||TERMS OF SERVICE ("TOS")
Effective date 8/28/03
(revised terms are indicated by underline)
That for the considerations and covenants hereinafter specified below, the parties do for themselves, their successors, and assigns mutually agree:
All headings incorporated herein are for information purposes only and are not intended to, and will not affect any legal interpretation of the terms herein.
"Account-Password" means: A predetermined password that is assigned by ClearSail in order for the Subscriber to access ClearSail's service.
"Authorized User" means: A person who the Subscriber has authorized to use the system under the direct supervision of the Subscriber.
"ClearSail / Family.NET" ("ClearSail") are the trade-names of OnDuty Systems, LP, and shall include its members, officers, employees, agents, representatives, and assigns.
"Content" means: Information, communication, software, photos, video, graphics, music, sounds, and other materials collectively.
"Domain Name" means: A name that is assigned and licensed by Internic.net.
"E-mail Name" means: A name assigned to a Subscriber that identifies a particular Subscriber, which is non-transferable by the Subscriber.
"Filtering-Password" means: A predetermined password that is assigned by ClearSail in order for the Subscriber to temporarily bypass the filtering process of ClearSail.
"Subscriber" means: the person or entity who is bound by this Agreement and meets all qualification of the terms and conditions of this Agreement.
"TOS" means Terms of Service Agreement (this Agreement).
"User Ability" means: The Subscriber or Authorized User's ability to connect to ClearSail's service.
2. General Provisions:
(a) ClearSail provides Filtered Internet access to Subscriber's, which term includes any Authorized User, subject to the terms and conditions of this Agreement which comprises the entire agreement between ClearSail and Subscriber, superseding any prior oral or written agreements. Additionally, Subscriber acknowledges and understands that additional terms and conditions may be imposed on Subscriber in other areas of service, third-party content, or software.
(b) ClearSail may change the terms and conditions of this Agreement at any time. Such change shall take effect thirty (30) days after the notice is to be posted on the ClearSail.net webpage, and shall include the effective date. Subscriber agrees to review ClearSail's TOS periodically. In the event Subscriber does not agree with any change of TOS, Subscriber may discontinue the User Ability provided by this Agreement. Continued use of ClearSail's services beyond the effective date of any change of TOS constitutes acceptance of the all terms and conditions of the modified TOS.
3. Subscriber Obligation:
(a) Subscriber certifies that he/she is at least eighteen (18) years of age; and that all verbal or on-line registration information provided ClearSail is accurate, complete, and current.
(b) Subscriber acknowledges that: Subscriber will receive (i) an Account-Password, (ii) an account number, (iii) up to two e-mail names, and (iv) 2 megabytes disk space for a non-commercial home page. eMail names may be chosen by the Subscriber; provided, however, that the eMail name is not in use by another Subscriber, and that such name is acceptable to ClearSail.
(c) Subscriber's are authorized to access ClearSail's Internet access in an individual capacity, and may not permit another individual or entity to use the Subscriber's password for Internet access, except under the Subscriber's direct supervision.
(d) Subscriber agrees to participate in ClearSail's filtering process by notifying ClearSail of any non-filtered websites that Subscriber believes to contain inappropriate or offensive Content within three (3) business days via eMail.
4. Access Charges:
(a) Billing rates for ClearSail's Internet access, connect of accounts, web-page hosting, eMail addresses, passwords, and other charges, that are not contained in this Agreement, are detailed in the Pricing Schedule contained within this webpage.
(b) Charges for services are due in advance for the period billed. Subscriber's billed on credit cards (cards which are acceptable to ClearSail) will also be billed in advance for the period billed.
(c) Accounts that have past due balances, which are balances owing twenty (20) days or more past the due date, are subject to an interruption in service, without further notice. Additionally, past due amounts owing that are greater than thirty (30) days are subject to interest charges of 1.5% per month until paid. In the event an interruption in service has occurred, a re-connection fee of $15.00 shall apply. In the event a Subscriber issues a bad check or if a credit card is denied, the Subscriber agrees to pay ClearSail a service charge of $15.00.
5. Filtering Policy:
(a) ClearSail provides filtering of websites which ClearSail, in it's sole discretion, deems inappropriate for viewing. ClearSail, to the best of it's ability and knowledge, will search for and prevent Internet access to known websites which contain inappropriate or offensive content or photographs on: pornography, hate, illegal drugs, and other inappropriate subject matters.
