| INFOCHANNEL
INTERNET SERVICE PROVIDER AGREEMENT
This AGREEMENT is made BETWEEN INFOCHANNEL LIMITED a
company incorporated in Jamaica and having its registered
office at New Kingston Shopping Centre, 30 Dominica Drive,
Shop 24B, Kingston 5, Jamaica W.I. (the
"ISP") AND The company, firm or individual
which has requested to use the Services specified herein
(the "User").
1. Provision of the
Services by the ISP
The ISP provides
Internet access and related services (collectively the
"Services") to Users as follows:
| (a) |
The
ISP agrees to provide any necessary software to
enable the User to access and use the Internet
through the ISP's Server subject to the terms
of this Agreement. |
| (b) |
The ISP
reserves the right to control, direct and establish
technical procedures for the use of the Server
and Services and the User agrees to follow the
reasonable instructions and procedures of the
ISP with respect to the use of the same. The ISP
also reserves the right to make operational changes
to the Services, including the User's identifiers. |
| (c) |
The ISP
warrants that it has obtained and will use its
best endeavours to ensure that it retains all
necessary consents, licences or agreements required
for the provision of the Services. |
| (d) |
The ISP
will use its reasonable endeavours to maintain
a 24 hour Internet presence for the User but cannot
guarantee continuous, uninterrupted use especially
where the ISP must carry out routine maintenance,
repairs, reconfigurations or upgrades or in circumstances
beyond its control including force majeure. The
ISP will not be liable for its failure to provide
continuous Service. |
| (e) |
The ISP
reserves the right but does not assume the obligation
to inspect the content and material in the User's
files, e-mails, postings, website, etc., to ascertain
compliance with this Agreement or any laws, regulations
or codes applicable to this Agreement or to the
User's material. In the event of any breach or
purported breach, the ISP will be entitled to
permit a police officer or other relevant authority
to inspect the same. |
2. Term
of Agreement
This Agreement
will be effective on the date the ISP makes the Service
available to the User (the "Effective Date")
and shall remain in force until or unless terminated
under the terms of this Agreement.
3. Use
of the Service by the User
| (a) |
The
User will be responsible for obtaining and maintaining
the User's own compatible computer system being
all such equipment, software and communications
lines, including any public lines required by
the User properly to access the Services ("User's
Equipment"). The ISP has no responsibility
for or liability with respect to the User's Equipment. |
| (b) |
The User
will ensure at all times that its use of any software
and the Services, including connection of the
User's Equipment to the Server, is in accordance
with all applicable data protection and other
laws, licences, codes of practice and regulations. |
| (c) |
The User
acknowledges that all information, products, facilities
and Services offered or made available on or through
the Internet are not, in general, subject to the
same consumer protection legislation applicable
to the User's country of use and accordingly the
User transacts entirely at its own risk. |
| (d) |
The User
acknowledges that the Internet contains material
of the nature specified in Clause 4(a) below,
which the User may find offensive or that, if
the User views or posts, publishes, transmits
or downloads such material it does so at its own
risk of prosecution. |
| (e) |
The software
and Services are provided subject to the condition
that there will be no abuse or fraudulent use
thereof. Abuse and fraudulent use of software
and Services shall include (without limitation): |
| |
(i) |
obtaining,
or attempting to obtain, the Service by
rearranging, tampering with, or making
connection with any facilities of the
ISP, or by any trick, scheme, false representation
or false credit device, or by or through
any other fraudulent means or devices
whatsoever, with intent to avoid payment,
in whole or in part, of the regular charges
for the Services; |
(ii) |
attempting
to, or actually obtaining, accessing,
altering, or destroying the data files,
programs, procedures and/or information
of the ISP or of another user of the ISP; |
(iii)
|
assisting
another to perform the acts prohibited
in (i) or (ii) above; |
(iv)
|
using
the software or Services in such a manner
as to interfere unreasonably with the
use of the Services by any other user
or authorised person. |
|
| (f) |
The User
acknowledges that neither the Internet nor the
