Internet Access Services Agreement

1. This Internet Access Services Agreement (hereinafter referred to as "Agreement") is a legally binding contract between eclecTechs, with its office at 35 State Street, Northampton, MA 01060 (hereinafter referred to as "eclecTechs") and any individual, corporation, association, agency, company, or other entity who accesses or uses the facilities, systems, or services of eclecTechs (hereinafter referred to as the "USER").

2. As a condition to and in consideration for receiving and using the Internet Access Services provided by eclecTechs, including but limited to any and all services, information, materials, systems, etc., accessed or used though or by means of eclecTechs' facilities, systems, or services (and described collectively herein as "Internet Access Services"), the USER agrees to be bound by the terms of this Agreement. Upon breach of this Agreement, all of the USER's rights and privileges shall be immediately terminated and upon any such termination all user fees shall be forfeited to eclecTechs. This right of termination may be exercised in eclecTechs' sole discretion, and knowledge of and/or acquiescence by eclecTechs in similar or prior breaches by the USER shall not preclude eclecTechs' subsequent exercise of this right of termination.

3. Use of or access to eclecTechs' facilities, systems, and/or services by any person or entity shall constitute acceptance of and agreement to be bound by this Agreement. Notwithstanding this provision, eclecTechs reserves the right, in its sole discretion, to restrict or terminate any account if the user of such account has not returned an executed original of this Agreement to eclecTechs within 21 days of first establishing an account. eclecTechs shall retain this right and shall not be deemed to have waived it regardless of how long any person or entity shall use the eclecTechs' facilities, systems, and/or services without returning such original executed copy of this Agreement.

4. Internet Access Services provided by eclecTechs may only be used in accordance with all applicable laws, statutes, rules, or regulations and solely for lawful purposes. Any use or activity in violation of any law of the United States of America, of any of the individual states of the United States of America, of any sovereign nation, or local law, statute, rule, regulation or ordinance is strictly prohibited.

5. The USER is solely responsible for the knowledge of and adherence to any and all laws, statutes, rules and regulations pertaining to the USER's use of any of eclecTechs' facilities, systems, or services, and to the communications means by which the USER connects its terminal or PC to eclecTechs' facilities, systems, or services or any other service provided by eclecTechs.

6. The prohibition of unlawful uses and activities includes, but is not limited to, transmission, promulgation, theft, procurement, communication, alteration, publication, storage, or use of any information, material, property, images, code, or data in violation of laws relating to intellectual property, copyright, trade mark, trade secret, privacy, indecency, obscenity, or harassment.

7. eclecTechs reserves the right but does not assume any obligation to read, examine, or inspect the information contained in USER's files, electronic mail messages, newsgroup postings, etc., to the extent deemed necessary, in eclecTechs' sole discretion, to protect eclecTechs, its system, or other users from injury or damage, including, but not limited to, legal liability, and for proper administration and maintenance of the system. eclecTechs will not release or disclose any of USER's information to other parties unless required or directed to do so by applicable legal authority. Unless legally prohibited from doing so, eclecTechs shall make reasonable efforts to notify the USER of any such disclosure of the USER's information to third parties. Notwithstanding this provision, eclecTechs reserves the right to disclose USER information in order to stop or prevent unlawful activity by the USER or to defend itself against any legal action or proceeding instituted by USER against eclecTechs.

8. The USER agrees to indemnify and hold harmless eclecTechs, its officers, directors, shareholders, agents, and employees, and other users from any and all claims, costs, expenses, judgments, causes of actions, attorney fees, litigation, or court costs resulting from the USER's use of eclecTechs' facilities, systems, or services in any manner, whether directly, indirectly, or by any act of commission or omission.

9. If eclecTechs engages the services of an attorney because of a violation by the USER of any of the terms of this this Agreement, the USER agrees to pay all of eclecTechs' reasonable attorney's fees and court costs.

10. In the event of litigation both parties agree that the Law of New York shall apply and both parties consent to the jurisdiction of the state courts venued in Monroe County, New York, or in the event of federal jurisdiction, the United States District Court for the Western District of New York in Rochester, New York. Both parties expressly waive a jury trial.

11. eclecTechs has the right to delete all data, files, or other information that is stored in the USER's account if the USER's account with eclecTechs is terminated, for any reason, by either eclecTechs or the USER.

