1.1 The Vineyard.Networks Service ("VNI Service"), operated by Vineyard.Net, Inc. ("VNI"), is a computer online, interactive information, communication and transaction service. The VNI Service is available to an authorized member (hereinafter referred to as "Member," "Members," when used collectively or "You") through a personal membership account ("Membership"); it is accessible through a personal computer, or other access device, using telecommunications or networking software (e.g. the software used to connect to the VNI Service) and a communications connection (e.g., modem, telephone line).
1.2 Please read this document carefully. Please also read the VNI Acceptable Use Policy ("AUP") and the Acceptable Use Policy on personal.vineyard.net. This document, the VNI AUP and personal's AUP, are all of the applicable VNI Service rules. (They collectively comprise the contract between VNI Inc. and Members and are collectively referred to as the "Terms of Service" or "TOS"). You can view all of the documents on the VNI Service Agreements at any time on our web page.
1.3 BY COMPLETING THE ENROLLMENT PROCESS AND USING THE VNI SERVICE, YOU AGREE TO BE LEGALLY BOUND AND TO ABIDE BY THE TERMS OF SERVICE, JUST AS IF YOU HAD SIGNED THIS AGREEMENT. If You do not wish to be bound by our TOS, You may not continue to use the VNI Service. In that case, You should immediately terminate your Membership account.
1.4 VNI may modify its TOS at any time and in any manner. Any modification is effective immediately upon either a posting on the VNI Service, electronic mail, or conventional mail. If any modification to the TOS is unacceptable to You, You may immediately terminate your Membership as provided in Section 7 below. YOUR CONTINUED USE OF THE VNI SERVICE FOLLOWING MODIFICATION TO THE TOS SHALL BE CONCLUSIVELY DEEMED AS ACCEPTANCE OF SUCH MODIFICATION.
1.5 The Terms of Service Agreement, VNI's AUP, and Personal's AUP together constitute the entire and only agreement between VNI and Member with respect to the VNI Service. VNI may discontinue or alter any aspect of the VNI Service, including, but not limited to, (i) restricting the time of availability, (ii) restricting the availability and/or scope of the VNI Service for certain platforms (i.e., computer types and operating systems), (iii) restricting the amount of use permitted, and (iv) restricting or terminating any Member's right to use the VNI Service, at VNI's sole discretion and without prior notice or liability. VNI reserves the right to change or add any fees or surcharges at any time effective upon thirty (30) days' prior notice.
2.1 Connect Charges.
Member is responsible for all charges (e.g., telephone) associated with connecting to the VNI Service through our access number. THE ACCESS NUMBER IS A LOCAL TELEPHONE CALL ONLY ON THE ISLAND OF MARTHA'S VINEYARD.
2.2 Equipment.
Member is responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modem), or other access device, necessary to access the VNI Service. VNI's agreement with our Resellers requires that they assist with and/or resell to you any necessary hardware or software. Additional fees for such services are applicable at the discretion of the individual Reseller.
2.3. Registration.
MEMBER CERTIFIES TO VNI THAT HE/SHE IS AN INDIVIDUAL (E.G., NOT A CORPORATION) AND AT LEAST EIGHTEEN (18) YEARS OF AGE. VNI may, at its discretion, enter into special billing arrangements with employers and other entities. A minor's parent or legal guardian may authorize a minor's use of Member's account under adult supervision and with assumption of all liabilities resulting from minor's use. MEMBER AGREES TO PROVIDE VNI WITH ACCURATE, COMPLETE, AND UPDATED INFORMATION REQUIRED BY THE REGISTRATION TO THE VNI SERVICE, including Member's legal name, address, telephone number(s), and applicable payment data (i.e., credit card number and expiration date or checking account information). Member agrees to notify either VNI or their account Reseller within thirty (30) days of any changes or make those modifications yourself via our account information web page. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use the VNI Service.
2.4 Passwords/Payment.
(a) Passwords.
Upon your enrollment as a Member, You will select a unique password. Member is responsible for maintaining the confidentiality of his/her password and is liable for any harm resulting from disclosing or allowing disclosure of any password. Member may change their password at any time via our password web page. In the event of a breach of security, Member will remain liable for any unauthorized use of the VNI Service until Member notifies VNI by calling 1-508-696-6688.
(b) Payment.
Current rates for using the VNI Service may be obtained by calling VNI or by reading our rates web page. Member will pay all sales, use, value-added, personal property or other governmental tax or levy imposed on the services billed to his/her Account(s). If VNI does not receive the full amount of Member's VNI Service account balance within thirty (30) days of invoice date, an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month late charge will be added to Member's bill and shall be due and payable. Member shall also be liable for all attorney and collection fees arising from VNI's efforts to collect any unpaid balance of Member's Account(s).
2.5 Online Conduct.
Any conduct by a Member that in VNI's discretion restricts or inhibits any other Member from using or enjoying the VNI Service will not be permitted. Member agrees to use the VNI Service only for lawful purposes. Member is prohibited from posting on or transmitting through the VNI Service any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law. Further details of acceptable conduct is specified in VNI's Acceptable Use Policy.
