Terms of Service

This Agreement is between you, hereinafter referred to as "Customer," and Mercury Network Corporation, hereinafter referred to as "Mercury," and sets forth the terms and conditions under which you agree to use and we agree to provide Service.

THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY BECAUSE IT INCLUDES MANY IMPORTANT TERMS, INCLUDING WARNINGS THAT YOU MAY BE UNABLE TO USE TELEPHONY SERVICE FOR 911 OR OTHER EMERGENCY CALLS UNDER CERTAIN CIRCUMSTANCES, AND LIMITS AND DISCLAIMERS ON MERCURY’S LIABILITY. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE.

I. General Overview

It is Mercury's policy to offer open, uncensored access to the Internet, as well as telephony and other Services. However, as with any user-oriented service, Mercury has certain guidelines and rules that must be enforced for the benefit of both Mercury customers and all other Internet, telephony, and other Service users throughout the world. Mercury therefore requires Customer to adhere to the guidelines and terms and conditions set forth herein.

II. Definitions

A.) Content

"Content" means content provided by Mercury or its third-party licensors or suppliers and accessible on the Service, including without limitation images, photographs, animations, video, audio, music, and text in any format.

B.) Equipment

"Equipment" means the antennas, modems, phones, radios, routers, switches, telephone adapters, battery-backed power supplies, and/or other equipment provided by Mercury for use with the Service.

C.) Service

"Service" means all Mercury Services, including Internet, Telephony, and Hosting Services, Software, Equipment, Content, technical support, and related services, and all other products and services provided by Mercury.

D.) Internet Service

"Internet Service" means the service Mercury provides to access the Internet.

E.) Telephony Service

"Telephony Service" means the digital, IP-based phone service Mercury provides for telephone calls.

F.) Hosting Service

"Hosting Service" means the service Mercury provides in cloud-based form for Web, Email, and Domain Services.

III. CUSTOMER CONSENT TO TERMS OF SERVICE

Please read these Terms of Service carefully before opening or continuing an account with Mercury. By using the Service, Customer agrees to comply with these Terms of Service, and Mercury may terminate Customer’s Service if Customer fails to comply with these terms and conditions. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU SHOULD IMMEDIATELY END YOUR USE OF THE SERVICE AND NOTIFY MERCURY CUSTOMER SERVICE SO THAT MERCURY MAY INITIATE A CLOSURE OF YOUR ACCOUNT.

A.) Use of Services

  1. Customer acknowledges he/she is eighteen (18) years of age or older and that Customer has the legal authority to enter into this Agreement. Customer agrees to promptly to notify Mercury whenever Customer’s personal or billing information changes.
  2. Customer is responsible for all use of Service and Customer’s account whether by Customer or someone using Customer’s account with or without Customer’s permission, including all secondary or sub-accounts associated with Customer’s primary account, and to pay for all activity associated with Customer’s account. Customer agrees to use the Service for lawful purposes, in compliance with all applicable laws.
  3. Service is provided for use in conformance with these Terms of Service. Mercury reserves the right to investigate suspected violations of the Terms of Service. When Mercury becomes aware of possible violations, Mercury may initiate investigation which may include gathering information from Customer or customers involved and the complaining party, if any, and examination of material on Mercury’s servers.
  4. During an investigation, Mercury may suspend the account or accounts involved and/or remove the material involved from its servers. If Mercury believes a violation of these Terms of Service has occurred, it may take responsive action at its sole discretion. Such action may include, but is not limited to, temporary or permanent removal of material from Mercury’s servers, warnings to Customer or customers responsible, and the suspension or termination of the account or accounts responsible. Mercury, at its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Terms of Service could also subject the Customer to criminal or civil liability.

B.) Use of Materials

  1. Lawful materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Service. Customer may re-distribute materials in the public domain. Customer assumes all risks regarding the determination of whether material is in the public domain.
  2. Customer is prohibited from storing, distributing, or transmitting any unlawful material through the Service. Examples of unlawful material include but are not limited to direct threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. Customer may not post, upload, or otherwise distribute copyrighted material without the consent of the copyright holder. The storage, distribution, or transmission of unlawful materials could subject Customer to criminal as well as civil liability, in addition to the actions outlined in Section III (A) above.
  3. Customer may not store or distribute certain other types of material on Mercury's servers. Examples of prohibited material include, but are not limited to programs containing viruses or trojans and tools that would compromise the security of Mercury or others.
  4. Customer represents that when Customer transmits, uploads, posts, or submits any content, data, or images using the Service, Customer has the legal right to do so and that Customer's use of such data or content does not violate any copyright or trademark laws or any other third party rights.
  5. Customer agrees that if Customer's Service is terminated for any reason, Mercury has the right to immediately delete all data, files, and other information, including emails, address book and web storage content, stored in or for Customer's account without further notice to Customer.
  6. Customer agrees that if Customer's Service is terminated for any reason, Customer must return Equipment to Mercury at Customer's expense within five (5) days or Customer will be charged for the Equipment.

