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| DSL Service Agreement |
| GloryWorks, Inc. ("GloryWorks") is pleased to provide you ("Customer") with Digital Subscriber Line (DSL) Internet access services over telephone wire via a DSL modem (the "Services") on the terms and conditions set forth below. Please carefully read and review the terms and conditions of this Agreement before using the equipment (AS DEFINED IN SECTION 3 BELOW) or the Services(AS DEFINED IN SECTION 7 BELOW). By USING THE EQUIPMENT OR THE SERVICES, you are becoming a party to and agree to be bound by this agreement. IN ADDITION, YOUR USE OF THE SERVICES IS SUBJECT TO THE THEN-CURRENT GLORYWORKS SUBSCRIBER AGREEMENT (SEE SECTION 7(a) below) and all license agreements in connection with the software supplied to you by GloryWorks.
(a) Computer Equipment Requirement. GloryWorks or its agent or contractor has provided Customer with materials which set forth the minimum hardware and operating system requirements necessary to use the Services. Customer represents and agrees that Customer has reviewed those materials and that the computer in which the Equipment will be installed meets these minimum computer requirements. Further, Customer understands that he or she must possess original (or equivalent) media (CD, disk, etc.) for the Operating System in order for an installation to be successful. (b) Back-Up Requirements. The installation, use, inspection, maintenance, repair and removal of the Equipment may result in service outage or potential damage to Customer's computer. Customer acknowledges and agrees that Customer is solely responsible for backing-up all existing computer files by copying them to another storage medium prior to installation of the Equipment, and prior to any inspection, maintenance, repair or removal of the Equipment. GloryWorks and its employees, agents, contractors and representatives shall have no liability whatsoever for any damage to or loss or destruction of any of Customer's software, files, data or peripherals. If Customer chooses to have GloryWorks install the service ( or premises is in an area where the self-install option is not available), Customer authorizes GloryWorks and its employees, agents, contractors and representatives to enter Customer's premises in order to install, maintain, inspect, repair and remove the Equipment. All such services will be conducted at a time mutually agreed to by GloryWorks and Customer. Customer authorizes GloryWorks to work with providers of telephone infrastructure to provision DSL service to the phone number indicated on the order. Customer is responsible for cancellation of any previous high-speed Internet access service using the same infrastructure. GloryWorks or its agent or contractor may provide Customer with an outlet (if required), a DSL modem, a network interface card (for desktop systems ONLY, we do not provide network interface cards for laptop computers) and certain software (collectively, the "Equipment"). GloryWorks will also provide instructions on the use of the Equipment and the Services. The Equipment provided by GloryWorks, when properly installed in Customer's computer and network, will allow Customer to access and use the Services. (a) Computer Equipment Requirement. GloryWorks or its agent or contractor has provided Customer with materials which set forth the minimum hardware and operating system requirements necessary to use the Services. Customer represents and agrees that Customer has reviewed those materials and that the computer in which the Equipment will be installed meets these minimum computer requirements. Further, Customer understands that he or she must possess original (or equivalent) media (CD, disk, etc.) for the Operating System in order for an installation to be successful. (b) Back-Up Requirements. The installation, use, inspection, maintenance, repair and removal of the Equipment may result in service outage or potential damage to Customer's computer and/or network. Customer acknowledges and agrees that Customer is solely responsible for backing-up all existing computer files by copying them to another storage medium prior to installation of the Equipment, and prior to any inspection, maintenance, repair or removal of the Equipment. GloryWorks and its employees, agents, contractors and representatives shall have no liability whatsoever for any damage to or loss or destruction of any of Customer's software, files, data or peripherals. (c) Access; File Modification. In order to install the Equipment, it may be necessary to open Customer's computer. In addition, as part of the installation process for the software, as when most software is installed on a computer, system files on Customer's computer, such as INI, BAT, SYS and DLL files, may be modified or deleted. GloryWorks does not represent, warrant, nor covenant that such modifications or deletions will not disrupt the normal operations of Customer's computer, and GloryWorks and its agents and contractors shall have no liability whatsoever for any damages resulting from the modifications or deletions. (d) Full Installation. If Customer chooses to have GloryWorks install the service, (or premises is in an area where the self-install option is not available), the Customer agrees to permit GloryWorks to open Customer's computer in order to install the Equipment. GloryWorks or its agent or contractor shall use reasonable efforts to install the Equipment to full operational status. (e) Computer Warranty. Customer assumes responsibility for impacts to or loss of any warranty associated with the opening of Customer's computer for installation of an internal card or DSL modem. (f) Self-Installation. At GloryWorks' sole option, GloryWorks may permit Customer to perform installation of the Equipment by Customer or have installation performed by a third party selected by Customer. In such case, GloryWorks or its agent or contractor shall supply the DSL modem, a network interface card (if required), and limited quantities of telephone wiring supplies. GLORYWORKS DOES NOT REPRESENT, WARRANT OR COVENANT THAT INSTALLATION BY CUSTOMER OR A THIRD PARTY CHOSEN BY CUSTOMER WILL ENABLE CUSTOMER TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICES, NOR THAT SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO CUSTOMER'S COMPUTER, DATA, SOFTWARE, FILES OR PERIPHERALS. IN ADDTION, GLORYWORKS AND ITS AGENTS AND CONTRACTORS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE OR OPERATE THE EQUIPMENT OR SERVICES BY ANY CUSTOMER WHO CHOSES THIS METHOD OF