I've stayed at a couple of hotels in the 'Prime' chain (AmeriSuites, Wellesley) and there's a couple of issues with their 'free high-speed internet.'
First is that it's not free and sometimes not high-speed. The 'free' part should be easy to dispute since its listed as such on the hotel web site. However when you arrive you are informed that it's $9.95 a night when you plug into the network. You are informed and have a choice to decline at that time.
The bigger part I have a problem with -- and considerable doubt it could be enforced -- is their license agreement.
I've captured and included it below. Like many agreements and ISPs they make no guarantee for a minimum level of service. If your throughput drops to sub-modem levels, 'oh well' seems to be the attitude of their tech support.
But when I find really interesting is the various parts of the agreement.
Section 2.2 states they can make changes and you have to periodically check on their website. I couldn't find this agreement anywhere on their website. I had to go through the motions of renting another night in order to see the agreement.
Section 7.1(e) states that you may not "post, transmit or link to sexually explicit material."
There go my first amendment rights...
In 7.3 and 7.4 you agree that you are responsible for any data that you recieve or send through the network and that Arescom is in no way liable or responsible.
But in 7.5... well, let me just quote it:
7.5 License Grant. You hereby grant to ARESCOM a nonexclusive,
sublicensable, transferable, royalty-free, worldwide, perpetual license, to
use in any way any ideas or materials that You submit to ARESCOM or in
connection with Your use of the Service.
Any corporate email I send, any documents I ftp, any digital photos I email home, is licensed to them. When I download other copyrighted material that states it cannot be cross-licensed... who's agreement have I violated?
These kinds of agreements are insane.
However, in Arescom's defense, you have the option of declining and not using the service if you disagree.
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Following is Arescom's agreement for using the service.
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PLEASE READ THE FOLLOWING TERMS & CONDITIONS AS THEY CREATE A BINDING
LEGAL CONTRACT BETWEEN YOU AND ARESCOM GOVERNING YOUR USE OF THE ARESCOM
HOSPITALITY NETWORK HIGH-SPEED SERVICE (THE "SERVICE").
THIS AGREEMENT ALSO LIMITS THE LIABILITY OF ARESCOM, THE HOTEL, MOTEL
OR OTHER PROPERTY AT WHICH THIS SERVICE IS ACCESSED (EACH SUCH PROPERTY
TOGETHER WITH ITS OWNERS, MANAGERS AND OPERATORS, THE "PROPERTY").
BEFORE YOU BEGIN USING THE SERVICE, YOU MUST READ ALL OF THESE TERMS AND
CONDITIONS BY CONTINUOUSLY SCROLLING DOWN THROUGH THE ENTIRE DOCUMENT AND
CLICKING THE "I ACCEPT" BUTTON AT THE END. IF YOU DO NOT AGREE TO BE BOUND
BY THE TERMS OF THIS AGREEMENT, CLICK "I DO NOT ACCEPT" AND IMMEDIATE EXIT
AND DISCONTINUE ALL USE OF THE SERVICE.
1. ELIGIBILITY
To register and use the Service You must be at least eighteen (18) years
old. You must register using Your own name and, if requested, You must
provide a credit card account number which is issued in Your name or which
You are authorized to use. Upon completing the registration process for the
Service You will be activated.
2. ACCEPTANCE OF TERMS
2.1 Acceptance. In addition to clicking the "I Accept" button below,
Your use of the Service will constitutes acceptance of this Agreement (any
continued use after the implementation of any revisions to this Agreement
constitutes your acceptance of any such revisions). If at any time You do
not agree to be bound by the terms and conditions herein, or in any
modifications made hereto, You must immediately cease all use of the Service
and cancel Your AHN High Speed Service account. Cancellation of this
Agreement and immediate cessation of Your use of the Service is Your sole
remedy in the event you do not accept the terms of this Agreement.
2.2 Agreement Changes. ARESCOM may revise this Agreement from time to
time in ARESCOM's sole discretion. You are responsible for reviewing the
current version of this Agreement on the Service web site located at
www.arescom.com (the "AHN Website") each time you use the service to
ascertain the current terms and conditions governing Your use of the Service.