C.) Passwords

  1. Mercury accounts are for individual use only. Customer may not share passwords or accounts with others.
  2. Mercury shall provide or obtain passwords to protect Customer's account and Services. In the event that the security of a Customer's account or Service is compromised, Mercury shall provide Customer with a new password.
  3. Mercury may monitor the security of Customer’s passwords at any time. A Customer with an insecure password may be directed to change the password to one that complies with the above rules. Mercury may assign customers who repeatedly choose insecure passwords a password; continued failure to maintain password security may be grounds for account termination.

D.) System Security

  1. Customer is solely responsible for maintaining the security of Customer's computer(s)/device(s) and data, including without limitation, encryption of data and protection of Customer's User ID, password and personal and other data. Mercury strongly recommends the use and appropriate updating of commercial anti-virus, anti-spyware, and firewall software.
  2. Customer is prohibited from utilizing the Service to compromise the security or tamper with Mercury's system resources or accounts on any of Mercury's computers, routers, switches, servers, radios, modems, or any other equipment at Mercury or at any other site. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include but are not limited to password guessing programs, cracking tools, and network probing tools. Any attempt to access any of Mercury's corporate assets is strictly prohibited.
  3. Mercury reserves the right to release the login names of customers involved in violating system security to system administrators at other sites, in order to assist them in resolving security incidents. Mercury will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers, subject to Mercury's privacy policy and applicable law.

E.) System Resources

  1. Mercury will allocate system resources to provide all customers with the best service possible. As part of resource allocation, Mercury may limit, restrict or prioritize access to system resources, including CPU time, memory, disk space, bandwidth, session length and the number of sessions, call durations, number of calls, and call destinations.
  2. Additionally, Mercury may institute services and fees for customers who are interested in accessing system resources above and beyond acceptable usage.
  3. Mercury may log instances of abuse of system resources, including but not limited to those outlined below, and take action as outlined in Section III (A) above. System abuse is defined as any use of Mercury resources that disrupts the normal use of Services for others. Examples of system abuse include but are not limited to attempting to disrupting the sessions of other Internet users, consuming excessive amounts of time, memory, disk space, or bandwidth, or otherwise affecting the performance of Mercury servers or networks.
  4. Customer may not run programs that provide network services from residential accounts. Examples of prohibited programs include, but are not limited to mail, http, irc, ftp, and nntp servers.
  5. Customer may only make use of Mercury system resources while connected. The only exceptions to this policy are email servers, which process and route mail as it arrives, and web pages, which remain active even when logged off.

F.) Limitations of Telephony Service

  1. The Telephony Service is not a telecommunications service and Mercury provides it on a best efforts basis. Important distinctions exist between telecommunications service and the Telephony Service offering that Mercury provides. The Telephony Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Customer's rights of redress before regulatory agencies.
  2. The Telephony Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, or calling card calls. The Telephony Service may not support 311, 511 and/or other x11 services, other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement, in one or more or all Service areas.
  3. The phone numbers Customer obtains from Mercury will not be listed in any telephone directories. Phone numbers transferred from Customer's local phone company may, however, be listed. As a result, someone with Customer's phone number may not be able to utilize a reverse directory to lookup Customer’s address.
  4. The Telephony Service may not be compatible with non-voice communications equipment, including, but not limited to, home security systems or alarm systems that are set up to use phone lines, modems, fax machines, credit card machines, DVR-type devices, any device that relies upon a modem, hearing impaired devices, and medical monitoring devices ("Non-Voice Systems"), and may be interrupted or permanently disabled by installation or operation of the Telephony Service. Customer should maintain a telephone connection through Customer's local exchange carrier in order to use any alarm monitoring functions for any security system that uses a phone line. Customer is solely responsible for the operation and use of such Non-Voice Systems with the Telephony Service, including taking any necessary steps, as permitted under this Agreement with Mercury, to ensure compatibility between such Non-Voice Systems and the Telephony Service.
  5. Customer authorizes Mercury to act on Customer's behalf, as Customer's agent, in porting Customer's telephone number and related local and long distance services from Customer's current provider to Mercury or any of its wholesale service providers. Customer acknowledges that Mercury may change wholesale providers from time to time and may port Customer's phone number from one wholesale carrier to another at any time. Customer acknowledges that Mercury will become the customer of record for all phone numbers that Mercury ports to the Telephony Service.
  6. The Telephony Service relies upon portions of the public Internet, and third party networks, to transmit voice and other communications signals. Mercury cannot, and does not, guarantee that the Telephony Service is secure or can be used in a secure manner.
  7. The Telephony Service is not fail-safe or designed or intended for use in situations where error-free or uninterrupted service is essential, including uses involving vital communications in which an error or interruption in Telephony Service could lead to injury to business, persons, property, or the environment ("High-Risk Uses").

IV. ACCEPTABLE USAGE

Acceptable usage of Internet Service is hereby defined as the normal activities associated with the use of the Internet, including but not limited to usage of Mercury's systems and network facilities for accessing the World Wide Web, Internet Relay Chat, USENET Newsgroups, E-mail, and other Internet features. Depending on the account type, this may include file storage on Mercury's servers for Customer's own personal web page and file access area (FTP).

Acceptable usage of Telephony Service is hereby defined as usage solely for the Customer's residential or commercial purposes. The Telephony Service and any Equipment provided to Customer are solely for such residential or commercial use.

This policy is subject to any and all laws and regulations set forth by Federal, State, and all other governmental authorities.

