Anonymizer.com - Support Center

Content Last modified 10 June 1998.

Address modified 24 June 2000.

THE TERMS AND CONDITIONS OF INTERNET ACCESS SERVICES ARE AGREED TO BY THE CUSTOMER APPLYING FOR INTERNET SERVICES.

AGREED BETWEEN:
Anonymizer, Inc. (hereafter: Provider) a California corporation of 5694 Mission Center Road, #426, San Diego, CA 92108-4380 and

THE CUSTOMER applying for an account with Provider.

RECITALS:

A. Provider owns and operates as an Internet Service Provider.
B. Provider has agreed to provide such a service on the terms and conditions set out in this agreement.
C. The Customer has requested Provider to provide an Internet Access to be used by the Customer or the Customer's nominees.
D. The Customer certifies that they are not under-age as defined in section 1.1.
E. The Customer acknowledges that unauthorized access by under-aged users is a violation of California Penal code §§502, 502.01 and any other applicable laws relating to unauthorized access to computer systems.
F. The Customer accepts full responsibility (legal, financial, and all others related to the Customer's account) for the actions of the Customer and all authorized users. In particular the customer takes full responsibility for all under-aged users who gain access (whether authorized or unauthorized) to the Customer's account.

TERMS AGREED:

1. Definitions and Interpretation
1.1 Definitions
In this agreement:

"Access Port Configuration" means the technical means and equipment by which the Customer Premises are connected to the Provider Internet Point of Presence;

"Appendix A" means the Appendix A at the end of this Agreement;

"Appendix B" means the Appendix B at the end of this Agreement;

"Application Form" means the form entitled "Application for Internet Services" and to which these terms and conditions are to be annexed;

"Authorized User" means any person who is given permission to use the account by the customer, or another authorized user.

"Business day" means any day, other than a Saturday, Sunday or recognized public holiday in the state of California.

"Commencement Date" means the date on which the customer is connected to the Internet through the Provider;

"Customer" The person agreeing to this agreement.

"Customer Site Contact" means the person nominated and authorized by the Customer in accordance with clause 7.4 as the contact person for a particular Customer;

"Domain Name Service" means a service that provides address information about Internet resources;

"Government body" means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

"GNUZIP" is a compression program that reduces the size of files using Lempel-Ziv coding.

"Intellectual Property Rights" means:

inventions, discoveries and novel designs, whether or not patented, patent pending, or patentable, including (but not limited to) developments or improvements of equipment, products technology, processes, methods, techniques, or any other novel concepts reduced to practice;
copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
confidential information, trade secrets and trade and service marks (whether registered or unregistered); and
proprietary rights under the Semiconductor Chip Protection Act of 1984.

"Internet" means the international network of data networks using the TCP/IP communications protocol of which the Provider Internet Access Service Network forms part;

"Internet Service" means the provision of access to the Provider Internet Access Service Network in accordance with the terms and conditions of this agreement and includes those services described in clause 2.2;

"Initial Period" means the initial term of payment (monthly, quarterly, yearly or as arranged) from the commencement date;

"Internet Access Fee" means the fees as set out in the document Internet Access Fees, and payable by the Customer in accordance with this agreement for the provision to the Customer at the Customer Sites of the Internet Service;

"Internet Access Fees" means the document titles Internet Access Fees, available from the provider's web site;

"MIME" means the Multi-purpose Internet Mail Extensions. It is a freely available specification that offers a way to interchange text in languages with different character sets, and multi-media e-mail among many different computer systems that use Internet mail standards.

"Netiquette" means those sets of norms that are generally recognized by the Internet community as acceptable means of interaction. The provider is the final arbiter of disputed breaches of netiquette.

"Normal Business Hours" means 9:00 AM to 5:00 PM Pacific Standard Time, Monday through Friday.

