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Terms and Conditions
SUBSCRIBER AGREEMENT BETWEEN: Country Vision Cable ("Provider") P.O. Box 199 Cheshire, OR 97419 AND: Subscriber ("Subscriber") (Subscriber means person whose name appears on Subscriber Agreement Form.) RECITALS A. Provider installs and provides high-speed, cable Internet access services. B. Subscriber desires Provider to install and provide it with high-speed, cable Internet access services. C. Subscriber shall pay Provider an installation charge and a monthly fee for providing high-speed, cable Internet access services. NOW THEREFORE, in consideration of the covenants and promises set forth below and the recitals set forth above, which are incorporated by reference, the parties agree as follows AGREEMENT 1. Definitions 1.1 "Agreement" means this written agreement between Provider and Subscriber. 1.2 "Electronic Mail" or "E-Mail" means any communication transmitted via the Internet which is stored in the recipient's e-mail box. 1.3 "Installation Services" means Provider's installation of an approved cable modem at Subscriber's premises. 1.4 "Internet" means the global computer network comprising interconnected networks using standard protocols. 1.5 "Internet Service Provider" or "ISP" means an entity that enables the uploading and downloading of data between remote computers and the Internet. 1.6 "Kilobytes per second" or "Kbps' means 1,000 bytes of data transmitted in one second. 1.7 "World Wide Web," or "WWW," is a subset of the Internet, and is a common system for browsing Internet Web sites. 2. Internet Service Provider Agreement 2.1 Installation. Provider shall perform Installation Services upon receipt and acceptance of this fully executed Agreement. Subscriber agrees to prepare its premises where the high-speed, cable Internet system is to be installed, including providing electrical power, space, a suitable computer system and such other items as may be required to conform to the specifications set forth by Provider on Exhibit A attached hereto and made a part hereof. Further, Subscriber shall provide Provider and/or its agents with access to Subscriber's premises as necessary to perform the Installation Services. The Installation Services to be performed hereunder shall be deemed accepted by Subscriber upon the high-speed, cable Internet connection passing test routines supplied by Provider. 2.2 Internet Account and Access. Upon completion of the Installation Services under Section 2.1 above, Provider shall provide to Subscriber a user name, e-mail address and link through Provider's cable modem server and system. Subscriber shall be permitted unlimited Internet usage, and shall be limited to five (5) megabytes of hard disk space for e-mail storage on Provider's server. 2.3 Fees. 2.3.1 Installation Services Fees. Subscriber shall pay to Provider for the performance of its Installation Services a fixed fee dictated by the Provider. Such charges for the Installation Services shall be payable to Provider upon the completion and acceptance of the Installation Services. 2.3.2 Internet Account and Access Fees. Subscriber shall pay to Provider a fee dictated by the Provider per month in advance for Subscriber's high-speed, cable Internet account and access. Provider reserves the right to change the monthly rate upon sixty (60) days notice. Subscriber shall be liable to pay the for all service up to and through the date of termination, if service is terminated for any reason. 2.4 Subscriber Agrees to Abide by Provider Operating Policies. Subscriber agrees that it shall abide by Provider's operating policies, which may be amended from time to time at Provider's sole discretion, which policies are as follows: 2.4.1 Subscriber agrees not to post or transmit any message anonymously or under a false name. 2.4.2 Subscriber agrees not to post or transmit any message which is libelous, defamatory or which discloses private or personal matters concerning any person. 2.4.3 Subscriber agrees not to post or transmit any message, data, image or program which is illegal, indecent, obscene or pornographic. 2.4.4 Subscriber agrees not to post or transmit any message, data, image or program that would violate the intellectual property rights of others. 2.4.5 Subscriber agrees not to interfere with use of the Internet by any other of Provider's other subscribers or users. 2.4.6 Subscriber agrees not to post or transmit any file which contains viruses, worms, "Trojan horses" or any other destructive features, regardless whether damage is intended or unintended by Subscriber. 2.4.7 Subscriber agrees not to post or transmit any message which is harmful, threatening, abusive or hateful. 2.4.8 Subscriber agrees that its use of Provider's Internet access services is for education or amusement purposes only, and that Subscriber shall not use this service for commercial purposes. Subscriber agrees not to post or transmit any advertising, promotional materials or any other solicitation for goods or services, except in those areas of the Internet that are designated for such purposes, such as marketplace bulletin boards or classified advertisement sections of Web sites. 2.4.9 Subscriber agrees not to posit or list articles which are off-topic, according to the description of the newsgroup. 2.4.10 Subscriber agrees not to list or send unsolicited mass e-mailings to more than twenty-five (25) e-mail users, if such unsolicited e-mailings provoke complaints from the recipients. 2.4.11 Subscriber agrees that it shall be solely responsible for providing a suitable computer and other hardware or communications equipment, except the cable modem, necessary to access Provider. Subscriber also agrees that, if it accesses Provider through a LAN or WAN, it shall be solely responsible for providing, maintaining and supporting a network and IP router that interface satisfactorily with Provider. 