TERMS OF SERVICES AGREEMENT
For All Email Accounts

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1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE

The Down To Earth Network email service ("Service"), owned and operated by Down To Earth Enterprises  ("DTE"), is provided to you ("User") under the terms and conditions of this Terms of Services Agreement (TSA) and any operating rules or policies that may be published by DTE. The TSA comprises the entire agreement between User and DTE and supersedes all prior agreements between the parties regarding the subject matter contained herein. BY COMPLETING THE REGISTRATION PROCESS FOR A NEW ACCOUNT, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE TSA.

2. DESCRIPTION OF SERVICE

DTE is providing User with a capability to send and receive electronic mail ("email") via the World Wide Web on DTE's own system. DTE may impose a monthly maintenance fee upon User for this Service. User must: (1) provide all equipment, including a computer and modem, necessary to establish a connection to the World Wide Web; (2)provide for own access to the World Wide Web and pay any telephone service fees associated with such access.

User agrees in good faith to: (1) provide certain current, complete, and accurate information about User as prompted to do so by the Service and (2) maintain and update this information as required to keep it current, complete and accurate. All information requested on original sign up shall be referred to as registration data ("Registration Data"). Furthermore, User grants DTE the right to disclose to third parties certain Registration Data about User and Service membership in the aggregate; however, such disclosures will exclude User's name, mailing address, email address, account and phone number, unless: (1) User expressly directs DTE, or any other person User may specifically designate to disclose such information through the Service as provided by the Service or (2) DTE is required to disclose such information by any applicable law or legal process served on DTE.

If any information provided by User is inaccurate, DTE retains the right to terminate User's membership and rights to use the Service.

3. MODIFICATIONS TO TERMS OF SERVICE

DTE may change the terms and conditions of the TSA from time to time. Upon any change in the terms and conditions of the TSA, DTE will notify you by posting the changes as a start-up screen prior to your subsequent use of the Service.

User's continued use of the Service constitutes an affirmative: (1) acknowledgment by User of the TSA and its modifications; and (2) agreement by User to abide and be bound by the TSA and its modifications.

4. MODIFICATIONS TO SERVICE

DTE reserves the right to modify or discontinue the Service with or without notice to User.

DTE shall not be liable to User or any third party should DTE exercise its right to modify or discontinue the Service.

5. PRIVACY POLICY

Email is private correspondence between the sender and the recipient.

It is DTE's policy to respect the privacy of its Users. Therefore, in addition to the privacy of registration data as discussed in Section 2 above, DTE will not monitor, edit, or disclose the contents of a User's private communications unless required to do so by law or in the good faith belief that such action is necessary to: (1) conform to the edicts of the law or comply with legal process served on DTE; (2) protect and defend the rights or property of DTE; or (3) act under exigent circumstances to protect the personal safety of its members or the public.

User acknowledges and agrees that DTE neither endorses the contents of any User communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.

User acknowledges and agrees that certain technical processing of email messages and their content may be required to: (1) send and receive messages; (2) conform to connecting networks' technical requirements; (3) conform to the limitations of the Service; or (4) conform to other similar requirements.

6. USER ACCOUNT, PASSWORD, AND SECURITY

When becoming a user of the Service, you shall decide on a password and an account name. You are entirely responsible if you do not maintain the confidentiality of your password and account name. Furthermore, you are entirely responsible for any and all activities which occur under your account name. You may change your password or account name at any time by contacting postmaster@dte.net.

User agrees to immediately notify DTE of any unauthorized use of User's account or any other breach of security known to User.

7. DISCLAIMER OF WARRANTIES

USER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT USER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

DTE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

DTE MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES DTE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.

USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM(S) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

DTE MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM DTE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

8. LIMITATION OF LIABILITY

DTE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASE OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF DTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

9. NO RESALE OR COMMERCIAL USE OF THE SERVICE

User's right to use the Service is personal to User. User agrees not to resell or make any commercial use of the Service, without the express consent of DTE.

10. EMAIL MESSAGE STORAGE AND OTHER LIMITATIONS

DTE assumes no responsibility for the deletion or failure to store email messages.

DTE has set no fixed upper limit on the number of messages a User may send or receive through the Service; however, DTE retains the right, at DTE's sole discretion, to determine whether or not User's conduct is consistent with the letter and spirit of the TSA and may terminate Service if a User's conduct is found to be inconsistent with the TSA.

12. USER CONDUCT

User is solely responsible for the contents of his or her transmissions through the Service.

User's use of the Service is subject to all applicable local, state, national and international laws and regulations.

User agrees: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; and (4) to comply with all regulations, policies and procedures of networks connected to the Service.

The Service makes use of the Internet to send and receive certain messages; therefore, User's conduct is subject to Internet regulations, policies and procedures. User will not use the Service for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process.

User agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited.

User shall not interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services.

DTE may, at its sole discretion, immediately terminate Service should User's conduct fail to conform with these terms and conditions of the TSA.

13. INDEMNIFICATION

User agrees to indemnify and hold DTE, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User's use of the Service, the violation of this TSA by User, or the infringement by User, or other user of the Service using User's computer, of any intellectual property or other right of any person or entity.

14. TERMINATION

Either User or DTE may terminate the Service with or without cause at any time and effective immediately. Termination shall be accompanied by a written or emailed notice to the other party. DTE shall not be liable to User or any third party for termination of Service.

Should User object to any terms and conditions of the TSA or any subsequent modifications thereto or become dissatisfied with the Service in any way, User's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify DTE of termination.

Upon termination of the Service, User's right to use the Service and Software immediately ceases. User shall have no right and DTE will have no obligation thereafter to forward any unread or unsent messages to User or any third party.

15. NOTICE

All notices to a party shall be in writing and shall be made either via email or conventional mail. DTE may broadcast notices or messages through the Service to inform User of changes to the TSA, the Service, or other matters of importance; such broadcasts shall constitute notice to User.

16. PROPRIETARY RIGHTS TO CONTENT

User acknowledges that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or email-distributed, commercially produced information presented to User by the Service ("Content") by DTE, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, User is only permitted to use this Content as expressly authorized by the Service. User may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by the Service.

18. LAWS

The TSA shall be governed by and construed in accordance with the laws of the state of California, excluding its conflict of law provisions.

User and DTE agree to submit to the exclusive jurisdiction of the courts of the state of California.

If any provision(s) of the TSA is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

DTE's failure to exercise or enforce any right or provision of the TSA shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DTE in writing.

User and DTE agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

The section titles in the TSA are solely used for the convenience of the parties and have no legal or contractual significance.

v.981206-1

 

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