice. SYMPEL reserves the right to delete all data, files, and other
information stored on or for your PWS upon termination of your Service for any
reason. You understand that we do not provide telephone technical support for
PWS.
1.11. EMAIL
Use of
SYMPEL email service is subject to SYMPEL's email and anti-spam policies,
including limitations on the number and/or size of email messages that may be
sent during a given time period, or the number of recipients of a particular
email.
TERMINATION & PAYMENT
2. TERM AND TERMINATION.
2.1 Effective Date and Term. This Agreement goes into
effect upon your acceptance of this Agreement as set forth in Paragraph 1 and
shall continue, subject to the terms of this Paragraph 2, until terminated by
either party as permitted by this Agreement. Billing for your Service will
automatically begin upon registration of your account.Billing for yourService will automatically begin on the date provisioning of
yourService is complete and ready for
use ("Service Date”)..
2.2 Money Back Guarantee. SYMPEL provides a thirty (30) day money back
guarantee as follows:
ForService
Subscribers, your thirty (30) day money-back guarantee begins upon your
Service Date. During this thirty (30) day period you may cancel theService and receive a full refund of
all monthly charges paid except installation charges.
If you cancel yourService prior to your Service Ready Date or within the
thirty (30) day money-back guarantee period, you will be required to
return to SYMPEL any Equipment provided to you by SYMPEL; SYMPEL will
provide you with a pre-paid mailing label and instructions for the return
of your Equipment. In the event you fail to return the Equipment, an
additional charge for the unreturned Equipment will apply.
2.3 Termination of Service.
2.3.1 Month-to-Month Accounts. If you are a month-to-monthService customer, either you or SYMPEL may
terminate this Agreement without cause by giving notice to the other in
accordance with the notice provision set forth at Paragraph 19 below.
Termination by you will be effective upon your notice to SYMPEL. Activation or
installation fees paid at the initiation of yourService, if any, are not refundable, except during the thirty
(30) day money-back guarantee period. Additionally, if you terminate this
Agreement prior to the end of the first year of service and you received
Equipment at no charge from SYMPEL, you will be required to return the
Equipment to SYMPEL; failure to do so will result in an additional charge. We
will provide you with a pre-paid mailing label and instructions for the return
of your Equipment. Termination by SYMPEL shall be effective thirty (30) days
after the date of notice to you, except as otherwise provided in this
Agreement. In the event of termination by SYMPEL, for any reason, you will be
required to pay the remaining balance of the charges applicable to your Service
through the effective date of termination.
2.3.2 Subscribers with Annualor Semi-Annual Service Contracts-Termination
Fee. The term forService customers
with an annual service commitment is for six (6) or twelve (12) consecutive
months beginning with the Service Date (the "Initial Term"), and
continuing thereafter on a month-to-month basis until terminated by either
party as permitted by this Agreement. IN THE EVENT THAT YOU TERMINATE YOURSERVICE AFTER THE FIRST THIRTY (30) DAYS OF
SERVICE BUT BEFORE COMPLETING THE FIRST THREE (3) MONTHS OF THE INITIAL TERM,
THEN YOU AGREE TO PAY SYMPEL UPON DISCONTINUANCE OF THE SERVICE A TERMINATION
FEE UP TO THREE MONTH'S SERVICE CHARGES OR REMAINDER OF THE CONTRACT (THE "TERMINATION
FEE"). In the event you terminate yourService after the first (30) days of Service but before completing the
first three (3) months of the Initial Term because of a service-related problem
that SYMPEL has not cured or because you have moved to a new address at which
SYMPEL'sService is not available, you
are not subject to a termination fee ("termination fee waiver"). For
the foregoing termination fee waiver to apply, at least one of the reasons for
the waiver stated above must have occurred before termination and you must
report that reason for termination to SYMPEL at the time of termination. If you
terminate your Service after the ninth month and before the end of the Initial
Term, or after the Initial Term has expired, you will be responsible for the
balance of charges for the month in which your termination is effective.
Additionally, if you terminate this Agreement prior to the end of the first
year of Service and you received Equipment at no charge from SYMPEL, you will
be required to return the Equipment to SYMPEL; failure to do so will result in
an additional equipment charge. We will provide you with a pre-paid mailing label
and instructions for the return of your Equipment.Customers with a twelve (12) month service commitment who change
the location at which theirService is
provided and elect an annual commitment at the new location will be subject to
a new twelve (12) month service commitment from the Service Date at the new
location..
