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[FOR NON-GOVERNMENTAL SUBSCRIPTIONS ONLY]
SUBSCRIBER AGREEMENT]
1. GENERAL.
This Subscriber Agreement (the "Agreement") sets forth
the terms and conditions which apply to the use of the Services (as hereinafter
defined) provided by VSAT Systems, LLC, an Ohio limited liability company ("VSAT”),
to Subscriber. An online version of this Agreement may be accessed at http://www.vsat-systems.com/subscriber-agreement.html.
2. SERVICES.
2.1. VSAT will make available to Subscriber, subject to the terms, conditions
and obligations contained herein, one or more of the following, based upon
the selections made by Subscriber in the Customer Order Form (the “Order
Form”): two-way satellite broadcast/receive data services system which
may include: a firewall; VPN; and various other services which may be made
available from time to time by VSAT (collectively, the "Services").
2.2 Subscriber will also be bound by the terms of the Order Form, the Terms
of Use (as hereinafter defined) and on the web site (www.vsat-systems.com)
(the "Web Site"), copies of which are attached hereto as Exhibit
A, and incorporated herein by reference.
2.3 Term. Unless otherwise stated, VSAT will provide the Services to Subscriber
for a period of three years (the "Initial Term"). After the Initial
Term, VSAT will provide the Services to Subscriber on a month to month basis,
unless earlier terminated in accordance with the terms of this Agreement.
3. MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION.
3.1 Modification of this Agreement. Upon 30 days prior notice, VSAT may add, modify or delete any provision of this Agreement, any exhibit attached hereto, the Website and the VSAT Terms of Use and Acceptable Use Policy attached hereto as Exhibit B and incorporated herein by reference (the "Terms of Use"), including, without limitation, those related to pricing. Neither the course of conduct between the parties nor trade practices shall act to modify the provisions of this Agreement, the Order Form, the Website or the Terms of Use.
3.2 Modification of the Services. Upon 30 days prior notice, VSAT may upgrade, change, discontinue, augment, or revise any aspect or feature of the Services including, without limitation, content, access to support services, publications, equipment, system requirements and any other products or services ancillary to the Services or Subscriber's subscription to the Services.
3.3 Termination by Subscriber. Subscriber may cancel this Agreement at any time upon 90 days prior written notice. If Subscriber does not terminate the Agreement in accordance with the terms and conditions specified herein, Subscriber will continue to be liable under this Agreement for all fees and charges until such time as the Agreement has been properly terminated pursuant to the terms of this Agreement, and VSAT has acknowledged the termination in writing. In the event of termination by either party, Subscriber shall immediately pay VSAT all fees and charges and shall fulfill all of its duties and obligations under this Agreement.
3.4 Termination or Suspension By VSAT. VSAT, in its sole discretion, has the right to immediately suspend or terminate the Subscriber's account and/or the Agreement if Subscriber breaches any provision of the Agreement, any exhibit hereto, the Order Form, the Web Site or the Terms of Use. VSAT also has the right, in its sole discretion, to suspend and/or terminate Subscriber's account and/or the Agreement upon 30 days prior written notice to Subscriber. VSAT shall not be liable to Subscriber for compensation, reimbursement or any other fees or damages sustained by Subscriber as the result of VSAT’s termination of this Agreement, in whole or in part, or the suspension of Subscriber’s account.
3.5 Continuation of Obligations. Notwithstanding any suspension, cancellation
or termination of the Agreement or Subscriber's account or access to the Services,
Subscriber will remain responsible for any obligations accrued to the date
of such suspension, cancellation or termination, including payment of any charges
that may be due as a result of, or in connection with, such suspension, cancellation
or termination. If Subscriber's access to, or use of, the Services is partially
or totally suspended, cancelled or terminated as a result of any actual, threatened,
or alleged violation of this Agreement, any exhibit hereto, the Order Form,
Web Site or the Terms of Use, or any law or legal obligation, by Subscriber
or any user of Subscriber's account, Subscriber's payment and other obligations
under the Agreement will continue in full force and effect notwithstanding
such suspension, cancellation or termination.
