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Subscriber Acceptable Use Policy |
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Subscriber Acceptable Use Policy
1. Introduction
Smartcom Telephone, L.L.C. is committed to and supports the free
flow of information and ideas over the Internet.
Smartcom Telephone, L.L.C. does not actively monitor nor does
Smartcom Telephone, L.L.C. exercise editorial control over the
content of any web site, electronic mail
transmission, mailing list, news group or other
material created or accessible over Smartcom Telephone, L.L.C.
services. However, Smartcom Telephone, L.L.C. reserves the right
to remove any materials Smartcom Telephone, L.L.C. does become
aware of that are, in Smartcom Telephone, L.L.C.'s sole discretion,
potentially illegal, could subject Smartcom Telephone, L.L.C. to
liability, or violate this Acceptable Use Policy
("Policy"). Your violating this Policy may result in
the suspension or cancellation of your Smartcom Telephone, L.L.C.
services. You should read and interpret this
Policy in conjunction with the Smartcom Telephone, L.L.C. Internet
Access Agreement.
2. Policies
The following are violations of Smartcom Telephone, L.L.C.'s
acceptable use policies:
2.1. Using a personal account for high
volume or commercial use. If you would like
to receive high-volume or commercial
services, please contact Smartcom Telephone, L.L.C.'s
Business Sales Department at
1-956-687-7070 for information about
establishing a commercial account. Activities
which are prohibited as high volume include,
but are not limited to:
2.1.1. Any mailbox exceeding 10MB
may, at Smartcom Telephone, L.L.C.'s discretion, be
transferred to a compressed temporary
file or storage. Members will be notified
at that time with further information.
Sixty days after this notification,
Smartcom Telephone, L.L.C. reserves the right to delete
the temporary file from the server.
2.1.2. Exceeding 5MB of disk space for
free Web sites. Any free Web site
exceeding 5MB will be suspended until
the customer brings the disk space
usage under 5MB.
2.2. Using Smartcom Telephone, L.L.C. services for illegal
purposes or in support of illegal activities. In
accordance with Section 5 of the Internet Access Agreement,
Smartcom Telephone, L.L.C. reserves the
right to cooperate with legal authorities
and/or injured third parties in the
investigation of any suspected crime or civil
wrong. Activities which are prohibited as
potentially illegal include, but are not limited
to:
2.2.1. Unauthorized copying of
copyrighted material including, but not
limited to, digitization and distribution of
photographs from magazines, books, or
other copyrighted sources, and
copyrighted software.
2.2.2. Exporting software or technical
information in violation of U.S. export
control laws.
2.2.3. Posting or emailing of scams such
as 'make-money-fast' schemes or
'pyramid/chain' letters.
2.2.4. Threatening bodily harm or
property damage to individuals or
groups.
2.2.5. Making fraudulent offers of
products, items, or services originating
from your account.
2.2.6. Attempting to access the
accounts of others, or attempting to
penetrate security measures of
Smartcom Telephone, L.L.C.'s or other entities' systems
("hacking"), whether or not the intrusion
results in corruption or loss of data.
2.3. Harassing others by 'mail-bombing' or
'news-bombing'. 'Mail-bombing' constitutes
sending more than ten (10) similar mail
messages to the same email address. 'News
bombing' constitutes sending more than
10Mb of data to a newsgroup.
2.3.1. Sending unsolicited email
messages where the recipient objects to
the content of the message or to the
receipt of the message in general is also
prohibited under this Section.
2.3.1.1. Member acknowledges that
he/she/it is expressly prohibited
from utilizing Smartcom Telephone, L.L.C. Network's
service, Smartcom Telephone, L.L.C. Network's
equipment or any Smartcom Telephone, L.L.C.
Network's 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 Smartcom Telephone, L.L.C.
Network's service, Smartcom Telephone, L.L.C.
Network's equipment or any
Smartcom Telephone, L.L.C. Network's electronic mail
address.
2.3.1.2. 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.
2.3.1.3. Member specifically agrees
that he/she/it will not utilize the
Smartcom Telephone, L.L.C. Network service,
Smartcom Telephone, L.L.C. Network's equipment or
any Smartcom Telephone, L.L.C. Network 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 newsgroups in a single
day. Members responsible for these
acts may be terminated at
Smartcom Telephone, L.L.C.'s discretion. For each
day upon which this provision is
violated, Member agrees to pay
Smartcom Telephone, L.L.C. Network $10.00 per day
for an unintentional violation of this
provision, but where warranted,
such as in the case of an accidental
transmission, Smartcom Telephone, L.L.C. Network
may waive all or part of the
applicable charge. In cases of willful
violations of this provision, Member
agrees to pay Smartcom Telephone, L.L.C. Network
$200.00 per day. Smartcom Telephone, L.L.C.
