Please read this Subscriber Agreement carefully since it contains important contract
rights and obligations between you and DirecPC, as well as important limitations on those
rights. Agreement to these terms is required for use of the DirecPC Service
("Service"). If you do not agree with all of these terms, then you may not sign
up for the use of the Service.
You may contact our Customer Care Center seven (7) days a week twenty four (24) hours a
day by calling "1-800-DirecPC", by email at email@example.com or by
Customer Care Center
100 Lake Forest Blvd.
Gaithersburg, MD 20879
Some basic points to understand:
DIRECPC FAIR ACCESS POLICY
To ensure equal Internet access for all DirecPC subscribers, Hughes Network Systems
maintains a running average fair access policy. Fair access establishes an equitable
balance in Internet access across Turbo Internet services by service plan for all DirecPC
customers regardless of their frequency or traffic usage. To ensure this equity, customers
may experience some temporary throughput limitations. DirecPC Turbo Internet access is not
DirecPC services are not intended for resale. Hughes Network Systems reserves the right
to terminate any contract in the event of resale.
A. WHO MAY USE THE SERVICE -- SUPERVISION.
Using the Service requires that you be a Subscriber of the Service, or that you have
permission of a Subscriber to use that Subscriber's DirecPC access account. Even if you
are not yourself a Subscriber, you still must comply with these terms if you use the
Service. Subscriber agrees to supervise and be fully responsible for all use by others of
the Subscriber's DirecPC account in accordance with the terms and conditions of this
Agreement as more fully described below.
B. ABOUT DIRECPC SUBSCRIBERSHIP AND ACCOUNTS.
A "Subscriber" is a person who, being at least 18 years of age, has agreed to
this Subscriber Agreement, is legally able to enter into contracts and whose name and
other necessary billing and identifying information are reflected on DirecPC's records as
the person responsible for a particular DirecPC account. This Personal Edition License is
a single, personal, non-exclusive, non-assignable, and non-transferable license to use the
DirecPC Service, as described more fully herein, on a periodic dial-up connection basis.
This means that the account is intended as a periodic dial-up account (single Subscriber
license, Subscriber physically interacting with the computer while logged on to the
Service) and not a full time dedicated connection. A DirecPC account is required for
access to the Service and is recognized by DirecPC by the Subscribers associated account
number, billing information and Subscriber name.
C. PRICING AND BILLING DETAILS.
Please pay close attention to the terms referred to below regarding pricing and billing
information. Some of these terms are located in a separate document on Service and are an
important part of this Agreement -- they may be contained in a separate document (or
documents), hereby incorporated by reference, as they contain pricing and billing options
and plans that you may choose from or that may not apply to or be available to every
Changes to both the Service and this Subscriber Agreement may be made from time to time
in DirecPC's sole discretion. These changes may affect your rights and obligations under
this Agreement and may also affect the makeup and nature of the Service itself. This
Subscriber Agreement, including any future modifications, will be available on the DirecPC
web site at http://www.direcpc.com/about/agreement.html.
E. YOUR RIGHT TO CANCEL.
In the event that DirecPC changes the terms and conditions of this Agreement or the
Service itself, then the Subscriber shall have the right to cancel the Subscriber's
account at that time in accordance with the terms and conditions of this Agreement as set
forth below. You may be subject to a cancellation fee if you acquired the Service as part
of a promotion that required you to subscribe to the Service for a period of time and you
cancel this Subscriber Agreement before the expiration of such period.
F. SUBSCRIBER AGREEMENT ORGANIZATION
This Subscriber Agreement is organized into five "Parts":
Part I -- The Service, Subscribership and This Subscriber Agreement;
Part II -- Payment;
Part III -- Permitted Use and Restrictions on Use;
Part IV -- Grant of Important Rights by Subscriber to DirecPC, and Important
Disclaimers to, Acknowledgments by and Obligations of Subscriber; and
Part V -- General (Note: Although located at the end of this Subscriber Agreement,
these terms are important.).