4. AUTHORIZATION TO USE THE SERVICES; RESPONSIBILITY AND SUPERVISION.
4.1 Account Setup. Subscriber represents and warrants to VSAT that Subscriber is a properly organized educational or government entity or business, and that the party executing the Order Form is at least 18 years old and is authorized to execute the same on behalf of Subscriber. Notwithstanding any acknowledgment of a Subscriber's purchase order by VSAT, the parties agree that any provision or condition in any purchase order, voucher, or other memorandum drafted by Subscriber which is inconsistent with this Agreement, an exhibit hereto, the Order Form, Web Site and/or the Terms of Use is invalid.
4.2 Multiple Uses of Account, Access Policy. Except as otherwise stated in
this Agreement, any exhibit hereto, the Order Form, Website and/or in the Terms
of Use, Subscriber and its employees are permitted to use the Services 24 hours
a day, 7 days a week, from the Subscriber’s installation address. Notwithstanding,
Subscriber must not sell, resell, rent, lease or otherwise share the Services
with any third party without the prior written consent of VSAT. Subscriber
must not attach the Services to any "open" or public wireless or
other public connection-sharing technology. The Services are not to be used
as a back-haul for any ISP type of use. The VSAT bandwidth is provided on a
shared, as available, basis and the VSAT network is configured to provide an
acceptable business-grade level of service to all customers. VSAT will not
allow a small fraction of its users to monopolize the network to the detriment
of other users. VSAT reserves the right to limit the available speed or amount
of throughput available to any customer, including Subscriber, who exceeds
a 90% utilization threshold. VSAT reserves the right to limit, when necessary,
the use of the network and/or Services by the users who are in the highest
10% of network bandwidth consumption in order to keep their usage patterns
from negatively affecting other users. There is no set daily, weekly or monthly
throughput allowance other than as described above.
4.3 Subscriber Responsibility. Subscriber shall be responsible for all access
to the Services through Subscriber's account or password(s), whether or not
authorized by Subscriber, and for any and all fees and expenses incurred for
the Services. Subscriber will limit use of its account to its employees. Subscriber
acknowledges that areas accessible on or through the Services may contain material
that is unsuitable for minors (persons under 18 years old) and agrees to supervise
minors' use of the Services through Subscriber's account. Subscriber hereby
ratifies and confirms any actions taken, obligations incurred, or any promises
or permissions made by a minor using Subscriber's account.
5. FEES AND PAYMENT.
5.1 Fees, Taxes and Other Charges. Subscriber will pay to VSAT, in accordance
with the provisions of the Order Form and its associated price schedules,
any registration or monthly fees, support fees, software or hardware upgrades,
connect time charges, ISP service charges, minimum charges, termination fees,
all applicable taxes and other amounts charged to or incurred by Subscriber,
or users of Subscriber's account, whether authorized or unauthorized, at
the rates in effect for the billing period in which those amounts are charged
or incurred. Additional terms relating to pricing, billing, and payment and
which are incorporated into this Agreement are set forth in VSAT’s
Order Form and on the Web Site.
5.2 Payment. VSAT will make available to Subscriber an email and online statement for each billing cycle showing payments, credit purchases, and other charges. A paper invoice is available to be sent through the U.S. mail for an additional charge. Payment for the Services is "in advance", and must be received by VSAT on or before the first day of the subsequent 30 day billing period (the "Due Date"). All fees, charges and payment obligations of Subscriber must be paid in U.S. dollars. Subscriber acknowledges and agrees that if payment is not received by VSAT by the Due Date, VSAT will charge Subscriber a late fee of $15.00 plus interest on the delinquent balance at the rate of one and one-half percent (1.5%) per month, prorated on a daily basis. In its sole discretion, VSAT may, but is not required to, accept partial payments from Subscribers. If VSAT has consented in writing to receive partial payments from Subscriber, such partial payments will be applied to Subscriber's account beginning with the oldest outstanding statement. VSAT’s acceptance of any partial payment from Subscriber will not constitute an accord and satisfaction, as defined by Ohio law, of Subscriber’s obligations under the Agreement, nor a waiver of any other obligations of Subscriber under this Agreement or the Terms of Use. VSAT also reserves the right to suspend or inactivate Subscriber's access to the Services for non-payment. Subscriber consents to any service fees charged by VSAT for all returned checks and bank card and charge card charge backs (the “Service Fee”). The current Service Fee is $25.00 per returned check or charge back, but may be revised from time to time. Any changes to the Service Fee will be posted on the Web Site. If Subscriber's check is returned to VSAT, or a bank card or credit card charge charged back, Subscriber agrees to immediately submit to VSAT a money order or cashiers check in the amount of the returned check or charge back, plus the Service Fee.