2.3.3 Termination and/or Suspension by SYMPEL. If, in the sole discretion
of SYMPEL: (a) you are in breach of any of the terms of this Agreement
(including but not limited to) all policies regarding abuse and acceptable use
of the Service); (b) your use of the Service is prohibited by law or is
disruptive to, adversely impacts or causes a malfunction to the Service,
SYMPEL's network, or the use and enjoyment of other users; or (c) SYMPEL
receives an order from a court to terminate your Service; (d) if SYMPEL for any
reason ceases to offer the Service; then SYMPEL at its sole election may
terminate or suspend your Service immediately without notice. For termination
in accordance with this Paragraph 2.3.3, you shall be liable for the applicable
fees and/or Equipment charges set forth in Paragraphs 2.2, 2.3.1, or 2.3.2,
(depending on which fees or charges are applicable).
2.4 Terminated Account. SYMPEL, in its sole
discretion, may refuse to accept your application for renewal or
re-subscription following a termination or suspension of your use of the
Service. If your Service is terminated for any reason, you agree to pay a
reconnection fee if the Service is reactivated.
2.5 Regulatory Compliance. In the event there is a ruling, regulation,
or order issued by a judicial, legislative or regulatory body that causes
SYMPEL to believe that this Agreement may be in conflict with such rules,
regulations, and orders, SYMPEL may terminate or modify your Service and/or
this Agreement immediately without notice.
2.6 Deletion of Data upon Termination. You agree that if your Service is
terminated for any reason, SYMPEL has the right to immediately delete all data,
files, and other information stored in or for your account without further
notice to you.
3. PRICING AND PAYMENT.
3.1 Prices
and Fees. SYMPEL fees and charges for the Service(s) you select are
supplied to you during the ordering process unless otherwise provided for in
this Agreement. You agree to pay the charges applicable to your selected
Service plan, as well as any, applicable taxes and other charges including but
not limited to activation fees, installation fees, termination fees, equipment
charges, other nonrecurring charges, and set-up fees. You also agree to pay any
additional charges or fees applied to your billing account for any reason,
including but not limited to, interest, and charges due to insufficient credit
or insufficient funds. Set up fees, activation fees, installation fees, other
non-recurring fees, and equipment charges, if applicable, will be included in
your first month's bill. Monthly recurring charges will be billed one month in
advance; usage charges will be billed in arrears, if applicable. SYMPEL will
bill your credit card as you request and as approved by SYMPEL.
3.2 Discontinuation of Service for Nonpayment. Service to you may be
denied or discontinued without notice at any time in the event your credit card
provider denies or discontinues providing credit to you for any reason, or you
fail to provide us with a new credit card expiration date before the existing
one expires.
3.3 Late Fees. If any portion of your bill is not paid by the due date,
SYMPEL may charge you a late fee on unpaid balances and may also terminate or
suspend your Service without notice. The late fee will be 10% per month,
, or the highest rate permitted by law. In the event SYMPEL utilizes a
collection agency or resorts to legal action to recover monies due, you
agree to reimburse us for all expenses incurred to recover such monies,
including attorneys' fees. Sympel has the right to turn off service if payment is more than one month late.
3.4 You are limited to taking advantage of no more than one special pricing
promotion during any twelve-month period.
3.5 You have the option to change your Service(s) at any time by notifying us,
provided that you qualify for and comply with any requirements of that Service.
3.6 The waiver of any fees or charges lies solely in the discretion of SYMPEL.
4. MANAGEMENT OF YOUR DATA AND COMPUTER.
4.1 System
Management and Service Performance. You are solely responsible for
obtaining, installing, configuring, and maintaining suitable equipment and
software, including any necessary system or software upgrades, patches or other
fixes, which are or may become necessary to access the Service and to operate
your computer. You understand thatbandwidth is provided on a per-antenna basis, and that the speed and
bandwidth available to each computer or device connected to the network will
vary depending upon the number, types and configuration of computers or devices
using the Service and the type of use (e.g., streaming media or downloading
larger files, etc.), network or Internet congestion, and/or the condition of
your antenna/radio and the wiring inside your location, among other factors.
4.2 Data Management and Responsibility. You are responsible for management
of your information, including but not limited to back-up and restoration of
data (for example, address book and calendaring information), erasing data from
disk space you control and changing data on or settings for your modem and/or
router. SYMPEL is not responsible for the loss of your data or for the back-up
or restoration of your data regardless of whether this data is maintained on
our servers or your computer or server.
