BY CLICKING THE "ACCEPT" AND "NEXT" BUTTONS YOU ARE INDICATING YOUR ASSENT TO BE BOUND AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DECLINE" AND THE "BACK" OR "CANCEL" BUTTONS.
PURCHASE - Harbinger Corporation and its applicable affiliates and distributors ("Harbinger") hereby agrees to sell, and you ("End User") hereby agree to purchase, during the term of this Agreement, use of electronic mailbox and telecommunications services for interconnection to the Internet ("Net Access"). One (1) electronic mailbox is supplied with Net Access during the term of this Agreement. Net Access shall be provided by Harbinger to End User in consideration for the payment of applicable fees and in accordance with terms and conditions set forth in this Agreement. End User understands that Harbinger is providing Net Access to End User and other customers, and interconnection to the Internet hereunder is non-exclusive, non-transferable, and only for personal and lawful use during the term of this Agreement. In the event that the End User is a corporation or other entity, then personal use shall mean an individual use by an End User at the corporation or other entity purchasing Net Access under this Agreement.
FEES - End User shall pay Harbinger for Net Access by credit card, direct debit or other such method as the parties may agree, and End User authorizes Harbinger to automatically charge End User by such method on an on-going basis during the term of this Agreement. Billing cycles shall begin on the first day of each month and End User shall be charged in advance for monthly services fees and in arrears for additional usage fees from the preceding month. Fees for Net Access shall be charged according to Harbinger's then-current prices for such services which may be changed upon thirty (30) days written notice to End User. End User may, at its option, cancel this Agreement without penalty in the event of a pricing increase in excess of ten percent (10%) during any consecutive twelve (12) month period.
END USER REQUIREMENTS - End User shall provide and is responsible for maintaining all computer hardware, software, telecommunications equipment and service required to access points-of-presence ("POPs"). This typically includes a PC with operating system, dialer and TCP/IP protocol, terminal or browser software, modem and phone service. End User shall also provide a password for authenticating End User each time End User accesses a POP as well as a User ID and password for each electronic mailbox. End User and Harbinger shall keep such passwords confidential, but not the User ID. Unless specifically agreed to in writing by Harbinger, End User shall not have and shall not assert any claim, right, title or ownership to any User ID and/or password. End User shall be responsible for picking up messages in End User's electronic mailbox prior to any termination of this Agreement. No messages to End User's electronic mailbox shall be accepted following any termination of this Agreement.
NET ACCESS - Harbinger shall provide and is responsible for maintaining PPP dial-up access (analog dial 28.8 kilobits per second and below, and 1B ISDN) required to access POPs, whose telephone numbers and locations may be changed from time-to-time by notice to End User. Harbinger shall also provide to End User a Login ID for authenticating End User each time End User accesses a POP. Harbinger and End User shall keep such Login ID confidential. Unless specifically agreed to in writing by Harbinger, End User shall not have and shall not assert any claim, right, title or ownership to the Login ID.
Net Access may only be used for lawful purposes and lawful commercial use is both permitted and encouraged. Harbinger exercises no control whatsoever over the content of information passing to/from End User through Net Access. Providing and use of any information obtained through Net Access is at End User's own risk and Harbinger specifically declaims any warranty or responsibility for the accuracy or quality of information obtained through such use. Transmission of any materials in violation of any U.S. or state regulation is expressly prohibited, including, but not limited to, materials protected by copyright, patent, trademark or trade secret; or materials that may be deemed threatening, indecent or obscene. End User agrees to indemnify, defend and hold harmless Harbinger from any claims, costs, liabilities and attorney's fees arising from End User's use of Net Access which damages Harbinger or another party.
Any access to other networks connected to Net Access must comply with the rules appropriate for the other network. Resale of Net Access to another party is not permitted.
