Terms of Service
Harte Communications, The Express Network, XPRS.NET - ISP Enduser Terms of
Service
Note: All The Express Network Communications Internet Service users are bound by
this terms of service if accessing the Internet via our extended networks. If
you use our service you agree to our terms. Your only source of dispute to these
terms is to stop using our service.
The Express Network Communications. ("xprs.net") agrees to provide you ("User")
with those services ("Service") set forth on the Application subject to User's
compliance with the terms and conditions below.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SERVICE. BY ACCESSING
THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. IF YOU DO
NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE
THE SERVICE.
Warranty Disclaimer
THE FOREGOING WARRANTIES SET FORTH ARE EXCLUSIVE AND NO OTHER WARRANTY IS
EXPRESSED OR IMPLIED.
The Express Network exercises no control whatsoever over the content of the
information passing through xprs.net's system. Use of any information obtained
via The Express Network is at User's risk. Neither The Express Network
Communications nor any of its affiliates, its licensers, its contractors or
their respective employees warrant that the Service will be uninterrupted or
error free; nor does The Express Network make any warranty as to the results
from use of the Service.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM COURSE OF
DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION GIVEN BY xprs.net, ITS
AFFILIATES, ITS LICENSERS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL
CREATE A WARRANTY. NEITHER The Express Network NOR ITS AFFILIATES, ITS
LICENSERS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WARRANTS THAT THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR
OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, CANCELBOTS, WORMS,
TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL XPRS.NET, ITS AFFILIATES, ITS LICENSERS, ITS
CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY
FROM USER'S USE OF OR INABILITY TO USE THE SERVICE OR TO ACCESS THE INTERNET OR
ANY PART THEREOF, OR USER'S RELIANCE ON OR USE OF INFORMATION, SERVICES OR
MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES,
OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN
OPERATION OR TRANSMISSION, ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS,
COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO
ALTERATION OF OR USE OF USER'S ACCOUNT, WHETHER FOR BREACH OF CONTRACT,
NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION. IN THE EVENT The Express Network
IS FOUND LIABLE UNDER ANY CIRCUMSTANCE UNDER THE TERMS OF THIS AGREEMENT,
xprs.net'S LIABILITY SHALL BE LIMITED TO THE UNUSED BALANCE OF USER'S
SUBSCRIPTION PAYMENT PRO-RATED TO REFLECT THE CURRENT TERM.
If User is dissatisfied with the Service or with any terms, conditions, rules,
policies, guidelines or practices of The Express Network in operating the
Service, User's sole and exclusive remedy is to discontinue using the Service.
DSL is a self install service, the billing starts from the day the service
was activated. Regardless of whether the customer has finished the self install
and has added the needed modem. Advertised speeds are the speeds across the DSL
line to the first stop. Speeds of 80% of advertised minimum will be considered
acceptable transmission rates. We advertise many special promotional prices.
These prices are likely to change after 6 months of service. You may cancel at
any time with a 30 day notice.
DIAL-UP
All users of Harte Communications, The Express Network, are solely responsible
for any long distance charges which may be resultant of dialing into our
services. Under No Circumstances will we pay any long distance charges which
result from a user dialing into a number which is a toll charge to them. Only
your phone company can determine what is a local call and a long distance phone
call based on your location and your chosen calling plan. Check with your phone
company to determine rates for any phone number you are dialing. We will not
honor any long distance charge claims which arise as a result of the wrong
dial-up number being supplied to or chosen by our users. All users agree to
contact the phone company to determine if the number supplied them or chosen by
them is toll free.
Indemnification
Notwithstanding anything to the contrary herein contained, User agrees to
indemnify and hold xprs.net, its affiliates, its licensers, its contractors or
their respective employees harmless against any and all liability, loss, claim,
judgment, damage and expense including without limitation attorney's fees and
cost of litigation) incurred or suffered by xprs.net, its licensers, its
affiliates, its contractors, or their respective employees as the result of any
and all use of User's account whether authorized or not authorized or as a
result of the negligence, willful misconduct, or breach of any of the terms of
this Agreement by User, including but not limited to claims, liabilities,
losses, damage, judgment and expense which arise out of alleged injury or death
of any person or damage to property of every kind and description. User shall
promptly notify The Express Network in writing of any claim of which it is
obligated under this indemnity. User shall have the right to assume the defense
of any such claim. User and The Express Network shall confer as to and agree on
the legal counsel(s) to be selected in any such defense.
Age Limit
User represents to The Express Network that he or she is 18 years of age or
older. User understands that certain materials available from Service provided
under the terms of this Agreement may not be suitable for individuals under the
age of 18.
Sexually Explicit Materials
User understands that the Internet contains unedited materials some of which are
sexually explicit or may be offensive. User accesses such materials at his or
her own risk. The Express Network has no control over and accepts no
responsibility whatsoever for such materials.
