Terms of Service
Effective July 23, 1999
1. Agreement. This is an agreement between you and First
Internet Corporation ("FIC") regarding your use of FIC's
computer, interactive information, communication, and
transaction service allowing access to the Internet, bulletin
boards, private networks, and other communications services
(the "FIC Service"). This agreement governs the terms and
conditions under which FIC makes the FIC Service available to
individual consumers through a personal computer or similar
access device and a communications connection (such as modem,
telephone line, or other telecommunications connection), or to
individual consumers or small businesses in connection with the
First Internet web hosting or similar service. Under this
agreement, you must comply with FIC's then-current "Acceptable
Use Policy," as updated from time to time by FIC, which can be
viewed at http://www.firstinter.net/support/usepolicy.php3
and is incorporated in this agreement by reference. PLEASE READ
THESE TERMS AND CONDITIONS CAREFULLY.
2. Amendment. FIC may modify this agreement or the Acceptable
Use Policy at any time in its sole discretion. Any modification
is effective immediately upon either a posting on the FIC Home
page, currently located at http://www.firstinter.net, or by a
message from FIC sent by electronic mail (e-mail), or by
conventional mail. If any modification to this agreement is
unacceptable to you, you may immediately terminate your
subscription as provided in section 19 below. However, if you
do not terminate your registration, or continue to use the FIC
Service, following notice of any modification to this
agreement, your continued use will mean that you have accepted
that modification.
3. Use of the Service. Under the terms of this agreement, you
may only use the FIC Service through the number of
communication channels for which you have purchased service.
You may not connect to the FIC Service through more than one
telecommunications connection at any given time.
4. Disclaimer. The FIC Service is provided on an AS IS, AS
AVAILABLE BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. FIC EXPRESSLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY THAT THE FIC SERVICE WILL BE ERROR-FREE, SECURE, OR
UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY
FIC, ITS EMPLOYEES, LICENSORS, OR THE LIKE, WILL CREATE A
WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
The terms of this section will survive any termination of this
agreement.
5. Information and Products. You acknowledge that except for
information products or services clearly identified as being
supplied by FIC, neither FIC nor any of its suppliers,
licensor, or affiliates ("Affiliates") operate or control any
information, products, or services accessible through the FIC
Service in any way and that, except for such FIC identified
information, services, or products, all merchandise,
information, and services offered or made available or
accessible through the FIC Service are offered or made
available or accessible by third parties who are not affiliated
with FIC or its Affiliates. YOU ACKNOWLEDGE THAT USE OF THE FIC
SERVICE IS AT YOUR SOLE RISK AND YOU AGREE THAT ANY
INFORMATION, SERVICE, OR PRODUCT ACCESSIBLE THROUGH THE SERVICE
IS WITHOUT WARRANTIES OF ANY KIND BY FIC AND ITS AFFILIATES,
EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT. The terms of this section will
survive any termination of this agreement.
6. Commerce on the Web. Through your uses of the FIC Service,
you may have opportunities to order and purchase merchandise or
services from other subscribers to the FIC service and users of
other communications outlets such as the Internet. You further
acknowledge that all transactions relating to merchandise or
services offered by you through the FIC service, including but
not limited to the purchase terms, payment terms, warrantees,
guarantees, maintenance and delivery terms for such
transactions are agreed to solely between you and third party
purchasers. FIC and its affiliates make no warranties or
representations whatsoever with respect to your goods and
services, or with respect to the qualifications of any third
party purchaser.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING
NEGLIGENCE, WILL FIC, OR ITS AFFILIATES BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES
THAT RESULT FROM THE USE OF OR INABILITY TO USE THE FIC
SERVICE, including but not limited to reliance on any
information obtained on the FIC Service; or that result from
mistakes, omissions, interruptions, deletion of files or
e-mail, loss of or damage to data, errors, defects, viruses,
delays in operation or transmission, or any failure of
performance, whether or not limited to acts of God,
communications failure, theft, destruction, or unauthorized
access to FIC's records, programs, or services. YOU HEREBY
ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT FIC
IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT
THIS PROVISION WILL APPLY TO ALL CONTENT, MERCHANDISE, OR
SERVICES AVAILABLE FROM FIC OR ITS AFFILIATES. The terms of
this section will survive any termination of this agreement.
