Websites so smart, they're magic!

1. Whizardries may modify this agreement at any time and in any manner. Any modification is effective thirty (30) days after being posted on the Whizardries web site (at http://www.whizardries.com/policy/tos.htm). At the time of such posting, Whizardries will also notify you of the changes by electronic mail. Upon your request, whenever this agreement changes, Whizardries will send you a copy of the new agreement, which you may sign and return to Whizardries. If you require postal-mail notification of changes, you must specify this to us in writing. If you do not, the combination of e-mail notification and posting of the new agreement to the web site will be deemed sufficient. If any modification to this agreement is unacceptable to you, you may immediately terminate your account as provided in the section titled "Termination of Service." Your continued use of the Service following notice of any modification to this agreement, other than to view an updated copy of the agreement, shall be conclusively deemed an acceptance of all such modification(s).
   
   
2. Products and services covered by this agreement include, but are not limited to, the following, and are subject to modification through the procedures stated above:

• The use of Internet communications mechanisms including electronic mail, and streaming audio and video servers;
• The creation of World Wide Web sites for the Client;
• The maintenance of such sites on a machine designed to allow viewing of the sites over the Internet, whether such maintenance is performed by Whizardries or the Client;
• Additional products and services that Whizardries may make available to the Client. These products and services will be referred to collectively as "the Service."

Warranties

3. 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 WHIZARDRIES, ITS EMPLOYEES, LICENSORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL THE CLIENT RELY ON ANY SUCH INFORMATION OR ADVICE.
   
   
4. Whizardries is not liable for any damage to Client's personal equipment or computers arising from the use of the Service.
   
   
5. The Internet is able to function as the result of cooperative agreements between hundreds of companies. No one company owns or operates the entire Internet. With the exception of products or services clearly identified as being supplied by Whizardries, neither Whizardries nor any of its employees or affiliates controls, provides, operates or is responsible for any information, goods or services available on the Internet. All such information, goods and services are made available by independent third parties. Whizardries neither endorses nor is responsible for the accuracy or reliability of information, goods or services. Neither Whizardries nor any Whizardries affiliate, vendor or supplier shall be responsible or liable for any loss or damage caused by or alleged to have been caused by the Client's use or reliance on any information, goods or services available on or through the Internet.
   
   
6. Whizardries will attempt to keep the Client notified of system outages and upgrades in a timely manner; however, Whizardries cannot and does not take responsibility for events outside Whizardries' control that affect connectivity. Whizardries is not liable for losses incurred as a result of such events.
   
   
7. The Client's use of the service and server is at the Client's sole risk. Whizardries is not responsible for files and data residing on the server. Customer agrees to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on server. The backup service as provided by Whizardries is intended to assist in recovery from a system failure, but its suitability for that purpose is not guaranteed.
   
   
8. The Client may order and purchase merchandise or services from other Clients and users of other communications outlets including the Internet. The Client acknowledges that the terms of any transactions between the Client and a third party (the Seller) must be negotiated between the Client and the Seller, and that Whizardries is not liable for any losses incurred as a result of Seller's failure to perform as specified by the terms of that transaction.

Accounts, Fees and Payments

9. This Agreement applies to all accounts, sub-accounts, and alternative account names associated with the Client's principal account. Each Client 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). An account may not be transferred without prior written approval from Whizardries and is subject to any limits established by Whizardries.
   
   
10. The Client is responsible for maintaining the confidentiality of his/her/its passwords. The Client is responsible for all activities and charges resulting from use of the Client's principal account with the Service. The Client agrees to pay all monthly membership fees, connect time charges, surcharges, applicable taxes, and other charges incurred by the Client and/or his/her/its designated users. In the event of a breach of security, the Client will remain liable for any unauthorized use of the Whizardries Service until the Client notifies Whizardries by calling Customer Support at 254/865-2335.
    
    
11. Current rates for using the Service may be obtained by visiting through Whizardries's online pricing site at http://www.whizardries.com/services/ or by calling 254/865-7895. Whizardries reserves the right to increase fees, surcharges, and monthly membership fees or to institute new fees at any time upon thirty (30) days prior notice, through the communications mechanisms described in the section titled "Modifications." Whizardries may reduce these fees at any time without notice to the Client. In the event that the Client's account is terminated or canceled, any credits due the Client account may be converted to cash or another form of credit if both of the following conditions are met: 1) The Client must have pre-paid for more than one month of service, and 2) the Client's account must not have been terminated due to non-payment or a violation of this agreement.
    
