All of the provisions of Datacruz Incorporated's (hereinafter referred to as "Datacruz") Service Agreement (hereinafter referred to as Agreement) shall apply to all access, transport, system, or service Accounts billed to a designated Account Holder (hereinafter referred to as "Customer")

Datacruz agrees to provide and Customer agrees to receive access to Datacruz's services according to the following terms and conditions:

General

The rights of access conveyed by this Agreement are non-transferable. Use of a Datacruz account is expressly limited to the individual name that appears on the account.

Customer agrees to keep their account information confidential.

Customer agrees to pay Datacruz for any and all charges relating to the use of Customer's account(s) according to rates and prices published on-line at the time the service is used. Datacruz reserves the right to terminate service at any time for non-payment of past-due bills. Datacruz reserves the right to suspend access to service for Customer's account(s) upon an indication of credit problem, including delinquent payments.

Datacruz reserves the right to change without notice the Datacruz service, including but not limited to: access procedures, hours of operation, menu structures, commands, documentation, vendors and services offered.

Legal

Datacruz/Customer Rights and Responsibilities

If Customer is less than eighteen years of age, his/her parent or legal guardian must complete a notarized consent form and assume complete responsibility for said account(s).

Datacruz shall not be responsible for lack of privacy, large overtime bills or any other consequences of account sharing. Sharing of accounts is not allowed. Datacruz will cancel without any compensation an unlimited usage account used by more than one user.

Customer is responsible for all use of his/her account(s) and the confidentiality of password(s). Datacruz will suspend access or change access to Customer's account within twenty-four hours or less after notification by Customer that his/her password has been lost, stolen or otherwise compromised.

Customer is responsible for any and all local or long-distance telephone charges for connecting to Datacruz.

Datacruz reserves the right to change prices at any time.

Datacruz has the right to refuse services to anyone.

Neither Datacruz nor its Information Providers are responsible for any damages arising from Customer's use of Datacruz or by Customer's inability to use Datacruz's service.

The use of a Datacruz individual access account for advertising or promotion of a commercial product or service is prohibited. This prohibition is primarily for, but not limited to, HTML documents made available for viewing with a WWW browser application. Datacruz reserves the right to view html directories in order to determine compliance, and may at any time request that an individual account be converted to commercial service. Datacruz shall be the final arbiter of what constitutes commercial content. Violators are subject to immediate termination of their account.

Datacruz is not responsible for Customer's data (i.e. electronic mail, files, database records) residing on Datacruz equipment.

Customer is responsible for independent backup of data stored at Datacruz.

Although Datacruz implements the latest technology for information protection there is no guarantee that data is absolutely secured or never may be destroyed. Customer agrees to keep Datacruz harmless in case of any loss including: loss of information or loss of privacy.

Datacruz reserves the right to delete Customer's data after one or both parties terminates service.

Datacruz reserves the right, at its sole discretion, to delete any information entered into Datacruz by Customer. Datacruz and its authorized representatives shall have the right, but shall not be obligated, to edit publicly viewable information.

Datacruz shall not be liable for any consequential, incidental, indirect, or special damages arising out of or caused by mistakes, omissions, interruptions, delays, errors, or defects or otherwise occurring in the course of furnishing service. Datacruz's liability for direct damages shall in no event exceed an amount equivalent to the proportionate net charge to Customer for the period of service during which such mistakes, omissions, interruptions, delays, errors, or defects occur.

Datacruz's SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE MADE WITH RESPECT TO Datacruz INTERNET, INC. OR ANY INFORMATION OR SOFTWARE THEREIN. THIS "NO WARRANTY" EXPRESSLY INCLUDES ANY REIMBURSEMENT FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE BY Datacruz OR ITS PROVIDERS.

THE CUSTOMER HEREBY AGREES THAT ANY MATERIAL SUBMITTED FOR PUBLICATION OR STORAGE ON Datacruz's EQUIPMENT THROUGH Customer's ACCOUNT(S) DOES NOT VIOLATE OR INFRINGE ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW OR PROPRIETARY RIGHTS OF OTHERS, OR CONTAIN ANYTHING OBSCENE OR LIBELOUS.

Datacruz, at its sole business judgment, may terminate this membership Agreement immediately or suspend Customer's access to the service upon any breach of this membership Agreement by Customer, including, but not limited to, refusal or failure to pay for services provided or by sole judgment of Datacruz that Customer may be performing activities harmful to Datacruz or its Customers, employees, vendors, business relationships or any other users of the Internet.

Due to the public nature of the Internet, all electronic mail is considered publicly accessible and important information that should be treated carefully. Datacruz is not liable for protection or privacy of electronic mail and information transferred through the Internet.

Datacruz reserves the right to limit access to service for any Customer account which has been inactive for six months. Reactivation will be done at Customer's request, providing Customer's account is current in fees due.

Customer shall not use Datacruz electronic mail facilities for the distribution of mass mailings, whether unsolicited or through a controlled distribution list. Listserv arrangements may be made under a separate contract.

The laws of the State of Indiana shall govern this Agreement.

Datacruz may modify these terms and conditions upon notice published on-line or via electronic mail from Datacruz. Customer's use of Datacruz services after such notice shall constitute Customer's acceptance of the modifications to this Agreement.

