1. SERVICES AND EQUIPMENT.
A. First Communications, L.L.C. (FirstComm), agrees to provide Internet connection access services (the “Services”) to you (“You” or “Customer”) on the following terms and conditions. By using the Services or maintaining an account for such Services, Customer agrees to be bound by this Agreement and shall use the Services in compliance with this Agreement, the Acceptable Use Policy and other policies that FirstComm may establish from time to time, all of which may be viewed at FirstComm's website, www.firstcomm.com (the “Home Page”).
B. Services provided by FirstComm are for the sole use of the Customer and not for resale of any kind without the prior written consent of FirstComm. Such consent may be withheld by FirstComm in its sole discretion for any reason. FirstComm reserves the right to charge additional fees if Customer resells services provided hereunder, including by issuing a backcharge.
C. FirstComm reserves the right to modify this Agreement at any time and in any manner. Any modification is effective immediately upon either a posting on the FirstComm's Home Page, or by sending notice of modification to Customer via electronic mail or conventional mail. If any modification of this Agreement is unacceptable to Customer, it may immediately terminate its account as provided below. Customer's continued use of the Services following a modification of the Service Agreement shall be conclusively deemed as acceptance of such modification.
2. PAYMENT AND CHARGES.
A. Current monthly service and any related fees for the Services are posted at FirstComm's Home Page and may also be obtained by calling (800-274-1015). FirstComm reserves the right to change prices and institute new fees at any time for any reason upon 30 days prior notice to the Customer. Notice of such fee increase may be made by many means, including without limitation, by posting new rates and prices at the Home Page.
B. Dial Up Exchanges. Customer is solely responsible for determining if use of a particular dial-up number will cause it to incur long-distance, toll, or other charges. FirstComm is not responsible for any long-distance, toll, other telecommunications or any other charges of any kind the Customer incur.
C. Regardless of whether you use the Services, the recurring monthly fee is due and payable in advance of the first day of each monthly billing period, with the first payment due and payable on the activation date of the Services. Monthly fees are non-refundable. FirstComm is not responsible for any charges or expenses (e.g for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by FirstComm. All charges are considered valid unless disputed in writing within thirty (30) days of the billing date. Adjustments will not be made for charges that are more than 30 days old.
D. Delinquent accounts may be suspended or canceled at FirstComm's sole discretion. If payment is not received by FirstComm on or before the date payment id due, a Customer's account is considered delinquent and Customer will be subject to a late payment fee of 1.5% per month of the outstanding balance on Customer's account or $15.00, whichever is greater (not to exceed the maximum rate permitted by law). FirstComm may bill an additional charge to reinstate a suspended account.
E. FirstComm may charge the Customer for taxes and other applicable fees. Customer will pay to FirstComm any costs, attorneys fees or expenses incurred by FirstComm in collecting any amount due under this contract.
4. MEMBER'S ACCOUNT, PASSWORD, AND SECURITY.
A. Customer must be 18 years or older to register and obtain an account. Upon registration with FirstComm, the Customer shall receive a username, password, and account designation (the “Account”). Customer agrees to keep its password confidential so that no one else may access the Services through the Account and you will notify FirstComm immediately upon discovering any unauthorized use of the Account.
B. In order to subscribe, and to maintain your subscription, Customer must (i) provide FirstComm with accurate, current and complete billing information including legal name, address, telephone number, and credit card/billing information, and (ii) to provide FirstComm all changes to this information within thirty (30) days of any change.
C. Customer agrees not to use the Services in a manner prohibited by any federal or state law or regulation. Transmission of any material in violation of federal or state law or regulation, including, but not limited to any copyrighted material, material protected by a trade secret or material or messages that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or that encourages conduct that could constitute a criminal offense, give rise to civil liability of otherwise violate any applicable local, state, national or international law or regulation, is prohibited.
D. Customer further agrees to adhere to the FirstComm Acceptable Use Policy (“AUP”), as it may be amended from time to time in FirstComm's sole discretion, set forth at FirstComm's Home Page.
E. Email accounts exceeding the Customer's allotted email space may, at FirstComm's discretion, be transferred to a compressed temporary file or storage. FirstComm may delete the temporary file from the server 60 days after notifying the Customer.
