Date Last Modified: 01/28/2017
A) These terms and conditions, taken together with the KiX Internet Service Agreement Cover Sheet (“Cover Sheet”) and the exhibits attached hereto, if any, (“Exhibits”) shall constitute the agreement between KIX and Customer (“Agreement”). This Agreement anticipates the future issuance of Work Orders by Customer for the purpose of ordering the Service Package hereunder. The Work Orders may be made by written or verbal request from Customer. Upon acceptance of a Work Order by KIX, each such Work Order shall be governed by and shall be deemed incorporated into this Agreement. Acceptance of a Work Order shall be deemed to have occurred upon the acceptance of a Work Order by KIX in writing or upon the commencement of delivery of the Service Package by KIX.
B) All capitalized terms used herein and not defined when first used, are defined in Section 17 hereunder.
C) In the event of a conflict between the terms and conditions of this Agreement and the Exhibits, the Exhibits shall control.
2) SERVICE PACKAGE
A) Subject to the terms of this Agreement, Customer engages KIX to deliver the Service Package identified on Customer’s Account for the number of Customer employees or branch offices (as applicable) as set forth on a Work Order, provided that such Work Order is accepted by KIX as set forth in Section 1A above. The Parties, by mutual verbal or written request, may add additional premium services to the Service Package from time-to-time by setting forth such services and the related payment terms and other terms and conditions (if different from those set forth herein) in additional Exhibits to this Agreement.
B) KIX (or a KIX Affiliate) will use reasonable efforts to (i) complete any Equipment installation work as necessary to activate the Service Package (“Activation”) for each Customer employee or branch office, as applicable, in accordance with the relevant Work Order and (ii) provide the KIX Internet Services included in the Service Package to Customer 7 days a week, 24 hours a day excluding scheduled maintenance and required repairs upon Activation of each Customer employee or branch office, as applicable. Notwithstanding anything herein to the contrary, KIX shall have no liability for its delay in the Activation of a Service Package for a particular Customer employee or branch office (as applicable) if such delay is the result of (i) events or circumstances beyond KIX’s reasonable control; (ii) Customer’s (or Customer’s employee’s or Customer’s branch office’s) failure to deliver any required materials or information to KIX, including those set forth as project assumptions in a Work Order, if any; or (iii) KIX not being able to access equipment or software, at Customer’s employee or Customer’s branch office, necessary for Activation. Customer shall pay KIX its standard fees for any subsequent trips necessary due to such equipment or software unavailability as described in this Section 2.B(iii).
D) This Agreement shall be in effect commencing on the date of installation of the Service Package for an initial period (the “Initial Term”), unless earlier terminated only in accordance with this Section 2D. The term of this agreement will be for a period of 1, 2, or 3 full year(s) commencing on the actual date of installation of service, as determined by Cover Sheet. Unless notice of termination is received thirty (30) days prior to the expiration of the initial term, this agreement will be extended in monthly increments (“Renewal Terms”). Either KIX or Customer may terminate this Agreement upon thirty (30) days notice of the other party’s material breach, provided that such material breach is not cured within such thirty (30) day notice period. Upon the termination or expiration of this Agreement, KIX’s obligations hereunder shall cease, and Customer shall promptly pay all amounts due and owing to KIX including, but not limited to, all amounts for work performed by KIX prior to termination, as well as any remaining balance due under this Agreement.
E) Should this Agreement be terminated prior to its expiration due to the material breach of Customer, then all amounts remaining due KIX shall become immediately due and payable.
