3. Prohibited Uses
4. Access and Telephone Number
5. Credit Verification, Deposit Requirement, Temporary Service
6. Term of the Agreement, Termination Fee, Customer Notification
7. Rates and Charges
8. Payment for Services
9. Services provided when Customer is not connected
11. Limitation of Liability
12. Monitoring of Transactions or Telephone Conversations
13. Customer Indemnity
15. Transfer of Agreement, Assignment
18. No Warranties provided by SaberNet
18a. Virus, Worm, Trojan Horse, Malicious Data
19. Entire Agreement
This Customer Service Agreement ("Agreement") is made by and between the person and/or organization identified in this Agreement as Customer ("Customer") and HIBS, Ltd., a California Limited Partnership doing business as SaberNet ("SaberNet").
Use of SaberNet Service is governed by the Terms and Conditions herein as well as federal, state and local laws. Customer is responsible for adhering to all applicable laws and to these Terms and Conditions. Application for, or use of, Service constitutes Customer's agreement to be bound by these Terms and Conditions.
Offer of Service
Inclusion of any item or activity in these Terms and Conditions does not constitute an offer to provide such item or activity. Exclusion of any item or activity from these Terms and Conditions does not preclude the offer of such item or activity.
Any means of identification assigned to you by SaberNet in order for you to use the Service is and will remain the property of SaberNet. At SaberNet's sole discretion, this identification may be altered or replaced at any time (these means of identification include, but are not limited to, account user-names and email addresses, directory names and TCP/IP addresses).
Duration of access session
SaberNet service to the subscriber includes unmetered Internet access. This is not unlimited service. Log-on sessions may be terminated after a period of inactivity. Sessions may also be interrupted by call length limitations imposed by the telephone company(s) which handles the call.
Types of Connections
Customer connections to SaberNet are provided by means of dial-up or dedicated data service using the PPP protocol. Shell access or telnet sessions are not offered as part of regular service. Attempts to gain such interactive access to SaberNet servers, equipment or networks are prohibited. Each subscriber user account is limited to a single log-on session unless Customer purchases multiple login service.
Quality and speed of access connection
Service may vary due to installation, geographic and other natural or artificial environmental conditions, and/or conditions generally beyond the control of SaberNet, including, but not limited to, government regulation, the type and condition of Customer's equipment and/or quality and performance of phone company lines and circuits.
Availability of Service
SaberNet makes no guarantees as to the continuous availability of the Service or any specific feature of the Service. SaberNet reserves the right to change the Service at any time with or without notice. Features of the Service which are subject to change include, but are not limited to, access procedures, commands, documentation, hours of operation, menu structures, and pricing.
Interruption, impairment or limitation of Service
Service is subject to interruption, impairment or limitation due to factors such as government regulations or limitations, restrictions by SaberNet, network capacity limitations, installation, repair or modification of the network, limitations of your phone company, limitations of Local Exchange Carriers (LEC and CLEC), SaberNet's efforts to combat fraudulent use, and other legitimate business or operations reasons as SaberNet may determine.
SaberNet may perform regular maintenance during the period of Sunday and Monday morning between 12:00 AM and 4:00 AM PST. This "Maintenance Period" may include, but is not limited to, new installations, upgrades, testing, and diagnostics. During this time services may be temporarily unavailable.
Stored data integrity
It is the Customer's responsibility to back up (safeguard against damage or loss) information, web sites, email and any other related digital information stored on SaberNet servers by the Customer. SaberNet does not guarantee the integrity or availability of any data stored on SaberNet equipment.
Authorship, editorial control, publishing of content
SaberNet does not edit, censor or otherwise publish the content or material of its Customers. Customer agrees that Customer is solely responsible for, and is the author, publisher and editor of, Customer's original content of any email messages, newsgroup postings, web pages or any other type of content which Customer may post, supply, transmit or otherwise make available through the Service. This provision does not convey any title, right or license to which the Customer is not otherwise granted or entitled, nor is it a release or license of copyright.