THE SERVICE, SUBSCRIBERSHIP AND THIS SUBSCRIBER AGREEMENT
1. THE SERVICE
The Service consists of a satellite, one-way broadcast system offering three (3) kinds
of services to a Subscriber's Personal Computer: A) Turbo Internet Access - high speed
Internet connection in which DirecPC carries packets from the Internet and dial-up modem
carries packets into the Internet, Turbo Webcast broadcast delivery of the most
popular Websites to a PCs hard drive, Turbo Newscast broadcast delivery of
Usenet Newsgroups to a PCs hard drive; B) Digital Package Delivery - a multicast
file transfer mechanism allowing a collection of PC files to be reliably transferred to a
collection of DirecPC receivers; and C) Multimedia Delivery - an IP multicast service
carrying real-time multimedia files.
2. MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION
2.1 MODIFICATION OF THIS SUBSCRIBER AGREEMENT.
Upon notice published over the Service, DirecPC may at any time modify this Subscriber
Agreement, including, without limitation, pricing and billing terms.
2.2 MODIFICATION OF THE SERVICE.
DirecPC may discontinue, add to or revise any or all aspects of the Service in its sole
discretion and without notice, including access to support services, publications and any
other products or services ancillary to the Service or membership. In particular, DirecPC
specifically reserves the right at its sole discretion to modify, supplement, delete,
discontinue or remove any software, file, publications, information, communication or
other content appearing on or transmitted through the Service.
2.3 TERMINATION BY SUBSCRIBER.
In the event that DirecPC modifies this Subscriber Agreement, the Service or related
pricing or billing terms, Subscriber may immediately terminate Subscriber's account and
this Subscriber Agreement, and Subscriber may also do so at any other time and for any
reason or for no reason upon thirty (30) days written notice. Subscriber shall terminate
this Agreement in accordance with the terms and conditions specified herein; failure to do
so may delay or prevent DirecPC from knowing that a termination was intended. In such
event Subscriber will continue to be liable under this Agreement for all fees and charges
until such time as the Agreement has been properly terminated or DirecPC has acknowledged
such termination in writing. . Subscriber may also be subject to a cancellation fee if
Subscriber acquired the Service as part of a promotion that required Subscriber to
subscribe to the Service for a period of time and Subscriber cancels the Service before
the expiration of such period.
2.4 TERMINATION OR SUSPENSION BY DIRECPC.
DirecPC may immediately terminate the Subscriber's account and this Subscriber
Agreement in the event of any breach of this Subscriber Agreement by Subscriber or a user
of Subscriber's account. DirecPC reserves the right in its sole discretion to terminate
the Subscriber's account and this Subscriber Agreement at any time or to suspend (with or
without notice) or terminate access to or use of the Service, in whole or in part, with
respect to any Subscriber (and/or with respect to any user of Subscriber's account) at any
time. In the event that DirecPC either terminates or suspends Subscriber's account and or
Subscriber's Agreement for reasons other than breach of this Agreement, then DirecPC shall
provide 30 days notice of such suspension or termination to the Subscriber.
2.5 CONTINUATION OF OBLIGATIONS.
Notwithstanding any cancellation or termination of this Subscriber Agreement or any
Subscriber account, nor any suspension or termination of access to or use of the Service,
Subscriber will remain responsible for any obligations accrued to the date of such action,
including payment of any charges that may be due as a result of or in connection with such
action(s). Subscriber's payment and other obligations under this Subscriber Agreement are
not suspended or affected by a suspension of access to or use of the Service, in whole or
in part, due to a violation (actual, threatened or alleged) of this Subscriber Agreement
or of any law or legal obligation by Subscriber or any user of Subscriber's account.
3. WHO MAY USE THE SERVICE? - RESPONSIBILITY AND SUPERVISION
3.1 AGE AND ACCOUNT SETUP.
Subscriber represents that Subscriber is at least 18 years of age and has the right and
ability to enter into this Subscriber Agreement. Subscriber agrees that Subscriber is
responsible for installing, establishing and setting up, and for verifying and
maintaining, the account, options, settings and other parameters under which the Service
is used, including (without limitation) all related passwords and user identification
information. These account functions may be performed only by a person at least 18 years
of age, without exception.