"Provider Internet Access Service Network" means the data communication network owned and operated by Provider and based on TCP/IP and other Internet protocols which provides interconnection between the local area networks of various persons and entities and other networks within the United States and overseas;

"Provider Internet Point of Presence" means the location at which the telecommunications equipment used by Provider to provide Internet Services to the Customer is situated and to which each user of the Internet Service obtains connection in order to use the Internet Service and gain access to the Provider Internet Access Service Network;

"Provider Customer Service" means the Provider point of contact for reporting of faults in the Internet Service; contact details are specified in Appendix A;

"Spamming" means the intentional sending of large quantities of unsolicited messages over the Internet. This is generally viewed a serious misuse of the Internet it is not tolerated by the Provider.

"TAR" is a standard method of saving many files together into a single tape or disk archive, and can restore individual files from the archive. It includes multi-volume support, the ability to archive sparse files.

"Tax" means:

any tax, levy, charge, impost, duty, fee, deduction, compulsory loan or charge;
any stamp or transaction duty, tax or charge;

that is assessed, levied, imposed or collected by any governmental body and includes (but is not limited to) any interest, fine, penalty, charge, fee or other amount imposed on or in respect of any of the above.

"TCP/IP" means the Transmission Control Protocol/Internet Protocol in general use in accordance with good practice;

"Under-age" mean any human who has yet to reach the age of majority within their jurisdiction or the age of majority within California (currently 18 years of age), whichever is higher.

"World Wide Web Server" means a computer system that facilitates access to multimedia documents using the Hypertext Transfer Protocol (HTTP);

"Written" or "in writing" includes printing and other means of representing or reproducing words in material form (such as electronic mail);

"Year" means calendar year.

1.2 In this document unless the context otherwise requires:

words importing the singular include the plural and vice versa;
words importing any gender include the other genders;
references to persons include corporations, partnerships, entities and all other bodies politic;
references to a person include the legal personal representatives, successors and assigns of that person;
a reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements or any to them (whether of the same or any other legislative authority having jurisdiction), and includes a reference to reasonably equivalent statutes, ordinances, codes or laws in other jurisdiction;
references to this or any other document include the document as varied or replaced, and notwithstanding any change in the identity of the parties;
references to writing include any mode of representing or reproducing words in visible form, and includes electronic mail, telex and facsimile transmissions;
an obligation imposed on customers numbering two or more shall bind them jointly and severally;
if a word or phrase is defined, cognate words and phrases have corresponding definitions.

1.3 Headings shall be ignored in construing the Agreement.

2. Services to be provided by Provider
2.1 Provider will provide the Internet Services to the Customer in accordance with the terms and conditions of this Agreement.

2.2 The Internet Service may include, but is not limited to the provision of and access to the following:

Domain Name Service. The Provider will not defend any disputed rights to pseudonymous domain names.
World Wide Web Server which may be utilized by the Customer as the first point of contact for the Provider Internet Access Service and which may also be used to enable registration by a Customer of their own World Wide Web Server.
Electronic Mail Gateways in respect of which Provider will use its best endeavors to provide a gateway service to cooperating electronic networks.

3. Fees and Payment
3.1 The Customer must pay the application connection fee and Internet Access Fee (and any increase in the Internet Access Fee pursuant to this clause) in respect to the Internet Services supplied by Provider to the Customer at the times and in the manner specified in the Internet Access Fees document.

3.2 Any variation to the Internet Access Fee will be at the discretion of Provider provided that Provider will give the Customer twenty (20) Business Days notice of any changes to the Internet Access Fee by changing the Internet Access Fees document.

3.3 Upon receipt of notice of any variation to the Internet Access Fee pursuant to clause 3.2 the Customer may elect to terminate this Agreement by giving not less than one (1) week's written notice to Provider at any time during the notice period referred to in clause 3.2.

3.4 Provider reserves the right to charge the Customer interest at the rate of 1.5% per month accruable daily on any amount unpaid from the due date for payment until the date payment is actually received by Provider.

3.5 Any customer terminated for unrectifiable breach of this agreement, or who fails to rectify a material breach of this agreement shall forfeit all fees paid.

