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TERMS OF USE
Effective Date: June 4, 2007
Welcome to the Ponderosa website located at
http://www.goponderosa.com
(the "Site"). The Site provides information regarding
services provided by The Ponderosa Telephone Co., Ponderosa
Internet, Ponderosa Long Distance, and Ponderosa Cablevision
("Ponderosa", "we", "us"). Before using this Site, please
review the terms of use set forth below.
BINDING EFFECT.
This
is a binding agreement. By using the Site or any services
provided in connection with the Site, including but not
limited to any electronic transmission (e.g., text messages)
sent, received, posted, accessed, or stored via any
Ponderosa network, including without limitation access for
communicating with Ponderosa employees (the "Service"), the
user or viewer of our Site ("you") are agreeing to comply
with and be bound by the following Terms of Use Agreement
("Agreement"), including all documents, policies, and
guidelines incorporated herein. This Agreement does not
alter the terms and conditions of any tariff, or other
written or online agreement you may have or will have with
Ponderosa, which govern in the event of any inconsistency
with the terms below. This Agreement may be amended at any
time by us from time to time without specific notice to
you. Any changes or modifications will be effective upon
posting and your use of the Site following the posting will
constitute your acceptance of the Agreement as revised. If
at any time you find these Terms of Use unacceptable, you
must immediately leave the Site and cease all use of the
Service and the Site. YOU AGREE THAT BY USING THE SERVICE
YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT
YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.
PRIVACY POLICY.
Ponderosa respects your privacy, believes strongly in
protecting your privacy, and permits you to have some
control of the treatment of your personal information held
by us in the course of business. A complete statement of
Ponderosa's current
Privacy Policy can be found by clicking
here.
Ponderosa's privacy policy is expressly incorporated into
this Agreement by this reference.
LIMITED LICENSE; PERMITTED USES.
You are granted a non-exclusive, non-transferable, revocable
license (a) to access and use the Site solely in accordance
with this Agreement; (b) to use the Site solely for
internal, personal, non-commercial purposes; and (c) to
print out discrete information from the Site solely for
internal, personal, non-commercial purposes and provided
that you maintain all copyright and other policies contained
therein. No print-out or electronic version of any part of
the Site or its contents may be used by you in any
litigation or arbitration matter whatsoever under any
circumstances.
COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS.
When
accessing the Site or using the Service, you agree to obey
the law and to respect the intellectual property rights of
others. Your use of the Service and the Site is at all
times governed by and subject to laws regarding copyright
ownership and use of intellectual property. You agree not
to upload, display, perform, transmit, or otherwise
distribute any information or content (collectively,
“Content”) in violation of any third party’s copyrights,
trademarks, or other intellectual property or proprietary
rights. You agree to abide by laws regarding copyright
ownership and use of intellectual property, and you shall be
solely responsible for any violations of any relevant laws
and for any infringements of third party rights caused by
any Content you provide or transmit, or that is provided or
transmitted using your telephone number or user
identification number. The burden of proving that any
Content does not violate any laws or third party rights
rests solely with you.
INAPPROPRIATE CONTENT.
You
shall not make the following types of Content available.
You agree not to upload, download, display, perform,
transmit, or otherwise distribute any Content that (a) is
libelous, defamatory, obscene, pornographic, abusive, or
threatening; (b) advocates or encourages conduct that could
constitute a criminal offense, gives rise to civil
liability, or otherwise violate any applicable local, state,
national, or foreign law or regulation; or (c) advertises or
otherwise solicits funds or is a solicitation for goods or
services. Ponderosa reserves the right to terminate your
receipt, transmission, or other distribution of any such
material using the Service, and, if applicable, to delete
any such material from its servers. Ponderosa intends to
cooperate fully with any law enforcement officials or
agencies in the investigation of any violation of these
Terms of Use or of any applicable laws.
AFFILIATED SITES.