Network at its sole discretion shall
determine whether such a violation
was unintentional or willful.
Payment by member under this
provision shall not prevent
Smartcom Telephone, L.L.C. Network from seeking to
obtain other legal remedies against
member, including other damages
or an injunction.
2.4. Revealing your account password to
others or allowing use of your account by
others (other than authorized users in your
household).
2.4.1 At no time can there be
simultaneous use of the same username
and password combination.
2.5. Forging any message header, in part or
whole, of any electronic transmission,
originating or passing through Smartcom Telephone, L.L.C.
services.
2.6. Distributing viruses to or from
Smartcom Telephone, L.L.C. systems.
2.7. Use of software or any device that would
allow your account to stay logged on while
you are not actively using Smartcom Telephone, L.L.C. services
or use the account for the purpose of
operating a server of any type.
2.8. Cross-posting advertisements for
products, items, or services to ten (10) or
more unrelated USENET newsgroups.
2.9. Posting articles to any USENET or other
newsgroup, mailing list or similar forum
which are off-topic according to the charter
or other public statement of the forum.
2.10. Disrupting any newsgroup with
frivolous, excessively vulgar, or repetitious
postings.
2.11. Posting of binary, or excessively large,
unrelated text files to non-binary news
groups that have specifically requested such
material not be posted in the group's FAQ
(Frequently Asked Questions).
2.12. Installation of 'auto-responders',
'cancel-bots' or similar automated or manual
routines which generate excessive amounts
of net traffic, or disrupt net newsgroups or
email use by others.
2.13. Engaging in any of the above activities
using the service of another provider but
channeling such activities through an
Smartcom Telephone, L.L.C. account or re-mailer, or using an
Smartcom Telephone, L.L.C. account as a mail drop for
responses.
3. Smartcom Telephone, L.L.C. Assumes No Liability
Smartcom Telephone, L.L.C. has no practical ability to restrict all
conduct, communications or content which might
violate this Policy prior to its transmission on
Smartcom Telephone, L.L.C.'s systems, nor can Smartcom Telephone, L.L.C. ensure prompt removal of any such communications or
content after transmission or posting. Accordingly, Smartcom Telephone, L.L.C. does not assume liability to subscribers or others for any failure to enforce the terms of this Policy.
4. Revisions to this Policy
Smartcom Telephone, L.L.C. reserves the right to modify this Policy
at any time upon at least thirty (30) days prior
notice. Notice of modifications to this Policy may
be given to subscribers by posting such changes
to the Smartcom Telephone, L.L.C. homepage
(http://www.sc2000.net), by electronic mail, or
by conventional mail.
Smartcom Telephone, L.L.C. INTERNET ACCESS AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY
BEFORE YOU ACCESS THE SERVICE PROVIDED
TO YOU BY Smartcom Telephone, L.L.C.
("Smartcom Telephone, L.L.C."). BY CLICKING THE "YES"
BUTTON AT THE END OF THIS DOCUMENT,
DOWNLOADING, OR USING THE
InterNet PowerPak(tm) SOFTWARE OR THE
COMPANY'S INTERNET SERVICES, YOU AGREE
TO BE BOUND BY THIS AGREEMENT, THE
COMPANY'S SOFTWARE LICENSE AGREEMENT,
ACCEPTABLE USE POLICY, AND SUCH OTHER
USER POLICIES AS THE COMPANY MAY
ESTABLISH FROM TIME TO TIME.
IF YOU DO NOT AGREE TO BE BOUND BY THIS
AGREEMENT, YOU MAY NOT ACCESS OR USE
THE SERVICE, SHOULD CLICK THE "NO"
BUTTON, AND, IF YOU CURRENTLY HAVE AN
Smartcom Telephone, L.L.C. ACCOUNT, YOU MUST CONTACT
OUR OFFICES AS SPECIFIED IN SECTIONS 10
AND 11 WITHIN 30 DAYS OF RECEIPT OF THIS
DOCUMENT.
Smartcom Telephone, L.L.C. provides the Service, defined below in
Section 1, subject to your compliance with this
Agreement. Other services provided by Smartcom Telephone, L.L.C.
will not be subject to this Agreement unless this
Agreement is expressly incorporated into any
other agreement regarding those services.