4.3 Your Security. You are responsible for development and maintenance
of any security procedures you deem appropriate, such as logon security and
encryption of data, User ID, alias, and password on your modem and/or router
and firewalls, to protect your information. We are not responsible in the event
that any party changes the information on your account, including without
limitation, your alias, User ID, password, or security information. We are not
responsible for backup and restoration of your information. WE STRONGLY
RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS AND
FIREWALL SOFTWARE..
4.4 SYMPEL Network. For the purposes of backup and maintenance, we may
use, copy, display, store, transmit, translate, rearrange, reformat, view and
distribute your information to multiple SYMPEL servers. We do not guarantee
that these procedures will prevent the loss of, alteration of, or the improper
access to, your information..
4.5 Monitor of Network Performance. SYMPEL automatically measures and
monitors network performance and the performance of your Internet connection
and our network as part of this process. We also will access and record
information about your computer's profile and settings and the installation of
software we provide in order to provide customized technical support. No
adjustments to your computer settings will be made without your permission. We
do not share information collected for the purpose of network or computer
performance monitoring or for providing customized technical support outside of
SYMPEL or its authorized vendors, contractors and agents. You hereby consent to
SYMPEL's monitoring of your Internet connection and network performance, and
the access to and adjustment of your computer settings, as set forth above, as
they relate to the Service or other services which we may offer from time to
time.
LIMITATIONS AND WARRANTY
5.LIMITATIONS
5.1 You agree that your use of the Service and the Internet,
without limitation, is your sole responsibility, is solely at your own risk,
and is subject to all applicable local, state, national and international laws
and regulations.
5.2 You
agree that the Internet is not owned, operated or managed by, or in any way
affiliated with SYMPEL and SYMPEL is not responsible and has no control over
the information or materials accessible via the Internet through use of the
Service. You further agree that SYMPEL does not own or control all of the
various facilities and communications lines through which access may be
provided, nor does SYMPEL guarantee access to or through websites, servers or
other facilities on the Internet, whether or not such facilities are owned or
controlled by SYMPEL. SYMPEL cannot and does not guarantee that the Service will
provide Internet access that meets your needs.
5.3 You agree and acknowledge that through your use of the Service, you may
have access to information, which may be sexually explicit, obscene or
offensive, or otherwise unsuitable or objectionable, especially for children
under the age of eighteen (18) years old. You agree to supervise usage of the
Service by any minors who use your account to access the Service. SYMPEL is not
responsible for access by any users, you, or minors, to objectionable or offensive
information or data. SYMPEL STRONGLY RECOMMENDS THE USE OF COMMERCIALLY
AVAILABLE CONTENT-FILTERING SOFTWARE.
5.4 You agree that SYMPEL cannot and does not guarantee or warrant that data
available for downloading through the Service will be free of defects,
infection or viruses, worms, Trojan horses or other code that manifest
contaminating, malicious or destructive properties. You are responsible for
implementing adequate procedures to satisfy your particular requirements for
accuracy of data input and output and for maintaining a means external to the
Service for the reconstruction of any lost data.
5.5 You agree that the Internet is not a secure network and that third parties
may be able to intercept, access, use, or corrupt the information you transmit
or receive over the Internet. SYMPEL is not responsible for invalid
destinations, transmission errors, or corruption or security of your data.
5.6 You are not authorized to use any SYMPEL name or mark as a hypertext link
to any SYMPEL Web site or in any advertising, publicity or in any other
commercial manner without the prior written consent of SYMPEL Licensing
Company. You understand that your ability to link to a Web site through the
Service does not, in any way, represent or imply SYMPEL's approval of, or its
determination of the quality of that product or service, and that links are
provided for your convenience only. The links provided through the Service are
maintained by their respective organizations, which are solely responsible for
their content.
6. WARRANTIES AND LIMITATION OF LIABILITY.
6.1 YOU
ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN
"AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS
OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE
SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED
BY SYMPEL (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT), SYMPEL
(AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD
PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPs, DISCLAIM ANY AND ALL
WARRANTIES FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE,
COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE
OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION
GIVEN BY SYMPEL OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF SYMPEL
TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED..
6.2 SYMPEL DOES NOT WARRANT OR GUARANTEE THATSERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL
OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF SYMPEL HAS ACCEPTED YOUR ORDER
FORSERVICE. THE PROVISIONING OFSERVICE IS SUBJECT TO CIRCUIT AVAILABILITY
AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF
YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG
OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON,
NEITHER YOU NOR SYMPEL SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS
AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY SYMPEL-PROVIDED EQUIPMENT,
PURSUANT TO PARAGRAPH 12 ABOVE)..
