Internet Service Agreement
1. SERVICE. SVI will provide you with dedicated access to the Internet, subject to the terms and conditions set forth herein (the “Service”). Speeds on the various plans will vary depending on many factors, including but not limited to distance from the local service provider’s central office, Internet congestion, upload and download speed of your destination server. Service is provided in conjunction with a circuit provider, which may be your local phone company. The circuit provider retains the right to cancel the service before or after installation at their sole discretion at any time. Although pre-qualification provides a good measure of certainty regarding service availability, it is not a guarantee of service. SVI recommends waiting until service is installed and tested for a few weeks before assuming that service will be available and of good quality.
2. PROVIDERS. The application of certain terms herein vary depending on whether the phone line or circuit for a Purchaser is AT&T (an “AT&T Purchaser”), Verizon (a “Verizon Purchaser”), or Covad (a “Covad Purchaser”).
3. Purchaser INFORMATION. You acknowledge that you are eighteen (18) years of age or older, and you agree that you have the legal authority to enter into this Agreement and affirm that the information you supply to SVI is correct and complete. You understand that SVI relies on the information you supply and that providing false or incorrect information may result in Service delays and or the suspension or termination of your Service. You agree to promptly notify SVI whenever your personal or billing information changes, including without limitation, your name, address, telephone number, and credit card number and expiration date, if applicable.
4. GENERAL PRICING AND FEES. SVI’s prices are shown in the Pricing Schedule and you will be charged based on the Plan and Options you select during the ordering process. All contracts are for one year, unless otherwise stated in a SVI Services Supplement and/or Master Service Agreement. An Annual Purchaser subscribing to SVI’s service will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Annual Purchaser at the time of order. Such monthly prices for Annual Subscribers are guaranteed for the initial twelve (12) month Term. Following the initial twelve (12) month Term, an Annual Purchaser will automatically become a Monthly Purchaser and will pay SVI’s then current prices, subject to increase as described above, unless such Purchaser registers for a new “1 Year Contract” Plan at such time, to the extent available. An Annual Purchaser may upgrade or downgrade their DSL Service to a different speed plan during their initial (12) month Term. Any such Annual Purchaser so upgrading or downgrading may, at the time of upgrade or downgrade, select either (a) a “Month to Month” rate, in which case such Purchaser shall continue to be subject to all of the terms and conditions of this Agreement for the remainder of such Purchaser’s initial twelve (12) month Term and following such initial Term, such Purchaser will automatically become a Monthly Purchaser and will pay SVI’s then current prices, subject to increase as described above, unless such Purchaser registers for a new “1 Year Contract” Plan at such time, to the extent available or (b) a “1 Year Contract” Plan, in which case such Purchaser’s initial twelve (12) month Term shall restart on the date of such upgrade, provided that such Purchaser shall continue to be subject to all of the terms and conditions of this Agreement for the period prior to such upgrade or downgrade. In addition to regular fees set forth in the Pricing Schedule, you agree to pay all other charges, including but not limited to applicable taxes, network usage and surcharges, including charges imposed against SVI by third party providers that it passes on to you. The taxes and surcharges may vary on a monthly basis; any variations will be reflected in your monthly charge. When possible,SVI will break out such charges on the monthly invoice. You may change your plan speed at any time. A fifty dollar ($50.00) downgrade fee will apply to any AT&T Purchaser or Verizon Purchaser, who downgrades their speed. A ninety-nine dollar ($99.00) fee will apply to any Covad Purchaser who upgrades or downgrades their speed. A fifty dollar ($50.00) fee will apply to any Purchaser who switches from a Static IP to a Dynamic IP. Promotional packages are only available to first time SVI Subscribers.
5. Upon entering into this Agreement, SETUP and Activation Fees are due. For DSL subscriber a non-refundable setup fee (fifty dollars ($50.00) in the case of Verizon and AT&T Subscribers, one hundred dollars ($100.00) in the case of a Covad Purchaser, will apply to all Monthly Subscribers.
