||Internet Subscriber Agreement
[IMPORTANT. Read this document carefully before engaging on any online
activity via kpunet.net]
The following Internet Subscriber Agreement contains information pertaining
to DSL and Dial-up Services
1. BINDING AGREEMENT - ACCEPTANCE:
By accessing the Internet through kpunet.net the Subscriber, User and/or
any person using the Subscriber’s login identification is deemed to
have accepted the terms and conditions contained in this kpunet.net
Internet Subscriber Agreement (“Agreement”) and shall be bound thereby.
Ketchikan Public Utilities (“KPU”) may modify the terms and conditions
of this Agreement from time to time in its sole discretion. Any modification
is effective immediately upon either a posting on the kpunet.net web
pages, by e-mail, or by standard postal mail. Any use of kpunet.net
services following such notice of modification of this Agreement shall
be conclusively deemed an acceptance of such modification.
3. DEFINITIONS AND SUBSCRIBER REPRESENTATIONS:
(a) “Subscriber,” means an individual, a corporation, or a legal entity
who incurs usage charges for the Service for its own use or who incurs
such charges on behalf of another, i.e., a User. All Subscribers represent
and warrant that they are at least 18 years of age, and have the legal
capacity to enter into contracts and have agreed to the terms and conditions
of this Agreement. Subscriber agrees that Subscriber is responsible
for installing, establishing and setting up, and for verifying and maintaining,
the account, options, settings and other parameters under which the
Service is used, including, but not limited to all related passwords
and user identification information. These account activities may be
performed by a person at least 18 years of age. (b) “User,” means a
Subscriber who uses Service or an individual, a corporation, or a legal
entity whose Service usage charges are incurred by another, i.e., a
4. SUBSCRIBER RESPONSIBILITY:
Subscriber shall be responsible for all access to and use of the Service
through Subscriber’s account or password(s) and for any fees incurred
for service, or for software or other merchandise purchased thereon,
or any other expenses incurred in accordance with the terms of this
Agreement. Subscriber promises to pay such amounts billed by KPU for
such service, software, or merchandise and any related fees, taxes and
charges. Subscriber acknowledges that Subscriber is aware that areas
accessible on or through the Service may contain material that is unsuitable
for minors (persons under 18 years of age). Subscriber agrees to supervise
usage of the Service by minors who use the Service through Subscriber’s
account. Subscriber hereby ratifies and confirms any obligations a minor
using Subscriber’s account enters into or assumes and any promises or
permissions such minor makes or gives. Subscriber is responsible for
maintaining the confidentiality of its passwords and login information.
Subscriber must report to KPU immediately if Subscriber believes such
information has been compromised in any way. In the event of a breach
of security Subscriber shall remain liable for any costs or damages
associated therewith which are incurred or occur prior to KPU receiving
written notice of the breach of security.
KPU will provide Subscriber and its Users analog or digital access to
the Internet, depending upon the rate plan selected (the “Service”),
subject to conditions generally beyond the control of KPU, including
the type and condition of the equipment (personal computer, modem, etc.)
of Subscriber and/or its Users. Service may be temporarily unavailable
or limited because of capacity limitations and may be temporarily interrupted
or curtailed due to equipment modifications, upgrades, relocations,
repairs, and similar activities necessary for the proper operation of
6. USAGE OF DIAL-UP ACCOUNTS:
Subscriber and its Users agree to use dial-up accounts solely on an
active “dial-up” basis, and not a standby or inactive basis in order
to maintain a connection. Subscriber and its Users acknowledge and agree
(a) A dial-up account may be used for World Wide Web browsing, reading
or posting to newsgroups, sending, receiving and reading electronic
mail and transferring files via the file transfer protocol.
(b) A dial-up account shall not be used to host a dedicated server site
on the Internet.
(c) A dial-up account shall not be accessed simultaneously by multiple
users using the same username ID.
(d) Automated processes may not be used such as checking e-mail or pinging
the host to maintain a constant connection.
(e) KPU has the right to disconnect any dial-up account after 20 minutes
of inactivity. Electronic or mechanical means to avoid an inactivity
disconnect are strictly prohibited. KPU has the right to electronically
audit connections to enforce these requirements.