8. Charges. You are responsible for all charges (for example,
telephone, dial-up, ADSL, or ISDN charges) associated with
connecting to the FIC Service through an available access
number. You are responsible for obtaining or providing all
telephone access lines, telephone, and computer equipment
(including modem), or other access device, necessary to access
the FIC Service. You are responsible for determining whether
the access number you use to connect to the FIC Service will
obligate you to pay telephone use charges to your telephone
company (whether or not that number is provided by FIC or is
obtained through a software utility provided by FIC for that
purpose). FIC encourages you to contact your local telephone
company to confirm that the call you are making is not a toll
charge. You are responsible for all activities and charges
resulting from use of your principal account on the FIC
Service. You agree to pay FIC the then-current monthly charges
for the FIC Service, along with any connect time charges,
surcharges, applicable taxes, and other charges incurred by you
or other users of your account via valid credit or other agreed
upon method of payment. You may find information regarding
current rates for using the FIC Service by calling
480.839.1070, or by viewing FIC's home page at
http://www.firstinter.net under the section designating the
service you have chosen. The Acceptable Use Policy may contain
additional charges for particular services. The customer agrees
that FIC may pre-charge the customer's monthly service fee to
the credit card supplied by the customer during registration.
If FIC does not receive the full amount of Customer's FIC
Service account balance within 30 days of the invoice date or
billing date, the greater of an additional 1.5%, or the highest
percentage allowed by law of the outstanding balance, or five
dollars ($5.00) may be added to your bill as a late charge each
month and will be due and payable immediately. The specific
service you have chosen may offer you the choice of additional
payment terms, including without limitation pre-payment terms.
FIC reserves the right to increase fees, surcharges, monthly
subscription fees, or to institute new fees at any time upon
30 days prior notice. FIC may reduce any fees at any time without
notice. In the event that your account is terminated or canceled,
online time credited to your account is not convertible to cash or
other form of credit.
9. Personal Information. You hereby certify to FIC that you are
not a minor. (A minor's parent or legal guardian may authorize
a minor to use their account(s) under supervision by the parent
or guardian). For purposes of identification, billing, and
marketing, you must provide FIC with accurate, complete, and
updated information required by the registration to the FIC
Service ("Member Registration Data"), including your legal
name, address, telephone number(s), and applicable payment data
(for example, a credit card number and expiration date). You
must notify FIC within 30 days of any changes in your Member
Registration Data. FIC may require a copy of a state issued
form of identification before making changes to the billing
information or registration data on a customer's account.
10. Accounts and Passwords. This agreement applies to all
accounts, subaccounts, and alternative account names associated
with your principal account. You are responsible for the use of
each of your accounts, whether used under any name or by any
person, and for ensuring full compliance with this agreement by
all users of that account. A FIC Service account may not be
transferred without prior written approval from FIC. You are
responsible for maintaining the confidentiality of your
passwords. In the event of a breach of security through your
account, you will be liable for any unauthorized use of the FIC
Service until you notify FIC Customer Service at 480.839.1070
11. Offensive Material. YOU UNDERSTAND THAT INFORMATION
AVAILABLE TO YOU THROUGH THE FIC SERVICE MAY INCLUDE MATERIALS
THAT ARE UNEDITED, SEXUALLY EXPLICIT, OR OFFENSIVE TO YOU AND
THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. FIC AND
ITS AFFILIATES HEREBY DISCLAIM ANY RESPONSIBILITY FOR OR
CONTROL OVER SUCH MATERIALS.
12. Dial-Up Access. You hereby acknowledge that FIC may
terminate any dial-up connection following 30 minutes of
inactivity as determined by FIC. FIC reserves the right to
limit, restrict, or prioritize access to system resources,
including CPU time, memory, and disk space.
13. At-Will Termination. This agreement will become effective
on the earliest date where: FIC receives your first payment,
you access the FIC network or use any of FIC's services or
resources, or you sign a contract with FIC or an authorized
agent of FIC and will remain in effect billing-month to
billing-month unless terminated by either party pursuant to
this agreement, or as otherwise specified in an FIC accepted
contract. You may terminate the agreement and your subscription
at any time for any reason or no reason, unless you have signed
and accepted a contract with FIC that specifies other terms and
conditions. FIC may immediately restrict, suspend, or terminate
without notice, your access to and use of the FIC Service upon
any breach of this agreement, including the then-current
Acceptable Use Policy. FIC may also terminate the agreement at
any time for any reason or no reason, upon 10 days' prior notice.
