1. Installation and Service:
a. Terms: QX.Net shall install or arrange installation of products and services as set forth on the QX.Net DSL Pricing Page. All installation fees, hardware charges and recurring service fees for the first indicated period on your first statement are due and must be paid on receipt. Installation is deemed to be complete when QX.Net (or its representative) is able to ping a computer at Customer's location through the DSL connection, or the customer has verified the DSL line is operational. Customer shall provide all necessary preparations required to ensure proper installation, maintenance and operation of the circuit; and will provide QX.Net (and its representatives and suppliers) all reasonable access to Customer's premises and telephone equipment to perform any acts pursuant to this Agreement. Customer is responsible for costs of wiring beyond the point of demarcation (the "demarc") as outlined in 1(b), and for relocation of services once installed.
b. Inside Wiring: The demarc will be determined in the course of installation; any wiring performed beyond this point is considered "inside wiring." QX.Net (or its representative) will perform inside wiring up to 100 feet, physical conditions and building owner/management permitting. In some cases, Customer will need to procure special permission, insurance, and/or a 3rd-party contractor to complete inside wiring; any fees and costs thereof are separate from QX.Net fees and charges, and QX.Net will not provide any credit, reimbursement, or discount for them.
c. Appointments: QX.Net DSL installation may require a, or several appointments, wherein a technician comes to the Customer's premises. QX.Net will exercise reasonable effort to arrange these appointments when convenient for the Customer; however, appointment dates are often arbitrarily assigned by contractors. Customer is required to be present for all appointments or else pay a "no access" fee. This fee will be waived if: (i) QX.Net (or its representative) fails to inform Customer of the upcoming appointment more than 24 hours before 8 AM of the appointment date; or (ii) Customer informs QX.Net by phone or email, prior to 2 PM on the day before the scheduled appointment, that Customer will not be present; or (iii) Customer is available, but the contractor declares "no access" and QX.Net determines to its satisfaction that the contractor did not make a reasonable attempt to gain access.
d. Fulfillment and Cancellation: By ordering QX.Net DSL Service, Customer agrees to allow QX.Net a reasonable time to fulfill the order. QX.Net reserves the right to charge a Cancellation Fee (not to exceed $300) on orders cancelled without reasonable cause.
Upon cancellation, Customer is responsible for the return (to QX.Net or a third party of QX.Net's choosing) of all hardware, software, and/or other material goods provided in accordance with this Agreement. Any such goods not returned within thirty (30) days of cancellation will be billed to the Customer at full price.
2. Term of Agreement:This Agreement shall have a term of one year, unless a different term is agreed upon in writing or set forth on the QX.Net DSL Pricing Page. This term shall commence on the date of installation completion and shall thereafter automatically renew for successive equivalent or monthly terms as applicable, unless terminated as set forth herein or unless written notice of non-renewal by either party is delivered to the other party at least thirty (30) days prior to the end of the then current term.
3. Moving:If the Customer moves during the term of this Agreement and would like to relocate the Service, Customer must place a relocation request with QX.Net as soon as possible. This request must contain the requested date of service termination, plus the address and phone number of the new location if possible and the prospective move-in date. Upon receiving a written or email relocation request from Customer, QX.Net will suspend all monthly fees from the requested termination date until service relocation is completed. QX.Net will bill Customer for a new installation fee, including applicable discounts, and Customer is subject to all terms and conditions in part 1 of this Agreement as regards the installation process at Customer's new premises. Billing cycle and service term will recommence upon activation of QX.Net DSL at the new location. If QX.Net and its agents are unable to provide service to Customer's new location, the Agreement shall terminate and applicable Early Termination fees (not to exceed $300) shall be applied. If QX.Net has not yet received sufficient information from Customer to process the relocation order thirty (30) days after service termination, this Agreement is considered to be broken and Early Termination fees will apply.
4. Payment and Billing:Rates are as set forth on the QX.Net DSL price list on the date the order is placed. Billing will commence on the date Customer's DSL connection to QX.Net is activated. Customer may prepay the charges for the yearly term (or other current term duration) or pay the charges on a monthly or quarterly basis. Unless otherwise agreed by QX.Net and Customer in writing, Customer's billing cycle will be determined by the initial payment amount as follows: If the initial payment covers a full year (inclusive of applicable discounts), the billing cycle will equal one year. If the initial payment covers less than one year, the billing cycle will equal one month. Initial charges shall be invoiced in advance, and are due on receipt of customers first statement. Customer's billing cycle will be prorated to the 1st of the month from the date of activation and subsequent payments will be due on the date specified each billing cycle. Charges more than 5 days overdue will subject Customer to interruption of service. Such interruption does not relieve Customer from the obligation to pay the recurring charge, and no credit will be given for interruptions of service due to late payment. QX.Net reserves the right to levy service charges and/or collection fees on accounts more than 30 days overdue.
5. Obligations of Customer:Customer shall use QX.Net services only for lawful purposes. Customer shall not transmit, retransmit, or store material in violation of any federal, state, or local law (statutory or common) or regulation, including without limitation, laws or regulations governing libel or slander, obscenity, threats or harassment and infringement or other violation of trademark, copyright, trade secret or proprietary rights. Customer is responsible for obeying all of QX.Net's Rules of Use, except where superceded by this agreement. Upon notice from QX.Net, Customer shall promptly eliminate any hazard, interference or service obstruction that hardware or software not provided by QX.Net is causing, or is likely to cause. QX.Net will, at its option, troubleshoot problems caused by such hardware or software at Customer's request. Such services are billed at rates in effect when such services are requested.