(f) KPU will automatically disconnect any dial-up connection maintained
for more then 6 consecutive hours.
(g) User ID Names will be issued to Subscriber by KPU based upon availability.
If the User ID name is surrendered by Subscriber for any reason, KPU
shall not be obliged to reserve that name.
(h) KPU shall not be obligated to retain electronic mail for longer
than one month.
(i) Accessing the KPU network or any other KPU facilities or systems,
accessing any non-KPU net work connected to KPU, or accessing any other
entity’s computer network or systems without the explicit permission
by the parties is illegal and specifically prohibited.
(j) Any attempt to circumvent or bypass the security of KPU’s service/system
shall be considered attempted theft or trespass and a breach of this
(k) Any interference with KPU’s systems performance or capability, or
any damage or attempt to damage systems, software, or the intellectual
property of others will be viewed as criminal activity and a breach
of this Agreement.
(l) Web hosting provided as part of KPU basic account services shall
be for personal web space only, unless otherwise allowed in writing
(m) Web hosting space will not be used to provide any advertising in
any manner for or on behalf of any entity whatsoever other than Subscriber,
unless arrangements and permissions have been previously granted in
writing by KPU.
7. USAGE OF DSL ACCOUNTS:
(a) 3 Month Minimum Term of Service KPU requires a 3 month minimum term
of service for all DSL accounts. DSL service will continue on a month-to-month
basis thereafter at current tariff rates until terminated. After the
Initial Term, either party may terminate this service upon 30 days written
notice. The initial term begins the day your DSL line is successfully
provisioned by KPU Telephone at the central office, as recorded in its
(a.1) Installation: During the installation process the kpunet or kpunet
contract installer may need access to your premises, phone closet or
inside your location. If the KPU installer or kpunet contract installer
has to return to your premises, you may be required to pay additional
fees for a truck roll, missed appointment or refused access to equipment
(b) Description of Service: The Service is made up of two elements:
Asynchronous Digital Subscriber Line service (ADSL) to your premises
provided by KPU Telephone, and Internet Access through kpunet. ADSL
is referred to as DSL in this agreement.
(b.1) DSL Service: DSL Service is a digital data telecommunications
service that consists of one permanent circuit between your premises
and the serving wire center. ADSL Service provides upstream and downstream
maximum throughput rates up to the connection speed associated to the
requested level of service. The maximum throughput rate depends upon
many factors including but not limited to the distance from your premises
to the servicing wire center, the quality of the copper telephone line
serving your premises and the level of service you chose. DSL Service
provides high-speed access to our Internet Access Service. KPU’s full
ADSL tariff is available upon request or can be viewed atftp://www.city.ketchikan.ak.us/pub/municode/Code11-12.pdf.
These terms of service are subject to change without notice at any time.
(b.2) Internet Access Service: Internet Access Service through kpunet
will provide you with access to the Internet and Internet e-mail services.
The terms and conditions of our Internet Access Service are contained
within this Internet Subscriber Agreement. These terms are subject to
change without notice at any time.
(c) Rates and Payment Terms:
(c.1) The rates for DSL service ("Rates") are set forth in
the KPU Telecommunications Tariff. The Rates will be in effect for the
Initial Term, and may be changed by kpunet after the end of the Initial
Term by giving you written or e-mailed notice of the new Rates at least
thirty (30) days before their effective date. In addition to the Rates,
you will pay all federal, state, county, and local taxes, surcharges,
fees, and universal service contribution on the Service. Charges for
the Services will begin when the Services are installed. Payments for
Services will be made through monthly charges on your phone bill.
(d) Limited Warranty - DSL Service: KPU warrants that, subject to the
limitations set forth below, the DSL service will operate in substantial
accordance with the terms of this Agreement. The limitations include:
(d.1) You understand and acknowledge that the actual transmission speeds
may vary from the transmission speeds that you might otherwise expect,
due to many factors including but not limited to the length and gauge
of the telecommunications line serving your premises, and other operation
characteristics of the facilities and equipment used in the DSL Service.
kpunet does not warrant or represent that you will receive any given
transmission speed. It is possible that there may be a lack of facilities
or other operational impediments which may preclude or delay the actual
installation, repair and maintenance of DSL Services to your premises.