Customer agrees to hold SaberNet harmless and defend SaberNet against any action resulting from Customer's posting, supplying, transmitting or otherwise providing any content, whether it is Customer's original content or not. Customer further agrees to refrain from posting, supplying, transmitting or otherwise providing any content which is contrary to law.
Objectionable material or information
It is the Customer's responsibility to protect themselves and, as a result of Customer's use of Service, others who may come in contact with any objectionable material or information received by Customer from the Internet. SaberNet does not engage in editing, screening, filtering, blocking or otherwise altering any such material or information. Customer agrees to hold SaberNet harmless and defend SaberNet against any action by Customer, or others as described above, involving objectionable or offensive material or information. Customer is encouraged to explore utilization of commercially available software, hardware and/or services to protect against contact with such information where appropriate.
Website access and minors
If Customer publishes any website content on SaberNet's web servers which may be considered adult in nature or otherwise inappropriate for viewing by minors, Customer agrees to include any mechanism which will effectively prevent access by minors and Customer shall include any mechanism which may otherwise be required by law. Customer agrees to hold SaberNet harmless and defend SaberNet against any action by or on behalf of persons who accessed Customer's website as a result of viewing Customer's website.
Discovery, Subpoena, Search Warrant
Any data, file, transaction log or other record of activity resulting from Customer's use of Service may be subject to discovery, subpoena, or search warrant as ordered by a proper authority. SaberNet is required by law to comply with any such order. In addition to system logs of activity, other data may be resident on SaberNet's equipment or networks including, but not limited to, e-mail messages being delivered, e-mail messages read but not removed from SaberNet servers, files being transferred between Customer and another system, website files, directories and programs, and Customer account, billing and identification information.
Acceptance of Electronic Messages
SaberNet reserves the right to refuse any electronic message when, by its nature or content, the transfer or storage of such message violates any federal, state or local law. SaberNet also reserves the right to refuse any electronic message based on its origin or method of transport. This includes messages whose originators or relaying entities are listed in databases such as MAPS RBLSM, MAPS DULSM, MAPS RSSSM and ORBS. Customer agrees that loss of legitimate messages due to the use of such databases does not constitute faulty service. SaberNet further reserves the right to refuse any electronic message when, in SaberNet's sole discretion, such message violates SaberNet's policies or compromises the proper operation of SaberNet networks, equipment or services. Nothing in this paragraph shall be construed as to limit SaberNet's right to employ any detection, filtering or blocking database, technology or policy.
SaberNet further reserves the right to temporarily or permanently refuse electronic messages bound for mailboxes associated with accounts not in good standing, or messages bound for mailboxes which are oversize (full). A mailbox is considered oversize when it contains more than 250 (two hundred fifty) Megabytes of information. An oversize mailbox must be entirely emptied in order for message acceptance to resume.
Email Filtering Services
SaberNet provides virus and email filtering services as part of SaberNet residential email service. Customer is responsible for setting the filtering categories and aggressiveness as desired. No email or virus filtering service provides absolute or complete protection. Infections or damage may still occur with such filtering systems in use. Customer acknowledges that the filtering services are provided "as-is" and without warranty. Customer agrees to employ anti-virus software as described in Section 19a.
Abuse, illegal use, unauthorized access
Service is furnished on the condition that there will be no abuse or fraudulent use of Service. Any attempt by Customer to abuse or to fraudulently use the Service may result in the immediate termination of Service. In addition, any use which violates federal, state or local laws is strictly prohibited. Any unauthorized, illegal or fraudulent attempt to gain access, utilize and/or hack another computer, network, gateway, router or other Internet connected technology is also prohibited. This includes, but is not limited to, port probes, port connection attempts, "nuke" attacks, masquerading, interception of information, forgery or alteration of identification, or forgery or alteration of information.