4. Term
Subject to clause 12, this agreement will commence on the Commencement Date and, will continue for the Initial Period. Either party may by giving not less than one (1) month prior notice in writing to the other party, terminate this agreement at any time after the Initial Period. The term will automatically renew every period (equal to initial period) on the terms that and conditions set forth herein.

5. Customer Connection
5.1 The Customer will be responsible for all telecommunication charges and maintenance services between the Customer Site(s) and the Provider Internet Point of Presence.

5.2 The Customer acknowledges and accepts that the Customer must at the point of connection to each Provider Internet Point of Presence choose the Access Speed at which the Customer will connect to the Internet Service and must nominate the Access Port Configuration and that these choices will determine the appropriate Internet Access Fee to be paid by the Customer.

5.3 The Customer may change the Access Speed of the Customer's connection to the Internet Service at any time by providing to the Provider Representative a written request to change the Access Speed of the Customer's connection to the Internet Service to an Access Speed specified in the notice.

5.4 Provider will make all reasonable endeavors to effect the change to the Access Speed of the Customer connection to the Internet Service as soon as practicable after receipt of the Customer's written request.

5.5 The Customer acknowledges and agrees that the Internet Access Fee payable by the Customer after connection of the Customer to the new Access Speed has been completed by Provider will be the then current Internet Access Fee applicable to the new Access Speed.

6. Maintenance and Support of Internet Service
6.1 Provider will use its best efforts to provide to the Customer the Internet Service at the Customer's connection to the Internet Service.

6.2 Provider will use its best efforts to restore all faults.

6.3 Provider's obligations as set out in clauses 6.1 through 6.2 do not cover maintenance necessitated as a result of:

any fault in equipment or software not forming part of the Internet Service;
damage due to causes external to the Internet Service.

7. Responsibilities of Customer
7.1 At the request of Provider, the Customer must provide such information and assistance as are reasonably required by Provider in order to enable Provider to meet its obligations under this agreement.

7.2 The Customer must comply with all reasonable directions and instructions of Provider in relation to the Customer's use of the Internet Services and must ensure that all Authorized Users comply with all reasonable directions and instructions of Provider in relation to the Authorized User's use of the Internet Services provided prior reasonable notice is given to the Customer of any of the same, and made known to the Customer.

7.3 Reserved.

7.4 Reserved.

7.5 The Customer acknowledges and accepts that the Customer will be responsible for:

selecting, supplying and maintaining at their expense their own facilities, equipment, operational support and security arrangements in order to connect to the Provider Internet Access Service Network and use the Internet Services;
the purposes for which the Customer uses the Internet Service;
the content of any data or information which the Customer may send or receive while using the Internet Service.

7.6 The Customer shall not use, or suffer or permit another person to use the Internet Service provided by Provider in, or in relation to the commission of an offense against the laws of the United States or of any State or territory of the United States.

7.7 The Customer shall take every reasonable precaution in the use of the Internet Service to prevent contamination and diffusion of any software or hardware contamination including computer "viruses", "worms" or "Trojan Horses".

7.8 The Customer shall take every reasonable precaution to ensure that no person is able to make unauthorized use of or gain unauthorized access to the Internet Service provided to the Customer pursuant to this agreement.

8. Privacy Rights, Confidentiality and Ownership of Data
8.1 Provider must take all reasonable steps to the extent permitted by law to ensure that access to the Customer's data is restricted to those Provider personnel who are required to have access to the same in order to enable Provider to comply with its obligations under this agreement.

8.2 Provider must keep the Customer's data (including the Customer's identity) confidential, but shall not be bound to retain as confidential any data if and to the extent that:

the data is, or becomes part of public domain otherwise than by breach of this agreement by Provider;
the data is lawfully obtained by Provider from another person without any restriction as to use and disclosure;
the data was in Provider's possession prior to disclosure to it by the Customer;
the data is required to be disclosed by the operation of any laws; or
the Customer has given its prior written approval to the disclosure of the data.