We reserve the right to immediately, without notice, terminate any request
for service at any time without liability if we determine that we are
not able to provide, repair or maintain satisfactory DSL Services to
your premises. Certain technologies and protocols used by kpunet Internet
may utilize bandwidth, known as overhead, to deliver services to individual
users. Overhead bandwidth utilization, as such, may be included in the
total advertised account speeds. Point-to-Point Protocol or DHCP Protocol
over Ethernet are two such technologies.
(d.2) We will make reasonable efforts to provide at least 3 business-day
advance notice on our Web site (http://www.kpunet.net ) before outages
for scheduled maintenance. Outages due to scheduled network maintenance
will not be grounds for any credits or claims for damages against us.
We reserve the right to terminate service at any time upon thirty (30)
days' notice to you for any reason.
(d.3) The limited warranty shall not apply if: 1) Your equipment has
been subjected to unusual physical or electrical stress, misuse, neglect,
accident or abuse, or damaged by any other external causes; 2) The DSL
Service or related equipment has been installed, repaired or altered
by any one other than our DSL service installer/supplier or its subcontractors
or affiliates, without prior written approval; or 3) the DSL Service
or related equipment is used in violation of applicable law or in violation
of instructions furnished by our DSL service provider, if any.
(d.4) KPUBizDSL and KPUHomeDSL are available on a limited basis in Ketchikan.
Availability is based on distance from your local wire center and line
qualification tests. All KPUBizDSL and KPUHomeDSL accounts are subject
to KPU Terms and Conditions and the Internet Subscriber Agreement as
found on www.kpunet.net . KPU terms and conditions and acceptable Use
Policies and Internet Subscriber Agreement are subject to change without
notice at any time.
(d.5) Due to the many makes and models of subscriber owned computers,
varying operating systems, interaction of existing and installed application
programs, incompatible video graphics or sound cards, possible exposure
to computer viruses, and other possible software or hardware defects
or incompatibility, kpunet can not guarantee a successful ADSL installation.
Installation charges are still applicable if an installation is unsuccessful
due to end user equipment or software issues.
(d.6) The Demarcation Point (D-Mark) for the physical and electrical
boundary between equipment or facilities provided by KPU Regulated
Telephone Division and equipment provided by the customer or kpunet
remains at the Network Interface Device (NID) which is usually present
at the subscriber’s residence or place of business. If a NID is not
present, the D-Mark will be at the terminal block where the KPU Telephone
wire drop is connected to the inside wire.
(d.7) Any and all ADSL modem, NIC, or ADSL line filter equipment sold
or provided by kpunet as an installation package does not affect the
KPU Telephone Division’s Point of Demarcation which remains at the
(d.8) Credit for outages will not be given unless outage is greater
then 48 hours in accordance with the City of Ketchikan Municipal Code.
(d.9) The foregoing limited warranties shall be in lieu of and shall
exclude all other express or implied warranties, including without
limitation, warranties of merchantability, and fitness for a particular
use or purpose.
(e) Inside Wire and Premises Equipment Warranty by Independent Providers:
Since all inside wiring services and customer premises equipment for
DSL Services are the responsibility of the customer or their independent
contractors, kpunet does not warrant the premises' wiring, subscriber
provided customer premises equipment, or the installation of services
(f) Limitation of Liability:
(f.1) ANY LIABILITY OF kpunet ARISING UNDER THIS AGREEMENT SHALL BE
LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES AND NEITHER PARTY
SHALL HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT OR SPECULATIVE
DAMAGES OR INJURIES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL,
INCIDENTAL AND SPECIAL DAMAGES, LOSS OF USE, BUSINESS INTERRUPTIONS,
LOSS OF PROFITS, AND EMOTIONAL, MENTAL, OR PHYSICAL INJURY) IRRESPECTIVE
OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILTY OF ANY SUCH
DAMAGES OR INJURIES.
(f.2) NOTWITHSTANDING THE FOREGOING, kpunet's TOTAL LIABILITY TO ANYONE
UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION (WHETHER IN
CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR
OTHERWISE) SHALL NOT EXCEED THE AMOUNT THAT YOU WOULD HAVE PAID kpunet
UNDER THIS AGREEMENT DURING THE PERIOD OF TIME THAT SUCH LIABILITY
WAS INCURRED, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS.
