Earthcomm, Inc Online Service Agreement

Earthcomm Online Service Agreement

Earthcomm service is a dial-up Internet access service provided by Earthcomm, ("Earthcomm") to Subscribers ("Members"), subject to the terms of this Online Service Agreement (the "Agreement"). Earthcomm may from time to time unilaterally amend this Agreement by posting amendments online. The members continued use of the Service after amendments are posted will constitute acceptance of the Agreement, as modified by such amendments. Except as provided in the preceding sentence, this Agreement may not be amended. If the member does not agree to the terms and conditions of this Agreement, including any future revisions, the member may not use the Service.

1. Application and acceptance.

Once the Member has been accepted by Earthcomm, Earthcomm will furnish the Service to the member in accordance with the terms of this Agreement, as amended from time to time. Earthcomm may accept or reject any Applicant in its sole discretion. The Member represents that all information that the Member provides during the application process is accurate and complete, and the Member will update such information with Earthcomm should it change. Only residents of the 50 United States, Puerto Rico, and Canada are eligible for the Service. Members must be at least 18 years old.

2. Use of the Service.

The Member agrees to use the Service only for the Member's personal, family, and household purposes. The Service is intended for periodic, active use of email, newsgroups, file transfers, Internet chat, games, and browsing the World Wide Web and may only be used for these purposes. Internet access memberships may include one or more email accounts. Member Names, Passwords and email addresses are Earthcomm property and Earthcomm may alter or replace them at any time.

Members may not use the Service on a standby or inactive basis in order to maintain a connection. Continuous Internet access through the Service may be limited by idle timeout procedures. The use of any electronic or mechanical means to facilitate a continued connection, including but not limited to auto dialer features, "pinging" software and automatic logins to mail servers, is prohibited. Earthcomm may limit the length of sessions to a reasonable period, as determined by Earthcomm, after which sessions may automatically be terminated. Certain plans may offer Earthcomm.

Excessive Usage

All service plans are prohibited from being used to provide subscriber with dedicated or constant connectivity. Earthcomm reserves the right to immediately terminate or modify the Services of any User if Earthcomm determines, in its sole discretion, that the User is using the Service in an excessive manner.

3. Use of the Service by others.

The Member may not sell or transfer the right to use the Service to others, or share the Password with others; provided, however, that the Member may allow others of the immediate household to use the Member Name and Password to access the Service. In no event may the Member Name and Password be used to access the Service from multiple computers in overlapping or concurrent sessions. The Member will be responsible for use of the Service by any person who uses a Member Name and Password that the Member has supplied, whether or not the Member specifically authorizes such person's use or actions. The Member will promptly notify Earthcomm if the Member becomes aware of unauthorized use of the Member Name or Password.

4. Termination.

The Member may terminate membership for any reason by providing notice of intent to terminate to Earthcomm by:

Calling 1-800-948-9477 during normal business hours or by written correspondence to:

Earthcomm
P.O. Box 271610
Corpus Christi, TX 78427-1610

A 30 day advance Notice is Required to terminate services. Email termination requests will NOT be accepted. Charges to the Members account will stop accruing 30 days after Earthcomm confirms the termination of membership. Accounts are not considered closed unless confirmed and there are no outstanding invoices or unpaid balances on the account.

The effective date of termination will be the final day of the Member's billing cycle. Based on the Member's billing cycle, charges accrued prior to termination may apply after cancellation confirmation is received.

Earthcomm may terminate or suspend membership (i) without cause at any time for any reason upon 30 days notice, or (ii) with or without notice if the Member breaches the terms of this or any other Agreement between the Member and Earthcomm or if the Member violates Earthcomm's Acceptable Use Policy or any of the applicable Member policies. If the Member terminates membership before the end of the fixed term or if Earthcomm terminates membership for violations of this Agreement, Earthcomm's Acceptable Use Policy or any of the applicable member policies, the membership amount that has been paid WILL NOT be refunded in whole or in part. If membership is terminated, Earthcomm may without notice, delete any data (including email and personal web site content) stored on Earthcomm servers. Any suspension or termination will not relieve any person of obligations incurred and accrued prior to the effective date of termination.