6. Rights and Obligations of QX.Net:QX.Net shall install the products and services set forth on the QX.Net DSL Pricing Page. Stated bandwidths apply only to the circuit between Customer's Equipment and QX.Net. QX.Net warrants that on the date of installation, the products and services shall be in good working order and conform to order specifications. THE FOREGOING WARRANTY IN IS LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. QX.Net makes no other warranty, either express or implied, in regard to any or all of the following: (a) information, products or services provided to the Customer as a result of this Agreement; (b) the availability, accuracy or content of information, products or materials sent or received via services provided by QX.Net; (c) service interruptions or network downtime. Services shall be provided on a "best efforts" basis, but if service is completely unavailable for a period exceeding eight (8) hours in a single day for reasons solely attributable to QX.Net, Customer shall be credited on a pro-rata basis for each such day. Applicable credits and refunds shall be limited to recurring monthly or yearly service fees ONLY for periods when service is unavailable; setup fees, hardware cost, and other non-recurring fees are non-refundable. QX.Net shall not be liable (either in contract or tort), for losses or damages arising from unauthorized access, alteration, theft, or destruction of the Customer's data files, programs, or information, which is caused by accident or any other means, whether or not such access occurs as a result of any act or omission by QX.Net. QX.Net shall not be liable for any damages suffered by Customer for any reason, including (but not limited to), loss of data resulting from delays, nondeliveries, wrong deliveries, and any service interruptions whether caused by the acts and omissions of QX.Net and its employees or of the Customer or any other party. QX.Net shall have no liability with respect to the content of any information passing through its network.
7. Limitation of Liability.
In the event that the products or services fail to conform in any manner to this Agreement or any specifications of QX.Net, the Customer's sole remedy and QX.Net's sole obligation shall be the repair or replacement of the Equipment. IN NO EVENT WILL QX.Net BE LIABLE TO THE CUSTOMER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF QX.Net HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. QX.Net SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE; LOSS OF CUSTOMERS, CLIENTS OR MEMBERS; LOSS OF GOODWILL; OR LOSS OF PROFITS ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT. Any cause of action arising out of the provision of QX.Net products or services shall be instituted within one year after the claim has arisen or such cause of action be barred.
8. Termination of Services:QX.Net may terminate this Agreement upon default of Customer's payment or other obligations under this Agreement. Customer may terminate this Agreement if circuit is completely unavailable for a total of one hundred sixty-eight (168) hours in a row for reasons solely attributable to QX.Net, its representatives and contractors. This will be considered termination with cause. In the event of termination with cause, the applicable Early Termination Fee shall be waived. If Customer terminates this Agreement for any reason other than termination with cause, Customer shall pay an Early Termination Fee as specified on the Personal DSL Order Form. Customers who have prepaid for a period beyond their requested termination date will receive a credit equal to the value of this period. This credit will be applied toward the Early Termination Fee, and billed if applicable for any remaining balance due. Any remaining credit balance will be refunded to the Customer.
9. Nature of Information. The Customer has been advised and acknowledges that the Internet may contain information, materials, and language that may be deemed adult in nature and inappropriate or offensive. The Customer is further advised that there is no effective way to limit access to certain materials on the Internet. The Customer is responsible for all information received, transmitted, and/or stored by the Customer and the Customer releases QX.Net from and agrees to indemnify QX.Net against any and all claims, losses or expenses relating to such information, materials and language. This indemnification shall survive any termination of this Agreement.
10. Indemnification. The Customer shall indemnify and hold QX.Net harmless from and against any and all lawsuits, claims, damages, liabilities or expenses (including reasonable attorney's fees in connection with the investigation, defense, or settling of any such loss, claim, damage, action or proceeding) related to or arising out of the Customer's use of the products or services provided by QX.Net. This indemnification provision shall survive any termination of this Agreement.
11. Proprietary Rights. QX.Net grants Customer a non-exclusive, non-transferable license to use the products and services provided hereunder. Title and property rights, including all intellectual property rights to such products and services, are and shall remain with QX.Net, whether or not they are embedded in any product. Customer recognizes that the products and services used hereunder constitute valuable trade secrets of QX.Net. The Customer shall use its best efforts to protect and keep confidential any and all products and services used by it and shall not attempt to copy, examine, in any way alter, or reengineer, reverse engineer, tamper with, or otherwise misuse such products and services.
12. Transfer and Assignment.Neither party, other than for collateral purposes, may sell, assign or transfer this Agreement without the prior written consent of the other party, except that QX.Net may assign this Agreement to any of its affiliates (or any person who acquires substantially all of the assets of QX.Net). Customer may not resell IP accounts from a QX.Net-provided leased line, including but not limited to, Serial Line Internet Protocol (SLIP) or Point-to Point Protocol (PPP) dial-up accounts, Point-to-Point Leased Lines, Frame Relay circuits, World Wide Web hosting services, or any TCP/IP transmission that utilizes resources on the QX.Net network without explicit written permission of QX.Net.
13. Force Majeure.In the event QX.Net is prevented or hindered from complying with any of the requirements of this Agreement by reason of war, riots, embargoes, strikes or by operation of force majeure or any federal or state law or any order, rule or regulation of governmental authority, then, while so prevented, QX.Net's obligation to comply with such requirement shall be suspended and QX.Net shall not be liable for failure to comply therewith. Should such occurrences continue for more than thirty (30) days, either QX.Net or the Customer may terminate this Agreement without further liability to the other.
14. Entire Agreement. This Agreement sets forth the entire agreement of the parties and may not be modified except by written amendment executed by each of the parties. In the event any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect.
15. Choice of Law.This Agreement shall be construed according to, and be governed by, the laws of the State of Kentucky. USE OF QX.Net DSL SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.