General

Webjogger Internet Services, a New York corporation, (hereinafter referred to as “Webjogger” or the “ISP” or “Internet Service Provider”) hereby agrees to provide Services in accordance with these “Terms of Service,” Webjogger’s Privacy Policy, and any other documents or agreements made between Webjogger and the person or entity (“you” or “Client”) that executes and delivers an Order for the provision of services set forth on that Order. “Services” means those services requested by you and provided by Webjogger as set forth on an Order. “Order” means the periodic Internet access, storage, hosting, or other Service typically described in a quote, contract, invoice, or other document by Webjogger and presented to you. You shall indicate acceptance of the Services by executing an Order, signing an agreement with Webjogger, or using any Services unless and until you inform us in writing of your desire to have Services discontinued. Webjogger shall only provide Services subject to your compliance with all of the terms and conditions of this Agreement. This Agreement may be changed from time to time by Webjogger as provided below. Client agrees to accept such changes or, alternately, serve written notice on Webjogger of termination of this Agreement. Either party may, without cause, terminate this Agreement upon notification of the other according to the Notices section below.

Client agrees that no other representations, whether verbal or written, have been made, hence, any and all other alleged agreements, whether verbal or written, if any, are null and void and this agreement shall substitute for them.

Client agrees access to other networks via the Service shall be in compliance with their policies and rules. Client agrees such use of other organizations’ networks or computing resources subjects Client to those organizations’ permission and usage policies except that should a conflict arise between those policies/rules and this agreement, this agreement shall take precedent and Webjogger shall be the sole arbiter of the interpretation thereof.

If, for any reason, any terms or provisions of this document shall be held unenforceable by a court of law, the remaining Terms and Conditions shall remain fully in effect wholly and severally. Client agrees that should any litigation ensue involving Webjogger, that New York State courts of law, specifically those located in Dutchess County, shall retain original jurisdiction and shall be accepted as proper venue to the exclusion of all others. Webjogger reserves the right, and Client agrees to the same, to respond and yield to the order upon service of any Subpoena Duces Tecum executed by a court of law, without notice to the Client. Webjogger shall serve as the sole arbiter to resolve any disputes regarding the language herein and its interpretation.

Client will notify Webjogger of any changes in account contact information, such as physical address, telephone number, message phone, e-mail address, work address, or other contact information.

These Terms and Conditions, including Billing Rates, are subject to change. The latest version of these Terms and Conditions, including Billing Rates, is always available online on Webjogger’s Web server. It shall be the Client’s responsibility to remain abreast of such changes. Client may contact Webjogger directly or its Web page in order to ascertain the nature and extent of such changes. Client’s continued usage of Webjogger’s services or assigned account after a new policy has gone into effect constitutes acceptance of that policy. Webjogger encourages Client to regularly check the policy statement for any changes. The effective date at the end of this contract will be updated to indicate a new revision.

Warranty

Webjogger makes no warranties of any kind, whether express or implied, including any warranty of merchantability or fitness of this service for a particular purpose. Webjogger assumes no liability for any damages suffered by Client including, but not limited to, loss of data from delays, nondeliveries, misdeliveries, or service interruptions including Client negligence or errors and/or omissions or those of any third party. Client agrees that the acceptance by Webjogger of any data, electronic files, or other information shall not constitute a bailment. Client agrees that Webjogger will not be held responsible for loss of business due to the use of these services.

Webjogger assumes no responsibility for the periodic renewal with and payment of fees to third-party registrars for maintaining webhosting Client’s domain name registration active or avoiding the expiration of domain name services. Client agrees that it is entirely Client’s responsiblity to monitor and to respond in a timely way to the regular notifications of third-party registrars.

Client agrees to indemnify Webjogger and hold Webjogger harmless from all losses or damages (including but not limited to court costs and reasonable attorneys’ fees) arising out of or resulting from Client’s failure to strictly abide by these Terms and Conditions.