F) KIX is responsible for maintaining the KIX provided subscription unit (if any). As part of the Service Package, KIX will provide a telephone number and email address for inquiries and remote problem support for Service Package disruption. The scope of inquiry and remote support services shall be as determined by KIX in its sole discretion from time to time. The support provided is for Customer’s use of the Service Package by means of the Equipment installed by or on behalf of KIX only. In no event shall KIX be responsible for providing such support for: (a) Equipment not installed by KIX under this Agreement; or (b) any other equipment or software. KIX shall refer to Customer, for solution by Customer at Customer’s sole expense, those network problems that are identified by KIX as being caused by Customer or any third party using the Service Package, including, but not limited to, such problems arising out of the Customer Data Network. All KIX Customer Support shall be provided during the following hours only: Customer Support Hours: Mon-Fri 9:00am-6:00pm. (832) 422-9360; Technical Support Hours: Mon-Fri 9:00am-6:00pm. (832) 422-9360.
G) Each Party shall designate one person to serve as the primary contact for all communications hereunder. Initially, such persons shall be the sales associate that initiated service with Customer “Contact”. Each Party shall promptly notify the other upon the replacement of such Contact.
3) CHARGES AND AUDIT
A) Customer agrees to pay KIX the fees set forth for installation and additional equipment, if any, in conjunction with this Agreement and in accordance with the payment terms set forth below. KIX shall have the right to increase the Service Package fees set forth in Exhibit A, after the Initial Term. Service Charges for the Service Package will be billed monthly in advance in accordance with KIX’s regular billing schedule and are payable on the due date specified in the bill, except that for Activation of a Customer employee under the KIX Service. Service Charges for the Service Package for such employee will be billed in arrears for the first month of such Activation — All bills will be provided directly to Customer, and not to Customer’s employees authorized to utilize the Service Package hereunder, and shall be paid by Customer, unless otherwise agreed to by the parties in writing. Additional fees may be payable under each Subscriber Agreement.
B) An administrative late charge may be charged on accounts that are past due. There will only be one (1) such administrative charge for each month’s charges not paid when due. Payment for the Service Package must be received by KIX on or before the due date stated on the monthly bill. Customer agrees that each individual non-payment causes KIX to suffer damages in an amount that is difficult to ascertain with certainty. KIX has made a reasonable estimate to determine the damages caused by late payments generally and has used this estimate to set a liquidated damages late fee amount. The current late fee is listed in the list of charges or can be provided upon request. KIX reserves the right to change the late fee amount at any time in the future without notice to Customer of the new amount. KIX may charge a service fee for all returned checks and bankcard and charge card chargebacks. In addition to the foregoing, and all other available remedies, KIX may: (i) discontinue Customer’s access to all or portions of the Service Package in whole or in part, until such charges, together with interest, are paid; and (ii) delete the Customer Content and all other information residing on any KIX provided facility. None of the KIX Parties shall have any responsibility or liability for any discontinued access to the Service Package (or portion thereof) or information deleted pursuant to this paragraph. Notwithstanding anything set forth herein to the contrary, the Parties agree that KIX shall have the right to cancel or suspend, in KIX’s sole discretion, the Service Package of an end user if such end user has payments outstanding to KIX. KIX may charge a reasonable de-installation charge for any end user account that is terminated pursuant to this Agreement.
C) If Customer access to a Service Package is discontinued in whole or in part, and KIX agrees to resume access to the Service Package (or portion thereof), KIX may require a reconnect charge or trip charge (in addition to payment of all overdue balances) before resumption of such access. Customer will be responsible for all expenses (including reasonable attorneys’ fees) incurred by KIX in collecting any amounts due and unpaid by Customer.
D) In addition, KIX shall have the right, upon reasonable prior notice and during Customer’s normal business hours, and subject to any reasonable security requirements to audit Customer’s use of the Service Package, to ensure Customer’s compliance with this Agreement. In the event that KIX’s audit reveals that Customer’s usage of the Service Package exceeds Customer’s rights hereunder, KIX can, at its sole discretion, 1) deem Customer to be in material breach of this Agreement; or, 2) require that Customer pay KIX an amount equal to one and a half times the Service Charges that would have been due for such excessive usage as liquidated damages and not as a penalty, and Customer shall either discontinue any excess usage or thereafter continue to pay KIX’s then-current fees for such additional usage.