1. Service.
1.1 The Service includes: Internet
access; Electronic mail ("email") and up to
five electronic mail address; one Web
site (up to 5 megabytes) on Smartcom Telephone, L.L.C.'s
server (regardless of the number of
mailboxes per your account).
1.2. Any means of identification
assigned to you by Smartcom Telephone, L.L.C. (including
usernames and email addresses) will
remain the property of Smartcom Telephone, L.L.C. and at
Smartcom Telephone, L.L.C.'s sole discretion may be
altered or replaced at any time.
1.3. Smartcom Telephone, L.L.C. makes no guarantees as
to the continuous availability of the
Service or any specific feature of the
Service. Smartcom Telephone, L.L.C. reserves the right to
change the Service or any of its features
at any time with or without notice.
2. Registration Requirements.
2.1. You must be at least 18 years old to
register for the Service. By accepting
this Agreement, you represent that you
meet this age requirement. Minors who
use the Service are assumed to have
parental or guardian consent to do so.
2.2. You agree to provide Smartcom Telephone, L.L.C. with
accurate and complete billing
information including your legal name,
address, and telephone number. All
changes to this information must be
reported to Smartcom Telephone, L.L.C. within 30 days of
the change.
2.3. By accepting this Agreement, you
agree that you are responsible for all
charges posted to your account until
you cancel the account as specified in
Section 11.
3. Fees.
3.1. Setup fee are nonrefundable, and
Smartcom Telephone, L.L.C. does not issue pro rata
refunds for fees paid in advance.
3.2. Unlimited Internet access is offered
by Smartcom Telephone, L.L.C. subject to the following
limitations:
3.2.1. Toll-free access is not included in
this offer but requires payment of
additional hourly charges. See the Rate
Chart at http://www.sc2000.net/rates.html
for full details.
3.2.2. Use of Smartcom Telephone, L.L.C.'s
international access services
will incur hourly charges as
specified in the Rate Chart at
http://www.sc2000.net/rates.html.
Special offer accounts which
have monthly service charges
waived do not include 1-800 or
international free access.
3.2.3. LOCAL ACCESS
DIALUP NUMBERS MAY NOT
BE AVAILABLE IN ALL
AREAS. IT IS YOUR SOLE
RESPONSIBILITY TO
DETERMINE IF USE OF A
PARTICULAR Smartcom Telephone, L.L.C.
DIALUP NUMBER WILL
CAUSE YOU TO INCUR
LONG-DISTANCE, TOLL OR
OTHER CHARGES.
Smartcom Telephone, L.L.C. IS NOT
RESPONSIBLE FOR ANY
LONG-DISTANCE OR TOLL
CHARGES INCURRED BY
YOU THROUGH YOUR USE
OF THE SERVICE. YOU ARE
SOLELY RESPONSIBLE FOR
ALL TELECOMMUNICATIONS
CHARGES INCLUDING LOCAL
AND LONG-DISTANCE
TELEPHONE CHARGES FOR
CONNECTION TO THE
SERVICE BY YOU AND BY
THOSE WHO ACCESS THE
SERVICE THROUGH YOUR
ACCOUNT.
3.3. Current prices for Smartcom Telephone, L.L.C.
services are posted on Smartcom Telephone, L.L.C.'s Rate
Chart at http://www.sc2000.net.
These prices may also be obtained by
calling 1-956-687-7070. Smartcom Telephone, L.L.C.
reserves the right to change prices and
institute new fees. Smartcom Telephone, L.L.C. may change
rates or institute new charges at any
time upon 30 days prior notice.
Smartcom Telephone, L.L.C. does not issue pro rata fee
refunds.
3.4. A service charge of $20.00 will be
assessed to your account for each check
that is returned to Smartcom Telephone, L.L.C. for
insufficient funds, or any other credit card service charges.
3.5. Payments for all charges are due
within 10 days of the month in which
the charges are incurred. If your
account is delinquent, your account may
be suspended or canceled at
Smartcom Telephone, L.L.C.'s sole discretion If your
account is suspended, regular charges
continue to accrue until you cancel your
account. Smartcom Telephone, L.L.C. may, at its sole
discretion, charge a fee of $9.95 to
reinstate a suspended account.
3.6. Interest charges of 1.5% per month
(or the highest rate permitted by law if
lower than 1.5% per month) will accrue
daily on any unpaid balance which is
more than 30 days old.
3.7. You agree to pay all sales and use
taxes, duties, or levies which are
required by law as well as all attorney
and collection fees arising from efforts
to collect any unpaid balance on your
account.