Client agrees not to sell, assign, share, or transfer his/her/its Service order without the prior written consent of the ISP. Webjogger may at any time sell, assign or transfer this agreement without notice. Client agrees to hold Webjogger harmless for lack of performance or delay for any reason, including but not limited to: acts of God, war, riots, embargoes, strikes or acts by its vendors and suppliers, concealed acts of workers (whether of Webjogger or others) or accidents, and attacks by vandals or ‘cyber’ criminals, or as a result of illegal conspiracies or other illegal acts tending to victimize or interfere with the normal operation of the ISP. Webjogger will attempt to notify Clients in the event of any of the foregoing occurrences. Should such occurrences continue on for more than 90 days, Webjogger or its Clients may cancel the Service with no further liability. Clients agree to notify Webjogger of any knowledge of such activity they may have and testify to the same if subpoenaed by a court of law.

CLIENT EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CLIENT’S SOLE RISK. NEITHER WEBJOGGER NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR WEBJOGGER OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NEITHER WEBJOGGER NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT WILL WEBJOGGER’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CLIENT, IF ANY, FOR THE SERVICE FOR THE TWELVE MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.

Content

Client assumes all risk and liability arising from any information obtained by third parties from Webjogger’s published and/or private data network services. Webjogger may list Client’s contact information in relevant directories. Webjogger agrees not to reveal, sell, or otherwise allow other commercial enterprises to use Client’s contact information for the purpose of commercial advertising. Webjogger also agrees to take all reasonable precautions to prevent Client’s contact information, that Webjogger uses and maintains during, and for, the course of business, from being obtained by unauthorized parties.

Unless otherwise indicated by the ISP, Webjogger exercises no control or censorship, per se, over the Content obtained through the Service. Accordingly, Client assumes all risk and liability associated with such Content obtained or accessed by Client through the ISP deliberately or otherwise. Webjogger specifically denies any responsibility for the accuracy, quality or appropriateness of Content obtained through the ISP. Client specifically agrees to hold Webjogger harmless to the limits of its liability as described above for any and all slander, libel, or defamation not resulting from direct and deliberate intent on the part of the ISP. Client understands and agrees that Webjogger, as a wire data access provider, cannot assume liability for the pronouncements, inaccuracies, slander, libel, threats, harassment, or defamation of Client by third parties. Client agrees to hold Webjogger harmless for the same.

Storage on Webjogger’s equipment shall be provided for e-mail and/or file storage in the amount corresponding to the type of Service purchased. Upon termination of this Agreement, Client’s mail and files shall no longer be accessible and Client agrees to hold Webjogger harmless for any e-mail not received or lost, whether before or after termination of this Agreement. Webjogger will forward incoming mail to the new e-mail address specified by the client for the period of one week at no charge. Beyond that time the client has the option of requesting this e-mail forward service according to the rates established by Webjogger.

Client’s Equipment

Physical equipment and/or software products not provided by Webjogger are the Client’s responsibility, including the installation and/or service on such equipment and/or software. Client agrees to be responsible for the use and compatibility of hardware and software not provided by Webjogger . In the event Client’s use of hardware and/or software impairs the functional utility of the ISP, Client shall remain liable for Webjogger’s monthly Service fee. Upon notice from the ISP that the hardware and/or software in question is causing, or likely to cause hazard, interference or service obstruction, Client shall immediately eliminate the hazard, interference or obstruction to the satisfaction of the ISP. Webjogger shall be the sole judge and arbiter of what constitutes such interference, hazard, or obstruction.

Billing

Client agrees to pay for the Service in accordance with Webjogger’s Billing Rates currently in effect. If Webjogger does not receive payment when due, Client’s account may be terminated. It is the Client’s responsibility to ensure that any payments Webjogger receives are clearly noted with respect to the account for which they are intended. Termination of Client’s account does not relieve Client’s responsibility under this agreement to pay all fees incurred up to the date the account was cancelled, including any collection fees, attorney fees, and court costs incurred by Webjogger as a result.

Services must be paid for in advance either by a major credit card or by check. Checks or credit card charges returned to Webjogger unpaid are subject to a $20.00 returned payment fee and the account will immediately be placed on hold. Payments received later than five days after the start of the billing period will also cause the account to be placed on hold. Service to accounts on hold will be suspended and those accounts may be subject to a $20.00 reconnection fee once payment in full of all past due amounts is received. Suspension of service does not remove the client from the obligation to pay Webjogger. Only a written cancellation request will relieve the client from his or her obligations to pay the monthly fee. Accounts placed on hold are subject to 1.5% per month interest charge on the outstanding balance. If the client’s account is on hold, he or she agrees to pay Webjogger its reasonable expenses, including attorney and collection agency fees, incurred while enforcing its rights set forth in this document.

