All services are provided on a best effort basis and as-is.
All services require 30 days of notice for cancellation.
THIS SUBSCRIBER AGREEMENT (THE “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH YOU (the “Customer”) MAY USE THE SERVICE PROVIDED BY Sound Internet Services, Inc. DBA PogoZone Internet Solutions (“PogoZone”). PLEASE READ THIS AGREEMENT CAREFULLY AND COMPLETELY AS IT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF THE SERVICE.
Scope of this Agreement
PogoZone provides service to Customer conditioned upon Customer’s acceptance, in its entirety, of the terms and conditions contained herein. PogoZone may, at its sole discretion, change, modify, add and/or remove portions of the Agreement, and the service provided hereunder, at any time. PogoZone will notify Customer of any such changes by posting the modified Agreement on the PogoZone web site: www.pogozone.com, or sending notice via email, U.S. mail, or by other means to Customer. Customer’s continued use of the service following notice of such change shall be deemed to be Customer’s acceptance of any such modification. If Customer does not agree to any such modification, Customer must immediately stop using the service and notify PogoZone that Customer is terminating the Agreement in accordance with the notice provisions contained herein.
Customer understands and agrees that the service requires that certain equipment be provided by Customer such as a personal computer with an Ethernet jack and an appropriate operating system (the “Customer Equipment”), as well as certain equipment that may be provided by PogoZone or its designee (such as an antenna, modem, etc). Customer represents that it owns the Customer Equipment or otherwise has the right to use same in connection with the service. It is the responsibility of Customer to provide and maintain all equipment that is not provided by PogoZone. It is Customer’s responsibility to ensure that all Customer Equipment is functioning properly and to troubleshoot and resolve any and all problems with such equipment if it is not functioning properly. PogoZone provides certain equipment as part of its monthly subscription. It is the responsibility of PogoZone to ensure that PogoZone’s equipment is working properly.
I. Terms and Conditions
1. Service Term.
As consideration for the subscription, Customer agrees to pay the applicable subscription fees set forth on our web site at the time of your selection, or, if applicable, upon receipt of your invoice from PogoZone. All fees are due immediately and are non-refundable, except as otherwise expressly noted in section VII: Termination and Expiration. Unless otherwise specified via a written contract, each PogoZone standard service plan is for one-month initial term. After the initial term, unless Customer renews for a different subscription, residential service will be supplied on a month to month automatically renewing basis. Business services will renew for a like term unless service is terminated by written notice to PogoZone prior to 30 days before the end of the current term. Any renewal of your services is subject to the then current terms and conditions. Customer acknowledges that at the time of renewal the subscription fee may be higher or lower than the price paid for the initial term of service. Notwithstanding any other part of this agreement, Customer will be required to pay for service for each month of the current term.
2. Non-Recommended Configuration.
Customer agrees that (i) Customer will not be entitled to support relating to any issues other than the quality of the signal delivered to PogoZone’s equipment and eventually Customer’s wall jack, and (ii) the following limitations of liability shall apply: PogoZone DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR FAILURE OF CUSTOMER EQUIPMENT, OR FOR CUSTOMER’S INABILITY TO ACCESS OR USE THE SERVICE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in the remainder of the Agreement.
3. Access to Customer’s Premises.
Customer authorizes PogoZone and its employees, agents, contractors, and representatives to enter Customer’s premises (the “Premises”) in order to install, maintain, inspect, repair, and if necessary, remove the PogoZone’s equipment. All such services will be conducted at a time agreed upon by PogoZone and Customer. If Customer is not the owner of the Premises, upon request, Customer will supply PogoZone with the owner’s name and address, evidence that Customer is authorized to grant access to the Premises on the owner’s behalf, and (if needed) written consent from the owner of the Premises to install the necessary PogoZone equipment. PogoZone assumes no responsibility for any damage, personal or property, to the Premises or the Customer Equipment as a result of the installation or removal of the PogoZone’s equipment. In the event Customer elects to remove or move any PogoZone equipment, Customer assumes all responsibility for any damage, personal or property, caused by such action.