6.3 SYMPEL DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT PROVIDED BY SYMPEL
WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL
BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE.
SYMPEL SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION,
PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT,
RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. SYMPEL MAKES NO
WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE OR THE INTERNET.
SYMPEL MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY
USING THE SERVICE OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND
RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET GENERALLY. DO NOT USE
THE SERVICE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON,
PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
6.4 IN NO EVENT SHALL SYMPEL (OR ITS OFFICERS, EMPLOYEES, SUBSIDIARIES, OR
AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, INCLUDING GSPs,
BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR
DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE
SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION,
INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR
STRICT LIABILITY, EVEN IF SYMPEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
6.5 ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS PARAGRAPH 16 ALSO APPLY TO
SYMPEL'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPS, AS
THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
6.6 ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH SYMPEL (AND
ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), SYMPEL'S THIRD
PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPS, ARE COLLECTIVELY
RESPONSIBLE.
6.7 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND
EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS
CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE
EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS
OR LIMITATIONS MAY NOT APPLY TO YOU.
6.8 SYMPEL RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS
AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE OR FOR YOUR BREACH
OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
7. INDEMNIFICATION. You agree to defend, indemnify and hold harmless SYMPEL
from and against all liabilities, costs and expenses, including reasonable
attorney's fees, related to or arising from: (a) any violation of applicable
laws, regulations or this Agreement by you (or any parties who use your
account, with or without your permission, to access the Service); (b) the use
of the Service or the Internet or the placement or transmission of any message,
information, software or other materials on the Internet by you (or any parties
who use your account, with or without your permission, to access the Service);
(c) negligent acts, errors, or omissions by you (or any parties who use your
account, with or without your permission, to access the Service); (d) injuries
to or death of any person and for damages to or loss of any property, which may
in any way arise out of or result from or in connection with this Agreement,
except to the extent that such liabilities arise from the active negligence or
willful misconduct of the other party; or (e) claims for infringement of any
intellectual property rights arising from the use of the Service, Software, or
the Internet.
8. GLOBAL SERVICE PROVIDER. The interLATA portion of the Service and
your connection with the Internet will be provided by a Global Service Provider
("GSP"), where such services are required under applicable law. The
GSP is a separate network provider and independently establishes the charges
and the terms and conditions of the service it provides to you. SYMPEL will
include the GSP charges in your bill for Service, where required. SYMPEL will
facilitate the registering of your account with your chosen GSP. Any questions
regarding GSP services may be directed to your GSP or to SYMPEL customer care,
who in turn will assist you in obtaining resolution of your issue with the GSP.
9. NOTICES.
9.1 Notices
required under this Agreement by you shall be provided to the Customer Service
Department in accordance with the methods set forth under the Resource Center
on the Website in the Contact Us Section. Notices by SYMPEL to you shall be
deemed given: (a) when sent to your SYMPEL email address, or (b) when deposited
in the United States mail addressed to you at last-known address or (c) when
hand delivered to your home, as applicable. Notice of changes to this Agreement
and these Terms of Service will be deemed given upon posting to the pages on
the Website as set forth in Paragraph 6, Revisions, above.
9.2 With regard to electronic communications, you and SYMPEL further agree
that: (a) the User ID and/or alias of a sender, contained in an electronic
communication ("email'), is legally sufficient to verify the sender's
identity and the authenticity of the communication; (b) an email sent
containing your User ID and/or alias establishes you as its originator and has
the same effect as a document with your written signature on it; and (c) an
email or any computer printout of it, is a valid proof of the validity of the
original content of the electronic communication.
10. GENERAL PROVISIONS
10.1 All
obligations of the parties under this Agreement, which, by their nature, would
continue beyond the termination, cancellation or expiration of this Agreement,
including by way of illustration and not limitation, those clauses relating to
Software Licenses, Warranties and Limitation of Liability, and Indemnification,
shall survive such termination, cancellation or expiration.
10.2 SYMPEL will not be liable for delays, damages or failures in performance
due to causes beyond its reasonable control, including, but not limited to,
acts of a governmental body, acts of God, acts of third parties, fires, floods,
strikes or other labor-related disputes, of other things we do not control, or
an inability to obtain necessary equipment or services.
10.3 You agree not to assign or otherwise transfer, this Agreement in whole or
in part, including the Software or your rights or obligations under it. Any
attempt to do so shall be void. We may assign all or any part of this Agreement
without notice and you agree to make all subsequent payments as directed.