2.6 Content
(a) Proprietary Rights.
Member acknowledges that the VNI Service contains information, software, photos, video, graphics, music, sounds or other material (collectively, "Content") that are protected by copyrights, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is copyrighted as a collective work under the U.S. Copyright laws, and VNI owns a copyright in the selection, coordination, arrangement and enhancement of such Content. Member may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part. If no specific restrictions are displayed, Member may make copies of portions of the Content, including copyrighted material, trademarks, or other proprietary materials, provided that the copies are made only for Member's personal use and that Member maintains any notices contained in the Content such as all copyright notices, trademark legends or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the U.S. copyright laws (see e.g. 17 U.S.C. Section 107), You may not upload, post, reproduce, or distribute Content protected by copyright, or other proprietary right, without obtaining permission of the copyright owner. Use of any software Content shall be governed by the software license agreement accompanying such software or, if none exists, then such use shall be proscribed by the terms governing licensing and use of the VNI Software as provided in Section 6 herein.
(b) Distribution/Uploading of Third Party Content.
Member may upload to their web pages or otherwise distribute on the VNI Service only Content that is not subject to any copyright or other proprietary rights protection (collectively, "Public Domain Content"), or Content in which the author has given express authorization for on-line distribution. Any copyrighted Content submitted with the consent of a copyright owner should contain a phrase such as "Copyright owned by [name of the owner]; Used by Permission." The unauthorized submission of copyrighted or other proprietary Content constitutes a breach of the TOS and could subject You to criminal prosecution as well as personal liability for damages in a civil suit. Remember You, not VNI or its independent contractors, are liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm arising from such submission. By submitting Content to any "Public Area" (Public Area(s) are those areas of the VNI Service that are generally accessible to other Members, such as chat scripts) You automatically grant, or warrant that the owner of such Content has expressly granted, VNI the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute the Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such Content. You also permit any Member to access, view, store or reproduce the Content for that Member's personal use. Subject to this grant, the owner of Content placed on the VNI Service retains any and all rights which may exist in such Content.
VNI will not tolerate the presence of illegal software, serial numbers, or tools that have no other purpose than to crack software on our members' home pages. If we become aware of the presence of such materials on our members' home pages, we will alert those members and ask them to remove that data. Lack of cooperation in such matters is grounds for termination of service.
(c) Export.
The U.S. export control laws regulate the export and re-export of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. Member agrees to abide by these laws -- including but not limited to the Export Administration Act, the Arms Export Control Act and their implementing regulations -- and not to transfer, by electronic transmission or otherwise, any Content derived from the VNI Service to either a foreign national or a foreign destination without first obtaining any required government authorization. Member further agrees not to upload to the VNI Service any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of the Agreement. In addition, because the U.S. export control laws currently prohibit nationals of Cuba, Iran, Libya, North Korea and Syria from gaining access to certain Content on the VNI Service, nationals of these countries currently may not legally access the VNI Service at this time.
(d) Benefit of Provisions.
The foregoing provisions of this section 2.6 are for the benefit of VNI and its independent third-party information providers ("Information Providers"), merchants ("Merchants") and licensors ("Licensors"), and each shall have the right to assert and enforce such provisions directly on their own behalf.
2.7 Third Party Content.
VNI is a distributor (and not a publisher) of Content supplied by third parties and Members. Accordingly, VNI has no more editorial control over such Content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including Information Providers, Merchants (as defined herein), Members, or any other user of the VNI Service, are those of the respective author(s) or distributor(s) and not of VNI NEITHER VNI NOR ANY THIRD-PARTY PROVIDER OF INFORMATION GUARANTEES THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY CONTENT, NOR ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. (Refer to Section 5 below for the complete provisions governing limitation of liabilities and disclaimers of warranty.)
In many instances, the Content available through the VNI Service represents the opinions and judgments of the respective Information Provider, Member, or other user not under contract with VNI VNI neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the VNI Service by anyone other than authorized VNI employee spokespersons while acting in their official capacities. (Forum leaders and Member Guides are not authorized spokespersons.) Under no circumstances will VNI be liable for any loss or damage caused by a Member's reliance on information obtained through the VNI Service. It is the responsibility of Member to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other Content available through the VNI Service. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice, or other Content.
2.8 Retention of Files.
Member is responsible for retention of all files, information data and other materials as may be necessary for reconstruction of any files, information material or messages lost or misprocessed by VNI.
3.1 Member may order and purchase merchandise or services from other Members and users of the VNI Service, who are not affiliated with VNI. All transactions concerning third-party ("Merchant") goods or services, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between Merchant and Member. VNI makes no warranties or representations whatsoever with regard to any good or service provided or offered by any Merchant. VNI shall not be a party to a transaction between Member and Merchant, or be liable for any cost or damage arising either directly or indirectly from any action or inaction of any Merchant.