4. Relocating Equipment.
Customer shall not relocate or tamper with PogoZone’s equipment, as this may affect Customer’s ability to receive service. If Customer decides to move locations, Customer shall contact PogoZone for additional information regarding the procedures for transferring PogoZone’s equipment and service to Customer’s new location. If the service is not available to Customer at Customer’s new location, then the Agreement shall terminate and Customer shall comply with the termination provisions of the Agreement. If the service is available at the new location, upon request by Customer and approval by PogoZone, PogoZone may relocate PogoZone’s equipment to Customer’s new location at a time agreed upon by PogoZone and Customer. Customer acknowledges that Customer will be billed for the removal and reinstallation of the PogoZone equipment at PogoZone’s then current hourly rates plus materials. In all cases, Customer shall notify PogoZone as provided herein.
5. Replacement or Repair of PogoZone Equipment.
Customer shall be solely responsible for the cost of replacement or repair of any lost, stolen, damaged, sold, transferred, leased, encumbered, or assigned PogoZone equipment or part thereof, together with any incidental costs incurred by PogoZone relating to the replacement, repair, or installation of PogoZone’s equipment.
6. Back-up Requirements.
The installation, use, inspection, maintenance, repair, and/or removal of PogoZone’s equipment may result in service outage or potential damage to Customer’s computer and other Customer Equipment. If Customer does not back up all existing computer files by copying them to another storage medium prior to such activities, Customer understands and accepts the associated risks of such a decision. IN ANY EVENT, EXCEPT AS OTHERWISE SET FORTH HEREIN, PogoZone SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF THE CUSTOMER’S COMPUTER, PERIPHERALS, SOFTWARE, OR DATA.
7. Customer Equipment Liability.
PogoZone has no liability whatsoever for any damage, loss, or destruction of Customer Equipment, including loss or destruction of any software, files, or data. This includes harm resultant from any computer upgrades. Customer must perform for service eligibility, including the installation of an Ethernet Network Interface Card.
PogoZone or its agents will install the PogoZone’s equipment. The Customer will be billed separately for installation according to the selected billing plan.
9. Service Fees.
Customer agrees to pay the monthly service fees, plus applicable taxes, as set forth in the current price list effective at the time of installation (the “Price List”), as modified from time to time in accordance with the terms of the Agreement. The initial service fee, together with applicable taxes, will be charged to Customer at the time of installation. Thereafter, the service fee together with applicable taxes will be billed to Customer. The service fee together with applicable taxes will be billed at the beginning of the applicable service period, on the day of the month that the Customer installation was completed (the “Anniversary Date”). PogoZone reserves the right to change prices and institute new fees at any time upon notice to Customer by posting new prices on the PogoZone Web site or by sending notice via email or U.S. mail.
10. Installation Charges.
The installation charge, any additional installation equipment required, plus applicable taxes, is as set forth in the Price List. At PogoZone’s option, the installation charge, together with any additional equipment required and applicable franchise fees and taxes, will be charged to Customer at the time of installation, or (ii) in accordance with PogoZone’s then-current billing policies.
11. Agreement to Pay.
For the term agreed upon by Customer and PogoZone, Customer agrees to pay all PogoZone equipment fees, installation charges, maintenance fees and service fees, including applicable taxes. Customer hereby authorizes PogoZone to charge Customer’s debit or credit card, invoice customer, or use other billing option in accordance with PogoZone’s then-current billing policies, for all such fees, charges and taxes. Customer agrees to pay for PogoZone service through the end of the term or in accordance with PogoZone’s then-current billing policies. Further, Customer hereby authorizes PogoZone to charge Customer’s debit or credit card for all fees related to termination, including pay out of the fees owed to PogoZone for the remainder of the selected term of the Agreement, equipment charges and any and all other fees related to termination to which the Customer is subject pursuant to the terms of the Agreement.