4) EQUIPMENT AND SOFTWARE
A) As between KIX and Customer, the Equipment is and at all times shall remain the sole and exclusive property of KIX, and Customer shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the Equipment to the Customers’ premises or otherwise. Customer and KIX expressly agree and understand that the Equipment is not and shall not be considered a Fixture to Customer’s premises. Customer will not open, alter, misuse, tamper with or remove the Equipment as and where installed by KIX (or a KIX Affiliate), and will not remove any markings or labels from the Equipment indicating KIX (or its suppliers) ownership or serial or identity numbers. Upon termination of the Service Package, for whatever reason, Customer acknowledges that his/her right to possess and use the Equipment shall likewise terminate. In such event, the Equipment shall be returned to KIX in the same condition as when received, ordinary wear and tear accepted. The Customer will be billed by KIX for any charges relating to damages exceeding ordinary wear and tear. Customer will safeguard the Equipment from loss or damage of any kind, and (except for any self installation procedures approved by KIX) will not permit anyone other than an authorized representative of KIX to perform any work on the Equipment.
B) KIX shall have the right to upgrade, modify, enhance and replace the Equipment and the Software. KIX may employ such means to limit the throughput available through individual hardware whether or not provided by KIX and may require Customer to conform its equipment, including, but not limited to, subscription units, and its software, including, but not limited to, its Customer Data Network, to KIX’s then-current network specifications and System Requirements.
C) If the Equipment is damaged, destroyed, lost or stolen while in Customer’s possession, Customer shall be liable for the cost of repair or replacement of such Equipment. If the Equipment is not returned to KIX as described in Section 4.A upon termination of the Service Package, Customer will pay KIX the amount specified in the then-current price list for the replacement cost of the Equipment without any deduction for depreciation, wear and tear or the physical condition of such Equipment. KIX may apply any security deposit to any such obligation of Customer, and collect any remaining balance from Customer. In the event any amount is deducted from the security deposit (other than upon termination of the Service Package), Customer must immediately replace the amount so deducted.
D) If Software is provided to Customer, KIX grants to the Customer a limited, non-exclusive license to use the Software, in object code form only, solely for the purpose of connecting to the KIX Internet Service the number of Computers specified on the accompanying Work Order. This license will permit such use by Customer and any Customer Employee or branch office authorized to use the Service Package hereunder, provided that Customer shall be responsible for all use of the Service Package as described in Section 7. This license will commence upon acceptance of Customer’s subscription for the KIX Internet Service and will terminate immediately upon termination of the KIX Internet Service to Customer for any reason. KIX and/or its licensors retain all rights and interests in and to the Software.
5) PROPRIETARY RIGHTS; CUSTOMER CONTENT
A) Proprietary Rights of KIX. All materials, including, but not limited to, any computer software (in object code and source code form), data or information developed or provided by KIX, any identifiers or passwords used to access any portion of the Service Package or otherwise provided by KIX, and any know-how, methodologies, equipment, or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by KIX to provide the Service Package to Customer (collectively “KIX Materials”) shall remain the sole and exclusive property of KIX or its suppliers. In addition, the embedded management software provided by KiX is licensed (not sold) to Customer and remains property of KiX. KIX’s Confidential Information, including, but not limited to, the KIX Materials, shall be held confidential by the Customer, and in no event shall Customer disclose any such Confidential Information to any third party.
B) License /Proprietary Rights of Customer. Customer hereby grants to KIX a non-exclusive, worldwide, royalty-free license for the Term to modify, publish, reproduce, distribute, perform, and otherwise use any material posted on the public areas of the KIX Internet Service via Customer’s Service Package, but only for purposes consistent with the operation of the KIX Internet Service available through use of the Service Package provided hereunder. As between Customer and KIX and without limiting KIX’s rights under this Agreement, e-mail messages (if any) and Customer Content shall remain the sole and exclusive property of Customer, including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights therein.