Ponderosa has no control over, and no liability for, any
third party websites or content. Ponderosa works with a
number of partners and affiliates whose Internet sites may
be linked with the Site. These links are provided for
convenience only. Because neither Ponderosa nor the Site
has control over the content and performance of these
partner and affiliate sites, Ponderosa makes no guarantees
about the accuracy, currency, content, or quality of the
information provided by such sites, and Ponderosa assumes no
responsibility for unintended, objectionable, inaccurate,
misleading, or unlawful content that may reside on those
sites. Similarly, from time to time in connection with your
use of the Site, you may have access to content (including,
but not limited to, websites) that are owned by third
parties. Reference herein to any products, services,
processes, hypertext links to third parties or other
information by trade name, trademark, manufacturer, supplier
or otherwise does not constitute or imply its endorsement,
sponsorship or recommendation by Ponderosa. Product and
service information is the responsibility of each individual
vendor. You acknowledge and agree that Ponderosa makes no
guarantees about, and assumes no responsibility for, the
accuracy, currency, content, or quality of this third party
content, and that, unless expressly provided otherwise,
these Terms of Use shall govern your use of any and all
third party content.
COPYRIGHT INFRINGEMENT.
Ponderosa has in place certain legally mandated procedures
regarding allegations of copyright infringement occurring on
the Site or with the Service. Ponderosa has adopted a
policy that provides for the immediate suspension and/or
termination of any Service user who is found to have
infringed on the rights of Ponderosa or of a third party, or
otherwise violated any intellectual property laws or
regulations. Ponderosa's policy is to investigate any
allegations of copyright infringement brought to its
attention. If you have evidence, know, or have a good faith
belief that your rights or the rights of a third party have
been violated (e.g. copied, posted, stored, or transmitted)
and you want Ponderosa to delete or edit the material in
question, you must provide Ponderosa with all of the
following information: (a) a physical or electronic
signature of a person authorized to act on behalf of the
owner of the exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have
been infringed, or, if multiple copyrighted works are
covered by a single notification, a representative list of
such works; (c) identification of the material that is
claimed to be infringed or to be the subject of infringing
activity and that is to be removed, and information
reasonably sufficient to permit Ponderosa to locate the
material; (d) information reasonably sufficient to permit
Ponderosa to contact you, such as an address, telephone
number, and if available, an electronic mail address at
which you may be contacted; (e) a statement that you have a
good faith belief that use of the material in the manner
complained of is not authorized by the copyright owner, its
agent, or the law; and (f) a statement that the information
in the notification is accurate, and under penalty of
perjury, that you are authorized to act on behalf of the
owner of an exclusive right that is allegedly infringed.
For this notification to be effective, you must provide it
to Ponderosa's designated agent listed in the "Contacting
Us" section below.
ALLEGED VIOLATIONS.
Ponderosa reserves the right to terminate your use of the
Service and/or the Site. To ensure that Ponderosa provides
a high quality experience for you and for other users of the
Site and the Service, you agree that Ponderosa or its
representatives may access your account and records on a
case-by-case basis to investigate complaints or allegations
of abuse, infringement of third party rights, or other
unauthorized uses of the Site or the Service. Ponderosa
does not intend to disclose the existence or occurrence of
such an investigation unless required by law, but Ponderosa
reserves the right to terminate your account or your access
to the Site immediately, with or without notice to you, and
without liability to you, if Ponderosa believes that you
have violated any Terms of Use, furnished Ponderosa with
false or misleading information, or interfered with use of
the Site or the Service by others.
NO
WARRANTIES.
YOU
UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY
MATERIAL DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH THE
SITE. PONDEROSA HEREBY DISCLAIMS ALL WARRANTIES. PONDEROSA
IS MAKING THE SITE AVAILABLE “AS IS" WITHOUT WARRANTY OF ANY
KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS
FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PONDEROSA EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE SITE OR THE SERVICE, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
PONDEROSA DOES NOT WARRANT THAT THE SITE OR THE SERVICE IS
FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES OR OTHER
HARMFUL COMPONENTS THAT MAY CONTAMINATE OR DESTROY
PROPERTIES. SIMILARLY, PONDEROSA IS NOT RESPONSIBLE FOR ANY
TYPOGRAPHICAL ERROR OR OMISSION RELATING TO PRICING OR
PICTURES. FINALLY, PONDEROSA CELLULAR DOES NOT WARRANT THAT
THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT
THE OPERATION OF THE SITE OR THE SERVICE WILL BE
UNINTERRUPTED OR ERROR-FREE.
LIMITED LIABILITY.
