This Agreement (the “Agreement”) sets forth the terms and conditions under which RC Technologies (“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.
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/legal-information/aup/ 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.
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:
Phone: 605-637-5211 or 800-256-6854
US Mail: RC Technologies, PO Box 197, New Effington SD 57255