(a) "Subscriber," as used herein, means an individual, a corporation, or a legal entity who
incurs usage charges for the Service for its own use or who incurs such charges on behalf of a
third party, i.e., a User.
(b) "User," as used herein, means a Subscriber who uses Service or an individual, a
corporation, or a legal entity whose Service usage charges are incurred by a third party, i.e.,
2. SERVICE: City-Guide will provide Subscriber and its Users analog or digital access to the Internet, depending on the rate plan selected (the "Service"), subject to conditions generally beyond the control of City-Guide, including the type and condition of the equipment (personal computer, modem, etc.) of Subscriber and/or its Users. Service may be temporarily unavailable or limited because of capacity limitations and may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs, and similar activities necessary for the proper operation of Service.
3. ACCEPTABLE USAGE OF DIAL-UP ACCOUNTS: Subscriber and its Users agree to use dial-up accounts solely on an active "dial-up" basis, meaning only as needed and in no way on a standby or inactive basis in order to maintain a connection. Without limitation of the foregoing, Subscriber and its Users shall abide by the following provisions regarding usage: (a) A dial-up account may be used for World Wide Web browsing, reading or posting to Usenet (see Section 13 below) newsgroups, sending, receiving and reading electronic mail and transferring files via the file transfer protocol. (b) A dial-up account shall not be used to host a dedicated server site on the Internet. (c) A dial-up account shall not be accessed simultaneously by multiple users using the same user ID. (d) A dial-up account has only one mailbox for incoming electronic mail unless additional mailboxes have been purchased. (e) Automated processes may not be used such as checking e-mail or pinging the host to maintain a constant connection.
4. INACTIVITY DISCONNECT POLICY: City-Guide reserves the right to disconnect a dial-up account after 15 minutes of inactivity, as detected by City-Guide through electronic means. This time is approximate and subject to change without notice at City-Guide's sole discretion. Electronic or mechanical means to avoid an inactivity disconnect are strictly prohibited. Electronic or mechanical means include, but are not limited to, "pinging" the mail server, employing electronic or software autodialer features to maintain an active connection or repeatedly checking for e-mail by auto login to the mail server. City-Guide reserves the right to electronically audit connections to enforce the above requirements.
5. ACCESS: Service access will be provided via a local telephone number where available. City-Guide is not responsible for any toll or other charges in the event Service access is not provided via a local telephone number, for instance, if Service access is provided via a toll call.
6. PRICE: Subscriber shall pay to City-Guide the charges associated with the rate plan selected, including applicable taxes, etc. If Service access is not provided via a local telephone number, Subscriber may also be responsible for toll or other charges.
7. PAYMENT: Subscriber agrees to pay all charges for the principal account and any associated accounts registered to Subscriber in accordance with published rates. Accounts must be prepaid. Monthly and quarterly billing periods are available; Monthly billing is only available for credit card subscribers; quarterly invoices will be rendered for all other customers. If you pay by credit card, you expressly authorize City-Guide to charge the credit card account number associated with your Account for any Access Service charges that accrue from month to month. This authorization will remain valid until you terminate your authorization in writing. If you pay via check, invoices are due upon receipt. Payment will be deemed made when received by City-Guide. If payment is not received either thru your credit card or check within fifteen (15) days after the due date, service may be suspended for a period of thirty (30) days pending receipt of payment. If payment is not received within the thirty (30) day period, the service may be terminated.
8. RETURNED CHECKS: All returned checks will be charged a $25.00 returned check fee.
9. DISCREPANCIES IN BILLING: Unless Subscriber notifies City-Guide of any discrepancies or irregularities within twenty (20) days of the date of the charge, they will be deemed accepted by you for all purposes, including resolution of inquires made by card issuer. SUBSCRIBER RELEASES City-Guide FROM ALL LIABILITY AND CLAIM OF LOSS RESULTING FROM ANY ERROR OR DISCREPANCY THAT IS NOT REPORTED TO City-Guide WITHIN TWENTY (20) DAYS OF ITS PUBLICATION DATE.
10. CHANGES IN BILLING DATA: Subscriber agrees to provide City-Guide with accurate, complete, and current updated information required for billing, including Subscriber's name, address, telephone number(s), and payment information such as authorization to charge Subscriber's credit card together with such credit card number and valid expiration date.
11. TAXES: Subscriber shall be responsible for the gross amount of any present or future federal, state, municipal or other government sales, use, excise, value added or other similar taxes applicable to the price, sales, or delivery of any services furnished hereunder or to their use by Subscriber.
12. TERM AND TERMINATION: This Agreement becomes effective upon registration of Subscriber's login identification name and shall remain in effect until termination. This Agreement shall continue in effect until the Subscriber gives City-Guide notice of termination via e-mail or in writing via U.S. Postal Service at least thirty (30) calendar days prior to the effective termination date. Subscriber accounts are not monitored for inactivity and City-Guide does not assume a wish to cancel if account is not used. There are no refunds for time not used.
