Internet Services Subscriber Agreement

SECTION ONE NOTICE

BY SUBMITTING THE APPLICATION AND ACTIVATION FEE, YOU BECOME A PARTY TO THIS AGREEMENT AND SHALL BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IT IS YOUR RESPONSIBILITY TO READ, UNDERSTAND AND ABIDE BY ALL OF THE PROVISIONS OF THIS AGREEMENT.

SECTION TWO INTRODUCTION

CME•NET Internet Access is an integrated system, comprised of an Internet "gateway" and a Web browser, for access and use of the Internet. CME•NET Internet Access is operated by Charles Mix Electric Association, Inc.(CME), a rural electric cooperative, located at 440 Lake Street, Lake Andes, SD 57356-0010.

SECTION THREE SERVICES

The services provided by CME•NET pursuant to this Agreement consist of the following:

  1. Access to the Internet;
  2. Configured Internet Browser;
  3. E-mail

Said services are provided at the prices and upon the terms and conditions stated in this Agreement.

SECTION FOUR THIRD PARTY VENDORS

The CME•NET Internet Access service is comprised, in part, of proprietary technology that CME•NET as procured for use by its customers from certain third-party vendors, including, but not limited to, Basin Telecommunications, Inc. (BTI), AT&T Corporation (AT&T), Golden West Communications, Inc., Fort Randall Telephone and Netscape Communications Corp. Inc.(Netscape), which are third-party beneficiaries of this agreement. Attachments A and B, which are attached hereto and incorporated as an integral part of this agreement for all purposes, are agreements with AT&T and Netscape governing use of their respective, proprietary technologies. Acceptance of this Agreement constitutes full acceptance of all terms and conditions set forth in Attachments A and B.

SECTION FIVE USER RESPONSIBILITIES

You are responsible for providing all equipment, devices and software(other than the configured browser available from CME•NET necessary to receive and use the service. The equipment that you provide will have a direct and substantial impact upon the results obtained by the use of the CME•NET Internet Access System. CME•NET will provide telephone numbers to connect to the service, which for most customers will include a local number. You are responsible for all telephone fees and charges associated with the use of the telephone number you select. Use of the CME•NET Internet Access Service(the "Service"), and of specific telephone numbers, is subject to interruptions at CME•NET discretion or beyond CME•NET's control. Unauthorized access to the Service, to restricted portions of the Service, or to the telecommunications or computer facilities used to deliver the Service, is a breach of this agreement.

SECTION SIX LOGINS AND PASSWORDS

Use of the Service requires both a login and password. You will receive a unique login and a password. Your login name is your address on the Internet, and you and CME•NET may disclose it to others. Your password is the key that allows you to access the Internet under your login name, and unlocks access to your e-mail.  Anyone knowing both your login and password can gain access to your e-mail and use the Service in your name, so passwords must be kept secret. You are solely responsible for maintaining the confidentiality of your password, and for all consequences of a failure to do so. If you forget your password, CME•NET can assist you. Such assistance will be provided during regular business hours only. Use of another Customer's login, or improper solicitation of another Customer's password, are grounds for termination of your right to use the Service.

You agree that you will not use or attempt to use the Service or the Internet in any way or for any purpose described below:  

  1. To seek to gain unauthorized access to the resources of the Internet; 
  2. To disrupt the intended use of the Internet; 
  3. To waste resources (people, capacity, computer) through such actions; 
  4. To destroy the integrity of computer-based information; 
  5. To compromise the privacy of users; and/or 
  6. To seek to commit an illegal act through the use of the system.

It is your responsibility to comply with all international laws and all copyright laws, obscenity laws, defamation laws, etc. You are reminded that conduct that is illegal in other media (for example, violations of copyright laws, etc.) is also illegal on the Internet, and you are fully and solely responsible for the consequences of engaging in any illegal conduct by use of the Service.  

Users are personally responsible for all use of the Service under their login, even if someone else uses their login. Illegal, fraudulent or abusive use of any login on the Service will result in immediate termination of your right to use the Service, and may be referred to law enforcement authorities. Use of any login under a name other than your own is prohibited.  

You must immediately inform CME•NET if you suspect any breach of security, such as loss, theft, or unauthorized disclosure or use of your login or password. Until CME•NET is notified of a breach of security, you will remain responsible for any unauthorized use of the Service occurring under your login.

