Kinex Telecom, Inc. Internet Service Agreement
1. Users of Kinex Telecom, Inc. services are required to comply with, and by using any such facilities, agree to comply with and be subject to Kinex Telecom, Inc. Internet Service Agreement, hereby known as the "agreement". Kinex Telecom, Inc. reserves the right to amend these Conditions and Policies at any time.
2. Subject to the provisions hereof, the account will be opened upon receipt of payment together with this contract, and repeated in each successive billable period thereafter at the then applicable prevailing rates and charges, unless written notice of cancellation is received from User at least 10 days prior to the beginning of the next billable period. The initial and minimum term of this Agreement is for 1 month unless otherwise specified.
3. Payments & Prices
3.1. Payments shall be made monthly or otherwise by prior arrangement. Charges for "billable period" services are payable prior to the beginning of each period. The billable service period begins on the date the services indicated in this agreement becomes available to the User.
3.2. If Kinex Telecom, Inc. should receive less than its invoice amount, Kinex Telecom, Inc. will re-invoice User for the shortfall. In the event that any amount remains unpaid thirty (30) days after presentation of invoice, Kinex Telecom, Inc. may discontinue, withhold, or suspend services to User.
3.3. All prices for services provided by Kinex Telecom, Inc. to Dealer are US dollars. Payment shall be made in US dollars to Kinex Telecom, Inc. into the account designated by Kinex Telecom, Inc. , or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. Should payment in full of any invoice (aside from such shortfalls) not be received by Kinex Telecom, Inc. within thirty (30) days after presentation, Kinex Telecom, Inc. will impose a debt service charge amounting to one percent (1.5%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid. Failure to pay because service has been cancelled or suspended in no way relieves the User's obligations to make full payment. Finance charges will continue to accrue.
3.4. User hereby agrees to pay any and all attorney fees, court costs, and related expenses incurred by Kinex Telecom, Inc. in the collection of any amount due it.
3.5. Kinex Telecom, Inc. may, with 30 days notice, amend the rates and/or charges for any future server usage and/or services.
4. Limitation of Kinex Telecom, Inc.'s Obligation & Liability
4.1. Kinex Telecom, Inc. will utilize its best efforts to maintain acceptable performance of services contracted for services, but Kinex Telecom, Inc. makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Kinex Telecom, Inc. cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Kinex Telecom, Inc. will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Kinex Telecom, Inc. shall not be liable to Users including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of Kinex Telecom, Inc. .
4.2. Kinex Telecom, Inc. may discontinue servicing any Plan, or may require fulfillment of conditions. Kinex Telecom, Inc. may choose to impose as a prerequisite for continuing to service any Plan. Such discontinuation or requirement may not be unreasonable, however, and Kinex Telecom, Inc. agrees to provide User with reasonable notice via Email and fax of any such intent to discontinue or impose conditions.
4.3. Services provided by Kinex Telecom, Inc. to Reseller shall be deemed accepted for all purposes thirty days after presentation of invoice for such services, if no written claim or objection regarding such services has been received by Kinex Telecom, Inc. within the 30-day period. No claim related to such accepted services shall be raised.
4.4. Kinex Telecom, Inc. 's liability to User, and any end user of any Plan or other Kinex Telecom, Inc. services is limited to the amount paid to and received by Kinex Telecom, Inc. for services not accepted. In no event shall Kinex Telecom, Inc. be liable to User, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Kinex Telecom, Inc. has been advised of the possibility of such damage.
4.5. User will take all necessary measures to preclude Kinex Telecom, Inc. from being made a party to any lawsuit or claim regarding Kinex Telecom, Inc. services provided to any User or end user. User hereby agrees to indemnify and hold harmless Kinex Telecom, Inc. from any and all claims of whatever nature brought by any of User's customers against Kinex Telecom, Inc. in excess of the remedy set forth in paragraph 4 .
5. All orders are subject to acceptance by Kinex Telecom, Inc. . Kinex Telecom, Inc. will only host sites that are legal in the US. We reserve the right to deny service to any domain, especially sites engaging in email spamming, bulk emailing, flaming & illegal pornography. Reseller agrees to same. Kinex Telecom, Inc. expects its Users to treat the Internet resource with respect.
5.1. Subscribers violate our policy and the Services Agreement when they, engage in the following activities:
5.1.1. Unsolicited E-Mail & UseNet Mailings (Spamming) -- Unsolicited, commercial mass emailing (known as "spamming") is a strongly disfavored practice among Internet users and service providers.
