MAX INTERNET TERMS OF SERVICE - Effective February 9, 2001 Here are the rules that govern the use of an OMEGA COMMUNICATIONS, INC. (known hereafter as "THE COMPANY") Internet Account. By virtue of having THE COMPANY's Internet Account, you agree to these terms of service and are bound by them. If you do not agree with the Terms of Service, please E-mail our Billing Department at billing@omegacomminc.com to cancel your account. 1. MAX INTERNET'S INTERNET SERVICES (known hereafter as "THE SERVICE"), as operated by THE COMPANY, is a computer operated interactive communications, information and transaction service allowing access to The Internet, bulletin boards, private networks and other communications outlets. THE SERVICE is available to THE COMPANY's customers (known hereafter as "Members") through a Membership account (known hereafter as "Membership"). It is accessible through a Members personal computer, or other access device and a communications connection (e.g. modem, telephone line, router). 2. CAREFULLY READ the terms of this agreement, which governs your use of THE SERVICE. THE COMPANY may modify this agreement at any time and in any manner. Any modification is effective immediately upon either a posting to this Terms of Service webpage, Electronic Mail (known hereafter as "E-mail"), or conventional mail. If any modification to this agreement is unacceptable to you, you may immediately terminate your Membership as provided in Section 17 below. Your continued use of THE SERVICE following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). YOUR PRIVACY IS PARAMOUNT TO US, AND WE DO NOT SHARE YOUR PRIVATE INFORMATION. THE COMPANY does not make any of the personal information you have provided us available to any private or public entity outside of THE COMPANY, unless specifically requested and/or lawfully subpoenaed by a government or law enforcement agency. Information not shared and kept private includes but is not limited to; names, addresses, phone numbers, E-mail addresses, and/or payment information. We do not sell or trade this information to other third parties. We have appropriate security measures in place to protect against the loss, misuse or alteration of information that we have collected from you. THE COMPANY will not sell or provide your E-mail address to any third party for the sole purpose of soliciting you to purchase information, products or services via mass or "Spam" mailings. 3. THE COMPANY grants to you (known hereafter as a "Member") a non-exclusive, non-transferable right to access, use and display THE SERVICE on any machine(s) of which you are the primary user. Member may not, however, maintain access to THE SERVICE on more than one modem at any given time. THE SERVICE IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY THE COMPANY, ITS EMPLOYEES, LICENSORS OF THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE. 4. You understand that except for information, products, or services clearly identified as being supplied by THE COMPANY, neither THE COMPANY, nor any of its affiliates, operates or controls any information, products or services accessible through THE SERVICE in any way and that; except for such THE COMPANY identified information, products, or services, all information, products, or services offered or made available or accessible through THE SERVICE are offered or made available or accessible by third parties who are not affiliated with THE COMPANY or its affiliates. YOU EXPRESSLY AGREE that use of THE SERVICE is at your SOLE RISK and YOU AGREE that any information, product, or service accessible through THE SERVICE is WITHOUT WARRANTIES OF ANY KIND BY THE COMPANY AND ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. Member may order and purchase information, products, or services from other Members and users of other communications outlets, including The Internet. Member acknowledges that all transactions concerning third party (known hereafter as "Seller") information, products, or services, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between Seller and Member. THE COMPANY makes no warranties or representations whatsoever with regard to any information, products, or services provided by Seller. THE COMPANY shall not be a party to a transaction between Member and Seller, or be held or made liable for any cost or damage arising either directly or indirectly from any action or inaction of Seller or Member. 6. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL THE COMPANY, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE including but not limited to reliance on any information obtained on THE SERVICE; or that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, 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 THE COMPANY's records, programs or services. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION SHALL APPLY WHETHER OR NOT THE COMPANY IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE SERVICE. 7. Member is responsible for all charges (e.g., telephone) associated with connecting to THE SERVICE through an available access number. THE COMPANY will not be responsible for any long distance, or other phone charges that the Member may incur connecting to THE SERVICE, and it is up to the Member to determine THE COMPANY access phone number that is local to the location in which the Member is using THE SERVICE. Member is responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modems, routers, switches), or other access devices, necessary to access THE SERVICE. 8. Member certifies to THE COMPANY that he/she is not a minor. (A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision by the parent or guardian). For purposes of identification, billing and marketing, Member agrees to provide THE COMPANY with accurate, complete, and updated information required by registration to THE SERVICE (Member Registration Data), including Member's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number, expiration date, bank routing number, checking account number, etc). Member agrees to notify THE COMPANY within thirty (30) days of any changes in Member Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use THE SERVICE. 