Clients who opt for credit card payment will have their periodic fees automatically charged to the specified credit card number following account activation. The anniversary date of the client’s billing cycle will be the first day of the calendar month. Unless special circumstances arise, the client’s Card will be charged on the anniversary date. The calendar month immediately following the first anniversary date will be regarded as the first full month of service. The initial fees charged to the client’s Card will include the basic rate for the first full month of service, plus a prorated percentage of the following billing period’s basic rate. The proration will be based on the number of days that the client used the service between account activation and the first anniversary date. The Card will be charged periodically, in advance of services, until the client or the ISP decides to terminate the contract.

In the case the client decides to pay with check, Webjogger offers direct period billing. The client will be billed upon account activation. Statements will be issued at the commencement of the billing period. Clients will have 17 days to return their payment for continuing services.

Credit card charges and bills will include the current billing period’s basic rate and the last month’s additional charges.

Service account fees are subject to change. The client will be notified via postal mail or e-mail thirty days before said rate change takes effect and will have 15 days from postmarked date of mailing of the rate change to notify Webjogger of the cancellation of his or her service agreement. If no written notice (via postal mail, e-mail or fax) of cancellation is received by Webjogger in that time, the client understands and agrees to be bound by any higher rate beginning in the next billing cycle. Unlimited interactive use accounts cannot be transferred or shared with other users. Continuation of services by Webjogger is subject to ongoing approval of client creditworthiness. Service fee shall continue to accrue despite account suspension until Webjogger receives notice from Client that this agreement is terminated. Webjogger assumes no liability for files left on its equipment beyond 7 days past due by clients delinquent in their payment obligation.

Webjogger may with its own discretion and upon its own initiative return to the client any money or consideration not yet credited to services provided. This shall be the full extent and limit of any liability or obligation on the part of the ISP to the client. However, should Webjogger terminate clients account for non-compliance with the terms and conditions set forth herein, Webjogger is not obligated to issue to a client any monies or consideration that have not yet been applied to services.

Client to terminate this agreement and close the assigned account at any time provided prior written notice to Webjogger is given, according to the Notices section below. Client shall remain responsible for any fees incurred up to the date of temination of the service.

Notices

All notices required or permitted under this Agreement shall be in writing and shall be deemed given to a Party either (a) when hand delivered to such Party against a receipt therefore; (b) on the next business day after when deposited with a nationally-recognized delivery service with instructions to provide next-business-day delivery and proof of delivery to such Party to Webjogger’s original address or Client’s original address, as the case may be or to such other address of a Party as such party may by notice hereunder designate to the other Party; (c) certified mail with return receipt considered delivered when receipted; (d) facsimile transmission with transaction report delivery considered made at time transmission is received; or (e) email with receipt verification considered delivered when verified.

Use of Services

The Service may only be used for lawful purposes. Transmission and/or retransmission of any information, data, communication, material or content (hereinafter known as “Content”) in violation of any federal or state regulation is strictly prohibited. The aforementioned shall include, but is not limited to, copyrighted Content, threats, harassment, obscene or indecent Content, Content that would encourage any action that would constitute a criminal offense whether defined by local, state, federal or international law, or Content protected by trade secret. Client agrees to indemnify and hold harmless Webjogger from any claims resulting from Client’s use of this Service which damages Client, Webjogger, or a third party. At Webjogger’s discretion, Webjogger may revoke Service for inappropriate usage. Webjogger shall remain the sole arbiter of what constitutes inappropriate usage and the interpretation thereof, but shall use common sense, the Terms and Conditions set forth herein, and any applicable local, state, federal, or international laws to determine the interpretation of “appropriate usage”.

Webjogger does not wish to host adult-oriented sites at this time. This is not due to any consideration other than the amount of system resources these sites consume.