12. Late Payments / Failure to Pay.
Administrative charges may be assessed and/or the service may be disconnected. If the service is disconnected, Customer may be required to pay a reconnect fee in addition to all past due charges before the service is reconnected. The administrative charge is intended to be a reasonable advance estimate of PogoZone’s costs resulting from Customer’s late payments and non-payments. In the event of a disconnection of Customer’s service hereunder, Customer will remain liable for all service fees and other fees due through the end of the term agreed upon by Customer and PogoZone.
13. Additional Charges.
The service provided by PogoZone will allow Customer to access the Internet, online services, and other information, and provide Customer access to e-mail. Customer acknowledges that Customer may incur charges while using the service in addition to those billed by PogoZone. For example, charges may be incurred as a result of accessing certain online services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer.
14. Billing Errors.
Subject to applicable law, Customer must notify PogoZone of any billing errors or other requests for credit within 60 days of the related billing. PogoZone will not be responsible for disputes in billing not brought within this time.
II. Unforeseen Interruption of Services
To the extent possible, PogoZone shall notify Customer as soon as it is practical in the event that PogoZone is required to interrupt, either partially or fully, the services being provided to Customer. Such interruptions shall not be deemed a default hereunder.
Except as expressly set forth in or contemplated by the Agreement, in the case of refund for lost services, credit may be issued only for periods of lost service greater than twenty four (24) continuous hours. In the event of lost services greater than 24 continuous hours, not including lost service due to the failure of Customer Equipment, unauthorized Customer relocation of PogoZone’s equipment, through any other fault of Customer, or due to the failure of any upstream network outage, PogoZone may, at its sole discretion, prorate the refund for the lost service time in respect to the Customer’s monthly service fees. No refund will be given for any lost time under 24 continuous hours. Customer is not eligible for any refunds if Customer is in violation of any of the terms of the Agreement. All refund requests are handled on a case by case basis. For questions, concerns or disputes please contact us via phone: 360-676-8772 or email: email@example.com or via mail: PO Box 974, Lynden, WA 98264.
PogoZone will use commercially reasonable efforts to (at PogoZone’s sole option), repair or replace any PogoZone equipment damaged due to normal wear. If determined by PogoZone, that (i) a repair was not related to PogoZone’s equipment, or (ii) PogoZone’s equipment was not damaged by normal wear, then the Customer will be billed at PogoZone’s then-current hourly rates plus materials. PogoZone will not be responsible for the repair or replacement of any Customer Equipment or any interruption of service due to failure of Customer Equipment.
PogoZone will not be held responsible for the external Internet connections provided from third parties.
In the event the Customer moves or relocates to a location where PogoZone service is not available, Customer is responsible to fulfill the terms of the Agreement as set forth in section VIII: Termination and Expiration.
1. Customer understands that all information, data, text, software, music, sound, photographs, graphics, videos, messages, or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. Customer is entirely responsible for all Content that Customer uploads, posts, emails, or otherwise transmits via the service. PogoZone does not control the Content posted via the service and, as such, does not guarantee the accuracy, integrity, or quality of such Content. Customer understands that by using the service, Customer may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will PogoZone be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of any Content posted, emailed, or otherwise transmitted to Customer via the service.
2. Customer agrees not to use the service to: (i) upload, post, email, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (ii) harm minors in any way; (iii) impersonate any person or entity, including, but not limited to, a PogoZone representative, forum leader, guide or host, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the service; (v) upload, post, email, or otherwise transmit any Content that Customer does not have a right to transmit under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vi) upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (vii) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (viii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (ix) interfere with or disrupt the service or servers or networks connected to the service, or disobey any requirements, procedures, policies, or regulations of networks connected to the service; (xi) intentionally or unintentionally violate any applicable local, state, federal, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, but not limited to, the New York Stock Exchange, the American Stock Exchange, or the Nasdaq, and any regulations having the force of law; (xii) “stalk” or otherwise harass another; or (xiii) collect or store personal data about others.