9. Accounts/Charges/Payment. (a) This Agreement applies to all accounts, sub-accounts, alternative account names associated with Member's principal account. Each Member is responsible for the use of his/her/its account(s) under any name on that account by any person, and for ensuring full compliance with this Agreement by all users of his/her/its account(s). THE SERVICE may not be transferred by the Member to any other party without prior written approval from THE COMPANY and is subject to any limits established by THE COMPANY. (b) Member is responsible for maintaining the confidentiality of his/her/its passwords. Member is responsible for all activities and charges resulting from use of Member's principal account with THE COMPANY. Member agrees to pay all monthly Membership fees, connect time charges, surcharges, applicable taxes and other charges incurred by Member and/or his/her/its designated users. In the event of a breach of security, Member will remain liable for any unauthorized use of THE SERVICE until Member notifies THE COMPANY by calling (800) 290-0461 (THE COMPANY's Customer Care group). (c) Current rates for using THE SERVICE may be obtained through THE COMPANY's website. THE COMPANY reserves the right to increase fees, surcharges, monthly Membership fees or to institute new fees at any time. THE COMPANY may reduce these fees at any time without notice to the Member. In the event that a Member's account is terminated or canceled, on-line time credited to Member's account is not convertible to cash or other form of credit. If THE COMPANY does not receive the full amount of Member's account balance when due, THE COMPANY reserves the right to suspend and/or terminate Member's access, and $35 will be added to Member's bill as a late charge and shall be due and payable. Restoration of access will be at the discretion of THE COMPANY and may be limited to the period for which past due payment has been rendered. Member shall also be liable for all attorney and collection fees arising from THE COMPANY's efforts to collect any unpaid balance of Member's account(s). 10. YOU UNDERSTAND that information available to you through THE COMPANY's Service may include MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT OR OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. THE COMPANY HAS NO RESPONSIBILITY FOR, OR CONTROL OVER SUCH MATERIALS. 11. Member recognizes that he or she is solely responsible for the content of any information Member accesses through the Service and that THE COMPANY will not monitor the Service to examine the content passing through it. Member agrees that if THE COMPANY is made aware of content that THE COMPANY deems in its sole discretion to be unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, THE COMPANY has the right, but not the obligation, to remove or deny access to such content. Member expressly agrees that THE COMPANY shall not be liable to Member for any action THE COMPANY takes to remove or restrict access to such material, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third-party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Member recognizes that THE COMPANY's actions with respect to all such material may include restriction, suspension or termination of Member's access privileges and/or deletion of the objectionable material. 12. Member acknowledges that he/she/it is expressly prohibited from utilizing THE SERVICE, THE COMPANY's equipment, or any E-mail, domain, IP or other electronic address THE COMPANY owns or provides the Member, in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of E-mail or Usenet (newsgroup) recipients (commonly know as "spamming"). This prohibition extends to the sending of unsolicited mass mailings from another service which in any way implicates the use of THE SERVICE, THE COMPANY's equipment, or any E-mail, domain, IP or electronic address THE COMPANY owns or provides the Member. A message is unsolicited if it is posted in violation of a USENET or newsgroup charter, and/or if it is sent to an E-mail recipient who has not requested or invited the message. For purposes of this provision, merely making one's e-mail address accessible to the public shall not constitute a request or invitation to receive messages. Member specifically agrees that he/she/it will not utilize THE SERVICE, THE COMPANY's equipment, or any E-mail, domain, IP or electronic address THE COMPANY owns or provides the Member in connection with the transmission of the same or substantially similar unsolicited message to 50 or more recipients or 15 or more Usenet or newsgroups in a single day. For each day upon which this provision (Section 12) is violated, Member agrees to pay THE COMPANY damages to compensate for the lost goodwill such a violation causes. THE COMPANY reserves the right to bill the Member who violates this provision, and the Member who violates this provision agrees to pay, the greater of $10.00 per unsolicited E-mail and/or Usenet message sent or $1,000.00, as well as appropriate attorneys fees. THE COMPANY, at its sole discretion, shall determine whether a violation was unintentional or willful. Payment by Member under this provision shall not prevent THE COMPANY from seeking to obtain other legal remedies against Member, including other damages or an injunction. 