TERMS AND CONDITIONS OF SERVICE AND ACCEPTABLE USE
Please Note: pbic.net, usws.net, gtdivide.net, qpop.net, and sbwss.com
are all Web sites owned and operated by Sierra Software Services. This document
applies to all services provided in association with any of the above .net
or .com Domain Names.
This Service Agreement Terms and Conditions ("TERMS") is between Sierra
Software Services (PROVIDER) and the user of Internet access
provided by PROVIDER ("USER"). Any use of the accounts provided by PROVIDER
shows that the USER agrees to the terms and conditions stated as follows:
WHEREAS, PROVIDER agrees to provide, and USER agrees to receive, Web Hosting
Services ("HOSTING SERVICES") according to the following terms and conditions:
Important Note: This document is updated often. Please
make a habit of reviewing it from time to time to stay abreast of acceptable
as well as inappropriate uses of your PROVIDER Web Hosting account as well
as our Terms and Conditions. Reports of activity in violation of this policy
may be sent via e-mail to
This document is divided into the following sections:
Acceptable Use and Terms and
Internet Relay Chat
When USER opens a PROVIDER account, USER joins two communities. First is
the community formed by our network and our customers; the second community
is the one made up of all networks and users connected to each other to form
the Internet. Becoming a member of these communities gives USER certain rights
and privileges, but also imposes certain duties and responsibilities. PROVIDER
has established an Acceptable Use Policy in order to make these duties and
responsibilities more clear. This document is intended to provide a general
understanding of PROVIDER's Acceptable Use Policy. The following factors
guide the establishment and enforcement of PROVIDER's usage policies:
Ensure reliable service to PROVIDER customers
Ensure security and privacy of PROVIDER systems and network, as well as the
networks and systems of others
Comply with existing laws
Maintain PROVIDER reputation as a responsible service provider
Encourage responsible use of the Internet and discourage activities which
reduce the usability and value of Internet services
Preserve the value of Internet resources as a conduit for free expression
and exchange of information
Preserve the privacy and security of individual users
PROVIDER intends to provide its customers access to everything the Internet
has to offer. While PROVIDER is firmly committed to the principles of free
speech, certain activities are damaging to the resources of both PROVIDER
and the Internet and cannot be permitted under the guise of free speech.
The resources of PROVIDER and the Internet are limited, and abuse of these
resources by one user has a negative impact on the entire community.
PROVIDER does not routinely monitor the activity of accounts except for
measurements of system utilization and the preparation of billing records.
However, in PROVIDER efforts to promote good citizenship within the Internet
community, PROVIDER will respond appropriately if PROVIDER becomes aware
of inappropriate use of PROVIDER service.
If a PROVIDER account is used to violate the Acceptable Use Policy, PROVIDER
reserves the right to terminate USER service without notice and USER agrees
to indemnify PROVIDER and its affiliates against any claims threatened or
brought by third parties as a result of USER violation of this Acceptable
Use Policy and/or the content of USER website. PROVIDER prefers to advise
customers of inappropriate behavior and any necessary corrective action.
However, flagrant violations of the Acceptable Use Policy will result in
immediate termination of service. PROVIDER failure to enforce this policy,
for whatever reason, shall not be construed as a waiver of our right to do
so at any time.
If USER have any questions regarding this policy, please contact PROVIDER
PROVIDER customers are prohibited from transmitting on or through any of
PROVIDER's services, any material that is, in PROVIDER's sole discretion,
unlawful, obscene, threatening, abusive, defamatory, libelous, or encourages
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any local, state, federal or international law.
In general, USER may NOT use a PROVIDER account:
In a manner which violates any law, regulation, treaty or tariff;
In a manner which violates the rules, regulations and policies of any network,
server, web site, database or service provider that you access through your
In a manner which is defamatory, fraudulent, indecent, offensive or deceptive;
To threaten, harass, abuse or intimidate others;
To damage the name or reputation of PROVIDER, its parent, affiliates and
To break security on any computer network, or to access an account which
does not belong to you; or
In a manner which interferes with other customers' use and enjoyment of the
services provided by PROVIDER.
PROVIDER's services may only be used for lawful purposes. Transmission,
distribution, or storage of any information, data or material in violation
of United States or state regulation or law, or by the common law, is prohibited.
This includes, but is not limited to, material protected by copyright, trademark,
trade secret, or any other statute. PROVIDER's reserves the right to remove
such illegal material from its servers or to immediately terminate your services.
The USER is responsible for keeping his billing data with PROVIDER up-to-date
and accurate. Furnishing false data on any contract or application, including
fraudulent use of credit card numbers, is grounds for immediate termination,
and may subject the offender to civil or criminal liability.
