Please note that what appears below is the User Agreement for MIDTEL. The User Agreement will define all terms, conditions and acceptable use policies relating to use of the MIDTEL service. Specifically, the User Agreement details what users can expect from us, and what we expect from our users. It is very important that users know and understand what is considered to be acceptable use and unacceptable use.
If you have any questions concerning the MIDTEL User Agreement, please feel free to e-mail us or call us at 518.827.5211. A company representative will be happy to assist you.
IMPORTANT-PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ENGAGING IN ANY ON-LINE ACTIVITY VIA MIDTEL.
Your use of the MIDTEL Service (other than to read this User Agreement) signifies that you agree to be legally bound by and will abide by the terms and conditions of this User Agreement, just as if you had signed this Agreement. If you do not wish to abide by the terms and conditions of this User Agreement, then discontinue your use of the MIDTEL Service, and, if applicable, IMMEDIATELY terminate your membership account.
This document represents the User Agreement for MIDTEL and is the entire and only agreement between MIDTEL and the User. The terms and conditions of this document can only be amended formally in a new User Agreement. MIDTEL may modify its User Agreement at any time, and in any manner it deems necessary. Any modification is effective immediately upon one of the following: a posting on the MIDTEL home page, a notification e-mail to all users, or notification by standard postal mail. You as a user have the right to terminate your membership after a modification by notifying MIDTEL of your desire to do so, as provided in Section V., entitled “Cancellation and Termination,” shown below.
Your continued use of the MIDTEL Service following a modification of this User Agreement shall be conclusively deemed as your acceptance of said modification. MIDTEL reserves the right to alter or discontinue any aspect of its service, including but not limited to:
(a) restricting time of availability;
(b) restricting the availability and/or scope of the MIDTEL Service for certain platforms;
(c) restricting or limiting the amount of users permitted; and
(d) restricting or terminating any User’s right to use the MIDTEL Service at MIDTEL’s sole discretion and without prior notice or liability. MIDTEL reserves the right to change or add any fees or surcharge at any time effective upon thirty (30) days prior notice.
II. USER RIGHTS, RESPONSIBILITIES AND OBLIGATIONS
Authorized User: The MIDTEL Service is an interactive computer on-line information, communication, and transaction service. This Service is only available to an authorized user for whom a membership has been established. Any unauthorized use by any person, individual, or business, other than an authorized user is strictly prohibited. An authorized user who allows use of the MIDTEL Service via their account to an unauthorized user is in violation of this agreement. Any violation of this type may lead to an immediate suspension of access privileges or termination of access privileges and of this agreement.
Payment and Term of Agreement:
(a) The fees for the Services charged by MIDTEL are listed in its “Rate Schedule” as it appears on the MIDTEL Web site and in informational documentation. The “Rate Schedule” will list which services are included in the standard monthly fee, and which are extra. Charges shall be invoiced monthly or by term agreement, and payment shall be due upon receipt and no later than the 23rd of each month. Late payment charges will be assessed on all amounts not paid within thirty (30) days of the date of the invoice. User agrees that any taxes or surcharges are additional to their monthly recurring fees. User agrees and shall be liable for all attorney and collection fees arising from MIDTEL’s attempt to collect any unpaid balance of user’s account.
(b) IMPORTANT: MIDTEL, like many other service providers, bills for its service on a full month prepaid billing cycle. On your first MIDTEL bill you will see prorate charges, which are charges for used service from the date of account activation until the current billing cycle bill month, plus the current month’s charges including any set-up fees. Depending on the date you sign up, you could actually receive a bill for two months worth of service. Our Internet billing cycle runs from the 1st to the end of each month with prorate charges based on a full month’s billing cycle. For example, you subscribe for Internet access on October 8th, so you would receive a bill dated 11/1 for all services from 10/8 through 10/31, 11/1 through 11/30, plus any start- up fees and overage charges (metered accounts). The reason you are charged for November is that your November 1st bill is actually for your Internet access in November. If you have any billing questions or concerns, please do not hesitate to contact us by email or phone 518.827.5211.
