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This SERVICES
AGREEMENT ("Agreement") is made
between Ebbtide Kauai LLC. a.k.a. The
Kaua'i Link and Customer. Use
of the services provided hereunder
constitutes acceptance of these terms
and conditions of use and is a
binding agreement between Customer
and EBBTIDE KAUAI. WHEREAS, EBBTIDE
KAUAI LLC provides Internet services
through itself, its subsidiaries and
affiliates, and third party
suppliers; AND WHEREAS, Customer
desires to purchase Internet services
as set forth
herein:
1.
SERVICES - During the term of
this Agreement, EBBTIDE KAUAI LLC shall provide
Customer with computer services and Customer
shall pay for said services as invoiced,
regardless of actual usage by
Customer.
2.
LIMITATION OF LIABILITY
-
CUSTOMER AGREES THAT EBBTIDE KAUAI LLC
PROVIDES ITS SERVICES "AS IS" AND "AS
AVAILABLE" AND MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND, WHETHER
EXPRESSED OR IMPLIED, FOR ITS SERVICES
UNLESS SPECIFICALLY SET FORTH
HEREIN. EBBTIDE KAUAI LLC
SPECIFICALLY DISCLAIMS, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANT ABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR WARRANTIES OF
TITLE OR NONINFRINGEMENT. NO ADVICE
OR INFORMATION GIVEN BY EBBTIDE KAUAI
LLC'S EMPLOYEES, AGENTS OR CONTRACTORS
SHALL CREATE A WARRANTY. CUSTOMER
AGREES THAT EBBTIDE KAUAI LLC WILL UNDER
NO CIRCUMSTANCE BE RESPONSIBLE FOR ANY
LOSSES OR DAMAGES RESULTING FROM DELAYS,
NONDELIVERIES, MISDELIVERIES, SERVICE
INTERRUPTION, USE OF SOFTWARE, SYSTEM
CORRUPTION, ACTION OR INACTION,
PERFORMANCE, VIRUSES, NONPERFORMANCE,
TERMINATION, OR CUSTOMER'S NEGLIGENCE,
MISCONDUCT, ERRORS OR OMISSIONS, FOR LOSS
OF PROFIT OR REVENUE, OR FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, INCIDENTAL,
SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR
OR ADDITIONAL DAMAGES, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF: BUSINESS
PROFITS OR INFORMATION, BUSINESS
INTERRUPTION, ELECTRONICALLY TRANSMITTED
DATA, DOCUMENTS AND FUNDS, OR USE IN
CONJUNCTION WITH HIGH RISK ACTIVITIES,
AND THE LIKE, ARISING OUT OF THE USE OF
OR INABILITY TO USE THE SERVICES PROVIDED
HEREUNDER, OR OUT OF CUSTOMER OR
CUSTOMERS USERS' RELIANCE ON OR USE OF
INFORMATION, SERVICES OR PRODUCTS
PROVIDED ON OR THROUGH THE USE OF THE
SERVICES, OR THAT RESULT FROM
INTERRUPTIONS, OMISSIONS, MISTAKES,
DELETION OF FILES, ERRORS, DEFECTS,
DELAYS IN OPERATION, OR TRANSMISSION, OR
ANY FAILURE OF PERFORMANCE, EVEN IF
EBBTIDE KAUAI LLC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE
MAXIMUM LIABILITY OF EBBTIDE KAUAI LLC
SHALL BE LIMITED IN ALL EVENTS TO THE
AMOUNTS RECEIVED BY EBBTIDE KAUAI FROM
CUSTOMER WITH RESPECT TO THE SPECIFIC
SERVICES UPON WHICH THE CLAIM OF
LIABILITY IS MADE, AND CUSTOMER AGREES
THAT ITS SOLE REMEDY IN EVENT OF ANY
BREACH BY EBBTIDE KAUAI LLC OF THIS
AGREEMENT SHALL BE A REFUND OF SUCH
AMOUNTS PAID TO EBBTIDE KAUAI LLC,
HOWEVER, CUSTOMER AGREES THAT IN NO EVENT
SHALL THE CUMULATIVE LIABILITY OF EBBTIDE
KAUAI LLC UNDER THIS AGREEMENT EXCEED
THIRTY (30) DAYS' CREDIT FOR THE AMOUNT
PAID BY CUSTOMER TO EBBTIDE KAUAI LLC
WITH RESPECT TO THE THIRTY (30) DAYS OF
SERVICE IMMEDIATELY PRECEDING THE DATE OF
THE DEFAULT, ACT OR OMISSION BY EBBTIDE
KAUAI LLC.