10.4 You and SYMPEL agree that the substantive laws of the State of
California, without reference to its principles of conflicts of laws, will be
applied to govern, construe and enforce all of the rights and duties of the
parties arising from or relating in any way to the subject matter of this
Agreement. YOU AND SYMPEL CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND
VENUE IN A COURT LOCATED IN SAN FRANCISCO, CALIFORNIA, FOR ANY SUITS OR CAUSES
OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER
OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law,
including Virginia laws relating to consumer transactions, any cause of action
or claim you 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.
10.5 Use, duplication or disclosure by any Government entity is subject to
restrictions set forth, as applicable, in subparagraphs (a) through (d) of the
Commercial Computer-Restricted Rights clause at FAR 52.227-19, FAR 12.212,
DFARS 227.7202, or in subparagraph (c)(1)(ii) of the Rights in Technical Data
and Computer Software clause of DFARS 252.227-7013, and in similar clauses in
the NASA FAR Supplement. Contractor/manufacturer is SYMPEL or its licensors and
suppliers. The use of Software and documentation is further restricted in
accordance with the terms of this Agreement.
10.6 In the event of a conflict between this Agreement and any applicable
tariff, the tariff shall prevail. We reserve the right to modify the Service to
reflect any change in any applicable tariff or underlying network service or
component affecting the Service.
10.7 SYMPEL's failure at any time to insist upon strict compliance with any of
the provisions of this Agreement in any instance shall not be construed to be a
waiver of such terms in the future. If any provision of this Agreement is
determined to be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the unenforceable portion shall be construed as nearly as
possible to reflect the original intentions of the parties.
10.8 This Agreement, including all Attachments and all other policies posted on
the Website, which are fully incorporated into this Agreement either by
attachment or by reference, constitutes the entire agreement between you and
SYMPEL with respect to the subject matter hereto and supersedes any and all
prior or contemporaneous agreements whether written or oral. Any changes by you
to this Agreement, or any additional or different terms in your purchase
orders, acknowledgements or other documents, written or electronic, are void.
ATTACHMENT1
ACCEPTABLE USE POLICY
1. This is SYMPEL's policy on the acceptable use of the Service. It is designed
to help protect the Service, SYMPEL's customers and the Internet community,
from irresponsible or illegal activities.
2. SYMPEL reserves the right to deny Service to you, or immediately to
terminate your Service for material breach, if your use of the Service or your
use of an alias or the aliases of additional users on your account, whether
explicitly or implicitly, and in the sole discretion of SYMPEL: (a) is obscene,
indecent, pornographic, sadistic, cruel or racist in nature, or of a sexually
explicit or graphic nature; (b) espouses, promotes or incites bigotry, hatred
or racism; (c) might be legally actionable for any reason, (d) is objectionable
for any reason, or (e) in any manner violates the terms of this Acceptable Use
Policy.
3. You may NOT use the Service as follows:
(a)for
any unlawful, improper or illegal 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
access or attempt to access the accounts of others, to spoof or attempt to
spoof the URL or DNS or IP addresses of SYMPEL or any other entity, or to
attempt to penetrate or penetrate security measures of SYMPEL 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 or charter (e.g.
off-topic posting) 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 SYMPEL, its parent, affiliates and subsidiaries,
or any third parties;
(k)to
transmit confidential or proprietary information, except solely at your own
risk;
(l)to
violate SYMPEL's or any third party's copyright, trademark, proprietary or
other intellectual property rights, including trade secret rights;
(m)to use more than one IP address
obtained from SYMPEL;
(n)to
generate excessive amounts (as determined by SYMPEL in its sole discretion) of
Internet traffic, or to disrupt email use by others;
(o)to
engage in activities designed to or having the effect of degrading or denying
Service to SYMPEL users or others (including activities that compromise a
server, router, circuit, software or other Internet component;
(p)to use
any name or mark of SYMPEL, its affiliates or subsidiaries, as a hypertext link
to any Web site or in any advertising publicity or other commercial manner;
(q)to use
the Service to operate a commercial server or to operate a non-commercial
server in a manner that interferes with the network or other users' use of the
Service;
(r)to use
the Service or the Internet in a manner intended to threaten, harass,
intimidate;
(s)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;
(t)to use
the Service to disrupt the normal flow of online dialogue;
(u)to use
the Service to violate any operating rule, policy or guideline of any other
online services provider or interactive service;
(v)to
attempt to subvert or to aid third parties to subvert, the security of any
computer facility or system connected to the Internet;
(w)to
impersonate any SYMPEL employee or official or other person or use a false name
while using the Service or implying an association with SYMPEL;
(x)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;
(y)to
make false or unverified complaints against any SYMPEL subscriber, or otherwise
abusing any of SYMPEL's complaint response procedures;
(z)to use
software or any other device that would allow your account to stay logged on
while you are not actively using the Service, unless you are acustomer;
(aa)to export software or any information in violation of US export
laws;
(bb)to use the Service in contravention of the limitations of the
pricing plan you havechosen;
(cc)forcustomers who use
static or other types of IP addresses, to use an IP address other than the one
assigned by SYMPEL;
(dd)for customer who have been assigned a dynamic IP address to use
such IP address to circumvent the changing of IP addresses assigned by the
Service; or
(ee)to open connections to more than one SYMPEL Usenet news service at
a time.