PROVIDER reserves sole discretion to determine whether any use of the service
is a violation of this policy. Guidelines for using USER account follows.
This information is only a guideline, and is not intended to be all-inclusive.
Certain PROVIDER accounts give USER the ability to send and receive electronic
mail. Misuse of electronic mail may result in termination of service. The
following examples are non-exclusive and are provided for USER guidance.
USER may not use accounts to send unsolicited bulk or commercial messages
("spam"). This includes, but is not limited to, bulk mailing of commercial
advertising, informational announcements, charity requests, petitions for
signatures, and political or religious tracts. Such messages may only be
sent to those who have explicitly requested it.
USER may not use accounts to collect responses from unsolicited bulk or
commercial e-mail sent from accounts with other providers.
Forging, altering or removing electronic mail headers is prohibited.
USER may not send numerous copies of the same or substantially similar message,
nor may you send very large messages or files to a recipient, with the intent
to disrupt a server or account ("mail bombing").
USER may not use electronic mail to harass or intimidate others. Harassment,
whether through language, frequency of messages, or size of messages, is
prohibited. Sending a single unwelcome message may be considered harassment.
If a recipient asks to stop receiving e-mail, USER must not send that person
any further messages.
USER may not forward or otherwise propagate chain letters, whether or not
such messages solicit money or other items of value, and whether or not the
recipient wishes to receive such mailings.
PROVIDER accounts may not be used to collect replies to messages sent from
another Internet service provider if those messages violate this Acceptable
Use Policy or the acceptable use policy of the other service provider.
If USER uses the services of another provider to promote a web site hosted
by or through PROVIDER, then the provisions of this Acceptable Use Policy
shall apply to the methods used to promote such site.
Certain PROVIDER accounts give you access to thousands of newsgroups. These
newsgroups allow USER to read and post messages on a variety of topics.
Newsgroups may be moderated or unmoderated. Newsgroups may also have a charter
or a FAQ that describes what subjects are appropriate for each newsgroup.
Misuse of newsgroups may result in the termination of USER service.
PROVIDER provides an uncensored newsfeed. As such, PROVIDER does not control
the content of the newsgroups available to you. PROVIDER believes that decisions
about which newsgroups and messages to read are best left to its customers.
Screening software is available from third parties, and it is the USER's
responsibility to use such tools if desired. PROVIDER is not responsible
for the content of any newsgroup message, whether or not the message was
posted by a PROVIDER customer. Messages posted to newsgroups must comply
with the written charters or FAQs for those newsgroups. Advertisements,
solicitations, or other commercial messages should be posted only in those
newsgroups whose charters or FAQs explicitly permit them. USER is responsible
for determining the policies of a given newsgroup before posting to it. If
USER is unable to find a newsgroup's policy regarding commercial messages,
USER must assume that such messages are not welcome.
USER may not post or cross-post the same or substantially similar message
to more than 5 newsgroups. Continued cross-posting can result in termination
of service and the cancellation of the message.
USER may not post binary files to newsgroups not specifically named for that
purpose. USER may not post messages promoting pyramid schemes, "Make Money
Fast" (MMF) schemes, chain letters, or other schemes to newsgroups. Doing
so will result in immediate termination of service.
USER may not forge or remove header information. This includes attempting
to circumvent the approval process for posting to a moderated newsgroup.
USER may not solicit mail for any address other than your PROVIDER Internet
Service account or service where doing so manifests an intent to harass others.
USER may not post messages for the purpose of threatening, harassing or
USER may not post messages which infringe on personal or property rights
of others (privacy rights or copyrights, for example).
You may not cancel messages other than your own, with the exception of official
newsgroup moderators performing their duties.
PROVIDER does not censor or control content posted to a newsgroup. As a user
of our service, USER is solely responsible for the content that USER publishes.
PROVIDER, upon receiving notification that certain posts violate this policy,
or any state or federal law, or infringe on the trademarks or copyrights
of another, reserves the right to remove such posts from our news server
and to terminate your account.
PROVIDER provides storage space and access for web sites through its Web
Hosting services. In addition, dedicated accounts may provide for the hosting
of web sites. PROVIDER will not routinely monitor the contents of USER web
USER is solely responsible for any information contained on USER web sites.
However, if complaints are received regarding language, content or graphics
contained on USER web sites, PROVIDER may, at its sole discretion, remove
the web site hosted on PROVIDER servers and terminate USER's Web Hosting
service. USER agrees to promptly reimburse PROVIDER for any reasonable expenses
it incurs (including attorney's fees) in defending itself form third party
claims relating to any of the content (whether created by USER, USER customers
or USER's users) contained on USER web sites.