3.8. If you believe that Smartcom Telephone, L.L.C. has
billed you in error, you must contact the
Customer Service Department (per
Section 11) within 30 days of the invoice
or transaction date of the charge.
Refunds or adjustments will not be
given for any charges which are more
than 30 days old.
4. Use of the Service.
4.1. You and any members of your
household are the only individuals who
are authorized to access the Service
through your Smartcom Telephone, L.L.C. account. You
must not permit anyone else to access
the Service through your account and
must ensure that all authorized users of
your account comply with this
Agreement.
4.2 You are responsible for maintaining
the confidentiality of passwords used by
you or members of your household .
4.3 You are responsible for all charges
assessed as a result of use of your
account. However, Smartcom Telephone, L.L.C. will not
hold you responsible for charges
attributable to an unauthorized user's
access to your account without your
permission, provided that you notify
Smartcom Telephone, L.L.C. within 24 hours of
discovering any such unauthorized use
and the unauthorized use is not
attributable to the failure of any
authorized user to exercise reasonable
efforts to maintain the confidentiality of
the account or password.
4.4 Except for software provided by
Smartcom Telephone, L.L.C., you are responsible for
providing and maintaining all equipment
and other software necessary to access
the Service.
4.5. You will not use the Service or
permit others to use the Service
through your account in any way that
violates any law or regulation; subjects
Smartcom Telephone, L.L.C. to liability; or is in
contravention of Smartcom Telephone, L.L.C.'s Acceptable
Use Policy. You agree to comply with all
Smartcom Telephone, L.L.C. security procedures and
standards and to be bound by the terms
and conditions of the End User License
Agreement for any software provided to
you.
5. Monitoring the Service; Disclosure of Member
Information. Smartcom Telephone, L.L.C. has no obligation to
monitor the Service but may do so and may
disclose information regarding your use of the
Service to satisfy laws, regulations or
governmental requests; to operate the Service
properly; and, to protect itself and its members.
However, Smartcom Telephone, L.L.C. will not disclose member
information to outside persons or entities for the
purpose of soliciting Smartcom Telephone, L.L.C. members.
Smartcom Telephone, L.L.C., IN ITS SOLE DISCRETION, MAY
REMOVE OR REFUSE TO POST ANY
INFORMATION OR MATERIALS, IN WHOLE OR
IN PART, WHICH ARE UNACCEPTABLE,
UNDESIRABLE OR IN VIOLATION OF THIS
AGREEMENT.
6. No Warranties Provided by Smartcom Telephone, L.L.C..
6.1. Except for certain products and
services specifically identified as being
offered by Smartcom Telephone, L.L.C., Smartcom Telephone, L.L.C. does
not control any information, products or
services on the Internet and except for
such Smartcom Telephone, L.L.C.-identified content, all
merchandise, information and services
offered, made available, or accessible on
the Internet are by third parties who
are not affiliated with Smartcom Telephone, L.L.C..
6.2. YOU ASSUME FULL
RESPONSIBILITY AND RISK FOR USE
OF THE SERVICE AND THE INTERNET
BY YOU AND YOUR AUTHORIZED
USERS. THE SERVICE IS PROVIDED
ON AN "AS IS" AND "AS AVAILABLE"
BASIS. Smartcom Telephone, L.L.C. DOES NOT
WARRANT THAT THE SERVICE WILL
BE UNINTERRUPTED OR ERROR-FREE
OR THAT ANY INFORMATION,
SOFTWARE OR OTHER MATERIAL
ACCESSIBLE VIA THE SERVICE IS
FREE OF VIRUSES, WORMS, TROJAN
HORSES, OR OTHER HARMFUL
COMPONENTS. Smartcom Telephone, L.L.C. MAKES NO
EXPRESS OR IMPLIED WARRANTIES,
REPRESENTATIONS OR
ENDORSEMENTS INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF
TITLE, NON-INFRINGEMENT OR
IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE REGARDING
ANY MERCHANDISE, INFORMATION
OR SERVICE PROVIDED THROUGH
Smartcom Telephone, L.L.C. OR ON THE INTERNET
GENERALLY. NO ADVICE OR
INFORMATION GIVEN BY Smartcom Telephone, L.L.C.,
ITS EMPLOYEES, AFFILIATES OR
CONTRACTORS SHALL CREATE A
WARRANTY.