C) Customer Content. Customer assumes sole responsibility for the Customer Data Network and Customer Content. Notwithstanding the foregoing, KIX reserves the right, in its sole discretion, to exclude or remove any hypertext links to third party web sites, and any Customer Content for any reason, including but not limited to, Content which may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes KIX to civil or criminal liability.
6) MAINTENANCE AND REPAIRS
A) KIX will use reasonable efforts to: repair damage to Equipment installed by KIX and KIX furnished network facilities, modify Software, and otherwise attempt to correct any disruption of the Service Package due to technical malfunction of the KIX Internet Network not caused by Customer or any third party using the Service Package. KIX, in its discretion, may charge to Customer its cost to perform modification or recovery of the Service Package or to repair Equipment or network facilities if KIX determines that such modification, recovery or repair was necessitated by Customer’s negligent or wrongful action or failure to act.
B) rovide a minimum service credit to Customer in the event of a failure of the KIX Internet Network as follows: In the event of a complete failure of the Service Package hereunder due to technical malfunction of the KIX Internet Network operated by KIX for twenty-four (24) consecutive hours or more, Customer will be entitled to a pro-rated credit upon request, such credit equal to one-thirtieth (1/30) of the monthly recurring charges for each consecutive twenty-four (24) hour period of each such failure of such services. To qualify for an adjustment, Customer must request a credit from KIX within thirty (30) days after such failure. In no event shall credits awarded for any month of service exceed the monthly recurring charges received by KIX for such month of service. KIX shall have no liability, including as set forth in this Section 6, for disruption of the Service Package due to circumstances beyond its control, including, but not limited to, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, unauthorized access to or destruction to or modification of the Service Package or the KIX Internet Network, in whole or in part, or act or failure to act by Customer or any third party using the Service Package.
C) The obligation set forth in this Section 6 shall constitute KIX’s sole obligation and liability [and Customer’s exclusive remedy] in the event of any failure of the Service Package.
7) OBLIGATIONS OF CUSTOMER
A) CUSTOMER IS RESPONSIBLE IN ALL RESPECTS FOR ALL USE OF CUSTOMER’S SERVICE PACKAGE, AND ALL USE BY OTHERS OF CUSTOMER’S SERVICE PACKAGE, WHICH IS SUBJECT TO THE TERMS HEREOF. FOR THE PURPOSES OF THIS AGREEMENT, ALL USE OF THE SERVICE PACKAGE, WHETHER OR NOT AUTHORIZED BY CUSTOMER, SHALL BE DEEMED CUSTOMER’S USE. CUSTOMER SHALL BE RESPONSIBLE FOR PROTECTING THE CONFIDENTIALITY OF CUSTOMER’S PASSWORDS AND/OR ANY OTHER CONFIDENTIAL INFORMATION. CUSTOMER MAY ACCESS VIA THE KIX INTERNET SERVICE CERTAIN CONTENT, MERCHANDISE AND SERVICES FOR WHICH THERE ARE CHARGES PAYABLE TO THIRD PARTIES (WHICH MAY INCLUDE KIX). CUSTOMER AGREES THAT ALL SUCH CHARGES WILL BE CUSTOMER’S, AND NOT KIX’S, SOLE AND EXCLUSIVE RESPONSIBILITY AND AGREES TO PAY THE SAME WHEN DUE, AND SHALL INDEMNIFY AND HOLD HARMLESS THE KIX PARTIES FOR ALL LIABILITY IN CONNECTION THEREWITH.
B) Customer understands that the KIX Internet Service may provide Customer’s employees with a connection to the Internet that may be unfiltered, and that the KIX Parties neither control nor assume any responsibility for any content on the Internet or that is posted by a subscriber. Customer is solely responsible for the content that is viewed by its employees, and agrees to indemnify, pay for, defend and hold KIX harmless from and against any claims, causes of action, suites, liabilities, damages and expenses, including attorney’s fees, arising out of or relating to content accessed by Customer’s employees through the KIX Internet Service.