(f.3) YOU ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES
WERE AN ESSENTIAL ELEMENT IN SETTING THE PRICES FOR SERVICE UNDER
(g) Force Majeure: We will not be responsible for any failure to perform
any obligation or provide any Services hereunder because of any Act
of God or nature, strikes, work stoppage, equipment or facilities
shortages, governmental acts, directives or abuse, war, riot or civil
commotion, or any other force beyond our immediate and reasonable
(h) Entire Agreement; Amendments in Writing; Severability: This Agreement,
which includes all Attachments and Schedules referenced herein, if
any, constitutes the entire Agreement between us concerning the subject
matter hereof and supersedes an prior agreements, representations,
statements, negotiations, understandings, proposals or undertakings,
oral or written, with respect to the subject matter expressly set
forth herein. Any changes to this Agreement, or any amendment or supplement
to the Agreement must be in writing and signed by kpunet to be enforceable.
If any provision of this Agreement shall be held to be illegal, invalid
or unenforceable, each party agrees that such provision shall be enforced
to the maximum extent permissible so as to effect the original intent
of the parties, and the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected
or impaired thereby.
(i) Default, Remedies and Early Termination Charges: In addition to
specific provisions contained in this document, this agreement incorporates
specific payment, deposit, and termination provisions of the Ketchikan
Municipal Code. Payment for any service that has not been made within
twenty-five days after the date of the billing is delinquent and subject
to late payment charges. The late payment charge shall be up to five
percent of the amount of the delinquency. You will be considered in
Default of the Agreement if: 1) any breach of this Agreement that
is not remedied within ten (10) days after notice of such breach,
or for any breach of the Site Use Terms for our Internet Access Service.
If you are in Default of this Agreement, we may terminate all Services
under this Agreement without further notice to you. If this Agreement
is terminated before the end of the Initial Term, you will also be
responsible for all charges for the Services that would have been
billed for the remainder of the Initial Term. kpunet reserves the
right to terminate an account at any time for violation of this agreement.
(j) Subscriber Provided Equipment: If subscriber prefers to supply
the necessary equipment required to connect the DSL line, kpunet must
approve said equipment prior to installation of service. It is recommended
that subscriber check with kpunet prior to purchasing any equipment
due to the fact that many brands of DSL modems may not operate on
KPU’s network. Irrespective of any kpunet recommendation, subscriber
will be fully responsible for subscriber provided equipment.
(k) Limitations: kpunet will not be held responsible for any problems
that occur on subscriber’s side of D-Mark after the configuration
of DSL service. kpunet recommends that the Subscribers purchase a
commercial copy of the browser software or download a free copy of
Microsoft’s Internet Explorer or Netscape Navigator. kpunet cannot
supply technical support for products that the manufacturer of the
product has discontinued support. Windows software, such as Windows98,
Windows2000, Windows ME, WindowsXP or future editions of MS Windows
already have the browser software installed, new software is not necessary.
Macintosh computers using MAC OS/8.5 or higher already has the software
installed, new software is not necessary. Third party e-mail programs
(Eudora, Pegasus, Lynx, etc.) or browsers other then Microsoft’s Internet
Explorer or Netscape Navigator are not supported by kpunet. Unix and
Linux configurations are not supported by kpunet.
(l) kpunet Provided Equipment: kpunet retains ownership of all routing
or modem equipment supplied to DSL accounts. KPU DSL network subscribers
agree to return all kpunet provided routing equipment upon termination
of this agreement. KPU DSL Subscriber will be billed for unreturned
equipment at current equipment rates at the time of service termination.
