2. Services to be provided by Provider
Provider will provide the Service
to the Customer in accordance with the terms and conditions of this Agreement.
The Services may include some or
all of the following components:
- ad blocking and pop up
- anti spyware
- parental control
- any other functions,
offered in the Proxyconn Client software
The components, actually included
in the service, are indicated on the sign up page or on the page,
leading to the sign up, or in the software, offered for download after sign
If the Service or Client Software are not marked with the word Broadband: a
modified web proxy/caching server that stands between the user and the world
wide web sites being visited and the Client Software. It is designed to handle
some of the HTTP requests and other data transactions between the user's
computer and the websites or other computers on the Internet and employs
compression, caching and other transformation of some of the responses in
order to increase perceived speed of the browsing by the user. The user
is advised, that the use of the caching may cause delivery of a “stale”
response instead of a “fresh” one, and the lossy compression may cause
"blurring" of images. The Proxyconn system is designed to handle some
other protocols as well, including POP3, IMAP and NNTP. The user may not use the
Service over an Internet connection, faster than 200kbps.
If the Service or Client
Software are marked with the word Broadband: Provider's proxy/caching
server is not being employed and the user may use the Service over an Internet
connection, faster than 200kbps.
Ad blocking and Pop up blocking:
If the user employs "ad blocking"
and "pop up blocking" features of the service, the user authorizes Provider to
block any content, which is recognized by the Provider's software as an 'ad'
or 'pop up' or "pop under".
Anti spyware component is designed
to discover and destroy, disable or block some other software, installed on
the Customer's computer, which is designed to benefit third parties, rather
than the Customer, in the sole opinion of Provider. It is not designed
to provide security.
Antivirus component is designed
to detect and destroy majority of the computer viruses and worms and many "trojan
horses". It is capable of scanning for viruses on the computer and in
POP3 email, being received by Microsoft Outlook or Microsoft Outlook Express.
It can not guarantee total protection from the threats above and it is not
designed to protect against other threats. It is responsibility of the
customer to enable and/or run antivirus with correct options.
Parental control is designed to
allow a parent to enter a list of web sites or domains, that are allowed or
banned to browse from the Customer's computer. The customer is advised,
that the protection may be disabled or bypassed by a person with sufficient
computer skills and/or sufficient access rights to the computer.
Fees and Payment
The Customer must pay the Fee in respect of the Service supplied by Provider
to the Customer at the times and in the manner specified on the Provider’s
Any variation to the Fee will
be at the discretion of Provider. Provider reserve the right to decrease the
Fee for the new users, while old users would be charged the Fee before such
Should the customer not wish to
pay any increased Fee when the next payment is due, they may elect to
terminate this agreement.
Provider reserves the right to
terminate any accounts that are not renewed at the expiration of their term.
Provider may offer one time
payment Service option. If the Customer paid for this option, the
Customer acquires the license for perpetual use of the Service, subject to
other clauses of the Agreement. Provider does not promise software or
configuration upgrades to the Customers, who selected this option. If
Provider provides such upgrades or updates, they will be subject to this
At the time of the credit card
submission, the Customer authorizes Provider to "pre-authorize" the Customer's
credit or ATM card for the sum of the first payment.
There are no refunds after
expiration of the trial period. If the Customer paid for 12 or more months of
the Service and wishes to cancel after less than 6 months, Provider may refund
the rest of the paid sum, after deducting the corresponding monthly Service
fees for all full and partial months since Service term start and
deducting the processing fee of $10. There is no trial period for
Subject to clause 12, this agreement will commence on the Commencement Date
and, will continue for the Initial Period. At the end of this term either
party may terminate this agreement. The term will automatically renew every
period (equal to the Initial Period) on the terms that and conditions set
forth herein so long as the Customer makes payments or in the case of
nonpaying customers so long as they use the service.
6. Maintenance and Support of Service
Provider will use reasonable efforts to provide the Customer with the Service.
Provider will use reasonable
efforts to restore all faults.
Provider's obligations do not cover maintenance necessitated as a
- Any fault in equipment or
software not forming part of the Service.
- Damage due to causes
external to the Service.
- Any upgrades required by
changes in technology.
Responsibilities of Customer
At the request of Provider, the Customer must provide such information and
assistance as are reasonably required by Provider in order to enable Provider
to meet its obligations under this agreement.