6.3 Smartcom Telephone, L.L.C. SHALL NOT BE LIABLE
FOR ANY COSTS OR DAMAGES
ARISING DIRECTLY OR INDIRECTLY
FROM USE OF THE SERVICE. IT IS
SOLELY YOUR RESPONSIBILITY TO
EVALUATE THE ACCURACY,
COMPLETENESS, AND USEFULNESS
OF ALL OPINIONS, ADVICE, SERVICES,
AND OTHER INFORMATION, AND THE
QUALITY AND MERCHANTABILITY OF
ALL MERCHANDISE PROVIDED
THROUGH THE SERVICE OR ON THE
INTERNET GENERALLY.
6.4. THE INTERNET CONTAINS
UNEDITED MATERIALS, SOME OF
WHICH ARE SEXUALLY EXPLICIT OR
MAY BE OFFENSIVE TO YOU OR
OTHERS ACCESSING THE SERVICE
THROUGH YOUR ACCOUNT. YOU
ACCESS SUCH MATERIALS AND
PERMIT OTHERS TO ACCESS SUCH
MATERIALS THROUGH YOUR
ACCOUNT AT YOUR OWN RISK.
Smartcom Telephone, L.L.C. HAS NO CONTROL OVER
AND ACCEPTS NO RESPONSIBILITY
FOR SUCH MATERIALS.
7. Your Remedies.
7.1. If you are dissatisfied with the
Service or any of its terms, conditions,
rules, policies, guidelines, or practices,
your sole and exclusive remedy is to
terminate this Agreement and
discontinue using the Service by
canceling your account by one of the
methods outlined in Section 11.
7.2. UNDER NO CIRCUMSTANCES
SHALL Smartcom Telephone, L.L.C., ITS EMPLOYEES,
AFFILIATES OR CONTRACTORS BE
LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES THAT
RESULT IN ANY WAY FROM ANY: USE
OF YOUR ACCOUNT OR THE SERVICE
OR YOUR INABILITY TO USE THE
SERVICE; ACCESS OF THE INTERNET
OR ANY PART THEREOF; OR, YOUR
RELIANCE ON OR USE OF
INFORMATION, SERVICES OR
MERCHANDISE PROVIDED ON OR
THROUGH THE SERVICE OR THAT
RESULT FROM MISTAKES,
OMISSIONS, INTERRUPTIONS,
DELETION OF FILES, ERRORS,
DEFECTS, DELAYS IN OPERATION OR
TRANSMISSION, OR ANY FAILURE OF
PERFORMANCE.
8. Indemnity. You agree to defend, indemnify,
and hold Smartcom Telephone, L.L.C. and its affiliates harmless
from any and all liabilities, costs, and expenses,
including reasonable attorneys' fees, related to or
arising from: any violation of this Agreement by
you or those who access the Service through
your account; AND, the use of the Service or the
Internet and the placement or transmission of
any message, information, software, or other
materials on the Internet by you or by those who
have access to the Service through your account.
9. Term of Agreement. This Agreement is
effective from your acceptance thereof, which is
indicated by your clicking the "Yes" button at the
end of this Agreement or upon the first use of
the Service through your account, whichever is
first. If you are a current Smartcom Telephone, L.L.C. member
when this Agreement is activated, your continued
use of the Service constitutes your acceptance of
this Agreement.
10. Termination of Agreement.
10.1. You may terminate this
Agreement by using only the methods
outlined in Section 11. Your
termination will only be complete
upon your receipt of a confirmation
number from Smartcom Telephone, L.L.C.. You will
receive verbal confirmation if you
cancel by telephone, and a written
reply through U.S. mail if you cancel
by mail or webform. EMAIL
CANCELLATIONS WILL NOT BE
ACCEPTED. Charges to your account
will stop accruing the day you receive
your confirmation number. Smartcom Telephone, L.L.C.
does not issue pro rata fee refunds.
10.2. Smartcom Telephone, L.L.C. may terminate this
Agreement: at any time without cause
upon 30 days prior notice; or,
immediately upon notice if you, or any
person who has access to the Service
through your account, commit a material
breach of this Agreement, including but
not limited to a breach of any obligation
imposed under Section 4 or you fail to
pay any charges within 10 days of the
date they accrue.
10.3. Upon termination of this
Agreement all rights granted to you and
your authorized users under this
Agreement shall immediately cease and
terminate; and, you must destroy or
return to Smartcom Telephone, L.L.C. all copies of
software and documentation that you
received from Smartcom Telephone, L.L.C..
10.4. Termination of this Agreement
does not release you from the obligation
to pay all accrued charges under this
Agreement.