D) The Service Package may contain copyrighted material, trademarks and other proprietary information. In such event, except where otherwise prohibited, KIX grants Customer the right to download copyrighted material posted on the KIX Internet Network by a KIX Party, provided such material is downloaded solely for Customer’s personal or internal business use. Except as granted herein or as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded material will be permitted without the express prior written consent of KIX and, where applicable, the third party copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution or copyright notice shall be made.
F) The Customer agrees that KIX shall have the right to take any action that KIX deems appropriate to protect the KIX Internet Service, KIX Internet Network, its facilities and the Equipment. Customer acknowledges and agrees that KIX shall have the right to monitor Customer’s “bandwidth” utilization (i.e. volume of data transmitted) at any time and on an on-going basis and to limit excessive use of bandwidth by Customer (as determined by KIX from time to time) in order to effectuate these provisions and other terms hereof, and Customer acknowledges KIX’s right to audit Customer’s use of the Service Package in accordance with Section 3 above.
H) KIX and its authorized agents may enter Customer’s premises and have access to Customer’s Computer(s) (and/or those computers of Customer’s employees authorized to use the KIX Internet Service if Customer executes an Exhibit that allows such use) periodically during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace or alter the Equipment or associated hardware or the Software, or to disconnect and remove the Equipment. If Customer is not the owner of the premises upon which Equipment and Software are to be installed, Customer warrants that he/she has obtained the consent of the owner of the premises for KIX personnel and/or its agents to enter the premises for the purposes described herein. Customer further warrants that he/she has informed the owner of the premises that, pursuant to Section 4.A herein, that none of the KIXs equipment shall be considered a Fixture to the premises.
A) KIX warrants to Customer that KIX has the power and authority to enter into and perform its obligations under this Agreement.
B) Customer warrants to KIX: that Customer has the power and authority to enter into and perform its obligations under this Agreement; the Customer Content includes only information and materials that Customer owns or is otherwise authorized to distribute and use and to authorize KIX to distribute and use as contemplated hereby, the Customer Content conforms to all applicable federal, state, and local laws and regulations, including but not limited to export laws; any existing or requested domain name Customer submits to KIX pursuant to this Agreement and all intellectual property rights therein are owned exclusively by Customer, or that Customer has all necessary rights to register such name; and neither the Customer Content, nor the exercise by KIX and its permitted sublicensees of the rights granted hereunder with respect to the Customer Content, will infringe upon or violate any copyright, trademark, patent, trade secret or other proprietary right of any third party. Should Customer receive notice of a claim regarding the Customer Content or Customer Data Network, Customer shall promptly provide KIX with written notice of such claim.
9) DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
A) CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, THE KIX INTERNET NETWORK, IS AT CUSTOMER’S SOLE RISK AND THAT NEITHER KIX NOR THE KIX AFFILIATES SHALL BE LIABLE IN CONNECTION WITH ANY USAGE OF THE SERVICE PACKAGE BY CUSTOMER OR ANY THIRD PARTY. NONE OF THE KIX PARTIES REPRESENT OR WARRANT THAT THE SERVICE PACKAGE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY REPRESENTATION OR WARRANTY AS TO THE AVAILABILITY OR SCOPE OF THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, AVAILABILITY OF THE CUSTOMER NETWORK LINK, OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE PACKAGE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE OR MERCHANDISE ADVERTISED, PURCHASED OR PROVIDED THROUGH THE SERVICE PACKAGE. CUSTOMER ACKNOWLEDGES THAT THE PERFORMANCE OF THE SERVICE PACKAGE WILL VARY FROM TIME TO TIME BASED ON NETWORK USAGE AND OTHER FACTORS, AND THAT NO MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME.
