BROADBAND SERVICE & LICENSE AGREEMENT ("AGREEMENT") TERMS AND CONDITIONS
PLACEMENT OF YOUR ORDER FOR BROADBAND SERVICES FROM WEBCATS.NET AND YOUR ACCEPTANCE OF THIS ORDER CONSTITUTES ACCEPTANCE OF THE AGREEMENT TO THE TERMS AND CONDITIONS SET FORTH BELOW.
1. Services. Customer agrees to purchase network access services ("Services") from WEBCATS, webcats.net, webcatswireless.com, Webcats Wireless Networks or Webcats Networks ("WEBCATS"). Services provided by WEBCATS are for the sole use of the customer and not for resale of any kind without the prior written consent of WEBCATS. WEBCATS may, at its sole discretion, increase fees associated with the Services or terminate the Services as allowed under this Agreement and further set forth below.
2. Billing. Customer agrees to pay all charges billed to Customer's account, including applicable taxes in accordance with billing terms in effect at the time the fee or charge becomes payable. Recurring monthly fee(s) is (are) due and payable in advance of the first day of each monthly billing period for which the Customer has purchased Services. Customer agrees to pay a fee for processing unpaid checks or rejected credit cards. The initial payment may include non-recurring installation charges, including but not limited to, equipment, inside wiring and installation fees. Delinquent accounts are subject to immediate termination or suspension of Services. A Customer's account is considered delinquent and customer will be subject to a late payment fee of 1.5% per month of the outstanding balance if payment is not received by WEBCATS within 5 days of date payment is due.
3. Term and Termination.
(a) This Agreement shall be effective immediately and shall continue during the term as specified as the "Service Activation Date" specified in the Installation Agreement attached hereto or until this Agreement is otherwise terminated as set forth herein. The Term shall commence on the date upon which the Service is made available for use by Customer. This Agreement may be terminated by either party at the end of its Term by giving written notice at least fifteen (15) days prior thereto. In the absence of such notice, this Agreement shall automatically renew on a month to month basis until receipt of advance written notice by a Party form the other Party expressly terminating this Agreement thirty (30) days in advance of the date of termination (such renewal term shall also be referred to herein as the "Term"). In the event Customer terminates the Agreement prior to the conclusion of the Term, Customer shall pay WEBCATS all charges for Service provided through the effective date of such cancellation plus a cancellation charge determined as follows: If the Term for the cancelled Service is two (2) year or less, then the cancellation charge shall be an amount equal to the balance of the monthly recurring charges (then in effect at the time of cancellation) It is agreed that WEBCATS damages, if Service is cancelled prior to the completion of the Term, shall be difficult or impossible to ascertain, the amounts set forth herein are intended to establish liquidated damages in the event of cancellation and are not intended as a penalty.
(b) WEBCATS may terminate the Agreement and/or cease or suspend the provision of the Service upon default of Customer. Default includes: (i) the failure to pay any amount when due hereunder (after ten (10) days prior notice of such failure to pay); (ii) the filing of a petition in bankruptcy by or against Customer; and (iii) any material breach of this Agreement including but not limited to violation of WEBCATS Acceptable Use Policy "AUP", a copy of which is attached or made available at attp://www.webcats.net/aup.html or conduct that WEBCATS, in its sole discretion, believes may subject WEBCATS to civil or criminal litigation, charges and/or damages. If WEBCATS has suspended the Service to Section 3(b), WEBCATS shall require a reconnection fee in order to resume Service and Customer agrees to pay such fee. Termination shall not relieve Customer of its obligation to pay all fees for Service accrued and owing up to and including the date of termination or otherwise payable pursuant to Section 3(a) above, nor shall it preclude WEBCATS from pursuing to Section 3(a) above, nor shall it preclude WEBCATS from pursuing any other remedies available to it, at law or in equity.
(c) In the event a law or regulatory action prohibits, substantially impairs, or makes impracticable the provision of Service under this Agreement, as determined by WEBCATS, WEBCATS may, at is option and without liability, terminate this Agreement or modify the Service or the terms and conditions of this Agreement in order to conform to such action ("Regulatory Modification"); provided, however, that WEBCATS shall provide fifteen (15) days written notice prior to Customer of any such Regulatory Modification, unless WEBCATS determines, in its good faith business judgment, that it is necessary to reduce the foregoing notice period. Use of the service by Customer after implementation of a Regulatory Modification shall constitute acceptance by Customer of such changes.
4. Rights and Obligations of Customer. Customer represents and warrants that (a) it has full right and authority to enter into this Agreement; (b) it will not use the Service in any manner which is in violation of any law or governmental regulation, or the WEBCATS AUP as amended from time to time by WEBCATS, which AUP is posted on the WEBCATS web site at http://www.webcats.net/aup.html and which is incorporated by reference herein; (c) the "Customer Data" (as hereinafter defined) will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right; (d) the Customer Data will not include indecent or obscene material or constitute a defamation or libel of any third party and will not result in obligation to make payment of any third party and will not result in the obligation to make payment of any third party licensing fees; and (e) it will comply with all relevant export and encryption laws and regulations of the United States. For purposes of this Section 4, "Customer Data" shall mean the text, data, images, sounds, photographs, illustrations, graphics, programs, code and other materials transmitted through the Service hereunder.
