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Subscriber Agreement This Agreement (the "Agreement") sets
forth the terms and conditions under which RC Technologies Corporation
("RCT") agrees to provide e-mail and Internet access service
(hereinafter the "Service") to you. By completing the registration and
using the Service, you (i) agree to abide by, and require others using
the Service via your account to abide by the terms of this Agreement,
and (ii) represent and warrant that you are at least 18 years of age.
If you do not agree with the foregoing, you may not use the Service and
must return the installation software, equipment, and all associated
materials to RCT. This Agreement takes effect on the date on which you
accept this Agreement, and continues until your subscription is
terminated.
RCT
reserves the right to modify the terms of this Agreement or prices for
the Service and may discontinue or revise any or all other aspects of
the Service in its sole discretion at any time by posting changes
online. Your continued use of the Service after changes are posted
constitutes your acceptance of this Agreement as modified by the posted
changes. The updated, online version of this Agreement shall supersede
any prior version of this Agreement that may have been included in any
software or related materials provided by RCT. This Agreement should be
read in conjunction with our Acceptable Use Policy, Online Privacy
Policy, and other applicable policies.
IF YOU DO NOT AGREE TO BE
BOUND BY THESE TERMS, YOU SHOULD IMMEDIATELY STOP THE USE OF THE
SERVICE AND NOTIFY THE RCT CUSTOMER SERVICE DEPARTMENT SO THAT YOUR
ACCOUNT MAY BE CLOSED.
1. Subscription. Your subscription
entitles you to use the Service. Your subscription is personal to you,
you agree not to assign, transfer, resell or sublicense your rights as
a subscriber unless specifically allowed by this Agreement. You agree
that you are solely responsible and liable for any and all breaches of
the terms and conditions of this Agreement, whether such breach results
from your use of the Service or by another using your computer. You
agree to contact RCT immediately upon the occurrence of any change in
the status of your account (e.g., change in individuals authorized to
use your account) for the purpose of updating your account information.
2.
Payment Terms. RCT will invoice you monthly. Payment in full is due
within thirty (30) days after the date of invoice unless other
arrangements are made and agreed to by both parties in writing. If
payment is not made when due, RCT may terminate the Service. Service
interruption does not relieve you of your obligation to pay monthly
charges incurred. Any amount not paid by you on or before the due date
is subject to an interest charge accruing from such date until receipt
of payment by RCT at a rate equal to 1.5 percent per month or at the
highest rate permitted by law, whichever is less. You may reinstate the
Service upon payment in full of any outstanding balance and another
initial administrative fee. All fees payable hereunder are exclusive of
sales, use, value-added, excise and other similar taxes, which shall be
paid by you, excluding the RCT’s franchise tax and taxes based on the
RCT’s net income.
3. Technical Support. RCT will provide you
technical support upon activation of your account for initial set up
and ongoing use of the e-mail and Internet access services.
4.
Passwords. Upon subscribing for the Service, you will select a unique
password. You are responsible for maintaining the confidentiality of
the password and are liable for any harm resulting from disclosing or
allowing disclosure of any password. In the event of a breach of
security, you will remain liable for any unauthorized use of the
Service until you notify RCT.
5. Software License. RCT grants
to you a limited, nonexclusive, nontransferable and nonassignable
license to install and use RCT's access software (including software
from third party vendors that RCT distributes, hereinafter referred to
as the "Licensed Software"), in order to access and use the Service.
RCT may modify the Licensed Software at any time, for any reason, and
without providing notice of such modification to you. The Licensed
Software constitutes confidential and proprietary information of RCT
and RCT's licensors and contains trade secrets and intellectual
property protected under United States copyright laws, international
treaty provisions, and other laws. All right, title, and interest in
and to the Licensed Software, including associated intellectual
property rights, are and shall remain with RCT and its licensors. You
agree to comply with the terms and conditions of all end user software
license agreements accompanying any software or plug-ins to such
software distributed by RCT in connection with the Service. You shall
not translate, decompile, reverse engineer, distribute, remarket, or
otherwise dispose of the Licensed Software or any part thereof. You
acknowledge that the Licensed Software, and any accompanying
documentation and/or technical information, is subject to applicable
export control laws and regulations of the United States. You agree not
to export or re-export the Licensed Software, directly or indirectly,
to any countries that are subject to United States export restrictions.