Although ARESCOM may from time to time notify you of such revisions, You
acknowledge and agree that ARESCOM has no obligation to do so and that the
provision of any such notice shall not obviate your continued obligation to
independently review the AHN Website for changes to this Agreement as set
forth herein.
3. ARESCOM'S PRIVACY POLICY
3.1 ARESCOM's Use. In order to use the Service, You may be required to
provide ARESCOM and/or the Property certain information about Yourself.
Both personal and aggregate information (e.g., traffic and transactional data
not personally identified with You) may be collected through registration,
tracking and otherwise to improve the Service and better serve You. ARESCOM
and the Property may exchange such information with each other but do not
otherwise currently share such information with third parties, though ARESCOM
reserves the right to do so in the future. You may request to review or make
changes or deletions to your personal information by contacting ARESCOM at
www.arescom.com. Additional terms and conditions regarding ARESCOM's use of
collected information may be set forth in ARESCOM's then current Privacy
Policy, available at www.arescom.com, which ishereby incorporated herein
by reference.
3.2 Third Party Use. Third parties sites that may be accused through the
AHN High Speed Service ("Third Party Sites") may collect personal information
about You. Depending on the terms and conditions applicable to such sites,
if any, such third parties may use or disclose Your personal information for
any purpose in their discretion. In any event, any use or disclosure of Your
personal information by such third parties is not governed by this Agreement,
and neither ARESCOM nor the Property, shall not be liable in any way for any
such use or disclosure. You are solely responsible for review all third party
privacy policies or other terms and conditions which may govern a third party's
use of Your personal information.
4. SECURITY
You are solely responsible for all use of Your Service account and for the
security of Your identification codes passwords, Your files and file name(s)
and any other information You disseminate through use of the Service or
through other Internet services. Therefore, it is Your responsibility to
secure Your computer equipment so that only authorized users can gain access
to Your Service account. You may not permit others to use Your Service
account. You agree to: (a) immediately notify ARESCOM of any unauthorized use
of Your service or any other breach of security; and (b) ensure that You exit
from Your service at the end of each session.
5. PAYMENT
5.1 Access Service Fees. The fees for the Service (the "Service Fees"),
if any, may be set forth on the service registration pages, or other AHN
Website pages, and/or available at the front desk of the Property. Your
access and use of the Service is subject to payment of the Service Fees (and
compliance with all other terms an conditions set forth herein.) ARESCOM and
the Property reserve the right to change the Service Fees at any time with or
without notice in their sole discretion.
5.2 Monthly Access. [Service is provided and charged on a daily basis
unless you are specifically advised by ARESCOM that a longer service term
is available.] All Fees for service longer than one (1) month in duration
are due one (1) month in advance of your use of the Service. Thus Your first
charge for such service will begin Your billing cycle. At the end of the
first month You will be charged again for the next month in advance unless
You terminate the service. Monthly recurring charges are not prorated.
Partial credit is not given to customers who change their price plan to
another price plan, disconnect, cancel or are suspended from the service
during a billing month.
5.3 Method of Payment. Payment for the service must be made by a
qualifying credit card unless the Property has provided you with a pre-paid
AresCard? access card or has otherwise specifically agreed to bill You for
the Service on your hotel/motel bill ("Hotel Statement Billing"). ARESCOM
and/or the Property, as applicable, may require payment in advance of your
use of the AHN High-Sped Service. All payments shall be made pursuant to the
terms of any additional pricing and other information relating to the service,
made available available during the registration process, or on the AHN Web
Site, which is hereby incorporated by reference in this Agreement.
5.4 Credit Card Billing.
(a) You authorize ARESCOM to charge any amounts payable by You in
connection with Your use of the Service automatically to the credit card You
provided in the registration process or such credit card number You provide
thereafter, subject to the terms and conditions of the agreement between You
and Your credit card issuer.
(b) It is Your responsibility to update the credit card information
that You use to pay for the Service. If You bill Your use of Service to Your
credit card, Your right to use the service is subject to any limits
established by Your credit card issuer. ARESCOM may also make other billing
options available. If ARESCOM makes other billing options available You
agree to abide by terms and conditions applicable to those options.