3.
TERM - The term of this
Agreement shall begin as of the date Customer
first uses services and shall terminate at any
time upon notice by either party for any
reason, with or without cause. EBBTIDE
KAUAI LLC may immediately terminate this
Agreement, or in its sole discretion give
notice to terminate and/or suspend services
hereunder at any time upon: (a) any failure of
Customer to pay any amounts as provided in this
Agreement on time, (b) any breach by Customer
of any provision of this Agreement or any law,
rule, or regulation governing the services
provided hereunder, (c) any insolvency,
bankruptcy, assignment for the benefit of
creditors, appointment of trustee or receiver
or similar event with respect to Customer; or
(d) any governmental prohibition or required
alteration of the services to be provided
hereunder. Any termination shall not
relieve Customer of its obligation to pay any
charges incurred hereunder prior to such
termination. Upon termination, EBBTIDE
KAUAI LLC may terminate communication access to
Customer's web site(s), databases or home page,
if any, and remove such access and related
links without penalty. Any failure of
EBBTIDE KAUAI LLC to enforce its rights under
this Agreement will not act as a waiver of any
future rights.
4.
PAYMENTS - During the term in
which Customer is using services provided
pursuant to this Agreement, Customer shall pay
all amounts due without deduction or
offset. EBBTIDE KAUAI LLC reserves the
right to change pricing at any time with thirty
(30) days notice to Customer. EBBTIDE
KAUAI LLC reserves the right to terminate
service immediately for nonpayment.
Customer shall pay a $25 reactivation fee if it
desires to continue using EBBTIDE KAUAI LLC
services after it pays all amounts
due.
5.
ASSIGNMENT - Customer may not
assign this Agreement. Customer expressly
understands and agrees that some services
provided under this Agreement may be
provisioned through an affiliated company,
and/or a separate third party supplier,
therefore EBBTIDE KAUAI LLC may freely assign
its obligations or rights under this Agreement
at any time.
6.
GOVERNING LAW - This Agreement shall
in all respects be construed in accordance with
and governed by the laws of the State of
Hawaii.
7.
BILLING - Customer agrees to pay
all amounts in advance as invoiced.
Customer agrees to be responsible for any
required taxes, fees and governmental charges,
which will be passed through by EBBTIDE KAUAI
LLC. EBBTIDE KAUAI LLC'S billing cycle
for access services begins on the first of each
month and ends on the last day of the
month. Billing statements are sent at the
beginning of the month and must be paid by the
last day of the month. Payment is
considered past due if not received by the end
of the month. Any amount under this
Agreement not paid within thirty (30) calendar
days from the last day of the month is subject
to a 1.5% interest charge, or the highest
interest rate allowed by law, whichever is
less. In addition, EBBTIDE KAUAI LLC may
terminate service to Customer without notice.
Billing statements will be sent to
Customer via email from
billing@KAUAILINK.NET.
8.
ACCEPTABLE USE POLICY
-Customer
warrants that it shall not use any
services provided under this Agreement in
violation of any law or regulation,
including, but not limited to, rights of
privacy or publicity, prohibitions of
libel or slander, and violations of
defamation, infringement,
misappropriation, intellectual property
rights laws, invasion of privacy, unfair
competition, antidiscrimination, consumer
protection, credit, false advertising,
obscenity, pornography, indecency or tax
laws, or the Electronic Communications
Privacy Act and the Computer Fraud and
Abuse Act.
9.
SYSTEM MONITORING
- EBBTIDE
KAUAI LLC reserves the right to monitor
Customer actions when necessary to help
Customer or to protect itself or other
users or systems. Any use of
EBBTIDE KAUAI LLC services that disturbs
the normal use of the system by EBBTIDE
KAUAI LLC or by other customers or
consumes excessive amounts of memory for
long periods of time may result in
termination of this Agreement in the sole
discretion of EBBTIDE KAUAI LLC without
notice to Customer and without penalty to
EBBTIDE KAUAI LLC. Customer expressly
agrees to indemnify EBBTIDE KAUAI LLC for
any loss EBBTIDE KAUAI LLC sustains
through Customer's breach of this
Section. EBBTIDE KAUAI LLC and
Customer agree that the terms and
conditions in this Section are reasonable
and necessary for EBBTIDE KAUAI LLC to be
able to provide services hereunder and to
protect the proper, efficient functioning
of the Internet, and are material in any
interpretation of this
Agreement.
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