5.3 Billing Correspondence. Upon commencement of the Services, Subscriber will designate an E-MAIL Correspondence address, which is the address to which VSAT will send billing or other important notifications. Such designation must be made by submitting the appropriate e-mail address to billing@vsat-systems.com. Until such time as Subscriber designates such address, Subscriber will be responsible for checking its account online for billing or other information. Subscriber can access its online account through the Customer Support section of the Web Site.
5.4 Commencement and Duration of Subscription Fees. Subscriber acknowledges and agrees that a monthly subscription fee (the "Fee") will be charged to Subscriber for each and every month, or any part thereof, in which Subscriber is a subscriber to the Services, irrespective of whether the Subscriber has access to the Services due to any suspension for non-payment. The Fee will be charged to Subscriber's account each month until Subscriber terminates its subscription in accordance with the terms of this Agreement and/or the Order Form.
5.5 Termination Fee. If the Services are terminated for any reason within
the first thirty-six (36) months after commencement, Subscriber agrees
to pay to VSAT the following Termination Fee:
If terminated within . . . Termination Fee
1 year $3,000
2 years $2,000
3 years $1,000
Notwithstanding the above, Subscriber may return the modem and radio to VSAT (collectively, the “Modem”) that are part of the satellite equipment previously acquired from VSAT for full credit towards the above-referenced Termination Fee, except if termination occurs within the first year in which case the credit will be $2,500. The credit described herein for the returned Modem will only be available if the returned Modem is in normal working order, and Subscriber must pay the shipping expense. If Subscriber elects to return the Modem to VSAT for a credit during the first year, Subscriber must pay the remaining Termination Fee to VSAT within 10 days. Subscriber acknowledges and agrees that the Modem credit provisions described herein represent the anticipated fair market value of such property at the time of termination. The Termination Fee is in addition to any other fees which may be due VSAT.
5.6 Collection Costs; Credit Reporting Agency. If VSAT uses a collection agency or attorney to collect money owed to VSAT by Subscriber under the Agreement, or in the event VSAT uses an attorney to enforce any provision of this Agreement against Subscriber, Subscriber will pay the reasonable costs associated with the enforcement of this Agreement by VSAT against Subscriber including, without limitation, any and all collection costs, court costs and attorney’e fees. In the event that a court of competent jurisdiction holds that Subscriber has not breached the Agreement, this Section 5.6 will not apply. If Subscriber makes a late payment or fails to pay any VSAT online, email or paper invoice, Subscriber understands and agrees that VSAT may, in its sole discretion, report such late payment or nonpayment to the appropriate credit reporting agencies.
5.7 Reactivation. If VSAT deactivates a Subscriber's access to the Services for Subscriber's failure to make timely payment, or for any other reason, VSAT reserves the right to require a deposit or advance payment before reactivating the Services, in addition to VSAT’s current reactivation fee. In addition, VSAT will not reactivate the Services until Subscriber has paid to VSAT any and all outstanding balances.
5.8 Ancillary Equipment, Services. Subscriber will obtain, maintain, and
operate suitable and fully compatible terminal equipment and communication
devices to access the Services, as stipulated by VSAT on the Web Site,
or otherwise, from time to time including, without limitation, the Modem.
Subscriber is responsible for all telephone charges incurred in connection
with using the Services. SUBSCRIBER ACKNOWLEDGES THAT CERTAIN OF SUBSCRIBER’S EQUIPMENT MAY HAVE BEEN ACQUIRED
SEPARATE AND APART FROM THIS AGREEMENT EITHER FROM VSAT OR A THIRD PARTY. SUBSCRIBER
IS SOLELY RESPONSIBLE FOR MAINTAINING SUCH EQUIPMENT. VSAT MAKES NO REPRESENTATIONS
OR WARRANTIES PURSUANT TO THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, REGARDING
SUCH EQUIPMENT INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY, AND INTEGRATION
AND SPECIFICALLY DISCLAIMS SUCH WARRANTIES.