USER may not use USER's web site to publish material which PROVIDER determines,
at its sole discretion, to be unlawful, indecent or objectionable. For purposes
of this policy, "material" refers to all forms of communications including
narrative descriptions, graphics (including photographs, illustrations, images,
drawings, logos), executable programs, video recordings, and audio recordings.
Unlawful content is that which violates any law, statute, treaty, regulation,
or lawful order. This includes, but is not limited to: obscene material;
defamatory, fraudulent or deceptive statements; threatening, intimidating
or harassing statements, or material which violates the privacy rights or
property rights of others (copyrights or trademarks, for example).
Indecent content is that which depicts sexual or excretory activities in
a patently offensive matter as measured by contemporary community standards.
Objectionable content is otherwise legal content with which PROVIDER concludes,
in its sole discretion, it does not want to be associated in order to protect
its reputation and brand image, or to protect its employees, shareholders
Examples of prohibited web site content:
Materials which hold PROVIDER including its affiliates, employees or shareholders
up to public scorn or ridicule.
Materials which encourage the commission of a crime; or which tends to incite
violence; or which tends to degrade any person or group based on sex,
nationality, religion, color, age, marital status, sexual orientation, disability
or political affiliation.
USER is responsible for any misuse of a USER account, even if the inappropriate
activity was committed by a friend, family member, guest or employee. Therefore,
USER must take steps to ensure that others do not gain access to USER account.
In addition, USER may not use USER account to breach security of another
account or attempt to gain unauthorized access to another network or server.
USER must adopt adequate security measures to prevent or minimize unauthorized
use of USER account.
USER may not attempt to circumvent user authentication or security of any
host, network or account ("cracking"). This includes, but is not limited
to, accessing data not intended for USER, logging into or making use of a
server or account USER is not expressly authorized to access, or probing
the security of other networks. Use or distribution of tools designed for
compromising security is prohibited. Examples of these tools include, but
are not limited to, password guessing programs, cracking tools or network
USER may not attempt to interfere with service to any user, host, or network
("denial of service attacks"). This includes, but is not limited to, "flooding"
of networks, deliberate attempts to overload a service, and attempts to "crash"
USER's who violate systems or network security may incur criminal or civil
liability. PROVIDER will cooperate fully with investigations of violations
of systems or network security at other sites, including cooperating with
law enforcement authorities in the investigation of suspected criminal
USER is responsible for ensuring that the services obtained from PROVIDER
are used in an appropriate manner by USER's customers and their users. Therefore,
USER must take steps to manage the use of the services obtained from PROVIDER
in such a way that network abuse is minimized. USER must also make
information publicly available about how to contact USER, and USER must respond
in a timely manner to complaints concerning misuse of the services obtained
from PROVIDER. Failure to responsibly manage the use of the services obtained
from PROVIDER may be cause for termination of services to USER.
USER must designate one or more individuals ("Contacts") to be responsible
for every host, IP network or subnet connected to the Internet through the
use of the services. USER must provide Contact names, phone numbers, and
postal and e-mail addresses ("Contact Information") to any and all appropriate
Domain Name Registrars prior to the initial network connection of your service.
You must keep Contact Information updated and accurate at all times. Changes
in the Contact Information must be sent to the appropriate Domain Name Registrars
in a timely manner.
Contacts must have the authority, access and tools necessary to configure,
operate and control access to USER systems. For important timesharing hosts,
primary domain name servers and mail relays or gateways, Contacts must be
accessible to PROVIDER via telephone 24 hours a day, 7 days a week. Every
customer who allows third party access to the services provided by PROVIDER,
whether such third parties are employees, users or customers, must maintain
a postmaster address for the receipt of complaints by e-mail. Messages delivered
to the postmaster address must be reviewed and handled in a timely manner.
PROVIDER accounts operate on shared resources. Excessive use or abuse of
these shared network resources by one customer may have a negative impact
on all other customers. Misuse of network resources in a manner which impairs
network performance is prohibited by this policy and may result in termination
of USER account.
USER is prohibited from excessive consumption of resources, including CPU
time, memory, disk space and session time. USER may not use resource-intensive
programs which negatively impact other customers or the performance of PROVIDER
systems or networks. PROVIDER reserves the right to terminate or limit such
Internet Relay Chat
Although PROVIDER does not offer software or technical support for Internet
Relay Chat (IRC), subscribers to our dial-up service may use their account
to connect to IRC servers and networks maintained by third parties. Please
remember that you are a guest when you make use of these facilities. It is
particularly important that you do not engage in activities which might interfere
with other customers' access to IRC.