F. FirstComm may change its POP numbers at any time. FirstComm reserves the right to direct the Customer to use certain numbers to access the Service or to restrict use of specific access numbers. Usernames, passwords and email addresses are FirstComm's property and FirstComm may alter or replace them at any time.
G. IP addresses are not portable and are not assigned for independent administration or distribution. Customer understands that IP assignments are not guaranteed, and may be modified as required by FirstComm and/or the American Registry for Internet Numbers (ARIN).
5. SERVICE PROVIDER RIGHTS.
A. Customer acknowledges that its use of the Services is not private. FirstComm has no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if FirstComm, in its sole discretion, believes that it is reasonable to do so, including without limitation to: satisfy laws, regulations, or governmental or legal requests; operate the Services properly; to investigate any conduct of Customer which may constitute a violation of this Agreement or the FirstComm Acceptable Use Policy or protect itself and third parties.
B. FirstComm may immediately remove the Customer's material or information from FirstComm's servers, in whole or in part, that FirstComm, in its sole and absolute discretion, determines infringe another's property rights or to violate our Acceptable Use Policy.
C. Any monitoring and disclosure activities of FirstComm may negate the privacy protections which the Customer would otherwise enjoy under federal and state law, including the Electronic Privacy Communications Act. Customer specifically agrees that FirstComm may do so and Customer understands that he or she is giving up privacy rights which he or she would otherwise be entitled to under state law.
D. Customer acknowledges that FirstComm is a distributor (and not a publisher) of content supplied by third parties and other customers. Accordingly, FirstComm has no more editorial control over such content than does a public library, bookstore or newsstand. Any opinions, advice, statements, services, offers or other information or content expressed or made available by third parties, are those of the respective author(s) or distributor(s) and not of FirstComm. Neither FirstComm nor any third party provider of information guarantees the accuracy, completeness, or usefulness of any content nor its merchantability or fitness for a particular purpose. This agreement contains the complete provisions governing the limitation of liabilities and disclaimers of warranty. Under no circumstances will FirstComm be liable for any loss or damage caused by Customer's reliance on information obtained through the Services. It is the responsibility of Customer to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Services. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice, or other content.
6. Service Guarantee.
A. FirstComm shall use commercially reasonable efforts (though does not guarantee or warrant) to provide Customer with uninterrupted and error-free services. At any time Customer believes that an out-of-service condition has occurred, Customer must telephone the designated troubleshooting representative of FirstComm. FirstComm will then initiate diagnostic trouble-shooting to attempt to determine the source of the interruption and repair. If FirstComm is unable or refuses to repair the condition and resume uninterrupted service after such trouble-shooting efforts, and if such condition is a result of the Internet Services provided by FirstComm, and not a result of any other entity or service provided by others, then FirstComm agrees to prorate the amounts due from Customer as follows:
Length of Service Interruption Amount of Credit
Less than 10 minutes None
10 minutes to 180 minutes 1 day credit
More than 180 minutes 3 day credit
B. In no event shall Customer receive more than one (1) such credit for the twenty-four (24) hour period beginning with the initiation of trouble-shooting, even if more than one (1) out-of-service condition occurs during that period. In no event shall FirstComm be responsible to provide credits in excess of thirty (30) days in any consecutive one (1) year period. The credit provided above shall be Customer's sole and exclusive remedy and Customer waives any right it may otherwise have to compensation for any alleged damages directly or indirectly incurred as a result of any interruption or error in the provision of the Internet ‘Services.
7. DISCLAIMER OF WARRANTIES and LIMITATION OF LIABILITY.
A. ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIRSTCOMM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FIRSTCOMM MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH FIRSTCOMM OR THE INTERNET GENERALLY.
B. NO ADVICE OR INFORMATION GIVEN BY FIRSTCOMM OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY.
C. FIRSTCOMM AND ITS EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES, OR THE INTERNET OR ANY DOWNTIME OF SERVICES INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES.
D. FIRSTCOMM'S CUMULATIVE LIABILITY TO ANY CUSTOMER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES OR EQUIPMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING A ONE-YEAR PERIOD.