10.5. Smartcom Telephone, L.L.C.'s right to enforce the
provisions of Sections 3, 5, 6, 7, 8, 11,
and 12 shall survive termination of this
Agreement.
11. Notice.
11.1. You may change or cancel your
Smartcom Telephone, L.L.C. account by the following
methods only: See Section 10.1,
first-class registered or certified mail,
return receipt requested addressed to
Smartcom Telephone, L.L.C., Accounts
Customer Service, P.O. Box 3097,
McAllen, Texas 78502; or telephone calls directed
to Accounts Customer Service at 1-800-687-7070.
11.2. Smartcom Telephone, L.L.C. may provide notice to
you by the following methods: Electronic
mail (email) addressed to your email
account; general posting to Smartcom Telephone, L.L.C.'s
web site at http://www.sc2000.net; or
by US Mail or courier service at the
address you provided Smartcom Telephone, L.L.C. when
you registered for the service. All
notices or other communications to you
shall be deemed effective on the first
(1st) calendar day following the date of
electronic mailing or posting or on the
fourth (4th) calendar day following the
date of first-class mailing or deposit with
a commercial courier service.
12. Miscellaneous.
12.1. Smartcom Telephone, L.L.C.'s failure to enforce
strict performance of any provision of
this Agreement shall not be construed
as a waiver.
12.2. This Agreement shall be governed
by and construed in accordance with
the laws of the State of Texas,
United States of America, without
regard to its conflicts of law provisions.
You consent to the personal jurisdiction
of the federal and state courts having
jurisdiction for McAllen, Texas with
respect to all disputes arising out of this
Agreement, your use of the Service or
otherwise between you and Smartcom Telephone, L.L.C..
Any cause of action 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.
12.3. Any action at law, suit in equity,
or other judicial proceeding concerning,
relating to, arising from, or touching
upon in any way, no matter how
remotely, the contract for services
between you and Smartcom Telephone, L.L.C.,
and/or your use of and/or Smartcom Telephone, L.L.C.'s
provision of systems and
services thereunder, shall be brought
and litigated, if at all, only in the state
court system of the State of Texas.
In such event, you acknowledge the
right of the specified court to assert
personal jurisdiction in any such action
over you and waive and release now and
forever any defense to that assertion of
jurisdiction that might otherwise exist.
12.4. Neither this Agreement, nor any of
your rights or obligations arising
hereunder, shall be transferable by you
to any third party without Smartcom Telephone, L.L.C.'s
prior written consent.
12.5. This Agreement, the Rate Chart,
the Acceptable Use Policy, and the
End-User License Agreement constitute
the entire agreement between you and
Smartcom Telephone, L.L.C. with respect to the Service.
12.6. Smartcom Telephone, L.L.C. reserves the right to
alter, amend or modify this Agreement
at any time upon thirty (30) days notice.
No amendment or modification to this
Agreement by you shall be valid or
binding on Smartcom Telephone, L.L.C. unless made in
writing and signed by both parties.
InterNet PowerPak(tm) of PhillyNet, Inc.
Smartcom Telephone, L.L.C. InterNet PowerPak
Software License Agreement
CAREFULLY READ THE FOLLOWING TERMS
AND CONDITIONS OF THIS AGREEMENT. BY
INSTALLING AND USING THE Smartcom Telephone, L.L.C.
InterNet PowerPak SOFTWARE, YOU
INDICATE YOUR ACCEPTANCE OF THE
FOLLOWING TERMS AND CONDITIONS AND
YOU AGREE TO BE BOUND BY ALL OF THEM.
IF YOU DO NOT AGREE TO BE BOUND BY
THESE TERMS AND CONDITIONS, DO NOT
INSTALL OR USE THE Smartcom Telephone, L.L.C. InterNet Pak
SOFTWARE.
THE Smartcom Telephone, L.L.C. InterNet PowerPak
SOFTWARE AND DOCUMENTATION ARE
PROVIDED FOR USE ONLY (I) WITH THE
INTERNET ACCESS OR InterNet PowerPak
SERVICE OFFERED BY Smartcom Telephone, L.L.C.
("Smartcom Telephone, L.L.C.") IN CONJUNCTION WITH
THE DISTRIBUTION OF THE Smartcom Telephone, L.L.C.
InterNet PowerPak SOFTWARE AND
DOCUMENTATION AND (II) IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT. NO
RIGHT OR LICENSE IS GRANTED TO USE THE
Smartcom Telephone, L.L.C. InterNet PowerPak
SOFTWARE, DOCUMENTATION, OR ANY
COMPONENT OF THE Smartcom Telephone, L.L.C.