Client acknowledges much of the Content available on and through Webjogger is covered by copyright. Unless Client has express permission from the copyright holder, Client may not redistribute this Content to others, including but not limited to use of this Content on radio, television, or printed media such as newspapers, magazines or newsletters, or any other electronic forum or media.

Client understands that simulation of any type of account or Service that Client does not have access to is not permitted and is fraudulent use of Service. Client also recognizes that this includes replicating services on Clients machine(s) unless Clients account permits such use.

Webjogger reserves the right to delete unused Client email boxes @webjogger.net after six (6) months of no usage. An email box will be considered unused if a POP3 or IMAP connection (i.e. from an email program such as Microsoft Outlook) or an HTTP/S connection through Webjogger’s webmail interface has not been established to it within a six month period.

Dial-up accounts that are unmetered may not be used as dedicated accounts. Active usage for unlimited time is allowed. Active usage is defined as you, the account owner, continually inputting and receiving data. Using non-sentient methods, such as frequent automated e-mail checks, to keep a connection active while you (Client) are not interacting with the session, is not permitted. Client understands that if account is used in a dedicated fashion, it is fradulent use of the dial-up account and may be invoiced for the account type that is being simulated.

Webjogger will, from time to time, monitor activity of client dial-up connections and expressly reserves the right to disconnect any non-active connection. Current policy sets a limit of twenty (20) minutes of monitored non-active time before an automatic disconnection occurs. Webjogger also expressly reserves the right to define and amend what constitutes active and non-active usage (for example, as according to changes in trends and technology).

Webjogger’s policies with regard to its Unlimited Dial-up Accounts are intended to further and protect the interests of the great majority of its clients; Webjogger considers this its primary obligation as an ISP. Most clients desire simple dial-up access with a minimum of busy signals, even during “peak” hours. Experience and common sense dictate that no feasible client to modem ratio can be maintained as long as some clients determinedly and habitually present a pattern of dominating the ISP’s available phone lines. For those who demand such very high-usage, near-continual connectivity, Webjogger’s dedicated access account is offered.

Webjogger has designed certain Services to help you comply with regulatory guidelines that may be applicable to you. You are responsible for understanding the regulatory requirements applicable to your business and for selecting and using Webjogger’s Services in a manner that satisfies those requirements. Additionally, if credit card, debit card, or other payment card information (“cardholder data” as defined in the current version of the Payment Card Industry Data Security Standard), protected health information (“PHI”), or personally identifiable information (“PII”) will be transmitted to or from or stored on Webjogger equipment in conjunction with the Services, you must disclose to Webjogger such fact prior to any such transmission and/or storage. If you fail to make this disclosure, Webjogger may suspend providing the Services to you in its sole discretion. IN THE EVENT WEBJOGGER SUSPENDS SERVICE TO YOU BECAUSE OF YOUR FAILURE TO PROVIDE THIS NOTICE, IT WILL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU.

Intellectual Property Rights

Title and property rights, including all intellectual property rights to the ISP, are and shall remain with Webjogger, whether or not they are embedded in any programming, software or hardware.

Client recognizes that Webjogger’s services and/or products, programming and software used hereunder constitute valuable trade secrets of Webjogger . Client agrees to use reasonable efforts to protect and keep confidential any and all programming and software used by ISP and shall never make any attempt to copy, examine in any way, alter or reengineer, reverse engineer, tamper with or otherwise misuse such services, programs, hardware, etc.

Account Sharing

Client assumes full responsibility for any and all use of the account Webjogger assigns under these Terms and Conditions. In no event may Client share the assigned account or associated password without the express permission of the ISP. If Webjogger gives permission to Client to allow others to use the account, Client must furnish identity and contact information of any such user to ISP prior to such use. Additionally, Client shall be fully responsible for the actions of these designated parties while they are using Webjogger’s equipment and/or services. Client remains fully subject to these Terms and Conditions, and agrees to indemnify ISP against any liability arising out of such use. Should Webjogger find that this provision has been violated, it will serve as grounds for immediate termination of the Client’s account without recourse.