6. RIGHTS AND RESPONSIBILITIES OF ARESCOM
6.1 Ownership; Limited License. All intellectual property rights,
trademarks, service marks and logos described in or relating to the Service
or the AHN Website are owned by ARESCOM, the Property, and/or their respective
licensors. ARESCOM hereby grants You a nonexclusive, nontransferable,
nonsublicensable, limited license to use the Service solely for Your personal
non-commercial use. You agree not to resell the Service or use of or access
to the Service.
6.2 Content. ARESCOM does not pre-screen services, information, data,
text, messages, postings, or other materials including links to other sites
("Content") accessed through the Service. ARESCOM and its designees shall
have the right (but not the obligation) to monitor any and all traffic routed
through the Service, and in their sole discretion to refuse, block, move or
remove any Content that is available via the Service. Without limiting the
foregoing, ARESCOM shall have the right to remove any Content that violates
this Agreement or is otherwise objectionable, in ARESCOM's sole discretion.
You agree that You must evaluate, and bear all risks associated with, the use
of any Content, by whomever provided, including any reliance on the accuracy,
completeness, or usefulness of such Content.
6.3 Third Party Sites and Services. ARESCOM shall not be liable for any
loss or damage of any sort incurred as the result of any interaction between
You and any vendor or other third party whose products, services and/or site
is accessible through the AHN Web Site or the Service. Such matters,
including, without limitation, your access of, correspondence with, or
participation in promotions of such third parties, including payment and
delivery of related goods or services, and any other terms, conditions,
warranties or representations associated with such interactions, are solely
and strictly between You and the vendor. You hereby agree to defend,
indemnify and hold ARESCOM, the Property and their respective agents harmless
from and against any claims, suits, damages liabilities or expenses incurred
in connection with in connection with Your access to such vendors and third
parties.
6.4 Law Enforcement Obligations. ARESCOM cooperates fully with federal
and state enforcement officials investigating unlawful behavior on Service's
system, and You are required to do the same. You acknowledge and agree that
ARESCOM may preserve Content and may disclose Content if required to do so by
law or in the good faith belief that such preservation or disclosure is
reasonably necessary to: (a) comply with legal process; (b) enforce this
Agreement; (c) respond to or address claims that any Content violates the
rights of third-parties; or (d) protect the rights, property or personal
safety of ARESCOM, its users and the public.
7. ADDITIONAL USER RESPONSIBILITIES
7.1 Representations. You represent and warrant that You meet ARESCOM's
requirements, as set forth herein or on the AHN Website, regarding eligibility,
payment, and Your e-mail I.D., and that You will preserve ARESCOM's rights and
the rights of others. In addition, You represent and warrant that you will
not:
(a) print or download material from the Service except for Your own
personal non-commercial purposes;
(b) alter any aspect of the Service;
(c) violate the terms and conditions of third parties who provide You
with materials, including Software;
(d) post or transmit any material You do not have the right to transmit,
including without limitation: (i) under law (such as copyright, trade secret
or securities laws, or laws regarding proprietary rights); or (ii) under
contractual or fiduciary relationships with, including without limitation,
Your employer (such as nondisclosure or proprietary rights agreements);
(e) post, transmit or link to sexually explicit material;
(f) post or transmit any file that contains viruses, corrupted files or
any other files that may damage a third party's computer or computer network;
or
(g) violate any other applicable law or regulation while accessing and
using the Service or the AHN Website.
7.2 Third Party Claims. ARESCOM and third parties who contribute to the
Service may bring claims against You for violations of this Agreement.
7.3 Responsibility for Content. You acknowledge and agree that ARESCOM
does not have control over what may be accessible through the Service and
that You are responsible for protecting Yourself from harmful, inaccurate,
or offensive information, etc. You understand and agree that by using the
Service, You may be exposed to Content that is offensive, indecent, sexually
explicit or objectionable. By registering for and accessing the Service You
understand and agree that all Content, whether publicly posted or privately
transmitted, are the sole responsibility of the person(s) from whom such
Content originated. Therefore, You, and not ARESCOM, are entirely responsible
for all Content that You access, view, upload, post, or otherwise transmit
via the Service. ARESCOM does not control the Content posted via the Service
and, as such, does not guarantee the accuracy, integrity or quality of such
Content.
