Terms of Use

Effective as of: 11/1/08

1. User’s Acknowledgment and Acceptance of Terms.

This is a binding agreement between you (“you”, “your” or “subscriber”) and Morningdew Communications, Inc., a Mississippi corporation, its parent, subsidiaries, and/or Affiliates (“us,” “we,” “our” or “Morningdew”). By using the website located at http://www.deafweather.com/ (the “Site”) or any services provided, in connection with the Site or otherwise (the “Services”) you agree to be bound by and to abide by all the terms, conditions, and notices contained or referenced herein (the “Terms of Use”), any additional Morningdew service agreement (the “Service Agreement”) you have agreed to, and the specific rate plan you selected upon opening your account (collectively, the “Agreement”).

These Terms of Use are effective as of November 1, 2008. We reserve the right to revise, update and/or change these Terms of Use from time to time without notice to you. You acknowledge and agree that it is your responsibility to review this site and these Terms of Use periodically and to be aware of any modifications. Your continued use of this site after such modifications will constitute your acknowledgement of the modified Terms of Use and agreement to abide and be bound by the modified Terms of Use.

YOU AGREE THAT BY USING THE SERVICES YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THESE TERMS OF USE.

As used in these Terms of Use, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering this site and/or its contents.

2. Privacy Policy.

We respect your privacy. A complete statement of our current Privacy Policy can be found by clicking here [Privacy Policy]. Our Privacy Policy is expressly incorporated into these Terms of Use by this reference.

3. Use of Site and/or Service.

We hereby grant you permission to use the Site or Services as set forth in these Terms of Use, provided that: (a) your use of the Site and/or Services, unless otherwise set forth by us in writing, is solely for your personal, noncommercial use; (b) you will not copy or distribute any part of the Site in any medium without our prior written authorization; (c) you will not alter or modify any part of the Site other than as may be reasonably necessary to use the Site for its intended purpose; (d) you will not publish, transmit, reproduce or distribute any information contained on this Site; (e) you will not make the video stream available to third parties and/or non-subscribers for free or for profit; (f) you will not make the video stream available to any outside source open to the public, including, but not limited to www.youtube.com or other video sharing websites; and (g) you will otherwise comply with these Terms of Use.

4. Prohibited Uses.

Certain restrictions on the permissible use of our Site and/or Services exist. 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 Services, 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 Services, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services; or (e) undertake or accomplish any unlawful purpose, including, but not limited to, posting, storing, transmitting or disseminating information, data or material which is libelous, obscene, unlawful, threatening or defamatory, or which infringes the intellectual property rights of any person or entity, or which in any way constitutes or encourages conduct that would constitute a criminal offense, or otherwise violate any local, state, federal, or non-U.S. law, order, or regulation. Any such prohibited use may subject you to civil and/or criminal liability.

5. Termination; Suspension.

By accessing the Site and/or Services, you agree that we may, in our sole discretion, terminate or suspend your account or your access to or use of the Site and/or Services at any time, with or without notice and for any reason, including, without limitation, breach of the Agreement or failure to pay any amounts owed to us. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.

If you do not wish to continue to use the Service you may notify us at cancel@deafweather.com. When doing so, please place the words “Cancel Account” in the subject line.

6. Affiliated Sites.

We work with a number of partners and affiliates whose Internet sites may be linked with the Site (“Affiliated Sites”). We have no control over, and no liability for any third party websites or materials. Because neither we nor the Site has control over the content and performance of these Affiliated Sites, we make no guarantees about the availability, accuracy, currency, content, or quality of the information provided by such sites, and we assume 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 items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that we make 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.

7. User Communications or Material.

Subject to our Privacy Policy, any communication or material that you transmit to the Site or to us, whether by electronic mail or other means, for any reason, will be treated as non-confidential and non-proprietary. While you retain all rights in such communications or material, you grant us and our designated licensees a non-exclusive, paid-up, perpetual, and worldwide right to copy, distribute, display, perform, publish, translate, adapt, modify, and otherwise use such material for any purpose regardless of the form or medium (now known or not currently known) in which it is used.

Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise. We are also unable to accept your unsolicited ideas or proposals, so please do not submit them to us in any circumstance.

8. Intellectual Property.

By accepting these Terms of Use, you agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, trade secret, or other intellectual property or proprietary rights (collectively, “Intellectual Property”). You agree to abide by laws regarding 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. You further acknowledge and agree that all content of the Site, including the text, graphics, logos, icons, screens and configurations, software, trademarks, and trade dress (collectively, “Morningdew Content”), is the property of Morningdew, its Affiliates or its licensors and is protected by U.S. and international Intellectual Property laws. You do not acquire any ownership rights in or to Morningdew Content by using, printing, downloading or copying any Morningdew Content or using this Site. Any use of Morningdew Content or this Site other than for the express services provided, including but not limited to copying, reproducing, modifying, distributing, transmitting, replicating or public exhibition is strictly prohibited. You agree not to display or use in any manner Morningdew’s logo, trade marks and service marks or the marks of any third party on this Site, without our prior written permission.

9. Your Account.

Length of Service. Once your account has been activated, the Service will continue, unless terminated, suspended or otherwise cancelled as provided herein, as long as payments are timely received.

Billing Information. You agree to provide us with accurate and complete billing information including, your legal name, address, telephone number and credit or debit card/billing information, and to report all changes to this information within thirty (30) days thereof. You represent that the address you have provided to us for billing purposes is either your residential or business street address. You authorize us to verify your creditworthiness with credit-reporting agencies from time to time. You agree to timely pay in full all charges for Service under the Agreement, including regular monthly Service and other charges billed to your account. You will be charged for Service and other features on a monthly billing cycle basis. Except as otherwise provided in your rate or service plan, monthly recurring charges are invoiced one billing cycle in advance and any portion of a monthly billing cycle is not prorated, but billed as a whole cycle. We may change your billing cycle at any time. Any taxes, assessments, fees, costs or charges imposed on us or you as a result of providing the Service will be added to your charges and are subject to change or increase at any time without notice. If we have agreed that you will pay for charges with a credit or debit card (the “Card”), we will retain the Card information in our records. YOU AGREE THAT YOUR CARD WILL AUTOMATICALLY BE BILLED BY US EACH MONTH FOR THE DURATION OF YOUR SERVICE UNTIL THE AGREEMENT IS TERMINATED AS PROVIDED HEREIN.

Plan Changes. Unless you have selected a special promotional rate plan or accepted promotional pricing, you may change to another rate plan, upon notice to us and payment of any transfer fee we assess.

Disputed Charges. If you believe you have been incorrectly charged, you must notify us of such disputed charges within sixty (60) days from the date the disputed charges are first billed or you waive your right to dispute those charges. Please contact Morningdew Customer Care

(at the telephone number, email address, or postal addressed provided below) so that we can review your account. If you accept a credit to resolve an issue, you agree that the issue has been resolved. If it is determined that you owe any amount in dispute, that amount will be added to any current charges and must be paid by the due date. If we accept late or partial payments or payments marked “Paid in Full” or similar notations, it will not waive any of our rights hereunder to collect all amounts that you owe us nor will it constitute an accord and satisfaction. We may charge you a fee of $20 or such amount as may be permitted by law for any Card amount rejected or check returned for insufficient funds.

Effect of Termination. If, for any reason, your Service is terminated before the end of your billing cycle, (a) you will be charged for the entire monthly bill cycle without pro-ration, and (b) you will not receive a credit or refund for any unused portion of the Service.

Post Termination Charges. You also authorize us to charge your Card at or after termination of Service to pay what you then owe, including, but not limited to, payment of any early termination fee, if any. If you revoke authorization to charge your Card, or if for any reason your Card issuer does not pay us, we must receive payment from you on or before the due date or you will be in default of the Agreement. Except as prohibited by law, charges, less disputed amounts, must be paid by the due date. You agree that (a) time is of the essence; (b) it would be impractical to fix the exact amount of our damages if you fail to pay promptly; and (c) in the event we do not receive payment by the due date, your payment is past due and you shall pay us default interest of the lower of 1.5% per month (or any portion thereof) of any past due amount until paid, or the highest amount permitted by law.