V. PROHIBITED INTERNET SERVICE ACTIVITIES

Internet Service activities specifically prohibited by Mercury include but are not limited to the following:

A.)

Background and/or server-type applications – Including but not limited to IRC bots, HTTP servers, MUDs, and any other process which were initiated by the user that continues execution on the system upon user logout.

B.)

Long-term storage of data – Long-term storage of data is referred to as the storage of files that are not used regularly in an account for an extended period of time. This specifically includes, but is not limited to, programs such as shareware programs which the user may download to their account for purposes of transferring to their home computer(s)/device(s). Such programs should be removed at such time as they are successfully transferred to the user’s personal system.

C.)

Flooding or abuse of other users – Flooding is a fairly common occurrence on the Internet, and one that is dealt with strictly at Mercury. Flooding takes place in numerous ways, including, but not limited to, ICMP flooding, mail bombing (sending large amounts of e-mail repeatedly to a person for purposes of harassment), mass mailings to multiple addresses, MSG/CTCP flooding on IRC, as well as other, less common methods.

D.)

Attempts to compromise system and/or network security – Programs such as packet sniffers, password crack programs, and similar utilities found to be running from Customer’s account are prohibited. This also includes attempts to hack into non-Mercury systems.

E).

Sharing of accounts – Sharing Customer’s Internet Service with another party for purposes of avoiding payment for a second Service is strictly prohibited. Customer may connect multiple computers/devices within a single location to Customer’s modem, router, and/or radio to access the Internet Service, but only through a single Mercury-issued IP address.

F.)

Attempts to bypass resource usage limitations – In order to provide fair service to all Mercury users, Mercury has implemented certain resource limitations, the three most common being disk quotas on the servers, idle and session time-outs on dial-ups, and speed limits on broadband. Attempts to bypass disk usage quotas by any means may result in immediate loss of system privileges. Attempts to bypass the idle and session time-outs as well as speed limits are also prohibited. The current idle time-out limit is twenty minutes. The current session time-out limit is eight hours.

G.)

PPP/SLIP emulation software – Since PPP/SLIP is a product offered by Mercury, users desiring such access are required to sign up for that service rather than attempting to emulate it by software. Any such software will be removed from Customer’s account by Mercury immediately when found.

H.)

Conducting business through a personal account – The standard dial-up accounts and single-user Internet accounts provided by Mercury are designed for the home/casual user and not to provide the level of service required for conducting business. Therefore, conducting business with an individual account is prohibited. If a business account is desired, please contact Mercury’s sales department and upgrade to a business account.

I).

Excessive use of system resources – This includes, but is not limited to, the continued use of programs or commands which take a large amount of system resources, be that processor time, memory, network bandwidth, and/or drive space on the host system. Customer may not resell Service.

J.)

Excessive use of dial-up resources – Excessive dial-up use is defined as being logged in more than six times that of the average Mercury dial-up user. If, for example, Mercury’s dial-up users were logged in an average of 50 hours in a given month, excessive use would be 300 hours that month. This primarily prohibits the continued usage of a dial-up port to simulate a dedicated connection. Dial-up accounts are designed to provide on-demand access for customers, not dedicated connections. If a dedicated connection is desired, Customer should contact Mercury’s sales department and upgrade to a dedicated account.

K.)

Email abuse – Email abuse typically comes in one of three forms, the transfer of a message to unsolicited individuals, the sending of harassing and/or threatening messages to other users, and the forging of e-mail addresses so as to make the email appear to be from another user.

L.)

USENET news abuse – Similar to e-mail abuse, includes forging of addresses, harassment/threats, the posting of the same message to multiple newsgroups (spamming), as well as the posting of information in groups where it is not relevant and unwanted.

M).

Pyramid/money-making schemes – Such activities as the transfer of information or solicitation of persons via the Internet in an attempt to extort money or other valuables or the use of pyramid/chain letters are all prohibited.

N.)

Pirated software – Pirated software is defined as the illegal exchange of software for purpose of avoiding the purchase of said software by the individuals involved. This includes most commercial applications such as Adobe Photoshop, Microsoft Office, etc. Such activities are prohibited by Federal law and are thus not allowed in any form on Mercury. Such prohibition also includes the unauthorized copying of copyrighted material including, but not limited to digitization and distribution of photographs from magazines, books, or other copyrighted sources and copyrighted software. The exportation of software or technical information in violation of U.S. export control laws is strictly prohibited.

O.)

High-traffic web sites – Individual accounts on Mercury machines are intended to provide access to individuals only. As most individual pages are fairly low-traffic, the performance for everybody on the systems is optimal. However, some individuals occasionally choose to put content on their pages that draws a large number of hits to their pages and thus degrade performance for other users’ pages. Due to this, Mercury has had to implement certain limitations on the amount of traffic an individual user‘s home page can receive. Typically a page can safely transfer 250 MB per day without causing excessive load on the host system. Sites generating more than this must be moved to Mercury’s Web Hosting service, where Mercury is better able to deal with the extra traffic.

VI. PROHIBITED TELEPHONY SERVICE ACTIVITIES

Telephony Service activities specifically prohibited by Mercury include but are not limited to the following:

A.)

Customer shall not resell or transfer the Telephony Service or Equipment to another party. Customer is prohibited from using the Telephony Service or Equipment for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting.