Resale, sub-serving, third-party use, server software
SaberNet Service is strictly for the sole personal or direct business use of the Customer. At no time shall a Customer resell or otherwise provide any SaberNet Service in whole or in part to third parties. This includes, but is not limited to, web site hosting, sub-serving, Internet access, email services, on-line chat rooms and file transfers. In addition, subscribers who do not use static IP address assignments and/or static host names are prohibited from running server software while connected to SaberNet. This includes, but is not limited to, mail server, web server, ftp server, chat server, audio or video server, or any other type of software which engages in automated activity over SaberNet networks, servers or equipment.
Customers shall not divulge their username and/or password to a third party for any reason including, but not limited to, enabling a third party to use any aspect of Service whether Customer is entitled to Service or not. If Customer requires the ability for third parties to access Customer's files, this may be accomplished via links on Customer's website. Password-protected directory service is available to commercial website Customers only.
Electronic mail, Usenet News, website contents
SaberNet and its affiliates provide to business and consumer users several information technology related services, including such services as Internet access, various electronic mail (email) packages and services, world-wide web site hosting arrangements, and other online and Internet related services. It is contrary to SaberNet policy for any Customer to effect, or participate in, any of the following activities through a SaberNet-provided service:
SaberNet considers the practices in this section to constitute abuse of Service as well as abuse of the recipients who often bear the expense of any unsolicited mailings and/or postings. SaberNet's mail service equipment is located within the State of California and, in accordance with California Business and Professions Code section 17538, reserves its rights to pursue legal and civil remedies. SaberNet also reserves its rights to pursue legal and civil remedies according to any other applicable law.
Customer agrees that email messages originated by SaberNet and sent to Customer are not considered unsolicited. Such messages are part of SaberNet user account maintenance and service. Messages may include information about events or conditions which may affect service quality, availability or any other condition which may affect the service. Messages may also include information about administrative matters related to Customer's account and/or information about products and services available from SaberNet and/or its affiliates.
Denial of service attacks
Customer is prohibited from engaging in or causing a denial of service attack on any other Internet user, subscriber, server, network or other Internet connected technology. A denial of service attack means the transmission of any data, message, command or packet that, by its nature or number, causes the receiving equipment to be abnormally impaired, cease function, lose connectivity or otherwise be abnormally affected.
Sending, attempting to send or causing the sending of, continued, continuing or repeated electronic communications to another Internet user, subscriber, Customer or Service Provider when such communications is unwanted and the sender has been previously notified by the recipient of this desire is prohibited.
Abusing or harassing SaberNet employees by any method including, but not limited to, verbal abuse by telephone, verbal abuse in person, abusive email messages, or verbal, physical or mental abuse of any kind, is prohibited. Refusal by SaberNet employees to maintain contact with an abusive customer does not constitute breach of service. Verbal or written abuse includes, but is not limited to, profane, obscene or derogatory language. Customers who engage in repeated abuse or harassment of SaberNet employees are subject to service termination and forfeiture of any prepaid monies.
Illegal material or information
Any posting, transmission, uploading, storage or website content of any type which is illegal or unlawful is prohibited. The transfer, offer to transfer, or availability to transfer, or storage of files, programs, games, data or any material without authorization which is protected by copyright, trademark, service mark or other legal protection against unlawful duplication or dissemination is prohibited.
Expropriating or attempting to expropriate in any fashion the personal, administrative, email, website, cgi or any other electronically stored or transferred information of SaberNet, its subscribers, or any other data storage or processing system, subscriber or user is prohibited. This includes, but is not limited to, passwords, password files (whether owned by SaberNet or any other system), user or subscriber rosters or lists, activity logs, accounting records or information, user configuration, system or program configuration, program, graphic, data file or any other information not publicly offered or published by those with authority to release said information.
File Sharing Systems, Software and Services
Use of, or participation in, a file sharing service, file sharing software, or any other data or information indexing method which allows participants or the public at large to find, to advertise the availability of, to obtain, or to provide, computer files, files representing sound, files representing still or moving visual images, programs, games, data or any materials in any medium without authorization which are protected by copyright, trademark, service mark or other legal protection against unlawful possession, duplication or dissemination is prohibited.