5. IP Addresses. IP Addresses are static and not dynamic, and are therefore not portable and are not perminately assigned. Additionally Webcats requires the use of a hardware firewall, such as a router, by all of its network members. WEBCATS reserves the right to administer IP addresses in its sole discretion. Customer understands that IP assignments are not guaranteed and may be modified as required by WEBCATS and/or the American Registry for Internet Numbers (ARIN) or any other agency having jurisdiction to make such changes.
6. Further Restrictions. Customer agrees not to use any servers in conjunction with the Services, including but not limited to, Electronic Mail, NAT, DHCP, DNS and WEB servers. In the event any Customer attempts to utilize a server on the network, WEBCATS may, at its discretion, increase the fees associated with the Service or terminate the Service as further provided herein.
7. Written Notice. Termination notice must be sent to WEBCATS Webcats.net, 4101 Tates Creek Rd. Suite 150 #181 Lexington, KY 40517. Verbal cancellation notices are not acceptable.
8. Disclaimer of Liability. THE SERVICES OF WEBCATS ARE PROVIDED "AS IS." WEBCATS MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY REGARDING THE RELIABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE OF ITS SERVICES. IN NO EVENT SHALL WEBCATS, ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, INSDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OF ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) WHETHER OR NOT WEBCATS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. WEBCATS LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT EQUAL TO THE AVERAGE MONTHLY RECURRING CHARGE FOR THE SERVICE PAID TO BY CUSTOMER PURSUANT TO THIS AGREEMENT. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
Customer acknowledges that WEBCATS exercises no control over the quality, validity, nature, content or reliability of the information passing through the network. No oral or written information or advice given by WEBCATS, its dealers, agents or employees shall create a warranty. Use of any information obtained from or through the Services provided by WEBCATS will be at Customers own risk. Customer acknowledges that WEBCATS is not liable for any errors or interruption in the Services, whether within our outside of control of WEBCATS. Under no circumstances shall the customer hold WEBCATS responsible for any form of damages or losses including direct, indirect, consequential or incidental damages of losses suffered from, but not limited to errors, delays, loss of information of interruptions in Services caused by the customer, WEBCATS, or third party's negligence, fault, misconduct of failure to perform or acts of God. Customer understands that telecommunication and/or network access Services may be temporarily unavailable for scheduled or unscheduled maintenance and for reasons within or outside of the direct control of WEBCATS.
9. Indemnification. Customer agrees to defend, indemnify and hold WEBCATS and its affiliate harmless from any and all liabilities, costs and expenses, including reasonable attorneys' fees, related to or arising from: (a) any breach of this Agreement by Customer; (b) the use of the Service or the Internet or the placement or transmission of any information, software or other materials on the Internet by Customer, including but not limited to any Customer data; (c) acts or omissions of Customer, Customer's agents or contractors in connection with, among other things, the installation, maintenance, presence, use or removal of equipment or software provided by WEBCATS or other sources connected or to be connected to the Service; and (d) claims for infringement of any third party proprietary right, including copyright, patent, trade secret, and trademark rights, arising from the use of any services, equipment and software provided by WEBCATS or other sources.
10. Injunctive Relief Available. In the event of a breach or threatened breach of any provision of this Agreement by Customer, Customer agrees that damages to be suffered by WEBCATS will not be fully condensable in money damages alone, and accordingly, WEBCATS shall, in addition to other available legal or equitable remedies, be entitled to an injunction against such breach or threatened breach.
11. Miscellaneous.
(a) This Agreement shall be governed by the laws of the State of Kentucky with venue in Fayette County, Kentucky. Any cause of action Customer may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. In any proceeding to enforce the terms of this Agreement, WEBCATS shall be entitled to recover all of its expenses, including, without limitation, reasonable attorney's fees.
(b) In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed as nearly as possible to reflect the original intent of the parties and the remainder of the provisions shall remain in full force and effect.
(c) WEBCATS failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any of its rights hereunder.
(d) The terms and conditions of its Agreement shall prevail notwithstanding any different or additional terms and conditions of any purchase order or other form for purchase or payment submitted by Customer to WEBCATS.
(e) Sections 3, 4, 5, 7, 8 and 9 shall expressly survive termination of this Agreement.
(f) WEBCATS is acting as an independent contractor and shall have exclusive control in the manner and means of performing its obligations.
(g) WEBCATS will not be responsible for performance of its obligations hereunder where delayed or hindered by, war, riots, embargos, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its control.
(h) This Agreement, including the AUP (as such AUP may be amended from time to time), and the Service Order, constitutes the entire agreement between Customer and with respect to the Service.
12. Entire Agreement. These Terms and Conditions contain the entire agreement and understanding concerning the Services and supersede all prior negotiations, discussions and proposed agreements, whether electronic, written or oral. These Terms and Conditions may be modified at any time by WEBCATS.