B.)

Customer shall use the Telephony Service and Equipment only for lawful purposes. Mercury reserves the right to immediately terminate Customer's Service if, in Mercury's sole and absolute discretion, Mercury determines that Customer has used the Telephony Service or Equipment for an unlawful purpose. In the event of such termination, Customer will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of Customer's Service. If Mercury believes that Customer used the Telephony Service or Equipment for an unlawful purpose, Mercury may forward the relevant communication and other information, including Customer's identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to Mercury forwarding of any such communications and information to these authorities. In addition, Mercury will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property, and in the case where failure to disclose the information may lead to imminent harm to the Customer or others.

C.)

Customer shall not use the Telephony Service or Equipment in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. Mercury reserves the right to immediately terminate Customer’s Service if, in Mercury's sole and absolute discretion, Mercury determines that Customer has used the Telephony Service or Equipment in any of the aforementioned ways. In the event of such termination, Customer will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of Customer’s Service. In addition, Mercury will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property, and in the case where failure to disclose the information may lead to imminent harm to the Customer or others.

D.)

Although Customer may use the Telephony Services to place calls to the United States and Canada, Mercury does not presently offer or support the Telephony Service in any countries other than the United States. If Customer uses the Telephony Service or Equipment outside of the United States, Customer will be solely responsible for any violations of local laws and regulations resulting from such use. Mercury reserves the right to terminate Customer's Telephony Service immediately if Mercury determines, in Mercury's sole and absolute discretion, that Customer has used the Telephony Service or Equipment outside of the United States.

E).

Customer agrees not to: use the Telephony Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise); defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, distribute, or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful material or information; advertise or offer to sell or buy any goods or Telephony Services for any non-personal purpose; harvest or otherwise collect information about others, including email addresses, without their consent; create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message; use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a Service member any directory of the Service members or other User or usage information or any portion thereof other than in the context of Customer's use of the Telephony Service as permitted under this Agreement, and these Terms of Service; transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs; transmit or upload any material that contains software or other material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless Customer owns or controls the rights thereto or have received all necessary consents; interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks; attempt to gain unauthorized access to the Service, other accounts, computer systems, devices, or networks connected to the Service, through password mining or any other means; host any type of publicly accessible file sharing, gaming, or email server including, but not limited to HTTP, FTP, SMTP, POP3, and Peer-to-Peer; interfere with another member’s use and enjoyment of the Service or another individual or entity's use and enjoyment of similar Services.

F.)

Mercury has no obligation to monitor the Telephony Service or any Customer's use thereof or retain the content of any Customer session. However, Mercury reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. Mercury reserves the right to implement reasonable network management practices to ensure service quality levels are maintained.

G.)

Customer agrees not to share or re-sell the Telephony Service with anyone not residing at the Service address.

VII. PENALTIES FOR ABUSE

A.)

All Prohibited Activities as defined in Section V and Section VI are subject to immediate termination of Customer's account and any and all criminal and civil penalties available under the law. The penalties imposed on Customer for abuse will vary based on the level of the offense. Typically Customer will receive a warning on the first offense. However, if the offense is severe enough, Mercury reserves the right to disable the account immediately. Accounts that have been disabled for abuse will not be re-opened. It is vital for Mercury to provide a quality service for all users, and Mercury will not tolerate users who through their actions hinder us in that endeavor. It is also important for Mercury to have a non-intrusive presence to the rest of the Internet, and thus prohibit activities that adversely affect users on other service providers and their associated networks. To this end, Mercury reserves the right to modify and/or disable Service at any such time abuse occurs.

B.)

Mercury may charge an hourly fee for excessive dial-up usage as defined in Section V (J) above. Customer agrees that such fees are reasonable and to make timely payment of such fees.

C.)

Mercury reserves the right to immediately terminate or modify Customer's Telephony Service if Mercury determines, in Mercury's sole and absolute discretion, that Customer's use of the Telephony Service or Equipment is, or at any time was, inconsistent with normal residential or commercial usage patterns.

D.)

Mercury will not reimburse Customer when Service has been suspended or disabled due to any of the reasons listed above.

VIII. DATA MANAGEMENT

A.) Management of Computer(s)/Device(s) and Data

Customer is solely responsible for obtaining, maintaining, and updating all computer(s)/device(s) and software necessary to use the Service, and for management of Customer's information, including but not limited to back-up and restoration of data. Customer agrees that Mercury is not responsible for the loss of Customer's data or for the back-up or restoration of Customer's data regardless of whether the data is maintained on the Mercury servers or Customer's computer(s)/device(s). Customer should always back-up any important information separately from data stored on Mercury's or any third party's servers.

B.) Content Data Management

Mercury reserves the right to: (a) use, copy, display, store, transmit, and reformat data transmitted over Mercury's network and to distribute such content to multiple Mercury servers for back-up and maintenance purposes; and (b) block or remove any unlawful content Customer stores on or transmits to or from any Mercury server. Mercury does not guarantee the protection of Customer's content or data located on Mercury servers or transmitted across Mercury's network (or other networks) against loss, alteration, or improper access.