USER may not use IRC scripts or programs that interfere with or deny service
to other users on any other server, host, network or channel.
USER may not engage in activities which harass other users. This includes,
but is not limited to, "flooding" (rapidly entering text with the intent
to disrupt service), "flashing" (disrupting terminal emulation), "takeovers"
(improper seizing and abuse of operator privileges), attempting to send private
messages to those who do not wish to receive them, attempting to return to
a channel after being banned from it, and other disruptive behaviors.
USER may not attempt to impersonate other users. The use of nicknames does
not constitute impersonation.
You may run "clones" (multiple simultaneous IRC connections) and "robots"
only as permitted by the host IRC server.
Any activity on our network that is a violation of any state or federal law
is a violation of this policy and will result in immediate termination of
service. Prohibited activities include, but are not limited to:
Transmitting obscene materials or child pornography
Intentionally spreading or threatening to spread computer viruses
Gaining or attempting to gain unauthorized access to any network, including
PROVIDER's private network infrastructure
Accessing or attempting to access information not intended for USER
Transmitting pirated software
Conducting or participating in illegal gambling
Soliciting for pyramid and other illegal schemes.
PROVIDER does not permit any site that contains: (i) images (including on
banner ads) of nude models that appear to be under the age of 18 (in PROVIDER's
sole judgment), (ii) sexually explicit images (including on banner ads) of
models that appear to be under the age of 18 (in PROVIDER's sole judgment);
or (iii) sites containing language promoting child pornography together with
any sexually explicit or nude images. As required by federal law in the United
States, PROVIDER will forward all offenders of this policy to the appropriate
PROVIDER has a policy to respect and protect the privacy of its customers
and their information that is stored with PROVIDER. PROVIDER will only access
and disclose information as necessary to comply with applicable laws and
government requests, to operate or maintain its systems, or to protect itself
or its customers.
Terms and Conditions
Sierra Software Services Terms & Conditions Agreement
1. Term and Payment for Services
2. Use of Services
4. Intellectual Property Rights
5. Warranty; Warranty Disclaimer
6. Limitation and Exclusion of Liability
This Services Agreement ("Agreement") governs your purchase and use, in any
manner, of all services provided by PROVIDER and any of its affiliates (the
USER must accept the terms of this Agreement in order to use the Services.
NOTWITHSTANDING, BY USING THE SERVICES, USER ACKNOWLEDGES THAT USER HAS READ
THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED
HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.
PROVIDER reserves the right to change or modify any of the terms and conditions
contained in this Agreement, any Addendums and any policy or guideline
incorporated by reference at any time and from time to time in its sole
discretion, and to determine whether and when any such changes apply to both
existing or future customers. Any changes or modification will be effective
upon posting of the revisions on the PROVIDER Web site (the "Site"). USER's
continued use of Services following PROVIDER's posting of any changes or
modifications will constitute your acceptance of such changes or modifications.
1. Term and Payment for Services
1.1. Term: This Agreement shall be for an "Initial Term" as chosen by USER
in the Order Form located on this Site at the time USER registers for the
Services. This Agreement will be automatically renewed (the "Renewal Term")
at the end of the Initial Term for the same period as the Initial Term unless
USER provides PROVIDER with notice of termination thirty (30) days prior
to the end of the Initial Term or the Renewal Term. USER must provide PROVIDER
with USER notice of termination by clicking on the "Cancel Service" button
located on the Site or as otherwise provided by this Agreement. Upon clicking
on the "Cancel Service" button, USER will be asked to provide PROVIDER with
sufficient customer identification information so that PROVIDER may properly
identify USER and USER account. Any notice of termination will be effective
following thirty (30) days after PROVIDER's receipt thereof.
1.2. Termination Policy: If USER terminates receipt of the Services prior
to the end of the Initial Term or the Renewal Term, whichever is then applicable,
(a) PROVIDER will not refund to USER any fees paid in advance of such termination
and (b) USER shall be required to pay 100% of PROVIDER's standard monthly
charge for each month remaining in the term, unless otherwise expressly provided
in this Agreement. Notwithstanding the foregoing, if USER terminates receipt
of Shared Hosting Services prior to the end of the first thirty (30) days
of the Initial Term, USER is entitled to a refund of the fees USER paid in
advance for the monthly Services, not including any set-up fees. USER termination
request or notice must be submitted to PROVIDER in the manner described in
Section 1.1. PROVIDER may terminate this Agreement at any time and for any
reason by providing to USER written notice thirty (30) days prior to the
date of termination. If PROVIDER terminates this Agreement, PROVIDER will
refund to you the pro-rata portion of pre-paid fees attributable to Services
(excluding set-up fees) not yet rendered as of the termination date unless
otherwise expressly provided in this Agreement.