3.2 MULTIPLE USE OF ACCOUNT.
Multiple members of the same household as Subscriber's may share a single Subscriber ID
number and account, if authorized by Subscriber to use the account. However, only one
person is authorized to access the Service at any given time through the same Subscriber
ID number or account, unless otherwise permitted in writing by DirecPC.
3.3. SUBSCRIBER RESPONSIBILITY.
Subscriber shall be responsible for all access to and use of the Service through
Subscriber's account or password(s) and for any fees incurred for service, or for software
or other merchandise purchased thereon, or any other expenses incurred in accordance with
the terms of this Subscriber Agreement. Subscriber promises to pay such amounts billed by
DirecPC for such service, software, or merchandise and any related fees, taxes and
charges. Permitted users of Subscriber's account are limited to family members with the
same permanent residence as Subscriber. Subscriber acknowledges that Subscriber is aware
that areas accessible on or through the Service may contain material that is unsuitable
for minors (persons under 18 years of age). Subscriber agrees to supervise usage of the
Service by minors who use the Service through Subscriber account. Subscriber hereby
ratifies and confirms any obligations a minor using Subscriber's account enters into or
assumes and any promises or permissions such minor makes or gives.
4. FEES AND PAYMENT
4.1 FEES, TAXES AND OTHER CHARGES.
Subscriber shall pay, in accordance with the provisions of the billing option selected
by Subscriber, any registration or monthly fees, connect time charges, ISP service
charges, minimum charges and other amounts charged to or incurred by Subscriber, or by
users of Subscriber's account, at the rates in effect for the billing period in which
those amounts are charged or incurred. Subscriber shall pay all applicable taxes related
to use of the Service by Subscriber or by users of Subscriber's account. Information on
charges and surcharges (if any) that are to be paid to DirecPC and are incurred by
Subscriber or by users of Subscriber's account will be made available to the Subscriber on
the DirecPC web site, and Subscriber agrees that this is sufficient notice for all
purposes as to charges incurred and paid or to be paid to DirecPC. Additional terms
relating to pricing, billing and payment and which are an integral part of this Subscriber
Agreement are set forth and available on the DirecPC web site.
DirecPC will make available to you a statement for each billing cycle showing payments,
credit purchases and other charges. Payment of the outstanding balance is due in full each
month. If your payment is not received by DirecPC before the next statement is issued, you
may be charged interest on the delinquent balance at the rate of one and one-half percent
(1.5%) per month, prorated on a daily basis. Furthermore, if we do not receive payment
from you before your next statement is issued, DirecPC has the right to inactivate your
service upon the expiration of any applicable grace period with respect to the amount due.
4.2 COMMENCEMENT AND DURATION OF SUBSCRIBERSHIP FEES.
Subscriber acknowledges that (subject to any exceptions granted by DirecPC) a monthly
subscribership fee will apply for each and every month (or portion thereof) that one is a
Subscriber. Subscriber's account will continue until Subscriber cancels the account in
accordance with the method or methods specified by DirecPC (unless otherwise terminated in
accordance with this Subscriber Agreement). As stated above, Subscriber may cancel its
account at any time, subject to the cancellation fee, if applicable. The monthly
subscription fee shall cease to apply for any months after the billing month in which
Subscriber cancels or terminates its account in accordance with the terms and conditions
stated herein. DirecPC may, but is not required to, accept partial payments from you. If
partial payments are made, they will be applied to statements starting with the oldest
outstanding statement. Late fees will be assessed monthly as allowed by applicable law
until the total outstanding account balance, including late fees and all other charges,
are paid. If you send us checks or money orders marked "payment in full" or
otherwise labeled with restrictive endorsements, DirecPC can, but is not required to,
accept them, without losing any of our rights to collect all amounts owed by you under
this Agreement. In the case of late payment or non-payment for any of the DirecPC services
ordered by you or any of the charges stated herein, you understand and agree that DirecPC
may report such late payment or non-payment to the appropriate credit reporting agencies.