C.) Monitoring of Network Performance

Mercury may automatically measure and monitor network performance and the performance of Customer's Services. Mercury may also access and record information about Customer's computer(s)/device(s) and Equipment, and the installation of software Mercury provides. Customer agrees to permit Mercury to access Customer's computer(s)/device(s) and Equipment and to monitor, adjust, and record such data, profiles, and settings for the purpose of providing the Service. Customer also consents to Mercury's monitoring of Customer's Services and network performance, and to Mercury’s accessing and adjusting Customer’s computer/device settings, as they relate to the Service. Mercury does not share information collected for the purposes of network or computer/device performance monitoring or for providing customized technical support outside Mercury or its authorized vendors, contractors, and agents.

IX. TELEPHONY SERVICE REQUIREMENTS AND AVAILABILITY

Customer must supply certain facilities, such as a phone handset or equivalent, installed phone wiring and jacks, and a powered electrical outlet. Customer is responsible for supplying and ensuring that the facilities Customer supplies are compatible with the Service and meet federal and other applicable standards. Customer represents that Customer either owns Customer's facilities or has the right to use the facilities in connection with the Telephony Service. Mercury shall have no obligation to provide, maintain, support, or service Customer’s facilities. If Customer's Internet connection is terminated, suspended, or disconnected for any reason, the Telephony Service will not be available until Customer reestablishes Customer's Internet connection with Mercury or whichever Internet provider Customer utilizes.

X. TELEPHONY SERVICE FEES, TAXES, AND OTHER CHARGES

Telephony Service fees, taxes, and other charges may change from time to time. Mercury blocks international phone calls from the United States except those made to Canada. Should a Customer require the ability to place international calls to countries other than Canada, Mercury may open the lines for those specific countries at their discretion. If Customer makes calls to locations outside the United States and Canada, international rates will apply. International calling rates can be found on Mercury's web site http://www.mercury.net. Customer will be charged $1.50 for each call Customer makes to Directory Assistance.

XI. TELEPHONY SERVICE 911 EMERGENCY SERVICES

Carefully read the information below. By acceptance, and use, of the Telephony Service, Customer acknowledges and accepts any limitations of 911/E911 service, and Customer agrees to convey these limitations to all persons who may have occasion to place calls over the Telephony Service. If Customer has any questions about 911/E911, call Mercury Network at 989-837-3790.

A.)

The Telephony Service includes 911/Enhanced 911 functionality ("911/E911") that may differ from the 911 or E911 function furnished by other providers. As such, it may have certain limitations. E911 service includes transmission of Customer's telephone number, and information Customer provides to Mercury about the physical location of the Equipment and facilities that are used to provide Telephony Service ("Registered Location") to Customer. When Customer dials 911, Customer's emergency services call will be routed to the applicable Public Safety Answering Point, or other applicable emergency services call center, or local emergency authority ("PSAP"). If the PSAP is capable of receiving Customer's telephone number and Registered Location ("E911 Information"), such information will also be conveyed to the PSAP when Customer dials 911.

B.)

Registered Location: Use of the Telephony Service from a location other than Customer's Registered Location may cause Customer's 911 call or E911 information to be routed to the wrong PSAP, may cause emergency response personnel to be dispatched to the wrong address, and may result in other problems with accessing and obtaining emergency services, including, but not limited to, Customer's inability to receive emergency services. As a result, Customer must update Customer's Registered Location with Mercury before using the Telephony Service at a new location. To update Customer's Registered Location, Customer should log into the Telephony Service web portal at https://phone.mercury.net and choose "Manage E911 Info", or contact Mercury Technical Support at 989-837-3790, or at the address set forth at http://www.mercury.net.

C.)

Even if Customer uses the Telephony Service from its Registered Location, trying to call 911 or obtain emergency services through a 911 call may fail for a number of reasons, including:

  1. Power failure – if there is a power or Internet outage or interruption, Customer will not be able to use the Telephony Service for any 911 or other emergency calls (after such an event, Customer also may need to reset or reconfigure Equipment before Customer can call 911).
  2. Termination or suspended service – if Customer's Telephony Service or Internet connection is interrupted, suspended or cancelled for any reason (including due to technical problems, Customer's failure to pay Mercury or other provider, or termination of this Agreement), Customer will not be able to use the Telephony Service to call 911;
  3. Transferred number – as described further below, if Customer transfers a telephone number from Customer's traditional telephone service, there may be a delay or interruption in Customer's ability to use the Telephony Service to call 911;
  4. Updated location information – as described further below, if Customer uses the Telephony Service at a new Registered Location, it may take several days after Customer notifies Mercury of the new Registered Location before 911 calling or E911 functions will be available; and
  5. Technical limitations – network congestion, radio interference, weak signals, packet loss, or other causes of reduced Service performance may prevent Customer from using the Telephony Service to call 911 or may delay the routing of Customer's 911 call or E911 information. Customer should not rely on the Telephony Service as Customer's primary method to obtain emergency services. If Customer does not feel comfortable with these limitations, Mercury suggests Customer makes alternative methods available to call 911 or otherwise obtain emergency services, such as through a traditional telephone line or a mobile phone.

D.) CALLER ID LIMITATIONS AND FEES

If Customer modifies its Caller ID to a number that Mercury's E911 service does not recognize, a 911 call will be routed to an Emergency Routing Service (ERS) call center, which will then route the call to appropriate PSAP after the caller’s location is determined. Customer understands that such 911 calls will be delayed and that the caller must speak to ERS personnel before communications with the PSAP is established. For each call routed to ERS, Customer will be charged a fee of $150. Multiple calls will result in multiple charges.