6. PAYMENT, LATE FEES AND OTHER CHARGES. There is no money back guarantee for any Services unless specifically written in a special one time promotion. There are no pro-rated refunds for unused time. Unless otherwise stated in the Pricing Schedule, SVI will invoice Subscribers monthly. Invoices will be on a full calendar month basis. New Subscribers who enter into this Agreement after the first day of any month will be billed on a pro-rated basis for their first month of Service and thereafter on a full calendar month basis. Subscribers agree to pay within twenty (10) days from receipt of an invoice. If a Purchaser does not pay an invoice within such ten (10) day period, SVI may deny, discontinue or otherwise suspend such Purchaser’s Service until full payment is received. Subscribers are responsible for paying monthly subscription fees while Services are suspended due to non-payment. All accounts suspended for non-payment are subject to a ten dollar ($10.00) re-activation fee. Subscribers are responsible for any disputed charges beyond sixty (60) days from the date of the charge. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges. Subscribers must pay a twenty-five dollar ($25.00) service charge on all returned checks, disputed credit cards, and credit card charge backs. Past due accounts will accrue a monthly charge of one and one-half percent (1.5%) of the past due balance or one dollar ($1.00), whichever is greater.
7. DIAL-UP USERS UPGRADING TO DSL SERVICE. If a Purchaser to SVI’s Dial-Up service upgrades to DSL Service and, pursuant to their agreement with SVI covering such Dial-Up service, the Purchaser is entitled to a credit equal to their remaining unused prepaid Dial-Up fees toward DSL Service (their “Dial-Up Credit”), upon entering into this Agreement, the Purchaser can apply their Dial-Up Credit toward their Service fees. However, the Dial-Up Credit can only be used as a credit against their Service fees under this Agreement and the Purchaser will not receive a refund of any unused portion of their Dial-Up Credit not applied toward their Service fees.
8. EQUIPMENT. SVI will provide a Purchaser with the free use of a modem (California use tax is required in California). Purchaser must return to SVI the complete modem kit in a usable condition at Purchaser’s expense within thirty (30) days of termination of the Service by Purchaser or SVI. Purchaser must pay ninety-nine dollars and ninety five cents ($99.95) plus applicable taxes to purchase any modem Purchaser does not return to SVI in working condition within such thirty (30) day period.
9. SOFTWARE. In connection with our provision of the Service, SVI may provide to you, via download, CD, other media, or other delivery method, the use of certain software which is owned by SVI or its third party licensor’s, providers and suppliers, and which may be provided free or for a fee, including client and/or network security software (the “Software”). SVI reserves the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of or for use with the Service and for no other purpose. The Software may be accompanied by an end user license agreement from SVI or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement
10. TERM. This Agreement is effective upon Purchaser’s acceptance as provided above and shall continue until terminated by Purchaser or SVI pursuant to this Agreement. Each Monthly Purchaser is on automatically renewing monthly terms beginning on the first day of each calendar month (or, for the first monthly term, the full or partial month beginning with Purchaser’s acceptance as provided above). An Annual Purchaser is on a twelve (12) month term beginning on the day such Purchaser accepts the terms of this Agreement as provided above. An Annual Purchaser who upgrades or downgrades to a “Month to Month” rate during their initial twelve (12) month Term pursuant to section 4, shall continue to be on the same twelve (12) month Term. An Annual Purchaser who upgrades or downgrades to a “1 Year Contract” Plan during their initial twelve (12) month Term pursuant to section 4, shall begin a new initial twelve (12) month Term on the date of such upgrade. Following the initial twelve (12) month Term, an Annual Purchaser will automatically become a Monthly Purchaser.