Prohibited Uses
User may not:
restrict or inhibit any other user from using and enjoying the Internet;
post or transmit any unlawful, threatening, abusive, libelous, defamatory,
obscene, pornographic, profane, or otherwise objectionable information of any
kind, including without limitation any transmissions constituting or encouraging
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any local, state, national or international law, including
without limitation the U.S. export control laws and regulations;
post on webspace provided any sexually explicit materials or materials that may
be offensive.
post or transmit any information or software which contains a virus, cancelbot,
trojan horse, worm or other harmful component;
post, publish, transmit, reproduce, distribute or in any way exploit any
information, software or other material obtained through the Service for
commercial purposes (other than as expressly permitted by the provider of such
information, software or other material);
upload, post, publish, transmit, reproduce, or distribute in any way,
information, software or other material obtained through the Service which is
protected by copyright, or other proprietary right, or derivative works with
respect thereto, without obtaining permission of the copyright owner or
rightholder;
upload, post, publish, transmit, reproduce, transmit or distribute in any way
any component of the Service itself or derivative works with respect thereto;
send unsolicited advertising or promotional materials to other network users
(See section titled "MESSAGING");
allow users to run Maillist, Listserv or any form of auto-responds from User's
account;
run or activate processes while User is not logged in;
violate the security of any computer network, crack passwords or security
encryption codes, transfer or store illegal material including that deemed
threatening or obscene, or engage in any kind or illegal activity;
attempt to defeat any idle timer or system tool intended to enforce the
part-time and personal nature of User's connection, including the use of
pingbots and other methods of avoiding timing disconnection (See section titled
"LIMITATIONS OF DIAL-UP SERVICES"); or
violate any of the rules, regulations and policies of those networks and
computer systems accessed via User's account.
The Express Network has no obligation to monitor the Service. However, User
agrees that The Express Network has the right to monitor the Service
electronically from time to time and to disclose any information as may be
necessary to satisfy any law, regulation or other governmental request, to
operate the Service properly, or to protect itself or its subscribers. The
Express Network will not intentionally monitor or disclose any private E-mail
message unless required by law. The Express Network reserves the right to refuse
to post or to remove any information or materials, in whole or in part, that, in
its sole and absolute discretion, are unacceptable, undesirable, or in violation
of this Agreement. The Express Network reserves the right to suspend access to
the Service for User's account. The account's suspension may be rescinded within
the sole and absolute discretion of The Express Network following payment of a
reconnection charge, to be determined by The Express Network in its sole and
absolute discretion.
Messaging
User agrees to limit their use of the The Express Network service, specifically
regarding the use of xprs.net's electronic (email) services, to the following
restrictions:
Unauthorized Use of Relay Servers
User agrees that any unauthorized use of any email server located throughout the
Internet for the purposes of relaying or distributing messages is prohibited.
Fraudulent Addressing
User agrees that the purposeful distribution of any email message where the
return address, originator's address, or any other identifiable aspect of the
message has been purposefully altered, is prohibited. User may not purposefully
misrepresent the origination information of any email messages sent while using
the The Express Network service.
Fraudulent Content
User agrees to be held responsible for the distribution of fraudulent materials.
VIOLATION OF ANY OF THESE TERMS WILL RESULT IN IMMEDIATE TERMINATION OF
SERVICES. FURTHERMORE, VIOLATION OF ANY OF THESE TERMS, RELATING TO THE TERMS
DESCRIBED WITHIN THIS "MESSAGING" SECTION OF THIS DOCUMENT, WILL RESULT IN THE
IMMEDIATE PENALTY OF $200. The Express Network RESERVES THE RIGHT TO CHARGE
USER'S CREDIT CARD, IF ON FILE FOR USE IN PAYMENT OF The Express Network
SERVICES, A ONE-TIME FEE OF $200 PER VIOLATION OF THESE TERMS. IN THE EVENT USER
PRE-PAYS FOR THEIR The Express Network SERVICE VIA CASH, CHECK, OR MEANS OTHER
THAN CREDIT CARD, The Express Network RESERVES THE RIGHT TO INVOICE AND HOLD
USER RESPONSIBLE FOR THE ONE-TIME FEE OF $200 PER VIOLATION OF THESE TERMS. USER
ALSO AGREES TO THE IMMEDIATE TERMINATION OF The Express Network SERVICES FOR
VIOLATION OF ANY OF THESE TERMS.
Limitation of Web Hosting Services
Although The Express Network advertises "Unlimited Bandwidth" in regards to some
of its services there are several limitations applied. The sole purpose of these
limitations are intended of unnecessary use of The Express Network services by
any such User, which restricts system availability for other such Users. These
limitations apply only to Hosting offered by xprs.net.