8. TERM OF AGREEMENT.
A. The initial term of this Agreement shall commence on the date Services are activated to Customer and shall continue for one (1) month. Customer agrees to maintain Services for the duration of the initial term. After the initial term, Services shall automatically renew on a month to month basis. Either party may terminate the Services at the end of the initial term or at any time thereafter by providing not less than thirty (30) days written or telephonic notice. Written termination notice from customer must be sent to: FirstComm, Inc., 3340 West Market Street, 3rd Floor, Akron, Ohio 44333.
B. Continued use of the Services constitutes acceptance of this Agreement and any future versions. If you are dissatisfied with the Services or any related terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Services and, to terminate your account.
A. Customer may terminate its account at any time and for any reason by providing notice of intent to terminate to FirstComm.
B. Customer will remain liable for all charges accrued until its account and password have been deactivated, including the full monthly charge for the month in which the termination occurred. FirstComm may modify, suspend or terminate this Agreement or the account at any time and for any reason without prior notice to you and without refunding any fees you have paid to FirstComm. FirstComm reserves the right to require you to change your login name or password, and to delete any or all program or data files associated with the account upon termination of this Agreement.
C. Without prior notice, FirstComm may terminate this Agreement, Customer's password, your account, or your use of the Services, for any reason, including, without limitation, if FirstComm, in its sole discretion, believes you have violated this Agreement, our Acceptable Use Policy, or any of the applicable user policies, or if you fail to pay any charges when due. FirstComm may provide termination notice to you by: email addressed to your email account or by US Mail or courier service to the address you provided for the Services. All notices to the Customer shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or on the fourth (4th) calendar day following the date of first-class mailing or deposit with a commercial courier service.
D. A Customer who terminates the Services after acceptance of the order by FirstComm, but prior to the Services activation date will be charged a $100.00 order cancellation fee. A Customer who terminates the Services prior to the end of any signed term, is liable for all of the following termination charges: 1) $100.00 order cancellation fee; 2) an amount equal to the discount given on a monthly basis multiplied by the number of months service was in effect; and 3) any other actual damages incurred by FirstComm. Termination charges are billed in one lump sum and shall be payable immediately upon termination.
E. Customer agrees to defend and indemnify and hold harmless FirstComm and its officers, directors, employees, affiliates and subsidiaries from and against any and all claims, proceedings, damages, injuries, liability, losses, costs and expenses claims, proceedings, damages, injuries, losses, costs and expenses (including, without limitation, reasonable attorneys' fee) arising out of or relating to any acts by you or materials or information transmitted by you in connection with the Service, regardless of the type of claim or nature of the cause of action, or any breach of this Agreement or the Acceptable Use Policy.
A. This Agreement is governed by Ohio law without regard to conflict of law provisions. Any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Ohio law and will be held in Akron, Ohio. The arbitrator will be an expert in the field of Internet services. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. There shall be no class action arbitration permitted for disputes arising out of or related to this Agreement or the Services to this Agreement.
C. This Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their respective permitted successors, assigns, heirs and legal representatives. Neither Party may assign this Agreement or any of its obligations hereunder without the prior written consent of the other.
D. It is expressly agreed that Company is an independent contractor and is not in any manner an agent or employee of Customer. Company is not authorized or empowered to conduct business under the name of, or for the account of, Customer or to incur obligations of any kind, express or implied, on behalf of Customer. The Parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties. Except as expressly provided in this Agreement, Customer shall not be liable for any debts, accounts, obligations, or other liabilities whatsoever of Company, including, without limitation, Company's obligation to withhold Social Security and income taxes for itself or any of its employees.
E. The failure of either party to enforce, at any time, any provision of this Agreement, shall not be construed to be a waiver of such provision or of the right of such Party thereafter to enforce each and every provision of this Agreement.
F. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which, when taken together, will be deemed to constitute one and the same agreement.
G. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation.
H. All notices, requests, demands, claims, and other communications under this Agreement will be in writing (including, but not limited to, electronic mail). Any notice, request, demand, claim, or other communication under this Agreement shall be deemed duly given if it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below.
I. This Agreement and the Exhibits annexed hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior representation, proposals, discussions, and communications, whether oral or in writing. This Agreement may not be amended, except by an agreement in writing signed by the Parties hereto.