This SERVICES AGREEMENT ("Agreement") is made between Ebbtide Kauai LLC. 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 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.
Ebbtide Kauai LLC
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