Customer agrees to indemnify, hold harmless, and defend SaberNet against any and all claims relating to Customer's copyright, trademark, trade secret or service-mark infringement, whether proven or alleged. Customer agrees to reimburse SaberNet for any and all costs and reasonable attorneys' fees incurred by SaberNet in defending against any and all claims relating to such proven or alleged infringement.
Engaging in one or more of these practices may result in termination of the offender's account and/or access to SaberNet services. In addition, SaberNet reserves the right, where feasible, to implement technical mechanisms which may block multiple postings as described herein before they are forwarded, filter certain file sizes, filenames, packet types or network protocols, or block data from/to certain TCP/IP ports or addresses.
Nothing contained in this policy shall be construed to limit SaberNet's actions or remedies in any way with respect to any of the foregoing activities. SaberNet reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including, and without limitation, taking action to recover the costs and expenses of identifying offenders and removing them from the SaberNet service, and levying cancellation charges to cover SaberNet's costs in the event of disconnection of dedicated access for the causes outlined herein. In addition, SaberNet reserves at all times all rights and remedies available to it with respect to such activities at law or equity. Furthermore, Customer agrees to be bound by, and to follow, SaberNet's dispute and trouble procedures, as SaberNet may solely determine and apply them.
Network access is currently provided by means of a ten (10) digit telephone number. It is the Customer's responsibility to be aware of any telephone company charges resulting from the use of a specific access number. It is suggested the customer verify that the ten (10) digit telephone number to be used is a local (no-charge) call from their computer phone line to avoid any unwanted charges. Many local telephone companies bill per-minute charges for local calls from business telephone lines or other types of lines which provide measured telephone service. Although there are charges for such calls, they are still considered to be local calls. In the event that Customer incurs telephone company charges resulting from the use of SaberNet service, Customer agrees to assume all responsibility for paying such charges to the billing telephone company. SaberNet is not responsible for any telephone charges incurred by Customer.
The telephone number is at all times the property of SaberNet. Customer has no interest in, or claim of right to, the telephone number. SaberNet reserves the right to deny access upon ten (10) days prior notice. In the event of suspected fraud or abuse, no notice is required to deny access to the network.
Customer authorizes SaberNet to obtain credit information from trade references and credit reporting agencies regarding Customer when related to Customer's use and/or desire to use SaberNet service. Based on this information and other information obtained by SaberNet, SaberNet may require Customer to make a deposit with SaberNet. SaberNet reserves the right to either refund the deposit if Customer has maintained the account in good standing, or apply the deposit to any balance owed by Customer to SaberNet. If SaberNet refunds the deposit to Customer, said refund will be sent to Customer by United States first class mail to Customer's last known address. SaberNet may require that any such deposit be increased based on Customer usage or changes in Customer's credit status, or any other valid reason. At SaberNet's sole discretion, Customer may receive service prior to a credit review without waiving SaberNet's right to demand a security deposit from Customer.
Customer may cancel service at any time without paying a termination fee. Customer will be charged a termination fee if Customer is disconnected due to any misuse or abuse of the service by the Customer. Notice of desire to cancel service by Customer must be made by telephone or in person. Notice by email message will not be honored or accepted. Unless otherwise arranged in advance, Customer's official address for notification of account administration shall be the Customer's primary account email address. This is usually the Customer's primary dial-up username as shown in SaberNet's accounting system. Past-due notices and notices regarding possible abuse of service will be delivered to this address. Customer may elect to use an alternate address as Customer's official point of notification.
SaberNet will charge Customer the rates for Service that are specifically set forth in SaberNet's price and services information. Customer may also be charged a storage fee and/or a megabyte transfer fee for excess storage/transfer requirements of Customer. Customer's initial date of service is used to calculate Customer's renewal dates. Events such as changes to the type of account or billing frequency, may alter the renewal date for the Customer. Customer may cancel service at any time.