    
12. The Client agrees to pay charges for the Service when due, including all monthly fees, optional charges and taxes incurred on the Client's account. The Client authorizes Whizardries to charge any amounts incurred by the Client, pursuant to the terms of the billing option selected during the registration process.
    
    
13. Any monthly account payments required of the Client will be billed on the first day of each month unless other arrangements are made in writing between the Client and Whizardries. If Whizardries does not receive the full amount of the Client's account balance within thirty days (30) days of the invoice date or billing date, the lesser of an additional 1.5%, or the highest percentage allowed by law, of the outstanding balance will be added to the Client's bill as a finance charge each month. All invoices are due and payable upon receipt unless alternative arrangements are made between the Client and Whizardries. The Client shall also be liable for all attorney and collection fees arising from Whizardries' efforts to collect any unpaid balance of the Client's account(s).
    
    
14. The Client may choose to 1) have a credit card charged each month with the total monthly balance on his/her/its account, or 2) may choose to be invoiced. If the Client wishes to be invoiced, Whizardries may, at its sole discretion, check the Client's credit by requesting information from (a) trade references given by the Client, and (b) reports ordered from one or more of the major credit reporting bureaus.
    
    
15. The Client understands that the Service does not currently include the ability to connect to the Internet and that the Client is responsible for all charges associated with connecting to the Service. The Client is responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modem), or other access devices, as well as an Internet Service account necessary to access the Service.
    
    
16. The Client certifies to Whizardries that he/she is 1) not a minor or 2) has been emancipated by the declaration of a Court of competent jurisdiction. (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, the Client agrees to provide Whizardries with accurate, complete, and updated information required by the registration to the Service (Registration Information), including the Client's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Further, if the Client is under the age of 18, but has been released from the disabilities associated with being a minor, the Client agrees to provide Whizardries with a certified copy of the Decree of Emancipation. The Client agrees to notify Whizardries within thirty (30) days of any changes in Registration Information. Failure to comply fully with this provision may result in immediate suspension or termination of the Client's right to use the Service.
    
    
17. The Client agrees that he/she/it has a continued obligation to keep the information required by paragraph 16 current. The Client also agrees that he/she is an authorized user of any credit card that you supply to us and agree that we have an obligation to fully investigate any possible fraudulent credit card use.
    
    
18. If the Client does not pay the balance due on his/her/its account as provided in the Terms of Service in the section titled "Accounts, Fees and Payments," Whizardries reserves the right to pursue legal or collections action against the Client. In the event that a violation of this Agreement or the Terms of Service results in legal or collections action against the Client, Whizardries reserves the right to recoup all fees incurred from the Client.

Access Restrictions

19. The Client acknowledges that Whizardries shall only provide the total amount of storage space contracted for by the Client. The Client further acknowledges that this total amount includes e-mail, world wide web, FTP, database materials, and any other types of storage space and that the Client is responsible for ensuring that the level of storage remains below this limit. The Client expressly agrees that Whizardries shall not be liable to the Client, or parties interacting with the Client, for any damages resulting from action Whizardries takes to enforce this provision.
    
    
20. If any web site, mailing list, or other service hosted by Whizardries generates sufficient traffic to impact the performance of Whizardries's network, Whizardries reserves the right to charge the Client an amount sufficient to recover the costs of bearing the extra traffic.

Termination of Service

21. Either Whizardries or the Client may terminate this agreement at any time, for any reason.
    
    
22. If Whizardries terminates the agreement, Whizardries will notify the Client either by phone or mail when the agreement is canceled.
    
    
23. The Client may terminate this agreement by notifying Whizardries of his/her/its desire to cancel the Service, either by mail, e-mail, or phone. For the Client's protection, if the Client requests cancellation, Whizardries may verify that the request is made by a person authorized to make such a request.
    