E.) LIABILITY

Customer acknowledges and agrees that Mercury will not be liable for any Service outage, inability to dial 911, and/or inability to access emergency service personnel. Customer agrees to defend, indemnify, and hold harmless Mercury and its associated parties from any and all claims, losses, damages, fines, penalties, costs, and expenses (including but not limited to reasonable attorney fees) by, or on behalf of, Customer or any third party or user of the Services relating to the failure or outage of the Services, including those related to 911/E911. Customer acknowledges that it is aware of and understands the foregoing limitations and agrees to advise all persons who may conduct calls using Customer's Telephony Service of the same.

F.) "REVERSE 911" SERVICE

"Reverse 911" service is a telephonic community notification system that may be used to deliver outbound messages in the event of an emergency. The system employs a combination of database and mapping technologies to allow emergency responders to pinpoint a specific geographic area and deliver the appropriate message to residents in the affected area. Certain systems have the ability to call both listed and unlisted phone numbers. Customers should contact their local PSAP to determine if the number used in the provision of the Telephony Service can be registered with the local PSAP. The technical limitations associated with the provision of Reverse 911 service are due entirely to the local PSAP's network and systems capabilities. Mercury shall not be liable for any failures, loss of service, interference, or incompatibility of the Telephony Service and any Reverse 911 service offered by local PSAPs. Further, Mercury offers no warranties, either express or implied, as to the availability of such Reverse 911 services, or their compatibility with the Telephony Service.

XII. TELEPHONY SERVICE RELOCATION REQUIREMENT

The Telephony Service may be used only at the Registered Location Customer provides to Mercury. If Customer wishes to relocate the Equipment, Customer must contact Mercury for information on Service availability at the new location. If the Service is available at Customer's new location, Customer must update and register the new location with Mercury in order to update Mercury's records for the Service and help make 911 services and E911 features available to Customer. If Service, 911 calling or an E911 feature is not available at the new location, Customer's Service will be terminated or suspended until Customer returns the Equipment to a location with Service, 911 and E911 availability and provides Mercury updated information for the new location. Using or moving, or attempting to use or move, the Equipment or Telephony Service to a location without complying with this Section XII is a violation of this Agreement and Customer does so at Customer's own risk.

XIII. TELEPHONY SERVICE LOCAL NUMBER PORTABILITY

If Customer is porting Customer's existing phone number from another service provider for use with the Telephony Service, the following terms and conditions also shall apply:

A.)

Customer will cooperate fully with Mercury and provide promptly all information, including a letter of authorization or other documentation, as requested by Mercury in connection with the processing of Customer's order for Service.

B.)

Customer authorizes Mercury to notify Customer's current telephone service provider of Customer's decision to switch Customer's local, local toll and long distance services to the Telephony Service, and Customer represents Customer is authorized to take such actions.

C.)

Customer acknowledges that if Customer sets up the Telephony Service prior to the date that the number switch becomes effective (the "Port Effective Date"), Customer may be able to place outgoing calls but not receive incoming calls over the Telephony Service, and may not be able to make 911 or other emergency calls over the Telephony Service, until the Port Effective Date (in such a case, Customer should keep another phone connected to an existing phone extension at Customer's service location to receive incoming calls until the Port Effective Date).

D.)

Customer acknowledges that if the Telephony Service is not yet activated as of the Port Effective Date, Customer's existing phone service for the number Customer is transferring will be disconnected and Customer will have no service for that line. To help avoid an interruption in Customer's phone service, Customer should install the Telephony Service prior to, or on, the Port Effective Date. An estimate of the Port Effective Date may be sent to Customer by Mercury following Customer's completion of the ordering process, but this is only an estimate and not a guarantee of the Port Effective Date.

E.)

Customer acknowledges that Mercury may use call detail, and customer proprietary network information, for all lawful purposes, including but not limited to actions related to the initiation, rendering, billing and collection of the Telephony Service. Further, such actions also include the use of such information for the purposes of testing, verifying, and otherwise assuring that the Telephony Service is delivered to Customer.

XIV. SOFTWARE LICENSES AND THIRD PARTY SERVICES

A.)

Mercury may provide Customer, for a fee or at no charge, software for use in connection with the Service that is owned by Mercury or its third party licensors, providers, and suppliers ("Software"). Mercury reserves the right periodically to update, upgrade, or change the Software remotely or otherwise and to make related changes to the settings and software on Customer's computer(s)/device(s) or Equipment, and Customer agrees to permit such changes and access to Customer's computer(s)/device(s) and Equipment. Customer may use the Software only in connection with the Service and for no other purpose.

B.)

Certain Software may be accompanied by an end user license agreement ("EULA") from Mercury or a third party. Mercury's use of the Software is governed by the terms of that EULA and by this Agreement, where applicable. Customer may not install or use any Software that is accompanied by or includes a EULA unless Customer first agrees to the terms of the EULA.

C.)