INSTALLATION. THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND SHALL IN NO WAY BE CONSTRUED TO LIMIT ANY AND ALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT. Customer acknowledges that this is a fixed-location service and may not be moved to a different residence (even if the phone number remains the same) or a different phone number without payment of the new connection fees and the early cancellation charge, if applicable. If Customer moves residences, Customer shall notify GloryWorks that this Agreement shall be terminated and the provisions of Section 12 (including Customer's obligations under Section 12(b)) shall apply to such termination. In all cases Customer shall notify GloryWorks as provided in Section 13. (a) Agreement to Pay. Customer agrees to pay the monthly charges and other fees, including applicable taxes, for the Equipment and Services as established from time to time by GloryWorks. Current charges are set forth in Attachment A to this Agreement and are subject to change as specified in Section 6(c) below. (b) Payment Methods. Customer agrees to maintain a valid credit card on file with GloryWorks against which charges can be made. Customer agrees to provide updated credit card information to GloryWorks in the event of expiration or cancellation of the card on file. Business customers agree to provide a Purchase Order covering the amount and duration of the Service purchased. (c) Price Changes. Customer acknowledges and agrees that GloryWorks has the right to change its charges at any time subject to applicable law and upon notice to Customer. (d) Customer Charges. Customer acknowledges that Customer may incur charges while using the Services. For example, charges may be incurred as a result of accessing certain information, or purchasing or subscribing to certain offerings, via the Internet. Customer agrees that all charges, including all applicable taxes, shall be paid by Customer and are not the responsibility of GloryWorks. (a) Other Agreements. Customer acknowledges and agrees that the Services are for personal non-resale use only, and use of the Services is subject to the terms and conditions of GloryWorks's then-current subscriber Internet Service Agreement and GloryWorks's then-current Acceptable Use Policy (each of which can be found linked from the GloryWorks Home Page at http://www.GloryWorks.com on the World Wide Web), as well as the license agreements associated with the software provided by GloryWorks. GloryWorks reserves the right to change its subscriber Service Agreement and Acceptable Use Policy at any time. (b) No GloryWorks Liability for Content. Customer acknowledges that there is content on the Internet or otherwise available through the Services which may be offensive, or which may not be in compliance with all local laws, regulations and other rules. For example, it is possible through the use of the Services to obtain access to content which is pornographic, obscene, or otherwise inappropriate or offensive, particularly for children. Although GloryWorks filters inappropriate web content to the best of its ability, GloryWorks assumes no responsibility for and exercises no control over the content contained on the Internet or otherwise available through the Services. In particular and without limiting the generality of the foregoing, GloryWorks neither censors nor monitors the legality of any such content. All content accessed or received by Customer through the Services is accessed and used by Customer at Customer's own risk, and GloryWorks and its employees, agents, contractors and representatives shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to the access to or the receipt of such content by Customer. (c) GloryWorks Content Rights. GloryWorks has no obligation to monitor the Services content. However, Customer acknowledges and agrees the GloryWorks has the right to monitor content electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the Services properly or to protect itself or its subscribers. GloryWorks reserves the right to post or to remove any information or materials, in whole or in part, that in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement. ALL EQUIPMENT AND SERVICES ARE PROVIDED BY GLORYWORKS "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND. GLORYWORKS DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE EQUIPMENT OR SERVICES. GLORYWORKS DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO CUSTOMER WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF TITLE OR NONINFRINGMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED. Certain Equipment may be subject to third party warranties which may be passed through GloryWorks to Customer at no additional charge. GloryWorks will comply with all reasonable requirements necessary to effect the pass-through of the warranty to Customer. At its sole option, GloryWorks or its agent may replace defective equipment on behalf of the manufacturer, provided Customer follows all applicable procedures and obtains a Return Materials Authorization (RMA) number. (a) Security Breaches. The Internet is a shared resource among many customers. Because of this, there is a risk that Customer could be subject to a variety of security breaches, including but not limited to eavesdropping and denial of service attacks. This means that other people may be able to access, monitor and/or alter Customer's files, data or other traffic sent or received using the Services, and/or negatively affect Customer's ability to use the Services. Any information sent by Customer over the Services network is sent at Customer's sole risk, and GloryWorks shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such actions by Customer. (b) FTP/HTTP Server Setup. Customer should also be aware that when using the computer to access the Internet or any other on-line network or service via the Services, there are certain applications, such as FTP (File Transfer Protocol) server and HTTP (Hyper Text Transfer Protocol) server, which may be used to allow other Service users and Internet users to gain access to Customer's computer. Customer is permitted to run such applications for Customer's personal use and within the limitations of Section 7 of this Agreement, provided, however, that Customer acknowledges and agrees that if Customer chooses to run such applications, Customer should take the appropriate security measures and that the risk of security breaches as described in Section 9(a) of this Agreement may be significantly increased. GloryWorks shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from or arising out of or otherwise