6. SOFTWARE LICENSE.
Subject to the terms of this Agreement,
any exhibit hereto, the Order Form, Web Site and/or the Terms of Use, VSAT
grants to Subscriber a personal, non-exclusive, non-assignable, and nontransferable
license (the "License")
to use and display the software provided by or on behalf of VSAT for the sole
purpose of accessing the Services (the "Software") on any machine(s)
of which Subscriber, or its employees, are the primary users including, without
limitation, the iDirect software. Subscriber must not sublicense the Software
to any third party. Subscriber represents and warrants to VSAT that Subscriber
will comply with, and be bound by, the iDirect End User Agreement attached
hereto as Exhibit C, and incorporated herein by reference. Unauthorized copying
of the Software, including copying software that has been modified, merged
or included with the Software, or the written materials associated therewith,
is expressly forbidden. Subscriber must not modify, translate, create derivative
works of or based on the Software. Subscriber must not, either directly or
indirectly, copy, duplicate, or permit anyone else to copy or duplicate any
part of the Software. Subscriber must not create, attempt to create, permit
others to create or permit others to attempt to create, by reverse engineering
or otherwise, the source programs or any part thereof from the object programs
or from other information made available under this Agreement. Subscriber
must not use the iDirect software on any equipment not provided by iDirect.
Subscriber agrees to order all firewall, router or related software upgrades
through VSAT, and to not alter, de-install, remove or replace the Software.
Subscriber agrees not to change the administrative configuration or administrative
passwords without informing VSAT in writing of the new password.
7. RESTRICTIONS ON USE OF THE SERVICE.
7.1 General Prohibited Conduct. Subscriber must not upload, post, or otherwise
publish on, through or over the Services, and must not seek on, through or
over the Services, any software, file, information, communication, or other
content which: (a) violates or infringes upon the rights of VSAT or any third
party; (b) adversely affects the performance or availability of the Services
or VSAT's resources; or (c) contains any virus, worm, cancelbot, harmful
component, or corrupted data. VSAT must have access to Subscriber’s
router at all times. Subscriber must not block or in any way interfere with
VSAT’s access to the router and must immediately notify VSAT of any
password changes related to the router. Subscriber acknowledges that other
VSAT products and services may have additional terms and conditions which
may also apply, and agrees to comply with the same.
7.2 Email Conduct. Subscriber must not use the email component of the Services for any illegal purposes or for the transmission of material that is abusive, threatening, unlawful, harassing, libelous, invasive of another's privacy, harmful, vulgar, obscene, tortuous, otherwise objectionable, or in violation of the Acceptable Use Policy. Subscriber must not use the Services for any purpose that infringes or may infringe upon the intellectual property or other rights of another. Subscriber must not use VSAT e-mail for the transmission of "junk mail", "Spam", "chain letters", or unsolicited mass distribution of email otherwise objectionable to a person of reasonable sensibilities and must not send mail with an incorrect return address or forged header information. Subscriber agrees that there will be no "open relay" on any mail server operated by customer on the service. Subscriber agrees that in order to maintain system operations VSAT may filter Spam or mass mail at the server, if applicable, and that VSAT will incur no liability for any lost messages. Subscriber further acknowledges and agrees that VSAT reserves the right, in its sole discretion, to make all determinations concerning e-mail content, under the Acceptable Use Policy and this Agreement. VSAT has the right to immediately suspend Services to Subscriber in the event that Subscriber is using, or has used, the Service in violation of this Agreement, any exhibit hereto, the Order Form, Web Site and/or the Terms of Use.
7.3 Web Hosting Conduct. (a) Subscriber may only use the Services including, without limitation, the Web Hosting component of the Services, for lawful purposes. Transmission, storage or presentation of any information, data or material in violation of any United States' federal, state, or local law, or in violation of the Acceptable Use Policy, is prohibited. This includes, without limitation: copyrighted material, material protected by trade secret and other statute or material determined by VSAT, in its sole discretion, to be threatening or obscene. Subscriber’s content must not contain (i) pornographic or other unacceptable adult-themed material, tobacco or alcohol material, get rich quick schemes, products or services involving deceptive marketing practices, or gambling, (ii) any viruses, trap doors, hidden sequences, hot keys or time bombs, (iii) content or links to third party content which may result in a third party claim against or civil or criminal liability to VSAT, its officers, managers, members, employees, affiliates, suppliers, partners, representatives, distributors or its agents, (iv) content that is inconsistent with VSAT’ or its suppliers’ public image, goodwill and reputation, applicable law or the terms of this Agreement, or (v) content that, in the reasonable opinion of VSAT, may constitute libel, defamation, infringement or otherwise violate the privacy, publicity or other rights of a third party (collectively, (i), (ii), (iii), (iv) and (v) shall constitute “Unacceptable Content”). While VSAT does not intend, and does not undertake, to monitor Subscriber’s content, if VSAT at any time during the term of this Agreement (i) becomes aware of a breach or inaccuracy of any representation or warranty set forth in this Section, or (ii) determines, in its sole discretion, that any Subscriber content constitutes Unacceptable Content, VSAT shall have the right, but not the obligation, to immediately cease transmitting such content, until such time as Subscriber shall have demonstrated, to VSAT’ satisfaction, that such breach or inaccuracy has been cured, or the content creating the likelihood of a claim or liability removed. Subscriber shall cooperate reasonably with VSAT with respect to the foregoing, which cooperation may include deleting or removing particular content upon VSAT’s request.