7.4 Transmission. You understand that the technical processing and
transmission of the Service, including Your Content, may involve: (a)
transmissions over various networks; and (b) changes to conform and adapt to
technical requirements of connecting networks or devices, and that under no
circumstances will ARESCOM be liable in any way for any Content, including,
but not limited to, any errors or omissions in any Content, or any loss or
damage of any kind incurred as a result of the use of any Content posted or
otherwise transmitted via the Service.
7.5 License Grant. You hereby grant to ARESCOM a nonexclusive,
sublicensable, transferable, royalty-free, worldwide, perpetual license, to
use in any way any ideas or materials that You submit to ARESCOM or in
connection with Your use of the Service.
7.6 Non-Interference. You shall not interfere with or disrupt: (a) the
use and enjoyment of the Services by other users; or (b) the Services or
servers or networks connected to the Service (including, without limitation,
any attempt to gain unauthorized access to other computer systems or networks
connected to the Service).
7.7 Third Party Restrictions. Please note, there may be additional use
and distribution restrictions imposed by third parties with respect to: (a)
Content and/or services available on third party web sites accessible through
the Service; and (b) Content and/or services provided by ARESCOM's third party
vendors and suppliers as part of the Service made available by ARESCOM. You
are responsible for carefully reviewing and abiding by any applicable terms
and conditions imposed by such parties.
7.8 Report of Abuse. You agree to report any violations of this Agreement
by other users of the Service of which you become aware by contacting ARESCOM
at www.arescom.com.
8. DISPUTE RESOLUTION
8.1 SELECTION OF ARBITRATION. IT IS IMPORTANT THAT YOU READ THIS ENTIRE
SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH
FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A
COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU CONTINUE TO HAVE
CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY.
8.2 Binding Arbitration. The arbitration process established by this
section is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. ?? 1-16.
You have the right to take any dispute that qualifies to small claims court
rather than arbitration. All other disputes arising out of or related to this
Agreement (whether based in contract, tort, statute, fraud, misrepresentation
or any other legal or equitable theory) must be resolved by final and binding
arbitration. This includes any dispute based on any product, service or
advertising having a connection with this Agreement and any dispute not
finally resolved by a small claims court. The arbitration will be conducted
by one arbitrator using the procedures described by this Section. If any
portion of this Dispute Resolution Section is determined to be unenforceable,
then the remainder shall be given full force and effect.
8.3 Consumer Arbitration Rules. The arbitration of any dispute involving
$10,000 or less shall be conducted in accordance with the Consumer Arbitration
Rules of the American Arbitration Association ("AAA"), as modified by this
Agreement, which are in effect on the date a dispute is submitted to the AAA.
The AAA's Commercial Arbitration Rules and fee schedules will apply to any
disputes in excess of $10,000. You have the right to be represented by counsel
in arbitration. In conducting the arbitration and making any award, the
arbitrator shall be bound by and strictly enforce the terms of this Agreement
and may not limit, expand, or otherwise modify its terms.
8.4 NO JOINDER OR CLASS ACTION. NO DISPUTE MAY BE JOINED WITH ANOTHER
LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED
ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE NOT
EXPRESSLY AUTHORIZED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR
ATTORNEYS' FEES, UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A STATUTE.
YOU AND ARESCOM BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE
EXCLUDED UNDER THIS AGREEMENT. NOTHING IN THIS AGREEMENT LIMITS THE
ARBITRATOR'S AUTHORITY TO AWARD DAMAGES THAT ARE THE DIRECT RESULT OF
ARESCOM'S WILLFUL MISCONDUCT.
8.5 Injunctive Relief. Notwithstanding the foregoing, You agree that
ARESCOM would be irreparably harmed by the use of the Service in violation
of this Agreement, including without limitation violation of ARESCOM's
intellectual property rights, and that ARESCOM shall be entitled to obtain
injunctive relief to prevent such uses. Such remedy shall not be deemed to
be an exclusive remedy, but shall be in addition to all other remedies
available at law or in equity.
8.6 EXPIRATION OF CLAIMS. ANY CLAIM OR DISPUTE ARISING OUT OF OR
RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE
DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES.