11. TERMINATION BY Purchaser. Purchaser may terminate this Agreement at any time for any reason by providing SVI with a thirty (30) day written notice in the form of a valid written termination request and paying all fees and other charges accrued or otherwise payable under the terms of this Agreement. Such thirty (30) day period begins on the date on which SVI receives Purchaser’s valid written termination request. A Monthly Purchaser’s termination will be effective on the later of (a) the end of last day of the calendar month during which such thirty (30) day period ends (e.g., a valid written termination request received by SVI any time during January will result in termination effective at the end of February) or (b) the end of last day of the calendar month requested by the Monthly Purchaser. An Annual Purchaser’s termination, if received by SVI at least thirty (30) days prior to the end of their twelve (12) month term, will be effective at the end of such twelve (12) month term, unless such Annual Purchaser requests an earlier date. Notwithstanding the foregoing provisions of this section 11, if SVI receives a written termination request from a Purchaser,SVI may, in its sole discretion, terminate this Agreement on a date earlier than the date otherwise prescribed by this section 11. If this Agreement is terminated prior to the end of an Annual Purchaser’s twelve (12) month term, such Annual Purchaser must pay, in addition to all fees and other charges accrued or otherwise payable under the terms of this Agreement, an early termination fee in the amount of two hundred dollars ($200.00) (“Early Termination Fee”). In the event an Annual Purchaser terminates this Agreement prior to the end of their twelve (12) month term because of a service-related problem not caused by the Purchaser that SVI has failed to cure after what SVI determines in its sole discretion to be a reasonable amount of time based on the circumstances, the Purchaser is entitled to a waiver of the Early Termination Fee. For such waiver to apply, the reason for the waiver stated above must have occurred before termination and the Purchaser must report such reason for termination to SVI in its valid written termination request. SVI must in turn be given the opportunity to resolve the problem and the Purchaser must be willing to troubleshoot with SVI as well as be available for and authorize the dispatch of a network provider technician. SVI does not monitor Purchaser accounts for activity, and absence of activity or cancellation of a Purchaser’s telephone number will never constitute a termination request. A written termination request is valid only if it includes your DSL phone number, main user name, date you wish the service to be canceled and the reason for canceling and is submitted using one of the following methods:
2. Via fax at 408-681-1528
3. Via mail to:SVI
Attn: Cancellations Dept.
P. O. Box 1246
San Martin, CA 95046
12. TERMINATION BY SVI. If, in SVI’s sole discretion, (a) a Purchaser is in breach of any of the terms of this Agreement (including but not limited to the Acceptable Use Policy); (b) a Purchaser’s use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service,SVI’s servers or other equipment, or the use and enjoyment of other users; (c) a Purchaser acts in an abusive or menacing manner when dealing with SVI’s technical support staff, customer service staff or any other SVI employees or representatives; (d)SVI receives an order from a court to terminate a Purchaser’s Service; or (e)SVI for any reason ceases to offer the Service, then SVI at its sole election may terminate or suspend such Purchaser’s Service immediately without notice. For a termination in accordance with this paragraph, Purchaser remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the Early Termination Fee and equipment charges set forth herein, if applicable.
13. TERMINATED Purchaser. SVI, in its sole discretion may refuse to accept a Purchaser’s application for renewal or re subscription following a termination or suspension of such Purchaser’s use of the Service. If a Purchaser’s Service is terminated for any reason, such Purchaser, upon approval by SVI, may enter into a new Agreement and must pay a new setup or activation fee as provided above. Upon the termination of a Purchaser’s use of the Service,SVI has the right to immediately delete all data, files and other information stored in or for the Purchaser’s account without further notice to the Purchaser.
14. SPEED OF SERVICE. Speed rate depends upon the Purchaser’s Plan and line capabilities (e.g., loop length, line condition, gauge of copper wire and Phone Company provisioning). The maximum speed for ADSL is stated under optimal conditions and may vary significantly. Speeds are subject to a 20% overhead (e.g., 768k stated speed = 768k times 80% throughput = 614k actual speed). Minimum speeds are offered for a AT&T Purchaser and are based on the package’s listed minimum speed minus 20% overhead (e.g., 384-1500k/128-256k stated speed = 384k times 80% throughput = 307k actual speed.) Actual speeds that fit the 80% of the minimum throughput criteria are considered acceptable. A Verizon or Covad Purchaser has no minimum speeds. All Services are provided on an as is basis and throughput speeds are not guaranteed.
15. EASY ISP CHANGE FOR AT&T SUBSCRIBERS. Completing the AT&T ISP change form authorizes AT&T to terminate DSL service with your current Internet service provider and further authorizes AT&T to establish DSL service with SVI. Opting to use the ISP change process will reduce or eliminate the amount of downtime that you may experience when switching from your current Internet service provider to SVI. Most Subscribers experience less than twenty four (24) hours of downtime during this process but overall downtime can be between zero (0) and four (4) business days. You are responsible, and you hold SVI harmless, for any and all early termination, cancellation or other fees, charges or obligations resulting from your change of Internet service provider.