If concurrent logins are found for your account on the dial-up modem pool(s), Client will be liable for twice the monthly cost of Client’s account type per month. Accounts may not be shared unless it is with a member of Client’s family or a domestic partner residing in the same household using the same computer.

Miscellaneous Policies

In conjunction with Client’s use of the ISP, Client agrees to abide by the following Webjogger policies:

• Users of the Service shall promote efficient use of the Service and the networks to minimize and avoid when possible unnecessary network traffic and interference with the work of other users of the interconnected networks.
• Detached, or background, processes or programs may not be initiated or be allowed to be functioning in any of the ISP’s servers, unless the Service being provided is a dedicated or virtual server specifically designated as being for Client’s exclusive use.
• Users of the Service shall not disrupt Webjogger’s networks or any of the other networks as a whole or any equipment or system forming part of its or any other party’s systems, or any services provided over, or in connection with, any of the networks.
• Webjogger’s networks shall not be used to transmit any communication where the meaning of the message, or its transmission or distribution, would violate any applicable law or regulation or would likely be highly offensive to the recipient or recipients thereof.
• All posted form data containing any form of monetary exchange information must go through a secure server.
• Client will refrain from mass electronic posting (‘spamming’ or Unsolicited Commercial Advertisement (UCA) of any unsolicited, noncontextual, nontopical advertisements to the USENET discussion group bulletin board system;

SPAM is defined as:

• The sending of unsolicited e-mail to multiple persons.
• Posting commercial ads to USENET newsgroups and/or mailing lists that do not permit it.
• Posting articles containing binary encoded data to non-binary newsgroup and/or mailing list.
• Posting off-topic messages to newsgroups and/or mailing lists.
• Excessive cross-posting to newsgroups.
• Client will refrain from mass posting of any unsolicited, noncontextual, nontopical advertisements using electronic mail or other TCP/IP Internet applications.
• Client will refrain from using account(s) on ISP’s servers as a ‘mail drop’ for replies to Unsolicited Commercial Advertisement (UCA).

Should any of the above be violated in any way, a nominal penalty fee will be invoiced to the Client, in addition to the regular recurring fee for the account(s) that is assigned to the Client(s). Client shall be responsible for payment of that fee, and understands that payment shall be in accordance with the ISP’s current billing terms. In addition to the penalty fee, Client’s account will be immediately terminated.

The Client agrees that Webjogger has the right to delete all data, files, other information that is stored in the Client’s account on Webjogger’s servers if the account is terminated, either by Webjogger or by the Client. The Client also agrees to keep his/her directory clean and to download or delete e-mail messages in a timely manner. Webjogger reserves the right to notify any user who is using disproportionate share of Webjogger disk space that immediate downloading or deletion is necessary; and to delete files from any user’s account if that user, once notified, fails to clean his directory upon notification.

Age Requirement

The entire Terms and Conditions herein stated are predicated on the fact that the Client is over eighteen years of age at the time Client opens an account with Webjogger. Should the age of Client be less than eighteen years of age, this agreement is null and void unless proof is simultaneously presented of a Court Order declaring the Client to be an emancipated minor entitled to enter into such contracts, or a copy of this agreement is returned with the signature of a Parent or Legal Guardian.

Entire Agreement; Severability

If, for any reason, any terms or provisions of this document shall be held unenforceable by a court of law, the remaining Terms and Conditions shall remain fully in effect wholly and severally. Webjogger reserves the right, and Client agrees to the same, to respond and yield to the order upon service of any Subpoena Duces Tecum executed by a court of law, without notice to the Client. Webjogger shall serve as the sole arbiter to resolve any disputes regarding the language herein and its interpretation.

Arbitration

This agreement is, and shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made and performed in New York. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Dutchess County, New York by a single arbitrator who has special knowledge of the industry or technology involved in the dispute.

Revisions

These Terms and Conditions (as may be revised from time to time as provided above) supersede all previous Terms and Conditions documents, understandings or agreements and shall prevail despite any variance with any prior Terms and Conditions including the Terms and Conditions applicable at the time of Client’s order.

If you would like a printed copy of this policy statement, please send your name and address to support@webjogger.net, and state that you wish to have the Hosting & Dialup Terms of Service mailed to you.

Last Updated: October, 2013