PONDEROSA'S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PONDEROSA BE
LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED
TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST
PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF
THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE
OF THE SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO
YOU BY PONDEROSA. THE AGGREGATE LIABILITY OF US AND ANY
AFFILIATED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT
OF OR RELATING TO THE SITE SHALL NOT EXCEED $100 AND THAT
AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY
HAVE AGAINST US AND ANY AFFILIATED PARTY. This limitation
shall apply regardless of whether the damages arise out of
breach of contract, tort, or any other legal theory or form
of action.
PROHIBITED USES.
Ponderosa imposes certain restrictions on your permissible
use of the Site and the Services. You are prohibited from
violating or attempting to violate any security features of
the Site or Services, including, without limitation, (a)
accessing content or data not intended for you, or logging
onto a server or account that you are not authorized to
access; (b) attempting to probe, scan, or test the
vulnerability of the Service, the Site, or any associated
system or network, or to breach security or authentication
measures without proper authorization; (c) interfering or
attempting to interfere with service to any user, host, or
network, including, without limitation, by means of
submitting a virus to the Site or Service, overloading,
“flooding,” “spamming,” “mail bombing,” or “crashing;” (d)
using the Site or Service to send unsolicited e-mail,
including, without limitation, promotions, or advertisements
for products or services; (e) forging any TCP/IP packet
header or any part of the header information in any e-mail
or in any posting using the Service; or (f) attempting to
modify, reverse-engineer, decompile, disassemble, or
otherwise reduce or attempt to reduce to a human-perceivable
form any of the source code used by Ponderosa in providing
the Site or Service. Any violation of system or network
security may subject you to civil and/or criminal liability.
PRODUCT AND SERVICE DESCRIPTION; PRICING.
Ponderosa and its affiliates, agents, and licensors offer
information on products and services on the Site and attempt
to be as accurate as possible. Yet, Ponderosa does not
guarantee that the information provided, with respect to the
products and service description, or other Site content is
accurate, complete, reliable current or error-free.
Therefore, Ponderosa reserves the right, at its discretion,
to correct any error on the Site at any time.
HOW
TO REPORT CHILD PORNOGRAPHY.
Child
pornography is the depiction of a child under the age of
eighteen (18) engaged in sexually explicit behavior. If you
or receive on your phone in an e-mail or picture message
what you believe to be child pornography, please immediately
contact your local FBI field office or the National Center
for Missing and Exploited Children (NCMEC). It is important
that you do not copy, send, or forward the content unless
and until you have been instructed to do so by an authorized
law enforcement officer. You can find contact information
for your local FBI office by visiting the following
website:
http://www.fbi.gov/contact/fo/fo.htm.
To contact NCMEC, please call 1-800-843-5678 (Child
Pornography Tipline). You can also file a report online at
the following NCMEC website: http://www.cybertipline.com.
INDEMNITY.
You
agree to indemnify Ponderosa for certain of your acts and
omissions. You agree to indemnify, defend, and hold
harmless Ponderosa, its affiliates, officers, directors,
employees, consultants, agents, and representatives from any
and all third party claims, losses, liability, damages,
and/or costs (including reasonable attorney fees and costs)
arising from your access to or use of the Site and Services,
your violation of these Terms of Use, or your infringement,
or infringement by any other user of your account, of any
intellectual property or other right of any person or
entity. Ponderosa will notify you promptly of any such
claim, loss, liability, or demand, and will provide you with
reasonable assistance, at your expense, in defending any
such claim, loss, liability, damage, or cost.
INTERNATIONAL USE.
Ponderosa does not represent that all information and
content available on or accessible through this Site is
appropriate for use in all geographic locations, especially
some locations outside the United States, and accessing such
from certain locations may be illegal and prohibited. Those
who do access or use this Site from those locations act on
their own initiative and Ponderosa is not responsible for
compliance with applicable laws, rules, and regulations.
You will not access the foregoing where prohibited by
applicable law, rule or regulation.
COPYRIGHT AND TRADEMARK.