B) NEITHER KIX NOR THE KIX AFFILIATES SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE CUSTOMER DATA NETWORK, CUSTOMER REMOTE NETWORKS, COMPUTERS, E-MAIL MESSAGES, DATA FILES, PROGRAMS OR ANY OTHER INFORMATION, DATA OR PROPERTY OF THE CUSTOMER, ITS USERS, OR OTHER THIRD PARTIES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES.
C) NEITHER KIX NOR THE KIX AFFILIATES ENDORSE OR WARRANT, AND NEITHER SHALL BE RESPONSIBLE IN ANY REGARD FOR, ANY MERCHANDISE OR SERVICES ADVERTISED BY OR ORDERED THROUGH THE SERVICE PACKAGE FROM THIRD PARTIES OR OTHER COMMERCIAL TRANSACTIONS WITH THIRD PARTIES.
D) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.A, THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR QUIET ENJOYMENT OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT ALL USE OF THE KIX Internet Service (INCLUDING BUT NOT LIMITED TO THE ACCESSING AND USE OF CONTENT, INFORMATION AND SERVICES, THE EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO CUSTOMER AND THE DOWNLOADING OF COMPUTER FILES) IS AT CUSTOMER’S SOLE RISK.
E) CUSTOMER UNDERSTANDS THAT, EXCEPT FOR INTENTIONAL AND MALICIOUS ACTS OF INSTALLERS, THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF KIX Internet Service, EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO CUSTOMER’S COMPUTER(S) OR OTHER HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NONE OF THE KIX PARTIES SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, HARDWARE, DATA, PROPERTY OR FILES OF CUSTOMER.
F) EXCEPT FOR THE REFUND EXPRESSLY PROVIDED IN SECTION 7G [OR THE CREDITS EXPRESSLY PROVIDED IN SECTION 6B] IN NO EVENT (INCLUDING NEGLIGENCE) WILL ANY KIX PARTY OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE PACKAGE, OR ANY CONTENT, INFORMATION SERVICES, EQUIPMENT OR SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE KIX Internet Service, ACTION TAKEN TO PROTECT THE KIX Internet Service OR THE BREACH OF ANY WARRANTY OR REPRESENTATION, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE.
G) IN ANY EVENT, THE AGGREGATE LIABILITY OF KIX AND THE KIX AFFILIATES TO CUSTOMER FOR ANY REASON AND UPON ALL CAUSES OF ACTION IN THE AGGREGATE RAISED UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. CUSTOMER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO ALL CONTENT OR INFORMATION SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICE PACKAGE, AND ARE FOR THE BENEFIT OF KIX AND THE KIX AFFILIATES.
A) Customer, at its own expense, agrees to defend, indemnify, pay for and hold harmless KIX, the KIX Affiliates and third party content and information service providers and their respective officers, directors, employees and agents, from and against all claims, liabilities, causes of action, damages and expenses, including attorneys’ fees, arising out of or relating to: the use of the Service Package provided to Customer, including, but not limited to, any service provided or performed through the Service Package or agreed to be performed through the Service Package or any product sold through the Service Package by Customer, its agents, employees or assigns; any unauthorized access to, or alteration, theft or destruction of Customer or third party information; any injury to person or property caused by any products sold or otherwise distributed in connection with the Customer’s web site or Customer Data Network; any material supplied by Customer, including, but not limited to, any domain name provided by Customer to KIX for registration or use with the Customer’s web site or Customer Data Network, which infringes or allegedly infringes on the proprietary rights of a third party; intellectual property rights infringement, including, but not limited to, copyright infringement; any defective products sold to anybody or any company through Customer’s web site or Customer Data Network; or Customer’s breach of its confidentiality obligations or breach of any of its representations or warranties.
A) Personally identifiable information that may be collected, used or disclosed in accordance with applicable laws, is described in the Subscriber Privacy Notice delivered to Customer, which is incorporated herein by reference. Customer acknowledges receipt of the Subscriber Privacy Notice. In addition to the foregoing, Customer hereby acknowledges and agrees that KIX may disclose Customer’s and Customer Employees’ personally identifiable information as required by law or regulation or by the American Registry for Internet Numbers (“ARIN”) or any similar agency.