1.3 Default and Cure: In the event that either party hereto defaults in the
performance of any of its material duties or obligations under this Agreement,
including failure to make any payments due under this Agreement, and such
default is not cured within five (5) days after written notice is given to
the defaulting party specifying the default, then the party not in default,
after given written notice thereof to the defaulting party, may terminate
1.4. Charges: USER agrees to pay for all charges attributable to USER's use
of the Services at the then current PROVIDER prices, which shall be exclusive
of any applicable taxes. USER is responsible for the payment of all federal,
state, and local sales, use, value added, excise, duty and any other taxes
assessed with respect to the Services, other than taxes based on PROVIDER's
1.5. Payment of all charges for Services must be paid in advance according
to the then current prices applicable to the Services. Upon entering this
Agreement, USER must choose to pay either by direct charge to a credit or
debit card, or receive an invoice and submit subsequent payment. If USER
chooses to pay by credit or debit card upon registering for the Services,
USER thereby authorizes PROVIDER to charge USER's credit or debit card to
pay for any charges that may apply to USER account. USER agrees that PROVIDER
may accumulate any supplemental charges, incurred by USER in their use of
the Services ("Supplemental Charges") until such charges exceed $20 and then
charge USER's account. USER must notify PROVIDER of any changes to
USER's card account (including, without limitation, applicable account number
or cancellation or expiration of the account), USER's billing address, or
any information that may prohibit PROVIDER from charging USER's account.
If USER chooses to be invoiced upon registration for Services, PROVIDER will
invoice USER for the Services applicable to the period for which USER has
registered for the Services. PROVIDER may also create periodic invoices for
any applicable Supplemental Charges associated with use of the Services.
PROVIDER will send you a statement reflecting the accumulated invoices. USER
agrees to pay to PROVIDER the amount indicated in each invoice by the due
date reflected on that invoice. If USER fails to pay any fees and taxes by
the applicable due date for credit card or invoice payments, late charges
of the lesser of one and one-half per cent (1.5%) per month or the maximum
allowable under applicable law but at no time less than $15 shall also become
payable by USER to PROVIDER. In addition, USER failure to fully pay any fees
and taxes within five (5) days after the applicable due date will be deemed
a material breach of this Agreement, and PROVIDER may, in addition to any
other remedy it may have: (i) suspend its performance of the Services and/or
terminate this Agreement; and/or (ii) take possession and ownership of any
of USER's property (including any and all intellectual property) in PROVIDER's
possession at the time of such non-payment and liquidate such property in
any reasonable manner in partial or full satisfaction of any unpaid amounts.
USER agrees to sign any documents to facilitate such a transfer of USER's
property and, in the event that PROVIDER is unable for any reason to secure
USER's signature to any document required for such transfer, USER hereby
irrevocably designates and appoints PROVIDER and its authorized officers
and agents as USER's agent and attorney-in-fact to act on your behalf to
execute such documents. Any such suspension or termination of the Services
would not relieve USER from paying past due fees plus interest. In the event
of collection enforcement, USER will be liable for any costs associated with
such collection, including, without limitation, reasonable attorneys' fees,
court costs and collection agency fees. All charges are considered valid
unless disputed in writing with sixty(60) days of the billing date. Adjustments
will not be made for charges that are over 60 days old. Delinquent accounts
may be suspended or cancelled at PROVIDER's sole discretion; however charges
will continue to accrue until the account is cancelled.
2. Use of Services
2.1. Applicable Use Policy: The PROVIDER Acceptable Use Policy (the "Usage
Policy") govern the general policies and procedures for use of the Services.
The Usage Policy is posted on PROVIDER's Web site (or such other location
as PROVIDER may specify) and may be updated from time-to-time. USER SHOULD
CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, USER AGREES TO BE
BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. SIERRA SOFTWARE
SERVICES RESERVES THE RIGHT TO TERMINATE USER'S ACCOUNT FOR ANY VIOLATION
OF THE USAGE POLICY OR THIS AGREEMENT.