Your right to use the Licensed Software terminates upon termination of
this Agreement.
6. Prohibited Uses/Acceptable Use Policy. You
agree to use the Service strictly in accordance with the Acceptable Use
Policy located at http://www.tnics.com/acceptable_use which may be
modified by RCT from time to time, and which is incorporated herein by
reference and made a part of this Agreement.
7. Posting to
RCT. You are solely responsible and liable for all material that you
upload, post, e-mail, transmit or otherwise make available via the
Service, including, without limitation, material that you post to any
RCT Website or any third party vendor's service (e.g., newsgroups) that
is used by RCT. RCT does not claim ownership of material you submit or
make available for inclusion on the Service. However, with respect to
material you submit or make available for inclusion on publicly
accessible areas of the Service, you grant RCT a world-wide, royalty
free and non-exclusive license(s) to: use your material in connection
with RCT's businesses including, but not limited to, the rights to:
copy, distribute, publicly perform, publicly display, transmit, publish
your name in connection with the material, and to prepare derivative
works. No compensation will be paid with respect to the use of your
material.
8. Links to Third Party Web Sites. In your use of
the Service and/or RCT Web sites, you may encounter various types of
links that enable you to visit Web sites operated or owned by third
parties ("Third Party Site(s)"). These links are provided to you as a
convenience and are not under the control or ownership of RCT. The
inclusion of any link to a Third Party Site is not (i) an endorsement
by RCT of the Third Party Site, (ii) an acknowledgement of any
affiliation with its operators or owners, or (iii) a warranty of any
type regarding any information or offer on the Third Party Site. Your
use of any Third Party Site is governed by the various legal agreements
and policies posted at that Web site.
9. Monitoring and Removal
of Content. RCT is under no obligation to monitor the Service.
However, RCT reserves the right at all times and without notice to
remove, restrict access to, or make unavailable, any content on its
servers that it considers, in its sole discretion, obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, and to monitor, review, retain and/or disclose any
content or other information in RCT's possession about or related to
you, your use of the Service or otherwise as RCT deems necessary to
satisfy any applicable law, regulation, legal process, or governmental
request.
10. No Expectation of Privacy. You acknowledge that
transmissions made by means of the Service are not confidential and
that your communications may be read or intercepted by others. You
acknowledge that by transmitting materials by means of the Service, no
confidential, fiduciary, contractually implied or other relationship is
created between you and RCT. For information regarding your privacy,
please see RCT’s Privacy Policy at www.tnics.com. RCT encourages you to
periodically review this statement, as it is updated on a regular basis.
11.
No Spam or Other Unsolicited Bulk E-mail. RCT may immediately
terminate any subscriber account that it determines, in its sole
discretion, is transmitting or is otherwise connected with any "spam"
or other unsolicited bulk e-mail. RCT reserves the right to block,
reject or remove what it considers in its sole discretion to be "spam"
or other unsolicited bulk e-mail from the Service and RCT shall have no
liability for blocking any e-mail considered to be “spam.”
12.
Warranties. You represent, warrant and covenant to RCT that you will
not transmit by means of the Services any materials of any kind which
(i) violate, plagiarize, or infringe on the Intellectual Property
Rights or contractual rights of any third party; (ii) are exported in
violation of any law, rule, or regulation governing exports from the
United States; and (iii) contain unlawful, harmful, threatening,
abusive, harassing, pornographic, indecent or constitutes child
pornography under applicable law, defamatory, vulgar, obscene, profane,
hateful, racially, ethnically or otherwise objectionable content,
including, but not limited to, any content which encourages conduct
that would constitute a criminal offense, give rise to civil liability
or otherwise violate any applicable local, state, national or
international law; (iv) contain Viruses or any other malicious code
designed to interrupt, destroy or limit the functionality of any
computer software or hardware or telecommunications equipment.
13.
Indemnification. You agree to indemnify, defend and hold harmless RCT,
and any company in control of, controlled by or under common control
with RCT (“Affiliates”) and their respective officers, directors,
employees, agents, successors, subsidiaries, parent and assigns, for
all damages, liability, penalties, awards, judgments and expenses,
including reasonable attorneys’ fees, incurred by RCT or its Affiliates
in connection with any claims against such parties by any third party
arising out of any breach by you of the foregoing representations,
warranties and covenants, including, without limitation, attorneys’
fees and costs. You shall cooperate as fully as reasonably required in
the defense of any claim. RCT reserves the right, at its own expense,
to assume the exclusive defense and control of any matter otherwise
subject to indemnification by you and you shall not in any event settle
any matter without the written consent of RCT.
14. Disclaimer
of Warranty and Limitation of Liability. YOUR USE OF THE SERVICE IS AT
YOUR OWN RISK. RCT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED,
IMPLIED OR STATUTORY, ABOUT THE SUITABILITY, RELIABILITY, USABILITY,
AVAILABILITY, TIMELINESS AND ACCURACY OF THE SERVICE. THE SERVICE
(INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION
ACCESSED BY ANY MEANS THEREOF) IS PROVIDED “AS IS” AND “AS AVAILABLE”
WITHOUT WARRANTIES OF ANY KIND. RCT DOES NOT WARRANT OR REPRESENT THAT
ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE,
THAT YOU WILL BE ABLE TO ACCESS THE SERVICE AT ANY TIME OR IN ANY
GEOGRAPHIC AREA, OR THAT THE SERVICE WILL MEET ANY PARTICULAR CRITERIA
OR PERFORMANCE QUALITY. RCT HEREBY DISCLAIMS ALL WARRANTIES AND
CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, WITH REGARD TO THE
SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, ORIGINALITY
OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES OF NON-INFRINGEMENT OR WARRANTIES OF LACK OF
VIRUSES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, RCT MAKES NO
WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICE,
INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE
SERVICE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, RCT’S
NEGLIGENCE.
RCT SHALL HAVE NO LIABILITY FOR VIRUSES, OR
UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE
SERVICE OR THE CONTENT THROUGH ACCIDENT, WILLFUL ACTS OF THIRD PARTIES,
FRAUDULENT MEANS OR DEVICES. RCT’S TOTAL LIABILITY TO YOU FOR ANY AND
ALL CLAIMS, WHETHER IN AN ACTION IN CONTRACT OR IN TORT, INCLUDING, BUT
NOT LIMITED TO, NEGLIGENCE OR STRICT LIABILITY, FOR ANY LOSS OR INJURY
ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE PERFORMANCE OR
BREACH OF THESE TERMS OR THE USE, PERFORMANCE OR NONPERFORMANCE OF THE
SERVICE PROVIDED HEREUNDER OR THE SERVICE, OR ANY PART THEREOF, SHALL
NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY YOU TO RCT DURING THE
PRIOR SIX MONTH PERIOD FOR THE SERVICE THAT CAUSE THE LOSS OR INJURY OR
ARE THE SUBJECT MATTER OF THE CLAIM OR CAUSE OF ACTION.
15.
Consequential Damages. RCT SHALL NOT BE LIABLE FOR ANY DIRECT,
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
COVER DAMAGES (EVEN IF RCT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES) ARISING FROM THE PERFORMANCE, ATTEMPTED PERFORMANCE OR
NONPERFORMANCE OF THE SERVICE FURNISHED HEREUNDER, INCLUDING, WITHOUT
LIMITATION, DAMAGES RESULTING FROM VIRUSES, THE USE OR INABILITY TO USE
THE SERVICE, DELAY OF DELIVERY OR COMPLETION OF SERVICE, INACCURACY OR
MISREPRESENTATION OF DATA, OR LOSS OF PROFITS, DATA, BUSINESS OR
GOODWILL.