Term of this User Agreement: The term of this User Agreement is for a period of thirty (30) days and shall automatically renew for successive thirty (30) day periods at MIDTEL’s then-current month-to-month rates, unless either party provides the other with thirty (30) days written notice that it does not wish to renew, or provides notice as is provided for Section V., entitled “Cancellation and Termination,” below.Additionally, Users are responsible for any and all charges they incur connecting with MIDTEL. Besides monthly access charges and package rates, telephone connection charges also apply. MIDTEL does not guarantee that User access via an access number will be considered a local call by the User’s telephone carrier. It is solely the responsibility of the User to determine whether their access to a MIDTEL number is a local call. The charges discussed in this paragraph obviously do not appear on the MIDTEL Monthly Invoice.
Content and On-Line Conduct: MIDTEL strongly supports the idea of free-flowing information and freedom of speech. However, there are certain laws, rules, regulations and protocols that all Users and service providers are responsible for and obligated to uphold and obey. Users agree to use the MIDTEL Service for lawful purposes only and to not undertake in any activity, which threatens System integrity. Users shall not do any of the following or permit any third parties to use the User’s account to do any of the following:
(a) Transmit or post any hateful, abusive, libelous, defamatory, threatening, unlawful, harassing, obscene, pornographic, or profane material or information including, but not limited to, any transmissions constituting or encouraging action, behavior or conduct that would give rise to civil liability, constitute a criminal offense, or otherwise violate any local, state national or international law, including without limitation the U.S. export control laws and regulations;
(b) Inhibit, limit, restrict or restrain any other User from enjoying and using the Internet or MIDTEL’s Service;
(c) Transmit, upload, publish, post, reproduce, give out, issue or distribute in any way, information, software, or other material obtained through the Internet, or otherwise, which is protected by copyright or other proprietary right or derivative works with respect there to, without obtaining permission of the copyright owner or right holder;
(d) Post or Transmit any software or information that the User is aware or reasonably should have been aware contains a virus, worm, Trojan horse, time bomb/logic bomb, or other harmful component;
(e) There will be Zero tolerance for Spammers! Use of MIDTEL’s network for mass unsolicited e-mail transmission to or from our network is strictly forbidden! Customers may not send directly or indirectly any mass email while using MIDTEL’s services. Customers may not advertise URLs or e-mail addresses owned or serviced by MIDTEL in unsolicited e-mails or USENET newsgroups transmitted by another party. Customers are not permitted to post “off-topic” on USENET newsgroups and are required to follow all rules as set forth by moderators of USENET newsgroups. Customers may not transmit the same message to more than ten (10) USENET newsgroups in a single day. MIDTEL reserves the right to determine what is considered “Spam” and to take the appropriate action as necessary.
(f) Fraudulently use or abuse the Internet in any way, shape or manner which is not specifically set forth above;
(g) Use the MIDTEL System and Service for any illegal activity, including copyright infringement.
III. RIGHTS AND OBLIGATIONS OF MIDTEL
MIDTEL is not a publisher but is a distributor of content supplied by third parties and users. Accordingly, MIDTEL has no editorial control over conduct, communication and content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including Information Providers, Merchants, or any other user of the MIDTEL Service, are those of the respective author(s) and not of MIDTEL. Neither MIDTEL, its employees, or any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for a particular purpose (refer to Section IV, entitled “Limitation of Liability and Disclaimer of Warranty”). MIDTEL neither endorses or is responsible for the accuracy or reliability of any opinion, advice or statement made on the MIDTEL Service by anyone other than an authorized MIDTEL employee or representative while acting in their official capacities. Under no circumstances will MIDTEL be liable for any loss or damage caused by a User’s reliance on information obtained through the MIDTEL Service. It is the responsibility of the User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or content available through the MIDTEL service. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content obtained through this Service.
Users may order and purchase merchandise or services from other users of MIDTEL, who are not affiliated with MIDTEL. 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 User and Merchant. MIDTEL makes no warranties or representations whatsoever with regard to any goods or service provided by any Merchant. MIDTEL shall not be a party to a transaction between User and Merchant, nor be liable for any cost or damage arising either directly or indirectly from any action or inaction of any Merchant.
Further information regarding the Use of MIDTEL Service:
(a) Internet Access Dial-Up Accounts provide our personal and corporate clients with unrestricted usual and customary use of the Internet. It does not provide users with the right to log onto the MIDTEL system with unlimited or unreasonable idle connection time. MIDTEL expressly reserves the right to determine what is unreasonable “idle connection time.” In any such instances, the User connection may be aborted at the sole discretion of MIDTEL. Additionally, said account is not a dedicated 24-hour-a-day connection (see the Business Rates section accessible on our home page for more information on this connectivity option). The Internet Access Dial-Up Account may not be used for resale by other Internet Service providers (ISP’s) or BBS Systems without the express written consent of MIDTEL. The account is not transferable and subleasing is strictly prohibited.