10. DISCLAIMER OF WARRANTIES.

WE HEREBY DISCLAIM ALL WARRANTIES REGARDING THE SITE AND SERVICES. WE ARE MAKING THE SITE AVAILABLE “AS IS” AND “AS AVAILABLE” 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 SERVICES TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

WE DO NOT WARRANT THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS IN THE SITE OR THE SERVICES WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF THE CONTENT, OR THAT ANY ERRORS IN THE CONTENT WILL BE CORRECTED.

THE USE OF THE SITE OR SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR SOFTWARE ARE DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, ANY EMPLOYEE OR REPRESENTATIVE, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THESE TERMS OF USE.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TOYOU.

11. LIMITED LIABILITY.

Your exclusive remedy and our entire liability, if any, for any claims arising out of these Terms of Use and your use of the Site or Services shall be limited to the amount you paid us for the services on the site during the 12-month period before the act giving rise to the liability.

OUR LIABILITY TO YOU IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBLILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR SERVICES OR ANY WEBSITE REFERENCED OR LINKED TO FROM THIS SITE.

FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD-PARTY GOODS AND SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF GOODS.

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

12. Indemnity.

You acknowledge and agree that you are personally responsible for your use of the Site and Services. You agree to indemnify, defend, and hold harmless us, our Affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorneys’ fees and costs) arising from your access to or use of or inability to use the Site or Services, your violation of these Terms of Use or any law, or your infringement, or infringement by any other user of your account or computer, of any Intellectual Property or other right of any person or entity. We 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.

13. Notices.

All notices to a party shall be in writing and shall be made either via e-mail or conventional mail. Notices to us must be sent to the attention of Customer Service at:

info@deafweather.com, if by e-mail,

or

Morningdew Communications, Inc.
Attn: Customer Service
P.O. Box 362
Brandon, Mississippi 39043-0362

Notices to you may be sent either to the e-mail address supplied for your account or to the address supplied by you as part of your registration data. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you. Any notices or communication under these Terms of Use will be deemed delivered to the party receiving such communication (a) on the delivery date if delivered personally to the party; (b) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (c) five business days after the mailing date, if sent by US mail, return receipt requested; (d) on the delivery date if transmitted by confirmed facsimile; or (e) on the delivery date if transmitted by confirmed e-mail.

14. Governing Law Venue; Submission to Jurisdiction.

These Terms of Use shall be governed by, and construed and enforced in accordance with, the domestic laws of the State of Mississippi without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Mississippi or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Mississippi. The parties exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods if otherwise applicable. By using the Site, you irrevocably agree that any legal action or proceeding with respect to these Terms of Use, your use of the Site and/or Services, or for the recognition and enforcement of any judgment in respect hereof brought by the other party hereto or its successors or assigns shall be brought and determined exclusively in the state and federal courts located in Jackson, Mississippi, and all users of the Site and/or Services hereby irrevocably submit with regard to any such action or proceeding for itself, and its heirs, executors, administrators, legal representatives, and permitted successors and assigns and in respect to its property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid courts.

By using the Site and/or Services, you irrevocably waive, and agree not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to these Terms of Use, the Content, our Privacy Policy, your use of the Site and/or Services, (a) any claim that you are not personally subject to the jurisdiction of the above-named courts for any reason, (b) that you or your property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of judgment, execution of judgment, or otherwise), and (c) to the fullest extent permitted by the applicable law, that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper and (iii) these Terms of Use or the subject matter hereof, may not be enforced in or by such courts.

15. Severability; Waiver.

If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

16. Modifications.

We may, in our sole discretion and without prior notice: (a) revise these Terms of Use; (b) modify the Site and/or the Services; and/or (c) discontinue the Site and/or Services at any time. We 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.

17. Entire Agreement.

These terms and conditions constitute the entire agreement and understanding between us concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These Terms of Use may NOT be altered, supplemented, or amended except by us as provided for herein. Any attempt to alter, supplement, or amend this document except as provided for shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this site is in conflict or inconsistent