LIMITED WARRANTY - Harbinger warrants during the term of this Agreement that Net Access, when operated as directed, will substantially conform to material portions of Harbinger's then-current published documentation. Harbinger does not warrant, however, that your use of Net Access will be private, secure, uninterrupted or error free. If Net Access is found to be defective, Harbinger's sole responsibility under this warranty shall be, at Harbinger's sole discretion, to: (i) advise the End User how to achieve substantially the same functionality with Net Access using a procedure different from that described in the Documentation, (ii) correct Net Access or Documentation, (iii) replace Net Access, or (iv) if these remedies are impractical, terminate this Agreement and refund the unused fees paid by End User for such services. Harbinger shall use reasonable commercial efforts to carry out all of its responsibilities under this warranty within thirty (30) days of being notified by you of a potential defect.
THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY HARBINGER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, HARBINGER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND HARBINGER MAKES NO WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS WITH RESPECT TO NET ACCESS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTIES LAST, SO SOME LIMITATIONS MAY NOT APPLY TO YOU. NO HARBINGER EMPLOYEE, AFFILIATE OR BUSINESS PARTNER IS AUTHORIZED TO MAKE CHANGES OF ANY KIND TO THIS WARRANTY.
THIS WARRANTY PROVIDES YOU WITH SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY - NOTWITHSTANDING ANY PROVISION HEREOF TO THE CONTRARY, IN NO EVENT WILL HARBINGER, ITS AFFILIATES OR BUSINESS PARTNERS BE LIABLE TO YOU FOR (1) GENERAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFITS, GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF NET ACCESS, WHETHER IN AN ACTION BASED ON ANY LEGAL THEORY, CONTRACT, TORT OR OTHERWISE, EVEN IF HARBINGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HARBINGER'S TOTAL LIABILITY FOR ANY DAMAGES IN ANY ACTION HOWEVER BASED ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR NET ACCESS EXCEED THE FEE PAID TO HARBINGER BY END USER IN THE PRECEDING TWELVE (12) MONTHS UNDER THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
TERM - This Agreement shall have an initial term of one (1) year and shall renew automatically thereafter on a month-to-month basis until terminated upon thirty (30) days written notice by either party. The Agreement shall terminate at any time upon notice from Harbinger if End User fails to comply with the terms and conditions herein. End User acknowledges and agrees that termination of this Agreement for any reason during the initial term can, at Harbinger's option, result in pro rata charges according to the number of months remaining in the initial term. Termination for any reason does not alleviate End User from its obligation to pay Harbinger all sums owed through the effective date of termination.
MISCELLANEOUS - This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all such prior agreements and representations between them. No modification, addition or waiver of the terms and conditions of this Agreement shall be effective unless in writing and signed by an authorized representative of both parties. The terms and conditions of any purchase order or other ordering document issued by End User and accepted by Harbinger in connection with this Agreement, which are in addition to or inconsistent with the terms and conditions of this Agreement are made expressly conditional on End User's assent to the terms and conditions set forth in this Agreement.
Neither party shall be liable for any failure or delay in performance due to any cause beyond its reasonable control, including, but not limited to, acts of God, or strikes.
The waiver by either party of any of the rights, obligations, limitations, terms and conditions of this Agreement shall not constitute a waiver of any past, current or future obligation to comply with such provisions and no waiver shall be effective unless made in writing and approved by an authorized representative of both parties. In the event any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be reformed to extent necessary to make it enforceable, or severed, and in either event the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect. This Agreement shall be governed by the substantive, but not conflict, laws of the State of Georgia, except as governed by United States Federal Law. End User irrevocably submits to the non-exclusive jurisdiction and venue of the state and federal courts located in the State of Georgia, United States of America. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
U.S. GOVERNMENT RESTRICTED RIGHTS: The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by or for the U.S. Government is subject to restrictions set forth in DFARS 252.227-7013 (c)(1)(ii), FAR 52.227-19, and Clause 18-52.227-86(d) of NASA Supplement to the FAR, as applicable. Contractor/manufacturer is Harbinger Corporation 1055 Lenox Park Blvd., Atlanta, Georgia, USA 30319.
NOTICES - Harbinger Corporation, 1055 Lenox Park Blvd., Atlanta, Georgia, 30319-5309 USA, Attention: Net Access.
IN WITNESS WHEREOF, you have caused this Agreement to be executed by completing the electronic acceptance below and agree to the terms and conditions stated above.
