TERMS OF SERVICE AND SUBSCRIBER AGREEMENT

SATELLITE INTERNET SERVICE


1. Subscriber agrees to the following terms when purchasing VFR’s Internet Services  (“Services”).  Subscriber shall pay for, and VFR shall provision, install, or otherwise deliver Services in accordance with and subject to the terms and conditions set forth herein.

2. The installation and monthly charges for VFR’s Services and related charges shall be as set forth on VFR’s satellite service information web page (http://www.vfr.net/satellite/satellite.html)  The monthly charges are recurring; the installation charges are nonrecurring (one time only).  

3. The term of this contract is one year.  After one year this contract shall automatically renew on a month-to-month basis unless either party provides at least 30 days written notice terminating the contract (said notice period shall commence upon receipt of the written notice by VFR).  Oral notification is insufficient to satisfy this condition.  Written notice may be via e-mail.  Should Subscriber terminate this agreement prior to the expiration of the one year period, then Subscriber shall pay to VFR, as liquidated damages, the monthly charges for the number of months remaining prior to expiration plus any installation fees not yet fully paid.

4. In addition to the charges set forth herein, VFR shall bill and subscriber shall pay all applicable Federal, state, and local mandated surcharges, fees, user’s fees, universal service contributions and taxes.

5. The contract term will start on the later of the Agreement date or the day on which VFR notifies Subscriber that the service is ready for use, and shall continue for the applicable term.  

6.  Subscriber shall be responsible for obtaining and maintaining rights-of-way and facilities required for access from the satellite dish to Subscriber’s premises, as well as necessary space, power, and other facilities for VFR and subscriber equipment.  

7.  Subscriber shall be responsible for locating a route through their building for the cable used in installing and using the satellite equipment.  

8.  Many properties are subject to Covenants, Conditions, and Restrictions (CC&R’s).  VFR has no knowledge of, nor any duty to inquire about, any potential CC&R’s affecting Subscriber’s premises.  Subscriber represents and warrants that the installation of VFR’s satellite antenna on the outside of the premises is not prohibited by any CC&R’s, lease restrictions or local building ordinances.  Subscriber shall indemnify and hold VFR harmless from any liability associated with the installation of the equipment on Subscriber’s premises.

9.  Bandwidth Usage: Subscriber’s usage is subject to VFR’s Reasonable Use Policy.  The terms of this policy can be found at http://www.vfr.net/satellite/rup.html.

Although VFR Internet may advertise "Unlimited Access" in regards to 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 VFR Internet services by any such User, which restricts overall VFR Internet system availability for other such Users. These limitations apply only to Dial-Up access services offered by VFR Internet.

    • 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 VFR Internet service.

    • Maximum Single Session.  User agrees to have an online session automatically terminated after eight (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 VFR Internet 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 account purchased.


10.  Installation is subject to Service availability.  Although a preliminary survey has shown that satellite service is most likely available at Subscriber’s location, should it be determined that service is in fact not available, or the satellite signal is not sufficiently strong (in the sole discretion of VFR) to assure a good, reliable connection, then  neither VFR nor Subscriber shall have any further obligations to each other under this Agreement and this Agreement shall be considered terminated.

11.  VFR may charge additional non-recurring fees if Subscriber requires unusual installation services.  Such services will be identified by VFR in advance and agreed to by Subscriber prior to work being performed.  If agreement on such services cannot be reached, then VFR may decline to install the service at subscriber’s location.

12.  Despite the best efforts of VFR and its affiliates, from time to time the service will temporarily be unavailable.  The unavailability of service will not result in a credit to Subscriber unless the service is unavailable for more than 48 consecutive hours.  To mitigate the inconvenience caused by service unavailability, VFR will maintain a dial-up account for Subscriber to use utilizing a standard modem and phone lines.

13.  Speed of satellite circuit.  VFR cannot and does not guarantee any particular circuit speed.  Satellite circuits are subject to environmental conditions and interference, any one of which can reduce the circuit speed.  VFR will provide its best efforts to achieve the circuit speed specified.  However, the circuit speed cannot be guaranteed.  Subscriber can expect that the speed can, and undoubtedly will, vary substantially from minute to minute and day to day.   

14. Subscriber understands and acknowledges that the lack of facilities or other operational impediments may preclude or delay VFR’s actual installation, repair, and maintenance of VFR’s Services.  VFR will take reasonable efforts to notify Subscriber when the lack of facilities or other operational impediments may impact Subscriber.  