Termination of the Member's account is the Member's sole and exclusive remedy with respect to any dispute with Earthcomm.

5. Compliance with Laws, Agreements, etc.

The Member agrees not to use the Service for any purpose that is unlawful or prohibited by this Agreement, Earthcomm's Acceptable Use Policy, or any of the applicable member policies that Earthcomm may adopt from time to time to govern use of the Service. The Member agrees to abide by all applicable local, state, national and international laws and regulations. The Member may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software or services obtained from or through Earthcomm. Earthcomm has no obligation to monitor any Member's use of the Service or to retain the content of any member session. The Member acknowledges that some areas of the Internet may contain material that is unsuitable for minors, and the Member agrees to supervise use of the Service by minors who use the Member Name and Password to access the Service.

6. Special promotions.

From time to time, Earthcomm may offer special promotions for new Internet service memberships and other products. All such offers are limited time offers and cannot be combined. Earthcomm may terminate or modify such offers at any time without notice. Free software offers may require an Internet connection.

7. Fees.

Internet Access Memberships

If the Member terminates membership before the end of the membership term, or if Earthcomm terminates membership for violations of this Agreement, Earthcomm's Acceptable Use Policy or any of the applicable member policies, membership fees will not be refunded in whole or in part.

Internet Access Monthly Memberships

If the Member has subscribed to the Service on a month-to-month basis, the Member agrees to pay to Earthcomm a monthly fee (the "Monthly Fee") in advance for each month or portion of a month in which the Member receives the Service, other than for any promotional or reward period during which Earthcomm has explicitly agreed to provide the Service to the Member free of charge. The Member authorizes Earthcomm to charge the Member's account immediately upon activation of membership. For billing purposes, the month will begin on the date the Member starts membership, which may not be the first calendar day of the month. A service month will run from a numbered day in one month to the same numbered day in the following month. Members who join on the 29th, 30th or 31st day of any month shall be billed on the last day of any month not containing 29, 30 or 31 days. Earthcomm will have the right to increase the Monthly Fee from time to time upon email notification to the member at least one month before the effective date of the increase. If the Member does not cancel membership before the end of the notice period, the Member will be deemed to have agreed to such increase. Earthcomm may change its monthly billing cycle from time to time. If the Member has accepted a free offer for a specific number of days, the Member will incur Earthcomm's standard monthly charges at the end of the free time period, unless the Member follows the termination procedures described in section 4. If the Member terminates the use of the Service, within the allotted time period, Earthcomm will not charge the Member. All fees and charges are stated and payable in U.S. Dollars.

Internet Access Pre-paid Memberships

If the Member has subscribed to the Service for a fixed term, but has not pre-paid for the subscription, the Member agrees to pay the Monthly Fee as set forth in the preceding paragraph. If the Member has purchased a pre-paid membership with a fixed term, the Member will receive the Service for the duration of the membership term without further charges from Earthcomm. At the end of the membership term, membership will automatically renew, unless the Member follows the termination procedures described in section 4. Pricing will be subject to the rates in effect at that time for equivalent service. If the Member has accepted a free offer for a specific number of days, the Member will incur the pre-paid membership charge unless the Member follows the termination procedures described in section 4. If the Member terminates membership before the end of the pre-paid term or if Earthcomm terminates membership for violations of this Agreement, Earthcomm's Acceptable Use Policy or any of the applicable member policies, and the Member has paid Earthcomm in advance for Member services, the amount the Member has paid for membership will not be refunded in whole or in part. There are no refunds on Pre-paid services.