5.1.2. Copyright Violation -- Violation of copyrights held by individuals and corporations or other entities
5.1.3. Distribution and/or Transmission of Obscene or Indecent Speech or Materials -- Violation of indecency and obscenity laws.
5.1.4. Defamation -- Defamatory speech distributed over the Internet can result in civil liability for the defamer and litigation against the ISP whose facilities were used to distribute the defamatory material.
5.1.5. Distribution of Internet Viruses, Worms, Trojan Horses and Other Destructive Activities
5.2. At Kinex Telecom, Inc. discretion, access to Kinex Telecom, Inc. Internet service may be revoked at any time for abusive conduct on the system and/or the Internet and its resources as a whole. Kinex Telecom, Inc. and its officer's are deemed as authority to define abusive conduct to the system, and definitions may periodically change or be amended to previous ones.
6. This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Kinex Telecom, Inc. may make changes to this agreement upon thirty (30) days' written notice to User, advising of the change and the effective date thereof. Utilization of Kinex Telecom, Inc. services by User and/or its customers following the effective date of such change shall constitute acceptance by User of such change(s), unless User objects in writing to such changes, in which case the changes shall not take effect until there is written consent to other arrangements by both parties.
7. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Virginia, United States of America, and the courts of Prince Edward County shall have exclusive jurisdiction in respect of any proceeding in connection with this Agreement.
V.1.1 (Dated November 30, 2002)
Kinex Telecom, Inc. Master Services Agreement
1. PROVISION OF SERVICES.
(a) This Master Services Agreement (“MSA”), including any addenda or amendments, is made by and between Customer and Kinex. “Kinex” means Kinex Telecom, Inc. Customer must submit a service order form, work invoice, or other form of order for service, equipment or materials incorporating this MSA to Kinex (“Service Order”). The Service Order will specify telecommunications services ordered from Kinex, including but not limited to voice, data, and information services (together, “Services”), equipment or materials to be sold, licensed or leased to Customer (collectively, “Customer Premises Equipment or CPE”), delivery location (the “Premises”), prices, and term commitments for the Services. This MSA and the Service Order together are referred to as the “Agreement”.
This MSA shall be effective on the date the Service Order incorporating this MSA is executed by Customer and Kinex. The term of the Service Order commences upon Acceptance of the Services (as defined below). At the end of the initial term for the Service Order, the term shall renew for successive one year renewal terms until terminated pursuant to this Agreement. Either party may prevent renewal of this Agreement by providing at least 30 days written notice to the other party prior to the end of the initial term or a renewal term.
3. DELIVERY OF SERVICES.
Kinex will use commercially reasonable efforts to deliver Services by a requested date. “Acceptance” shall mean the earlier of the actual use of the Services by Customer, or 10 days after completion of testing of the Services. Upon reasonable notice by Kinex to Customer, Customer shall provide Kinex access to the Premises to deliver the Services. Kinex retains title to all CPE not specifically sold to Customer. Kinex reserves the right to interrupt the Services for maintenance or repair, and will use commercially reasonable efforts to coordinate with Customer to minimize any impact.
4. BILLING AND PAYMENT.
Billing for the Services commences upon Acceptance. Customer shall pay Kinex all invoices within 30 days after the invoice date. Kinex shall bill monthly in advance for the Services and each invoice shall include: (a) the fixed monthly recurring charges (“MRCs”), all nonrecurring charges, including, but not limited to, installation or repair fees, (“NRCs”) and any usage based charges from the prior period; (b) all current and future taxes, fees and surcharges, however designated, imposed on or based upon the provision, sale, or use of the Services; (c) interest calculated at 1.5% monthly (or the highest rate allowed by law) on amounts not paid within 30 days after invoice date; and (d) all other charges or fees set forth herein. Should Customer elect to dispute an invoice, it must do so by written notice to Kinex within 90 days after the invoice date. Such notice of dispute may be sent to: (i) Kinex, Attn: Billing Dispute Department, 717 East Third Street, Farmville, Virginia 23901.