A user login is for the use by one person only. You may not sell, assign, transfer or give away your login. Under no circumstances will you resell your connect time.

CME•NET is not responsible in any way for any computer programs or devices used or intended for use in connection with the Service, even if such programs are made available on the Service. Most of the programs used on the Service are third-party programs beyond the control of CME•NET.

You hereby agree to indemnify and hold CME•NET harmless from all claims, awards, judgments, costs, expenses (including the cost of defense) and damages to which CME•NET is made subject as a result of any illegal, unethical or other improper use by you of the Service and/or a breach by you of this Agreement.

SECTION SEVEN TIME LIMIT

The monthly service fee entitles you to unmetered access to CME•NET's Gateway and use of CME•NET's service.

SECTION EIGHT FEES AND PAYMENT

You are responsible for paying all fees and charges (plus applicable taxes) associated with use of the Service. CME•NET reserves the right to change the amount of, or basis for determining, any fee or charge, and to institute new fees or charges, effective upon 30 days notice to the customer.

The charges currently in effect for use of the CME•NET Internet Access System are as follows:

  Activation Fee - $25.00

  Monthly Access Fee - $17.95 (includes one e-mail mailbox)

  Additional e-mail mailboxes - $5.00 per month

Fees shall be payable in advance, and will be due by the 10th of the month in which the Service is rendered. A $24.00 fee will be charged to your account if payment, whether by check or automatic withdrawal from your bank account, is returned as unpaid for any reason. All applicable federal, state, and local sales and excise taxes, if any, applicable to your use of the service will be added to the basic fees described herein above.

You understand and agree that the fees and charges described in this section are solely for the use of the Service as described above in Section Three. Various products and services other than those described in this Agreement are offered by vendors and providers other than CME•NET on or over the Internet, for which separate fees or charges are levied by those vendors. You are solely responsible for payment of all fees charged for products and services incurred by your use or purchase thereof.

Failure to make timely payment of monthly fee shall make your access to the Service terminable at the option and discretion of CME•NET. A $25 activation fee will be charged to reactivate any terminated account.

SECTION NINE USE OF THE INTERNET

CME•NET has no control over opinions, advice or statements given or made by anyone other than authorized CME•NET spokespersons in any manner on or through the Service.

Opinions, advice and all other information expressed by users or service providers on the Internet represent their own views and not necessarily those of CME•NET. CME•NET does not endorse, support or vouch for the accuracy of any such information. The Internet lets you share information and communicate with other individuals accessing the Internet all around the world. By accepting this Agreement, you agree not to use the Service to send, or submit for public posting, or intentionally receive, any abusive, obscene, profane, sexually explicit, threatening or illegal material, or material containing blatant expressions of bigotry, racism or hate. If it comes to the attention of CME•NET that you are using the Service in a manner of this type, your access will be immediately terminated. You agree not to use your access to the Internet through the Service to engage in unsolicited advertising to other individuals accessing the Internet to buy or sell any products or services. This does not apply where a forum exists on the Internet for the purpose of trading/selling equipment or services. You are responsible for material sent through or displayed on the Internet under your login, even if a claim should arise after termination of the membership.

The technology presently available for use on the Internet is not sufficient to guaranty confidentiality or security with respect to transmissions over the Service, or the Internet generally, or transactions (such as purchases by credit card, etc.). Accordingly, you assume sole and complete risk and responsibility for the consequences of such actions, and CME•NET assumes no such responsibility.

SECTION TEN CME•NET INTERNET ACCESS SYSTEM

Messaging

CME•NET will comply in all respects with the Electronic Communications Privacy Act of 1986, as amended, relating to private electronic messages on the Service.

CME•NET will not view the contents of private electronic messages, or show their contents to anyone other than the writer or an intended recipient, without the approval of either the writer or an intended recipient, except as permitted or required by law. It is your responsibility to delete messages that are no longer needed.

Keeping an excess of messages could result in operational problems on the home computer system. You are hereby notified that CME•NET will delete private electronic messages on a thirty (30) day rotational basis (i.e., a message will be deleted automatically thirty (30) days after the date it is received).

Anonymous mail will not be tolerated and will result in immediate termination of access to the CME•NET service.