7.4 Illegal or Anticompetitive Purposes. Subscriber must not use the Services or any of its elements, related facilities or capabilities to conduct any business or activity, or to solicit the performance of any activity, which is prohibited by or would violate any applicable law, rule, regulation, or legal obligation. Subscriber must not use test results or other data received or made available to the Subscriber through the use of the Services for any purpose competitive to VSAT.
7.5 Compliance with Laws. Subscriber must comply with any and all applicable
federal, state and local laws, rules and regulations in connection with
the Services, its use of the Services, and this Agreement.
8. COPYRIGHT AND LICENSES.
VSAT reserves all copyrights and other rights in
and to any content which: (1) is available through the Services; and (2) is
identified as, claimed by VSAT as, or known by Subscriber to be, proprietary
to VSAT or its licensors (the "Proprietary Content"). The Proprietary
Content is copyrighted and all rights to the Proprietary Content are reserved
by the owner of such content. The Proprietary Content relating to the Services
is protected under applicable copyright law, and is also protected under applicable
copyright law as a collective work. All copying, modification, distribution,
publication, or other use by Subscriber, or by any user of Subscriber's account,
of part or all of the Proprietary Content or other works is prohibited, absent
the prior written consent of VSAT.
9. NO ENDORSEMENT.
Subscriber acknowledges and agrees that VSAT is not responsible
for any content transmitted or received by Subscriber or for any content originated
on or obtained from the internet through the Services. VSAT does not endorse
or in any way warrant the accuracy, completeness, truthfulness, or reliability
of any information, service, opinion, advice, communication, information, or
other content on or made available through the Services. Content, not created
by VSAT, does not constitute or reflect the views or opinions of VSAT and has
not been approved by VSAT. VSAT does not recommend that such content be relied
upon in making decisions or conclusions without appropriate verification by
the Subscriber or user and, as appropriate, professional advice. Subscriber
acknowledges and agrees that it relies on such content at its own risk.
10. INTERNET.
SUBSCRIBER ACKNOWLEDGES THAT INTERNET SITES NOT CREATED, CONTROLLED
OR MAINTAINED BY VSAT MIGHT CONTAIN OR PROVIDE ACCESS TO IMAGES, SOUND, MESSAGES,
TEXT, SERVICES, OR OTHER CONTENT THAT MAY BE UNSUITABLE FOR MINORS AND THAT
MAY BE OBJECTIONABLE TO MANY ADULTS. SUBSCRIBER ACKNOWLEDGES THAT VSAT IS NOT
RESPONSIBLE FOR SUCH CONTENT OR MATERIAL AND AGREES THAT ACCESS TO SAME THROUGH
USE OF THE SERVICES OCCURS AT SUBSCRIBER'S SOLE RISK. Subscriber acknowledges
that the reliability, availability, legality, performance, and other aspects
of resources accessed through the Internet are beyond VSAT's reasonable control
and are not in any way warranted or supported by VSAT, its affiliates or its
third-party contractors. Subscriber acknowledges that such Internet sites and
the content contained therein do not always contain safeguards relative to
copyright, ownership, appropriateness, reliability, legality, and integrity
of content. Subscriber represents and warrants to VSAT that Subscriber assumes
all risk and liability of any use of the Internet through Subscriber's account,
including Subscriber's continuous compliance with the Agreement.
11. USE AND CONTROL OF INFORMATION; MEMBER COMMUNICATION;
ADS; PUBLICITY.