(b) MIDTEL is strongly dedicated to protecting the privacy of User information and data stored on or transmitted via the MIDTEL system. However, MIDTEL cannot and does not guarantee absolute privacy or account security. User is responsible for maintaining and protecting the confidentiality of User’s password. User is liable for any harm resulting from disclosing or allowing disclosure of any password. In the event of a breach of security, e.g., User’s password is compromised, User will remain responsible and liable for any unauthorized use of the MIDTEL Service until that time which User notifies MIDTEL by emailing us or by contacting MIDTEL by phone 518.827.5211.
(c) User is responsible for the retention of all files, information, data and other materials as may be necessary for reconstruction of any files, information, material or messages lost or incorrectly processed by MIDTEL.
(d) In the course of maintaining and administering the MIDTEL System, MIDTEL may electronically monitor, read, examine and/or inspect information contained in User’s files, electronic mail messages, on-line postings and any other source of information maintained on-line. Action of this type taken by MIDTEL shall be for the sole purpose of administering and maintaining the MIDTEL System. MIDTEL will not disclose, divulge or release any of the User’s information or materials except when legally required to do so, or to protect the rights and property of MIDTEL, and its users.
(e) MIDTEL expressly reserves the right to prohibit conduct, communication, or content that it deems to be in violation of this User Agreement. Notwithstanding the foregoing, it is impractical, nor within the capability of MIDTEL to restrict conduct, communication or content which may violate this User Agreement prior to its transmission on the MIDTEL Service, nor to promptly edit or remove questionable conduct, communication or content after transmission via MIDTEL. Therefore, MIDTEL does not and shall not assume any liability for any action or inaction with respect to conduct, communication or content on the MIDTEL Service.
(f) With respect to its internet service, MIDTEL reserves the right to monitor and restrict bandwidth utilization. MIDTEL also reserves the right to impose monthly bandwidth utilization caps for standard packages, with additional bandwidth transfer at an additional price.
IV. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
USER EXPRESSLY AGREES THAT THE USE OF THE MIDTEL NET SERVICE IS AT THE USER’S SOLE RISK. NEITHER MIDTEL NET, OR ITS EMPLOYEES, AGENTS, AFFILIATES, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS, USERS OR THE LIKE, WARRANT THAT THE MIDTEL NET 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 MIDTEL NET SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE MIDTEL NET SERVICE. MIDTEL NET MAKES NO REPRESENTATION OR WARRANTIES THAT ANY ACCESS NUMBER WILL BE A LOCAL CALL FROM YOUR AREA CODE AND EXCHANGE.
THE MIDTEL NET SERVICE IS PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT 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 MIDTEL NET, ITS EMPLOYEES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE. NEITHER MIDTEL NET, OR ITS EMPLOYEES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, CANCELBOTS OR OTHER HARMFUL COMPONENTS.
USER UNDERSTANDS THAT THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO SOME PEOPLE. USER ACCESSES SUCH MATERIALS AT USER’S OWN RISK. MIDTEL HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MIDTEL, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING THE MIDTEL SERVICE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM THE USE OR INABILITY TO USE THE MIDTEL SERVICE OR ANY SOFTWARE PROVIDED BY MIDTEL, INCLUDING, BUT NOT LIMITED TO, RELIANCE BY A USER ON ANY INFORMATION OBTAINED ON THE MIDTEL SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFETS, 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 MIDTEL’S RECORDS, PROGRAMS OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE MIDTEL SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES MIDTEL’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Notwithstanding the foregoing, in no event shall the total liability of MIDTEL, or its employees, agents, affiliates, third-party information providers, merchants, licensers or the like, for damages, loses and causes of action whether in contract, tort, including negligence, or otherwise, either jointly or severally, exceed the aggregate dollar amount paid by the User to MIDTEL in the twelve (12) months prior to the claimed injury or damage. The foregoing provisions of this section and the Section “LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY” are for the benefit of MIDTEL, its employees, affiliates, agents, information providers, merchants, licensers and the like, and each shall have the right to assert and enforce the provisions directly on their own behalf.