InterNet PowerPak SOFTWARE OR
DOCUMENTATION WITH ANY OTHER INTERNET
ACCESS OR INTRANET ACCESS SERVICE.
THIS AGREEMENT CONSTITUTES THE
COMPLETE AND EXCLUSIVE STATEMENT OF
THE AGREEMENT BETWEEN YOU AND
Smartcom Telephone, L.L.C. WITH RESPECT TO THE
Smartcom Telephone, L.L.C. NETWORK TOTALACCESS
SOFTWARE. THIS AGREEMENT SUPERSEDES
ANY WRITTEN OR ORAL PROPOSAL , PRIOR
AGREEMENT, OR OTHER COMMUNICATION
RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
Section 1. License Grant. Subject to the
provisions contained herein and payment of
applicable fees, Smartcom Telephone, L.L.C. hereby grants to
Customer ("You") a personal, non-exclusive,
non-transferable and non-assignable license to
install and use the accompanying versions of the
proprietary Smartcom Telephone, L.L.C. InterNet PowerPak
software in object code format, its associated
documentation and any updates thereto
("Licensed Program") on a single computer of
which You are the primary user ("Authorized
System"). The Licensed Program may include one
or more of the following programs: Apple
Computer, Inc. MacTCP; Merit Network, Inc.
MacPPP or etherPPP; Microsoft(r) Internet
Explorer; Netscape(r) Navigator'; QUALCOMM
Eudora-Light(r); Network TeleSystems, Inc.
TCP/IP Software for Windows(r); and other
software which may from time to time be included
in the Licensed Program ("Software"). You agree
to use the Licensed Program solely in
conjunction with Smartcom Telephone, L.L.C.'s Internet Service
and for no other purpose. Smartcom Telephone, L.L.C. may modify
the Licensed Program at any time for any reason.
You agree to use only the most recent version of
the Licensed Program and destroy or return to
Smartcom Telephone, L.L.C. at its request any superseded version
of the Licensed Program.
Section 2. Intellectual Property Rights. You
acknowledge and agree that the Licensed
Program constitutes confidential and proprietary
information of Smartcom Telephone, L.L.C. and Smartcom Telephone, L.L.C.'s licensors and embodies trade secrets and
intellectual property protected under United
States copyright and other laws and international
treaty provisions. You further acknowledge that
all right, title, and interest in and to the Licensed
Program, including associated intellectual
property rights, are and shall remain with
Smartcom Telephone, L.L.C. and Smartcom Telephone, L.L.C.'s licensors. You agree not to translate, decompile, reverse engineer,
disassemble, modify, reproduce, rent, lease,
lend, distribute, remarket or otherwise dispose of
the Licensed Program or any part thereof. You
agree not to remove, obscure or alter any notice
of patent, copyright, trademark, trade secret or
other proprietary right in the Licensed Program.
You may not duplicate the Licensed Program
except to make one (1) copy of the Licensed
Program solely for Your backup purposes. Such
backup copy shall include all copyright and other
proprietary notices contained in or on the original
Licensed Program and shall be subject to all of
the terms of this Agreement.
Section 3. Term; Termination. This Agreement
and the license hereunder shall be effective from
Your first installation or use of the Licensed
Program. This Agreement automatically ends
upon the termination for any reason of the
Smartcom Telephone, L.L.C. Network Internet Access Agreement
between Smartcom Telephone, L.L.C. and You. In addition, if
Smartcom Telephone, L.L.C. in its sole judgment believes that the
Licensed Program is being used by You for a
purpose not approved by Smartcom Telephone, L.L.C., that
Smartcom Telephone, L.L.C. or Smartcom Telephone, L.L.C. licensors' rights are being jeopardized or that You are in default
under this Agreement or any other agreement between You and Smartcom Telephone, L.L.C., Smartcom Telephone, L.L.C. may
immediately terminate this Agreement. Upon termination or expiration of this Agreement, the license granted to You hereunder shall
immediately terminate and You shall immediately cease to use the Licensed Program and destroy or, at Smartcom Telephone, L.L.C.'s request, return all copies of the Licensed Program to Smartcom Telephone, L.L.C.. Smartcom Telephone, L.L.C.'s right to enforce the provisions of Sections 2-9 of this Agreement shall survive termination of this Agreement.