In the event of any termination for breach of this agreement,
you may not establish a new subscription with FIC for one year
from the date of termination. Upon and after termination, FIC
will not be obligated to provide you with access to any stored
e-mail or content related to your account. Your only right with
respect to any dissatisfaction with any terms, rules, policies,
guidelines, practices of FIC in operating the FIC Service, any
change in the content of the FIC Service, or any change in the
amount or type of fees charged in connection with the FIC
Service, is to terminate this agreement by delivering notice to
FIC. Your service will be terminated, and no further charges
accumulated, effective the day FIC receives notification of
termination. You will still be responsible for all charges accrued
and amounts owed prior to the effective day of termination.
14. IP Addresses. If FIC assigns you an Internet Protocol (IP)
address for your use of the FIC Service, the right to use that
IP address will belong only to FIC, and you will have no right
to use that IP address except as allowed by FIC in its sole
discretion in connection with the plan you have selected,
during the term of this agreement.
15. Electronic Mail. FIC may, but is not obligated to, block
any incoming or outgoing e-mail message that FIC determines, in
its sole discretion, is unsolicited or otherwise violates the
then-current Acceptable Use Policy. FIC shall not be
responsible for lost, misdirected, or undeliverable e-mail.
Please view our Spam Policy at
http://www.firstinter.net/support/spampolicy.php3
for additional information and terms.
16. Indemnity. Upon request of FIC, you shall defend,
indemnify, and hold harmless FIC, its officers, directors,
employees, agents, and licensees, from any claims, losses,
damages, expenses, and fees including without limitation
reasonable attorneys fees, arising out of or relating to your
use of the FIC Service, including without limitation any
violation by you of FIC's Acceptable Use Policy. The terms of
this section will survive any termination of this agreement.
17. Entire Agreement. This agreement constitutes the entire
agreement between you and FIC with respect to the FIC Service
and supersedes all prior agreements between you and FIC. FIC's
failure to enforce any provision of this agreement will not be
construed as a waiver of any provision or right. In the event
that a portion of this agreement is held unenforceable, the
unenforceable portion will be construed in accordance with
applicable law as nearly as possible to reflect the original
intentions of the parties, and the remainder of the provisions
will remain in full force and effect.
18. Assignment and Resale. You may not resell the FIC Service
to any other party. You may not assign this agreement or any of
its rights or obligations without the prior written consent of
FIC, and any such attempted assignment will be void. Subject to
the above, this agreement will be binding upon the parties'
respective successors and permitted assigns.
19. Notices. Any notices in connection with this agreement must
be sent to each party as follows: if to FIC: First Internet
Corporation 1018 E. Guadalupe Rd, Tempe, AZ 85283 or
hostmaster@FirstInter.net; if to you: either the e-mail address
for your account, or the address supplied by you as part of the
Member signup process. Any notices or communication under this
agreement will be deemed delivered to the party receiving such
communication (1) on the delivery date if delivered personally
to the party; (2) two business days after deposit with a
commercial overnight carrier, with written verification of
receipt; (3) five business days after the mailing date, whether
or not received, if sent by U.S. mail, return receipt
requested; (4) on the delivery date if transmitted by confirmed
facsimile or (5) on the delivery date if transmitted by
confirmed e-mail.
20. Force Majeure. FIC will not be liable in any amount for
failure to perform any obligation under this agreement if such
failure is caused by the occurrence of any unforeseen
contingency beyond the reasonable control of such party
including without limitation Internet outages, communications
outages, fire, flood, war, or act of God.
21. General Terms. Interpretation and enforcement of this
agreement will be governed by the laws of the state of Arizona
(excluding its choice of law rules). You hereby consent to
personal jurisdiction in the federal and state courts of
Maricopa County, Arizona for any action arising out of or
relating to your use of the FIC Service. The federal and state
courts of Maricopa County, Arizona will have exclusive
jurisdiction over all such actions. In any such action, the
prevailing party will be entitled to recover all legal expenses
incurred in connection with the action, including but not
limited to its costs, both taxable and non-taxable, and
reasonable attorney's fees. The terms of this section will
survive any termination of this agreement.