16. Modifications. RCT has the right to modify this
Agreement, including monthly fees. Any modification is effective
immediately upon either a posting on the RCT Home Page
(http://www.tnics.com), or upon notice by electronic mail, or U.S.
mail. Your continued use of the Service following notice of any
modification to these Terms shall be conclusively deemed an acceptance
of all such modification(s). Your only right with respect to any
dissatisfaction with any modifications made pursuant to this provision,
or any policies or practices of RCT in providing the Service,
including, without limitation, any change in the content of the
Service, or any change in the amount or type of fees, is to terminate
these Terms by delivering notice to RCT. Such notice will be effective
upon receipt by RCT.
17. Termination. Either party may
terminate this Agreement at any time without cause by providing the
other party with no less than twenty-four (24) hours written notice of
such termination. In the event of termination by you, you must notify
RCT by telephone or by a non-electronic written submission. E-mail
submissions shall not constitute effective notice. In the event of
termination by RCT, RCT may notify you of such termination by
electronic or other means. In those cases where you elect a contract
term, RCT’s early cancellation penalties (as outlined on the Service
Agreement) will apply.
You expressly agree that upon termination
of this Agreement: (i) You will pay RCT in full for your use of any
Equipment and Service up to the later of the effective date of
termination of the Service Agreement or the date on which the Service
and any Equipment have been disconnected and returned to RCT. You agree
to pay RCT on a pro-rated basis for any use by you of any Equipment or
Services for a part of a month; (ii) You will permit RCT to access your
premises at a reasonable time to remove any Equipment and other
material provided by RCT; (iii) You will ensure the immediate return of
any Equipment to RCT; (iv) You will return or destroy all copies of any
software provided to you pursuant to this Agreement; and (v) RCT is
authorized to delete any files, programs, data and e-mail messages
associated with such account.
18. Intellectual Property
Infringement Claims. RCT is registered under the Digital Millennium
Copyright Act of 1998. In accordance with Title 17, United States Code,
Section 512(c)(3), if you believe that a Web page hosted by RCT is
violating your rights under U.S. copyright law, you may file a
complaint of such claimed infringement with RCT's designated agent. See
RCT's Claim of Copyright Infringement Policy.
19. General.
These Terms constitute the entire agreement and understanding between
the parties hereto and is the final expression of their agreement, and
no evidence of oral or other written promises shall be binding and
will be governed under and construed in accordance with the laws of the
State of South Dakota. You hereby consent to jurisdiction and venue in
any federal or state court located in Roberts County, South Dakota, and
waive all objections thereto. The failure to enforce or to require the
performance at any time of any of the provisions of these Terms will
not be construed as a waiver of such provisions and shall not affect
either the validity of these Terms or the right of any party thereafter
to enforce any provisions of these Terms. You may not assign your
rights or obligations under these Terms, in whole or in part, whether
by assignment, merger, transfer of assets, sale of stock, operation of
law or otherwise, and any attempt to do so shall be deemed a material
breach of these Terms. RCT may assign its rights and obligations under
these Terms, including but not limited to subcontractors. No action
(including arbitration), regardless of form, arising out of
transactions under these Terms, shall be brought by either party more
than one (1) year after the cause of action has accrued. This
limitation shall not apply to any action brought by RCT for collection
of any accrued amounts owed by you to RCT. Sections 12, 14, 15, and
this Section 19 of these Terms shall survive the termination of these
Terms, and said termination shall not affect the validity or
enforceability of such sections. Except for the payment of fees by you,
if the performance of any part of these Terms by either party is
prevented, hindered, delayed or otherwise made impracticable by reason
of any flood, riot, fire, judicial or governmental action, labor
disputes, act of God or any other causes beyond the control of either
party, that party shall be excused from such to the extent that it is
prevented,
hindered or delayed by such causes. These Terms will
apply to other Internet services provided by RCT to you not listed on
this form unless otherwise specified and acknowledged in writing by
both parties.
20. Contact Information. For any questions regarding the Subscriber Agreement, please contact us at the following:
Email: tnics@tnics.com
Phone: 605-637-5211 or 800-256-6854
US Mail: RC Technologies, PO Box 33, New Effington SD 57255
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