13. CREDIT: There shall be no credits, reductions, or setoff against the charges for Service for downtime or interruption of Service unless such Service interruption exceeds 24 hours in duration. City-Guide shall provide Subscriber with a credit equal to 1/30 of the recurring monthly charge for Service for each twenty-four hour period from the time of notice of interruption until Service restoration, provided Subscriber notifies City-Guide of the Service interruptions. No adjustments shall be made by accumulating periods of non-continuous interruption. A credit allowance will not be given for mistakes, omissions, interruptions, delays, errors, defects or curtailments in the Service caused by the negligence or willful act of Subscriber or others, or mistakes, omissions, interruptions, delays, errors or defects caused by failure of equipment or of Service as described in Section 2.
14. LIMITATION OF LIABILITY: City-Guide SHALL NOT BE LIABLE FOR INTERRUPTIONS CAUSED BY FAILURE OF EQUIPMENT OR SERVICES NOT PROVIDED BY City-Guide, FAILURE OF COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION NOT WITHIN THE COMPLETE CONTROL OF City-Guide, NOR SHALL City-Guide BE LIABLE FOR PERFORMANCE DEFICIENCIES CAUSED OR CREATED BY SUBSCRIBER'S OR ITS USERS' EQUIPMENT. SUBSCRIBER AND USER HEREBY RELEASE City-Guide FROM LIABILITY ARISING FROM ANY CONTENT ACCESSED VIA THE SERVICE. City-Guide'S PERFORMANCE UNDER THIS AGREEMENT SHALL BE EXCUSED IN CASE OF LABOR DIFFICULTIES, GOVERNMENTAL ORDERS, CIVIL COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. City-Guide SHALL NOT BE LIABLE IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF SUBSCRIBER'S OR ITS USERS' EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. IN NO EVENT SHALL City-Guide BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC. THE LIABILITY OF City-Guide FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO AN AMOUNT EQUIVALENT TO CHARGES PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE SERVICE DURING THE PERIOD SUCH DAMAGES OCCUR. City-Guide MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICE, AND EXPRESSLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE WARRANTY OF MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
11.INDEMNITY: Subscriber and User shall indemnify and hold harmless City-Guide from and against any loss, cost, claim, liability, damage, or expense (including reasonable attorneys' fees) to third parties, relating to or arising from the use of the Service by Subscriber, User, or any of their personnel, whether or not Subscriber or User has knowledge of or has authorized such access or use, including, without limitation, claims for libel, slander, invasion of privacy, infringement of copyright, patent infringement (where Subscriber or User has used, connected, or combined the Service with the products or services of others), negligence, or tortuous behavior. Subscriber agrees to indemnify City-Guide along with any parties from whom City-Guide obtains network services, and to hold them harmless from any claims resulting from the use of the Service by Subscriber or its Users that damage another party or that violate the law.
15. SUBSCRIBER RESPONSIBILITY: Subscriber shall ensure that its Users shall comply with the terms and conditions of this Agreement. Any access to other networks connected to City-Guide's network must comply with the rules of the other networks.
16. USE OF SERVICE: Subscriber and its Users agree to abide by and comply with the following terms and conditions: (a) Misuse of Service: Subscriber and its Users shall not use the Service to make foul or profane expressions, to impersonate another person with fraudulent or malicious intent, to contact another person so as to annoy, abuse, threaten, or harass such other person, or for any purpose in violation of law, or in such a manner as to interfere unreasonably with the use of the Service by any of City-Guide's customers. Subscriber and its Users shall not distribute chain letters or "junk" mail (any unsolicited mail of a business or commercial nature) or engage in "Ponzi" or "pyramid" schemes. The Service and underlying network may only be used for lawful purposes. Transmission of any material in violation of any U.S. or state regulation is prohibited. This includes, but is not limited to copyrighted material, material which is threatening or obscene, or material protected by trade secret. In addition, City-Guide generally reserves the right in its sole discretion to either temporarily discontinue, or permanently terminate furnishing the Service upon notice to Customer in the event Customer uploads any information that is libelous, defamatory or that violates or infringes any right of privacy of any Persons; uploads any messages, data, images or programs that are indecent, obscene or pornographic; use the facilities and capabilities of City-Guide to conduct or solicit the performance of any illegal activity or to conduct any other activity that infringes the rights of City-Guide or any third party; or upload any information, messages, data, images or programs that is discriminatory or otherwise offensive as determined by City-Guide in its sole discretion. (b)Spamming: Subscriber and its Users shall not flood the Internet with large or numerous Usenet or e-mail *spamming* or *mailbombing* . City-Guide considers this Misuse of Service as referenced in paragraph 16(a) of this Agreement. *Spamming/Mailbombing* is strictly prohibited and may result in potential legal action and/or termination of service. Any dues or fees paid to date regardless of length of service provided will be forfeited. Additionally, any amounts owed in arrears, will be made due and payable immediately. INTERFERENCE WITH THE RIGHTS OF THIRD PARTIES: In the event that City-Guide receives notice from a third party, or in the event that City-Guide reasonably believes, that Subscriber's or any User's use of the Service, either alone or in connection with products or services of