If DirecPC chooses to use any collection agency or attorney to collect money that you owe
DirecPC or to assert any other right which DirecPC may have against you, you agree to pay
the reasonable costs of collection or other action including, but not limited to, the
costs of a collection agency, reasonable attorney's fees, and court costs, as provided by
If your service is inactivated because you did not submit payment on time or for any
other reason, in addition to payment of past due amounts, DirecPC may require a deposit
before reactivating your DirecPC service, which shall not exceed one (1) year subscription
fees. Amounts deposited by you will appear on your statement as a credit, and service
charges and other fees will be invoiced as set forth above. Any unpaid amounts will be
deducted each billing cycle from the credit amount. Credit amounts shall not earn or
accrue interest. If your DirecPC service is inactivated for any reason, including at your
request or because of your failure to pay past due amounts, and you want to reactivate the
service, you agree to pay a reactivation fee in accordance with DirecPC's then current
rates. In addition you must bring your account up to date by making payment in full of any
outstanding balance, fees and charges.
4.4 ANCILLARY EQUIPMENT, SERVICES.
It is your responsibility, at your own expense, to obtain, maintain, and operate
suitable and fully compatible terminal equipment, and communication devices required to
access the Service. You are responsible for all telephone charges incurred in connection
with using the Service. YOU ACKNOWLEDGE THAT CERTAIN SUBSCRIBER EQUIPMENT HAS BEEN
ACQUIRED BY YOU SEPARATE AND APART FROM THIS SUBSCRIBER AGREEMENT. YOU ARE SOLELY
RESPONSIBLE FOR MAINTAINING SUCH SUBSCRIBER EQUIPMENT. DIRECPC MAKES NO REPRESENTATION OR
WARRANTIES PURSUANT TO THIS SUBSCRIBER AGREEMENT, EITHER EXPRESS OR IMPLIED, REGARDING
SUCH SUBSCRIBER EQUIPMENT -- ALTHOUGH YOU MAY HAVE LIMITED WARRANTIES UNDER A SEPARATE
PURCHASE AGREEMENT WITH DIRECPC.
4.5 CORPORATE BUSINESS AND EDUCATIONAL ACCOUNTS.
If Subscriber's account is a qualified business or educational account and approved by
DirecPC for corporate or educational billing, charges for the services provided under this
Subscriber Agreement will be accumulated and identified by Subscriber ID number and will
normally be invoiced following the end of the month in which the service is provided.
Terms of payment on all charges are net, ten (10) days in U.S. dollars. If any payment due
hereunder is not made by the Subscriber within thirty (30) days after the invoice date,
late charges of one and one-half percent (1 1/2%) per month shall be due and payable with
respect to such payment, and DirecPC may, in addition, at its sole discretion and without
notice to the Subscriber, (a) suspend its performance under this Subscriber Agreement and
the Subscriber's and its designated users' access to and use of the Service, or (b)
terminate this Subscriber Agreement and Subscriber's and its designated users' access to
and use of the Service. Notwithstanding any acknowledgment of a Subscriber purchase order
by DirecPC, any provision or condition in any purchase order, voucher, or other memorandum
of the Subscriber which is in any way inconsistent with, or adds to, the provisions of
this Subscriber Agreement is null and void.
PERMITTED USE AND RESTRICTIONS ON USE
5. SOFTWARE LICENSE
Subject to the terms of this Subscriber Agreement, DirecPC grants to Subscriber a
personal, non-exclusive, non-assignable and nontransferable license to use and display the
software provided by or on behalf of DirecPC only for purposes of accessing the Service
("Software") on any machine(s) of which Subscriber is the primary user or which
Subscriber authorizes for use. Unauthorized copying of the Software, including software
that has been modified, merged or included with the Software, or the written materials
associated therewith is expressly forbidden. Subscriber may not sublicense, assign or
transfer this license or the Software except as permitted by DirecPC. Any attempt to
sublicense, assign or transfer any of the rights, duties or obligations under this license
is void. Subscriber agrees that it shall not copy or duplicate or permit anyone else to
copy or duplicate, any part of the software provided hereunder, or create or attempt to
create, or permit others to create or attempt to create, by reverse engineering or
otherwise, the source programs or any part thereof from the object programs or from other
information made available under this Subscriber Agreement.