    
24. Upon termination, the Client's will lose access to any files or e-mail stored on the Service. If it is possible and if the termination was not due to a violation of this agreement, Whizardries shall forward mail from the Client's canceled e-mail address to another e-mail address, at no charge, for a period of up to three (3) months if the Client so requests.
    
    
25. If Whizardries has created a web site for the Client, the Client retains the rights to any graphics provided by the Client for inclusion on the web site and any pages created for and stored on the site. Whizardries retains the rights to CGI scripts, Java applets, and other software created for the purpose of operating the Client's web site and shall be under no obligation to release such software to the Client.

Acceptable Use Policy and User Conduct

26. By registering for an account, the Client confirms receipt of a copy of Whizardries's Acceptable Use Policy (the "AUP"). The Client agrees to comply with the terms of the AUP. The AUP may be modified at Whizardries's sole discretion. Any changes will be posted at http://www.whizardries.com/policy/aup.htm and the Client will be notified as described in the section titled "Modifications." The new AUP will take effect 30 days after such notification is sent.
    
    
27. The Service may only be used for lawful purposes. Any use of the Service which violates any local, state, federal, or international laws which may apply to Whizardries, your local jurisdiction, or any jurisdiction that you or your site may be subject to is strictly prohibited.
    
    
28. While using the service, you may not: a. Restrict or inhibit any other user from using and enjoying the Internet; b. Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws; c. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component; d. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for any purpose (other than as expressly permitted by the provider of such information, software, or other material).
    
    
29. Failure to comply fully with paragraphs 26-28 may result in immediate suspension or termination of the Client's right to use the Service as well as the forfeiture of any and all credits notwithstanding the terms of paragraph 11.

Right to Refuse, Discontinue, or Terminate Service

30. Whizardries reserves the right to refuse or discontinue service to anyone at Whizardries's sole discretion. Whizardries may deny you access to all or part of the service without notice if you engage in any conduct or activities that Whizardries, in its sole discretion, believes violates any of the terms and conditions in this agreement. Whizardries shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Whizardries reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement or the acceptable use policy mentioned in paragraph 26.
    

ECPA Notice

31. Whizardries reserves the right to monitor any and all communications through or with our facilities. You agree that Whizardries is not considered a "secure communications medium" for the purposes of the ECPA, and that no expectation of privacy is afforded. You also agree that Whizardries has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers.

Prior Agreements

32. This agreement supersedes any written, electronic, or oral communication Customer may have had with Whizardries or any agent or representative thereof, and constitutes the complete and total agreement between the parties.

Resolution of Disputes

33. This Agreement shall be treated as though it were executed and performed in Gatesville, Coryell County, Texas, and shall be governed by and construed in accordance with the law of the State of Texas (without regard to conflict of law principles). Any dispute under this Agreement must be brought in a state or federal court in the State of Texas and must be commenced within one (1) year after the claim arises or it is forever waived.

Waiver

34. Failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions nor in any way affect the validity of this Agreement or any part thereof or the right of either party thereafter to enforce each and every provision thereof. The waiver of any provisions of this Agreement or any breach thereof shall not constitute waiver of any subsequent breach of the same or any other provisions of this Agreement.

Indemnification

35. The Client agrees to indemnify and hold Whizardries harmless from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney's fees, costs, and other expenses incurred by Whizardries as a result of any activities conducted by the Client. The Client and Whizardries will promptly notify each other upon receipt of any claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph shall survive indefinitely the termination of this Agreement.

Assignment

36. Whizardries may assign this Agreement and the Acceptable Use Policy to another party. The Client may not assign this Agreement and the Acceptable Use Policy to another party without the prior written consent of Whizardries.
    
    
37. In the case of a change of name, prior written consent is not necessary and this Agreement will continue in full force and effect with the successor.

Independent Contractor Status

38. Whizardries is an independent contractor and retains the right to determine the method, details, and means of delivering the services contracted for, within reason. Whizardries may, in its sole discretion and at its own expense, employ the use of whatever employees or subcontractors it may deem necessary to perform the services required under this Agreement. The Client shall not control, direct, or supervise employees or subcontractors of Whizardries in the performance of those services.

Severability

39. In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this agreement unless it would result in such a material change so as to cause completion of the remainder of the provisions to be unreasonable.

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