8.3 The parties' must keep confidential the terms and conditions of this Agreement.

8.4 The parties' obligations as to confidentiality shall survive any termination of this agreement.

9. Guarantees and Warranties
9.1 Provider will endeavor to provide the Internet Service to the Customer on a best efforts basis.

9.2 Provider gives no warranty or guarantee in relation to the performance, features or compatibility of cooperating electronic networks.

9.3 Provider gives no warranty or guarantee in relation to the performance, features, and compatibility, content or otherwise of any connected Internet service or host/computer connected to the Internet Service.

9.4 EXCEPT FOR THE EXPRESS WARRANTIES AND UNDERTAKINGS SET FORTH IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL WARRANTIES RESPECTING THE EFFICACY OF ITS SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

10. Indemnity
10.1 The Customer agrees to indemnify Provider and holds Provider harmless from and against any loss, cost, expense or liability arising from any claims, demands or proceedings by any person against Provider whatsoever arising out of:

the use or attempted use of the Internet Service by the Customer or by any person authorized by the Customer or from the use of any facility or equipment connected to the Internet Service by the Customer or any facility or equipment connected to the Internet Service by any person authorized by the Customer; or
any hardware or software contamination resulting from the use by the Customer or by any person authorized by the Customer; except to the extent that such loss, cost, expense or liability arises from or is attributable to any reckless act or omission or willful misconduct on the part of Provider, Provider's officers, employees, or agents.

10.2 The Customer agrees to indemnify Provider and holds Provider harmless from and against any loss, cost, expense or liability arising from any claims, demands or proceedings by any person against Provider whatsoever arising out of any action brought by any third party against Provider for infringement of that third party's Intellectual Property Rights due to the Customer's use of the Internet Service provided to the Customer pursuant to this agreement or due to the use of the Internet Service by any person authorized by the Customer to use the Internet Service provided to the Customer or pursuant to this agreement or Provider's possession of Customer's data or materials in accordance with this agreement except to the extent that such loss, cost, expense or liability arises from or is attributable to any reckless act or willful misconduct on the part of Provider, Provider's officers, employees, contractors and agents.

11. Liability
Except as provided to the contrary in this Agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the provision of the Internet Service or other obligations under this agreement will be excluded. Without limiting the generality of the preceding sentence and except as expressly provided in this agreement, Provider will not be under any liability (including liability as to negligence) to the Customer or to any third party in respect of any loss or damage (including consequential loss or damage), however caused, which may be suffered or incurred or which may arise directly or indirectly as a result of or in connection with the provision of the Internet Services or Provider's failure to comply with Provider's obligations under this Agreement except as expressly provided in this Agreement.

12. Termination
12.1 Either party is entitled to immediately terminate this agreement by notice in writing to the other party in the event that:

the other party has committed a material breach of this agreement and, if the breach is rectifiable, has not rectified the breach within thirty days after receiving notice from the other party specifying the nature of the breach and requiring the party in default to rectify the breach;
an order is made or an effective resolution is passed for the winding up of the other party, or an administrator of the other party is appointed;
a receiver, receiver and manager, official manager, trustee or a similar official is appointed over any of the assets of the other party;
an encumbrance takes possession of the whole or a substantial part of the undertaking or property of the other party;
the other party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors generally;
the other party ceases or threatens to cease to carry on business;
the other party becomes unable to pay its debts when they are due.

12.2 The termination of this agreement for whatever reason is without prejudice to any rights that have accrued to either party prior to the date of termination.

12.3 Where provision of Internet service has been terminated under clause 12.1, all data formerly in the customer's account will be "TAR"ed and "GNUZIP"ed. This archive may be requested by the customer within two (2) weeks of the termination of the customer's account. Any delivery of the archive will be subject to an advance payment of the archive retrieval fee set out in the Internet Access Fees document. The only method of delivery for the archive is sending the archive via Internet electronic mail as a MIME attachment.