Payment Obligations of a Member

The Member authorizes Earthcomm to charge the Monthly Fee, and any other fees and charges payable under this Agreement to the credit card or direct debit account that the Member has supplied in connection with the membership application. Earthcomm reserves the right to validate the payment method information provided at registration. Payments made via check or money order are payable to:

Earthcomm
P.O. Box 271610
Corpus Christi, TX 78427-1610

Questions regarding charges to an account should be directed to 1-800-948-9477. All charges are considered valid unless disputed in writing within thirty (30) days of the billing date. Adjustments will not be made for charges that are more than 30 days old.

The Member will promptly notify Earthcomm of changes to the account number, status, or expiration date of the credit card or direct debit account the Member has supplied, and of changes to the Member's billing address. If Earthcomm is unable to process charges to the credit card or debit account the Member has supplied, or if the credit card is canceled or suspended, membership may be immediately suspended or terminated without notice. Any resulting fees, charges or expenses incurred by Earthcomm may be subsequently charged to the Member's credit card or direct debit account. Earthcomm is not responsible for any charges or expenses (e.g. for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Earthcomm.

If the primary billing method used to pay Membership fees is rejected or returned for any reason, the Member authorizes Earthcomm to use any credit card or direct debit account on file to pay all outstanding balances along with any additional fees assessed in order to close the Members Membership.

If membership is terminated or suspended by Earthcomm based on the Member's failure to pay applicable fees and charges or the Member's failure to perform any other obligations under this Agreement (including the Member's obligation to comply with Earthcomm Acceptable Use Policy and any of the applicable member policies), The Member may be required to pay reconnect charges in order to re-activate membership.

For any reason if the membership fees are not received by the due date a $3.95 late fee will be applied to the Member's account.

The Member acknowledges that no credit or refund will be provided if the Member is unable to use the Service due to circumstances beyond the control of Earthcomm, as determined by Earthcomm.

Earthcomm may charge for taxes and other applicable fees.

Except as expressly provided herein, any fees paid to Earthcomm in connection with the Service are nonrefundable.

8. Availability of Internet Access Numbers.

Earthcomm reserves the right to direct Members to use certain numbers to access the Service or to restrict the use of specific access numbers. Earthcomm Internet access numbers may not be available in all areas on a local call, charge free or toll-free basis. Earthcomm may from time to time delete Internet access numbers in particular localities, without being obligated to provide replacement access numbers in the same locality. In the situation described in the preceding sentence, Earthcomm will not be obligated to refund any amount to Members who have pre-paid for services, including Members who have purchased Earthcomm Computer and Internet Access Bundles.

9. Telephone charges and computer equipment.

The Member is responsible for obtaining the telephone equipment and telephone services necessary to call Earthcomm's Internet access numbers, and for paying any related telephone company charges, including long distance, time-based charges, and telephone line installation charges. The Member is solely responsible for determining whether calling a particular Earthcomm Internet access number will result in additional charges. Earthcomm will not reimburse the Member for any charges incurred as a result of selecting an access number that is subject to long distance or other telephone company charges. The Member should contact the Member's telephone company to determine whether calling a particular access number will result in additional charges. Calling an access number may result in additional telephone company charges, even if the access number was presented by Earthcomm as an appropriate access number for the Member's area.

In order to use the Service, the Member must use a computer system (including personal computer, software and modem) that meets Earthcomm's minimum system requirements. Information about those requirements is available online at http://www.earth-comm.com.

10. Use of the Service consistent with Acceptable Use Policy.

The Member agrees that use of the Service will be consistent with Earthcomm's Acceptable Use Policy and any of the applicable member policies that are posted on the Earthcomm web site from time to time. Violation of Earthcomm's policies is cause for immediate termination or suspension of membership.

11. Restrictions on use of the Service.

The Member agrees not to copy, download, upload, publish, or distribute any emails, programming code, information, data, or other materials ("Content"), or otherwise use the Service or constituent services (such as email, web site hosting, or data storage services) in any manner that in Earthcomm's sole discretion:

1. Infringes any third party's intellectual property rights or other proprietary or publicity/privacy rights;
2. Violates any applicable law or regulation;
3. Violates Earthcomm's Acceptable Use Policy;
4. Is defamatory, obscene, contains child pornography, or is harmful to minors;
5. Intentionally propagates any viruses, Trojan horses, worms, time bombs, cancel bots or other software that damages, interferes with, intercepts, or expropriates any system, data, or personal information.