7. SPECIFIC RESTRICTIONS ON USE OF THE SERVICE
7.1 PROHIBITED CONDUCT.
Subscriber agrees not to upload, post or otherwise publish on or over the Service, and
not to seek on or over the Service, any software, file, information, communication or
(a) which violates or infringes upon the rights of any one else; (b) which adversely
affects the performance or availability of the Service or DirecPC's resources; (c) which
contains any virus, worm, cancelbot, harmful component or corrupted data; or (d) which,
without the approval of DirecPC, contains any advertising, promotion or solicitation of
goods or services for commercial purposes.
This Section 7.1 shall not be interpreted to restrict Subscriber from utilizing mail
services in conducting a legitimate business except that Subscriber may not, without the
approval of DirecPC, send unsolicited advertising or promotional material. Subscriber
agrees not to intercept e-mail or engage in "spamming" or any similar conduct.
7.2 ILLEGAL OR COMPETITIVE PURPOSES.
Subscriber agrees not to use the Service nor any of its elements or related facilities
or capabilities to conduct any business or activity, or solicit the performance of any
activity, which is prohibited by or would violate any applicable law, rule, regulation or
7.3 COMPLIANCE WITH LAWS.
Subscriber agrees to comply with all applicable laws, rules and regulations in
connection with the Service, its use of the Service and this Subscriber Agreement.
GRANT OF IMPORTANT RIGHTS BY CUSTOMER TO DIRECPC, AND IMPORTANT DISCLAIMERS TO,
ACKNOWLEDGMENTS BY AND OBLIGATIONS OF SUBSCRIBER
8. COPYRIGHT AND LICENSES
8.1 RESERVATION OF RIGHTS BY DIRECPC.
DirecPC reserves all copyrights and other rights in and to any content available
through the Service and is identified as, claimed by DirecPC as, or known by Subscriber to
be, proprietary to DirecPC(or its licensors). The content on the Service is protected
under applicable copyright law, including as a collective work. All copying, modification,
distribution, publication or other use by Subscriber, or by any user of Subscriber's
account, of any such content or other works is prohibited, except as expressly permitted
9. NO ENDORSEMENT
DirecPC does not endorse or in any way vouch for the accuracy, completeness,
truthfulness or reliability of any service, opinion, advice, communication, information or
other content on or made available through the Service. None of such content should be
construed or understood to constitute or reflect the views or approval of DirecPC. DirecPC
does not recommend that such content be relied on for reaching important decisions or
conclusions without appropriate verification by the Subscriber or user and, as
appropriate, professional advice.
SUBSCRIBER ACKNOWLEDGES THAT INTERNET SITES NOT CREATED BY DIRECPC, AND USE OF THE
INTERNET, MIGHT CONSIST OF, INCLUDE AND/OR PROVIDE ACCESS TO IMAGES, SOUND, MESSAGES,
TEXT, SERVICES OR OTHER CONTENT AND MATERIAL THAT MAY BE UNSUITABLE FOR MINORS AND THAT
MAY BE OBJECTIONABLE TO MANY ADULTS. SUBSCRIBER ACKNOWLEDGES THAT DIRECPC IS NOT
RESPONSIBLE FOR ANY SUCH CONTENT OR MATERIAL AND AGREES THAT ACCESS TO SAME THROUGH USE OF
THE SERVICE IS AT SUBSCRIBER'S SOLE RISK. The reliability, availability, legality,
performance and other aspects of resources accessed through the Internet are beyond
DirecPC's reasonable control and are not in any way warranted or supported by DirecPC or
its third party contractors. Subscriber acknowledges that safeguards relative to
copyright, ownership, appropriateness, reliability, legality and integrity of content may
be entirely lacking with respect to the Internet and content accessible through it.
Subscriber confirms that Subscriber assumes all risk and liability of any use of the
Internet through Subscriber's account, including Subscriber's continuous compliance with
the Subscriber Agreement.
11. USE AND CONTROL OF INFORMATION; MEMBER COMMUNICATION; ADS
DirecPC may, without obligation, liability or notice, except to the extent prohibited
by applicable law, distribute, loan, sell or otherwise share with other persons or
entities user lists as well as aggregate information. Aggregate information includes
information constituting or descriptive of demographic information, habits, usage
patterns, preferences, survey data or other descriptive or related data which do not rely
on providing to recipients the identity of any particular user of the Service. This shall
not be construed to limit DirecPC's use of other information not addressed in this Section
11. DirecPC will be free, in its reasonable good faith discretion and without notice, to
provide Subscriber and user information and records to the courts, law enforcement
agencies, or others involved in prosecuting claims or investigations for conduct or
conditions alleged or believed to be illegal or to violate or threaten the rights of any
person or entity, and to maintain and use internally such information and records.