16. INSTALLATION. Unless otherwise requested by the Purchaser, the first available installation date will be provided. Any installation date provided to a Purchaser is only an estimate and is no way a guaranteed installation date. Subscribers understand and agree that circumstances may arise which delay a Subscribers estimated installation date and any such delay will not be considered a breach of this Agreement by SVI. Payment for your initial month’s service (and if applicable: setup fees, installation fees, and equipment) must be received prior to your turn-on date in order for your setup instructions and IP information to be released to you. If your payment is not received by your turn-on date, you will be responsible for the service fees even though your IP and setup information has not been provided to you. A Purchaser’s computer must be equipped with an Ethernet Network Interface (NIC) card for proper DSL operation. SVI does not include a PCMCIA, PC or NIC card as part of the modem package.
17. SELF-INSTALLATION. Self-installation allows the Purchaser to install their DSL equipment. This option provides service to the minimum point of entry (“MPOE”) of your phone service. Your MPOE is normally located outside your building. Inside wiring and inside wiring repair is not included with this option. If inside wiring or inside wiring repair is required, you must contract with your circuit provider or other professional for such work at your own cost. Faulty inside wiring is not grounds for cancellation of your contract. Multi-line phones, phone systems, alarm system or special phone configuration may require a professional installation or special multi-line phone filters. SVI does not provide nor is responsible for any special equipment including but not limited to a POTS splitter or multi-line phone filters. A required professional installation, need for special equipment in order to establish a connection or an incompatible phone line or phone system is not grounds for cancellation of your contract. A sixty dollar ($60.00) transfer fee will apply to any AT&T or Verizon Purchaser and a one hundred dollar ($100.00) transfer fee will apply to any Covad Purchaser who must transfer their service to a standard phone line due to an incompatible phone line or phone system.
18. PROFESSIONAL INSTALLATION. Subscribers may request a Professional Installation for a one-time fee of two hundred dollars ($200.00) in the case of an AT&T Purchaser. The Professional Installation includes setup of Purchaser’s DSL modem only, including inside wiring if needed. It does not include installation of Purchaser’s network card or setup of Purchaser’s computer. Professional Installations are not available to Verizon Subscribers. If a Verizon Purchaser requires a Professional Installation it is the Purchaser’s responsibility to hire a third party technician.
19. Purchaser SUPPLIED MODEM. If a Purchaser supplies their own modem, the Purchaser assumes the risk of service incompatibility. Incompatible Purchaser modems or other Purchaser equipment shall not relieve Subscribers from any of their obligations under this Agreement while troubleshooting defective or incompatible equipment even if Purchaser’s Service is down during such periods of troubleshooting.
20. DIAL-UP SERVICE. DSL Service from SVI does not include dial-up access. A Purchaser can add dial-up service for unlimited access to the Internet at the rate of five dollars ($5.00) per month. SVI will not be responsible for any phone charges incurred while dialing our service. You should check with your local phone company to make sure the number you use is a local, toll-free call from your area. A Purchaser who adds dial-up service is licensed to a single account for one connection at any given time. Simultaneous logins are not allowed, and will result in suspension of your dial-up access. Dial-up service is not intended to be a dedicated line. Dedicated modems or unmonitored modems connected via dial-up service on a continuous basis are not allowed and will result in the cancellation of your dial-up access. All dial-up connections are automatically terminated after twelve (12) hours of continuous use.
21. TECHNICAL SUPPORT. SVI assumes that the Purchaser has a basic understanding of their computer. SVI will not train you in basic computer skills (e.g., deleting files or creating directories). Technical support is intended to facilitate the setup of your properly functioning computer system for access to our services. Your computer must recognize your modem or network card, and receive a dial tone or network link connectivity before any technical support will be dispensed. Our technical support staff is not trained to, has no obligation to and will not assist you in installing and/or troubleshooting modems, network cards, routers, complex network configurations or telephone lines, neither will they provide any technical assistance or support for any third party Software. SVI is not responsible for connection problems due to a computer that is infected with viruses, spyware or malware. It is the Purchaser’s responsibility to initiate and be available for technical support during SVI’s hours of operation. If a Purchaser wishes to utilize SVI’s technical support, the Purchaser must be available to help troubleshoot the connection or computer setup. SVI does not provide on-site technical support. However phone company technicians may be dispatched to troubleshoot the circuit with a Purchaser’s approval. The Purchaser is solely responsible for all charges involved with dispatching a technician to troubleshoot their line. For AT&T Subscribers and Verizon Subscribers, charges are currently sixty dollars ($60.00) per visit or truck roll which includes one-half (1/2) hour of work and thirty-five dollars ($35.00) for each additional one-half (1/2) hour of work. For Covad Subscribers, charges are currently ($199.00) per visit which includes one-half (1/2) hour of work. All such charges are subject to change with no prior notice. Purchaser understands and agrees that any such technician or other person dispatched to troubleshoot Purchaser’s line is not an employee or agent of SVI and SVI is not liable for any damages, costs or expenses relating to or arising from any acts, errors or omissions by any such technician or other person.