Earthcomm and/or its suppliers may with or without notice take any action, including suspension or termination of service or filtering, blocking, or removal of Content, that it or they deem appropriate to address circumstances comprising a breach of the above promises.

12. Operation of the Service.

Earthcomm may from time to time in its sole discretion establish, modify, or discontinue operating policies and procedures governing operation of the Service. Earthcomm may, among other things:

1. Prevent bulk email from entering or leaving any email account maintained through the Service;
2. Delete email, if stored on Earthcomm's servers beyond an allotted time set by Earthcomm or from time to time;
3. Not process or store email due to space limitations set by Earthcomm from time to time;
4. Make available to third parties information relating to the Service and Members, subject to Earthcomm's Privacy Policy;
5. Establish idle timeout and session length procedures that will cause an automatic log off of an Internet session after a period of time set by Earthcomm; and
6. Change or discontinue any functionality or feature of the Service.

Earthcomm will not be responsible or liable for loss, deletion or failure to store or accept emails or other information. The use of any software that circumvents or impedes Earthcomm's automatic timeout procedures is prohibited.

13. Content posted by the Member.

When the Member posts or uploads content (including feedback and suggestions) ("Posted Content") in a context that indicates that the Posted Content will be accessible to the public, the Member grants Earthcomm the worldwide, royalty free, and non-exclusive license, without payment of compensation, to publish, copy, distribute, transmit, publicly display and perform, reproduce, edit, translate, and reformat the Posted Content through the Internet and to publish the Member's name (if posted by the Member) in connection with the Posted Content. Earthcomm is under no obligation to post or use any Posted Content, and Earthcomm may remove any Posted Content at any time, in Earthcomm's sole discretion. The Member acknowledges that neither Earthcomm nor its suppliers have any obligation to monitor Content that the Member publishes, uploads, or distributes through the Service. However, Earthcomm and its suppliers reserve the right to review any such Content and to remove any Content that it or they deem inappropriate. The Member acknowledges that Earthcomm does not provide backup of data, including Content. By posting or uploading Posted Content, the Member warrants and represents that the Member owns or otherwise control rights to the Posted Content sufficient to grant the permission granted above. Earthcomm welcomes the Member's feedback and suggestions regarding the Service, but Earthcomm will not be obligated to pay any compensation for such feedback and suggestions, nor will Earthcomm be restricted in any manner from using or acting on such feedback and suggestions.

14. Disclaimer of warranties.

THE USE THE SERVICE AND THE INTERNET AT THE MEMBER'S OWN RISK. EARTHCOMM AND ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, USABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICE OR OF ANY INFORMATION, SOFTWARE, OR PRODUCTS OBTAINED THROUGH USE OF THE SERVICE. EARTHCOMM AND ITS SUPPLIERS DO NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR FREE OF VIRUSES OR SPYWARE OR OTHER HARMFUL COMPONENTS, THAT MEMBERS WILL BE ABLE TO ACCESS THE SERVICE AT ANY PARTICULAR TIME OR IN ANY GEOGRAPHIC AREA, OR THAT THE SERVICE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. THE SERVICE, THE EARTHCOMM SOFTWARE SUPPORTING THE SERVICE, AND ALL INFORMATION, SOFTWARE, AND PRODUCTS OBTAINED OR ACCESSED THROUGH USE OF THE SERVICE ARE PROVIDED "AS IS," ON AN "AS AVAILABLE" BASIS AND WITHOUT WARRANTY OF ANY KIND. ALL IMPLIED WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. EARTHCOMM AND ITS SUPPLIERS WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR DAMAGE TO THE MEMBER'S COMPUTER SYSTEM FROM VIRUSES OR OTHER HARMFUL PROGRAMMING ROUTINES TRANSMITTED THROUGH USE OF THE SERVICE, NOR FOR BREACHES OF THE SECURITY OF THE MEMBER'S COMPUTER SYSTEM ACCOMPLISHED BY THIRD PARTIES THROUGH USE OF THE SERVICE. NEITHER EARTHCOMM NOR ITS SUPPLIERS WILL BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT OR CONDUCT OF SUCH THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. NO ADVICE OR INFORMATION GIVEN BY EARTHCOMM OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY.

