The packet(s) accompanying this agreement hold one or more disks containing computer programs in object code form (the "Software") designed to enable your personal computer to access the Internet with MCI's Internet access service (the "Service"). MCI Telecommunications Corporation ("MCI") provides the Software you are about to install and its accompanying documentation (the "Documentation") subject to your compliance with these terms and conditions (collectively, the "Agreement"). PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE OPENING THE PACKET(S) CONTAINING THE DISK(S) AND ATTEMPTING TO INSTALL THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THESE TERMS, RETURN THE COMPLETE PACKAGE (DISK(S) AND DOCUMENTATION) FOR A FULL REFUND. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED FOR USE (i) ONLY WITH THE SERVICE AND (ii) ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. NO RIGHT OR LICENSE IS GRANTED TO USE THE SOFTWARE OR DOCUMENTATION WITH ANY OTHER INTERNET OR INTRANET ACCESS.
SOFTWARE LICENSE -- You must agree to the terms and conditions in the following software license before using the Software and/or Documentation.
Subject to the provisions contained herein and, if applicable, payment of any license fees, MCI hereby grants to you a non-exclusive license to use the Software and Documentation for your own internal purposes. Such Software and Documentation are protected by the copyright laws of the United States and international copyright treaties. You may use the Software and Documentation only in conjunction with validly licensed copies of the Microsoft operating system products [e.g., Windows® 95, Windows NT® ] and only with the Service. You assume responsibility for the selection of the Software and the Service to achieve your intended results, and for the installation, use, and results obtained by the Software and the Service. Except as expressly stated in this Agreement, you may not copy the Software. You may copy, install and use the Software on one computer at a time. You may not place the Software on a network and you may not lend, rent, lease, or otherwise transfer the Software. You may make one copy of the Software for archival and backup purposes only. Any copy made by you shall be subject to this Agreement and shall contain all notices regarding copyrights, trademarks, and other proprietary rights as contained in the copy originally provided to you. You acknowledge that the Software in source code form remains a confidential trade secret of MCI and/or its licensors and therefore you agree not to attempt to decipher, decompile, disassemble or reverse engineer the Software or allow others to do so, except and only to the extent applicable laws specifically prohibit such restriction. You further agree not to modify or create derivative works of the Software. IF YOU VIOLATE ANY OF THE FOREGOING, YOUR LICENSE IMMEDIATELY AND AUTOMATICALLY IS TERMINATED. In addition, your rights under this Agreement automatically terminate upon the termination of your Service account or the termination of your Microsoft operating system product license.
All title, ownership rights, copyright and other intellectual property rights in and to the Software and Documentation shall remain in MCI and/or its licensors. The Agreement does not grant to you the right to sub-license the Software and is personal to you and therefore may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of MCI. This license does not grant you any right to any enhancement or update to the Software and Documentation. Enhancements and updates, if available, may be obtained by you at MCI's then-current standard pricing, terms and conditions. Title, ownership rights, copyright and other intellectual property rights in and to the content accessed through the Software and the Service are the property of the applicable content owner and may be protected by copyright or other law. This License gives you no rights to such content. This license is effective until terminated. It may terminate automatically, as provided above, or you may terminate it by returning the disk(s) to MCI Telecommunications Corporation, PO Box 4657, Iowa City, IA 52244-4657. In addition, MCI may terminate this license at any time if you fail to comply with any of its terms or conditions. Immediately upon any termination, you agree to destroy the Software and the Documentation and all copies, modifications, and merged portions in any form.
In the event the Software is determined to be or, in MCI's view, is likely to be found to be infringing third party proprietary or intellectual property rights, MCI will, at its sole option and its expense, either procure for you the right to continue using the Software or replace or modify the Software so that it becomes non-infringing. If, in MCI's sole opinion, neither option is desirable, MCI may terminate this license. In such event you agree to immediately cease all use of the Software and to return all copies of the Software to MCI at the address stated herein. THE REMEDIES STATED IN THIS PARAGRAPH ARE YOUR SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF INFRINGEMENT. IN NO EVENT SHALL MCI OR ANY OTHER ENTITY BE LIABLE FOR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER.