2.4.12 Subscriber agrees that its account shall be used solely by Subscriber. Regardless whether Subscriber has actual control over the acts of third parties, Subscriber agrees that it has the last clear chance to avoid usage by third parties, and Subscriber indemnifies and holds Provider harmless for their usage. 2.5 Indemnification by Subscriber. Subscriber hereby agrees to indemnify and hold harmless (including reasonable attorneys' fees) Provider, its affiliates, officers, directors, agents, and employee, from and against any and all liabilities arising from Subscriber's use of the Internet, use of Subscriber's high-speed, cable Internet access and/or Subscriber's breach of any of the terms of this Agreement. Subscriber's obligation to Provider under this Section 2.5 shall survive any expiration or termination of this Agreement. Provider shall promptly notify Subscriber of any claim arising under this indemnification and Provider may, at its sole option, conduct the defense in any such action arising as described herein and Subscriber promises to fully cooperate with such defense. 2.6 Provider's Monitoring and Termination Rights. The parties expressly recognize that Provider cannot and does not screen content provided by any Internet users of the Service. However, the parties agree that Provider has the right, but not the obligation, to remove from its server or block access over the Internet to any communications and materials that Provider believes, in its sole discretion, violate any of the policies enunciated in Section 2.4, above, or any laws of any jurisdiction served by Provider. The parties also agree that Provider may, in its sole discretion, terminate Subscriber's account for any violation of the policies enunciated in Section 2.4, above. 2.7 Provider's Duties. 2.7.1 Internet Link. Provider warrants that it shall maintain a consistent link with the Internet, but Provider cannot and does not warrant that it shall maintain a continuous and uninterrupted line. 2.7.2 Repair and Maintenance. Provider will repair its equipment to keep it in, or restore it to, good working order. Provider's equipment shall be considered to be in good working order when it is able to perform all material functions for which it was designed. Provider may, at its sole discretion, temporarily suspend all service for the purpose of repair, maintenance or improvement of any of Provider's systems. However, Provider will provide prior notice where it is reasonably practicable under the circumstances, and Provider will restore service as soon as is reasonably practicable Subscriber shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond Provider's control or which is reasonable in duration. Subscriber will provide Provider or its agents with access to Subscriber's premises, at reasonable times, if necessary for the repair and/or maintenance of Provider's equipment located therein. 2.7.3 No Upgrades. Notwithstanding Section 2.7.3 above, Subscriber acknowledges and agrees Provider is under no duty to provide any upgrades, updates, enhancements, improvements, additions, replacements, or modifications to Provider's Internet system or equipment. 3. Limited Warranties. Provider confirms and warrants that: 3.1 Provider's Power to Enter Agreement. Provider has the right to enter into this Agreement and to grant the rights granted in it. 3.2 Provider's Good Faith Performance. Provider shall, in good faith, comply with the terms of this Agreement. 4. Disclaimers 4.1 LIABILITY LIMITATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE GOODS AND SERVICES PROVIDED BY PROVIDER ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND TO SUBSCRIBER OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) QUIET ENJOYMENT; AND 8) TITLE. SUBSCRIBER AGREES THAT ANY EFFORTS BY PROVIDER TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY PROVIDER WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SUBSCRIBER FURTHER AGREES THAT PROVIDER SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO ANY EQUIPMENT OR PRODUCTS PROVIDED BY PROVIDER BY SUBSCRIBER OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. 4.2 Provider Not Liable for Delays or Defaults. Provider shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of Provider are due to: 4.2.1 Acts of God or of a public enemy; 4.2.2 Acts of the United States or any state or political subdivision thereof; 4.2.3 Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes; 4.2.4 Embargoes, epidemics or quarantine restrictions; 4.2.5 Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind; 4.2.6 Delays of supplier or delay of transportation for any reason; 4.2.7 Causes beyond the control of Provider in furnishing items or services including, but not limited to, breakdown or failure of machinery or equipment, or delay in Subscriber reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of Provider by Subscriber for any claim for damages, setoff, discount or other liability on account of delay. 4.3 Third Party Transactions at Subscriber's Peril. The parties expressly recognize that Provider does not operate, control or endorse any information, products or services on the Internet, and that any entities that do offer such information, products or services are not affiliated with Provider. Provider does not make any express or implied warranties, representations or endorsements TO SUBSCRIBER OR ANY THIRD PARTY whatsoever with regard to any information, products or services provided over the Internet, including, without limitation, warranties of: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) QUIET ENJOYMENT; AND 8) TITLE. Provider shall not be liable TO SUBSCRIBER OR ANY THIRD PARTY for any cost or damage arising either directly or indirectly from any transaction involving third parties' information, products or services. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Subscriber. 