8.7 Arbitration Information and Filing Procedures. Before You take a
dispute to arbitration or to small claims court, You must first contact
ARESCOM's customer account representatives at the customer service number
on Your ARESCOM bill for the services, or write to ARESCOM at Service,
____________________ and give ARESCOM an opportunity to resolve the dispute.
Similarly, before ARESCOM takes a dispute to arbitration, ARESCOM must first
attempt to resolve it by contacting You. If the dispute cannot be
satisfactorily resolved within sixty days from the date You or ARESCOM is
notified by the other of a dispute, then either party may then contact the
AAA in writing at AAA Service Center, 134555 Noel Road, Suite 1750, Dallas,
Texas 75240-6620 and request arbitration of the dispute. Information about the
arbitration process and the AAA's Arbitration Rules and its fees are available
from the AAA on the Internet at http://www.adr.org/, or by contacting ARESCOM
at http://www.arescom.com or AHN High Speed Service, 3541 Gateway Blvd,
Fremont, CA 94538. The arbitration will be based only on the written
submissions of the parties and the documents submitted to the AAA relating to
the dispute, unless either party requests that the arbitration be conducted
using the AAA's telephonic, on-line, or in-person procedures. Additional
charges may apply for these procedures. Any in-person arbitration will be
conducted at a location that the AAA selects in Alameda County, California.
Any arbitration shall remain confidential. Neither You nor ARESCOM may
disclose the existence, content or results of any arbitration or award,
except as may be required by law, or to confirm and enforce an award.
8.8 Fees and Expenses of Arbitration. You must pay the applicable AAA
filing fee when You submit Your written request for arbitration to the AAA.
The AAA's filing fee and administrative expenses for a document arbitration
will be allocated according to the AAA's Rules, except that for claims of
less than $1,000, You will only be obligated to pay a filing fee of $20 and
ARESCOM will pay all of the AAA's other costs and fees. If You elect an
arbitration process other than a document (or "desk") arbitration, You must
pay Your allocated share of any higher administrative fees and costs for the
process You select. Unless applicable substantive law provides otherwise,
each party will pay its own expenses to participate in the arbitration,
including attorneys' fees and expenses for witnesses, document production
and presentation of evidence. The prevailing party may, however, seek to
recover the AAA's fees and the expenses of the arbitrator from the other
party.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the date You register for
the Service and shall continue for the term specified during the registration
process.
9.2 Termination. ARESCOM reserves the right to cancel or suspend this
Agreement without refund and without notice for any reason at any time. You
are entitled to cancel this Agreement upon proper written notice, provided
You immediately cease all use of or access to the Service upon giving such
notice. Upon termination or expiration of this Agreement for any reason, You
will immediately cease Your use of and access to the Service. Neither party
shall be liable to the other party for any liabilities or damages arising out
of the termination or expiration of this Agreement in accordance with its
terms.
9.3 Cancellation Fee. You agree that if You cancel this Agreement and
terminate Your use of the Service before the expiration of any service period
at least six (6) months in duration, You will pay one hundred dollars ($100)
to ARESCOM for such early termination. In addition, upon such termination,
You will continue to owe all amounts due and payable to ARESCOM as of the
date the notice of termination is received by ARESCOM.
9.4 Re-registration. If ARESCOM cancel Your account or terminate this
Agreement for any reason, You agree not to reregister for or use the Service
without ARESCOM's written permission. You agree that Your reregistration for
the Service following the suspension or cancellation of Your account by
ARESCOM without receiving written permission from ARESCOM will result in a
charge to Your account of up to five hundred dollars $500 as well as
termination of Your account.
9.5 Survival. Section 8 (Dispute Resolution), this Section 9.5
(Survival), Section 10 (No Warranties), Section 11 (Limitation of Liability),
and Section 12 (Miscellaneous) will survive termination or expiration of this
Agreement for any reason.
10. NO WARRANTIES
10.1 THIRD PARTY CONTENT. ARESCOM DOES NOT ENDORSE AND IS NOT
RESPONSIBLE FOR: (A) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR
STATEMENT MADE BY ANY PARTY ACCESSIBLE THROUGH USE OF THE SERVICE; (B) ANY
CONTENT PROVIDED ON SITES LINKED THROUGH THE SERVICE; OR (C) THE CAPABILITIES
OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE.
