1. The CNC Service (CNC Service), as operated by Concentric Network Corporation (CNC) is a computer, interactive information, communication and transaction service allowing access to the Internet, bulletin boards, private networks and other communications outlets. The CNC Service is available to an authorized member through a personal membership account (Membership); it is accessible through a personal computer, or other access device and a communications connection (e.g. modem, telephone line).
2. CAREFULLY READ the terms of this agreement which governs your use of the CNC Service. CNC may modify this agreement at any time and in any manner. Any modification is effective immediately upon either a posting on the CNC Home Page (http://home.concentric.net/support/tos/), electronic mail, or conventional mail. If any modification to this agreement is unacceptable to you, you may immediately terminate your membership as provided in Section 18 below. Your continued use of the CNC Service
following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s).
3. CNC grants to you ("Member") a non-exclusive, non-transferable right to access, use and display the CNC Service on any machine(s) of which you are the primary user. Member may not, however, maintain access to the Service on more than one modem at any given time. CNC Service is provided on an AS IS, AS AVAILABLE basis WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY CNC, ITS EMPLOYEES, LICENSORS OF THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
4. You understand that except for information products or services clearly identified as being supplied by CNC, neither CNC, nor any of its affiliates, operates or controls any information, products or services accessible through the CNC Service in any way and that, except for such CNC identified information, services or products, all merchandise, information and services offered or made available or accessible through the Service are offered or made available or accessible by third parties who are not affiliated with CNC or its affiliates. YOU EXPRESSLY AGREE that use of the CNC Service is at your SOLE RISK and YOU AGREE that any information, service or product accessible through the Service is WITHOUT WARRANTIES OF ANY KIND BY CNC AND ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. Member may order and purchase merchandise or services from other Members and users of other communications outlets including the Internet. Member acknowledges that all transactions concerning third party (Seller) merchandise or services, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between Seller and Member. CNC makes no warranties or representations whatsoever with regard to any goods or services provided
by Seller. CNC shall not be a party to a transaction between Member and Seller, or be liable for any cost or damage arising either directly or indirectly from any action or inaction of Seller or Member.
6. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL CNC, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE CNC SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE CNC SERVICE including but not limited to reliance on any information obtained on the CNC Service; or that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to CNC's records, programs or services. YOU HEREBY ACKNOWLEDGE that this PROVISION SHALL APPLY WHETHER OR NOT CNC IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND that this PROVISION SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE CNC SERVICE.
7. Member is responsible for all charges (e.g., telephone) associated with connecting to the CNC Service through an available access number. Member is responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modem), or other access device, necessary to access the CNC Service.
8. Member certifies to CNC that he/she is not a minor. (A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision by the parent or guardian). For purposes of identification, billing and marketing, Member agrees to provide CNC with accurate, complete, and updated information required by the registration to the CNC Service (Member Registration Data), including Member's legal name, address, telephone number(s), and applicable payment data (e.g., credit card
number and expiration date). Member agrees to notify CNC within thirty (30) days of any changes in Member Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use the CNC Service.
9. Accounts/Charges/Payment.
(a) This Agreement applies to all accounts, sub-accounts, alternative account names associated with Member's principal account. Each Member is responsible for the use of his/her/its account(s) under any name on that account by any person, and for ensuring full compliance with this Agreement by all users of his/her/its account(s). A CNC Service account may not be transferred without prior written approval from CNC and is subject to any limits established by CNC.
(b) Member is responsible for maintaining the confidentiality of his/her/its passwords. Member is responsible for all activities and charges resulting from use of Member's principal account with the CNC Service. Member agrees to pay all monthly membership fees, connect time charges, surcharges, applicable taxes and other charges incurred by Member and/or his/her/its designated users. In the event of a breach of security, Member will remain liable for any unauthorized use of the CNC Service until
Member notifies CNC by calling (517) 249-6500 (customer service).
(c) Current rates for using the CNC Service may be obtained by calling (517) 249-6500 or through CNC's Home Page at "http://home.concentric.net". CNC reserves the right to increase fees, surcharges, monthly membership fees or to institute new fees at any time upon thirty (30) days prior notice. CNC may reduce these fees at any time without notice to Member. In the event that a Member's account is terminated or canceled, on-line time credited to Member's account is not convertible to cash or other form
of credit. If CNC does not receive the full amount of Member's CNC Service account balance within thirty days (30) days of the invoice date or billing date, the lesser of an additional 1.5%, or the highest percentage allowed by law, of the outstanding balance will be added to Member's bill as a late charge each month and shall be due and payable. Member shall also be liable for all attorney and collection fees arising from CNC's efforts to collect any unpaid balance of Member's account(s).
10. YOU UNDERSTAND that information available to you through the CNC Service may include MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT OR OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. CNC HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS.
11. Member recognizes that he or she is solely responsible for the content of any information Member makes available through the Service and that CNC will not monitor the Service to examine the content passing through it. Member agrees that if CNC is made aware of content that CNC deems in its sole discretion to be unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, CNC has the right, but not the obligation, to remove or deny access to such
content. Member expressly agrees that CNC shall not be liable to Member for any action CNC takes to remove or restrict access to such material, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third-party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Member recognizes that CNC's actions with
respect to all such material may include restriction, suspension or termination of Member's access privileges and/or deletion of the objectionable material.
12. Material accessible to Member through the CNC Service may be copyrighted. Except as expressly permitted by the copyright holder of the material, neither Member nor Member's designated users may reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any material which they access or receive through the Service.