4.1 VNI may elect to electronically monitor the Public Areas for adherence to its TOS and may disclose any Content, records or electronic communication of any kind (i) to satisfy any law, regulation or authorized governmental request, (ii) if such disclosure is necessary to operate the VNI Service, or (iii) to protect the rights or property of VNI, its Members, or Information Providers or Merchants.
4.2 VNI reserves the right to prohibit conduct, communication, or Content which it deems in its discretion to be harmful to individual Members, the communities which make up the VNI Service, VNI's or other third-party rights, or to violate any applicable law. Notwithstanding the foregoing, neither VNI nor its Information Providers have the practical ability to restrict conduct, communication or Content which might violate its TOS prior to transmission on the VNI Service, nor can they ensure prompt editing or removal of questionable Content after on-line posting. Accordingly, neither VNI nor any Information Provider shall assume liability for any action or inaction with respect to conduct, communication or Content on the VNI Service.
4.3 VNI will not intentionally monitor or disclose any private electronic communication unless permitted or required by law. VNI may terminate immediately without notice any Member who misuses or fails to abide by the TOS, including, without limitation, misuse of the software libraries, e-mail, or WWW space.
5.1 MEMBER EXPRESSLY AGREES THAT USE OF THE VNI SERVICE IS AT MEMBER'S SOLE RISK. NEITHER VNI, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE VNI SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE VNI SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE VNI SERVICE.
5.2 THE VNI SERVICE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY 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. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY VNI, ITS EMPLOYEES, AGENTS (INCLUDING MEMBER REPRESENTATIVES OR GUIDES), THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL MEMBER RELY ON ANY SUCH INFORMATION OR ADVICE.
5.3 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL VNI, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE VNI SERVICE OR THE VNI SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE VNI SERVICE INCLUDING, BUT NOT LIMITED TO, RELIANCE BY A MEMBER ON ANY INFORMATION OBTAINED ON THE VNI SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE,WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO VNI'S RECORDS, PROGRAMS OR SERVICES. MEMBER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH 5.3 SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE VNI SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES VNI'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
5.4 NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE TOTAL LIABILITY OF VNI, OR ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS OR LICENSORS, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY MEMBER TO VNI IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
The foregoing provisions of this Section 5 are for the benefit of VNI, its employees, directors, affiliates, agents, Information Providers, Merchants and Licensors, and each shall have the right to assert and enforce the provisions directly on their own behalf.
6.1 Upon request of VNI, Member agrees to defend, indemnify and hold harmless VNI its officers, directors, employees, agents, third party Information Providers, Merchants and Licensees, from any claims and expenses, including reasonable attorney's fees, related to any violation of the TOS by use of Member's Account(s), or in connection with the placement or transmission by or through Member of any Content on the VNI Service and its third party Information Providers, Merchants and Members.
7.1 Either Member or VNI may terminate Membership at any time. Member's only right with respect to any dissatisfaction with any (i) TOS term or policy, guideline, or practice of VNI in operating the VNI Service, (ii) Content available through the VNI Service or change therein, or (iii) change in the amount or type of fees charged in connection with the VNI Service, is to terminate Membership by delivering notice to VNI, effective the day VNI receives notification of termination or such specified future date as may be acceptable to VNI. In the event that a Member's Account is terminated or canceled, any online time credited to Member's Account(s) is not convertible to cash or other form of credit.
7.2 VNI may terminate Membership, or suspend any individual Member's access to all or part of the VNI Service, without notice, for any conduct that VNI in its sole discretion believes violates the TOS, interferes with another Member's enjoyment of the VNI Service, or is harmful to another Member, third-party Information Provider, Merchant, Licensor, service provider or VNI's interests.
7.3 Upon termination of Membership, Member shall have no right to (1) access any stored Content on the VNI Service and any such Content will be forfeited, (2) third-party merchandise or services and VNI shall have no responsibility to notify any third-party Merchants, nor for any consequences resulting from lack of notification. In the event of Termination, Member remains bound by Sections 2, 5, 6, and 8 herein.
8.1 Construction.
In the event that any portion of the TOS is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the TOS shall remain in full force and effect. The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of the TOS.
8.2 No Implied Waiver/Modification.
The failure of either party to insist upon or enforce strict performance by the other party of any provision of the TOS shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of the TOS.
8.3 Applicable Law.
The TOS shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, except with regard to its conflicts of law rules. Each party irrevocably consents to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and the federal courts situated in the Commonwealth of Massachusetts in connection with any action arising under the TOS or relating to the VNI Service or VNI Software. Any cause of action of Member or its authorized user(s) with respect to the VNI Service or VNI Software must be commenced within one (1) year after the claim or cause of action arose, or be barred.
8.4 Trademarks.
"Vineyard.NET (R)" is a registered service mark of VNI. All rights reserved. All other trademarks appearing on the VNI Service are the property of their respective owners.