B) In addition to actions and disclosures specifically authorized by law or statute or authorized elsewhere in this Agreement, KIX shall have the right (except where prohibited by law notwithstanding Customer’s consent), but not the obligation, to disclose any information to protect its rights, property and/or operations, or where circumstances suggest that individual or public safety is in peril. Customer hereby consents to such actions or disclosures.
13) ENTIRE AGREEMENT
A) This Agreement, Exhibits, Work Orders and any operating rules for the Service Package established by KIX now or hereafter constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. Acceptance or use of the Service Package shall constitute acceptance of the terms and conditions herein. In the event of a conflict between the terms and conditions of this Agreement and any Work Order, the terms and conditions of this Agreement shall control. In addition, in the event that KIX permits a Customer to use its own standard Work Order forms to order KIX Internet Services from KIX hereunder, the parties hereby acknowledge and agree that no terms or provisions which may appear on any such Customer Work Order shall modify the terms and conditions set forth in this Agreement.
A) In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default. Neither Party may assign this Agreement without the prior written consent of the other, which shall not be unreasonably withheld; provided that KIX’s rights and obligations under this Agreement may be assigned in whole or in part to and assumed by any KIX Internet affiliated parties without the prior written approval of or notice to Customer. Customer understands and agrees that, regardless of any such assignment, the rights and obligations of KIX herein may accrue to, or be fulfilled by, any KIX Affiliates as well as KIX. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise, or employee relationship between the Parties. Any notice under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other Party. Notices shall be delivered to Customer at its address, facsimile number or email address set forth on the Cover Sheet, or to such other address, facsimile number or email address as is given by Customer to KIX in writing. Notices shall be delivered to KIX at the address set forth on the Cover Sheet. The provisions of Sections 2.D, 2.E, 3, 4.A, 4.C, 5, 6.B, 6.C, 7.A, 7.B., 7.D, 7.G, 7.H, 9, 11, 14, and 15 shall survive the completion, expiration, termination or cancellation of this Agreement. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
15) APPLICABLE LAW AND VENUE
A) This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Texas. The Parties agree, understand and consent to personal jurisdiction in the State Courts of Galveston County, Texas, including the Galveston County Court of Common Pleas and the Galveston County Municipal Court, for any action arising out of this Agreement in any way. Customer further waives any right to remove any such action from the State Courts of Galveston County, Texas to any other court on any basis, including but not limited to, removal to any federal court.
16) FORCE MAJEURE
A) KIX shall have no liability due to circumstances beyond its control, including, but not limited to, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Service Package or the KIX Internet Network, in whole or in part, or act or failure to act of Customer or any third party using the Service Package.
A) “Computer” means a personal computer(s) which (i) does not provide any other computers with access to any features of any Service Package; and (ii) meets certain minimum configuration requirements, which may include a Network Interface Card (“NIC”), as specified from time to time by KIX generally.
B) “Confidential Information” means the KIX Materials, Equipment, Software and any other equipment and software provided or licensed to Customer by KIX or which is identified by KIX as confidential or would otherwise be understood to be confidential by a reasonable person.
C) “Customer Content” means the content contained on the Customer’s web site.
D) “Customer Data Network” means Customer’s data communications network, including, but not limited to, the equipment residing at the Customer’s site which connects such data network to the network facilities (including, but not limited to, a data subscription unit) linking such data network to a KIX Internet Network Server.
E) “Customer Employee” means an individual who is either a full or part time Customer employee or affiliate of Customer, who requires access to the Customer Data Network for business purposes only.
G) “Customer Network Link” means the high speed point-to-point communications circuit between a KIX Internet Network Server and the Customer Data Network used to provide access to the Customer Data Network from a Computer or Computers at Customer Subscriber Sites.