12. The resale of eclecTechs services by USER is strictly prohibited. No more than one login session may be active at any given time for any specific USER account (provided, however, that this provision is not intended to prevent a non-dedicated SLIP USER from accessing its corresponding shell account from an active SLIP session). Subject to these provisions, a single USER account may be accessed by more than one person (hereinafter referred to as "SUBUSER(S)"), subject to the following conditions:

    1. the USER shall be solely responsible for maintaining password security for the account.

    2. the USER must assure that all SUBUSERS comply with this Agreement.

    3. the USER shall provide to eclecTechs a complete list of the names, addresses, and daytime telephone numbers authorized SUBUSERS and shall keep eclecTechs informed of changes to the list.

    4. eclecTechs may, in its sole discretion, require that the USER's account be reconfigured to provide for SUBUSER-specific login procedures.

    5. any violation of this Agreement by SUBUSERS shall constitute a violation of this Agreement by USER.

13. Access to the worldwide Internet is dependent upon numerous factors, technologies, and systems, many of which are beyond eclecTechs' authority and control. In addition, routine maintenance and periodic system repairs, upgrades, and reconfigurations may result in temporary impairment or interruption of service. For these reasons, eclecTechs does not guarantee continuous or uninterrupted service, and reserves the right from time to time to temporarily reduce or suspend service without notice. eclecTechs will use its best efforts (but can not guarantee that such efforts will be successful) to notify USER in advance of any such service reduction or interruption, and to schedule any such service reduction or interruption during off-peak periods and for as brief a duration as possible.

14. Accounts on eclecTechs, and other services provided by eclecTechs, can be canceled at any time by either eclecTechs or the USER, upon 10 days written notice sent by the USER to the address of eclecTechs listed in this Agreement, or by eclecTechs, upon 10 days written notice sent to the last mailing address listed with eclecTechs by the USER on the Account Application. It shall be the responsibility of the USER to keep eclecTechs informed as to a valid mailing address to which notice can be sent. Either the USER or eclecTechs may, at any time and without cause, terminate this Agreement by providing written notice. In the event of such a termination pursuant to this paragraph, the USER shall be entitled to a refund of the pro rata unused portion of any prepaid service fees. For purposes of calculating the pro rata refund, the account shall be deemed terminated when deactivated by eclecTechs, provided that if this Agreement is terminated by the USER, the account will deemed terminated at the later of:

    • the time the USER provides written notice to eclecTechs, or

    • the last date the USER accesses the account prior to deactivation by eclecTechs.

    The refund provided for in this paragraph applies only to voluntary terminations by the USER or discretionary terminations without cause by eclecTechs, and no refund shall be applicable in the case of terminations for cause as provided for in other parts of this Agreement. The foregoing provisions to the contrary notwithstanding, eclecTechs can immediately terminate the USER's access to eclecTechs services for breach of paragraph 2.

15. LIMITED WARRANTY. eclecTechs WARRANTS THAT, IF A USER IS DISSATISFIED WITH THE SERVICE, FOR ANY REASON, THE USER MAY TERMINATE ITS ACCOUNT AND RECEIVE A REFUND OF THE PRO RATA UNUSED PORTION OF ANY PREPAID SERVICE FEES IN ACCORDANCE WITH PARAGRAPH 14, ABOVE. OTHER THAN THE FOREGOING, NO WARRANTY IS MADE BY eclecTechs REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH, IN CONNECTION WITH THE FACILITIES, SYSTEMS, OR SERVICES OF eclecTechs, AND eclecTechs HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION:

    • ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF INFORMATION, PRODUCTS, OR SERVICES; AND

    • ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

16. LIMITED LIABILITY. ANY LIABILITY OF eclecTechs, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, ELECTRICAL SURGE/DAMAGE/INTERFERENCE, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY OR ON BEHALF OF THE USER TO eclecTechs FOR THE CURRENT SERVICE PERIOD.

17. The currently effective eclecTechs Rules, Policies and System Use Guidelines (hereinafter referred to as the "eclecTechs Rules") are attached hereto as Appendix A and are incorporated as part of this Agreement. Violation of any of eclecTechs Rules and Regulations shall constitute breach of this Agreement. eclecTechs reserves the right to amend eclecTechs Rules and Regulations from time to time and any such amendments shall become effective upon promulgation.

18. This Agreement represents the complete understanding between the parties as to the subject matter hereof, and supersedes all prior written or oral negotiations, representations, guaranties, warranties, promises, orders, statements, or agreements between the parties or any statement or representation made or furnished by any other person representing or purporting to represent either party.