3. Customer acknowledges that PogoZone does not pre-screen Content, but that PogoZone and its designees shall have the right (but not the obligation) in their sole discretion to refuse, restrict or move any Content that is available via the service. Without limiting the foregoing, PogoZone and its designees shall have the right to remove any Content that violates the Agreement or is otherwise objectionable, in PogoZone’s sole discretion. Customer agrees that Customer must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, Customer acknowledges that Customer may not rely on any Content created by PogoZone or submitted to PogoZone.
4. Customer acknowledges and agrees that PogoZone may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Agreement; (iii) respond to claims that any Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of PogoZone, its users, and the public.
5. Customer understands that the technical processing and transmission of the service, including Customer’s Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
6. It is Customer’s sole responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services, and other information provided through the service. PogoZone does not endorse or represent the reliability, accuracy, or quality of any information, goods, services, or products displayed or advertised on the service. Any items purchased or obtained by any Customer through the service is done at the Customer’s sole risk. Any Content related to business, finance, and/or securities matters and the like contained on the service is provided for informational purposes only, and no content included in the service is intended for trading or investing purposes. PogoZone shall not be responsible or liable for the accuracy, usefulness, or availability of any information transmitted via the service, and shall not be responsible or liable for any trading or investment decisions made based on such information.
7. Customer agrees that the service and the software may contain proprietary and confidential information that may be protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that Content contained in sponsor advertisements or information presented to Customer through the service, advertisers, or suppliers may be protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws.
8. Customer agrees not to reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes, any portion of the service, use of the service, or access to service.
9. Dealings with Advertisers and Suppliers. Customer may enter into correspondence with or participate in promotions of advertisers and/or suppliers on the service showing their products on the service. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties, or representations associated with such correspondence or promotions, are solely between the corresponding user and the advertiser, and/or supplier. PogoZone assumes no liability, obligation, or responsibility for any part of any such correspondence or promotion.
10. Links to Third-Party Sites. PogoZone provides links to other external sites or resources. Because PogoZone has no control over such sites and resources, Customer acknowledges and agrees that PogoZone is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other information or materials on or available from such sites or resources. If Customer chooses to access third-party services, Customer does so entirely at Customer’s own risk.
11. Internet subscriptions are designed for normal personal use. If usage deviates significantly from such use, or if there are signs that the Internet is being used excessively, such as for the commercial provision of web hosting or other services (Peer-to-Peer (P2P), file sharing software, sharing internet access, download portal, etc.), or in connection with the resale of bandwidth, PogoZone reserves the right to restrict or suspend its service or take other appropriate action at any time.
