| Terms and Conditions:
QwikNet Internet owned and operated by On-Site Express, Inc..
("QwikNet") agrees to provide you ("User") with those services
("Service") set forth on the Application subject to User's compliance with the
terms and conditions below.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SERVICE. BY ACCESSING THE
SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT WISH TO BE
BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICE.
Warranty Disclaimer
THE FOREGOING WARRANTIES SET FORTH ARE EXCLUSIVE AND NO OTHER WARRANTY
IS EXPRESSED OR IMPLIED.
QwikNet exercises no control whatsoever over the content of the information passing
through QwikNet'S system. Use of any information obtained via QwikNet is at User's risk.
Neither QwikNet nor any of its affiliates, its licensers, its contractors or their
respective employees warrant that the Service will be uninterrupted or error free; nor
does QwikNet make any warranty as to the results from use of the Service.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
NO ADVICE OR INFORMATION GIVEN BY QwikNet, ITS AFFILIATES, ITS LICENSERS, ITS CONTRACTORS
OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER QwikNet NOR ITS AFFILIATES,
ITS LICENSERS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WARRANTS THAT THE SERVICE
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL
ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, CANCELBOTS, WORMS, TROJAN HORSES OR OTHER
HARMFUL COMPONENTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL QwikNet, ITS AFFILIATES, ITS LICENSERS, ITS
CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM USER'S USE OF OR
INABILITY TO USE THE SERVICE OR TO ACCESS THE INTERNET OR ANY PART THEREOF, OR USER'S
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, ANY FAILURE OF PERFORMANCE, COMPUTER
VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO
ALTERATION OF OR USE OF USER'S ACCOUNT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
UNDER ANY OTHER CAUSE OF ACTION. IN THE EVENT QwikNet IS FOUND LIABLE UNDER ANY
CIRCUMSTANCE UNDER THE TERMS OF THIS AGREEMENT, QwikNet'S LIABILITY SHALL BE LIMITED TO
THE UNUSED BALANCE OF USER'S SUBSCRIPTION PAYMENT PRO-RATED TO REFLECT THE CURRENT TERM.
If User is dissatisfied with the Service or with any terms, conditions, rules,
policies, guidelines or practices of QwikNet in operating the Service, User's sole and
exclusive remedy is to discontinue using the Service.
Indemnification
Notwithstanding anything to the contrary herein contained, User agrees
to indemnify and hold QwikNet, its affiliates, its licensers, its contractors or their
respective employees harmless against any and all liability, loss, claim, judgment, damage
and expense including without limitation attorney's fees and cost of litigation) incurred
or suffered by QwikNet, its licensers, its affiliates, its contractors, or their
respective employees as the result of any and all use of User's account whether authorized
or not authorized or as a result of the negligence, willful misconduct, or breach of any
of the terms of this Agreement by User, including but not limited to claims, liabilities,
losses, damage, judgment and expense which arise out of alleged injury or death of any
person or damage to property of every kind and description. User shall promptly notify
QwikNet in writing of any claim of which it is obligated under this indemnity. User shall
have the right to assume the defense of any such claim. User and QwikNet shall confer as
to and agree on the legal counsel(s) to be selected in any such defense.
Age Limit
User represents to QwikNet that he or she is 18 years of age or older.
User understands that certain materials available from Service provided under the terms of
this Agreement may not be suitable for individuals under the age of 18.
Sexually Explicit Materials
User understands that the Internet contains unedited materials some of
which are sexually explicit or may be offensive. User accesses such materials at his or
her own risk. QwikNet has no control over and accepts no responsibility whatsoever for
such materials.