VSAT will not distribute, loan, sell, or otherwise share with other persons
or entities any customer or user lists. However, VSAT makes no representation
as to the care, custody or disposition of such information when obtained and
held by VSAT's suppliers and licensors in the course of business dealings with
VSAT. VSAT may, however, use or dispose of "aggregate information" for
these purposes. "Aggregate information" includes information constituting
or descriptive of demographic information, habits, usage patterns, preferences,
survey data, or other descriptive or related data which do not rely on providing
to recipients the identity of any particular user of the Services. This Section
11 does not limit VSAT’s ability to use other information not addressed
in this Section 11. VSAT is free, in its reasonable good faith discretion and
without notice, to provide Subscriber and user information and records to the
courts, law enforcement agencies, or others involved in prosecuting claims
or investigations for conduct or conditions alleged or believed to be illegal
or to violate or threaten the rights of any person or entity, and to maintain
and use internally such information and records, consistent with VSAT's Privacy
Policy a copy of which is available on the Web Site. Information generated
by or in connection with VSAT's administration of the Services is the exclusive
property of VSAT. VSAT may also from time to time, reasonably and in good faith,
provide online, telefax, telephone, e-mail, mail, and other communications
to its Subscribers and users on matters pertaining to the Services, its features,
its sponsors or third party product offerings without compensation to them
or reimbursement of costs for doing so. Subscriber acknowledges that communications
with VSAT, its employees, suppliers, licensors and agents may be monitored,
recorded or reviewed for quality control and other reasonable business purposes.
Subscriber also acknowledges that advertising and promotion may occur through
the Services and also that neither Subscriber nor any user shall in any event
have any claim with respect to any proceeds from such activities. Notwithstanding
the above, Subscriber acknowledges that VSAT reserves the right to identify
its existing or former customers for marketing purposes. VSAT may provide on
its website or other marketing materials, the logo of the customer, which may
or may not include a link to the customers website. VSAT will not publish any
information regarding the nature of the customer relationship or configuration
of the service, and will not imply any endorsement by the subscriber of the
services provided. VSAT will not provide the specific contact information of
the Subscriber in any such publication without the permission of the Subscriber.
Subscriber agrees that VSAT may announce through press release or other means,
that the Subscriber has chosen VSAT service. Any such information released
by VSAT shall be without any details as to the service configuration or intended
use, or terms, unless Subscriber approves such release in advance. If subscriber
writes to VSAT expressing opinions on the service, VSAT reserves the right
to publish in a contextually correct fashion, all or part of the communication,
however VSAT will not publish the name of the Subscriber without permission
from the subscriber.
12. DISCLAIMER OF WARRANTIES AND EXCLUSION OF LIABILITY.
12.1 Disclaimer of Warranties, Liability and Responsibility. SUBSCRIBER EXPRESSLY
ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES OCCURS AT SUBSCRIBER'S SOLE
RISK. NEITHER VSAT, NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE
PROVIDERS, LICENSORS, EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS OR AGENTS,
WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES VSAT
OR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS,
EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS, OR AGENTS MAKE ANY WARRANTY
AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE
DISTRIBUTED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT,
ACCURACY, AND/OR INTEGRATION. VSAT FURTHER SPECIFICALLY DISCLAIMS ANY AND
ALL SUCH WARRANTIES, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE
FORGOING, VSAT SPECIFICALLY DISCLAIMS LIABILITY FOR ANY ERRORS, OMISSIONS,
OR INACCURACIES RELATING TO THE SERVICES, THE SOFTWARE AND ANY INFORMATION
AND/OR CONTENT ACCESSED VIA THE SERVICES. SUBSCRIBER ALONE ASSUMES THE CONSEQUENCES
RESULTING FROM ITS RELIANCE ON SUCH CONTENT. SUBSCRIBER FURTHER ACKNOWLEDGES
AND AGREES THAT ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY VSAT, ITS
INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES,
AFFILIATES, INDEPENDENT CONTRACTORS OR AGENTS DOES NOT CREATE ANY WARRANTY
IN OR TO THE SERVICES OR THE CONTENT PROVIDED PURSUANT TO THE SERVICES. SUBSCRIBER
ACKNOWLEDGES AND AGREES THAT IT CANNOT RELY ON ANY SUCH INFORMATION OR ADVICE.