The Customer must comply with
all reasonable directions and instructions of Provider in relation to the
Customer's use of the Service and must ensure that anyone using the Customer's
account also comply with all reasonable directions and instructions of
Provider in relation to the Customer's use of the Service provided, so long as
notice is given to the Customer of any of the same, and made known to the
The Customer shall not use, or
suffer or permit another person to use the Service in, or in relation to the
commission of an offense against the laws of the United States or of any State
or territory of the United States or the country, where the customer resides.
The Customer's use of the
service shall not breach the rights of third parties. More specifically,
the Customer's use of the ad blocking, pop up blocking and anti spyware
features shall not conflict with the software or content licenses, granted to
the Customer by third parties.
The Customer shall not use the
service for spamming.
The Customer shall take every
reasonable precaution that no person is able to make unauthorized use of or
gain unauthorized access to the Service provided to the Customer pursuant to
The Customer may use the
Service on one computer system only. Using the service on more than one
computer with the same Access Code constitutes fraud and/or theft.
Providing credit card
information to Provider, the Customer acknowledges and agrees to the
- Provider shall charge the
credit card for the fees, as described above, and the Customer will pay all
- Provider does not disclose
any credit card information to third party solicitors. In the event of
unauthorized use of the credit card, the Customer must notify its credit
card provider in accordance with its reporting rules and procedures.
- If there is any dispute
regarding charges billed by Provider to the Customer’s credit card, the
Customer will contact Provider regarding such disputed charges (along with a
reasonably detailed explanation of the dispute) and shall work with Provider
in good faith to resolve the dispute. The Customer agrees not to submit a
chargeback request related to any disputed charge until the Customer have
first engaged in the foregoing dispute resolution process.
Privacy Rights, Confidentiality and Ownership of Data
For information regarding the Customer’s privacy and Provider, please see the
to periodically review this statement.
Customer agrees to receive
commercial emails from Provider for the term of this Agreement and for the
period of 18 months after its termination.
Disclosure of any information,
derived from the use of the Product, including the results of any benchmark
test to any third party without Proxyconn Inc.'s prior written approval is
prohibited. This clause shall survive the EULA termination.
Provider gives no warranty or guarantee in relation to the performance,
features, compatibility, content or otherwise of any connected Internet
service or host/computer connected to the Service. IN ADDITION, EXCEPT FOR THE
EXPRESS WARRANTIES AND UNDERTAKINGS SET FORTH IN THIS AGREEMENT, PROXYCONN,
INC. DISCLAIMS ALL WARRANTIES RESPECTING THE EFFICACY OF ITS SERVICES PROVIDED
UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
The Customer agrees to indemnify Provider and holds Provider harmless from and
against any loss, cost, expense or liability arising from any claims, demands
or proceedings by any person against Provider whatsoever arising out of:
the use or attempted use of the Service by the Customer or by any person
authorized by the Customer or from the use of any facility or equipment
connected to the Service by the Customer or any person authorized by the
any hardware or software contamination resulting from the use by the Customer
or by any person authorized by the Customer;
The Customer agrees to
indemnify Provider and holds Provider harmless from and against any loss,
cost, expense or liability arising from any claims, demands or proceedings by
any person against Provider whatsoever arising out of any action brought by
any third party against Provider for infringement of that third party's
Intellectual Property Rights due to the Customer's use of the Service provided
to the Customer pursuant to this agreement or due to the use of the Service by
any person authorized by the Customer to use the Service provided to the
Customer pursuant to this agreement or Provider's possession of Customer's
information in accordance with this agreement except to the extent that such
loss, cost, expense or liability arises from or is attributable to any willful
misconduct on the part of Provider.
Except as provided to the contrary in this Agreement and to the full extent
permitted by law, all terms, conditions, warranties, undertakings, inducements
or representations whether express, implied, statutory or otherwise relating
in any way to the provision of the Service or other obligations under this
agreement will be excluded. Without limiting the generality of the preceding
sentence and except as expressly provided in this agreement, Provider will not
be under any liability (including liability as to negligence) to the Customer
or to any third party in respect of any loss or damage (including
consequential loss or damage), however caused, which may be suffered or
incurred or which may arise directly or indirectly as a result of or in
connection with the provision of the Services or Provider's failure to comply
with Provider's obligations under this Agreement except as expressly provided
in this Agreement.
Either party is entitled to terminate this agreement at any time by notice in
writing to the other party.