Prohibited Uses
User may not:
restrict or inhibit any other user from using and enjoying the Internet;
post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene,
pornographic, profane, or otherwise objectionable information of any kind, including
without limitation any transmissions constituting or encouraging conduct that would
constitute a criminal offense, give rise to civil liability, or otherwise violate any
local, state, national or international law, including without limitation the U.S. export
control laws and regulations;
post on webspace provided any sexually explicit materials or materials that may be
offensive.
post or transmit any information or software which contains a virus, cancelbot, trojan
horse, worm or other harmful component;
post, publish, transmit, reproduce, distribute or in any way exploit any information,
software or other material obtained through the Service for commercial purposes (other
than as expressly permitted by the provider of such information, software or other
material);
upload, post, publish, transmit, reproduce, or distribute in any way, information,
software or other material obtained through the Service which is protected by copyright,
or other proprietary right, or derivative works with respect thereto, without obtaining
permission of the copyright owner or rightholder;
upload, post, publish, transmit, reproduce, transmit or distribute in any way any
component of the Service itself or derivative works with respect thereto;
send unsolicited advertising or promotional materials to other network users (See
section titled "MESSAGING");
allow users to run Maillist, Listserv or any form of auto-responds from User's account;
run or activate processes while User is not logged in;
violate the security of any computer network, crack passwords or security encryption
codes, transfer or store illegal material including that deemed threatening or obscene, or
engage in any kind or illegal activity;
attempt to defeat any idle timer or system tool intended to enforce the part-time and
personal nature of User's connection, including the use of pingbots and other methods of
avoiding timing disconnection (See section titled "LIMITATIONS OF DIAL-UP
SERVICES"); or
violate any of the rules, regulations and policies of those networks and computer
systems accessed via User's account.
QwikNet has no obligation to monitor the Service. However, User agrees that QwikNet has
the right to monitor the Service electronically from time to time and to disclose any
information as may be necessary to satisfy any law, regulation or other governmental
request, to operate the Service properly, or to protect itself or its subscribers. QwikNet
will not intentionally monitor or disclose any private E-mail message unless required by
law. QwikNet reserves the right to refuse to post or to remove any information or
materials, in whole or in part, that, in its sole and absolute discretion, are
unacceptable, undesirable, or in violation of this Agreement. QwikNet reserves the right
to suspend access to the Service for User's account. The account's suspension may be
rescinded within the sole and absolute discretion of QwikNet following payment of a
reconnection charge, to be determined by QwikNet in its sole and absolute discretion.
Messaging
User agrees to limit their use of the QwikNet service, specifically
regarding the use of QwikNet's electronic (email) services, to the following restrictions:
Unauthorized Use of Relay Servers
User agrees that any unauthorized use of any email server located
throughout the Internet for the purposes of relaying or distributing messages is
prohibited.
Fraudulent Addressing
User agrees that the purposeful distribution of any email message where
the return address, originator's address, or any other identifiable aspect of the message
has been purposefully altered, is prohibited. User may not purposefully misrepresent the
origination information of any email messages sent while using the QwikNet service.
Fraudulent Content
User agrees to be held responsible for the distribution of fraudulent
materials.
VIOLATION OF ANY OF THESE TERMS WILL RESULT IN IMMEDIATE TERMINATION OF SERVICES.
FURTHERMORE, VIOLATION OF ANY OF THESE TERMS, RELATING TO THE TERMS DESCRIBED WITHIN THIS
"MESSAGING" SECTION OF THIS DOCUMENT, WILL RESULT IN THE IMMEDIATE PENALTY OF
$200. QwikNet RESERVES THE RIGHT TO CHARGE USER'S CREDIT CARD, IF ON FILE FOR USE IN
PAYMENT OF QwikNet SERVICES, A ONE-TIME FEE OF $200 PER VIOLATION OF THESE TERMS. IN THE
EVENT USER PRE-PAYS FOR THEIR QwikNet SERVICE VIA CASH, CHECK, OR MEANS OTHER THAN CREDIT
CARD, QwikNet RESERVES THE RIGHT TO INVOICE AND HOLD USER RESPONSIBLE FOR THE ONE-TIME FEE
OF $200 PER VIOLATION OF THESE TERMS. USER ALSO AGREES TO THE IMMEDIATE TERMINATION OF
QwikNet SERVICES FOR VIOLATION OF ANY OF THESE TERMS.