Information generated by or in connection with DirecPC's administration of the Service
shall be and remain the exclusive property of DirecPC. DirecPC may also from time to time
provide online, telefax, telephone, email, mail and other communications to its
Subscribers and users on matters pertaining to the Service, its features, its sponsors or
its use without compensation to them or reimbursement of costs for doing so, but shall do
so reasonably and in good faith. Subscriber acknowledges that communications with DirecPC,
its representatives and its contractors may be monitored or reviewed for quality control
and other reasonable business purposes. Subscriber also acknowledges that advertising and
promotion may occur on the Service and also that neither Subscriber nor any user shall in
any event have any claim with respect to any proceeds from such activities.
12. DISCLAIMER OF WARRANTIES AND EXCLUSION OF LIABILITY
12.1 DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY.
SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S SOLE RISK.
NEITHER DIRECPC 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 DIRECPC 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 DIRECPC MAY PROVIDE ITS SUBSCRIBERS WITH ELECTRONIC ACCESS TO
THE CONTENT AVAILABLE ON DIRECPC, WHICH CONTENT MAY BE ORIGINATED BY INDEPENDENT
PUBLISHERS AND/OR PROVIDERS AND WHICH CONTENT IS NOT AUGMENTED BY DIRECPC, DIRECPC CANNOT
AND DOES NOT WARRANT THE ACCURACY OF ANY OF THE INFORMATION AS ORIGINATED BY SAID
INDEPENDENT PUBLISHERS AND/OR PROVIDERS, AND DIRECPC SHALL NOT BE LIABLE IN ANY MANNER
WHATSOEVER FOR ANY ERRORS, OMISSIONS, OR INACCURACIES RELATING THERETO. IF DEFECTIVE, YOU
- NOT DIRECPC, 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 DIRECPC, ITS DEALERS, DISTRIBUTORS,
AGENTS, EMPLOYEES OR ANY THIRD-PARTY CONTENT PROVIDER, SHALL CREATE ANY WARRANTY IN OR TO
THE DIRECPC 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.
12.2 LIMITATION OF LIABILITY.
NEITHER DIRECPC 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 DIRECPC, 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 DIRECPC 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.
12.3 APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS.
SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 12 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
DIRECPC RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD
PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM DIRECPC CONTRACTS TO
OPERATE VARIOUS AREAS ON OR FEATURES OF THE SERVICE).
12.4 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 DIRECPC OR
OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR
12.5 POSSIBLE EXCEPTIONS.
SOME 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.
Subscriber agrees to indemnify DirecPC 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.
14. THIRD PARTY BENEFICIARIES
The provisions of Sections 12 and 13 are for the benefit of DirecPC 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.
15. LIABILITY FOR UNAUTHORIZED USE
You agree to notify DirecPC immediately after you sell, give away or otherwise transfer
your DirecPC equipment to anyone else. You are considered the registered recipient of the
DirecPC services until we receive such notice, and you will be liable for any charges or
fees incurred by the use of your DirecPC equipment by anyone else up to the time that we
receive your notice, unless otherwise provided by State law. You may not assign or
transfer your service without our written consent. If you do, DirecPC may inactivate your
service. If your DirecPC equipment is stolen or otherwise removed from your premises
without your authorization you must notify DirecPC Customer Care Center immediately, or
else you may be liable for payment to DirecPC for unauthorized use of your DirecPC system.
You will not be liable for unauthorized use after we have received your notification.