For Software not accompanied by a EULA, Customer is hereby granted a revocable, non-exclusive, non-transferable license by Mercury or its applicable third party licensor(s) to use the Software (and any corrections, updates and upgrades thereto). Customer may not make any copies of the Software. Customer agrees that the Software is confidential information of Mercury or its third party licensors and that Customer will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by Mercury or its third party licensors. Customer may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. Customer may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. Customer is not granted any title or rights of ownership in the Software. Customer acknowledges that this license is not a sale of intellectual property and that Mercury or its third party licensors continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in the United States only, and any export of the Software is strictly prohibited.

XV. ADDITIONAL POLICIES

A.)

Due to the explosive growth of the Internet and the constant addition of new services and thus the new possibilities of abuse, Mercury reserves the right to add and enforce new policies.

B.)

The Service Customer selects may not be available in all areas or at all rates, speeds, or bandwidths generally marketed. Mercury will provision qualified service at the maximum speed available at a location based on Mercury's standard qualification procedures, unless Customer has selected a lower level of service with a lower maximum. Bandwidth is provided on a per-Service (not per-device) basis. The speed of the Service will vary based on network or Internet congestion and Customer's computer/device configuration, among other factors. Mercury and its suppliers reserve the right, at any time, with or without prior notice to Customer, to restrict or suspend the Service to perform maintenance activities and to maintain session control.

C.)

As consideration for the Services, Customer hereby gives Mercury consent to use Customer's names and logos in marketing and advertising materials.

XVI. LIMITATION OF LIABILITY

In no event shall Mercury be liable for any claims, damages, losses, or liabilities, and Customer hereby waives any and all such claims or causes of action, arising from or related to:

A.)

Developing, installing, operating, providing, implementing, maintaining, or participating in a 911 emergency telephone system or similar emergency system or E911 service, including without limitation (a) receiving, developing, collecting, or processing information for E911 databases, (b) relaying, transferring, operating, maintaining, or providing 911 or E911 services or system capabilities, or (c) providing emergency telephone and radio communications for ambulance, police and fire departments;

B.)

Interference or incompatibility with or disruption of any Non-Voice Systems, whether caused by the Telephony Service, Internet Service, Equipment, or otherwise;

C.)

Any lack or breach of security Customer or any other party may experience or be exposed to while using the Service; or

D.)

Use of the Service for or in connection with any High-Risk Uses.

E.)

Mercury's liability under any circumstances is limited to the current month’s service charge. Mercury will not be responsible for third-party fees or charges, including but not limited to, banking fees, overdraft fees, cellular phone or other wire line charges, technician charges, or other similar charges.

F.)

This Section XVI, Limitation of Liability, will survive termination or expiration of this Agreement, whether terminated by Customer or the Mercury, for any reason.

XVII. WARRANTIES

SERVICE IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO MERCURY OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MERCURY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE MERCURY. NOR SHALL MERCURY BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND MERCURY'S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO MERCURY RECORDS, PROGRAMS, OR SERVICES. IN NO EVENT SHALL MERCURY'S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE CURRENT MONTH'S SERVICE CHARGE.

XVIII. INDEMNIFICATION

Customer agrees to defend, indemnify, and hold harmless Mercury from and against all liabilities, costs, and expenses, including reasonable attorneys' and experts' fees, related to or arising from Customer's use of Service (or the use of Customer's Service by anyone else) (a) in violation of applicable laws, regulations, or this Agreement; (b) access to the Internet or to transmit or post any message, information, software, images or other materials via the Internet; (b) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property; or (d) claims for infringement of any intellectual property rights arising from or in connection with use of this Service.

XIX. BILLING POLICIES

A.)

Customer agrees to pay the monthly fees applicable to Customer's Service, and to pay: (a) applicable taxes, (b) surcharges, (c) recovery and universal service fees, (d) activation fees, (e) installation fees, (f) set-up fees, (g) equipment charges, (h) early termination fees, (i) late fees, (j) reactivation fees, and (k) all other recurring and non-recurring charges. The taxes, fees and other charges detailed in (a-k) above may vary on a monthly basis. Surcharges and recovery fees are not taxes and are not required by law, but are set by Mercury and are subject to change. Non-recurring charges such as set up, activation fees, installation fees, and equipment charges will be included in Customer's first monthly bill.

B.)

Customer acknowledges, agrees, and assumes full responsibility for making full and timely payments for each Mercury account. Timely payment includes maintaining Customer billing information given to Mercury for each account, which the Customer must keep current. Customers who choose to make payment with credit cards must provide Mercury with their credit card number, expiration date, and name as it appears on their card, and their credit card statement mailing address. It is Customer’s responsibility to timely notify Mercury of any changes in its credit card account. Customers who choose to make payment by electronic check must provide Mercury with the name of the financial institution holding the account, the routing number of that financial institution, their checking account number, and the name that appears on their account. It is Customer's responsibility to timely notify Mercury of any changes in its checking account.

C.)

Mercury reserves the right to cancel Customer's account without notice due to non-payment. In the event that Customer fails to timely make full payment of each invoice, Mercury reserves the right to charge interest, late fees, and/or reactivation charges to Customer's account, and to pass any collection costs on to Customer.

D.)