relating to the use of such applications by Customer, including, without limitation, damages resulting from other users accessing Customer's computer. GloryWorks's liability to Customer for direct damages shall be limited to a maximum of the fees paid by Customer to GloryWorks for the Services during the twelve (12) month period prior to the time when Customer's claim for direct damages arose; provided, however, that GloryWorks shall have no liability whatsoever for any damage to, loss of, or destruction of any software, files or data. In addition, GloryWorks will not be liable to Customer or to any third party for: (a) any indirect, incidental, special, punitive or consequential losses or damages, including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly out of, or otherwise arising in connection with, the use of the Services by Customer or any other use of the Equipment or Services, including without limitation, any damage resulting from or arising out of Customer's reliance on or use of the Equipment or Services, or the mistakes, omission, interruptions, deletion of files, errors, defects, delays in operation, transmissions, or any failure of performance of the Equipment or Services; and (b) any losses, claims, damages, expenses, liabilities or costs (including legal fees) resulting directly or indirectly out of, or otherwise arising in connection with, any allegation, claim, suit, or other proceeding based upon a claim that the use of the Equipment or Services by Customer or a third party infringes the copyright, patent, trademark, trade secret, confidentiality, privacy, or other industrial or intellectual property rights, proprietary rights or contractual rights of any third party. The foregoing limitation applies to the acts, omissions, negligence and gross negligence of GloryWorks, its officers, employees, agents, contractors or representatives which, but for this provision, would give rise to the cause of action against GloryWorks in contract, tort or any other legal doctrine. Customer's sole and exclusive remedies under this Agreement are as expressly set out in this Agreement. GloryWorks may, in its sole discretion, change, modify, add or remove portions of this Agreement at anytime. GloryWorks will provide notice of such changes to this Agreement to Customer by electronic mail or postal mail. Customer's continued use of the Service following notice of such change, modification or advancement shall be deemed to be Customer's acceptance of any modification. If Customer does not agree to any modification of this Agreement, Customer is terminating this Agreement in accordance with Section 12(a) of this Agreement. (a) Termination Rights. Either party may terminate this Agreement at any time by providing the other party with no less than twenty-four (24) hours written notice of such termination. Customer may also terminate this Agreement by providing verbal notice of termination to a GloryWorks customer service employee contacted through GloryWorks' published toll-free Customer Service number. (b) Minimum Service Agreement. Customer agrees to maintain the Services for the minimum service agreement period or pay the applicable early termination charge. Both the minimum service period and the early termination charge are included with GloryWorks's published rates, and are set forth in Attachment A. (c) Customer Obligations Upon Termination. Customer agrees that upon termination of this Agreement: (i) Customer will pay GloryWorks in full for Customer's use of Services up to the end of the billing cycle in which the Services have been disconnected; (ii) Customer will pay an early termination charge, if applicable; and (iii) Customer will return or destroy all copies of any software provided by GloryWorks pursuant to this Agreement, including all back-up copies. For any inquiries or notices required in connection with Agreement Customer should contact GloryWorks at the published toll-free Customer Service number, or in writing to GloryWorks, Inc., Customer Service Manager, P.O. Box 206, Folsom, CA 95763. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes hereunder, shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. All disputes arising out of or relating to this Agreement shall be submitted to the exclusive jurisdiction of the state and federal courts of California, and each party irrevocably consents to such personal jurisdiction and waives all objections thereto. Customer may not bring any claim, suit or proceeding more than one (1) year after the date of the cause of action. Nothing contained in this Agreement shall be construed to limit GloryWorks actions or remedies in any way, and GloryWorks reserves at all times all rights and remedies available to it at law or in equity. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes and replaces any and all prior written or verbal agreements. 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. GloryWorks's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. This Agreement may not be assigned or transferred by Customer. This Agreement may be assigned or transferred by GloryWorks without consent of Customer. Attachment A to GloryWorks DSL Service Agreement Schedule of Minimum Service Requirements and Charges These charges are current as of the published date, but are subject to change at any time, subject to applicable law and notice to Customer. Updated as of 12/01/00
Customer agrees to maintain the DSL Services for a minimum period of twelve (12) months. If prior to the end of the twelve month term, Customer cancels the Services for any reason or GloryWorks terminates the Agreement due to Customer's breach of the Agreement, Customer agrees to pay to GloryWorks an early termination charge of $200.00. (a) Retail Prices. Installation and Equipment are billed as a one-time charge. This rate is subject to periodic discounts and promotions. The actual amount charged for installation and equipment will be as quoted for Customer's type of service and type of installation. The recurring charge payable by Customer for the Services corresponds to the DSL package purchased. Customer may use traditional analog "dialup" service from GloryWorks's network of regional dial access numbers. GloryWorks shall provide Customer 20 hours of dialup service per month at no charge; additional hours above 20 will be billed at $1 per hour. Customer may be charged a no-show charge of $100.00 for failing to keep a scheduled appointment or for canceling an appointment less than 24 hours in advance of the appointment.
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