15. Limitation of liability.

EARTHCOMM AND ITS SUPPLIERS ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF THE SERVICE OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOST OR UNDELIVERED EMAILS, CONTENT, AND OTHER DATA, OR LOST PROFITS OR ECONOMIC OR OTHER ADVANTAGE RESULTING FROM INABILITY TO USE THE SERVICE) ARISING OUT OF A BREACH OF THIS AGREEMENT OR ANY ACTION OR FAILURE TO ACT RELATED TO THE SERVICE, EVEN IF EARTHCOMM OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR CERTAIN PRODUCTS AND SERVICES SPECIFICALLY IDENTIFIED AS BEING OFFERED BY EARTHCOMM, EARTHCOMM DOES NOT CONTROL ANY MATERIALS, INFORMATION, PRODUCTS, OR SERVICES ON THE INTERNET. THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE. EARTHCOMM HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR SUCH MATERIALS. THE MEMBER ASSUMES FULL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES AND THE INTERNET AND IS SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ALL SERVICES, PRODUCTS, AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET. THE TOTAL AGGREGATE LIABILITY OF EARTHCOMM AND ITS SUPPLIERS FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE CUMULATIVE AMOUNT OF FEES PAID BY THE MEMBER TO EARTHCOMM. THE FOREGOING LIMITATIONS APPLY TO ANY CLAIM THE MEMBER MAY ASSERT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.

16. Information.

The Member acknowledges that Earthcomm may be required to disclose information regarding the Member and the use of membership (including data and email) to the government or regulatory agencies or to third parties if legally compelled to do so. The Member authorizes Earthcomm to disclose any information about the Member to private entities, law enforcement or other government officials as Earthcomm, in its sole discretion, believes necessary or appropriate to investigate or resolve potential violations of this Agreement or any of the applicable member policies. The Member acknowledges that Internet communications and servers may not be secure, and that information transmitted on such connections and servers may be subject to interception, disclosure or loss.

17. Shopping through Earthcomm.

Earthcomm may from time to time send emails about offers that Earthcomm thinks will interest the Member. Earthcomm sometimes arranges for merchants to offer to Members unique deals, special values and enhanced services. Please keep in mind, however, that when the Member purchases a product from a third party merchant, the Member is buying directly from that merchant and not from Earthcomm. Earthcomm is not responsible for the actions or omissions of a merchant, any advertising claims made by the merchant, or any damage or harm that may result from the Member's use of products purchased from the merchant. All aspects of the Member's purchase, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance, service, and delivery, are solely between the Member and the merchant. The Member's rights and remedies with respect to a particular purchase will be solely against the merchant, and any questions, complaints, and claims related to a product should be directed to that merchant. The Member may have the option to purchase products through the Earthcomm web site by transmitting credit card information over the Internet. Earthcomm uses encryption technology to protect the credit card information provided. However, Earthcomm cannot guarantee that the encryption technology will operate as intended or that a third party will not be able to access encrypted information. If The Member has any concerns about sending credit card information over the Internet, please use an alternative means of payment. By sending any sensitive information, such as credit card information, over the Internet while the Member is shopping with the Service, the Member agrees that Earthcomm will not have any liability if the encryption technology fails to protect the Member's information.