Public Posting Areas

Public posting areas, such as the Usenet, exist on the Internet where users may submit material for viewing by other persons accessing the Internet, and view submissions by others. Submissions include the name, login and other information that would be displayed with the submitted material. You agree to use public postings areas only in accordance with this Agreement and any specific policies and guidelines for the area that are displayed on the Internet.

Anonymous postings to public areas will not be tolerated and will result in immediate termination of your right to use the Service.

You may not submit copyrighted material to public postings areas without the specific authority of the copyright owner; doing so is a breach of this Agreement and may subject you to legal liability.

By submitting material to a public postings area, you agree to indemnify CME•NET and hold it harmless from claims arising from the submission. Remember: You are responsible for all submissions under your login. CME•NET is not responsible, and shall have no liability for material displayed in a public postings area.

By submitting material to a public postings area, you are irrevocably granting everyone accessing that area permission to reproduce and/or redistribute all or parts of your submission in any form for non-commercial purposes. In addition, anyone is free to use information contained in a submission for any purpose, at their own risk.

Notices

CME•NET will give most notices to customers by e-mail. Other notices may be given by a general posting, or by conventional mail.

Notices by customers to CME•NET must be given by conventional mail.

Notices to CME•NET by conventional mail must be sent to:

CME•NET

PO Box 10

Lake Andes, SD 57356-0010

Warranty and Limitation of Liability

CME•NET warrants only that the CME•NET Internet Access System, when used in accordance with provided operating instructions, will provide access to the Internet. YOUR SOLE REMEDY FOR FAILURE OF THE CME•NET INTERNET ACCESS SYSTEM TO PROVIDE SUCH ACCESS SHALL BE A PRO-RATA REFUND OF THE MONTHLY USER FEE FOR THE MONTH IN WHICH A FAILURE OF THE SYSTEM TO PROVIDE SUCH ACCESS.  IN NO EVENT WILL CME•NET BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF (OR ATTRIBUTABLE TO) THE USE OR INABILITY TO USE THE CME•NET INTERNET ACCESS SYSTEM.

Termination of Access to the Service

Either you or CME•NET may terminate the Service at any time and without cause. The only recourse of a user with respect to dissatisfaction with any policies, guidelines or practices, changes in fees or service content is for the user to terminate his use of the Service.

CME•NET shall terminate your access to all or any part of the Service, without notice, for conduct that CME•NET believes is a violation of this Agreement or any policies or guidelines posted by CME•NET on the Service, or for other conduct that CME•NET believes harmful to others (termination for "cause").

Upon termination of the Service without cause, CME•NET will refund any unused portion of prepaid fees after satisfying any outstanding balances owed CME•NET. Termination for cause shall not entitle the terminated party to any refund or reimbursement whatsoever.

CME•NET is not responsible for notifying anyone other than you of a termination of your access to the Service. Upon termination of access, any banking, brokerage, or other third-party relationships will no longer be accessible through the Service. CME•NET will not have any responsibility for consequences of such lack of access.

Miscellaneous

This Agreement, and all policies and guidelines referred to herein, which you accept by accepting and using the Service, constitutes the entire agreement between  you and CME•NET regarding use of the Service, and may be amended at any time and in any fashion by CME•NET upon notice from CME•NET to you. The provisions of this Agreement will continue in effect even after termination of your access. You can reach CME•NET by calling 487-7321 locally or  1-800-208-8587 toll free, or by writing to:

CME•NET

440 Lake Street

Lake Andes, SD 57356-0010

You agree that the laws of the State of South Dakota shall be applied in all matters pertaining to the construction and/or application of the terms of this Agreement.

Your acceptance of this Agreement constitutes your consent and submission to personal jurisdiction of the courts of the State of South Dakota, with respect to any matter relating to your use of the Service.

SECTION ELEVEN REPRESENTATION

You represent that you are of full age of legal majority and are not under any disability or restriction, and are in all respects fully authorized and empowered to enter into this Agreement and be bound by and perform in accordance with its terms. This document, when accepted by you, will impose certain legally enforceable obligations upon you. If you have any questions pertaining to the content or effect of this Agreement, it is your responsibility to contact your own legal advisor.

ATTACHMENT AEND USER LICENSE AGREEMENT

BY OPENING THE PACKAGE OR CLICKING ON THE 'ACCEPT' BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE 'DO NOT ACCEPT' BUTTON OR RETURN THIS PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.