Limitation of Dial-Up Services
Although QwikNet advertises "Unlimited Access" in regards to
some of it's Dial-Up services, there are several limitations applied. The sole purpose of
these limitations are intended to limit the amount of unnecessary use of QwikNet services
by any such User, which restricts overall QwikNet system availability for other such
Users. These limitations apply only to Dial-Up access services offered by QwikNet.
Idle Timeout
User agrees to have their online session automatically terminated after
ten (10) minutes of consecutive inactivity. Inactivity is defined as less than 500 bytes
of data transferred between User's modem and the QwikNet service.
Maximum Single Session
User agrees to have an online session automatically terminated after
eight (8) hours of consecutive time, regardless of data transferred during such specific
online session.
Minimum Re-Connect Limit
User understands they cannot log back onto the QwikNet system for a time
period of one (1) minute following the termination of their previous online session,
regardless of the reason for the previous session's termination.
Multiple, Concurrent Online Sessions
User agrees to maintain no more than one (1) concurrent online session
for each PPP/ISDN account purchased.
Terms of Payment
A credit card User agrees to allow "Your ISP" to bill his or
her card on each successive billing date without obtaining User's permission after the
initial charge. A credit card User shall notify QwikNet of any changes in credit card
number or expiration date. If the card is not honored for any reason, QwikNet will attempt
to notify the card holder by using the telephone information given at sign-up or by
E-mail. QwikNet will call the card holder, and if alternative billing has not been
established, the account will be terminated. Restoring the account will be subject to a
setup fee of $10.00.
If payment is by check, payment due dates are indicated on User's invoice. Dishonored
checks are subject to a collection fee to be determined by QwikNet in its sole and
absolute discretion and User's account may be suspended until the account is current. If
payment is not received , service will be terminated and a setup fee of $10.00 will be
added tom charges for additional Service.
QwikNet maintains the right to terminate Service for any unpaid subscriptions. Accounts
in default are subject to an interest charge of 2.5% per month on the outstanding balance.
Termination of Service shall not relieve User from the obligation to satisfy outstanding
invoices. In the event QwikNet utilizes an attorney to collect any unpaid amounts, User
shall be responsible for the payment of all of QwikNet'S attorneys' fees and costs in the
collection of these sums.
QwikNet reserves the right to change prices at any time without prior notice to it's
customers or the public. Price changes will not be retroactive for existing customers,
regardless of the length of their existing service subscription.
Right to Cancel
QwikNet reserves the right to cancel Service for any reason without
prior notice. Pre-paid service is non-refundable. QwikNet will not refund any shipping or
handling fees. Cancellations after the first of the month will be charged for that month.
User must notify QwikNet via telephone or in writing to cancel Service. Cancellations
shall not be honored by electronic mail. Fees for any setup, shipping and handling, and
monthly service charges placed by QwikNet are non-refundable.
Confidentiality
Information transmitted through QwikNet and through the Internet in
general is not confidential. QwikNet can not and shall not guarantee privacy or protection
of any User. QwikNet reserves the right to monitor any User's transmissions when deemed
necessary for providing proper service and/or to protect the rights and property of
QwikNet.
Customer Information
Unless required by court order, subpoena or other legal request, or upon
the advice of counsel, "Your Company Name" may publish User's name and other
consumer information in one or more directories which may be accessed by other Internet
users. In addition, unless User notifies "Your Company Name" to the contrary as
provided above, "Your Company Name" may make such information available to third
parties from time to time. User understands further that merchants on the Internet may
have access to such information and may make it available to third parties in accordance
with their normal practices unless User notifies those merchants directly that User does
not wish such information to be made available.
Non-transferable
The right to use the Service is not transferable. Accounts are for
User's use only. User shall be responsible for the confidentiality of User's password.
Loaning User's account to others, connecting a system used by multiple persons, group use
of user log-ins, and consuming more than one modem line are explicitly prohibited. If User
has multiple accounts, then User shall be limited to one log-in session per system account
at any time. Violation of those terms shall constitute theft of Service and may be
prosecuted under civil and criminal law.