18. Software.

To access the Internet through Earthcomm's network, the Member may be required to use Earthcomm's proprietary dialer software and other network management software that Earthcomm delivers from time to time ("Software"). Earthcomm may automatically check the version of the Earthcomm software used and may automatically download modifications and upgrades to such software. The Member consents to the downloading and use of such software and updates, as a condition of receiving the Service.

Software is the copyrighted work of Earthcomm and/or its suppliers. The Member's use of the software is governed by the terms of the end user license Agreement, if any, which accompanies or is included with the software ("License Agreement"). The Member may not install or use any software that is accompanied by or includes a License Agreement unless the Member first agrees to the License Agreement. For any Software not accompanied by a License Agreement, Earthcomm grants to each Member a limited, nonexclusive, nontransferable and non-assignable license to install and use the Earthcomm software (including software from third party vendors that Earthcomm distributes; in object code format), its associated documentation, and any updates thereto ("Licensed Programs") in order to access and utilize the Service. The Member agrees to use the Licensed Programs solely in conjunction with the Service for non-commercial purposes in accordance with this Online Service Agreement and for no other purpose. Earthcomm may modify the Licensed Programs at any time, for any reason, and without providing notice of such modification to a Member. The Licensed Programs constitute confidential and proprietary information of Earthcomm and Earthcomm's licensors and embody trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Licensed Programs, including associated intellectual property rights, are and shall remain with Earthcomm and Earthcomm's licensors. No person shall translate, decompile, reverse engineer, distribute, remarket, or otherwise dispose of the Licensed Programs or any part thereof. Any reproduction or redistribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. Earthcomm reserves the right, in its sole discretion, to modify or discontinue Software provided and to limit, terminate or suspend the use of that Software. While Earthcomm's proprietary software is designed to work with a wide range of Windows-based computers, Earthcomm does not warrant that it will work with every computer configuration.

19. Technical support.

Earthcomm will offer technical support related to the provision of Internet access during the term of the Internet Access membership. Depending on the membership plan selected, the Member may receive such technical support without additional charge or may be charged on a monthly or pay-per-call basis. Prior to seeking Earthcomm's technical support, the Member has the sole responsibility for adequate backup of data and protection of software and equipment used directly or indirectly in connection with any technical support or information provided by Earthcomm. Earthcomm will use all reasonable efforts to resolve basic technical problems of its Members, however, Earthcomm's live or online technical support does not assure that every request for technical support will be resolved to the Member's satisfaction. Earthcomm's responses are merely technical advice and suggestions and may not resolve some hardware or software errors or problems that may not be correctable or extremely difficult to resolve.

20. Links.

The dialer page, welcome page, and other online properties displayed through the Service may display links to web sites sponsored by third parties ("Third Party Sites"). If the Member clicks on one of these links, the Member will be taken to a web site not controlled by Earthcomm. Third Party Sites may contain material or information that some people might find inappropriate or offensive. Earthcomm is not responsible for the content or operation of Third Party Sites reached by virtue of such links, and the presence of such links does not imply that Earthcomm endorses or is affiliated with such Third Party Sites or third parties. Therefore, the Member must exercise independent judgment in deciding what web sites to visit.

21. Security.

No computer system or network is totally secure from intrusion. Earthcomm will take reasonable measures to protect the security of Earthcomm's systems and Member data, but Earthcomm does not guarantee the security of any account or Member data and will not be liable for unauthorized breaches of such security. Please note that unencrypted email is not a secure means of communications.

22. Notices.

Earthcomm may give notices to Members under this Agreement by email sent to the email account established by the Member through the Service, by a general posting on the Earthcomm web site, or by conventional mail. The Member may give notices to Earthcomm under this Agreement only by conventional mail addressed to:

Earthcomm
Attn: Legal Department
P.O. Box 271610
Corpus Christi, TX 78427-1610

23. General.

If any provision of this Agreement is held to be unenforceable under applicable law in any respect, such provision shall be excluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms. This Agreement represents the complete agreement between Earthcomm and the Member with respect to the subject matter hereof, and supersedes any other written or oral agreements.