(b) Subscriber acknowledges and agrees that ClearSail filtering of websites relies on four factors: (i) ClearSail's ability to locate known websites and provide ClearSail with filtering information; (ii) ClearSail's user-groups to review questionable websites and determine if a website is acceptable; (iii) Subscriber's who locate non-filtered inappropriate websites who report such websites to ClearSail; and (iv) Subscriber software (optionally purchased) that can trace visited websites where the Subscriber, or an Authorized User, has viewed.
(c) ClearSail does not represent nor warrant that all websites that contain such inappropriate or offensive Content are filtered. ClearSail is relying on the Subscriber's (collectively) to assist ClearSail in its ongoing endeavor to locate and filter known inappropriate websites; and because there may be a difference of opinion between the policies of ClearSail and any opinion of Subscriber on whether or not a website should be filtered, Subscribers' acknowledge and agree that ClearSail, at it's sole discretion, shall make the determination on filtering, and such determination shall be final.
(d) ClearSail provides filtering of eMail content which ClearSail, in it's sole discretion, filters words or word phrases that ClearSail deems inappropriate, or the sender's IP Address has been identified by ClearSail as from an entity or person that sends unsolicited eMail (spam). In this case, eMail documents are discarded. If you do not wish to have eMail filtering, please contact our office. There is no charge for this programming.
6. Internet Content & Copyright Information:
(a) Subscriber acknowledges that: ClearSail does not own the Internet; ClearSail is not a content provider (except for ClearSail's web-page), and that all Content on the Internet is supplied by others, which Content is wholly beyond the control of ClearSail; Subscriber shall use ClearSail's service at their own risk; and Subscriber is solely and entirely liable for all activities of Subscriber, including any Authorized User on the Account.
(b) Subscriber further acknowledges that: ClearSail provides access to websites that contain Content that is protected by copyrights, trademarks, and other intellectual and property rights (collectively "Rights"). Subscriber agrees to use such Content in a legal manner, and Subscriber shall use ClearSail's Internet access only to properly obtain and use Content that: (i) is not subject to any Rights, or (ii) the holder of Rights has given express authorization for distribution to the Subscriber.
(c) Subscriber acknowledges that: Content downloaded may contain viruses or other programs designed to harm, interrupt, or compromise programs or files on ClearSail's or Subscriber's computer(s). Subscriber agrees to employ current and updated virus-checking software, and to have a verified back-up of programs and files necessary to properly and accurately recover from a virus or other loss of data.
(d) Subscriber further acknowledges that: ClearSail's filtering processes may be bypassed with a Filtering-Password. Subscriber understands that once the Filtering-Password has been entered, websites that contain inappropriate or offensive Content can be accessed; and that the Subscriber or his Authorized User agree to immediately take measures to protect other persons who might view or have access to such Content. Filtering-Passwords may be obtained from ClearSail within two business days of the Subscriber's written request. An assignment or reassignment of a Password obtained after five (5) days of the initial setup of Subscriber's account will cost Subscriber an additional fee of $15.00.
7. Subscriber Conduct; Certain Acts Prohibited:
Subscriber agrees that the following acts of Subscriber or any Authorized
User are prohibited and that Subscriber shall not: post, transmit, or
promote any unlawful, harmful, threatening, abusive, harassing, defamatory,
vulgar, obscene, hateful, racially or ethnically offensive, or otherwise
objectionable Content; harass, threaten, embarrass, cause distress, unwanted
attention, or discomfort upon another Subscriber or user of the Internet;
post, transmit, promote, link, or facilitate the distribution of sexually
explicit or other Content which is deemed by ClearSail to be inappropriate
or offensive; store sexually explicit content or photographs, or illegal
or prohibited Content on ClearSail's server; disrupt the normal flow of
dialogue in a chat room or on a message board or otherwise act in a manner
that negatively affects other users of the Internet; impersonate any person
or entity, including but not limited to a ClearSail employee, a forum
leader, guide or host, or communicate under a false name or a name that
the Subscriber is not entitled or authorized to use, or impersonate a
minor; post or transmit a chain letter or pyramid scheme; post or transmit
any unsolicited advertising, promotional materials, or other forms of
solicitation to any user of the Internet, except in those areas that are
expressly designated for such a purpose; collect or harvest eMail names
of other users of the Internet without permission; "spamming"
which can be described as the use of (and/or appearing to use) the service
for sending unwanted and unsolicited electronic eMail messages; connect
or use of an IRC (chat) server on ClearSail's network; or transmit any
communication or solicitation designed or intended to obtain any password,
account, or private financial information from any user of the Internet;
access, attempt to access, or tampering with ClearSail's equipment in
any unauthorized manner; violate any law, provision, operating rule, policy,
or guideline of ClearSail, or any other interactive service; or violate
any applicable local, state, national, international, or foreign law,
or rules or regulations having the force of law.