The PONDEROSA TELEPHONE design is a registered trademark of
The Ponderosa Telephone Co. The PONDEROSA INTERNET design
is a registered trademark of Ponderosa Cablevision . The
content, organization, graphics, design, compilation,
magnetic translation, digital conversion and other matters
related to the Site are protected under applicable
copyrights, trademarks and other proprietary (including but
not limited to intellectual property) rights. Other than as
expressly permitted in the "LIMITED LICENSE; PERMITTED USES"
Section above, the copying, redistribution, use or
publication by you of any such matters or any part of the
Site, is strictly prohibited. You do not acquire ownership
rights to any article, document or other materials viewed
through the Site. The posting of information or materials
on the Site does not constitute a waiver of any right in
such information and materials. Some of the content on the
Site may be the copyrighted work of third parties. Nothing
contained on the Site should be understood as granting you a
license to use any of the trademarks, service marks, or
logos owned by Ponderosa or any third party.
GOVERNING LAW.
These
Terms of Use shall be construed in accordance with and
governed by the laws of the United States and the State of
California, without reference to their rules regarding
conflicts of law. You hereby irrevocably consent to the
exclusive jurisdiction of the state courts in Fresno County,
California, and federal courts in Fresno, California, U.S.A.
in all disputes arising out of or related to the use of the
Site or Service.
CALIFORNIA USE ONLY.
The
Site is controlled and operated by Ponderosa from its
offices in the State of California, U.S.A. Ponderosa makes
no representation that any of the materials or the services
to which you have been given access are available or
appropriate for use in other locations. Your use of or
access to the Site should not be construed as Ponderosa
purposefully availing itself of the benefits or privilege of
doing business in any state or jurisdiction other than
California.
MODIFICATIONS.
Ponderosa may, in its sole discretion and without prior
notice, (a) revise these Terms of Use; (b) modify the Site
and/or the Service(s); and (c) discontinue the Site and/or
Service(s) at any time. Ponderosa shall post any revision
to these Terms of Use to the Site, and the revision shall be
effective immediately on such posting. You agree to review
these Terms of Use and other online policies posted on the
Site periodically to be aware of any revisions. You agree
that, by continuing to use or access the Site following
notice of any revision, you shall abide by any such
revision.
MISCELLANEOUS.
Any
cause of action by you with respect to the Site must be
instituted within one (1) year after the cause of action
arose or be forever waived and barred. All actions shall be
subject to the limitations set forth in the "NO WARRANTIES"
and "LIMITATION OF LIABILITY" sections, above. The language
in this Agreement shall be interpreted as to its fair
meaning and not strictly for or against any party. Any rule
of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in
interpreting this Agreement. The headings in this Agreement
are included for convenience only and shall neither affect
the construction or interpretation of any provision of this
Agreement nor affect any of the rights or obligations of the
parties to this Agreement. Should any part of this
Agreement be held invalid or unenforceable, that portion
shall be construed as much as possibly consistent with
applicable law and the remaining portions shall remain in
full force and effect. To the extent that anything in or
associated with the Site is in conflict or inconsistent with
this Agreement, this Agreement shall take precedence. Our
failure to enforce any provision of this Agreement shall not
be deemed a waiver of such provision nor of the right to
enforce such provision. Neither the course of conduct
between you and us, nor trade practice, shall act to modify
any provision of this Agreement. Our rights under this
Agreement shall survive any termination of this Agreement.
ARBITRATION.
Any legal controversy or legal claim arising out of or
relating to this Agreement or the Site (excluding legal
action taken by us or you to collect or recover damages for,
or obtain any injunction relating to, intellectual property
ownership or infringement), shall be settled solely by
confidential binding arbitration in accordance with the
commercial arbitration rules of JAMS. Any such controversy
or claim shall be arbitrated on an individual basis, and
shall not be consolidated in any arbitration with any claim
or controversy of any other party. The arbitration shall be
conducted in San Francisco, California. Each party shall
bear one-half of the arbitration fees and costs incurred
through JAMS, and each party shall bear its own attorneys'
fees.
ACKNOWLEDGEMENT.
BY
USING THE SERVICE OR ACCESSING THE SITE, YOU ACKNOWLEDGE
THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND
BY THEM.
Contacting Us.
If you
have any questions, comments or complaints concerning this
these Terms of Use, please contact us at 1-800-682-1878 or
559-868-6000, e-mail us at
termsofuse@goponderosa.com, or
send any correspondence to Customer Operations Director, The
Ponderosa Telephone Co., P.O. Box 21, O'Neals, CA 93645.
Our representatives will endeavor to contact you within
fifteen (15) days of your inquiry.
561130.2 / 7024-1000
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