Restricted Content
You agree not to post any of the following restricted contents: Illegal, Abusive
or Unethical Activities include, but are not limited to, pornography, obscenity,
violations of privacy, hacking, computer virus, gambling, or promotion of
gambling, and any harassing or harmful materials or uses, as determined by us.
You agree to indemnify and hold us harmless from any claim resulting from your
publications or use of Illegal, Abusive or Unethical materials.
Bandwidth Restrictions
Although we advertise unlimited bandwidth, we reserve the right to inform you
that you must transfer your website if an excessive amount of bandwidth is being
used. Downloading with bit torrents or utilizing other pier to pier technologies
can consume much bandwidth and also are often the source of copyright
infringements. We reserve the right to cancel your account on our discretion.
If the request is not met within 5 days, we do reserve the right to remove the
website from our system.
Limitation of Dial-Up Services
Although The Express Network advertises "Unlimited Access" in regards to some of
it's Dial-Up services, there are several limitations applied. The sole purpose
of these limitations are intended to limit the amount of unnecessary use of The
Express Network services by any such User, which restricts overall The Express
Network system availability for other such Users. These limitations apply only
to Dial-Up access services offered by xprs.net.
Idle Timeout
User agrees to have their online session automatically terminated after ten (10)
minutes of consecutive inactivity. Inactivity is defined as less than 500 bytes
of data transferred between User's modem and the The Express Network service.
Maximum Single Session
User agrees to have an online session automatically terminated after five (8)
hours of consecutive time, regardless of data transferred during such specific
online session.
Minimum Re-Connect Limit
User understands they cannot log back onto the The Express Network system for a
time period of one (1) minute following the termination of their previous online
session, regardless of the reason for the previous session's termination.
Multiple, Concurrent Online Sessions
User agrees to maintain no more than one (1) concurrent online session for each
PPP/ISDN account purchased.
Unless during sign-up the user entered into an agreement with The Express
Network specifying multiple logins.
Dedicated Access Restrictions
User agrees to not use the service as a dedicated connection. The determination
of what a dedicated connection is shall be at the sole determination of xprs.net.
Service is provided as an unlimited service provided that you may not use the
provided connection as a dedicated connection. Any ISDN activities which are in
excess of 200 hours logged in any given month will be considered a dedicated
connection and subject to a $.35 per hour excessive usage charge.
Terms of Payment
All Invoices and recurring credit card charges become due on the 12th of each
month. Charges will reflect balances which become due within the following 30
days. All charges represent prepayment of services.
A credit card User agrees to allow "Harte Communications" to bill his or her
card on each successive billing date without obtaining User's permission after
the initial charge. A credit card User shall notify The Express Network of any
changes in credit card number or expiration date. If the card is not honored for
any reason, The Express Network will attempt to notify the card holder by using
the e-mail information given at sign-up or by E-mail. The Express Network will
call or write the card holder, and if alternative billing has not been
established, the account will be terminated. Restoring the account will be
subject to a setup fee of $10.00.
If payment is by check, payment due dates are indicated on User's invoice.
Dishonored checks are subject to a collection fee to be determined by The
Express Network in its sole and absolute discretion and User's account may be
suspended until the account is current. If payment is not received , service
will be terminated and a setup fee of $10.00 will be added to charges for
additional Service. We bill all customers on the 12th of each month for services
which will become due within the next 30 days. Credit cards on file are charged
at this time, if payment isn't received by the 20th of the month we send out a
statement and add a $3.00 billing charge.
The Express Network maintains the right to terminate Service for any unpaid
subscriptions. Accounts in default are subject to an interest charge of 2.5% per
month on the outstanding balance. Termination of Service shall not relieve User
from the obligation to satisfy outstanding invoices. In the event The Express
Network utilizes an attorney to collect any unpaid amounts, User shall be
responsible for the payment of all of xprs.net's attorneys' fees and costs in
the collection of these sums.
The Express Network reserves the right to change prices at any time without
prior notice to it's customers or the public. Price changes will not be
retroactive for existing customers, regardless of the length of their existing
service subscription.
Right to Cancel
The Express Network reserves the right to cancel Service for any reason without
prior notice. Pre-paid service is non-refundable. The Express Network will not
refund any shipping or handling fees. Cancellations after the anniversary start
date will be charged for that month.
User must notify The Express Network via telephone or in writing to cancel
Service. Cancellations shall not be honored by electronic mail. Fees for any
setup, shipping and handling, and monthly service charges placed by The Express
Network are non-refundable.
No Confidentiality
Information transmitted through The Express Network and through the Internet in
general is not confidential. The Express Network can not and shall not guarantee
privacy or protection of any User. The Express Network reserves the right to
monitor any User's transmissions when deemed necessary for providing proper
service and/or to protect the rights and property of xprs.net.