V. CANCELLATION AND TERMINATION
MIDTEL may terminate and cancel the account of any User, or may deny User access to all or part of the MIDTEL Service immediately and without notice, if MIDTEL, in its sole discretion, believes that said User is in violation of the terms and conditions of this User Agreement, or misuses the MIDTEL Service in any way. If MIDTEL terminates and cancels a Users’ account, or denies a User access to all or part of the MIDTEL Service because of such a violation, User shall not have any right (1) to access through the MIDTEL Service any materials stored on the Internet or MIDTEL’s system, or (2) to access third-party services, merchandise or information on the Internet through the MIDTEL Service or on the MIDTEL System, and MIDTEL shall have no responsibility to notify any third-party providers of services, merchandise or information, nor any responsibility for any consequences resulting from lack of notification.
As is stated above in this User Agreement, the term for this User Agreement is a period of thirty (30) days and shall automatically renew for successive thirty (30) day periods at MIDTEL’s then- current month-to-month rates, unless either party provides the other thirty (30) days written notice that it does not wish to renew, or provides thirty (30) days notice to the other via electronic mail, in the case of MIDTEL to the User at said User’s e-mail address, and in the case of User to MIDTEL.
If User is dissatisfied (i) with the MIDTEL Service, the MIDTEL User Agreement, or with any terms, conditions, rules, policies, guidelines, or practices of MIDTEL in operation the Service, or (ii) if User is dissatisfied with any content available through the MIDTEL Service or change therein, or (iii) User is dissatisfied with any change in the fees or surcharges of User’s account, USER’S SOLE and EXCLUSIVE REMEDY is to terminate this Agreement in accordance with the preceding paragraph, and discontinue using the Service. In the event of termination or cancellation, User agrees to remain bound to Sections II, III, IV, VI, and VII herein.
Customer agrees to defend, indemnify and hold harmless MIDTEL, it’s employees, agents third party information providers, merchants and licensees, from any and all liabilities, claims and expenses, including reasonable attorney’s fees, related to or arising from:
(a) any violation of this Agreement by the User;
(b) any unauthorized use of User’s Account allowed by User or where User discloses or allows disclosure of User’s password,
(c) any unauthorized use of User’s Account where User’s password is compromised until that time which User notifies MIDTEL of said compromise in accordance with Section III (3) (b) herein,
(d) or in connection with the placement or transmission by User through User’s Account of any content, material or conduct on the MIDTEL Service and its third party information providers, Merchants and Users,
(e) negligent acts or omissions of User, User’s officers, employees, agents or contractors in connection with the construction, installation, maintenance, presence, use or removal of equipment, systems, channels, or terminal equipment, or software not provided by MIDTEL which are connected or are to be connected to the MIDTEL Service,
(f) claims for infringement of patents, trademarks and copyrights arising from, the use of the MIDTEL Service, and arising from the use of equipment and software, apparatus and systems not provided by MIDTEL in connection with the Service.
In the event that any portion of this User Agreement 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 User Agreement shall remain in full force and effect. Paragraph headings are provided for reference only and the parties agree that they shall have no effect concerning construction or interpretation of this User Agreement.
MIDTEL’s failure to insist upon or enforce strict performance of any term or provision of this User Agreement shall not be construed as a waiver of any provision, term, or right. Neither the course of conduct between the parties nor trade practice shall act to modify any term or provision of this User Agreement.
This User 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 provision. Each party irrevocably consents to the exclusive jurisdiction of the Courts of the State of New York, and the federal courts situated therein.
Any cause of action User may have with respect to the MIDTEL Service must be commenced with in one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
Notwithstanding the terms and conditions stated in Section “LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY,” in no event shall the total liability of MIDTEL, or its employees, agents, affiliates, third-party information providers, merchants, licensers or the like, for all damages, loses and causes of action whether in contract, tort, including negligence, or otherwise, either jointly or severally, exceed the aggregate dollar amount paid by the User to MIDTEL in the twelve (12) months prior to the claimed injury or damage. The foregoing provisions of this section and the Section “LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY” are for the benefit of MIDTEL, it employees, directors, affiliates, agents, information providers, merchants, licensors and the like, and each shall have the right to assert and enforce the provisions directly on their own behalf.
This User Agreement, and any item referenced therein found on the MIDTEL.com Web site, constitutes the entire agreement between the User and MIDTEL.