ISP's Server is secure and accordingly the ISP
cannot guarantee the privacy of any of the User's
information unless the User uses encryption software. |
4. User's
Undertakings
The User undertakes
for itself and for any other party using its access
to the Services:
| (a) |
not to send any
message, e-mail or other communication which, under
the law of the country of the ISP, User or recipient
or under international conventions, codes or regulations
applicable to the Internet: |
| |
| (i) |
is in breach of those
laws, codes or regulations including but not
limited to infringement of copyright and other
intellectual property rights ("IPR's"),
defamation, theft, fraud, drug-trafficking,
money-laundering and terrorism; |
| (ii) |
may incite violence,
sadism, cruelty or racial hatred; |
| (iii) |
may facilitate prostitution
or paedophilia; |
| (iv) |
is pornographic, obscene,
indecent, abusive, offensive or menacing. |
|
| (b) |
not to create and/or introduce
into the Services any virus, worm, trojan horse,
cancelbot or other destructive or contaminating
program or advise any other party how to do so; |
| (c) |
to use an up-to-date virus-scanning
program on all material downloaded from the Services; |
| (d) |
not to invade the privacy of
other users of the Services or the Internet in general,
including sending unsolicited e-mails ("spamming")
nor to collect or transfer personal data on individuals
without their consent; |
| (e) |
to maintain confidentiality
of its login names, passwords and other confidential
information relating to the User's access to the
Service and the ISP; |
| (f) |
not to tamper with routing and
domain name services in order to "spoof"
other computer networks and users; |
| (g) |
when giving any payment or credit
card information via the Services, to ensure that
the same is accurate, complete and up-to-date and
the User has the authority to give such information. |
5. Charges
| (a)
|
The charges for the Services
are specified in the [subscriber/User terms and
conditions form] completed by the User for the Services.
The charges for the Services are payable as follows: |
| |
| (i) |
If the User elects on
the subscriber form to pay by credit card,
the charges will be made monthly in [arrears]
against the User's card; |
| (ii) |
If the User elects to
pay by other means, the subscription charges
are payable annually in advance and monthly
usage charges are payable monthly in arrears; |
|
| (b)
|
In the event of late or default
payment, the ISP reserves the right to charge interest
at the rate of 4.0 per cent per month from the due
date until the total sum due has been paid. |
| (c)
|
The User will pay or reimburse
the ISP for any and all sales and use taxes, duties,
or levies imposed by any government authority, or
government agency (other than the property taxes
and taxes levied on the ISP's net income) in connection
with the software and Services provided therein. |
| (d)
|
The User agrees to pay all charges
for maintenance and other Service activities, and
to pay for loss or damage to the software, Server
or Services caused by: |
| |
| (i) |
use of the Services for
purposes other than that for which they are
specified; |
| (ii) |
tampering with or attempting
to adjust the Services; |
| (iii) |
User negligence of any
kind; or |
| (iv) |
repetitive use on non-ISP
provided software causing operational problems
which would not have occurred had the correct
software been used. |
|
| (e)
|
The
User agrees that it is solely responsible for all
use of the Services accessed through the User's
password and/or other electronic identifiers with
or without its consent and will pay for such use. |
6. Software
The ISP hereby
grants to the User and the User hereby accepts a non-exclusive
and non-transferable license to use any software provided
by the ISP to access the Internet, for the sole purpose
of enabling the User to use the ISP Services. The User
hereby acknowledges that the title to all software is
and shall remain with the ISP. The User recognises that
software used hereunder constitutes valuable trade secrets
of the ISP. The User hereby undertakes to use its best
efforts to protect and keep confidential all ISP software
used by it, and shall make no attempt to examine, copy,
alter, reverse engineer, disassemble or tamper with
such software.
7. Exclusion
of Warranties/Limitation of Liability
| (a)
|
The ISP will use its reasonable
endeavours to provide Users with continuous Internet
access but the ISP does not warrant or represent
that it can do so since neither ISP nor any other
party has any control over the Internet, which is
a global decentralised network of computer systems.