4.
Copyright Infringement/Repeat Infringer Policy. SYMPEL respects the intellectual
property rights of third parties, including those granted under the US
copyright laws, and the interests of its subscribers and content providers on
the Internet. You may not store material of any type or in any format on, or
disseminate such material over, SYMPEL's systems or servers in any manner that
constitutes an infringement of third party intellectual property rights,
including rights granted under the US copyright laws. In accordance with the
Digital Millennium Copyright Act (DMCA) and other applicable law, it is the
policy of SYMPEL to terminate, in appropriate circumstances, the Service
provided to any subscriber or account holder who is deemed to infringe third
party intellectual property rights, including repeat infringers. Appropriate circumstances
may exist where (i) a Subscriber or account holder has been found by a court of
competent jurisdiction to have infringed the copyrights of a third party on two
or more occasions, i.e., a repeat infringer, (ii) where a valid, effective and
uncontested notice has been provided to SYMPEL alleging facts which are a
violation by the Subscriber or account holder of SYMPEL's Copyright Policy
prohibiting infringing activity involving SYMPEL systems or servers, or (iii)
in other cases of repeated flagrant abuse of access to the Internet (e.g.,
willful commercial piracy or malicious attempts to destroy the value of
copyrighted works). In addition, SYMPEL expressly reserves the right to
terminate or suspend the Service of any Subscriber or account holder if SYMPEL,
in its sole judgment, believes that circumstances relating to the infringement
of third party intellectual property rights warrant such action. These policies
are in addition to and do not affect or modify any other rights SYMPEL may have
under law or contract. If you believe that copyrighted material has been used
in violation of this policy or otherwise been made available on the Service in
a manner that is not authorized by the copyright owner, its agent or the law,
please follow the instructions for contacting SYMPEL's designated Copyright
Agent as set forth in SYMPEL's Copyright Policy located at http://www.SYMPEL.com/copy.html.
5. You shall comply with all applicable local, state, national and
international laws and regulations, including those related to data privacy,
international communications, and exportation or technical or personal data.
You represent that you are not a specifically designated individual or entity
under any US embargo or otherwise the subject, either directly or indirectly
(by affiliation, or any other connection with another party) to any order
issued by any agency of the US Government limiting, barring, revoking or
denying, in whole or in part your US export privileges. You agree to notify
SYMPEL if you become subject to any such order.
6. You shall not delete any proprietary designations, legal notices or other
identifiers belonging to third parties from any information obtained or sent
using the Service and shall not impersonate any person or use a false name
while using the Service. You agree to obtain all required permissions if you
use the Service to receive, upload, download, display, distribute, or execute
Software or perform other works protected by intellectual property laws
including copyright, trademark, trade secret and patent laws. You agree to
cooperate with SYMPEL and provide requested information in connection with all
security and use matters. You agree to notify SYMPEL promptly if you suspect unauthorized
use of the Service or of your UserID. You remain liable for unauthorized use
until your notification to SYMPEL at security@SYMPEL.com. You agree that your
name, UserID, and other identifying information may be placed in our user
directory.
7. SYMPEL reserves the right to cooperate with legal authorities and/or injured
third parties in the investigation of any suspected crime or civil wrong. Such
cooperation may include, but not be limited to, provision of account or user
information or email as well as monitoring of the SYMPEL network.
8. SYMPEL may, but is not required to, monitor your compliance, or the
compliance of other subscribers, with the terms, conditions or policies of this
Agreement.
Please fill out the following
information. A customer service representative will
contact you as soon as possible. Thank you.