12.4 Provider may suspend or restrict provision of the Internet Service to the Customer at any of the Customer Sites at any time:

while payment of an account for the Internet Service provided to the Customer is overdue for a period of one (1) week after the service of a notice which states that the Internet Service provided to the Customer will be disconnected due to overdue payment;
if the Customer becomes bankrupt or insolvent or enters into a scheme of arrangement or composition with the Customer's creditors or, being a company, is placed in receivership or under official management or has a provisional liquidator appointed;
if the Customer breaches any material term or condition of this agreement and fails to remedy that breach within a period of two (2) weeks after service of a notice that states that the Internet Service provided to the Customer will be disconnected due to that breach;
if it appears that the customer is engaging in serious breaches of netiquette, their account may be suspended instantly by the provider. These breaches would include, but are not limited to, spamming, or serious harassment of other Internet users;
if it appears that the customer is engaged in any unlawful activity, or in any other activity that might jeopardize the operation of the Provider. These activities would include, but are not limited to, unauthorized access of computer systems, distributing unlawful material, or engaging in malicious use of Provider's Internet service.

12.5 Where provision of the Internet Service has been suspended under clauses 12.4(1-3), the reconnection of the Internet Service shall be subject to the appropriate connection charge specified in the document titled: Internet Access Fee. After the account has been suspended for thirty (30) days, all data in the account may be deleted. Where provision of the Internet Service has been suspended under clause 12.4(4), the reconnection of the Internet Service shall be without charge if the breach of netiquette is not found serious by the provider. However, if there is a serious breach of netiquette then the customer has committed a unrectifiable material breach of this agreement and their will be terminated under clause 12.1(1). Where provision of the Internet Service has been suspended under clause 12.4(5), the reconnection of the Internet Service shall be without charge if the activity is not found unlawful or damaging as determined by the Provider. However, if there is any unlawful or damaging activity then the customer has committed a unrectifiable material breach of this agreement and their will be terminated under clause 12.1(1).

12.6 Provider may suspend or restrict provision of the Internet service to the Customer at any of the Customer Sites at any time in the event of an emergency or whenever Provider considers it necessary or reasonable in order to safeguard provision of the Internet Service.

13. Disputes
13.1

A dispute must, as far as possible, be settled amicably between the parties.
All disputes that arise out of or under this Agreement shall be subject to binding arbitration. The parties will jointly appoint an arbiter. If there is not agreement as to the arbiter within one (1) week then an arbiter will be appointed by the Superior Court of California.
For disputes that arise out of or under this Agreement the prevailing party shall be entitled to recover reasonable attorneys fees and all costs incurred in litigating or arbitrating the dispute.

13.2 If the dispute relates to the construction or interpretation of the terms and conditions of this agreement, the dispute must be dealt with by a court.

13.3 All other disputes must be dealt with by referral to an expert nominated jointly by the parties, or failing agreement, within 14 days after either party's request to the other party for such, to a mediation with a mediator provided by the San Diego Mediation Center. The mediator's fees shall be paid by the parties in equal shares unless the mediator determines that the conduct of a party is such that such party should bear all such costs.

14. Tax
The Customer must pay, and must keep Provider indemnified against any Tax with the exception of income tax payable upon or in respect of this agreement or any services, payments, document, transaction or matter referred to in or contemplated by this agreement.

15. General
15.1 Assignment

The Customer must not assign any of the Customer's rights under this agreement without the prior written consent of Provider.
Provider may assign any of its rights under this Agreement without the prior written consent of the Customer and Provider must notify the Customer in the event that Provider exercises this power.

15.2 Severance

A provision of, or the application of a provision of, this agreement that is prohibited in any jurisdiction, is in that jurisdiction, ineffective only to the extent of that prohibition.
A provision of, or the application of a provision of, this agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
If a provision of this agreement is void, illegal or unenforceable, it may be severed without affecting the validity, legality or enforceability of the other provisions of this agreement.