NETSCAPE NAVIGATOR END USER LICENSE AGREEMENT

GRANT. Licensor hereby grants to you a non-exclusive license to use its accompanying software product ('Software') and accompanying documentation

('Documentation') on the following terms:

You may:

  • use the Software on any single computer;
  • use the Software on a second computer so long as the first and second computers are not used simultaneously;
  • copy the Software for archival purposes, provided any copy must contain all of the original Softwares proprietary notices.

You may not:

  • permit other individuals to use the Software except under the terms listed above;  modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software or Documentation;  copy the Software or Documentation (except for back-up purposes);  rent, lease, transfer or otherwise transfer rights to the Software or Documentation; remove any proprietary notices or labels on the Software or Documentation.

SOFTWARE. If you receive your first copy of the Software electronically, and a second copy on media, the second copy may be used for archival purposes only.  This license does not grant you any right to any enhancement or update.

TITLE. Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain in Licensor and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives you no rights to such content.

LIMITED WARRANTY. Licensor warrants that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. Licensor does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations, and you must determine that the Software sufficiently meets your requirements. Licensor also warrants that the media containing the Software, if provided by Licensor, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. Licensor's sole liability for any breach of this warranty shall be, in Licensor's sole discretion: (I) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee you paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to you of the repaired or replaced Software, or (b) Licensor advised you how to operate the Software so as to achieve the functionality described in the Documentation. Only if you inform Licensor of your problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will Licensor be obligated to honor this warranty. Licensor will use reasonable commercial efforts to repair, replace, advise or refund pursuant to the foregoing warranty within 30 days of being so notified.

THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES NO OTHER EXPRESS WARRANTY AND NO WARRANTY OF INFRINGEMENT OF THIRD PARTIES' RIGHTS. THE DURATION OF IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY NOT APPLY TO YOU. NO LICENSOR DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY

MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.

LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF LICENSOR'S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

TERMINATION. This license will terminate automatically if you fail to comply with the limitations described above. On termination, you must destroy all copies of the Software and Documentation.

EXPORT CONTROLS. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Yugoslavia, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.

In addition, if the licensed Software is identified as a not-for-export product (for example, on the box, media or in the installation process), then the following applies:

EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR 'FOREIGN PERSON' AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A 'FOREIGN PERSON' OR UNDER THE CONTROL OF A FOREIGN PERSON.

MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs (a)through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Netscape Communications Corporation, 501 East Middlefield Road, Mountain View, CA 94043.

ATTACHMENT B
REQUIRED USER TERMS AND CONDITIONS

(References to 'Company' in this Schedule A are to West Central Electric Cooperative; references to 'End User' in this Schedule A are to you).

  1. For purposes of this Paragraph 1, 'Company' includes Company, any affiliated and subsidiary companies of Company, any subcontractors and suppliers of the foregoing, including AT&T Corp., and the directors, employees, officers, agents, subcontractors and suppliers of all of them. 
  2. End user is solely responsible for the content of any transmissions using the Services, or any other use of the Services, by End User or by any person or entity End User permits to access the Services. End User agrees that it and any User will not use the Services for illegal purposes, or to interfere with or disrupt other network users, network services or network equipment. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network. End User shall defend, indemnify, and hold harmless Company from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by any person based upon the content of any transmissions by End User or any User using the Services or any other use of the Services by End User or any User. 
  3. End User shall not authorize any other person to use the Service and shall not resell or otherwise generate income by providing access to the Service to any other User. If End User permits Users to access the Services, End User shall defend, indemnify, and hold harmless Company from and against all liabilities and costs (including reasonable attorneys' fees)arising from any and all claims by any such Users in connection with the Services, regardless of the form of action, whether in contract, tort (including Company's active or passive negligence), warranty, or strict liability. However, End User shall have no obligation to indemnify and defend Company against claims for direct damages to real or tangible personal property, or for bodily injury or death, proximately caused by Company's negligence. 
  4. End User agrees to comply, and to cause any User to comply, with United States law with regard to the transmission of technical data which is exported from the United States using the Services. 
  5. COMPANY MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 
  6. COMPANY'S LIABILITY TO CUSTOMER ON ACCOUNT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNTS PAID BY END USER FOR SERVICES DURING THE MONTH DURING WHICH THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES OCCURS. 
  7. COMPANY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE THAT END USER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL ACT OF COMPANY. COMPANY SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO END USERS TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF END USERS NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY COMPANY WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER, END USERS SOLE REMEDY SHALL BE A REFUND OF A PRO RATA PORTION OF THE PRICE PAID FOR SERVICES WHICH WERE NOT PROVIDED. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN THE CASE OF REFUND FOR LOST SERVICES, CREDIT WILL BE ISSUED ONLY FOR PERIODS OF LOST SERVICE GREATER THAN TWENTY-FOUR (24) HOURS.
  8. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.