10.2 DISCLAIMER OF WARRANTIES. THE SERVICE AND SOFTWARE ARE PROVIDED ON
AN "AS IS, AS AVAILABLE" BASIS. ARESCOM DOES NOT WARRANT THAT USE OF THE
SERVICE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL
BE CORRECTED. WITHOUT LIMITING THE FOREGOING, ARESCOM, ITS LICENSORS,
SUPPLIERS AND OTHER THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE MAKE NO
EXPRESS OR IMPLIED WARRANTIES, AND ARESCOM HEREBY EXPRESSLY DISCLAIMS ALL
SUCH WARRANTIES (INCLUDING WARRANTIES OF TITLE, NONINFRINGEMENT, AND IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE),
REPRESENTATIONS, OR ENDORSEMENTS REGARDING THE SERVICE, THE SOFTWARE, OR ANY
THIRD PARTY MATERIAL AVAILABLE THROUGH THE SERVICE.
11. LIMITATION OF LIABILITY
11.1 ASSUMPTION OF RISK. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR
YOUR USE OF THE SERVICE AND OF YOUR ACCOUNT. ARESCOM, ITS LICENSORS,
SUPPLIERS AND OTHER THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE ARE NOT
RESPONSIBLE FOR ANY LOSS, DAMAGE OR COST (INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGES) YOU OR ANYONE ELSE USING YOUR ACCOUNT MIGHT INCUR DUE
TO YOUR USE OR INABILITY TO USE THE SERVICE. IF YOU LIVE IN A STATE WHOSE
LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE
SERVICE, ARESCOM'S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY
APPLICABLE LAW.
11.2 LIMITATION. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL ARESCOM'S LIABILITY OR THE LIABILITY OF ITS
LICENSORS, SUPPLIERS, OR OTHER THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE
FOR: (A) INJURY TO PROPERTY OR PERSON CAUSED BY ARESCOM'S NEGLIGENCE,
THE AMOUNT OF DIRECT DAMAGES TO THE PROPERTY OR PERSON; OR (B) ALL OTHER
CLAIMS, ACTIONS OR DAMAGES PERMITTED UNDER THIS AGREEMENT, EXCEED THE FEES
ACTUALLY RECEIVED BY ARESCOM FROM YOU DURING THE AFFECTED PERIOD WHETHER OR
NOT ARESCOM OR SUCH THIRD PARTY IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
11.3 INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS
ARESCOM AND THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE FROM ANY LOSS,
DAMAGE, OR COST (INCLUDING ATTORNEYS' FEES) RESULTING FROM YOUR VIOLATION OF
THIS AGREEMENT OR ANY ACTIVITY RELATED TO YOUR USE OF THE SERVICE.
12. MISCELLANEOUS
12.1 Law. This Agreement shall be governed by the laws of the State of
California, and applicable federal law, without regard to conflict of laws
provisions. The parties hereby agree that all disputes relating to this
Agreement or Your use of the Service shall be resolved, whether by
arbitration or otherwise, in Alameda County, California. The parties hereby
submit to the personal jurisdiction of, and agree that venue is proper in,
the state and federal courts located in Alameda County, California.
12.2 Assignment. ARESCOM may assign ARESCOM's rights and duties under
this Agreement to others at any time without notifying You. You may not
assign Your rights and duties under this Agreement to others.
12.3 Interpretation. The words of this Agreement, not the conduct
between us or any trade practice, will control the interpretation of this
Agreement. ARESCOM's decision not to enforce a particular provision of this
Agreement does not mean that ARESCOM waives the right to enforce it. ARESCOM
will only waive such a right in writing.
12.4 Entire Agreement. This Agreement, the Privacy Policy (if applicable)
and any terms reference in this Agreement constitute the entire agreement
between You and ARESCOM with respect to Your use of the Service and supercede
all prior or contemporaneous agreements (whether written, oral, or electronic)
between You and ARESCOM.
12.5 Severability. If any of the provisions of this Agreement are
determined to be invalid or unenforceable, then each invalid or unenforceable
provision will be construed in a manner consistent with applicable laws to
reflect, as nearly as possible, the original intentions of the parties, and
the remaining provisions shall remain in full force and effect.
12.6 Basis of Bargain. The limitations of liability and disclaimer of
warranties contained herein form a material part of the basis of bargain for
the pricing and terms and conditions related to the Service and, therefore,
are an essential part of this Agreement.
Terms and Conditions. Copyright 2002-2003. ARESCOM. All Rights Reserved.
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