15.  Subscriber agrees that it has no expectation of privacy with respect to information transmitted on the Internet.  There are no facilities provided by VFR for secure private communications or data storage.  The Internet (and especially Satellite Internet)  is not secure and Subscriber is responsible for the protection of its account and data.  Data can be, and sometimes is, viewed by third parties.  Information of a private, sensitive or confidential nature should not be placed on the Internet or should be transmitted using one of the encryption programs available on the Internet.  VFR specifically denies any responsibility for the security of Subscriber’s account, the data stored within, or information transmitted through, VFR's facilities or those of its suppliers and subcontractors.

16. VFR will make reasonable efforts to provide five (5) business-day notification to Subscriber of scheduled network maintenance. VFR may interrupt its provision of Service for maintenance and other non-scheduled operational reasons, without compensation or notice to Subscriber.  If service interruption should last more than seven (7) days, Subscriber will be charged on a pro-rated daily basis for the service excluding any interruption period.

17. Subscriber will not abuse VFR’s network in any manner including, but not limited to, the transmission of SPAM (unsolicited commercial Email) to Email addresses or newsgroup servers.  Subscriber understands that VFR tracks and controls reported violations of network abuse, including SPAMMING.  VFR will provide written notification to Subscriber of any reported violation.  Subscriber understands and agrees to stop the abuse, using all reasonable resources available to Subscriber.  Subscriber will have five (5) working days to remedy the situation.  If abuse problems continue, Subscriber agrees that VFR is entitled to take such further action as deemed necessary to VFR to protect its network and its other Subscribers.  Subscriber acknowledges that VFR, in situations involving either disruptions to its network, criminal network abuse or ongoing SPAMMING, can take any actions, including immediate termination of an abusing Subscriber as may be required to protect the network, or, by any law or regulation governing network abuse.  If a Subscriber  is terminated for network abuse or SPAMMING and the Subscriber is under a term contract, the contract will be cancelled and any termination fee, including the fee for the remainder of the term, will be due and payable by the Subscriber.  The Internet connection through VFR may only be used for lawful purposes.  Transmission of any material in violation of any Federal or State law or regulation is prohibited.  This includes, but is not limited to: copyrighted material, material legally judged to be, or in the sole opinion of VFR thought to be, threatening or obscene, or material protected by trade secret.  You agree to indemnify and hold harmless VFR, its subcontractors and affiliates, from any claims resulting from your use of the service which use damages you or another party.  Except for public domain material, VFR or the third-party content provider copyrights all copyrightable content distributed over VFR. Your use of such material in a manner not authorized by law  is in violation of this Agreement.

18. VFR reserves the rights to alter, change, modify, add or discontinue any of the Services offered.

19. VFR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES OR THE SOFTWARE, WHETHER EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW. VFR EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VFR DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES OR SOFTWARE OR INTERNET ACCESS WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE.

20. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT. NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.  SHOULD A COURT OF COMPETENT JURISDICTION INTERPRET THIS SECTION IN ANY WAY THAT ALLOWS RECOVERY, Subscriber AGREES THAT SAID COMPENSATION SHALL BE LIMITED TO A PRORATA CREDIT FOR THE AMOUNT OF TIME THE SERVICE WAS INTERRUPTED OR ONE MONTH’S SERVICE FEE, WHICHEVER IS LESS.

21. DISCLAIMER OF WARRANTIES AND EXCLUSION OF LIABILITY

21.1 DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY.

SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S SOLE RISK.  NEITHER VFR, ITS SUPPLIERS  NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE;  NOR DOES VFR OR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS DISTRIBUTED 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 OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, EXCEPT FOR THOSE WARRANTIES, IF ANY, WHICH ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS SUBSCRIBER AGREEMENT.

IN PARTICULAR, BECAUSE VFR MAY PROVIDE ITS SUBSCRIBERS WITH ELECTRONIC ACCESS TO THE CONTENT AVAILABLE ON THE INTERNET,  WHICH CONTENT MAY BE ORIGINATED BY INDEPENDENT PUBLISHERS AND/OR PROVIDERS AND WHICH CONTENT IS NOT AUGMENTED BY VFR, VFR CANNOT AND DOES NOT WARRANT THE ACCURACY OF ANY OF THE INFORMATION AS ORIGINATED BY SAID INDEPENDENT PUBLISHERS AND/OR PROVIDERS, AND VFR SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY ERRORS, OMISSIONS, OR INACCURACIES RELATING THERETO. IF DEFECTIVE, YOU - NOT VFR, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES OR ANY THIRD-PARTY CONTENT PROVIDER - ASSUME THE CONSEQUENCES RESULTING THEREFROM.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VFR, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES OR ANY THIRD-PARTY CONTENT PROVIDER, SHALL CREATE ANY WARRANTY I N OR TO VFR SERVICE OR THE CONTENT, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