Customer may terminate the
agreement by electronic means, using a cancellation procedure, recommended by
the Provider. Currently, the cancellation procedure consists of canceling the
Service in the My Account area on the Provider’s website and of running the
Software, provided by the Provider, with the option “Un-Install”, on the
computer, connected to the Service.
Provider may terminate the
agreement electronically by sending an email message to the Customer or by
displaying a message on the monitor of the Customer's computer using the
The termination of this
agreement for whatever reason is without prejudice to any rights that have
accrued to either party prior to the date of termination.
If the Provider terminates the
Service during a paid period, the Provider shall reimburse the Customer for
the unused part of the period prorated from the month following the
termination date. Provider shall not reimburse Customer if Customer terminates
the Agreement or if the Agreement is terminated for breach of this Agreement
Provider may suspend or
restrict provision of the Service to the Customer at any time in the event of
an emergency or whenever Provider considers it necessary or reasonable in
order to safeguard provision of the Service.
The law of the State of California applies to this Agreement and the rights, duties and obligations of the parties hereto. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by binding arbitration in Orange County, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS/Endispute ("JAMS"), with the following exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator. Each party shall bear its own attorneys fees and expenses. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this subsection shall be construed as precluding the bringing an action for injunctive relief or other equitable relief. The parties agree that the arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement including the arbitrator shall not have the power to amend liability limitations as stated
in this Agreement. The arbitrator shall be required to follow applicable law. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and either party may seek injunctive relief in any United States or foreign court.
For disputes that arise out of or under this Agreement the prevailing party
shall be entitled to recover reasonable attorneys fees and all costs incurred
in litigating or arbitrating the dispute.
If the dispute relates to the
construction or interpretation of the terms and conditions of this agreement,
the dispute must be dealt with by a court.
The Customer must pay, and must keep Provider indemnified against any Tax with
the exception of income tax payable upon or in respect of this agreement or
any services, payments, document, transaction or matter referred to in or
contemplated by this agreement.
The Customer must not assign any of the Customer's rights under this agreement
without the prior written consent of Provider.
Provider may assign any of its rights under this Agreement without the consent
of the Customer, however Provider must notify the Customer in the event that
Provider exercises this power.
A provision of, or the application of a provision of, this agreement that is
prohibited in any jurisdiction, is in that jurisdiction, ineffective only to
the extent of that prohibition.
A provision of, or the application of a provision of, this agreement which is
void, illegal or unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that provision in any other
jurisdiction or of the remaining provisions in that or any other
If a provision of this agreement is void, illegal or unenforceable, it may be
severed without affecting the validity, legality or enforceability of the
other provisions of this agreement.
Waiver of a breach of this agreement, or of any rights created by, or arising
upon default, under this agreement, must be in writing and signed by the party
granting the waiver.
A breach of this agreement is
not waived by a failure to exercise, a delay in exercising, or a partial
exercise of, any remedy available under this agreement or in law or equity.
A right created by, or arising
upon, default under this agreement, is not waived by a failure exercise, a
delay in exercising, or a partial exercise of, that right.
Variation of a term of this
agreement must be in writing and signed by the parties.
This agreement is the entire agreement between the parties in respect to this
subject matter. Provider may amend these terms and conditions at its
discretion, however the amended terms and conditions come into force if and
when the Agreement is next renewed, until then the agreed to terms and
conditions remain in force.
If a party is prevented from performing an obligation under this agreement
because of events or circumstances beyond the reasonable control of, and not
reasonably foreseeable by, the party, the party will be granted a reasonable
extension of time to perform the obligation if:
the party notifies the other party as soon as is reasonably practicable of the
events or circumstances and of the period that the party expects to be
prevented from performing the obligation; and
the party takes all reasonable steps to avoid or limit the effects of the
events or circumstances or to render to the reasonable satisfaction of the
other party the equivalent of performance of the obligation.
If a party is, or is reasonably likely to be, prevented from performing a
material obligation for a period greater than 3 months, the other party may
terminate this agreement immediately by giving notice in writing to the first
The events and circumstances contemplated under clause 15.5 include (but are
not limited to) acts of God, war, hurricanes, tornadoes, earthquakes, flood,
legislation and strikes.
Nothing in this agreement will constitute or be deemed to constitute a
partnership between the parties or constitute or be deemed to constitute the
Customer as agent for Provider for any purpose and neither party has the
authority or power to bind the other or contract in the name of the other in
any way or for any purpose other than as specifically contemplated by this
Provider may sub-contract for the performance of this agreement or any part
Any notice given under or pursuant to this agreement must be in writing and
will be deemed duly given or made if delivered or sent by United States Postal
Service First Class mail, hand delivery, electronic mail with return receipt
requested, by posting to a document on the Proxyconn World Wide Web site, or
by facsimile transmission to the address of the relevant party specified in
this agreement and marked to the attention of:
(in the case of Provider) – the Accounts Manager.