13. Member expressly agrees not to use the CNC Service in a manner that is prohibited by any law or regulation or to facilitate the violation of any law or regulation. Member further agrees not to use the Service in a manner that will disrupt third parties' use or enjoyment of the CNC Service or other communications services and outlets. Member acknowledges that prohibited conduct includes, but is not limited to, use of the Service to invade the privacy of third parties, impersonation of CNC personnel, transmitting via e-mail, USENET, chat service or the Member's personal web page or site, abusive, profane, libelous, slanderous, threatening or otherwise harassing material and posting material in any USENET or newsgroup that is off-topic according to the charter or other public statement of the USENET or newsgroup. Member also agrees not to use the Service to solicit other members to patronize competing services, not to violate or tamper with the security of the CNC Service or attempt to utilize
another member's account name or persona without authorization from that member.
14. Member acknowledges that he/she/it is expressly prohibited from utilizing the CNC service, CNC's equipment or any CNC electronic mail address in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. This prohibition extends to the sending of unsolicited mass mailings from another service which in any way implicates the use of the CNC Service, CNC's equipment or any CNC electronic mail address.
A message is unsolicited if it is posted in violation of a USENET or newsgroup charter and/or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's e-mail address accessible to the public shall not constitute a
request or invitation to receive messages.
Member specifically agrees that he/she/it will not utilize the CNC Service, CNC's equipment or any CNC electronic mail address in connection with the transmission of the same or substantially similar unsolicited message to 50 or more recipients or 15 or more USENETs or newsgroups in a single day. For each day upon which this provision is violated, Member agrees to pay CNC damages to compensate for the lost goodwill such a violation causes. Member agrees to pay CNC $10 per day for an unintentional violation of this provision, but where warranted, such as in the case of an accidental transmission, CNC may waive all or part of the applicable charge. In cases of willful violations of this provision, Member agrees to pay CNC $200 per day. CNC at its sole discretion shall determine whether a violation was unintentional or willful. Payment by member under this provision shall not prevent CNC from seeking to obtain other legal remedies against member, including other damages or an injunction.
15. Member acknowledges that CNC shall not maintain more than 2 MB of electronic mail storage for member and that Member is responsible for ensuring that the level of electronic mail storage remains below this 2 MB limit. Member expressly agrees that CNC shall not be liable to Member or parties interacting with Member for any damages resulting from action CNC takes to enforce this provision.
16. Member agrees that any personal web page or site Member publishes in connection with the CNC Service is intended for personal use. While other uses (e.g. commercial) are not prohibited, they may draw sufficient third party visits ("hits") to the page or site so as to impose a burden on the Service by reducing available bandwidth. To ensure that all Members can use and enjoy the Service, Member agrees that CNC is entitled to suspend or terminate access to any Member's web page or site if CNC
determines that the page or site has, on any single day, received download traffic of fifty megabytes (50,000K) or more. Member expressly agrees that CNC shall not be liable to Member or parties interacting with Member for any damages resulting from action CNC takes to enforce this provision.
17. Member acknowledges that the CNC service is intended for periodic, active use of electronic mail, usenet newsgroups, file transfers via ftp, internet relay chat, interactive games and browsing of the world wide web. Member agrees not to use to the CNC service to operate server programs, including, but not limited to mail servers, IRC servers, ftp servers or web servers. Member further agrees not to use the CNC service on a standby or inactive basis in order to maintain a connection. Automated electronic or mechanical processes employed to maintain a constant connection such as use of an auto-dialer, persistent checking of e-mail or "pinging" the host are expressly prohibited. Member agrees that CNC may terminate member's connection following fifteen (15) minutes of inactivity as determined by CNC. CNC will allocate system resources to provide the best possible service to all members. CNC reserves the right
to limit, restrict or prioritize access to system resources, including cpu time, memory and disk space
18. Member recognizes that this Agreement continues only for so long as the parties' mutually agree to continue it. Either Member or CNC may terminate the Agreement and Member's Membership at any time for any reason or no reason. CNC may also restrict, suspend or terminate, without notice, Member's access to and use of the CNC Service upon any breach of this Agreement. In the event of any termination for breach of this Agreement, Member shall not establish a new membership with CNC for one
year from the date of termination. Member's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of CNC in operating the CNC Service, any change in the content of the CNC Service, or any change in the amount or type of fees charged in connection with the CNC Service, is to terminate Membership by delivering notice to CNC, effective the day CNC receives notification of termination or any future date specified which is acceptable to CNC. Upon termination of this Agreement, Member shall have no right (a) to obtain any credit(s) otherwise due to Member, and such credit(s) will be forfeited, (b) to access through CNC any materials stored on the Internet or (c) to access any third-party providers of services, merchandise or information on the Internet through CNC, and CNC shall have no responsibility to notify such third-party providers nor shall CNC have any responsibility for any damages that result from the lack of such notification.
19. Upon request of CNC, Member agrees to defend, indemnify and hold harmless CNC, its officers, directors, employees, agents and licensees, from any claims and expenses, including reasonable attorneys fees, arising out of or relating to Member's use of the CNC Service.
20. Interpretation and enforcement of this agreement shall be governed by the laws of the state of California (excluding its choice of law rules). Member consents to personal jurisdiction in the federal and state courts of Santa Clara County, California for any action arising out of or relating to member's use of the CNC Service. The federal and state courts of Santa Clara County, California shall have exclusive
jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees.
21. This Agreement constitutes the entire agreement between you and CNC with respect to the CNC Service and supersedes all prior agreements between you and CNC. CNC's failure to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and
the remainder of the provisions shall remain in full force and effect.