U.S. GOVERNMENT RESTRICTED RIGHTS: The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the government is subject to restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Restricted Rights clause at 48 CFR 52.227-19 or in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, as applicable. Contractor/Manufacturer is MCI Telecommunications Corporation or an affiliate, 1801 Pennsylvania Avenue, NW, Washington, D.C. 20006.
Export Control: You may not download or otherwise export or re-export the Software or Documentation or any underlying information or technology except in full compliance with all United States and other applicable laws.
NO SOFTWARE OR SERVICE WARRANTY
THE SOFTWARE AND THE SERVICE ARE PROVIDED "AS IS" AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER MCI NOR ITS LICENSORS MAKE ANY WARRANTY OR OTHER REPRESENTATIONS TO YOU, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE, REGARDING THE SOFTWARE OR THE SERVICE.
DISCLAIMER OF DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MCI OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGE, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. MCI'S AND ITS LICENSORS' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL NOT EXCEED THE PRICE YOU PAID TO MCI FOR THE SOFTWARE.
USE OF THE INTERNET AND THE MCI SERVICE
You understand that you may access both the Internet and particular MCI and third-party services on the Internet through the Software. You understand that, except for information, products or services clearly identified as being supplied by MCI, neither MCI nor any of its affiliates controls any information, products or services on the Internet in any way, and that, except for MCI-identified information, products or services, all merchandise, information and services offered or made available or accessible are offered or made available or accessible by third parties who are not affiliated with MCI or its affiliates.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE INTERNET THROUGH THE SOFTWARE AND THE SERVICE. NEITHER MCI NOR ITS AFFILIATES OR LICENSORS MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE OR ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH ANY MCI SERVICE OR ON THE INTERNET AND THEY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED ON THE INTERNET. YOU UNDERSTAND FURTHER THAT THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOU ACCESS SUCH MATERIALS AT YOUR OWN RISK. MCI HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
UNDER NO CIRCUMSTANCES SHALL MCI, ITS AFFILIATES OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OF OR INABILITY TO ACCESS THE INTERNET OR ANY PART THEREOF THROUGH THE SOFTWARE OR THE SERVICE OR YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON THE INTERNET OR THROUGH USE OF THE SOFTWARE OR THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
While using the Software and the Service, you may not: (i) restrict or inhibit any other user from using and enjoying MCI's network, the Service and/or the Internet; (ii) transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation the U.S. export control laws; (iii) transmit any information or software which contains a virus or other harmful component; (iv) transmit or in any way exploit any information, software or other material obtained through the Software or the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material); (v) transmit or distribute in any way information, software or other material obtained through the Software or the Service which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder; (vi) transmit or distribute in any way any component of the Software itself or derivative works with respect thereto; or (vii) effect or participate in any activity in violation of MCI's Policy Against Spamming, including multiple unsolicited emails and off-topic postings. MCI may change its Policy Against Spamming from time to time and you are responsible for keeping aware of any such changes. For more information on MCI's Policy Against Spamming see www.mci.com/aboutmci/news/content/spam.shtml or the successor site to this MCI website.
MCI has no obligation to monitor the Internet or any MCI service on the Internet; however, you agree that MCI has the right to monitor electronically from time to time and to disclose any information as necessary to satisfy any law or other governmental request, to operate its services properly, or to protect itself or its subscribers. MCI reserves the right to refuse to transmit or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement.
CONSUMER INFORMATION
If you make purchases on the Internet or any MCI service on the Internet, you may be asked to supply certain information, including credit card or other information. You agree that all information you provide will be accurate. Information and service providers offering merchandise, information and services on the Internet or through any MCI service set their own prices and may impose fees or change prices at ant time. You agree to pay all charges incurred by users of your account. You also will be responsible for paying any applicable taxes relating to purchases on the Internet. You understand further that sites on the Internet that you visit may have access to certain individual information, such as your name and email address, and may make it available to third parties in accordance with their normal practices unless you notify them that you do not wish such information be made available.