15.3 Waiver

Waiver of a breach of this agreement, or of any rights created by, or arising upon default, under this agreement, must be in writing and signed by the party granting the waiver.
A breach of this agreement is not waived by a failure to exercise, a delay in exercising, or a partial exercise of, any remedy available under this agreement or in law or equity.
A right created by, or arising upon, default under this agreement, is not waived by a failure exercise, a delay in exercising, or a partial exercise of, that right.
Variation of a term of this agreement must be in writing and signed by the parties.

15.4 Entire Agreement

This agreement supplemented by Appendixes A and B are the entire agreement between the parties in respect of their subject matter. Provider may amend these terms and conditions at its discretion provided that Provider will give the Customer twenty (20) Days notice of any changes to these terms and conditions.
Upon receipt of notice of any amendment to the terms and conditions of this agreement, pursuant to clause 15.4(1), the Customer may elect to terminate this agreement by giving not less than one (1) weeks' written notice to Provider at any time during the notice period referred to in clause 15.4(1).

15.5 Force Majeure

If a party is prevented from performing an obligation under this agreement because of events or circumstances beyond the reasonable control of, and not reasonably foreseeable by, the party, the party will be granted a reasonable extension of time to perform the obligation if:

the party notifies the other party as soon as is reasonably practicable of the events or circumstances and of the period that the party expects to be prevented from performing the obligation; and
the party takes all reasonable steps to avoid or limit the effects of the events or circumstances or to render to the reasonable satisfaction of the other party the equivalent of performance of the obligation.

If a party is, or is reasonably likely to be, prevented from performing a material obligation for a period greater than 3 months, the other party may terminate this agreement immediately by giving notice in writing to the firstmentioned party.
The events and circumstances contemplated under clause 15.5 include (but are not limited to) acts of God, war, hurricanes, tornadoes, earthquakes, flood, legislation and strikes.

15.6 No Partnership
Nothing in this agreement will constitute or be deemed to constitute a partnership between the parties or constitute or be deemed to constitute the Customer as agent for Provider for any purpose and neither party has the authority or power to bind the other or contract in the name of the other in any way or for any purpose other than as specifically contemplated by this agreement.

15.7 Sub-Contracting
Provider may sub-contract for the performance of this agreement or any part thereof.

15.8 Notices
Any notice given under or pursuant to this agreement must be in writing and will be deemed duly given or made if delivered or sent by United States Postal Service First Class mail, hand delivery, electronic mail or facsimile transmission to the address of the relevant party specified in this agreement and marked to the attention of:
(in the case of Provider) - the person nominated in the Appendix A.
(in the case of the Customer) - the person nominated in the Application Form. In addition: any notice, demand or other communication will be deemed, in the absence of proof to the contrary, to have been received by the person to whom it was sent:

in the case of hand delivery, upon delivery;
in the case of United States Postal Service First Class mail, ten (10) days after the date of dispatch;
in the case of electronic mail, twelve (12) hours if no delivery trouble has been reported.
in the case of facsimile transmission, on the next business day following successful transmission as evidenced by the sender's facsimile machine statement.

15.9 Governing Law
This agreement is governed by and will be construed in accordance with the laws of the State of California, United States of America.

15.10 Negotiation of special terms
All terms within agreement may be modified on a case by case basis, however the cost of having an attorney licensed in California review each modification will be prorated along with the normal Internet Access Fee over one year for the new agreement.

Appendix A

Fault Reporting : When reporting faults on your Provider Internet Service, e-mail support@anonymizer.com, call +1(619)667-7969 if in the local San Diego area or +1(888)7-INFONEX (888-746-3663) if outside the area, toll-free.

For questions on Provider Internet Access Service, e-mail support@anonymizer.com, call +1(619)667-7969 if in the local San Diego area or +1(888)7-INFONEX (888-746-3663) if outside the area, toll free.

Appendix B

This agreement does not have to be signed to be binding on the customer. Applying and paying for Internet Service demonstrates agreement to this agreement.

Signatures shall be required if this agreement has been modified in any manner.

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Signature, Title & Date

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Signature, Title & Date