13. Member expressly agrees not to use THE SERVICE in a manner that is prohibited by any law or regulation or to facilitate the violation of any law or regulation. Member further agrees not to use THE SERVICE in a manner that will disrupt a third parties' use or enjoyment of THE SERVICE or other communications services and outlets. Member acknowledges that prohibited conduct includes, but is not limited to, use of THE SERVICE to invade the privacy of third parties, create denial-of-service data attacks against third parties or THE COMPANY, impersonation of THE COMPANY personnel, transmitting via E-mail, USENET, Chat service or the Member's personal webpage or website, abusive, profane, libelous, slanderous, threatening or otherwise harassing material and posting material in any USENET or newsgroups that is off-topic according to the charter or other public statement of the USENET or newsgroups. Member also agrees not to use THE SERVICE to solicit other Members to patronize competing Services, not to violate or tamper with the security of THE SERVICE or attempt to utilize another Member's account name or persona without authorization from that Member. 14. Member acknowledges that THE COMPANY shall not maintain more than 5 MB of E-mail storage for Member and that Member is responsible for ensuring that the level of E-mail storage remains below this 5 MB limit. Member also understands that E-mail will not be stored on THE COMPANY's mail servers for longer than 120 days. Member expressly agrees that THE COMPANY shall not be liable to Member or parties interacting with Member for any damages resulting from actions THE COMPANY takes to enforce this provision. 15. Member agrees that any personal webpage or personal website Member publishes in connection with THE SERVICE is intended for personal use and will not be used for commercial services. To ensure that all Members can use and enjoy the Service, Member agrees that THE COMPANY is entitled to suspend or terminate access to any Member's webpage or website if THE COMPANY determines that the webpage or website has, on any single day, received download traffic of ten megabytes (10,000K) or more, or exceeds the storage space allocated per the Membership agreement. Member expressly agrees that THE COMPANY shall not be liable to Member or parties interacting with Member for any damages resulting from action THE COMPANY takes to enforce this provision. 16. Member acknowledges that THE SERVICE is intended for periodic, active use of E-mail, Usenet newsgroups, file transfers via ftp, Internet relay chat, interactive games and browsing of the World Wide Web. Member agrees not to use to THE SERVICE to operate server programs, including, but not limited to mail servers, IRC servers, ftp servers or web servers. Member further agrees not to use THE SERVICE on a standby or inactive basis in order to maintain a connection. Automated electronic or mechanical processes employed to maintain a constant connection such as use of an auto-dialer, persistent checking of e-mail or "pinging" the host are expressly prohibited. Member agrees that THE COMPANY may terminate Member's connection following fifteen (15) minutes of inactivity as determined by THE COMPANY. THE COMPANY will allocate system resources to provide the best possible service to all Members. THE COMPANY reserves the right to limit, restrict or prioritize access to system resources, including CPU time, memory and disk space. 17. Member recognizes that this Agreement continues only for so long as the parties' mutually agree to continue it. Either Member or THE COMPANY may terminate the Agreement and Member's Membership at any time for any reason or no reason. THE COMPANY may also restrict, suspend or terminate, without notice, Member's access to and use of THE COMPANY Service upon any breach of this Agreement. In the event of any termination for breach of this Agreement, Member shall not establish a new Membership with THE COMPANY for 30 days from the date of termination. Member's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, practices of THE COMPANY operating THE SERVICE, change in the content of THE SERVICE, or any change in the amount or type of fees charged in connection with THE SERVICE, is to terminate Membership by delivering notice in writing to THE COMPANY; by fax (as noted on THE COMPANY's website), E-mail or written letter to THE COMPANY. Membership termination WILL ONLY be accepted by THE COMPANY from the Member in writing, and the Member understands they are responsible for all charges associated with the Membership until Membership termination is received by THE COMPANY, in writing. Termination will become effective the day THE COMPANY receives written notification of termination, or any future date specified in writing by Member which is acceptable to THE COMPANY. Upon termination of this Agreement, Member shall have no right whatsoever (a) to obtain any credit(s) otherwise due to Member, and such credit(s) will be forfeited, (b) to access through THE SERVICE, any materials stored on THE COMPANY's servers or The Internet or (c) to access any third-party providers of services, merchandise or information on The Internet through THE SERVICE, and THE COMPANY shall have no responsibility whatsoever to notify such third-party providers, nor shall THE COMPANY have any responsibility whatsoever for any damages that result from the lack of such notification. 18. Upon request of THE COMPANY, Member agrees to defend, indemnify and hold harmless THE COMPANY, its officers, directors, employees, agents and licensees, from any claims and expenses, including reasonable attorneys fees, arising out of or relating to Member's use of THE SERVICE. 20. Interpretation and enforcement of this agreement shall be governed by the laws of the State of Connecticut (excluding its choice of law rules). Member consents to personal jurisdiction in the federal and state courts of Connecticut for any action arising out of or relating to Member's use of THE SERVICE. The federal and state courts of Connecticut shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. 21. This Agreement constitutes the entire agreement between you and THE COMPANY with respect to THE SERVICE, and supersedes all prior agreements between you and THE COMPANY. THE COMPANY's failure to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the 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 provisions shall remain in full force and effect.