Version 2005

Effective Date October 14, 2005

Acceptable Use Policy

This Acceptable Use Policy sets forth the standards of use of the Earthcomm Online Service (the "Service"). Earthcomm will interpret and enforce this Policy in its sole discretion. Earthcomm may revise this Policy at any time without prior notice. Revisions will become effective immediately upon being posted online. The continued use of the service after amendments are posted will constitute acceptance of the Agreement, as modified by such amendments. Except as provided in the preceding sentence, this Agreement may not be amended.

Topics in this Policy:

• Compliance with laws.
• Network security and performance.
• Objectionable content.
• Email.
• Usenet.
• Linking and framing.
• Bots and spiders.
• Copyrights, trademarks, and other intellectual property rights.
• Reporting violations of Earthcomm's Acceptable Use Policy.
• Consequences.

1. Compliance with laws.

The Member may not use the Service in any way that violates applicable state, federal or international laws, regulations or other government requirements. Prohibited activities include:

• Fraud.
• Using the Service to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as, but not limited to "pyramid schemes," "Ponzi schemes," and "chain letters."
• Forgery or identify theft.
• Theft or misappropriation of funds, credit cards, or personal information.
• Illegal export of software or technical information.
• Using the Service to harm, or attempt to harm, minors in any way.
• Threats of physical harm or harassment.

Earthcomm and its Internet access suppliers will cooperate with legal authorities in the investigation of any reported or suspected criminal or civil violations.

2. Network security and performance.

The Member may not use the Service in ways that interfere with the use of the Internet or the Service by others. Actions that adversely affect network integrity or network security are prohibited, and may result in criminal and civil liability.

Examples of prohibited actions include, but not limited to:

• Penetrating the security measures of other systems or accounts.
• Interfering with service to any user, host, or network. Some examples include "flooding" of networks, distributing viruses or other harmful software, attempting to overload a service or an individual account, attempting to "crash" a host, and launching or intentionally propagating "denial-of-service" attacks.
• Forging or modifying any TCP/IP packet header.
• Unauthorized access or monitoring of other systems or accounts.
• Unauthorized use of another's computing resources or services.
• Excessive consumption of system resources, including CPU time, memory, disk space, multiple logins, high volume or unauthorized commercial use, and session time.

The Member is responsible for maintaining the security of the Member's computer systems to prevent the use by others in a manner that violates this Policy. This includes taking proper security measures to protect self-installed or self-administered mail servers and FTP sites against unauthorized or illegal use. The Member is responsible for taking immediate corrective actions on vulnerable or exploited systems to prevent abuse.

3. Objectionable content.

The Member may not use the Service to post, transmit, distribute, store any content, or provide links to any external Internet site that contains content that in Earthcomm's judgment is illegal, inappropriate, or otherwise objectionable. This includes, but not limited to:

• Unauthorized use of content protected by copyright, trademark, trade secret or other intellectual property right.
• Obscene material; child pornography; defamatory, fraudulent or deceptive statements; threatening, intimidating, or harassing statements; or content that violates the privacy or property rights of others.
• Content that Earthcomm determines to be otherwise objectionable or harmful to Earthcomm's reputation and brand image, including indecent, pornographic, and hateful materials.

4. Email.

Earthcomm memberships may include one or more email accounts. Misuse of email may result in termination of the Service. Examples of unacceptable uses include, but not limited to:

• Sending, or collecting responses from, unsolicited email, including commercial advertising, informational announcements, chain letters, charity requests and petitions for signatures.
• "Spamming" (the sending of unsolicited messages to multiple recipients) in any form.
• Sending email for commercial purposes unless the Member enters into a separate written agreement with Earthcomm.
• Sending email that threatens bodily harm or destruction of property.
• Using email as a means to harass other Internet users, including "bombing" (attempts to impede another person's use of electronic mail services).
• "Spoofing" or sending any email that does not accurately identify the sender, the sender's return address or the email address of origin.
• Using the Service to send email that violates another Internet site's Acceptable Use Policy and/or terms of service.
• Using the Service to access, or attempt to access, the email accounts of others.