H) “Customer Remote Network” means a Customer-owned LAN, which is not geographically co-located with Customer’s Data Network.
I) “Customer Subscriber” means each Customer Employee or Customer Remote Network, which is party to or otherwise covered by an effective Subscriber Agreement for KIX Internet Services.
J) “Customer Subscriber Site” means the location of the Customer Remote Network or Customer Subscriber Computer, which is connected to the KIX Internet Network.
K) “Equipment” means the equipment and materials, together with any other equipment and materials included in the installation based on the final network plan approved by the parties. Including, but not limited to, the cabling and related splitters, subscription hardware provided by KIX, and other network-related hardware provided by KIX, its agents or contractors pursuant to this Agreement.
L) “Party” or “Parties” means either KIX or Customer, or KIX and Customer, respectively.
M) “KIX Internet Content” means an aggregation of content and applications provided by KIX to its KIX Affiliates.
N) “KIX Internet Network” means the data transmission network provided by KIX and/or KIX Affiliates through which Customer accesses portions of the Service Package or Customer Subscriber accesses the Customer Data Network.
O) “KIX Internet Services” means KIX Internet Network, support and maintenance provided by KIX, and, if applicable, KIX Internet Content.
P) “Server” means a computer that provides services (including, but not limited to, acting as a network routing device or gateway for access to other networks) to other computing or terminal devices.
Q) “Service Charges” means the fees set forth for the Service Package agreed and Activated as described on Customer’s Account which may be modified by KIX from time to time in its discretion, including all applicable local, state and federal fees or taxes.
R) “Service Package” means the KIX Internet Services as set forth in Exhibit A or any other services ordered by Customer hereunder as set forth on Exhibit C, including, without limitation, any related Equipment, Software, KIX Internet Content, and general Internet access (unless otherwise stipulated in writing), offered by KIX and subscribed to by Customer as identified on the Cover Sheet and any Work Order(s) and schedules to this Agreement and any accompanying documentation and other materials in any form.
S) “Software” means all computing software licensed by KIX to Customer hereunder.
T) “Subscriber Agreement” means the current form of subscription agreement(s) for KIX Internet Services and is found in Customer’s Account.
U) “System Requirements” means those certain minimum hardware and software requirements specified by KIX that each Computer will need to meet.
V) “Term” means the Initial Term, plus any Renewal Terms.
X) “KIX Affiliate” means (i) any technician, system administrator or other entity (including KIX) that is authorized pursuant to an effective affiliation agreement with KIX to distribute to subscribers a broadband delivered online service based upon and including the KIX Internet Content via the KIX Internet Network or (ii) any entity under common control with KIX.
Y) “KIX Materials” shall have the meaning given in Section 5.A.
Z) “KIX Parties” means KIX, KIX’s third-party content and service providers, corporate parents, members, affiliates, subsidiaries and suppliers, and the directors, officers, employees, agents, third-party content and service providers or licensors of any of the foregoing.
AA) “KIX Service” shall have the meaning set forth in Exhibit A.
BB) “Web” or “web” means the World Wide Web.
CC) “Work Order” means the written or verbal description of Equipment, Software, ancillary equipment, Computers, connections, installation remarks and related Customer charges for the installation and operation of a Service Package. A Work Order may be submitted in writing, via email, fax or via voice call communicated to KIX or an authorized Customer representative.
DD) “Activation” means the initial connection of a Service Package or KIX Service between KIX Internet Network and Customer Data Network.
EE) “Customer’s Account” means the digital records maintained by KIX Internet describing the Work Order and Service Package provided to Customer.
All Service Packages accepted by customer are subject to change without notice and the continued usage of changed service package constitutes the acceptance by customer and is subject to this agreement. Changes including but not limited to Service Charges do to promotions, sales, discounts, rate increase/decrease or any other reason deemed fit by KIX Internet or KIX Affiliate. Speeds may vary and are subject to availability. All Service Packages may not be available in all areas. Equipment and installation fees may be required.