4.4 Downloading Data or Files at Subscriber's Peril. The parties expressly recognize that Provider cannot and does not guarantee or warrant that files available for downloading through Provider will be free of infection, viruses, worms, Trojan horses or other code manifests contaminating or destructive properties. Subscriber agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Subscriber's particular requirements for accuracy of data input and output, and for maintaining a means external to Provider for the reconstruction of any lost data. The parties also expressly agree that the Internet contains unedited materials, some of which are unlawful, indecent, or offensive to Subscriber, and access to such materials by Subscriber is done at Subscriber's sole risk. 5. Termination. 5.1 Termination by Provider. 5.1.1 No Cause. Provider reserves the right to, and Subscriber agrees that Provider may, terminate any and all services to Subscriber for no cause and without any reason upon thirty (30) days' notice. 5.1.2 Cause. Provider reserves the right to, and Subscriber agrees that Provider may, cancel this Agreement and terminate any and all services to Subscriber immediately, and without prior notice, in the event that (i) Subscriber fails to fulfill any material obligation contained in this Agreement; or (ii) that any Internet service provider used by Provider in providing services under this Agreement ceases doing business. Provider RESERVES THE RIGHT TO USE SELF-HELP TO THE GREATEST EXTENT PERMITTED UNDER THE LAW, INCLUDING, BUT NOT LIMITED TO, ELECTRONIC REMEDIES. 5.2 Termination by Subscriber. Subscriber may terminate this ISP agreement for any reason. 5.3 Post-Termination Rights. 5.3.1 Fees Owed to Provider. After termination by any party for any reason, Provider shall retain the right to recover all accrued charges due and owing by Subscriber to Provider, and Subscriber agrees that it waives any right it may have against Provider to offset fees payable by Subscriber to Provider. 5.3.2 Return of Provider's Property. Upon termination of this Agreement by any party for any reason, Subscriber shall promptly return any and all of Provider's property and equipment in its possession, including the cable modems and any manuals furnished by Provider to Subscriber. If Subscriber does not return all cable modems and manuals on day of termination of this Agreement, Subscriber agrees that Provider shall charge Subscriber a fee of $150 for each cable modem not returned. 5.3.3 Subscriber's Continued Indemnification. Subscriber's indemnification of Provider under Section 2.5, above, shall survive any expiration or earlier termination of this Agreement 6. Waiver. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. 7. Remedies. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. 8. Notice. All notices or other communications required or permitted under this Agreement shall be in writing, addressed to the parties addresses shown on the first page hereof and shall be (a) personally delivered (including by means of professional messenger service), which notices and communications shall be deemed received on receipt at the office of the addressee; (b) sent by registered or certified mail, postage prepaid, return receipt requested, which notices and communications shall be deemed received three days after deposit in the United States mail; (c) sent by overnight delivery using a nationally recognized overnight courier service, which notices and communications shall be deemed received one business day after deposit with such courier; or (d) sent by telefax, which notices and communications shall be deemed received on the delivering party's receipt of a transmission confirmation. 9. Entire Agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties with respect to the matters stated herein, and this Agreement contains all of the covenants and agreements between the parties with respect thereto. This Agreement may be amended or modified only in writing, and shall be effective only after affixation of both parties' signatures. 10. Amendment. Except for modifications to Provider's operating policies under Section 2.4 above, no modification or change of the terms of this Agreement shall be binding on either party unless it is in writing and signed by both parties. Any modification, or change of the terms of this Agreement shall be effective only in the specific instance and for the specific purpose given. 11. Assignment. Subscriber shall not assign, transfer or subcontract its rights or delegate its obligations hereunder without the prior written consent of Provider, which consent may be withheld in Provider's sole discretion. 12. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired, and shall continue in full force and effect. 13. Captions. Captions contained in this Agreement are for reference purposes only, and are not intended by either party to describe, interpret, define, broaden or limit the scope, extent or intent of the Agreement or any of its provisions. 14. Knowing Consent and Authority to Consent. The parties knowingly and expressly consent to the foregoing terms and conditions. Each signatory is authorized to enter into this Agreement on behalf of its respective party. PROVIDER: COUNTRY VISION CABLE SUBSCRIBER: (subscriber who fills out Subscriber Agreement Form) EXHIBIT A Subscriber's computer system must meet the following general requirements: 1. If Subscriber's computer system is an IBM Personal Computer: Operating System of Windows 98/ME 2000, Windows NT 4.0, XP Pentium-class Processor 133 MHZ or faster At least 64 MB RAM of Physical Memory At least 150 MB Hard Drive Space CD-ROM drive 4X or higher Network Card MS Internet Explorer 4.0 or higher or Net Scape 5.0 or higher 2. If Subscriber's computer system is a MAC Personal Computer: Operating System 8.0 or higher 100 MHZ Processor or faster At least 32 MB RAM of Physical Memory At least 150 MB of Hard Drive Space Network Card MS Internet Explorer 4.0 or higher or Netscape 5.0 or higher
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