2.2. Material and Product Requirements: Unless we have agreed otherwise in
a separate agreement, USER must ensure that all material and data placed
on PROVIDER's equipment is in a condition that is "server-ready," which is
in a form requiring no additional manipulation by PROVIDER. PROVIDER will
make no effort to validate any of this information for content, correctness
or usability. If USER's material is not "server-ready", PROVIDER has the
option at any time to reject this material. PROVIDER will notify you of its
refusal of the material and afford USER the opportunity to amend or modify
the material to satisfy the needs and/or requirements of PROVIDER. Use of
the Services requires a certain level of knowledge in the use of Internet
languages, protocols and software. This level of knowledge varies depending
on the anticipated use and desired content of USER Web site. USER must have
the necessary knowledge to create and maintain a Web site. It is not PROVIDER's
responsibility to provide this knowledge or customer support outside of the
Services agreed to by USER and PROVIDER.
2.3. Bandwidth and Storage Usage: USER agrees that use of the Services under
this Agreement will not exceed the bandwidth and storage usage limits set
out. If USER uses any bandwidth or storage space in excess of the agreed
upon number of megabytes per month, USER agrees to pay the associated additional
3.1. Investigation of Violations: PROVIDER may investigate any reported or
suspected violation of this Agreement, its policies or any complaints and
take any action that it deems appropriate and reasonable under the circumstance
to protect its systems, facilities, customers and/or third parties. PROVIDER
will not access or review the contents of any e-mail or similar stored electronic
communications except as required or permitted by applicable law or legal
3.2. Actions: PROVIDER reserves the right and has absolute discretion to
restrict or remove from its servers any content that violates this Agreement
or related policies or guidelines, or is otherwise objectionable or potentially
infringing on any third party's rights or potentially in violation of any
laws. If PROVIDER becomes aware of any possible violation by USER of this
Agreement, any related policies or guidelines, third party rights or laws,
PROVIDER may immediately take corrective action, including, but not limited
to, (a) issuing warnings, (b) suspending or terminating the Service, (c)
restricting or prohibiting any and all uses of content hosted on PROVIDER's
systems, and/or (d) disabling or removing any hypertext links to third party
Web sites, any of USER's content distributed or made available for distribution
via the Services, or other content not supplied by PROVIDER which, in PROVIDER's
sole discretion, may violate or infringe any law or third-party rights or
which otherwise exposes or potentially exposes PROVIDER to civil or criminal
liability or public ridicule. It is PROVIDER's policy to terminate repeat
infringers. PROVIDER's right to take corrective action, however, does not
obligate PROVIDER to monitor or exert editorial control over the information
made available for distribution via the Services. If PROVIDER takes corrective
action due to such possible violation, PROVIDER shall not be obligated to
refund to you any fees paid in advance of such corrective action.
3.3. Disclosure Rights: To comply with applicable laws and lawful governmental
requests, to protect PROVIDER's systems and customers, or to ensure the integrity
and operation of PROVIDER's business and systems, PROVIDER may access and
disclose any information it considers necessary or appropriate, including,
without limitation, user profile information (i.e., name, e-mail address,
etc.), IP addressing and traffic information, usage history, and content
residing on PROVIDER's servers and systems. PROVIDER also reserves the right
to report any activity that it suspects violates any law or regulation to
appropriate law enforcement officials, regulators, or other appropriate third
4. Intellectual Property Rights
4.1. Your License Grant to PROVIDER: You hereby grant to PROVIDER a
non-exclusive, worldwide, and royalty-free license for the Initial Term and
any Renewal Term to use USER's content as necessary for the purposes of rendering
and operating the Services to USER under this Agreement. USER expressly (a)
grants to PROVIDER a license to cache materials distributed or made available
for distribution via the Services, including content supplied by third parties,
and (b) agrees that such caching is not an infringement of any of your
intellectual property rights or any third party's intellectual property rights.
4.2. PROVIDER Materials and Intellectual Property: All materials, including
but not limited to any computer software (in object code and source code
form), data or information developed or provided by PROVIDER or its suppliers
or agents pursuant to this Agreement, and any know-how, methodologies, equipment,
or processes used by PROVIDER to provide the Services to USER, including,
without limitation, all copyrights, trademarks, patents, trade secrets and
other proprietary rights are and will remain the sole and exclusive property
of PROVIDER or its suppliers, including but not limited to any software programs,
inventions, products and/or technology innovations and methodologies utilized,
developed, or disclosed by PROVIDER during the term of this Agreement.
Unauthorized copying, reverse engineering, decompiling, and creating derivative
works based on the any such software is expressly forbidden except as permitted
in this Agreement. USER may be held legally responsible for violation of
any patent rights, copyright or trade secret rights that is caused or encouraged
by failure to abide by the terms of this Agreement.
4.3. Trademarks: USER hereby grants to PROVIDER a limited right to use
USER's trademarks, if any, for the limited purpose of permitting PROVIDER
to fulfill its duties under this Agreement. This is not a trademark license
and no other rights relating to the trademarks are granted by this Agreement.