In the event of cancellation by Customer, Customer must contact Mercury in one of the following manners: (a) via mail with proof of receipt properly addressed to: Mercury Network Corporation, Attn: Customer Service, 2719 Ashman St Ste 1, Midland, MI 48640-4434, or (b) via telephone to a Mercury Network Customer Service representative at 989-837-3790, followed by written confirmation by Customer with proof of receipt, properly addressed to and received by Mercury within ten (10) days from the date of telephone cancellation. Notification of cancellation MUST be accompanied by the Customer's Mercury account number and password in order for a cancellation to be effectuated.

E.)

NON-USAGE OF AN ACCOUNT IS NOT CANCELLATION. Customer is responsible for full payment on all accounts whether or not the account is ever utilized. All original unopened software must be returned to Mercury in order for Customer to be entitled to any refund. In the event that Customer fails to return the original unopened software to Mercury, Customer will be billed for a minimum of one month's service.

F.)

In the event of cancellation, Customer will be responsible for all charges up to and including the current month's monthly charge.

G.)

Any billing discrepancies shall be presented to Mercury in reasonable detail, in writing, within fourteen (14) days of the date of the charge. Such notification shall not relieve Customer of the obligation to make all payments including the amounts disputed by the due date. Mercury shall not be obligated to consider any Customer notice of billing discrepancies that are received by Mercury more than fourteen (14) days following the date of the invoice in question. If a Customer fails to dispute any charge after fourteen (14) days from the date of the charge, Customer waives its rights to thereafter make any such dispute and all such charges will be deemed valid.

H.)

In the event that Customer pre-pays for Service, any discounts given by Mercury for such payment plans are calculated that the Customer is paying full rate for the beginning months of Service and getting additional months at the end of the service term at part or no cost. In the event that Customer cancels their service within the pre-paid period, Customer will pay an early cancellation fee and is no longer entitled to any discounts.

I.)

Customer acknowledges, agrees, and assumes full responsibility to verify that the telephone number that they call to access the Internet is a telephone number that is local to their area. Mercury is NOT responsible in any way for any telephone charges incurred by any Customer when accessing the Internet or when contacting Mercury for any reason. In the event that Customer's local telephone number to access the Internet is out of service, Customer assumes full responsibility for all long distance charges incurred by Customer if Customer chooses to call a long distance telephone number to access the Internet, even if directed to do so by Mercury personnel. MERCURY WILL NOT REIMBURSE CUSTOMER FOR ANY LONG DISTANCE CHARGES.

J.)

Mercury makes no Warranties as to the availability or right to use of any Login Name, Email Address, Domain Name, or Web Page Address. Login Names, Email Addresses, Domain Names, and Web Page Addresses are NOT confirmed at the time of sign-up of any Customer. Mercury will not refund any charges for reprinting of stationary or business cards or any other losses incurred.

K.)

MERCURY MAKES NO WARRANTIES EXPRESS OR IMPLIED AS TO THE ACCURACY OF BILLING, OR THE QUALITY OF SERVICES PROVIDED OR TO THE WARRANTY OF MERCHANTABILITY OR TO FITNESS FOR A PARTICULAR PURPOSE.

L.)

Customer agrees that at the end of the term of the account initially agreed to by Customer or any term thereafter, Mercury may, at its sole discretion, automatically renew such account for an additional term. Customer further agrees that upon renewal of such account, Mercury may continue to charge Customer's credit card, checking account, or seek other form of payment from Customer, for which Customer shall be responsible. In the event that Customer does not wish Mercury to automatically renew such account, it is Customer's sole responsibility to notify Mercury of such intent prior to the expiration of such term.

M.)

All policies stated herein are subject to change at Mercury's sole discretion. Mercury will provide Customer with such changes by posting revisions to the website http://www.mercury.net. Customer agrees to visit the Terms of Service periodically to review such revisions. Customer shall be responsible for adhering to any new policies implemented by Mercury. Increases to the monthly price of the Service shall be effective thirty (30) days after Mercury provides notice to Customer; revisions to any other terms and conditions shall be effective on the date noted in the posting and/or email Mercury sends. By continuing to use the Service after the revisions are effective, Customer accepts and agrees to abide by them.

XX. PRIVACY POLICY

Personal information Customer provides to Mercury is governed by the Privacy Policy posted on the website http://www.mercury.net and is subject to change from time to time. Mercury reserves the right to provide account and user information, including email, to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. Such cooperation may include, but is not limited to, monitoring and logging Customer activities in ways consistent with applicable law. In addition, Mercury is required by law to report any facts or circumstances reported to us from which it appears there may be violation of the child pornography laws. Mercury reserves the right to report any such information, including the identity of users, account information, images, and other facts to law enforcement personnel.

XXI. GENERAL PROVISIONS

A.)

Notices: Notices required under this Agreement by Customer must be provided to us at 2719 Ashman St Ste 1, Attention: Customer Service, Midland, MI 48640-4434. Notice by Mercury to Customer (including notice of changes to this Agreement under Section XIX shall be deemed given when: (a) transmitted to Customer's primary address, (b) mailed via the US mail or hand-delivered to Customer's address on file with Mercury, (c) e-mailed to the Customer's email address on file with Mercury, or (d) when posted to the Announcements page of Mercury's website http://www.mercury.net.

B.)

Full force and effect: Mercury's failure at any time to insist upon strict compliance with any of the provisions of this Agreement 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 remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.

Revision 2014-09-08