Non-enforcement of any section of this Agreement does not constitute consent and Datacruz reserves the right to enforce this Agreement at its sole discretion.

If any paragraphs in this Agreement are found to be unenforceable or invalid, Customer's and Datacruz's agreement on all other paragraphs shall remain valid.

Customer understands that Datacruz acts as a gateway in providing access to the Internet and is not responsible for content on the Internet.

Any information regarding Datacruz and/or its customers shall be considered proprietary information and should not be disclosed, sold, or given away to anyone without Datacruz's explicit permission.

This agreement does cover the INTERNET services only. The hardware and/or the software for access to the INTERNET are not subject of this agreement, although those can be sold by the Datacruz to the Customer subject to a different contract.

1. Communication lines (if needed). Datacruz will arrange all the necessary lines for the services ordered to be installed at Customer's site by SBC at the regular SBC tarrifs. No extra charge. Datacruz is authorized by SBC to do so. SBC will charge Customer directly for installation and usage.
2. Price change. Datacruz has the right to change the price of the services to reflect a change in the cost of the service.
3. Start of services. The Services will be activated usually the same or next working day provided that the Customer has everything to be on Internet. If not a schedule will be provided. The Schedule for lines installation, equipment and software setup and services activation is an estimate only. The Datacruz will not be responsible for any damages a delay in the service set up may cause.
4. Quality of Services. Although the Datacruz will make the best efforts to provide quality and uninterrupted services this is not guaranteed. Datacruz will not be responsible for any damages a service interruption may cause to the Customer. Further Datacruz will not censor any content on the INTERNET. It will be Customer's responsibility for the usage of his account and any consequences of this usage.
5. Fees. Customer agrees to pay for the services setup fee, monthly fee, overtime fee (if any) and overusage fee (if any). The setup fee and first month fee is due upon the sign up. Datacruz will present a fee schedule to Customer before sign up.
6. Payments and collateral. Customer agrees his account to be charged as specified in the application and the bills to be sent to him by E-mail only. Customer agrees to notify the Datacruz in advance for changes in his credit card services, bank account # etc. Customer understands that he may switch between the methods of payment as outlined in the application, but under no circumstances may he choose other form of payment not listed there. Customer's servers and other equipment located at our premises will be used as a collateral for unpaid bills. Such servers and equipment will not be released until Customer pays his bills in full.
7. Late Payment. Customer agrees to pay one time penalty of 6% of the amount due plus 1.5% per month for delayed payments.
8. Lawfull use of the INTERNET. Customer agrees to use the INTERNET in accordance with the law and with the ethical rules established or to be set up in the future. Customer understands that SPAMming is not ethical and not legal in many cases too. For non complying with this clause the following measures will be undertaken:
   • immediate termination of the services without any compensation
   • Customer will be responsible for the full amount of any tangible and intangible damages.
   • for Customers hosting their equipment with the Datacruz, the equipment will be hold as collateral until such charges are paid in full.
9. Keep harmless. Customer agrees to keep Datacruz harmless if Customer's actions or non-actions on the INTERNET create any legal responsibilities.
10. Unlimited usage accounts. All unlimited usage accounts are subject to the following restrictions:
    • Only for personal use. Any kind of reselling, sharing, service providing to other parties, public use, hook up of servers, use of software for purposes other than regular Internet browsing etc. is strictly prohibited. Violators accounts will be canceled without compensation.
11. FREE HOURS. Some accounts include limited FREE hours. Hourly rate applies thereafter. Such accounts are for individual use only. There is restriction one account per household. Billing is in hourly increments for extra hours. The billing cycle will be set depending on the usage. Usage reports and balance statements will be sent to the customer via E-Mail. Free hours accounts are valid for one year.
12. Email Usage. All email accounts hosted by Datacruz are designed to be temporary storage until Customer can download the email onto their own local storage. Datacruz reserves the right to delete any and all "OLD" email (OLD being defined as the customer having the chance to check and download mail since it was received, and/or email over 1 months old, whichever comes FIRST). Customers are expected to configure their email software to delete the mail after it is read from our server. Please refer to your email documentation or call our technical support to have them help you configure your software. Typically Datacruz leaves mail on the server for longer than one (1) month unless it has been determined that their is a problem. Customers who routinely leave large quantities of email on the server may be billed for "overusage" charges on thier disk space. Each dialup account comes with some "web space" and the combined totals of the webspace and the email will be used to bill for this overusage.

Datacruz shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond Datacruz's reasonable control. In the event of any such delay or failure, performance of the Services shall be deferred to a date and time mutually agreeable by the parties.

The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.

Datacruz reserves the right to change this agreement at will by posting the latest revision at http://www.datacruz.com/service_agreement.php

Performance of any obligation required of a party thereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.

This Agreement was entered into in the State of Indiana and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of Indiana applicable to contracts entered into and performed entirely within the State of Indiana.

Any action at law or in equity arising under this Agreement shall be filed only in Courts of the State of Indiana for the County of St. Joseph or the United States District Court for the Northwestern District of Indiana. The parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

Any dispute arising under this agreement shall be resolved by binding arbitration under the rules of the American Arbitration Association.

Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn't assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.

If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.

Each party acknowledges and represents that, in executing this Agreement, it has received advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.

This document was last modified on 5/19/2008