Specifically, but without limitation, the rights granted by this Agreement
do not include the right to sublicense use of your trademarks or to use USER's
trademarks with any other products or services outside the scope of the Services
provided under this Agreement. The limited trademark use rights granted under
this section terminate upon termination of this Agreement.
5. Warranty; Warranty Disclaimer
5.1. Customer and/or Third Party Acts: PROVIDER is not responsible in any
manner for any nonconforming Services to the extent caused by USER or its
customers. In addition, PROVIDER is not responsible for loss or corruption
of data in transmission, or for failure to send or receive data due to events
beyond PROVIDER's reasonable control.
5.2. No Express or Implied Warranty: ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED
BY SIERRA SOFTWARE SERVICES UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. USER ACKNOWLEDGEs
AND AGREEs THAT SIERRA SOFTEARE SERVICES EXERCISES NO CONTROL OVER, AND ACCEPTS
NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH SIERRA
SOFTWARE SERVICES COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE
INTERNET. SIERRA SOFTWARE SERVICES DOES NOT WARRANT THAT THE OPERATION OF
THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND
DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET
OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE
PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING,
WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION
SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SIERRA SOFTWARE
SERVICES DOES NOT MAKE AND HEREBY DISCLAIMS, AND USER HEREBY WAIVES ALL RELIANCE
ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING
THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY,
AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK
5.3 Your Warranties and Representations to PROVIDER: USER warrants, represents,
and covenants to PROVIDER that (a) USER is at least eighteen (18) years of
age or is a duly organized and validly existing entity; (b) USER possesses
the legal right and ability to enter into this Agreement; (c) USER will use
the Services only for lawful purposes and in accordance with this Agreement
and all applicable policies and guidelines; (d) USER will be financially
responsible for the use of USER's account; (e) USER has acquired or will
acquire all authorization(s) necessary for hypertext links to third-party
Web sites or other content; (f) USER has verified or will verify the accuracy
of materials distributed or made available for distribution via the Services,
including, without limitation, content, descriptive claims, warranties,
guarantees, nature of business, and address where business is conducted,
and (g) USER's content and/or any software that USER installs or provides
does not and will not infringe or violate any right of any third party (including
any intellectual property rights) or violate any applicable law, regulation
6. Limitation and Exclusion of Liability
6.1. Limitations: IN NO EVENT SHALL SIERRA SOFTWARE SERVICES HAVE ANY LIABILITY
WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION
OF INFORMATION PROVIDED TO SIERRA SOFTWARE SERVICES, DISTRIBUTED OR MADE
AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. SIERRA SOFTWARE SERVICES SHALL
HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF SIERRA SOFTWARE SERVICES
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY
OF SIERRA SOFTWARE SERVICES TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION
SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO SIERRA SOFTWARE SERVICES
BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING
THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES
OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND
OTHER TORTS. THE FEES FOR THE SERVICES SET BY SIERRA SOFTWARE SERVICES
UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION
OF RISK. ACCORDINGLY, USER HEREBY RELEASES SIERRA SOFTWARE SERVICES FROM
ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION
STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH
STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
6.2. Interruption of Service: user hereby acknowledges and agrees that PROVIDER
will not be liable for any temporary delay, outages or interruptions of the
Services. Further, PROVIDER shall not be liable for any delay or failure
to perform its obligations under this Agreement, where such delay or failure
results from any act of God or other cause beyond its reasonable control
(including, without limitation, any mechanical, electronic, communications
or third-party supplier failure).
6.3. Maintenance: You hereby acknowledge and agree that PROVIDER reserves
the right to temporarily suspend services for the purposes of maintaining,
repairing, or upgrading its systems and network. PROVIDER will use best efforts
to notify USER of pending maintenance however at no time is under any obligation
to inform USER of such maintenance.
7. Indemnification: USER will defend, indemnify and hold harmless PROVIDER
and its officers, directors, shareholders, employees, consultants, agents,
affiliates and suppliers (an "Indemnitee") from any and all threatened or
actual claims, demands, causes of action, suits, proceedings (formal or
informal), losses, damages, fines, penalties, liabilities, costs and expenses
of any nature, including attorneys' fees and court costs, sustained or incurred
by or asserted against any Indemnitee by any person, firm, corporation,
governmental authority, partnership or other entity by reason of or arising
out of or relating to: (i) USER's violation or breach of any term, condition,
representation or warranty of this Agreement or any applicable policy or
guideline; (ii) USER's conduct, including but not limited to USER's negligence,
gross negligence, or willful misconduct; (iii) USER's use of the Services,
including any improper or illegal uses; (iv) any claim by a former employee
of USER whose employment has been or may be terminated in connection with
or as a result of the execution of this Agreement and performance of the
Services by PROVIDER; or (v) any claim relating to USER's services or products,
or USER's installation and/or use of any third-party software, including
but not limited to advertising, product liability claims or infringement
of any trademark, copyright, patent, trade secrets or non-proprietary right
of a third party (including, without limitation, defamation, libel, or violation
of privacy or publicity).