BILLING FOR AND CHANGES TO THE MCI SERVICE
When you register for the Service, you agree to provide MCI with complete and accurate registration information. You also agree promptly to inform MCI of any changes to such information. You agree to pay the current charges in effect from time to time for all use of the Service through your account and any applicable taxes. MCI will bill you on a monthly basis for charges associated with the Service and payment is due upon receipt. A late fee will be assessed if your payment is received more than thirty (30) days after the invoice date. You also will be liable for all attorney and collection fees arising from efforts to collect any unpaid balance on your account(s). If your usage fees for the Service are billed to your credit card and MCI is informed by the issuing bank that your credit card is invalid, your account automatically may be deactivated. In order to prevent any such deactivation or to reactivate your account, you must contact MCI at 1 800- 955-3565 and provide valid card information. If you receive this Service and also long distance service from MCI and do not utilize credit card billing for this Service, if you terminate your long distance service, your must contact MCI at 1 800- 955-3565 within ten (10) calendar days and provide a valid credit card number or MCI may deactivate this Service. If your account is canceled or deactivated for any reason and you do not reactivate it within 180 days, it may be necessary for MCI to require you to establish a new account with a different email address. If your service is deactivated for any reason, including at your request, depending upon the billing plan under which you obtain the Service, you may be charged a full month's monthly recurring fee for the month during which your account is deactivated. MCI may revise the prices, specifications and features of the Service and these terms and conditions for use of the Service at any time without notice. You can obtain current rates for using the Service by at 1 800- 955-3565. If you are dissatisfied with any changes, you may discontinue the Service at any time by notifying MCI at 1 800- 955-3565. MCI may discontinue the Service at any time.
FAILURE TO COMPLY WITH THIS AGREEMENT
In addition to any other available remedies, MCI may suspend your access to and/or terminate your account for this Service or any MCI service relating to the Internet immediately and without notice if you engage in any conduct or activities that MCI, in its sole discretion, believes are for any improper or illegal purpose or a purpose that, in MCI's sole discretion, otherwise may compromise the integrity of or abuse the Service, MCI's network or the Internet or if you otherwise violate any of the terms and conditions of this Agreement, including without limitation MCI's Policy Against Spamming. If MCI terminates your account or denies you access to any service, you shall have no right (1) to access through MCI any materials stored on the Internet, (2) to obtain any credit(s) otherwise due to you from MCI, and such credit(s) will be forfeited, (3) to access third-party services, merchandise or information on the Internet through MCI, and MCI shall have no responsibility to notify any such third parties nor any responsibility for any consequences resulting from lack of notification. If your Service is terminated by MCI for conduct or activities described in this paragraph, you agree that you will not thereafter attempt to register for this or a similar service from MCI. MCI also may collect from you any and all costs it incurs arising out of your engagement in any prohibited activity. MCI may make its actions taken under this section publicly known, and you hereby release MCI from all claims associated with any such public announcements. Nothing contained in this section shall be construed to limit MCI's rights and remedies, and MCI hereby reserves all such rights and remedies which may be available to it at law or in equity.
You agree to defend, indemnify and hold MCI and its affiliates and its licensors and their officers, directors, employees and agents harmless from any and all liabilities, costs and expenses, including reasonable attorneys' fees, related to any violation of this Agreement by you or users of your account, or in connection with the use of the Software, the Service or the Internet or the transmission of any message, information, software or other materials on the Service or the Internet by you or users of your account.
MISCELLANEOUS
In the event that any portion of this Agreement is held to be unenforceable, the 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 provisions shall remain in full force and effect. MCI's failure to insist upon or enforce strict performance of any provision of this Agreement 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 this Agreement. MCI and you each agree that MCI's software licensors each, as an intended third party beneficiary of this Agreement, shall have the right to rely upon and directly enforce the terms set forth herein. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. Any cause of action you may have with respect to the Software must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND MCI AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND/OR ANY OTHER COMMUNICATIONS BETWEEN YOU AND MCI RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
ã 1997. MCI Telecommunications Corporation. All rights reserved. Control No. 05300401.5.97