Said services are provided at the prices and upon the terms and conditions stated in this Agreement.

SECTION FOUR    THIRD PARTY VENDORS

The CME•NET Internet Access service is comprised, in part, of proprietary technology that CME•NET as procured for use by its customers from certain third-party vendors, including, but not limited to, Basin Telecommunications, Inc. (BTI), AT&T Corporation (AT&T), Golden West Communications, Inc., Fort Randall Telephone and Netscape Communications Corp. Inc.(Netscape), which are third-party beneficiaries of this agreement. Attachments A and B, which are attached hereto and incorporated as an integral part of this agreement for all purposes, are agreements with AT&T and Netscape governing use of their respective, proprietary technologies. Acceptance of this Agreement constitutes full acceptance of all terms and conditions set forth in Attachments A and B.

SECTION FIVE    USER RESPONSIBILITIES

You are responsible for providing all equipment, devices and software(other than the configured browser available from CME•NET necessary to receive and use the service. The equipment that you provide will have a direct and substantial impact upon the results obtained by the use of the CME•NET Internet Access System. CME•NET will provide telephone numbers to connect to the service, which for most customers will include a local number. You are responsible for all telephone fees and charges associated with the use of the telephone number you select. Use of the CME•NET Internet Access Service(the "Service"), and of specific telephone numbers, is subject to interruptions at CME•NET discretion or beyond CME•NET's control. Unauthorized access to the Service, to restricted portions of the Service, or to the telecommunications or computer facilities used to deliver the Service, is a breach of this agreement.

SECTION SIX    LOGINS AND PASSWORDS

Use of the Service requires both a login and password. You will receive a unique login and a password. Your login name is your address on the Internet, and you and CME•NET may disclose it to others. Your password is the key that allows you to access the Internet under your login name, and unlocks access to your e-mail.  Anyone knowing both your login and password can gain access to your e-mail and use the Service in your name, so passwords must be kept secret. You are solely responsible for maintaining the confidentiality of your password, and for all consequences of a failure to do so. If you forget your password, CME•NET can assist you. Such assistance will be provided during regular business hours only. Use of another Customer's login, or improper solicitation of another Customer's password, are grounds for termination of your right to use the Service.

You agree that you will not use or attempt to use the Service or the Internet in any way or for any purpose described below:  

  1. To seek to gain unauthorized access to the resources of the Internet; 
  2. To disrupt the intended use of the Internet; 
  3. To waste resources (people, capacity, computer) through such actions; 
  4. To destroy the integrity of computer-based information; 
  5. To compromise the privacy of users; and/or 
  6. To seek to commit an illegal act through the use of the system.

It is your responsibility to comply with all international laws and all copyright laws, obscenity laws, defamation laws, etc. You are reminded that conduct that is illegal in other media (for example, violations of copyright laws, etc.) is also illegal on the Internet, and you are fully and solely responsible for the consequences of engaging in any illegal conduct by use of the Service.  

Users are personally responsible for all use of the Service under their login, even if someone else uses their login. Illegal, fraudulent or abusive use of any login on the Service will result in immediate termination of your right to use the Service, and may be referred to law enforcement authorities. Use of any login under a name other than your own is prohibited.  

You must immediately inform CME•NET if you suspect any breach of security, such as loss, theft, or unauthorized disclosure or use of your login or password. Until CME•NET is notified of a breach of security, you will remain responsible for any unauthorized use of the Service occurring under your login.

A user login is for the use by one person only. You may not sell, assign, transfer or give away your login. Under no circumstances will you resell your connect time.

CME•NET is not responsible in any way for any computer programs or devices used or intended for use in connection with the Service, even if such programs are made available on the Service. Most of the programs used on the Service are third-party programs beyond the control of CME•NET.

You hereby agree to indemnify and hold CME•NET harmless from all claims, awards, judgments, costs, expenses (including the cost of defense) and damages to which CME•NET is made subject as a result of any illegal, unethical or other improper use by you of the Service and/or a breach by you of this Agreement.