8.1 Confidentiality: The parties each agree that all Confidential Information
(as defined below) communicated to it by the other is done so in confidence
and will be used only for the purposes of this Agreement and will not be
used to compete with the other party or disclosed to any third party without
the prior written consent of the other party except as permitted under this
Agreement. "Confidential Information" means all information in any form,
including, without limitation, printed or verbal communications and information
stored in printed, optical or electromagnetic format, which relates to the
Services; or computer, data processing or electronic commerce programs and
software; electronic data processing applications, routines, subroutines,
techniques or systems; information which incorporates or is based upon
proprietary information of either party; or information concerning business
or financial affairs, product pricing, financial conditions or strategies,
marketing, technical systems of either party; or any information concerning
customers or vendors of either party; or any data exchange between a party
and any customers or vendors. Exceptions to Confidential Information include
(1) information in the public domain; (2) information developed independently
by a party without reference to information disclosed under this Agreement;
or (3) information received from a third party without restriction and/or
breach of this or a similar Agreement. It is not a violation of this provision
to disclose Confidential Information in compliance with any legal, accounting
or regulatory requirement beyond the control of either Party or, but in such
case, prior to disclosure, the disclosing Party shall give written notice
to the other Party to permit that Party an opportunity to challenge such
disclosure. If either Party is subpoenaed, such Party shall give written
notice to the other Party to permit that Party an opportunity to challenge
the disclosure of Confidential Information. Upon the termination of this
Agreement and upon written request of the disclosing Party, each Party shall
promptly return all Confidential Information of the other Party. This provision
shall survive the termination of this Agreement for two (2) years.
8.2. Notices: All notices, reports, requests, or other communications given
pursuant to this Agreement shall be made in writing, shall be delivered by
hand delivery, overnight courier service, fax, or electronic mail, shall
be deemed to have been duly given when delivered.
8.3. Choice of Law and Forum THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS
OF THE UNITED STATES AND THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO RULES
GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT
IN THE FEDERAL OR STATE COURTS LOCATED IN CALIFORNIA, AND USER IRREVOCABLY
CONSENTS TO THE JURISDICTION OF SUCH COURTS.
8.4. Entire Agreement This Agreement and all policies and guidelines incorporated
in this Agreement by reference constitutes the entire Agreement of the parties
and may not be modified or altered orally but only by an agreement in writing
signed by both parties.
8.5. No Fiduciary Relationship; No Third-Party Beneficiaries: PROVIDER is
not the agent, fiduciary, trustee or other representative of USER. Nothing
expressed or mentioned in or implied from this Agreement is intended or shall
be construed to give to any person other than the parties hereto any legal
or equitable right, remedy or claim under or in respect to this Agreement.
This Agreement and all of the representations, warranties, covenants, conditions
and provisions hereof are intended to be and are for the sole and exclusive
benefit of the parties hereto.
8.6. Assignments: USER may not transfer or assign your rights, duties, or
obligations under this Agreement without PROVIDER's prior written consent.
PROVIDER may assign its rights and obligations under this Agreement and may
utilize affiliate and/or agents in performing its duties and exercising its
rights under this Agreement, without USER's consent. Subject to that restriction,
this Agreement will be binding on, inure to the benefit of, and be enforceable
against the parties and their respective successors and assignees.
8.7. No Waiver: PROVIDER's failure to enforce the strict performance of any
provision of this Agreement will not constitute a waiver of PROVIDER's right
to subsequently enforce such provision or any other provisions under this
8.8. Severability: If any provision of this Agreement is deemed illegal,
invalid, void or otherwise unenforceable in whole or in part, that provision
shall be severed or shall be enforced only to the extent legally permitted,
and the remainder of the provision and the Agreement shall remain in full
force and effect. If any provision of this Agreement is deemed to be invalid,
void or unenforceable only with respect to a particular application, such
term or provision shall remain in full force and effect with respect to all
8.9. Survival: All provisions of this Agreement relating to USER's warranties,
intellectual property rights, limitation and exclusion of liability, USER's
indemnification obligations and payment obligations shall survive the termination
or expiration of this Agreement.