22. MAINTAINING CURRENT TELEPHONE SERVICE. DSL service shares the Purchaser’s current telephone line and service. It is the Purchaser’s sole responsibility to maintain the phone line and phone number of original installation in continuous working order with the local phone company in order to receive the Services. A Purchaser who disconnects telephone service remains responsible for monthly service fees, Early Termination Fees and all other fees, charges and other obligations provided for in this Agreement. A sixty dollar ($60.00) transfer fee will apply to any AT&T or Verizon Purchaser who changes their current telephone service. This includes but is not limited to change of phone number, change of phone line or change of service location. A change in phone service will result in downtime while service is reestablished.
23. IP ADDRESSES. Each Purchaser is allowed one (1) computer device per IP address. Upon expiration, cancellation or termination of this Agreement, a Purchaser must relinquish any IP addresses or address blocks assigned to them by SVI. SVI may choose to assign any Purchaser a new IP address at any time.
25.ACCEPTABLE USE. Purchaser agrees to use the DSL Service in accordance with SVI’s acceptable use policy (“Acceptable Use Policy”) published at http://www.garlic.com/policies.html. SVI reserves the right to make changes to the Acceptable Use Policy without notice.
26. WARRANTIES AND LIMITATIONS OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT AND SOFTWARE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY SVI (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). SVI (AND ITS OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY SVI OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF SVI TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
SVI DOES NOT WARRANT OR GUARANTEE THAT DSL SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF SVI HAS ACCEPTED YOUR ORDER FOR DSL SERVICE. THE PROVISIONING OF DSL SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS, INCLUDING WITHOUT LIMITATION, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR SVI SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY SVI -PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
SVI DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY SVI WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. SVI SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. SVI MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. SVI MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL SVI (OR ITS OFFICERS, EMPLOYEES, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CLAIM USE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF SVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION ALSO APPLY TO SVI’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH SVI (AND ITS OFFICERS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES), SVI’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
SVI RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS SVI (OR ITS OFFICERS, EMPLOYEES, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEEMNT OR SUBJECTING SVI (OR ITS OFFICERS, EMPLOYEES, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIOINAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF SVI (AND ITS OFFICERS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
27. LINKS. SVI or third parties may provide links to websites other than HTTP://www.garlic.com or other resources. Because SVI has no control over such websites and resources, you acknowledge and agree that SVI is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that SVI will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
28. INDEMNIFICATION. You agree to defend, indemnify and hold harmless SVI from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, the Software, the Equipment or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment or the Internet.
29. REVISIONS.SVI may revise the terms and conditions of this Agreement from time to time (including any of the policies which may be applicable to usage of the Service) by posting such revisions to our website athttp://www.garlic.com/policies.html. Subscribers agree to visit this page and the links thereon periodically to be aware of and review any such revisions. Increases to the monthly price of the Service for Monthly Subscribers shall be effective beginning with the calendar month following the calendar month in which such increases are posted. Revisions to any other terms and conditions shall be effective upon posting. By continuing to use the Service after revisions are in effect, a Purchaser accepts and agrees to the revisions and to abide by them. Any Purchaser who does not agree to the revision(s) must terminate their Service immediately.
30. ASSIGNMENT. You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. SVI may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
31. CHOICE OF LAW. You and SVI agree that the substantive laws of the State of California, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND SVI CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN SANTA CLARA COUNTY, CALIFORNIA FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, including California laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
32. COMPLIANCE. SVI’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
33. THINGS BEYOND SVI’S CONTROL.SVI will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things SVI do not control, or an inability to obtain necessary equipment or services.
34. ENTIRE AGREEMENT. This Agreement, including all policies posted on SVI’s website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and SVI with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgments or other documents, written or electronic, are void.
35. NOTICE. Notices by SVI to you shall be deemed given: (a) when sent to your SVI email address, (b) when deposited in the United States mail addressed to you at the address you have specified in your account options or (c) when hand delivered to your home, as applicable.
36. SURVIVAL. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.