5. Linking and framing.

If the Member would like to create a link to Earthcomm's web site, the Member must comply with the following guidelines. The Member may not:

• Replicate the Earthcomm homepage.
• Link to any page of the Earthcomm web site other than the homepage.
• Display any Earthcomm web page in any fashion other than a separate browser window. For example, the Member is not authorized to create a separate border environment around Earthcomm's web site content.
• Imply that Earthcomm is endorsing any services, products or web sites without Earthcomm's expressed, written permission.
• Link to Earthcomm from a web site that contains content that could be construed as distasteful or offensive, as determined by Earthcomm.
• Link to Earthcomm from a web site that contains content that is not appropriate for all age groups, as determined by Earthcomm.

6. Bots and spiders.

No Member or other third party is authorized to use bots, spiders, or other automated information-gathering devices or programming routines to "mine" information displayed on the Earthcomm web sites, for display on or use with a web site or service sponsored by a third party.

7. Copyrights, trademarks, and other intellectual property rights.

Earthcomm respects the copyrights, trademarks and other intellectual property rights of others and asks Members and visitors to do the same. All content included on the Earthcomm web sites, including text, graphics, logos, button icons, images, audio clips, and software, is the copyrighted property of Earthcomm or other content suppliers and is protected by U.S. and foreign copyright laws and international conventions. Similarly, the trademarks, service marks and logos ("Trademarks") used and displayed on the Earthcomm web site are registered and unregistered Trademarks of Earthcomm and others. Because any unauthorized use of materials on the Earthcomm web sites may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations or statutes, the Member agrees to refrain from making such unauthorized uses. Except as otherwise explicitly provided in this Agreement, neither content nor Trademarks may be reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the expressed prior written permission of Earthcomm or the copyright or trademark owner, as the case may be. Earthcomm is not liable for any direct, vicarious, contributory, or other infringement of copyrights, Trademarks, or other intellectual property rights arising out of content included by other users of its web site.

9. Reporting violations of Earthcomm's Acceptable Use Policy.

Any Member who becomes aware of a potential violation of this Policy is encouraged to notify Earthcomm at abuse@earth-comm.com. Where possible, include details that would assist Earthcomm in investigating and resolving the complaint. Earthcomm reserves the right to investigate suspected violations of this Policy. Earthcomm and its Internet access suppliers may, at their discretion, examine system accounting logs, email records, and other stored data to resolve system problems or to investigate potential violations of this Policy.

The Member is responsible for any misuse of the Service, as previously mentioned, even if a friend, family member or guest committed the inappropriate activity.

10. Consequences.

Earthcomm may take any one or more of the following actions in response to complaints:

• Issue warnings: written or verbal.
• Suspend the Member's account.
• Terminate the Member's account.
• Bill the Member for administrative costs and/or reactivation charges.
• Remove offending content.
• Implement temporary or permanent filtering.
• Bring legal action to enjoin violations and/or to collect damages, if any, caused by violations.
• Other appropriate action, as determined by Earthcomm or Earthcomm's Internet access suppliers, in it.s or their sole discretion.

Refunds or credits are not issued in connection with actions taken for violations of this Policy. If Earthcomm suspends an account due to a violation of this Policy, the account may be subject to reactivation charges and/or deposit requirements, as determined by Earthcomm.

In the event that Earthcomm terminates a Member's Service due to violations of this Acceptable Use Policy or any of the applicable user policies, the Member shall nonetheless remain fully responsible for all obligations to Earthcomm, including payment of the monthly membership fee (if any), through the end of the membership term. Any subsequent membership applications from a terminated Member may be refused.

Earthcomm and/or its Internet access suppliers may take any of these actions with or without notice. Violators may also be subject to civil or criminal liability.

Version 2005

Effective Date October 14, 2005