(m) Installation: kpunet offers installation services for Microsoft
computer operating systems only. kpunet may offer installation services
for Macintosh computer operating systems depending upon the availability
of trained installers and year and model of subscriber’s computer
system. If subscriber elects to pay kpunet for installation, kpunet
will install the DSL modem with DHCP dynamic IP addressing software,
and browser/email software for you. Windows software, such as Windows98,
Windows2000, Windows ME or future editions of MS Windows already have
the browser software and email programs installed, new software is
not necessary. Macintosh computers using MAC OS/8.5 or higher also
have the software installed and new software is not necessary. The
subscriber is responsible for installation of the Network Interface
Card (NIC Card). For subscriber convenience, kpunet may offer to sell
subscriber a separate NIC card with installation at an additional
charge. KPU’s DSL Installation charge provides for a maximum of sixty
(60) minutes of a technician’s time installing your modem and configuring
your computer’s operating system. KPU Installation only includes the
configuration of one computer to connect to the kPU DSL Network. The
networking of multiple computers is the responsibility of the DSL
(n). No Resale of DSL Service: You understand and acknowledge that
kpunet DSL service is for personal or business use only within your
residence or business that is not engaged in selling Internet services.
You agree not to resell kpunet DSL service, in any form, to any other
(o) kpunet: kpunet is a division of the City of Ketchikan d/b/a Ketchikan
Public Utilities. The City of Ketchikan, d/b/a Ketchikan Public Utilities,
shall have no liabilities or obligations related to or arising under
this agreement other then those of kpunet.
Service access will be provided via a telephone number where available.
KPU is not responsible for any toll or other charges in the event
service access is not provided via a local telephone number. It is
the Subscriber’s sole responsibility to make sure the network dial-up
access number is a local no toll call.
Subject to the terms of this Agreement, KPU grants Subscriber a personal
non-exclusive, non-assignable and non-transferable license to use
KPU services on any computer where Subscriber is the primary user
of the computer. Subscriber may use each license on another computer
so long as only one computer is in use at any one time. Any attempt
to transfer, assign or sublicense any of the rights, duties or obligations
under this license is void. If Subscriber has more than one computer
and needs simultaneous access, additional licenses or a network license
must be obtained from KPU. The Federal Copyright Act protects all
commercial software. Third party software available through KPU may
be governed by separate end user licenses.
9. CONTENT EDITING AND REMOVAL:
KPU reserves the rights, at its sole discretion, to edit, review,
or refuse to post or store any information or material in KPU’s information
storage and retrieval mechanisms. KPU reserves the absolute right
to remove any contents that it deems in its sole discretion to be
unacceptable or undesirable. This includes the rights to edit or refuse
to host web pages or web sites that KPU finds and determines, at KPU’s
sole discretion, to be undesirable or objectionable.
10. TECHNICAL SUPPORT:
Limited no-fee technical support is offered to KPU Subscribers whose
accounts are in good standing. Such support is limited to issues of
achieving access to the KPU network over the common telecommunications
facilities, i.e., dial-up modem and other similar connections, and
the correct working of electronic mail, Word Wide Web access, and
newsgroups. Failure of such services due to actions caused by the
Subscriber or its Users requiring technical support may be subject
to additional charges. Technical support for other computer related
applications or services are NOT included as no-fee support. KPU EXPLICITLY
DOES NOT GUARANTEE OR WARRANT THE RESULTS OF ANY TECHNICAL SUPPORT
PROVIDED BY KPU, ITS AGENTS OR ASSIGNS. KPU has no authority over
or ability to influence the services provided by any telecommunications
carrier or provider involved in delivery of KPU services to Subscriber
or its Users.
11. TERMINATION BY SUBSCRIBER:
In the event that KPU modifies this Agreement, the Service or related
pricing or billing terms, Subscriber may immediately terminate Subscriber’s
account and this Agreement, and Subscriber may also do so at any other
time and for any reason or for no reason upon thirty (30) days written
notice. Subscriber shall terminate this Agreement in accordance with
the terms and conditions specified herein; failure to do so may delay
or prevent KPU from knowing that a termination was intended. In such
event Subscriber will continue to be liable under this Agreement for
all fees and charges until such time as the Agreement has been properly
terminated or KPU has acknowledged such termination in writing.
12. TERMINATION OR SUSPENSION BY KPU:
KPU may immediately terminate the Subscriber’s account and this Agreement
in the event of any breach of this Agreement by Subscriber or a User
of Subscriber’s account. KPU reserves the right in its sole discretion
to terminate the Subscriber’s account and this Agreement at any time
or to suspend (with or without notice) or terminate access to or use
of the Service, in whole or in part, with respect to any Subscriber
(and/or with respect to any User of Subscriber’s account) at any time.