1. Subscriber Privacy Notice.
2. Monitoring the service.
3. Prohibited Uses of the service.
Customer shall not use PogoZone’s equipment or the service to, directly or indirectly: (a) participate in any unlawful purposes. Use of PogoZone’s equipment or service for transmission or storage of any information, data, or material in violation of any U.S. federal, state, or local regulation or law is prohibited. This includes, but is not limited to, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or which infringes the intellectual property of any person; (b) post, transmit, or disseminate objectionable information, including, without limitations, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, federal, or international law, order, or regulation; (c) access any other person’s computer or software without the knowledge and consent of such person; (d) upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software, or other material obtained through the service which is protected by copyright or other proprietary right, without obtaining permission of the owner; (e) alter, modify, or tamper with the PogoZone service or permit any other person to do the same that is not authorized by PogoZone; (f) restrict, inhibit, or otherwise interfere with the ability of any other person to use or enjoy PogoZone’s equipment or the service, including, without limitation, posting or transmitting any information or software which contains a virus or other harmful feature; or generating levels of traffic sufficient to impede others’ ability to send or retrieve information; (g) inhibit or have the potential to inhibit the ability of any other person to use the service by serving or attempting to serve faulty IP addresses to other PogoZone customers. PogoZone may deny service to Customer until the problem is resolved; (h) knowingly disrupt the service; (i) resell the service or otherwise charge others to use the service. The service is for personal use only and Customer agrees not to use the service for operation as an Internet service provider or for any other business enterprise in competition with the service; (j) attempt to login, access, or attack any of PogoZone’s equipment or network, including radio and network equipment; (k) assist (release proprietary software and information) unauthorized users to gain access to PogoZone’s network; or (l) open, tamper with or attempt to repair PogoZone’s equipment; PogoZone reserves the right to restrict or block certain activities or immediately terminate the Agreement and the service (i) if Customer engages in any of the activities listed above, (ii) if PogoZone receives an appropriate notice or request under the Digital Millennium Copyright Act, (iii) if necessary to comply with any law, regulation, rule or judicial or regulatory order, or (iv) if Customer uses PogoZone’s equipment or services in a way which is contrary to any other PogoZone policy.
Copies of policies are available on the PogoZone web site. This section shall not in any way limit PogoZone’s rights of termination pursuant to the Agreement. Customer assumes the risk and agrees to indemnify and hold harmless PogoZone against all claims and expenses (including reasonable attorney fees) resulting from Customer engaging in any of the activities listed above. This provision will survive termination of the Agreement.
Unless produced by PogoZone, the information Customer accesses or receives by using the service or information sent to Customer by other users is provided, entered, or posted by the users and is not reviewed, controlled, examined, verified, or endorsed by PogoZone The data and information Customer sends and receives may be subject to privacy- and security-invading activities including, but not limited to, eavesdropping, electronic trespassing, “sniffing,” “spamming,” “nuking,” “hacking,” “spoofing,” imposture, breaking passwords, harassment, fraud, forgery, and system contamination including use of viruses, “worms,” and “Trojan” applications causing unauthorized, damaging, harmful access and/or retrieval of information and data on Customer’s computer and other forms of activities that may even be considered unlawful. Information and data may also not reach its destination or may reach an erroneous address or recipient.
CUSTOMER IS ADVISED NOT TO USE OR RELY ON THE SERVICE AND INFORMATION RELATED THERETO FOR “CONTENT SENSITIVE” OR “MISSION CRITICAL” APPLICATIONS AND USE. “CONTENT SENSITIVE” MEANS ANY INFORMATION OR DATA CUSTOMER DOES NOT WISH TO BE FREELY ACCESSIBLE AND GENERALLY AVAILABLE TO INTERNET USERS. “MISSION CRITICAL” APPLICATIONS AND USE ARE THOSE WHERE CONTINUOUS OPERATION IS CRITICAL TO AN INDIVIDUAL OR COMPANY AND WHERE HARM OR DAMAGE MAY BE CAUSED IF ANY DOWNTIME WOULD HAVE AN ADVERSE EFFECT ON THAT INDIVIDUAL OR COMPANY.
5. Security, And File and Print Sharing.
PogoZone’s facilities are used by numerous service subscribers. As a result, there is a risk that Customer could be subject to “eavesdropping.” This means that other service subscribers may be able to access and monitor Customer’s use of the service. This risk of eavesdropping exists not only with PogoZone’s facilities, but also on the Internet and other services to which access is provided as part of the service. Because of this risk, any sensitive or confidential information sent by Customer is sent at the Customer’s sole risk, and PogoZone shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to such actions by Customer.
6. FTP/HTTP Service Setup.
Customer should be aware that when using the service to access the Internet or any other online network or service, there are certain applications, such as FTP (File Transfer Protocol) server or HTTP (Hyper Text Transfer Protocol) server, which may be used to allow other service users and Internet users to gain access to Customer’s computer. If Customer chooses to run such applications, Customer should take the appropriate security measures. PogoZone shall not have any liability whatsoever for any claims, losses, actions, damages, suits, or proceedings resulting from, arising out of, or otherwise relating to the use of such applications by Customer, including without limitation, damages resulting from others accessing Customer’s computer.