The Services will not be error free, uninterrupted
and will be very variable. |
| (b) |
The User acknowledges that
the information, software or other material accessible
over the Internet via the Services may contain viruses,
worms, trojan horses, cancelbots or other harmful
and destructive components. |
| (c) |
EXCEPT AS OTHERWISE PROVIDED
IN THIS CLAUSE, THE USER MUST ACCEPT THE SERVICES
"AS IS" AND "AS AVAILABLE" WITHOUT
ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,
FITNESS FOR PURPOSE, TITLE OR NON-INFRINGEMENT. |
| (d) |
THE ISP IS NOT LIABLE AND WILL
NOT BE LIABLE UNDER ANY CIRCUMSTANCES, FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL
LOSS OR DAMAGES WHICH RESULT OR MAY RESULT FROM
THE USER'S USE OF THE SERVICES (INCLUDED BUT NOT
LIMITED TO DELETION OR LOSS OF FILES, DEFECTS OR
DELAYS IN TRANSMISSION OR ANY FAILURE OF THE SERVER
OR THE INTERNET) OR THE USER'S ACCESS TO THE INTERNET
OR USE THEREOF FOR ANY PURPOSE WHATSOEVER OR FOR
ANY RELIANCE ON OR USE OF INFORMATION, SERVICES
OR GOODS PURCHASED ON OR THROUGH THE SERVICES OR
THE INTERNET. THE USER'S SOLE AND EXCLUSIVE REMEDY
IF DISSATISFIED WITH THE SERVICES FOR ANY REASON
WHATSOEVER, IS TERMINATION OF THE SERVICES AND THIS
AGREEMENT BY IMMEDIATELY DISCONTINUING TO USE THE
SERVICES. THE ISP WILL REFUND ANY PORTION OF THE
PRE-PAID SUBSCRIPTION OR OTHER FEES. |
| (e)
|
The foregoing warranties are
in lieu of all other warranties, express or implied
and the User's sole remedy hereunder. |
| (f) |
In the event the ISP incurs
any liability whatsoever to the User such liability
will in all cases be limited to the subscription
fee paid by the User in the year in which such liability
arose. |
| (g) |
The ISP is not liable to the
User or any other party who may access the Services
via the User's identifiers with or without the User's
consent ("Co-Users") for any act or omission
of any other entity furnishing products or services
which are required by the User to use the ISP Service.
Nor will the ISP be liable for any damage or loss
due to the fault or negligence of the User, or for
the failure of any products or services provided
by the User via the Services. |
| (h) |
The ISP is not responsible in
contract or in tort for the unauthorized access
to, or alteration, theft or destruction of e-mails,
files, programs, or information of the User by any
person through accident or by fraudulent means or
devices, even if such access occurs as a result
of the ISP's own negligence. |
| |
| The ISP will
not be responsible to the User or to any user
if changes if any of the ISP's facilities,
operations, procedures, products or Services: |
| (i) |
render obsolete
the User's Equipment or software; |
| (ii) |
require modification or
alteration to the User's Equipment or software
; or |
| (iii) |
otherwise affect performance. |
|
8. Indemnities
| (a)
|
The User
undertakes fully and effectively to indemnify
and keep indemnified at all times the ISP against
all actions, proceedings, costs, claims, demands,
liabilities and expenses whatsoever (including
legal and other fees and disbursements) sustained,
incurred or paid by the ISP directly or indirectly
in respect of: |
| |
| (i) |
access to and/or use of
the Services or the Internet by the User or
by Co-Users; |
| (ii) |
any information, data
or material produced, transmitted or downloaded
by the User or Co-Users; |
| (iii) |
any breach by the User
or by Co-Users of any of the provisions of
this Agreement or of any law, code or regulation
relating thereto, to the Internet or Users. |
|
9. Force
Majeure
The ISP will not
be responsible for any delay in, or failure of, the
Services or the Internet due to any occurrence commonly
known as force majeure, including war, riots embargoes,
strikes, or other concerted acts of workmen (whether
of the ISP or others) casualties or accidents, or any
other causes, circumstances, or contingencies, beyond
the ISP's control, which prevent or hinder the performance
of the ISP of any of its obligations hereunder.