In the event that KPU either terminates or suspends Subscriber’s account
and or this Agreement for reasons other than breach of this Agreement,
then KPU shall provide 30 days notice of such suspension or termination
to the Subscriber.
13. ANCILLARY EQUIPMENT, SERVICES:
It is Subscriber’s sole responsibility, at Subscriber’s own expense,
to obtain, maintain, and operate suitable and fully compatible terminal
equipment, and communication devices required to access the Service.
SUBSCRIBER ACKNOWLEDGES THAT CERTAIN SUBSCRIBER EQUIPMENT HAS BEEN
ACQUIRED BY SUBSCRIBER SEPARATE AND APART FROM THIS AGREEMENT. SUBSCRIBER
IS SOLELY RESPONSIBLE FOR MAINTAINING SUCH SUBSCRIBER EQUIPMENT. KPU
MAKES NO REPRESENTATION OR WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING SUCH SUBSCRIBER EQUIPMENT.
14. PROHIBITED CONDUCT: PORT SCANNING
Subscriber agrees not to upload, post or otherwise publish on or over
the Service, and not to seek on or over the Service, any software,
file, information, communication or other content:
(a) which violates or infringes upon the rights of anyone else;
(b) which adversely affects the performance or availability of the
Service or KPU’s resources;
(c) which contains any virus, worm, cancelbot, harmful component or
corrupted data. Subscriber may not, without the approval of KPU, send
unsolicited advertising or promotional material. Subscriber agrees
not to intercept e-mail or engage in “spamming” or any similar conduct.
15. ILLEGAL PURPOSES AND COMPLIANCE WITH LAW:
Subscriber shall not to use the Service to conduct any business or
activity, or solicit the performance of any activity, which is prohibited
by or would violate any applicable law, rule, regulation or legal
obligation. Subscriber agrees to comply with all applicable laws,
rules and regulations in connection with the Service, its use of the
Service and this Agreement.
16. INTERNET CONTENT:
SUBSCRIBER ACKNOWLEDGES THAT INTERNET SITES NOT CREATED BY KPU, AND
USE OF THE INTERNET, MIGHT CONSIST OF, INCLUDE AND/OR PROVIDE ACCESS
TO IMAGES, SOUND, MESSAGES, TEXT, SERVICES OR OTHER CONTENT AND MATERIAL
THAT MAY BE UNSUITABLE FOR MINORS AND THAT MAY BE OBJECTIONABLE TO
MANY ADULTS. SUBSCRIBER ACKNOWLEDGES THAT KPU IS NOT RESPONSIBLE FOR
ANY SUCH CONTENT OR MATERIAL AND AGREES THAT ACCESS TO SAME THROUGH
USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. The reliability,
availability, legality, performance and other aspects of resources
accessed through the Internet are beyond KPU’s reasonable control
and are not in any way warranted or supported by KPU. Subscriber acknowledges
that safeguards relative to copyright, ownership, appropriateness,
reliability, legality and integrity of content may be entirely lacking
with respect to the Internet and content accessible through it. Subscriber
confirms that Subscriber assumes all risk and liability of any use
of the Internet through Subscriber’s account, including Subscriber’s
continuous compliance with this Agreement.