7. Local Area Network (LAN) in that each Customer is a node on the network.
As such, users outside the Customer’s home may be able to access the Customer’s computer. It is important that the Customer take appropriate steps to protect their information on the computer from being accessed by others. To this end, we encourage Customers to acquire a firewall, utilize virus protection, and implement other security measures the Customer deems necessary to protect the integrity of the data on Customer’s computer. In addition, some software includes capabilities that permit other users across a network, such as the service and the Internet, to gain access to the Customer’s computer and to the software, files, and data stored on the computer. Operating systems can include file sharing and print sharing capabilities which, when enabled, will permit other users to gain access to the Customer’s computer even if the Customer is not using the service. Notwithstanding the foregoing recommendations, Customer hereby acknowledges and agrees that the Customer’s use of the service is at the Customer’s own risk, and PogoZone shall not have any liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to such use by the Customer.
8. Permission Grant.
PogoZone grants to you permission to use PogoZone’s equipment (antenna, radio modem, modem, Category-5 cable, and/or wall jack), but does not grant permission to: (a) attempt to login/reconfigure/attack PogoZone’s equipment (b) open PogoZone equipment (c) remove any proprietary notices or labels on PogoZone’s equipment (d) modify, translate, reverse-engineer, de-compile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the PogoZone equipment (e) rent, sell or otherwise transfer the PogoZone equipment (except to the extent assignable pursuant to the terms of the Agreement).
9. Customer Obligations.
In consideration of Customer’s use of the service, Customer agrees to: (a) provide true, accurate, current, and complete information as prompted by the service’s registration or member sign-up form (such information being the “Registration Information”); (b) maintain and promptly update the Registration Information to keep it true, accurate, and complete; (c) refrain from using the service for any purpose that is unlawful or prohibited by the Agreement. If Customer provides any information that is untrue, inaccurate, not current, or incomplete, or if PogoZone has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, PogoZone has the right to suspend or terminate Customer’s account and refuse any and all current or future use of the service (or any portion thereof); and
10. Service Eligibility.
The service is available only to individuals and entities that can form legally binding contracts under applicable law and their permitted agents and assigns (i.e., family members, friends, etc.). (a) Customer is responsible for the use of the service by anyone other than Customer at all times without exception. PogoZone or any of its parents, subsidiaries, affiliates, agents, or assigns, may refuse the use of, and participation in, the service to anyone at any time, in its sole discretion. (b) Receiving files from third parties, via any application (i.e., email) may be harmful. Before receiving any files from any user, and even if the account from which the file transfer notice is sent looks familiar to Customer, it is strongly recommended that Customer verifies that the person sending Customer these files is indeed the person Customer thinks he or she is, for example by asking for some kind of information known only to the Customer and such other person. Please make sure not to receive files from users Customer does not trust, from users Customer is not sure they are whom they say they are, or whenever Customer is not sure Customer wants to receive the files. (c) If PogoZone identifies that a certain IP address/block is the source of illegal network activity, such as hacking, DDOS-Distributed Denial of service attacks, and SYN flood, PogoZone may block Internet access to/from that IP address/block without any advance notice. (d) If PogoZone identifies that a certain email domain is “spamming” or using “email relay,” PogoZone will block any email coming from that email domain without any advance notice.
V. Limited Warranty
EXCEPT AS OTHERWISE SET FORTH, PogoZone’S EQUIPMENT, SERVICE, AND SOFTWARE ARE PROVIDED BY PogoZone “AS IS” WITHOUT WARRANTY OF ANY KIND. PogoZone DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF PogoZone’S EQUIPMENT OR SERVICE. CUSTOMER’S SOLE REMEDY FOR SERVICE INTERRUPTION SHALL BE LIMITED TO A PRO RATA REFUND FOR INTERRUPTIONS GREATER THAN 24 CONTINUOUS HOURS. PogoZone DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY ARE HEREBY EXCLUDED.