10. Termination
| (a)
|
The ISP will be
entitled to terminate this Agreement immediately. |
| |
| (i) |
if the ISP discovers that
the User or any Co-User has been creating
and downloading or uploading any of the material
specified in Clause 4 and to report the matter
to the appropriate police or other applicable
authority or enforcement agency. |
| (ii) |
if the ISP discovers the
User has been in breach of any term, condition
or provision contained herein or laid down
by any legal, regulatory or other authority
or body in respect to the Internet or users. |
|
| (b)
|
The User may terminate this
Agreement by discontinuing use of the Services. |
| (c)
|
In the event of termination
of this Agreement by the ISP under (a) above, the
ISP will retain all payments made hereunder and
deny the User access via the Services to any material
or data stored on the Internet. |
| (d)
|
The User undertakes that within
seven (7) days after date of expiry or termination
of this Agreement for whatever reason, the User
shall purge/expunge from the User's Equipment the
ISP's software and the ISP's material transferred
and/or stored during this Agreement. |
11. Waiver
Failure or neglect
by the ISP to enforce at any time any of the provisions
hereof shall not be construed nor shall be deemed to
be a waiver of the ISP's rights hereunder nor in any
way affect the validity of the whole or any part of
this Agreement nor prejudice the ISP's rights to take
subsequent action.
12. Assignment
Neither this Agreement
nor the benefit of the software or Services may be assigned
or transferred by the User whether voluntarily or involuntarily
or by operation of law, in whole or in part, to any
party without the prior written consent of the ISP.
No such assignment by the User howsoever occurring shall
relieve the User of its obligations hereunder.
13. Notices
Any notice required
or permitted under the terms of this Agreement or required
by statute, law or regulation shall (unless otherwise
provided) be in writing and shall be delivered in person,
sent by registered mail or air-mail as appropriate,
properly posted and fully pre-paid in an envelope properly
addressed or sent by facsimile or e-mail to the respective
parties as follows:
User - With regard
to contact details provided in Subscription Registration
Form or subsequent contact details.
ISP - Address: New Kingston Shopping Centre, 30 Dominica Drive, Shop 24B, Kingston 5
Contact:
Telephone:
Fax:
e-mail address:
or to such other address, facsimile number or e-mail
address as may from time to time be designated by notice
hereunder.
Any such notice shall be in the [English] language and
shall be considered to have been received on the next
working day following delivery, facsimile or e-mailing
or in any other event within [seven (7)] working days
after it was mailed in the manner hereinbefore provided.
14. Agreement
This Agreement
supersedes any arrangements, understandings, promises
or agreements made or existing between the parties hereto
prior to this Agreement and constitutes the entire understanding
between the parties hereto. Except as otherwise provided
herein, no addition, amendment to or modification of
this Agreement shall be effective unless it is in writing
and signed by and on behalf of both parties.
15. Headings
The headings of
the paragraphs of this Agreement are inserted for convenience
of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
16. Severability
In the event that
any or any part of the terms, conditions or provisions
contained in this Agreement shall be determined by any
competent authority to be invalid, unlawful, or unenforceable
to any extent, such term, condition or provision shall
to that extent be severed from the remaining terms and
conditions which shall continue to be valid and enforceable
to the fullest extent permitted by law.
17. Law
The parties hereby
agree that this Agreement shall be governed by and construed
in accordance with the laws of Jamaica and that any
suit, action or proceeding in relation to any claim
dispute or difference which may arise under this Agreement
shall be brought in the Supreme Court of Judicature
of Jamaica or any other local Court having jurisdiction,
and irrevocably and unconditionally submit to the non-exclusive
jurisdiction of the Supreme Court of Judicature of Jamaica.
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