21.2 LIMITATION OF LIABILITY.

NEITHER VFR NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY. WITHOUT IN ANY WAY LIMITING THE FOREGOING, IF FOR ANY REASON, BY OPERATION OF LAW OR OTHERWISE, ANY PORTION OF THE FOREGOING LIMITATION OF LIABILITY SHALL BE VOIDED, THEN IN SUCH EVENT THE MAXIMUM, SOLE, AND EXCLUSIVE LIABILITY OF VFR, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES OR THIRD PARTY CONTENT PROVIDER, IF ANY, SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO VFR BY YOU FOR SERVICES FURNISHED UNDER THIS SUBSCRIBER AGREEMENT AND THOSE TERMS AND CONDITIONS DURING AND FOR A PERIOD OF TIME COMMENCING UPON THE OCCURRENCE OF SUCH ERROR, DEFECT OR FAILURE AND CEASING UPON THE DISCOVERY OF SUCH, IN WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH PERIOD OF TIME EXCEED THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHICH SUCH ERROR, DEFECT OR FAILURE IS FIRST DISCOVERED IN WHOLE OR IN PART.

21.3 APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS.

SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 21 SHALL ALSO APPLY TO ANY AND ALL CLAIMS RELATING TO "ACQUIRED MATERIAL" AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICE.  SUBSCRIBER AGREES THAT IT WILL NOT IN ANY WAY HOLD VFR
RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM VFR CONTRACTS TO OPERATE VARIOUS AREAS ON OR FEATURES OF THE SERVICE).

21.4 FULL APPLICABILITY.

THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF VFR OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.

21.5 POSSIBLE EXCEPTIONS.

SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MIGHT NOT APPLY TO THAT EXTENT.

22. INDEMNITY  Subscriber agrees to indemnify VFR, its operators and suppliers, against all claims, liability, damages, costs and expenses, including but not limited to reasonable attorneys fees, arising out of or related to any and all use of Subscriber's account. This includes, without limitation, responsibility for all such consequences of Subscribers (or that of any user of Subscriber's account) violation of this Subscriber Agreement or placement on or over, or retrieval from or through, the Service of any software, file, information, communication or other content.

23. THIRD PARTY BENEFICIARIES  The provisions of Sections 21 and 22 are for the benefit of VFR and its respective contractors, information or content providers, service providers, licensors, employees and agents; and each shall have the right to assert and enforce such provisions directly on its own behalf.

24. Neither VFR nor Subscriber shall be deemed in default of this Agreement if it’s performance or obligations under this Agreement are delayed or become impossible or impractical by reason of any force majeure to include an act of God, war, civil disobedience, mechanical breakdowns, operation of law, default of subcontractors or any other cause beyond the control of VFR. Notwithstanding the foregoing, a change in economic conditions or technology shall not be deemed a force majeure event.  VFR shall resume performance with reasonable dispatch after cessation of the Force Majeure condition.  If VFR’s performance is impaired by a Force Majeure condition for a period exceeding sixty days, Subscriber may cancel the affected service without liability for a cancellation charge.

25. VFR may terminate this Agreement effective immediately in the event of: i) Subscriber’s insolvency, bankruptcy, receivership or dissolution; ii) Subscriber’s actual or attempted assignment of this Agreement or any of its duties under this Agreement to another party; iii) Subscriber’s breach or threatened breach of any provision of this Agreement; iv) Subscriber’s failure to pay invoices by their due date; or vi) Subscriber’s death or incapacity if Subscriber is a natural person.

26.  The provisions of this Agreement that by their sense and context are intended to survive termination of this Agreement shall so survive this Agreement.

27. This Agreement constitutes the entire understanding and Agreement, and supersedes any and all prior or contemporaneous representations, understandings, statements, negotiations, proposals, undertakings and agreements, oral or written, between the parties with respect to the subject matter of this Agreement.  Any amendment or supplement this Agreement shall be in writing.

28. In the event any litigation or other proceeding is brought by either party in connection with this Agreement, each party shall bear its own costs, attorney fees and other expenses incurred by such party in litigation.  Venue for any such litigation or other proceeding shall be exclusively in Santa Clara County, California.  Any disagreements, if not mutually resolved, shall be referred to binding arbitration for resolution.

29. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.


I agree to the above Terms of Service.



_________________                                    ________________________________________________________
      Date                                                         Signature

                                                                       Printed name:  ____________________________________________

                                                                       Address:  ________________________________________________

                                                                        City, State, Zip:  ___________________________________________

                                                                         Phone:  _________________________________