1. DISCLAIMER OF WARRANTIES.
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT: a. PogoZone MAKES NO WARRANTY THAT (i) THE SERVICE OR PogoZone’S EQUIPMENT WILL MEET CUSTOMER’S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) DELETION, MISDELIVERY, OR FAILURE TO STORE OR EFFECTUATE ANY USER COMMUNICATIONS, ORDERS, LISTINGS, OR CUSTOMIZATION SETTINGS WILL NOT OCCUR AS A RESULT OF CUSTOMER’S USE OF THE SERVICE, (iv) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (v) ANY ERRORS IN PogoZone’S EQUIPMENT, INCLUDING HARDWARE OR SOFTWARE, WILL BE CORRECTED. b. THE SERVICE MAY CONTAIN DEFECTS AND, ACCORDINGLY, CUSTOMER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION, AND TO NOT RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICE. c. ANY MATERIAL, PRODUCTS, OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM PogoZone OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
2. LIMITATION OF LIABILITY.
PogoZone OR ANY OTHER PERSON INVOLVED IN CREATING, INSTALLING, DELIVERING, TESTING, OR USING THE SERVICE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE, SERVICE OUTAGE, OR FOR COST PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO, OR ALTERATION OF A USER’S TRANSMISSIONS OR DATA, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE, PROFITS, BUSINESS USE, DATA, OR OTHER INTANGIBLE INFORMATION, EVEN IF PogoZone HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY FOR PogoZone TO CUSTOMER FOR ALL CLAIMS ARISING FROM THE USE OF THE SERVICE IS LIMITED TO $100.
3. EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
4. General Acknowledgments.
Customer acknowledges that PogoZone may establish general practices and limits concerning use of the service, including without limitation (i) the maximum number of days that email messages, message board postings, or other uploaded Content will be retained by the service, (ii) the maximum number of email messages that may be sent from or received by an account on the service, (iii) the maximum size of any email message that may be sent from or received by an account on the service, (iv) the maximum disk space that will be allotted on PogoZone’s servers on Customer’s behalf. Customer agrees that PogoZone has no responsibility or liability for the failure of the service and the deletion of other Content maintained or transmitted by the service. PogoZone reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the service (or any part thereof) with or without notice.
5. Third parties.
Customer agrees that PogoZone shall not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the service. Customer further acknowledges that PogoZone reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
Customer agrees to indemnify and hold PogoZone, its directors, officers, employees, agents, attorneys, co-branders or other partners harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of the Content Customer submits, posts to or otherwise transmits through the service, Customer’s use of the service and PogoZone’s equipment, Customer’s connection to the service, Customer’s violation of the Agreement, or Customer’s infringement of any intellectual property or other right of any other person or entity.
Because user authentication on the Internet is difficult, PogoZone cannot and does not confirm that each user is who they claim to be. Because PogoZone does not and cannot be involved in user-to-user dealings or control the behavior of participants on PogoZone’s service, in the event that Customer has a dispute with one or more users, PogoZone has no ability to prevent or restrict conduct, communications, or Content which might violate the Agreement prior to its transmission on or through the service, nor can PogoZone ensure prompt removal of any such communications or Content after transmission or posting. Accordingly, PogoZone does not assume responsibility to Customer or others for any failure by PogoZone to enforce the provisions contained in the Agreement.
Customer shall have no right to assign or transfer this Agreement or the associated Customer Equipment without the express prior written consent of PogoZone.