12.2 Limitation of Liability. NEITHER VSAT, NOR ANY OF ITS OFFICERS, MEMBERS, INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS OR AGENTS IS LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, THE SOFTWARE, THE WEB SITE OR ANY LINKED INTERNET SITE, EVEN IF ANY OF THE SAME ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICES, THE SOFTWARE OR THE WEBSITE OR INABILITY TO USE THE SAME, OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY. IN NO EVENT WILL VSAT, ITS OFFICERS, MEMBERS, INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, AFFILIATES, INDEPENDENT CONTRACTORS OR AGENTS, IF ANY, LIABILITY EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO VSAT BY SUBSCRIBER FOR THE SERVICES FURNISHED UNDER THIS AGREEMENT, AND THE TERMS OF USE, IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY MAY BE LIMITED TO THE EXTENT THAT STATE OR LOCAL LAW DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF SUCH DAMAGES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS HELD TO BE INVALID OR UNENFORCEABLE, THE REMAINING PROVISIONS WILL CONTINUE IN FULL FORCE AND EFFECT.
12.3 Applicability of Provisions to Circumstances Involving Others. CONSISTENT
WITH SECTION 13 OF THIS AGREEMENT, SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT THE
TERMS OF THIS SECTION 12 ALSO APPLY TO ANY CLAIMS RELATING TO "ACQUIRED
MATERIAL" AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES.
12.4 Full Applicability. THE PARTIES AGREE THAT THE FOREGOING EXCLUSIONS AND/OR
LIMITATIONS OF LIABILITY APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT
A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION
OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE). THIS LIMITATION
OF LIABILITY ALSO APPLIES IF VSAT OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY
OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
13. INDEMNITY.
Subscriber must indemnify and hold harmless VSAT, and its officers,
managers, members, employees, affiliates, suppliers, partners, representatives,
distributors, and agents, from and against any and all losses, claims, liability,
damages, costs, and expenses including, without limitation, reasonable attorneys'
fees, court costs, amounts finally awarded in a settlement or by a court, and
to the extent permitted by law, any fines and penalties, based upon any claims:
a) arising out of, resulting from, or in connection with the Services or any
failure to provide Services, or for any use of Subscriber's account; or b)
that any information or other content delivered to, or received from, any other
party by Subscriber (i) infringes any patent, copyright, trademark or trade
secret right of a third party, (ii) contains any viruses, trap doors, hidden
sequences, hot keys or time bombs, or (iii) violates any applicable law or
regulation, and third party’s right of privacy or publicity, or (iv)
contains any libelous, defamatory, obscene or indecent content or materials
otherwise objectionable to a person with reasonable sensibilities.
14. ASSIGNMENT OF AGREEMENT; LIABILITY FOR UNAUTHORIZED
USE.
This Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
successors and assigns. Subscriber must not assign or transfer this Agreement
or the Services provided hereunder, without VSAT’s prior written consent.
If Subscriber assigns or transfers the Services without VSAT prior written
consent, or attempts or offers to do the same, VSAT may deactivate the Services
and remove any equipment used by Subscriber and owned by VSAT. Subscriber must
notify the VSAT Customer Care Center immediately if Subscriber's VSAT equipment
is stolen or otherwise removed from Subscriber’s premises without authorization.
Subscriber must also immediately notify VSAT in writing if it sells, gives
away, or otherwise transfers VSAT equipment from Subscriber's possession. Subscriber
is considered the registered recipient of the Services until VSAT receives
such written notice, and Subscriber will be liable for any charges or fees
incurred by the use of VSAT equipment by anyone else up to the time that such
notice is received by VSAT, unless otherwise provided by state law.
15. PROPRIETARY RIGHTS.
All copyrightable content distributed over the Web
Site or through the Services by VSAT is copyrighted by VSAT or a third-party
content provider. VSAT or such third-party content providers own all right,
title and interest to such content and Subscriber may not copy, distribute,
transmit, or publish, in any form, including printed, electronic, digitized,
audio, or otherwise, or modify all or any portion of such content without the
prior written consent of the copyright owner; provided, however, that Subscriber
may store one copy of the content on Subscriber's personal computer for personal
use for a period not to exceed 30 calendar days. All copyright or other proprietary
rights or notices contained in or associated with the content or contained
therein must be preserved in, or on, any copies made of such material. The
placement of copyrighted material in any public posting area or software library,
whether of VSAT or not, without the written consent of the copyright owner,
is in violation of this Agreement.
