1. Services Provided. CBC
Communications Corp.operates an online, computerized interactive information,
communication, and transaction system (the "System") which provides access to
the Internet. The term "Customer" shall, when the context permits, include
Customer's officers, employees, agents and contractors2. No Interference. Customer shall not restrict or inhibit any
user of the System, or of another Internet service provider or online service provider,
from using and enjoying the System or the Internet. Customer shall not abuse or
fraudulently use the System or the Internet in any way.
3. Content. Customer shall not post or transmit any
unlawful, unsolicited, threatening, abusive, libelous, defamatory, profane or illegal
material, or material containing blatant expressions of bigotry, racism or hate, 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 or regulation, including without limitation United States export control
laws and regulations.
4. No Harmful Transmissions. Customer shall not post
or transmit any information or software which contains a virus, worm, cancelbot, trojan
horse or other harmful component.
5. Protected Materials. Customer shall not upload,
post, publish, transmit, reproduce, or distribute in any way, information, software or
other material obtained through the System which is protected by copyright or other
proprietary right or derivative works with respect thereto, without obtaining permission
of the copyright owner or rightholder and shall not upload, post, publish, reproduce,
transmit or distribute in any way any component of the System itself or derivative works
with respect thereto.
6. Right to Monitor and Control Content. CBC
Communications Corp.has no obligation to monitor information or material on the System.
However, Customer agrees that CBC Communications Corp has the right to monitor the System
electronically from time to time and to disclose any information as necessary to satisfy
any law, regulation or other governmental request, to operate the System properly, or to
protect itself or its users. CBC Communications Corp.will not intentionally monitor or
disclose any private electronic-mail messages unless required by law. CBC Communications
Corp.reserves the right (but is not obligated) to refuse to post or to remove any
information or materials, in whole or in part, that, in CBC Communications Corp.'s sole
discretion, are unacceptable, undesirable, or in violation of this Agreement.
7. DISCLAIMER OF WARRANTY. CUSTOMER EXPRESSLY AGREES
THAT USE OF THE SERVICES AND THE SYSTEM AND THE MATERIAL THEREIN AND STORAGE OF
INFORMATION WHICH APPEARS IN THE SYSTEM IS AT CUSTOMER'S SOLE RISK. NEITHER CBC
COMMUNICATIONS CORP. NOR ANY OF ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS OR VENDORS
WARRANTS THAT THE SERVICES OR THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY
INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SYSTEM IS FREE OF VIRUSES,
WORMS, CANCELBOTS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS; NOR DOES CBC COMMUNICATIONS
CORP. OR ANY OF ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS OR VENDORS MAKE ANY
WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE SERVICES OR USE OF THE SYSTEM. THE
SERVICES AND THE SYSTEM ARE 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 OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE. NO ADVICE OR INFORMATION GIVEN BY CBC
COMMUNICATIONS CORP., ITS CONTRACTORS, AGENTS, AFFILIATES OR VENDORS OR THEIR RESPECTIVE
EMPLOYEES SHALL CREATE A WARRANTY. NEITHER CBC COMMUNICATIONS CORP. NOR ITS AFFILIATES,
CONTRACTORS, AGENTS, VENDORS OR THEIR RESPECTIVE EMPLOYEES MAKES ANY EXPRESS OR IMPLIED
WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH REGARD TO ANY MERCHANDISE,
INFORMATION OR SERVICE PROVIDED BY A THIRD PARTY THROUGH THE SYSTEM OR THE INTERNET. IT IS
SOLELY CUSTOMER'S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF
OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF
ALL MERCHANDISE PROVIDED BY THIRD PARTIES THROUGH THE SYSTEM OR THE INTERNET.
8. LIMITATION OF LIABILITY. NEITHER CBC
COMMUNICATIONS CORP. NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE
SERVICES OR OPERATING THE SYSTEM SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF
PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR
TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR
UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, OR OTHERWISE CAUSED OR ALLEGEDLY
CAUSED BY USE OF THE SYSTEM OR INABILITY TO USE THE SYSTEM, WHETHER FOR BREACH OF
CONTRACT, BREACH OF WARRANTY, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF
ACTION. NEITHER CBC COMMUNICATIONS CORP. NOR ITS AFFILIATES, CONTRACTORS, AGENTS, VENDORS
OR THEIR RESPECTIVE EMPLOYEES SHALL BE LIABLE IN ANY WAY FOR ANY DAMAGES THAT RESULT IN
ANY WAY FROM CUSTOMER'S RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE
PROVIDED ON OR THROUGH THE SYSTEM OR THE INTERNET BY THIRD PARTIES. THE PROVISIONS OF THIS
SECTION 8 WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT. CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY FOR ANY CAUSE OF ACTION BASED ON THE SUBJECT MATTER OF THIS AGREEMENT IS TO
TERMINATE THIS AGREEMENT EFFECTIVE IMMEDIATELY.
9. Third Party Products and Services. Customer is
responsible for providing equipment and services necessary to utilize the System except as
set forth in this Agreement. CBC Communications Corp.shall provide only the Services set
forth in this Agreement and related Business Order Form(s), and CBC Communications Corp.is
not responsible in any way for information, products, or services provided by third
parties, even if advertised or made available through the System or the Internet. Customer
agrees to promptly pay any third party vendor for any products or services obtained
through the System or the Internet, and to abide by the terms of any agreements Customer
enters into through the System or the Internet.