SECTION SEVEN    TIME LIMIT

The monthly service fee entitles you to unmetered access to CME•NET's Gateway and use of CME•NET's service.

SECTION EIGHT    FEES AND PAYMENT

You are responsible for paying all fees and charges (plus applicable taxes) associated with use of the Service. CME•NET reserves the right to change the amount of, or basis for determining, any fee or charge, and to institute new fees or charges, effective upon 30 days notice to the customer.

The charges currently in effect for use of the CME•NET Internet Access System are as follows:

     Activation Fee - $25.00

     Monthly Access Fee - $17.95 (includes one e-mail mailbox)

     Additional e-mail mailboxes - $5.00 per month

Fees shall be payable in advance, and will be due by the 10th of the month in which the Service is rendered. A $24.00 fee will be charged to your account if payment, whether by check or automatic withdrawal from your bank account, is returned as unpaid for any reason. All applicable federal, state, and local sales and excise taxes, if any, applicable to your use of the service will be added to the basic fees described herein above.

You understand and agree that the fees and charges described in this section are solely for the use of the Service as described above in Section Three. Various products and services other than those described in this Agreement are offered by vendors and providers other than CME•NET on or over the Internet, for which separate fees or charges are levied by those vendors. You are solely responsible for payment of all fees charged for products and services incurred by your use or purchase thereof.

Failure to make timely payment of monthly fee shall make your access to the Service terminable at the option and discretion of CME•NET. A $25 activation fee will be charged to reactivate any terminated account.

SECTION NINE    USE OF THE INTERNET

CME•NET has no control over opinions, advice or statements given or made by anyone other than authorized CME•NET spokespersons in any manner on or through the Service.

Opinions, advice and all other information expressed by users or service providers on the Internet represent their own views and not necessarily those of CME•NET. CME•NET does not endorse, support or vouch for the accuracy of any such information. The Internet lets you share information and communicate with other individuals accessing the Internet all around the world. By accepting this Agreement, you agree not to use the Service to send, or submit for public posting, or intentionally receive, any abusive, obscene, profane, sexually explicit, threatening or illegal material, or material containing blatant expressions of bigotry, racism or hate. If it comes to the attention of CME•NET that you are using the Service in a manner of this type, your access will be immediately terminated. You agree not to use your access to the Internet through the Service to engage in unsolicited advertising to other individuals accessing the Internet to buy or sell any products or services. This does not apply where a forum exists on the Internet for the purpose of trading/selling equipment or services. You are responsible for material sent through or displayed on the Internet under your login, even if a claim should arise after termination of the membership.

The technology presently available for use on the Internet is not sufficient to guaranty confidentiality or security with respect to transmissions over the Service, or the Internet generally, or transactions (such as purchases by credit card, etc.). Accordingly, you assume sole and complete risk and responsibility for the consequences of such actions, and CME•NET assumes no such responsibility.

SECTION TEN    CME•NET INTERNET ACCESS SYSTEM

Messaging

CME•NET will comply in all respects with the Electronic Communications Privacy Act of 1986, as amended, relating to private electronic messages on the Service.

CME•NET will not view the contents of private electronic messages, or show their contents to anyone other than the writer or an intended recipient, without the approval of either the writer or an intended recipient, except as permitted or required by law. It is your responsibility to delete messages that are no longer needed.

Keeping an excess of messages could result in operational problems on the home computer system. You are hereby notified that CME•NET will delete private electronic messages on a thirty (30) day rotational basis (i.e., a message will be deleted automatically thirty (30) days after the date it is received).

Anonymous mail will not be tolerated and will result in immediate termination of access to the CME•NET service.

Public Posting Areas

Public posting areas, such as the Usenet, exist on the Internet where users may submit material for viewing by other persons accessing the Internet, and view submissions by others. Submissions include the name, login and other information that would be displayed with the submitted material. You agree to use public postings areas only in accordance with this Agreement and any specific policies and guidelines for the area that are displayed on the Internet.

Anonymous postings to public areas will not be tolerated and will result in immediate termination of your right to use the Service.

You may not submit copyrighted material to public postings areas without the specific authority of the copyright owner; doing so is a breach of this Agreement and may subject you to legal liability.