16. CHOICE OF LAW; LIMITATIONS ON ACTION.
This Agreement is deemed to be made
in the State of Ohio. This Agreement, and any exhibits hereto, the Order Form,
Web Site and the Terms of Use and all of the parties' respective rights and
duties in connection herewith will be governed by and construed in accordance
with the laws of the State of Ohio, excluding its conflict of laws provisions.
With respect to any dispute arising out of or related to this Agreement, any
exhibit attached hereto, the Order Form, Web Site and the Terms of Use and/or
the Services, Subscriber and VSAT agree to submit to the exclusive jurisdiction
of the courts of Summit County, Ohio or any federal court located within the
Northern District of Ohio, and Subscriber waives any objection based on forum
non conveniens or venue with respect to such jurisdiction in Ohio. Subscriber
agrees that any claim or cause of action against VSAT arising out of, or related
to, Subscriber's account, the Services or this Agreement, any exhibit attached
hereto, the Order Form, Web Site and/or the Terms of Use must be instituted
within one year after the claim or cause of action arose; otherwise, such cause
of action is permanently barred. Neither the Uniform Commercial Code nor The
United Nations Convention on Contracts for the International Sale of Goods
apply to this Agreement and it is acknowledged that this is a service contract
and not a contract for the sale of goods.
17. CONSTRUCTION AND DELEGATION.
VSAT may authorize or allow its independent
contractors and other third parties to provide to VSAT and/or to Subscriber
services necessary or related to making the Services available and to perform
obligations and exercise rights of VSAT under this Agreement, and may collect
payment on their behalf, if applicable. The provisions of Sections 8, 9, 11,
12, 13, 14, 15, 16, 17, 18, 19 and 20, and all other provisions hereof which
by their nature should continue, shall survive any termination of this Agreement.
18. ASSIGNMENT OF ACCOUNT.
VSAT may sell, assign, or transfer Subscriber's
account to a third party without notice. In the absence of a notice of such
sale or transfer, Subscriber must continue to make all required payments to
VSAT in accordance with Subscriber's billing statement.
19. ENTIRE AGREEMENT.
This Agreement, as published in the Web Site, and the
Service Order, Terms of Use and the additional documents contained in the Web
Site which are referred to herein, constitute the entire and only agreement
with respect to the subject matter hereof between VSAT and Subscriber, applicable
also to all users of Subscriber's account. This Agreement supersedes all representations,
proposals, inducements, assurances, promises, agreements, and other communications
with respect to the subject matter hereof except as expressly set forth in
this document. By executing this document online, in person, via fax or e-mail
or through any VSAT automated sign-up procedure, Subscriber agrees to the terms
and conditions of this Agreement. This Agreement can be amended only in the
manner expressly provided for in this Agreement.
20. MISCELLANEOUS.
Subscriber acknowledges and agrees that iDirect is a third
party beneficiary to this Agreement. Where notification by VSAT is contemplated
by or related to this Agreement, notice may be made by any reasonable means,
including, but not limited to, e-mail or publication on the Web Site. If any
term of this Agreement is found by a court of competent jurisdiction to be
invalid, illegal or unenforceable, it will be construed in such a way as to
eliminate the offending aspects while still giving as much effect as possible
to the intentions of such term. If this cannot be done and the entire term
is invalid, illegal, or unenforceable and cannot be so repaired, then the term
will be considered to be stricken from this Agreement as if it had not been
included from the beginning. In any such case, the balance of this Agreement
will remain in effect in accordance with its remaining terms notwithstanding
such invalid, illegal, or unenforceable term. VSAT may enforce or decline to
enforce any or all of the terms of this Subscriber Agreement in its sole discretion.
VSAT’s election not to enforce a particular provision of this Agreement
will not be considered a waiver and will not impair VSAT' ability to enforce
any other provision of this Agreement. In no event will VSAT be required to
explain, comment on, suffer liability for, or forfeit any right or discretion
based on its enforcement, non-enforcement, or consistency of enforcement of
these terms. Captions used in this Agreement are for convenience only and will
not be considered a part of this Agreement or be used to construe its terms
or meaning. Subscriber agrees that this Subscriber Agreement is set forth in
the English language for the mutual convenience and benefit of the parties.
In the event that the Agreement is translated into any language other than
English, the parties agree that the English language version will control over
any translation.
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