5. CUSTOMER OBLIGATIONS.
Customer shall: (a) not use the Services or CPE of Kinex in any unlawful way or for any unlawful purpose; (b) complywith the Acceptable Use Policy posted at www.kinextel.net; (c) ensure compatibility of its equipment with the Services and CPE provided by Kinex and operate, maintain, and secure its own equipment and facilities; (d) provide and maintain safe and adequate electric power, equipment space, climate control, work conditions, access, and use of rights-of-way and facilities at the Premises; (e) reimburse Kinex for the replacement cost of any CPE that is damaged or stolen due to the negligence of the Customer; (f) return all CPE within 30 days of termination of this Agreement or pay Kinex for its replacement cost; (g) provide 60 days written notice to Kinex prior to moving any Services from the Premises or changing its business name; (h) arrange to terminate services from other service providers that are being replaced by the Services; (i) not resale or market the Services in direct competition with Kinex; and (j) defend, indemnify, and hold harmless Kinex against any and all damages or costs caused by Customer’s negligent or intentionally wrongful acts or omissions.
6. VOICE SERVICES.
(a) Kinex measures calls in specified increments to two decimal points for each voice service and rounds up fractions to the next whole unit. (b) For each measured-rate call, Kinex bills the Customer a minimum of $0.01. (c) Any unlimited calling plan is strictly for typical business applications and Customer shall not use such services in connection with auto-dialers, internet dialing, fax blasting, telemarketing, call centers, party lines, or similar activities. (d) Unlimited calling is permitted up to a maximum of 5,000 minutes of toll calling per line within any one month service period. Average or forecasted usage beyond this threshold is presumed to be inconsistent with typical business voice applications and is prohibited. If Kinex determines that the usage is in violation as described herein, Kinex may take immediate action to enforce the restrictions, including, but not limited to, service suspension or moving such Services to a standard usage based service plan.
7. UNAUTHORIZED USE OF SERVICES. Customer shall bear the entire responsibility for, and risk of loss arising from, unauthorized, abusive, or fraudulent use of the Services. Kinex reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to the Services) to prevent any fraud or abuse in connection with the Services.
(a) Customer or Kinex may terminate the Services and this Agreement without any liability if: (i) any material rate, term, or condition for such Services or underlying facilities is substantially changed by a court, regulatory agency with competent jurisdiction, or third party provider; or (ii) the other party materially breaches this Agreement and the breaching party fails to cure an actual material breach within 30 days (or such longer time as may be required to cure any breach) after written notice. (b) Kinex may terminate this Agreement or suspend Services without any liability if: (i) after 10 days (or longer notice if required by law) written notice from Kinex, Customer does not pay all amounts due for any Services; (ii) Customer is involved in suspected of actual fraud, misrepresentation, or other violation of law; (iii) Customer becomes insolvent or bankrupt; or (iv) as otherwise set forth herein. If Kinex terminates this Agreement under this section, then Kinex will deem any or all Service Orders terminated by Customer and all remaining MRCs for the initial term or a renewal term and NRCs otherwise due herein shall become immediately due and payable. Kinex has sole discretion over restoring the Services.
9. ADDITIONAL CHARGES AND FEES.
(a) If Customer cancels a Service Order before installation, then Customer shall pay Kinex any cancellation charges incurred by Kinex from other service providers plus three times the MRC for the cancelled Service Order (“Cancellation Charge”). (b) Upon 30 days advance written notice to Kinex, Customer may terminate any Service before its initial term or renewal term has expired (“Termination for Convenience”) and shall pay Kinex all amounts then due; cancellation charges incurred by Kinex from other service providers; all unpaid or waived NRCs; all discounts or installation credits received by Customer; and Termination Damages defined as (i) one hundred percent (100%) of the accumulative MRC remaining for the unexpired portion of the 1st through 12th month period of the initial or a renewal term; plus (ii) fifty percent (50%) of the accumulative MRC remaining for the unexpired portion of the 13th through 36th month period of the initial term; plus (iii) twenty-five percent (25%) of the accumulative MRC remaining for the unexpired portion of the period of the 37th through 60th month period of the initial term (collectively, “Early Termination Liability”). Early Termination Liability applies to any Termination for Convenience, unless Customer signs a new Service Order within 30 days of the Termination of Convenience notice with a higher MRC for similar Services and a new initial term of at least 36 months. Customer shall not dispute the validity of any Cancellation Charge or Early Termination Liability, including any assertion that such damages are penalties or are not reasonably related to actual damages.
10. LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL EITHER PARTY (OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS) BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF CUSTOMERS, CLIENTS OR GOODWILL ARISING IN ANY MANNER FROM THE AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE HEREUNDER. (b) Kinex’s sole responsibility and entire liability and Customer’s entire remedy for any interruption of Services shall be the issuance of outage credits (if any) consistent with Kinex’s applicable tariff and/or any service level agreement provided by Kinex for the Services. In no event shall the outage credits exceed the total MRC for an affected Service during any single month nor shall Kinex’s accumulative liability for all claims arising out of this Agreement exceed the total amount paid by Customer to Kinex in the six month period preceding a claim. (c) Kinex shall not be liable under this Agreement for: (i) any breach or failure of performance under this Agreement that is caused by circumstances beyond its reasonable control, including but not limited to failure or disruption of any Services or failure or disruption of 911, E911, or medical alert service; (ii) any failure or interruption in Services caused by an act or omission of another person or provider furnishing any portion of the Services; (iii) any costs other than repair or replacement of the CPE in the event of failure; (iv) charges from Customer’s other service providers of any kind, including those related to the timely installation of the Services or any Confidential and Proprietary Page 2 of 2 Version 5.0 (May 09) interruptions during transfer from the other service providers; (v) any telephone numbers published or distributed by Customer prior or Acceptance of the Services; or (vi) any directory publishing error. (d) This section shall survive failure of an exclusive or limited remedy and termination of this Agreement.
THE QUALITY OF WORK PEFORMED HEREUNDER SHALL BE CONSISTENT WITH COMMON CARRIER INDUSTRY STANDARDS, GOVERNMENT REGULATIONS AND SOUND BUSINESS PRACTICES. KINEX MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer and Kinex agree not to disclose to a third party any non-public information regarding either party’s business that has been provided to the receiving party and designated confidential or proprietary (“Confidential Information”). Each party shall treat all Confidential Information with reasonable care and protect such Confidential Information as if such information was its own Confidential Information. This section does not apply to information already known to the receiving party, already in the public domain, rightfully obtained from a third party, or required by law to be disclosed as part of any court proceedings. The obligations in this section shall survive termination of this Agreement.
Kinex grants Customer a non-exclusive, non-transferable license to use computer software needed to deliver and use the Services and CPE (“Licensed Software”). Customer has no claim to ownership in any Licensed Software. Customer agrees not to copy, reverse engineer, decompile, disassemble, sell, lease, or license the Licensed Software, and not to create, write or develop any derivative works or other software based on Licensed Software.
14. TARIFF APPLICATION.
Services may now be, or may later become, subject to Kinex’s tariffs filed with the Federal Communications Commission or another agency.
Notice to Customer may be directed to a contact listed in Kinex’s account information for Customer, whether delivered in person, sent by facsimile, sent by courier, sent by electronic mail, or sent by U.S. Postal Service. Customer shall immediately notify Kinex of any changes to Customer’s contact information. Notice to Kinex must be directed to either (a) Kinex, Attn: Legal Department, 717 East Third Street, Farmville, Virginia 23901. Notice shall be effective when sent.
16. GENERAL PROVISIONS.
(a) This Agreement may only be amended in writing signed by duly authorized officers of both parties. (b) Service Orders and any authorized amendments may be executed in counterparts which together shall constitute a single agreement. (c) No specific waiver or failure to enforce any provision of this Agreement shall be deemed to constitute any permanent or general waiver. (d) If any term in this Agreement is held invalid or unenforceable in any respect, then the remainder of the Agreement shall not be affected and each term or condition of the Agreement shall be valid and enforceable to the fullest extent permissible by law. (e) This Agreement creates no partnership, joint venture, or agency relationship between the parties and results in no joint telecommunications service offerings. (f) Customer shall not assign or transfer any of its rights or obligations under this Agreement without Kinex's prior written consent. (g) This Agreement shall inure to the benefit of and be binding against each party's heirs, successors or assigns. (h) If Kinex seeks to enforce any term or condition of or related to this Agreement, then Kinex shall be entitled to payment of (in addition to other remedies) its reasonable attorneys, collection agency, investigative, arbitration and/or court, costs and fees. (i) This Agreement shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Virginia without regard to its conflict of laws principles. (j) Descriptive headings used herein shall not affect the construction or interpretation of the Agreement. (k) Kinex may verify and use Customer’s credit information as needed. (l) Customer certifies that any information provided to Kinex is true and accurate to the best of its knowledge. (m) This Agreement shall remain in full force and effect if Customer moves to an area not served by Kinex or if Customer decreases or ceases any or all of its business operations, regardless of whether notice is provided.
I have read, understand, and agree to the provisions outlined above in the Kinex Telecom Master Service Agreement.