FBI WARNING: Computer and Internet crimes are investigated by the FBI utilizing many criminal statutes under the FBI's jurisdiction. The Computer Fraud and Abuse statute was amended during the prior Congress and is a comprehensive tool to address computer crimes. Internet crimes conducted to defraud consumers are addressed within myriad statutes including Fraud by Wire, Mail Fraud, Interstate Transportation of Stolen Property, and Money Laundering to name only a few. Other computer related crimes involving Intellectual Property including Hacking, Destruction of Property, Industrial Espionage, Economic Espionage, and Copyright Infringements are also investigated. Convictions of federal computer and Internet crimes can involve fines of up to $1,000,000.00 and imprisonment of up to 20 years.
8. Subscriber Information:
(a) ClearSail, to the best of it's ability, has taken measures to prohibit unauthorized access to Subscriber account information, including Subscriber's name, address, telephone numbers, e-mail addresses, eMail messages, billing information, credit information, passwords, and credit card numbers. ClearSail will not release this information to any third-party, except at the Subscriber's direction, or as required by law, court order, subpoena, or criminal investigation by a law enforcement agency. ClearSail does not represent that its efforts cannot be defeated or circumvented.
(b) Subscriber acknowledges that information released by the Subscriber to a third-party on the Internet is beyond the control of ClearSail. Subscriber understands that disclosure of information (i.e. eMail address, telephone number, address, place of work, and other personal information) to any third-party should be done with caution. Subscriber and any Authorized User shall not at any time disclose any Account-Password or Filtering-Password to any third-party, or verbally to ClearSail, its employees, agents, representatives, or assigns.
9. Collection of Information
ClearSail's computer systems store eMail information for ten (10) days after it has been read. ClearSail does not retain information, except under special circumstances, on chat rooms, oral on-line communication, or records with whom the Subscriber communicated with in chat rooms.
10. CLEARSAIL'S LIABILITY; DISCLAIMER OF WARRANTY; AND INDEMNIFICATION:
CLEARSAIL MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION AS TO CLEARSAIL'S SERVICE, SOFTWARE, INTERNET, OR THEIR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SUBSCRIBER ACKNOWLEDGES AND AGREES: THAT CLEARSAIL DOES NOT OWN THE INTERNET, IS NOT A CONTENT PROVIDER, DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT, CONTENT, OR SERVICE OFFERED THROUGH THE INTERNET, AND SUCH CONTENT, PRODUCT, AND SERVICE IS WHOLLY BEYOND THE CONTROL OF CLEARSAIL; CLEARSAIL PROVIDES ITS SERVICE TO THE INTERNET ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR SUBSCRIBER'S PERSONAL USE. CLEARSAIL MAKES NO REPRESENTATIONS THAT INTERNET ACCESS WILL AT ALL TIMES BE AVAILABLE; THAT SUBSCRIBER ASSUMES ALL RISKS OF LOSS OR DAMAGE; THAT ANY AFFIRMATION OF FACT OR PROMISE MADE BY CLEARSAIL SHALL NOT BE DEEMED TO CREATE ANY EXPRESS OR IMPLIED WARRANTY; SUBSCRIBER IS NOT RELYING ON CLEARSAIL'S SKILL OR JUDGMENT IN SELECTING ANY PARTICULAR SERVICE SUITABLE FOR ANY PURPOSE; AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE ON THE FACE OF THIS AGREEMENT. HOWEVER, SUBSCRIBER UNDERSTANDS AND AGREES THAT IN THE EVENT CLEARSAIL SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE FROM CLEARSAIL'S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS CONTAINED WITHIN THIS AGREEMENT IN ANY RESPECT WHATSOEVER, CLEARSAIL'S LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO TEN (10%) PERCENT OF THE ANNUAL SERVICE CHARGE OR TWO HUNDRED FIFTY ($250.00) DOLLARS, WHICHEVER IS GREATER, AS LIQUIDATED DAMAGES, NOT AS A PENALTY; AND THIS REMEDY SHALL BE EXCLUSIVE, IRRESPECTIVE OF CAUSE OR ORIGIN FOR ANY DAMAGE, DIRECT OR INDIRECT TO PERSONS OR PROPERTY, FROM PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT.