others, constitutes, causes, results in, induces or contributes to either (i) defamation, invasion of privacy, or unfair competition, or (ii) misuse, misappropriation or infringement of any patent, copyright, trademark, trade secret or other proprietary or intellectual property right of such third party, then City-Guide shall have the right, in its sole and exclusive option and discretion, without prior notification to Subscriber or to User(s), and without limiting any other rights or remedies City-Guide might have or incurring any obligation or liability to Subscriber or to User(s), to temporarily discontinue or permanently terminate, in whole or in part, furnishing of Services to Subscriber or to User(s). (b) Usenet Policy and Posting Restrictions: Usenet comprises a system of bulletin boards called newsgroups. Usenet access is provided to dial-up customers of City-Guide. Subscriber and its Users shall not post to newsgroups until they have familiarized themselves with the subjects and established guidelines and restrictions of the newsgroup. All such Usenet guidelines and restrictions are hereby incorporated herein by reference and Subscriber and its Users unconditionally agree to adhere to them. These guidelines and restrictions include, but are not limited to, the following: - Only post articles that are relevant to the newsgroup. Participants of newsgroups do not appreciate Inappropriate or irrelevant postings nor are they allowed under Usenet protocols. - Most newsgroups do not allow commercial postings. Users should verify this restriction before making any such posting. - Blanket postings to all or large numbers of newsgroups simultaneously with disregard to the newsgroups subject are forbidden. - Chain letters are not allowed to be posted. - Unauthorized creation of newsgroups is prohibited. (c) Harm To Equipment, Software and Processes: Subscribers agree unconditionally to not cause harm to City-Guide or third party equipment, software, or processes used in connection with furnishing the Service. In addition to constituting a default under this Agreement, any breach of this provision may result in civil and/or criminal penalties pursuant to applicable local, state and federal law. (d) Content, Accuracy of Information: City-Guide and any parties from whom City-Guide obtains network services, exercises no control whatsoever over the content of the information passing through City-Guide's network. City-Guide makes no warranties of any kind, whether express or implied, for the content of the information passing through its network. Use of any information obtained via the City-Guide network is at Subscriber's and its Users' own risk or the risk of their affiliates. City-Guide specifically denies any responsibility for the accuracy or quality of information obtained through its Service. (e) Offensive and/or Harmful Information: The Internet hosts some material deemed unfit for viewing and reading by minors under the age of 18. Some sites contain information both in text and graphical formats that Subscriber and/or Users may consider obscene and/or harmful. Subscriber and/or Users agree to not hold City-Guide responsible for sites and postings that could be considered obscene, lewd, offensive, and/or harmful. Subscribers are responsible for their own monitoring and viewing habits and their Users, including minors. City-Guide does not block, filter or screen postings or sites on the Internet in whole or in part.
17. DEFAULT: Upon a default by Subscriber City-Guide may, in its sole discretion, without prior notification and without limiting its remedies or incurring any liability to Subscriber, either temporarily discontinue or permanently terminate the furnishing of Service to Subscriber in whole or in part. "Default" means any failure by Subscriber to comply with any term of this Agreement, including without limitation, failure to make timely payment of any amount due City-Guide or failure to comply with the restrictions on use of Service set forth in Section 13. Where Subscriber's equipment is used with Service provided by City-Guide in violation of any of the provisions herein, City-Guide will notify Subscriber and take such action as is necessary for the protection of the Service for use by its other customers. Subscriber shall discontinue such use of the equipment or correct the violation immediately and shall confirm in writing to City-Guide within five days that such use has ceased or that the violation has been corrected, and if Subscriber fails to do so, City-Guide will disconnect Subscriber's Service, without any credit allowance, until such time as Subscriber complies with the provisions hereof. City-Guide reserves the right to charge a reconnect fee for any discontinued Service that is subsequently reconnected.
18. EQUIPMENT: Subscriber shall be responsible to provide for the proper installation, operation, and maintenance of Subscriber's equipment used in connection with the Service, and Subscriber shall ensure that such equipment is technically and operationally compatible with the Service and in compliance with applicable Federal Communications Commission rules and regulations.
19. MISCELLANEOUS: This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the state of Florida. In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. If any provision of this Agreement shall be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. This Agreement embodies the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, and all contemporaneous oral agreements and understandings relating to the subject matter hereof. City-Guide may amend the terms and conditions of this Agreement by giving Subscriber 30 days' prior on-line notice. This Agreement is subject to modification by any authorized regulatory agency. City-Guide may assign this Agreement without limitation, but Subscriber may not assign this Agreement without City-Guide's prior written consent. This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns.