1. BrandywineNet Internet Services
(BrandywineNet), as operated by Ad Pro, Inc., is a computer,
interactive information, communication and transaction service
allowing access to the Internet, bulletin boards, private networks
and other communications outlets. BrandywineNet is available to
an authorized member through a personal membership account
(Membership); it is accessible through a personal computer, or
other access device and a communications connection (e.g. modem,
telephone line).
2. CAREFULLY READ the terms of this
agreement which governs your use of the BrandywineNet Internet
Service. BrandywineNet may modify this agreement at any time and
in any manner. Any modification is effective immediately upon
either a posting on the BrandywineNet Home Page (http://www.brandywine.net),
electronic mail, or conventional mail. If any modification to this
agreement is unacceptable to you, you may immediately terminate
your membership as provided in Section 18 below. Your continued
use of the BrandywineNet Service following notice of any
modification to this Agreement shall be conclusively deemed an
acceptance of all such modification(s).
3. BrandywineNet grants to you
("Member") a non-exclusive, non-transferable right to access, use
and display the BrandywineNet Service on any machine(s) of which
you are the primary user. Member may not, however, maintain access
to the Service on more than one modem at any given time.
BrandywineNet Service is provided on an AS IS, AS AVAILABLE basis
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY BrandywineNet, ITS
EMPLOYEES, LICENSORS OF THE LIKE, SHALL CREATE A WARRANTY; NOR
SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
4. You understand that except for
information products or services clearly identified as being
supplied by BrandywineNet, neither BrandywineNet, nor any of its
affiliates, operates or controls any information, products or
services accessible through BrandywineNet Service in any way and
that, except for such BrandywineNet identified information,
services or products, all merchandise, information and services
offered or made available or accessible through the Service are
offered or made available or accessible by third parties who are
not affiliated with BrandywineNet or its affiliates. YOU EXPRESSLY
AGREE that use of the BrandywineNet Service is at your SOLE RISK
and YOU AGREE that any information, service or product accessible
through the Service is WITHOUT WARRANTIES OF ANY KIND BY
BrandywineNet AND ITS AFFILIATES, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. Member may order and purchase
merchandise or services from other Members and users of other
communications outlets including the Internet. Member acknowledges
that all transactions concerning third party (Seller) merchandise
or services, including but not limited to purchase terms, payment
terms, warranties, guarantees, maintenance and delivery, are
solely between Seller and Member. BrandywineNet makes no
warranties or representations whatsoever with regard to any goods
or services provided by Seller. BrandywineNet shall not be a party
to a transaction between Member and Seller, or be liable for any
cost or damage arising either directly or indirectly from any
action or inaction of Seller or Member.
6. UNDER NO CIRCUMSTANCES,
INCLUDING NEGLIGENCE, SHALL BrandywineNet, OR ANYONE ELSE INVOLVED
IN CREATING, PRODUCING OR DISTRIBUTING THE BrandywineNet SERVICE
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO
USE THE SERVICE including but not limited to reliance on any
information obtained on the BrandywineNet Internet Service; or
that result from mistakes, omissions, interruptions, deletion of
files or e-mail, errors, defects, viruses, delays in operation, or
transmission, or any failure of performance, whether or not
limited to acts of God, communications failure, theft, destruction
or unauthorized access to BrandywineNet's records, programs or
services. YOU HEREBY ACKNOWLEDGE that this PROVISION SHALL APPLY
WHETHER OR NOT BrandywineNet IS GIVEN NOTICE OF THE POSSIBILITY OF
SUCH DAMAGES AND that this PROVISION SHALL APPLY TO ALL CONTENT,
MERCHANDISE OR SERVICES AVAILABLE THROUGH THE BrandywineNet
SERVICE.
7. Member is responsible for all
charges (e.g., telephone) associated with connecting to the
BrandywineNet Service through an available access number. Member
is responsible for obtaining or providing all telephone access
lines, telephone and computer equipment (including modem), or
other access device, necessary to access the BrandywineNet
Service.
8. Member certifies to
BrandywineNet that he/she is not a minor. (A minor's parent or
legal guardian may authorize a minor to use his/her account(s)
under supervision by the parent or guardian). For purposes of
identification, billing and marketing, Member agrees to provide
BrandywineNet with accurate, complete, and updated information
required by the registration to the BrandywineNet Service (Member
Registration Data), including Member's legal name, address,
telephone number(s), and applicable payment data (e.g., credit
card number and expiration date). Member agrees to notify
BrandywineNet within thirty (30) days of any changes in Member
Registration Data. Failure to comply fully with this provision may
result in immediate suspension or termination of your right to use
the BrandywineNet Service. If user is planning on canceling their
service, BrandywineNet must recieve proper written notification 30
days of canceling.
9. Accounts/Charges/Payment.
(a) This Agreement applies to all
accounts, sub-accounts, alternative account names associated with
Member's principal account. Each Member is responsible for the use
of his/her/its account(s) under any name on that account by any
person, and for ensuring full compliance with this Agreement by
all users of his/her/its account(s). A BrandywineNet Service
account may not be transferred without prior written approval from
BrandywineNet and is subject to any limits established by
BrandywineNet.
(b) Member is responsible for
maintaining the confidentiality of his/her/its passwords. Member
is responsible for all activities and charges resulting from use
of Member's principal account with the BrandywineNet Service.
Member agrees to pay all monthly membership fees, connect time
charges, surcharges, applicable taxes and other charges incurred
by Member and/or his/her/its designated users. In the event of a
breach of security, Member will remain liable for any unauthorized
use of the BrandywineNet Service until Member notifies
BrandywineNet by calling (610) 932-6590 (customer service).
(c) Current rates for using the
BrandywineNet Service may be obtained by calling (610) 932-6590 or
through BrandywineNet's Home Page at "http://www.brandywine.net".
BrandywineNet reserves the right to increase fees, surcharges,
monthly membership fees or to institute new fees at any time upon
thirty (30) days prior notice. BrandywineNet may reduce these fees
at any time without notice to Member. In the event that a Member's
account is terminated or canceled, on-line time credited to
Member's account is not convertible to cash or other form of
credit. If BrandywineNet does not receive the full amount of
Member's BrandywineNet Service account balance within thirty days
(30) days of the invoice date or billing date, the lesser of an
additional 1.5%, or the highest percentage allowed by law, of the
outstanding balance will be added to Member's bill as a late
charge each month and shall be due and payable. Member shall also
be liable for all attorney and collection fees arising from
BrandywineNet's efforts to collect any unpaid balance of Member's
account(s).
Any user who has pre-paid for a
time period (e.g. quarterly, semi-annual, or yearly) is not
eligible for refund except for the below exceptions:
(1) Member Moves out of
area and can no longer be served by BrandywineNet.
(2) BrandywineNet administration approves refund.
ALL EARLY CANCELATIONS
COULD BE SUBJECT TO A $125 EARLY TERMINATION FEE IF MEMBER PREPAID
FOR A PERIOD OF TIME (QUARTERLY, SEMI-ANNUAL, ANNUAL)
10. YOU UNDERSTAND that information
available to you through the BrandywineNet Service may include
MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT OR OFFENSIVE TO YOU
AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK.
BrandywineNet HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH
MATERIALS.
11. Member recognizes that he or
she is solely responsible for the content of any information
Member makes available through the Service and that BrandywineNet
will not monitor the Service to examine the content passing
through it. Member agrees that if BrandywineNet is made aware of
content that BrandywineNet deems in its sole discretion to be
unacceptable, undesirable, offensive, indecent, obscene,
excessively violent or otherwise objectionable, BrandywineNet has
the right, but not the obligation, to remove or deny access to
such content. Member expressly agrees that BrandywineNet shall not
be liable to Member for any action BrandywineNet takes to remove
or restrict access to such material, nor for any action taken to
restrict access to material posted in violation of any law,
regulation or rights of a third-party, including, but not limited
to, rights under the copyright law and prohibitions on libel,
slander and invasion of privacy. Member recognizes that
BrandywineNet's actions with respect to all such material may
include restriction, suspension or termination of Member's access
privileges and/or deletion of the objectionable material.
12. Material accessible to Member
through the BrandywineNet Service may be copyrighted. Except as
expressly permitted by the copyright holder of the material,
neither Member nor Member's designated users may reproduce,
redistribute, retransmit, publish or otherwise transfer, or
commercially exploit, any material which they access or receive
through the Service.
13. Member expressly agrees not to
use the BrandywineNet Service in a manner that is prohibited by
any law or regulation or to facilitate the violation of any law or
regulation. Member further agrees not to use the Service in a
manner that will disrupt third parties' use or enjoyment of the
BrandywineNet Service or other communications services and
outlets. Member acknowledges that prohibited conduct includes, but
is not limited to, use of the Service to invade the privacy of
third parties, impersonation of BrandywineNet personnel,
transmitting via e-mail, USENET, chat service or the Member's
personal web page or site, abusive, profane, libelous, slanderous,
threatening or otherwise harassing material and posting material
in any USENET or newsgroup that is off-topic according to the
charter or other public statement of the USENET or newsgroup.
Member also agrees not to use the Service to solicit other members
to patronize competing services, not to violate or tamper with the
security of the BrandywineNet Service or attempt to utilize
another member's account name or persona without authorization
from that member.
14. Member acknowledges that
he/she/it is expressly prohibited from utilizing the BrandywineNet
service, BrandywineNet's equipment or any BrandywineNet electronic
mail address in connection with the sending of the same or
substantially similar unsolicited electronic mail message, whether
commercial or not, to a large number of recipients. This
prohibition extends to the sending of unsolicited mass
mailings from another service which in any way implicates
the use of the BrandywineNet Service, BrandywineNet's equipment or
any BrandywineNet electronic mail address.
A message is unsolicited if it is
posted in violation of a USENET or newsgroup charter and/or if it
is sent to a recipient who has not requested or invited the
message. For purposes of this provision, merely making one's
e-mail address accessible to the public shall not constitute a
request or invitation to receive messages.
Member specifically agrees that
he/she/it will not utilize the BrandywineNet Service,
BrandywineNet's equipment or any BrandywineNet electronic mail
address in connection with the transmission of the same or
substantially similar unsolicited message to 50 or more recipients
or 15 or more USENETs or newsgroups in a single day. For each day
upon which this provision is violated, Member agrees to pay
BrandywineNet damages to compensate for the lost goodwill such a
violation causes. Member agrees to pay BrandywineNet $10 per day
for an unintentional violation of this provision, but where
warranted, such as in the case of an accidental transmission,
BrandywineNet may waive all or part of the applicable charge. In
cases of willful violations of this provision, Member agrees to
pay BrandywineNet $200 per day. BrandywineNet at its sole
discretion shall determine whether a violation was unintentional
or willful. Payment by member under this provision shall not
prevent BrandywineNet from seeking to obtain other legal remedies
against member, including other damages or an injunction.
15. Member acknowledges that
BrandywineNet shall not maintain more than 2 MB of electronic mail
storage for member and that Member is responsible for ensuring
that the level of electronic mail storage remains below this 2 MB
limit. Member expressly agrees that BrandywineNet shall not be
liable to Member or parties interacting with Member for any
damages resulting from action BrandywineNet takes to enforce this
provision.
16. Member agrees that any personal
web page or site Member publishes in connection with the
BrandywineNet Service is intended for personal use. While other
uses (e.g. commercial) are not prohibited, they may draw
sufficient third party visits ("hits") to the page or site so as
to impose a burden on the Service by reducing available bandwidth.