Non-transferable
The right to use the Service is not transferable. Accounts are for User's use
only. User shall be responsible for the confidentiality of User's password.
Loaning User's account to others, connecting a system used by multiple persons,
group use of user log-ins, and consuming more than one modem line are explicitly
prohibited. If User has multiple accounts, then User shall be limited to one
log-in session per system account at any time. Violation of those terms shall
constitute theft of Service and may be prosecuted under civil and criminal law.
Purchases on the Service
If User wishes to make purchases on the Service, User may be asked by the
merchant or information or service provider from whom User is making the
purchase to supply certain information, including credit card or other payment
mechanism information. User agrees that all information User may provide any
merchant or information or service provider on the Service for purposes of
making purchases shall be accurate, complete and current. The merchants and
information and service providers offering merchandise, information and services
on the Service set their own prices and may change prices or institute new
prices at any time. User agrees to pay all charges incurred by users of User's
account and credit card or other payment mechanism at the prices in effect when
such charges are incurred. User shall also be responsible for paying any
applicable taxes relating to purchases on the Service.
No System Backup
The Express Network does not and will not perform system backups on any User's
E-mail account(s). The Express Network shall not be held responsible for any
lost E-mail data, email attachments, or any E-mail message contents, regardless
of the reasoning for data loss or system causes. Except as otherwise set forth
herein, The Express Network will not provide historical data, to any party for
any reason, regarding any system or Internet activity.
The Express Network does not and will not perform system backups on any web
sites. The Express Network shall not be held responsible for any lost web data,
web files, or any website contents, regardless of the reasoning for data loss or
system causes. Except as otherwise set forth herein, The Express Network will
not provide historical data, to any party for any reason, regarding any system
or Internet activity.
Failure to Comply With Terms and Conditions
The Express Network may deny User access to all or part of the Service without
notice if User engages in any conduct or activities that The Express Network in
its sole discretion believes violates any of the terms and conditions in this
Agreement. If The Express Network denies User access to the Service because of
such a violation, User shall have not right (1) to access through The Express
Network any materials stored on the Internet, (2) to obtain any credit(s)
otherwise due to User, and such credit(s) shall be forfeited, (3) to access
third party services, merchandise or information on the Internet through
xprs.net, and The Express Network shall have no responsibility to notify any
third-party providers of services, merchandise or information nor any
responsibility for any consequences resulting from lack of notification.
Miscellaneous
User agrees to remain signed into the network only when actually making use of
same, and to disconnect when idle for significant periods of time (more than 1
hour ). User also agrees to not remain connected to xprs.net's system for
periods exceeding (8) eight hours, in any single continuous session. User
authorizes The Express Network to enforce these restrictions by appropriate
software and network measures, automated and manual.
User agrees to notify The Express Network if User moves or otherwise changes his
or her mailing address or phone number, and to list a truthful name, postal
address and telephone number on the forms User supplies to xprs.net.
In the event that any portion of this Agreement is held to be unenforceable, the
unenforceable portion shall be construed in accordance with applicable law as
nearly as possible to reflect the original intentions of the parties and the
remainder of the provisions shall remain in full force and effect.
xprs.net's failure to insist upon or enforce strict performance of any
provisions of this Agreement shall not be construed as a waiver of any provision
or right. neither the course of conduct between parties nor trade practice shall
act to modify any provision of this Agreement.
The Express Network may modify this Agreement from time to time by placing a
notice of such modification on our website, and User's continued use of the
Service following notice of such modification shall be deemed to be User's
acceptance of any such modification. It is User's responsibility to check this
online area regularly to determine whether this Agreement has been modified. If
User does not agree to any modification of this Agreement, User must immediately
stop using the Service.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Illinois without regard to its conflicts of law provisions. Any
cause of action User may have with respect to the Service must be commenced
within one (1) year after the claim or cause of action arises or such claim or
cause of action is barred.
The Express Network shall not be liable or deemed to be in default for any delay
or failure in performance under this Agreement or interruption of service
resulting directly or indirectly from acts of God, civil or military authority,
acts of public enemy, war, riots, civil disturbances, insurrections, accidents,
dire, explosions, earthquakes, floods, the elements, strikes, labor disputes,
shortages of suitable parts, materials, labor or transportation or any cause
beyond the reasonable control of xprs.net.
Venue for litigation of any dispute, controversy, or claim arising out of, in
connection with, or in relation to this Agreement, or the breach thereof, naming
The Express Network as the defendant, shall be proper only in a venue determined
by xprs.net.
In any action between The Express Network and User to enforce any of the terms
of this Agreement, The Express Network shall be entitled to recover expenses,
including reasonable attorney's fees.
This Agreement constitutes the entire agreement between User and The Express
Network with respect to the Service.