IN THE EVENT ANY THIRD-PARTY TO THIS AGREEMENT MAKES ANY CLAIM OR FILES ANY ACTION AGAINST CLEARSAIL, SUBSCRIBER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS CLEARSAIL FROM ANY AND ALL SUCH CLAIMS AND ACTIONS AND SHALL PAY ALL COSTS OF SUCH CLAIM OR ACTION, INCLUDING BUT NOT LIMITED TO ALL DAMAGES, EXPENSES, COSTS, AND ATTORNEYS FEES. SUBSCRIBER ADDITIONALLY AGREES TO WAIVE RIGHT OF SUBROGATION, AND AGREES NOT TO PARTICIPATE WITH SUBSCRIBER'S INSURANCE COMPANY IN ANY ACTION AGAINST CLEARSAIL.
11. Service Termination:
(a) Either party may terminate the service under this Agreement by giving the other party thirty (30) day advance written notice by way of eMail. Subscriber understands and agrees that termination of service is Subscriber's sole remedy with respect to any service dissatisfaction with ClearSail.
(b) Notwithstanding paragraph (a) of this section, ClearSail may without liability terminate service without further notice in the event Subscriber violates any of the terms or conditions contained herein, and ClearSail shall not be obligated to refund to Subscriber any unearned portion of prepaid fees.
12. Determination, Venue, and Non-Waiver:
Any judicial or other determination nullifying or declaring unenforceable any clause or condition herein shall not affect the remainder of this Agreement, which shall remain in full force and effect. This Agreement is performable in Houston, Harris County, Texas, and venue involving any action in this Agreement shall be performed in Harris County, Texas. In the event ClearSail fails to enforce any breach of agreement, policy, or rule, it shall not be deemed to create a waiver of such enforcement in the future.
13. Homepage and Webpage Hosting:
(a) Homepage hosting with up to 5 megabytes of disk space is included for non-commercial, not-for-profit use.
(b) Webpage hosting with up to 25 megabytes of disk space (or more if purchased) is for commercial use.
14. Service Connections:
(a) Subscriber is required to have local telephone service through the carrier of their choice. Local (non-toll) calling is necessary for Subscriber to avoid long distance telephone charges. However, if Subscriber is out of ClearSail's local telephone service area, Subscriber may dial ClearSail's access number with the understanding that Subscriber is responsible for all long distance telephone charges.
(b) Subscriber acknowledges that telephone connection quality varies between areas of town and individual connections. Modem speeds are reduced when the modem senses a low-quality connection. Modem speeds of 56Kb are not obtainable with current service available from Regional Bell Operating Companies utilizing a POTS (plain old telephone service) line. More sophisticated lines are sometimes available from your local telephone carrier at an additional cost. Subscriber assumes all responsibility and all liability in connection with subscriber's telephone service.
(c) Subscriber acknowledges that Internet connections will drop requiring a re-dial into the system if the telephone service looses quality, or for other reasons, such as an interruption by call-waiting beep, person picking-up an extension line, and other factors, all of which are beyond the control of ClearSail.
(d) Subscriber acknowledges that non-dedicated Internet connections with ClearSail will automatically terminate if Subscriber has not made a request within fifteen (15) minutes; or if the Subscriber has been connected for more than four (4) hours. Subscriber shall not devise any method of automatically requesting information for the purpose of maintaining a connection; all requests for websites shall be legitimately made.
(e) Subscriber acknowledges that while ClearSail's service has unlimited dial-ups, if Subscriber should use ClearSail's service beyond the average customers usage (150 hours per month), ClearSail has the right to council with the Subscriber on their use, charge for additional hours, or terminate Subscriber's service.
(f) Subscriber acknowledges that a single Subscriber account entitles Subscriber to one (1) simultaneous Internet connection, unless otherwise agreed in writing by ClearSail. Violations may, at ClearSail's option, result in termination of the account.
15. Privacy / Security:
ClearSail reserves the right to correct system errors using means, including but not limited, to examining logs and other records, accessing an account mailbox, or other various means necessary to ensure proper functioning of systems. ClearSail does not guarantee the security of any eMail or other data on the system including that transmitted using secure servers. ClearSail assumes no liability for the loss of private or confidential information or material. Subscriber's should be aware that no computer system/network is safe from system failures or intrusions by unauthorized parties, and therefore no sensitive material should be passed through or stored in the network. ClearSail will endeavor to provide the latest security measures.
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