Section 4. Exclusion of Warranties. THE
LICENSED PROGRAM IS LICENSED "AS IS." NO
WARRANTY, REPRESENTATION, CONDITION,
UNDERTAKING OR TERM, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, AS TO
THE CONDITION, QUALITY, DURABILITY,
PERFORMANCE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE OR USE OF THE
LICENSED PROGRAM IS GIVEN OR ASSUMED
BY Smartcom Telephone, L.L.C., ITS LICENSORS OR ITS
AGENTS AND ALL SUCH WARRANTIES,
REPRESENTATIONS, CONDITIONS,
UNDERTAKINGS AND TERMS ARE HEREBY
EXCLUDED. BECAUSE SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU.
Section 5. Limitation of Damages. Smartcom Telephone, L.L.C.,
ITS LICENSORS AND ITS AGENTS SHALL IN NO
EVENT BE LIABLE TO YOU FOR ANY DAMAGES
(INCLUDING, WITHOUT LIMITATION, ANY
DIRECT, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, LOST PROFITS,
LOST SAVINGS OR, TO THE EXTENT ALLOWED
BY APPLICABLE LAW, DAMAGES RESULTING
FROM DEATH OR INJURY OF CUSTOMER OR
ANYONE ELSE) ARISING OUT OF OR IN
CONNECTION WITH THE INSTALLATION, USE,
IMPROPER USE, OR INABILITY TO USE THE
LICENSED PROGRAM AND/OR ANY
INFORMATION OBTAINED THROUGH THE USE
OF THE LICENSED PROGRAM, EVEN IF
Smartcom Telephone, L.L.C. HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BECAUSE
SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, THE ABOVE
EXCLUSIONS OF INCIDENTAL AND
CONSEQUENTIAL DAMAGES MAY NOT APPLY
TO YOU.
Section 6. Export Controls. You may not
download, use or otherwise export or re-export
the Licensed Program or any underlying
information or technology except in full
compliance with all United States and other
applicable laws and regulations. In particular, but
without limitation, neither the Licensed Program
nor any underlying information or technology
may be downloaded, used or otherwise exported
or re-exported (i) into (or to a national or resident
of) Cuba, Haiti, Iraq, Libya, Yugoslavia, North
Korea, Iran, Syria or any other country to which
the U.S. has embargoed goods or (ii) to anyone
on the U.S. Treasury Department's list of
specially Designated Nationals or the U.S.
Commerce Department's Table of Deny Orders.
By downloading or using the Software, You
represent and warrant that You are not located
in, under the control of or a national or resident
of any such country or on any such list.
Section 7. U.S. Government Restricted Rights.
Use, duplication or disclosure of the Licensed
Program by the United States Government is
subject to the restrictions set forth in
subparagraph (c)(1)(ii) of the Rights in Technical
Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of
the Commercial Computer Software - Restricted
Rights at 48 CFR 52-227.19, as applicable.
Contractor/manufacturer is Smartcom Telephone, L.L.C.,
P.O. Box 3097, McAllen, Texas.
Section 8. Third Party Beneficiaries. You agree
that Smartcom Telephone, L.L.C.'s licensors including, but not
limited to, Netscape Communications
Corporation, Microsoft Corporation, Apple
Computer, Inc. and Network TeleSystems, Inc.,
are direct and intended third party beneficiaries
of this Agreement. To the extent the software of
other software licensors/providers is included in
the Licensed Program, such software
licensors/providers shall also be deemed third
party beneficiaries of this Agreement.
Section 9. Miscellaneous. The terms of this
Agreement may not be amended or modified by
You. You may not assign its rights or delegate
any of its duties under this Agreement, and any
attempted assignment or delegation shall be void.
If one or more provisions of this Agreement shall
be held to be invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the
remaining provisions shall not be affected or
impaired thereby. This Agreement shall be
governed by the substantive laws of the State of
California, United States of America, excluding (i)
the conflicts of law provisions thereof, and (ii) the
United Nations Convention on Contracts for the
International Sale of Goods. Any tax or duty that
may be due or payable as a result of this
Agreement or the license granted herein shall be
paid by You.
Smartcom Telephone, L.L.C. InterNet PowerPak is a trademark of PhillyNet, Inc.
Microsoft and Windows are registered trademarks of Microsoft Corporation.
Netscape Navigator is a trademark of the Netscape Communications Corporation.
Netscape is a registered trademark of Netscape
Communications Corporation.
Eudora-Light is a registered trademark of the University of Illinois Board of Trustees, licensed to QUALCOMM Incorporated.
Copyright(c) 1999 Smartcom Telephone, L.L.C.
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