By submitting material to a public postings area, you agree to indemnify CME•NET and hold it harmless from claims arising from the submission. Remember: You are responsible for all submissions under your login. CME•NET is not responsible, and shall have no liability for material displayed in a public postings area.

By submitting material to a public postings area, you are irrevocably granting everyone accessing that area permission to reproduce and/or redistribute all or parts of your submission in any form for non-commercial purposes. In addition, anyone is free to use information contained in a submission for any purpose, at their own risk.

Notices

CME•NET will give most notices to customers by e-mail. Other notices may be given by a general posting, or by conventional mail.

Notices by customers to CME•NET must be given by conventional mail.

Notices to CME•NET by conventional mail must be sent to:

CME•NET

PO Box 10

Lake Andes, SD 57356-0010

Warranty and Limitation of Liability

CME•NET warrants only that the CME•NET Internet Access System, when used in accordance with provided operating instructions, will provide access to the Internet. YOUR SOLE REMEDY FOR FAILURE OF THE CME•NET INTERNET ACCESS SYSTEM TO PROVIDE SUCH ACCESS SHALL BE A PRO-RATA REFUND OF THE MONTHLY USER FEE FOR THE MONTH IN WHICH A FAILURE OF THE SYSTEM TO PROVIDE SUCH ACCESS.  IN NO EVENT WILL CME•NET BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF (OR ATTRIBUTABLE TO) THE USE OR INABILITY TO USE THE CME•NET INTERNET ACCESS SYSTEM.

Termination of Access to the Service

Either you or CME•NET may terminate the Service at any time and without cause. The only recourse of a user with respect to dissatisfaction with any policies, guidelines or practices, changes in fees or service content is for the user to terminate his use of the Service.

CME•NET shall terminate your access to all or any part of the Service, without notice, for conduct that CME•NET believes is a violation of this Agreement or any policies or guidelines posted by CME•NET on the Service, or for other conduct that CME•NET believes harmful to others (termination for "cause").

Upon termination of the Service without cause, CME•NET will refund any unused portion of prepaid fees after satisfying any outstanding balances owed CME•NET. Termination for cause shall not entitle the terminated party to any refund or reimbursement whatsoever.

CME•NET is not responsible for notifying anyone other than you of a termination of your access to the Service. Upon termination of access, any banking, brokerage, or other third-party relationships will no longer be accessible through the Service. CME•NET will not have any responsibility for consequences of such lack of access.

Miscellaneous

This Agreement, and all policies and guidelines referred to herein, which you accept by accepting and using the Service, constitutes the entire agreement between  you and CME•NET regarding use of the Service, and may be amended at any time and in any fashion by CME•NET upon notice from CME•NET to you. The provisions of this Agreement will continue in effect even after termination of your access. You can reach CME•NET by calling 487-7321 locally or  1-800-208-8587 toll free, or by writing to:

CME•NET

440 Lake Street

Lake Andes, SD 57356-0010

You agree that the laws of the State of South Dakota shall be applied in all matters pertaining to the construction and/or application of the terms of this Agreement.

Your acceptance of this Agreement constitutes your consent and submission to personal jurisdiction of the courts of the State of South Dakota, with respect to any matter relating to your use of the Service.

SECTION ELEVEN    REPRESENTATION

You represent that you are of full age of legal majority and are not under any disability or restriction, and are in all respects fully authorized and empowered to enter into this Agreement and be bound by and perform in accordance with its terms. This document, when accepted by you, will impose certain legally enforceable obligations upon you. If you have any questions pertaining to the content or effect of this Agreement, it is your responsibility to contact your own legal advisor.

ATTACHMENT A   END USER LICENSE AGREEMENT

BY OPENING THE PACKAGE OR CLICKING ON THE 'ACCEPT' BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE 'DO NOT ACCEPT' BUTTON OR RETURN THIS PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.

NETSCAPE NAVIGATOR END USER LICENSE AGREEMENT

GRANT. Licensor hereby grants to you a non-exclusive license to use its accompanying software product ('Software') and accompanying documentation

('Documentation') on the following terms:

You may:

  • use the Software on any single computer;
  • use the Software on a second computer so long as the first and second computers are not used simultaneously;
  • copy the Software for archival purposes, provided any copy must contain all of the original Softwares proprietary notices.