(in the case of the Customer) - the account in the Application Form. In
addition: any notice, demand or other communication will be deemed, in the
absence of proof to the contrary, to have been received by the person to whom
it was sent:
- In the case of hand
delivery, upon delivery;
- In the case of United States
Postal Service First Class mail, ten (10) days after the date of dispatch;
- In the case of electronic
mail, twelve (12) hours if no delivery trouble has been reported.
- In the case of posting to
the Proxyconn World Wide Web Site (http://www.proxyconn.com/), seven (7)
- In the case of facsimile
transmission, on the next business day following successful transmission as
evidenced by the sender's facsimile machine statement.
This agreement is governed by and will be construed in accordance with the
laws of the State of California, United States of America.
Negotiation of special terms
All terms within agreement may be modified on a case by case basis, however
the cost of having an attorney licensed in California review each modification
will be prorated along with the normal Fee over one year for the new
Export Control Laws
Software available on the Proxyconn web site is subject to United States
export controls. No software from this site may be downloaded or otherwise
exported or re-exported: (1) into (or to a national or resident of) Cuba,
Syria, Iraq, Libya, Sudan, North Korea, Iran, or any other country to which the
United States has embargoed goods; or (2) to anyone on the United States
Treasury Department's list of Specially Designated Nationals or the United
States Commerce Department's Table of Denial and Prohibition Orders.
By downloading or using software from this site, you are agreeing to the
foregoing and all applicable export control laws. You are also warranting that
you are not under the control of, located in, or a resident or national of any
such country or on any such list.
The information on export laws provided herein is not necessarily complete.
For more information on export laws, please telephone the United States
Commerce Department, Bureau of Export Administration.
of Client Software.
If the Customer downloads a software from the Provider’s website, the Customer
agrees to be bound by the following license.
SOFTWARE LICENSE AGREEMENT
UPON ACCEPTANCE OF THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT"),
PROXYCONN GRANTS TO THE REQUESTER A LIMITED NON-EXCLUSIVE LICENSE TO USE THE
SOFTWARE AND DOCUMENTATION (THE "PROGRAMS") AS FOLLOWS:
Following download, Licensee may install and use the the Software and
documentation (the "Programs") on one computer system and for the number of
users specified in the License to be delivered by Proxyconn. Licensee shall
not remove any copyright notices or other proprietary notices from the
Programs, and Licensee must reproduce such notices on all copies or extracts
of the Programs. Licensee may use the Software only as long as he or she is
a subscriber in good standing to the Proxyconn Service
The Programs are owned by Proxyconn, Inc., and are protected by copyright
laws. Licensee acquires only the non-exclusive right to use the Programs at
no charge, and does not acquire any right of ownership in the Programs. Proxyconn products and/or the use of such products are covered and protected by U.S. patent No. 6,757,717. Additional U.S. and/or international patents may be issued and pending. Please contact Proxyconn Inc. if you have any questions regarding Proxyconn's issued patents
Licensee may NOT use, copy, distribute, electronically transfer, reverse
assemble or reverse compile the Programs or any portion thereof, or
translate or convert them to human readable form. If Licensee modifies,
reverse engineers, reverse assembles, or makes any modifications to the
code, any such action automatically terminates the license agreement and
Proxyconn is not responsible for any side effects resulting from such
reverse engineering. Licensee may not use the Programs for any development,
commercial or production purpose. Licensee may not enhance, improve, adapt
or modify the Programs, except as expressly permitted or required by
Proxyconn. In the event Licensee devises, designs, discovers or formulates
any enhancement, improvement, adaptation or modification ("the Work") to the
Programs, Licensee shall provide full details thereof to Proxyconn who shall
have exclusive ownership of the Work.
- WARRANTY DISCLAIMER:
The Programs are provided on an "as is" basis, without warranty of any kind,
including without limitation the warranties of merchantability, fitness for
a particular purpose and non-infringement. Proxyconn does not warrant that
the Programs will meet Licensee’s requirements, nor does it warrant that the
operation of the Programs be error-free. Licensee agrees to assume the
responsibility to take adequate precautions against damages to Licensee’s
operations, which could be caused by defects or deficiencies in the
- LIMITATION ON LIABILITY:
NEITHER PROXYCONN NOR ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE
HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY INACCURACY OF DATA, LOSS OF
PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Program is provided on an "as is" basis. Installation and setup
assistance may be provided through email or Proxyconn’s web site at http://www.proxyconn.com.