To ensure that all Members can use and enjoy the Service, Member
agrees that BrandywineNet is entitled to suspend or terminate
access to any Member's web page or site permanently if
BrandywineNet determines that the page or site has, on any single
day, received download traffic of fifty megabytes (50,000K) or
more. Member expressly agrees that BrandywineNet shall not be
liable to Member or parties interacting with Member for any
damages resulting from action BrandywineNet takes to enforce this
provision.
17. Member acknowledges that the
BrandywineNet service is intended for periodic, active use of
electronic mail, usenet newsgroups, file transfers via ftp,
internet relay chat, interactive games and browsing of the world
wide web. Member agrees not to use to the BrandywineNet service to
operate server programs, including, but not limited to mail
servers, IRC servers, ftp servers or web servers. Member further
agrees not to use the BrandywineNet service on a standby or
inactive basis in order to maintain a connection. Automated
electronic or mechanical processes employed to maintain a constant
connection such as use of an auto-dialer, persistent checking of
e-mail or "pinging" the host are expressly prohibited. Member
agrees that BrandywineNet may terminate member's connection
following twenty (20) minutes of inactivity as determined by
BrandywineNet. BrandywineNet will allocate system resources to
provide the best possible service to all members. BrandywineNet
reserves the right to limit, restrict or prioritize access to
system resources, including cpu time, memory and disk space
18. Member recognizes that this
Agreement continues only for so long as the parties' mutually
agree to continue it. Either Member or BrandywineNet may terminate
the Agreement and Member's Membership at any time for any reason
or no reason. BrandywineNet may also restrict, suspend or
terminate, without notice, Member's access to and use of the
BrandywineNet Service upon any breach of this Agreement. In the
event of any termination for breach of this Agreement, Member
shall not establish a new membership with BrandywineNet for one
year from the date of termination. Member's only right with
respect to any dissatisfaction with any terms, rules, policies,
guidelines, or practices of BrandywineNet in operating the
BrandywineNet Service, any change in the content of the
BrandywineNet Service, or any change in the amount or type of fees
charged in connection with the BrandywineNet Service, is to
terminate Membership by delivering notice to BrandywineNet,
effective the day BrandywineNet receives notification of
termination or any future date specified which is acceptable to
BrandywineNet. Upon termination of this Agreement, Member shall
have no right (a) to obtain any credit(s) otherwise due to Member,
and such credit(s) will be forfeited, (b) to access through
BrandywineNet any materials stored on the Internet or (c) to
access any third-party providers of services, merchandise or
information on the Internet through BrandywineNet, and
BrandywineNet shall have no responsibility to notify such
third-party providers nor shall BrandywineNet have any
responsibility for any damages that result from the lack of such
notification.
19. Upon request of BrandywineNet,
Member agrees to defend, indemnify and hold harmless BrandywineNet,
its officers, directors, employees, agents and licensees, from any
claims and expenses, including reasonable attorneys fees, arising
out of or relating to Member's use of the BrandywineNet Service.
20 Interpretation and enforcement
of this agreement shall be governed by the laws of the state of
Pennsylvania (excluding its choice of law rules). Member consents
to personal jurisdiction in the federal and state courts of
Chester County, Pennsylvania for any action arising out of or
relating to member's use of the BrandywineNet Service. The federal
and state courts of Chester County, Pennsylvania shall have
exclusive jurisdiction over all such actions. In any such action,
the prevailing party shall be entitled to recover all legal
expenses incurred in connection with the action, including but not
limited to its costs, both taxable and non-taxable, and reasonable
attorney's fees.
21. This Agreement constitutes the
entire agreement between you and BrandywineNet with respect to the
BrandywineNet Service and supersedes all prior agreements between
you and BrandywineNet. BrandywineNet's failure to enforce any
provision of this agreement shall not be construed as a waiver of
any provision or right. In the event that a portion of this
Agreement is held 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.
Effective 10/20/97
Last updated 7/29/03 11:04am
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