You may not:

  • permit other individuals to use the Software except under the terms listed above;     modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software or Documentation;  copy the Software or Documentation (except for back-up purposes);  rent, lease, transfer or otherwise transfer rights to the Software or Documentation; remove any proprietary notices or labels on the Software or Documentation.

SOFTWARE. If you receive your first copy of the Software electronically, and a second copy on media, the second copy may be used for archival purposes only.  This license does not grant you any right to any enhancement or update.

TITLE. Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain in Licensor and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives you no rights to such content.

LIMITED WARRANTY. Licensor warrants that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. Licensor does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations, and you must determine that the Software sufficiently meets your requirements. Licensor also warrants that the media containing the Software, if provided by Licensor, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. Licensor's sole liability for any breach of this warranty shall be, in Licensor's sole discretion: (I) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee you paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to you of the repaired or replaced Software, or (b) Licensor advised you how to operate the Software so as to achieve the functionality described in the Documentation. Only if you inform Licensor of your problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will Licensor be obligated to honor this warranty. Licensor will use reasonable commercial efforts to repair, replace, advise or refund pursuant to the foregoing warranty within 30 days of being so notified.

THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES NO OTHER EXPRESS WARRANTY AND NO WARRANTY OF INFRINGEMENT OF THIRD PARTIES' RIGHTS. THE DURATION OF IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY NOT APPLY TO YOU. NO LICENSOR DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY

MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.

LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF LICENSOR'S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

TERMINATION. This license will terminate automatically if you fail to comply with the limitations described above. On termination, you must destroy all copies of the Software and Documentation.

EXPORT CONTROLS. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Yugoslavia, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.

In addition, if the licensed Software is identified as a not-for-export product (for example, on the box, media or in the installation process), then the following applies:

EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR 'FOREIGN PERSON' AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A 'FOREIGN PERSON' OR UNDER THE CONTROL OF A FOREIGN PERSON.

MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraphs (a)through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Netscape Communications Corporation, 501 East Middlefield Road, Mountain View, CA 94043.

ATTACHMENT B   
REQUIRED USER TERMS AND CONDITIONS

(References to 'Company' in this Schedule A are to West Central Electric Cooperative; references to 'End User' in this Schedule A are to you).

  1. For purposes of this Paragraph 1, 'Company' includes Company, any affiliated and subsidiary companies of Company, any subcontractors and suppliers of the foregoing, including AT&T Corp., and the directors, employees, officers, agents, subcontractors and suppliers of all of them. 
  2. End user is solely responsible for the content of any transmissions using the Services, or any other use of the Services, by End User or by any person or entity End User permits to access the Services. End User agrees that it and any User will not use the Services for illegal purposes, or to interfere with or disrupt other network users, network services or network equipment. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network. End User shall defend, indemnify, and hold harmless Company from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by any person based upon the content of any transmissions by End User or any User using the Services or any other use of the Services by End User or any User. 
  3. End User shall not authorize any other person to use the Service and shall not resell or otherwise generate income by providing access to the Service to any other User. If End User permits Users to access the Services, End User shall defend, indemnify, and hold harmless Company from and against all liabilities and costs (including reasonable attorneys' fees)arising from any and all claims by any such Users in connection with the Services, regardless of the form of action, whether in contract, tort (including Company's active or passive negligence), warranty, or strict liability. However, End User shall have no obligation to indemnify and defend Company against claims for direct damages to real or tangible personal property, or for bodily injury or death, proximately caused by Company's negligence. 
  4. End User agrees to comply, and to cause any User to comply, with United States law with regard to the transmission of technical data which is exported from the United States using the Services. 
  5. COMPANY MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 
  6. COMPANY'S LIABILITY TO CUSTOMER ON ACCOUNT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNTS PAID BY END USER FOR SERVICES DURING THE MONTH DURING WHICH THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES OCCURS. 
  7. COMPANY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE THAT END USER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL ACT OF COMPANY. COMPANY SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO END USERS TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF END USERS NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY COMPANY WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER, END USERS SOLE REMEDY SHALL BE A REFUND OF A PRO RATA PORTION OF THE PRICE PAID FOR SERVICES WHICH WERE NOT PROVIDED. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN THE CASE OF REFUND FOR LOST SERVICES, CREDIT WILL BE ISSUED ONLY FOR PERIODS OF LOST SERVICE GREATER THAN TWENTY-FOUR (24) HOURS.
  8. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.