A "plan date month" is defined as the period between the plan or renewal date of a month and the date of the day prior to the renewal date of its consecutive month. For example, a plan started on August 7 has its first plan date month of August 7 to September 6.
For any SaberNet plan where Customer cancels prior to the next renewal date, there shall be no refund of payment for whole or partial unused plan date month(s) renaming in the current paid service plan.
SaberNet offers a full money-back guarantee within the first seven (7) days of service. Any activation fees paid are not refundable after the seven day period. Customers who cancel after the first seven days and before the end of an introductory or promotional period are not eligible to receive a refund for any part of the introductory or promotional period.
8. Payment for Services
Customer shall be billed on a quarterly basis in advance, unless otherwise specified. Customer shall pay SaberNet for all rates and charges as set forth by this Agreement, and any other charges incurred in connection with Service. Payment will be deemed made when received by SaberNet, unless payment is by means of a check that is later dishonored. SaberNet's normal billing cycle is on (or near) the 25th day prior to the date of Customer's renewal. Customers whose accounts are up for renewal according to this schedule shall be billed at that time. Customers who have authorized automatic bank card, debit card or electronic funds transfers (EFT) shall have accounts processed for payment at the time of the billing cycle. Invoices shall be mailed via the U.S. Postal Service and/or sent by E-Mail for all customers not on automatic payment plans.
Customer's account may be temporarily disabled or permanently deactivated for late payment without notice. If Customer fails to pay the bill in full by the due date set forth on the bill, Customer may be subject to a late payment fee and/or re-activation fee. If any collection action is taken, Customer agrees to reimburse SaberNet for reasonable attorneys' fees, court costs, and any other costs and fees, including collection agency fees (up to 50% of the balance due), undertaken to collect past-due bills and/or termination fees. Customer must give SaberNet notice of any disputes regarding charges appearing on Customer's bill within 120 days of the date of the disputed bill, either in writing or by calling SaberNet customer services, or otherwise the charges will be deemed to be correct.
SaberNet's equipment is working for you 24 hours per day, seven days per week providing service for your email and web site hosting. Much like your gas, electric or telephone utilities, SaberNet is providing you with services whether you are "dialed-in" and browsing the Internet or away on vacation.
To request a temporary suspension of service due to vacation or other extended leave means a termination of service with SaberNet, thus removing your email and web site from the world wide Internet community and any email directed to you will be lost. In addition, your SaberNet username may have been issued to another user during your absence.
While away, you may request vacation service for your email which simply sends an automated email response to anyone sending you email informing them of your absence. Your email will continue to be collected by SaberNet to await your return. This service is provided with your SaberNet service at no additional charge. Simply call SaberNet to request the activation and then later, to request the deactivation of this feature set of your service.
The Customer is in default under this Agreement if any of the following occur:
In the event of default by Customer, SaberNet may disconnect the service provided by SaberNet. If Customer is disconnected, Customer may be required to pay a service deposit or reconnection fee to reconnect service.
SaberNet shall not be liable to Customer for interruptions of service, loss of data, omissions or errors of third parties, equipment failures, acts of God, strikes, government actions, or other causes beyond SaberNet's reasonable control. SaberNet shall not be liable if changes in operations, procedures, or services require modification or alteration of Customer's equipment or render Customer's equipment or software obsolete. There shall be no reductions, set-offs, or credits against the charges for service down-time or interruption. SaberNet shall give no credit for circumstances caused by negligence, or intentional acts or willful misconduct of Customer. In no event shall SaberNet be liable to customer for incidental, consequential, or punitive damages, including, but not limited to, lost profits, loss of use, or loss of business opportunity. SaberNet shall not be liable for injury to Customer, other persons, or property damage through the use of any equipment or service provided under this Agreement.
For the purposes of training, quality assurance and/or verification of assent or dissent with agreement or contract provisions, telephone conversations with SaberNet, its employees, owners, contractors, vendors, agents or other representatives may be monitored or recorded. Use of, or application for, SaberNet services constitutes permission to monitor or record such conversations.