This Agreement does not entitle Licensee to any other maintenance, services,
updates or new versions of the Programs.
All disclaimers of warranties and limitations of liability shall survive any
termination of this Agreement.
16. Definitions and Interpretation
In this agreement:
"Application Form" means
the form used to apply for the Service.
"Business day" means any
day, other than a Saturday, Sunday or recognized public holiday in the state
means the date on which this agreement is agreed to.
"Customer" The person
agreeing to this agreement.
"Fee" means the fee as
set out on the Proxyconn website payable by the Customer in accordance with
this agreement for the provision the Service.
inventions, discoveries and novel designs, whether or not patented, patent
pending, or patentable, including (but not limited to) developments or
improvements of equipment, products technology, processes, methods,
techniques, or any other novel concepts reduced to practice;
copyright (including future copyright) throughout the world in all literary
works, artistic works, computer software, and any other works or subject
matter in which copyright subsists and may in the future subsist;
confidential information, trade secrets and trade and service marks (whether
registered or unregistered); and
proprietary rights under the Semiconductor Chip Protection Act of 1984.
"Internet" means the
international network of data networks utilizing the TCP/IP communications
protocol of which the Provider Internet Access Service Network forms part.
"Initial Period" means
the initial term of payment (monthly, quarterly, yearly or as arranged) from
the commencement date. The length of this period depends on the initial
payment by the Customer. For nonpaying customers, the initial period is for
the duration of the customer’s use of the service.
"Netiquette" means those sets
of norms that are generally recognized by the Internet community as acceptable
means of interaction. The provider is the final arbiter of disputed breaches
"Normal Business Hours"
means 9:00 AM to 5:00 PM Pacific Standard Time, Monday through Friday.
"Provider Internet Access
Service Network" means the data communication network owned and operated
by Provider and based on TCP/IP and other Internet protocols which provides
interconnection between the computer networks of various persons and entities
and other computer networks within the United States and overseas.
"Provider Internet Point of
Presence" means the location at which the telecommunications equipment,
used by Provider to provide the Service to the Customer, is situated and to
which each user of the Service obtains connection in order to use the Service
and gain access to the Provider Internet Access Service Network.
"Provider Customer Service"
means the Provider point of contact for reporting of faults in the Service,
the contact details for which are specified on the Provider’s website.
any tax, levy, charge, impost, duty, fee, deduction, compulsory loan or
any stamp or transaction duty, tax or charge;
that is assessed, levied, imposed or collected by any governmental body and
includes (but is not limited to) any interest, fine, penalty, charge, fee or
other amount imposed on or in respect of any of the above.
"TCP/IP" means the
Transmission Control Protocol/Internet Protocol in general use throughout the
"Under-age" mean any human who has yet to reach the age of majority within
their jurisdiction or the age of majority within California (currently 18
years of age), whichever is higher.
"World Wide Web Server"
means a computer system that facilitates access to multimedia documents using
the HyperText Transfer Protocol (HTTP).
"Written" or "in
writing" includes printing and other means of representing or reproducing
words in material form (such as electronic mail).
"Year" means calendar
Interpretations and Considerations
In this document unless the
context otherwise requires:
- words importing the singular
include the plural and vice versa;
- words importing any gender
include the other genders;
- references to persons
include corporations, partnerships, entities and all other bodies politic;
- references to a person
include the legal personal representatives, successors and assigns of that
- a reference to a statute,
ordinance, code or other law includes regulations and other statutory
instruments under it and consolidations, amendments, reenactments or
replacements or any to them (whether of the same or any other legislative
authority having jurisdiction), and includes a reference to reasonably
equivalent statutes, ordinances, codes or laws in other jurisdiction;
- references to this or any
other document include the document as varied or replaced, and
notwithstanding any change in the identity of the parties;
references to writing include any mode of representing or reproducing words
in visible form, and includes electronic mail, telex and facsimile
- an obligation imposed on
customers numbering two or more shall bind them jointly and severally;
if a word or phrase is defined, cognate words and phrases have corresponding
Headings shall be ignored in
construing the Agreement.