16. PROPRIETARY RIGHTS
Except for public domain material, all copyrightable content distributed over DirecPC
is copyrighted by DirecPC or the third-party content provider. DirecPC and/or such third
party content providers own all right title and interest to such content and you may not
copy, distribute, transmit or publish, in any form, including printed, electronic,
digitized, audio or otherwise, or modify all or any portion of such content without the
prior written consent of the copyright owner; provided, however, that you may store one
copy of the content on your personal computer for your personal use for a period not to
exceed thirty calendar days. All copyright or other proprietary rights notices contained
in or associated with the content or contained therein must be preserved in, or on, any
copies made of such material. The placement of copyrighted material in any public posting
area, or software library whether of DirecPC or not, without the consent of the copyright
owner is in violation of this Subscriber Agreement.
17. LIMITS ON TRANSFERS; OTHER LIMITS
Unless otherwise agreed in writing, Subscriber's right to use the Service, or to
designate other users of its account, is not transferable and is subject to any limits
established by DirecPC, or by Subscriber's credit card company or other billing
institution, as applicable.
18. CHOICE OF LAW
This Subscriber Agreement is made in the State of Maryland. This Subscriber Agreement
and all of the parties respective rights and duties in connection herewith shall be
governed by and construed in accordance with the laws of the State of Maryland, in the
United States, excluding it conflicts of laws provisions. Any cause of action of
Subscriber, or by users of Subscriber's account, with respect to the Service or this
Subscriber Agreement must be instituted within one year after the claim or cause of action
has arisen or be barred. The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this Subscriber Agreement and it is acknowledged that this
is a services contract and not a contract for the sale of goods. Subscriber agrees that
this Subscriber Agreement is set forth in the English language for the mutual convenience
and benefit of the parties.
19. CONSTRUCTION AND DELEGATION
Neither the course of conduct between parties nor trade practice shall act to modify
the provisions of this Subscriber Agreement. DirecPC may authorize or allow its
contractors and other third parties to provide to DirecPC and/or to Subscriber services
necessary or related to making the Service available and to perform obligations and
exercise rights of DirecPC under this Subscriber Agreement, and may collect payment on
their behalf, if applicable. The provisions of Sections 8, 9, 11, 12, 13, 14, 15, 16, 17,
18, 19, 20, and 21 and all other provisions hereof which by their nature should continue,
shall survive any termination of this Subscriber Agreement.
Where notification by DirecPC is contemplated by or related to this Subscriber
Agreement, notice may be made by any reasonable means, including, but not limited to,
email or publication over the Service. If any term of this Subscriber Agreement is found
by a court of competent jurisdiction to be invalid, illegal or unenforceable, it shall be
construed in such a way as to eliminate the offending aspects while still giving as much
effect as possible to the intentions of such term. If this cannot be done and the entire
term is invalid, illegal or unenforceable and cannot be so repaired, then the term shall
be considered to be stricken from this Subscriber Agreement as if it had not been included
from the beginning. In any such case, the balance of this Subscriber Agreement shall
remain in effect in accordance with its remaining terms notwithstanding such invalid,
illegal or unenforceable term. DirecPC may enforce or decline to enforce any or all of the
terms of this Subscriber Agreement in its sole discretion. In no event shall DirecPC be
required to explain, comment on, suffer liability for or forfeit any right or discretion
based on its enforcement, non-enforcement or consistency of enforcement of these terms.
Captions used in this document are for convenience only and shall not be considered a part
of this Subscriber Agreement or be used to construe its terms or meaning.
21. ASSIGNMENT OF ACCOUNT
DirecPC may sell, assign or transfer your account to a third party without notice to
you. In the absence of a notice of such sale or transfer, you must continue to make all
required payments to DirecPC in accordance with your billing statement.
22. ENTIRE AGREEMENT
This Subscriber Agreement, as published over the Service, as well as the additional
online documents specifically referred to herein as being a part of this Subscriber
Agreement, constitute the entire and only agreement with respect to the subject matter
hereof (collectively, the Subscriber Agreement) between DirecPC and Subscriber, applicable
also to all users of Subscriber's account. This Subscriber Agreement supersedes all
representations, proposals, inducements, assurances, promises, agreements and other
communications with respect to the subject matter hereof except as expressly set forth in
this document. By executing the online sign-up procedure, Subscriber agrees to the terms
and conditions of this Subscriber Agreement. This Subscriber Agreement can be amended only
in the manner expressly provided for in this Subscriber Agreement.
[END OF AGREEMENT]