10. Indemnity. Customer agrees to defend, indemnify
and hold CBC Communications Corp., its affiliates, contractors, agents, vendors and their
respective employees harmless from any and all liabilities, costs and expenses, including
reasonable attorneys' fees, related to or arising from: (a) any violation of this
Agreement by Customer, (b) the use of the System or the Internet or the placement or
transmission of any message, information, software or other materials on the System or the
Internet by Customer, (c) negligent acts or omissions of Customer in connection with the
construction, installation, maintenance, presence, use or removal of systems, channels or
terminal equipment or software not provided by CBC Communications Corp.which are connected
or are to be connected to the System; and (d) claims for infringement of patents arising
from the use of equipment and software, apparatus and systems not provided by CBC
Communications Corp.in connection with the Services and the System.
11. Right to Restrict Access. CBC Communications
Corp.may deny Customer access to all or part of the System without notice if Customer
engages in any conduct or activities that CBC Communications Corp.in its sole discretion
believes violates any of the terms and conditions in this Agreement. If CBC Communications
Corp.denies Customer access to the System because of such a violation, the Customer shall
have no right (1) to access through CBC Communications Corp.any materials stored on the
System or the Internet, (2) to obtain any credit(s) otherwise due to Customer, and such
credit(s) will be forfeited, (3) to access third party services, merchandise or
information on the System or the Internet through CBC Communications Corp., and CBC
Communications Corp.shall have no obligation to notify any third-party providers of
services, merchandise or information nor any responsibility for any consequences resulting
from lack of notification.
12. Security. Access to the System, the Internet, and
to certain online transactions involves the use of identification numbers, passwords,
charge or debit accounts or other individualized nonpublic information ("Private
Documentation"). Customer shall use its best efforts to prevent unauthorized use of
the System or of any Private Documentation, and shall promptly report to CBC
Communications Corp.any suspected unauthorized use or other breach of security. Customer
shall be responsible for any unauthorized use of its identification numbers or passwords
until CBC Communications Corp. receives written notice of a breach of security and a
request to block further access for such numbers and passwords. CBC Communications
Corp.shall not be liable for any unauthorized use of charge, debit or other credit
accounts.
13. Protection of Software. CBC Communications
Corp.may provide to Customer certain software, including third-party software, for use
with the System. All CBC Communications Corp.software provided to Customer, and each
revised version thereof, is licensed to Customer only for use in connecting to and using
the System. Use or copying for any other purpose is prohibited and is a breach of this
Agreement. If Customer receives such CBC Communications Corp.software, Customer will be
subject to the terms and conditions set forth in an end user agreement, which is attached
hereto and is hereby expressly acknowledged and accepted by Customer. The CBC
Communications Corp.software files remain the property of CBC Communications Corp.or its
vendors at all times. This license to use CBC Communications Corp. software will terminate
upon termination of this Agreement. At that time the Customer must return the CBC
Communications Corp.software to CBC Communications Corp.or destroy it. CBC Communications
Corp., or third parties, may provide Customer with additional software that may be used by
Customer, subject to the terms of applicable licenses. Customer agrees to abide by the
terms of all such software licenses.
14. Term and Termination. This Agreement shall remain
in effect for a period of 12 months following the Effective Date set forth below, and
shall be automatically renewed for successive one year periods, unless Customer gives
written notice of cancellation within 30 days following the end of any one year period.
CBC Communications Corp.shall have the right to terminate this Agreement immediately in
the event of a breach of any of its terms by Customer. Either party may terminate the
Agreement without cause upon giving 90 days written notice to the other party.
15. Payment. In consideration of the Services,
Customer agrees to pay the agreed upon fees. CBC Communications Corp. will invoice
Customer for the Services on a monthly basis, and all amounts due, unless otherwise
specified by CBC Communications Corp., are due and payable 30 days from the date of
invoice. Setup fees are due prior to commencement of services. Amounts not paid when due
will bear a late payment charge of 1.5 percent per month or the maximum legal rate,
whichever is less.
16. Entire Agreement; Guidelines. All
prior or contemporaneous agreements, contracts, promises, representations, if any, between
the parties or their representatives related to the subject matter of this Agreement are
merged into this Agreement and the associated Business Order Form(s). These terms and
conditions, along with any operating rules or guidelines published over the System by CBC
Communications Corp., constitute the entire agreement between CBC Communications Corp.and
Customer with respect to the Services. No amendment to this Agreement shall be effective
unless acknowledged in writing by CBC Communications Corp. Customer agrees to comply with
CBC Communications Corp.'s operating rules and guidelines, which may be amended from time
to time at CBC Communications Corp.'s sole discretion.
17. Governing Law; Jurisdiction and Venue. This
Agreement shall be governed by, and construed in accordance with, the laws of the State of
California, exclusive of choice of law rules. VENUE FOR ANY ACTION ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL BE IN SONOMA COUNTY, CALIFORNIA. THE PARTIES EACH
HEREBY CONSENT TO THE JURISDICTION AND VENUE IN SONOMA COUNTY AND WAIVE ANY OBJECTIONS TO
SUCH JURISDICTION AND VENUE.
18. Enforceability. If any portion of this Agreement
is wholly or partially unenforceable, for any reason, such un-enforceability shall not
affect the balance hereof.
19. Assignment. Customer may not assign its rights or
obligations under this Agreement without the prior written consent of CBC Communications
Corp., which consent shall not be unreasonably withheld.
20. No Waiver. CBC Communications Corp.'s failure to
insist upon or enforce any provision of this agreement shall not be construed as a waiver
of any provision or right.
21. Written Agreement. This Agreement (and any
amendments hereto) represent a binding written contract, whether executed by each party on
paper or accepted by electronic communication.

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