9. Governing Law and Forum Selection.
The Agreement is between Customer and PogoZone and (a) This Agreement shall be governed by and construed in accordance with the laws of the State of Washington without regard to its conflicts of law provisions. (b) International Use. Recognizing the global nature of the Internet, Customer agrees to comply with all local rules regarding online conduct and acceptable Content. Specifically, Customer agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which Customer resides. (c) All suits arising out of the Agreement shall be brought in Whatcom County, Washington.
10. Time Limitation.
Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or use of the service must be filed within one year after such claim or cause of action arose or be forever barred.
The section headings and sub-headings contained in this Agreement are for convenience only and have no legal or contractual effect.
1. No Relationship.
Nothing in this Agreement will create any joint venture, joint employer, franchisee- franchiser, employer-employee, or principal-agent relationship with PogoZone, nor impose upon either company any obligations for any losses, debts, or other obligations incurred by the other except as expressly set forth herein.
2. Customer’s Account, Password, and Security.
Customers may receive a user name, password, and account designation upon registration. PogoZone Customers and members of PogoZone Customers’ household or business (if a business account has been purchased) are the only authorized users of Customer’s PogoZone account and must comply with the Agreement. Customer must keep his/her password confidential so that no one else may access the service through the account. Customer must notify PogoZone within 24 hours of discovering any unauthorized use of Customer’s account. E-mail accounts exceeding Customer’s allotted web space in size may block new incoming messages. User names, passwords, and e-mail addresses are PogoZone’s property and PogoZone may alter or replace them at any time.
The Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of the Agreement and supersedes and replaces any and all prior written or verbal agreements. In the event that any portion of the Agreement is held to be unenforceable, the unenforceable portion shall 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 shall remain in full force and effect. PogoZone’s failure to insist upon or enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provisions of the Agreement.
VII. Termination and Expiration
1. Termination by Customer.
Customer may only terminate the Agreement by written notice to PogoZone. The obligation of Customer to pay for the remaining service term shall survive such termination. All related charges and fees may be billed to Customer or charged to Customer’s credit card. Customer agrees and acknowledges that the payment obligations set forth herein apply to Customer’s termination of the Agreement for any reason whatsoever.
2. Customer Obligations Upon Termination.
Customer agrees that upon termination of the Agreement, PogoZone equipment must be returned in good working condition or will be subject to a $150 non-returned equipment fee. Customer will permit PogoZone, and its employees, agents, contractors, and representatives, to access Customer’s premises to remove PogoZone’s equipment, or Customer may remove equipment and return it to PogoZone in good working condition within 5 days of the effective date of termination or Customer will be subject to a $150 non-returned equipment fee.
3. Termination by PogoZone.
PogoZone may terminate the Agreement immediately should Customer violate any of the terms of the Agreement. PogoZone may also terminate the service for any other reason at any time by providing Customer with written notice of such termination no later than 30 days prior to the date of termination. In the event PogoZone terminates the service for any reason other than Customer’s violation of the Agreement, fees and charges will accrue through the date of termination but all prepaid fees and charges that have been paid in advance for any full month of canceled services will be refunded.
4. Retention of Rights.
Nothing contained in the Agreement shall be construed to limit PogoZone’s rights and remedies available at law or in equity. Subject to applicable law, PogoZone reserves the right to delete all data, files, electronic messages, or other information that is stored on PogoZone’s servers or systems when Customer’s account with PogoZone is terminated for any reason.
5. Multiple Users.
Customer acknowledges that Customer is executing the Agreement on behalf of all persons who use PogoZone’s equipment and/or service through Customer’s computer. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of the Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of the Agreement, whether such breach is the result of use of the service and/or PogoZone’s equipment by Customer or by another user of Customer’s computer. Customer agrees to indemnify and hold harmless PogoZone against all claims and expenses (including reasonable attorney fees arising out of the use of the service and/or equipment by any other user of Customer’s computer).
6. Copyright Infringement.
Notices and Procedure to Making Claims of Copyright Infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to PogoZone’s Designated Agent.