Purchases on the Service
If User wishes to make purchases on the Service, User may be asked by
the merchant or information or service provider from whom User is making the purchase to
supply certain information, including credit card or other payment mechanism information.
User agrees that all information User may provide any merchant or information or service
provider on the Service for purposes of making purchases shall be accurate, complete and
current. The merchants and information and service providers offering merchandise,
information and services on the Service set their own prices and may change prices or
institute new prices at any time. User agrees to pay all charges incurred by users of
User's account and credit card or other payment mechanism at the prices in effect when
such charges are incurred. User shall also be responsible for paying any applicable taxes
relating to purchases on the Service.
No System Backup
QwikNet does not and will not perform system backups on any User's
E-mail account(s). QwikNet shall not be held responsible for any lost E-mail data, email
attachments, or any E-mail message contents, regardless of the reasoning for data loss or
system causes. Except as otherwise set forth herein, QwikNet will not provide historical
data, to any party for any reason, regarding any system or Internet activity.
QwikNet does not and will not perform system backups on any User's personal web site
account(s). QwikNet shall not be held responsible for any lost web data, web files, or any
web site contents, regardless of the reasoning for data loss or system causes. Except as
otherwise set forth herein, QwikNet will not provide historical data, to any party for any
reason, regarding any system or Internet activity.
Failure to Comply With Terms and Conditions
QwikNet may deny User access to all or part of the Service without
notice if User engages in any conduct or activities that QwikNet in its sole discretion
believes violates any of the terms and conditions in this Agreement. If QwikNet denies
User access to the Service because of such a violation, User shall have not right (1) to
access through QwikNet any materials stored on the Internet, (2) to obtain any credit(s)
otherwise due to User, and such credit(s) shall be forfeited, (3) to access third party
services, merchandise or information on the Internet through QwikNet, and QwikNet shall
have no responsibility to notify any third-party providers of services, merchandise or
information nor any responsibility for any consequences resulting from lack of
notification.
Miscellaneous
User agrees to remain signed into the network only when actually making
use of same, and to disconnect when idle for significant periods of time (more than 10
minutes). User also agrees to not remain connected to QwikNet's system for periods
exceeding (8) eight hours, in any single continuous session. User authorizes QwikNet to
enforce these restrictions by appropriate software and network measures, automated and
manual.
User agrees to notify QwikNet if User moves or otherwise changes his or her mailing
address or phone number, and to list a truthful name, postal address and telephone number
on the forms User supplies to QwikNet.
In the event that any portion of this Agreement is held to be 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.
QwikNet'S failure to insist upon or enforce strict performance of any provisions of
this Agreement shall not be construed as a waiver of any provision or right. neither the
course of conduct between parties nor trade practice shall act to modify any provision of
this Agreement.
QwikNet may modify this Agreement from time to time by placing a notice of such
modification on our website, and User's continued use of the Service following notice of
such modification shall be deemed to be User's acceptance of any such modification. It is
User's responsibility to check this online area regularly to determine whether this
Agreement has been modified. If User does not agree to any modification of this Agreement,
User must immediately stop using the Service.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois without regard to its conflicts of law provisions. Any cause of action
User 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.
QwikNet shall not be liable or deemed to be in default for any delay or failure in
performance under this Agreement or interruption of service resulting directly or
indirectly from acts of God, civil or military authority, acts of public enemy, war,
riots, civil disturbances, insurrections, accidents, dire, explosions, earthquakes,
floods, the elements, strikes, labor disputes, shortages of suitable parts, materials,
labor or transportation or any cause beyond the reasonable control of QwikNet.
Venue for litigation of any dispute, controversy, or claim arising out of, in
connection with, or in relation to this Agreement, or the breach thereof, naming QwikNet
as the defendant, shall be proper only in a venue determined by QwikNet.
In any action between QwikNet and User to enforce any of the terms of this Agreement,
QwikNet shall be entitled to recover expenses, including reasonable attorney's fees.
This Agreement constitutes the entire agreement between User and QwikNet with respect
to the Service.
 
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