Terms and Conditions

AGREEMENT FOR USE OF THE VIVENET INTERNET SERVICES

BEFORE YOU INSTALL, RUN, COPY, USE OR ACCEPT ANY PORTION OF THE CLIENT SOFTWARE, AND IN ORDER TO CONTINUE USE OF THE CLIENT SOFTWARE, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING, RUNNING, COPYING, USING THE CLIENT SOFTWARE, OR CLICKING ON THE ACCEPT BUTTON YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, RETURN THE CLIENT SOFTWARE AND ALL ASSOCIATED MATERIALS TO VIVENET LLC, SOFTWARE RETURNS, 11220 TALBERT AVENUE, FOUNTAIN VALLEY, CALIFORNIA, 92708.

This agreement ("Agreement") becomes effective when you install, run, copy, use any portion of the Client Software and/or "click" on the accept button. This Agreement is between VIVENET LLC ("Vivenet") a California limited Liablity Company, and the participant ("you" or "your"). This Agreement sets forth the terms and conditions under which you agree to use Vivenet’s Client Software and/or Vivenet's Internet Service ("Service" or "Services").

1. Software

Vivenet will provide you with a single copy of the Services software ("Client Software" or "Software"), together with necessary user guides and other documentation. Use of the Client Software is subject to the Software licensing provisions set forth in the Software License Agreement enclosed in the Client Software package and/or incorporated in the installation process.

2. Service

A. Commencing on the date on which you initiate the Service, you will have use of the Service pursuant to the terms and conditions set forth herein. In exchange, you will pay the current charges for such Service, including installation charges, if applicable. Charges, shall be based on your selection from the pricing programs set forth in the Service registration process and also listed in the Vivenet web site - http://www.vivenet.com/numbers.html Your pricing program selection shall be confirmed through the registration process. The terms, conditions, and charges for the Service may be periodically modified. Such modified terms, conditions, and charges can be found at Vivenet's Web site. After notice of a modification, your continued use of the Service constitutes an affirmative agreement to be bound by such new terms, conditions, and charges.

B. The Service shall continue until such time as you provide vivenet with notice in writing by Receipt Email or USPS that you wish to discontinue the Service, or Service is terminated and/or canceled by vivenet, as set forth herein.

C. vivenet reserves the right to modify or discontinue the Service with or without notice to you.

3. Fees

A. For all Service(s) charges, including installation charges if applicable, vivenet will either (i) bill you on your monthly account or (ii) bill your credit card. Monthly recurring charges are billed in advance of Service. If any portion of payment is received after the late payment date, a monthly late charge may be charged to you as liquidated damages. The monthly late charge will be 1.5% of the entire outstanding balance for each month or portion thereof (18% per annum) for which the balance remains.

B. In the event you fail to pay charges billed on your monthly account, or Vivenet is unable to bill you, Vivenet reserves the right to bill outstanding sums to your credit card or to bill you directly. Vivenet may assign unpaid late balances to a collection agency for appropriate action. In the event legal action is necessary to collect on balances due, you agree to reimburse Vivenet for all expenses incurred to recover sums due, including attorneys fees and other legal expenses.

C. You are responsible for purchase and payment of tariffed network services needed for use of the Service. Any long distance, measured service or toll charges incurred by you to dial into the Service during your use of the Service shall be your sole responsibility.

4. Provision of Service

You understand and agree that temporary interruptions of the Service may occur as normal events in the provision of the Service. You further understand and agree that Vivenet has no control over third party networks you may access in the course of your use of the Service, and therefore, delays and disruption of other network transmissions are completely beyond the control of Vivenet.

5. Limitation of Liability

A. Vivenet will make reasonable efforts to provide continuous, uninterrupted, expedient and error-free Service to you. Under no circumstances shall Vivenet be liable to you or any other person for any special, incidental, consequential or punitive damages of any kind, including without limitation, loss of profits, loss of income or cost of replacement Services.

B. Any Software provided hereunder is provided on an as-is basis. Vivenet makes no express or implied warranties (including those of merchantability or fitness for a particular purpose) with respect to the Software provided.

C. Vivenet’s liability for damages in regards to extraordinary and unreasonable interruptions of Service, or for mistakes, omissions, delays, errors and defects in the provision of the Service, shall in no event exceed an amount equal to the prorata charges to you for the period during which the Service is affected.

D. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,VIVENET HEREBY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY AND PERFORMANCE.

E. VIVENET MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES VIVENET MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED, OR OTHERWISE OBTAINED, THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

F. VIVENET MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH THE SERVICE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTION ARE CONDUCTED ENTIRELY AT YOUR OWN RISK.

6. Indemnity

A. You agree to indemnify and save Vivenet harmless from all claims, losses, liens, expenses, suits and attorneys' fees ("Liabilities") for injuries to or death of any person and for damages to or loss of any property which may in any way arise out of or result from or in connection with your use of the Service, except to the extent that such Liabilities arise from the active negligence or willful misconduct of Vivenet.

B. You agree to indemnify Vivenet, its affiliates and subsidiaries, in the event that your use of the Service and/or Software; (i) constitutes a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws); (ii) is defamatory, fraudulent or deceptive, (iii) is intended to threaten, harass or intimidate, or (iv) interferes with other customers' use or enjoyment of the Services provided by Vivenet.

7. Compatibility

You are solely responsible for provisioning, configuration and maintenance of all equipment on your premises, including, without limitation, computer equipment and modems. Vivenet shall not be responsible for delays in the provision of Service resulting from incompatibility of such equipment, or resulting from improper provisioning, configuration or maintenance of such equipment.

8. Advertising

You shall not use Vivenet's name or any language, pictures or symbols which could, in Vivenet's judgment, imply Vivenet's identity in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.

9. Use Limitations

A. You agree to comply with the rules, regulations and policies applicable to any network that you access through the Service. Any violation of such rules, regulation and policies, or any network policy document issued by Vivenet, shall be cause for Vivenet to suspend or terminate the Service.

B. Nothing contained in this Agreement may be construed to convey to you any interest, title, or license in the userID, electronic mail address, Universal Resource Locator or domain name used by you in connection with the Service.

C.Vivenet reserves the right to suspend or terminate the Service to you, or to suspend or terminate any userID, electronic mail address, Universal Resource Locator or domain name used by you, in the event it is used in a manner which (i) constitutes violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws); (ii) is defamatory, fraudulent, obscene or deceptive; (iii) is intended to threaten, harass or intimidate; (iv) tends to damage the name or reputation of Vivenet, its affiliates and subsidiaries; or (v) interferes with other customers' use and enjoyment of the Services provided by Vivenet.

D. You understand and agree that any attempt to break security, or to access an account which does not belong to you, shall be considered a material breach of this Agreement, and such breach may result in suspension or termination of the Service. You further agree to immediately notify Vivenet of (i) any unauthorized use of your account and/or (ii) any breach, or attempted breach, of security known to you.

10. Force Majeure

Neither Vivenet nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.

11. Cancellation, Termination and Assignment

A. In the event of a ruling, regulation or order issued by a judicial, legislative or regulatory body causes Vivenet to believe that this Agreement and/or the Services provided hereunder, may be in conflict with such rules, regulations and orders, Vivenet may suspend or terminate the Service, or terminate this Agreement, without liability.

B. Vivenet does not refund charges for unused service. In the event you terminate service, you agree that the following cancellation charges shall apply:

for month to month service, the monthly charge for the month in which Service is terminated; or
for service under the "Annual Pricing Plan", the annual charge for the year in which Service is terminated.

C. If you fail to pay any charge when due, including, but not limited to, installation charges or taxes, or if you fail to perform or observe any other material term or condition of this Agreement, or if you provide false or inaccurate information which is required for the provision of the Service or is necessary to allow Vivenet to bill you for the Service, and such condition continues unremedied for thirty days, you shall be in default and Vivenet may suspend or terminate the Service to you.

D. You may not assign your account on the Service to anyone without the express written consent of Vivenet. Upon reasonable notice, Vivenet may assign its rights and obligation under this Agreement.

12. General:

A. This Agreement, and the provision of the Service, may be terminated at any time by either party upon written notice to the other.

B. This Agreement shall be construed in accordance with the Laws of the State of California.

C. You agree and hereby certify that more than ten percent of the use of the Service is interstate (outside the state) in nature.

D. Some jurisdictions do not allow the exclusion of certain warranties, in which case such warranty exclusions may not apply to you.

Revision: 3/9/2000