For the purpose of routine maintenance and to ensure system integrity, SaberNet reserves the right to monitor and review transactions and data handled over or stored on SaberNet's equipment and networks. SaberNet may immediately terminate Customer's service should SaberNet detect any prohibited use (as described in this Agreement) by Customer.
Customer agrees to indemnify, hold harmless, and defend SaberNet against any and all claims relating to Customer's misuse of Service under this Agreement, including, but not limited to, copyright, trademark, trade secret or service-mark infringement. Customer agrees to reimburse SaberNet for any and all costs and reasonable attorneys' fees incurred by SaberNet in defending any claims relating to Customer's misuse of service.
This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. Both parties submit to jurisdiction in California and further agree that any cause of action arising under Agreement shall be brought in a court in Mendocino County, California. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. SaberNet's failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
Customer may not transfer or assign this Agreement either in whole or in part, unless so authorized in writing by SaberNet. SaberNet may assign this Agreement and all of its rights and duties under this Agreement.
SaberNet will send written notices to Customer at Customer's last known address and/or Customer's SaberNet email account address. Customer must notify SaberNet of any desired addition, change or cancellation of service by telephone or in person. For security reasons, notice from Customer by email message will not be honored or accepted.
Failure of either party of this Agreement to enforce any right shall not constitute a waiver of such right or of any other right, whether of a similar or dissimilar nature, and shall not prohibit the exercise of the same right at a future date.
Except for certain products and services specifically identified as being offered by SaberNet, neither SaberNet nor any of its affiliates, controls any information, products or services on the Internet. Except for such SaberNet-identified content, all merchandise, information and services offered, made available, or accessible on the Internet are by third parties who are not affiliated with SaberNet or its affiliates. Customer assumes total responsibility and risk for use of the Service and the Internet by Customer or authorized users on Customer's account. Neither SaberNet nor its affiliates make any expressed or implied warranties, representations, or endorsements including, but not limited to, warranties of title, non-infringement, implied warranties of merchantability or fitness for a particular purpose regarding any merchandise, information or service provided through any SaberNet service or through the Internet generally. Neither SaberNet nor its affiliates shall be liable for any costs or damage arising directly or indirectly from any such transaction. It is solely Customer's 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.
The Internet contains unedited materials, some of which are sexually explicit or may be offensive to Customer or others accessing the service through Customer's account. Customer accesses such materials and permits others to access such materials through Customer's account at Customer's own risk. SaberNet has no control over and accepts no responsibility for such materials.
The Service is provided on an as-is and as-available basis without warranties of any kind, either expressed or implied, including but not limited to, warranties of title, non-infringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by SaberNet, its affiliates, or its contractors and their respective employees shall create a warranty. Neither SaberNet nor its affiliates warrant that the service will be uninterrupted or error-free.
Neither SaberNet nor its affiliates warrant that any information, software, or other material accessible on the service is free of viruses, worms, Trojan horses, or other malicious programs, files, commands or data. SaberNet is not liable to Customer for any damage to Customer's equipment, software or networks, or for charges resulting from repair or replacement of hardware or software, or for lost profits, loss of use, or loss of business opportunity as a result of any virus, worm, Trojan Horse program or any other malicious program, file, command or data to which Customer's equipment may be exposed.
Customer acknowledges that software capable of detecting and blocking viruses, worms, Trojan Horse programs and other malicious programs, files, commands or data should be obtained and employed by Customer at all times when using the Service. Customer also acknowledges that such software should be kept current to maximize its protective capabilities.
The terms and conditions set forth in this Agreement represent the entire Agreement between the parties with respect to Service. This Agreement supersedes any prior or contemporaneous representations of sales representatives or other personnel of SaberNet whether oral or written. No change to the terms or conditions of this Agreement has been authorized, and no such change will be valid or enforceable unless confirmed in writing by an officer of SaberNet. SaberNet may change these Terms and Conditions at any time without prior notice as SaberNet may deem necessary.