17. DISCLAIMER OF WARRANTIES AND LIABILITY:
USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. NEITHER KPU NOR ANY
OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS,
EMPLOYEES OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED
OR ERROR FREE; NOR DOES KPU OR ANY OF ITS INFORMATION OR CONTENT PROVIDERS,
SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY
AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE
IS DISTRIBUTED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY KPU, ITS DEALERS, DISTRIBUTORS, AGENTS,
EMPLOYEES OR ANY THIRD-PARTY CONTENT PROVIDER, SHALL CREATE ANY WARRANTY
IN OR TO THE KPU SERVICE OR THE CONTENT, AND YOU MAY NOT RELY ON ANY
SUCH INFORMATION OR ADVICE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL
RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
18. LIMITATION OF LIABILITY:
NEITHER KPU NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE
PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
ARISING OUT OF USE OF THE SERVICE OR IN ABILITY TO USE THE SERVICE
OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY. UNDER NO CIRCUMSTANCES,
INCLUDING NEGLIGENCE, SHALL KPU OR ANYONE ELSE INVOLVED IN CREATING,
PRODUCING OR DISTRIBUTING THE KPU SERVICES OR RELATED SOFTWARE BE
LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT OR INCIDENTAL DAMAGES
THAT RESULT FROM THE USE OF OR INABILITY TO USE THE KPU SERVICES OR
SOFTWARE. THIS INCLUDES, BUT IS NOT LIMITED TO:
(a) reliance on any information obtained on KPU’s services or that
result from defects in such information;
(b) delays in operation or transmission, or interruptions, resulting
in inability of Subscriber to access or interact with any other service
provider through the Internet, other networks or Users that comprise
the Internet or the informational or computing resources available
through the Internet;
(c) deletion of files or e-mail; mistakes; omissions; or damage due
(d) Service impairments caused by acts within the control of User,
its employees, agents, subcontractors, suppliers or licensees;
(e) interoperability of specific Subscriber applications;
(f) interaction with other service providers, networks, Users or informational
or computing resources through the Internet;
(g) services provided by other service providers;
(h) performance impairments caused elsewhere on the Internet;
(i) or any failure of performance, whether or not limited to acts
of God, communications failure, destruction or theft or unauthorized
access to KPU’s programs, records or services. SUBSCRIBER ACKNOWLEDGES
AND ACCEPTS THAT THIS PARAGRAPH APPLIES TO ALL CONTENT, PRODUCTS AND
SERVICES AVAILABLE THROUGH AND SUPPLIED BY KPU. THE FOREGOING EXCLUSIONS
OR LIMITATIONS OF LIABILITY APPLY REGARDLESS OF ANY ALLEGATION OR
FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS
OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE) AND EVEN IF KPU OR OTHERS WERE ADVISED OR AWARE OF THE
POSSIBILITY OR \LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
Subscriber agrees to indemnify KPU against all claims, liability,
damages, costs and expenses, including but not limited to reasonable
attorneys fees, arising out of or related to any and all use of Subscriber’s
account. This includes, without limitation, responsibility for all
such consequences of Subscribers (or that of any user of Subscriber’s
account) violation of this Agreement or placement on or over, or retrieval
from or through, the Service of any software, file, information, communication
or other content.
20. DEFAULT AND WAIVER:
(a) In the event that Subscriber shall default in the payment when
due of any sum due hereunder, or in the event of any default or breach
of the terms and/or conditions of this Agreement, or if any proceeding
in bankruptcy, receivership or insolvency or petition for receivership
shall be instituted by or against Subscriber, KPU, at it’s option,
(i) Proceed by appropriate court action or actions to enforce performance
by Subscriber of the applicable covenants and terms of this Agreement
or to recover damages for the breach thereof; and/or (ii) Terminate
this Agreement, whereupon all rights and interests of Subscriber shall
terminate and Subscriber shall remain liable for all Services provided.
(b) Subscriber shall pay to KPU on demand any and all past due amounts
which KPU may sustain by reason of such default or breach by Subscriber,
together with all charges as provided by this
Agreement, reasonable attorney’s fees incurred by KPU in connection
with such breach or default by Subscriber and all other costs and
expenses incurred by KPU in collecting such amounts. All amounts shall
be payable by Subscriber without set off or deduction of any kind.
(c) The remedies provided in favor of KPU in the event of default
shall not be deemed to be exclusive but shall be in addition to all
other remedies in its favor existing at law.
(d) No failure on the part of KPU to exercise any right or remedy
arising directly or indirectly under this Agreement shall operate
as a waiver of any right or remedy it may have nor shall an exercise
of any right or remedy by KPU preclude any other right or remedy KPU
21. BILLING AND PAYMENT INFORMATION:
(a) Subscriber shall pay to KPU the charges associated with the rate
plan or level of service selected by Subscriber for any registration
or monthly fees, connect time charges, minimum charges, and other
amounts charged to or incurred by Subscriber or its Users at the rates
in effect for the billing period in which such amounts are charged
or incurred. Subscriber shall also pay all applicable taxes related
to use of the Service by Subscriber or its Users.
(b) KPU will provide Subscriber a statement for each billing cycle.
Payment of the outstanding balance is due in full each month. Interest
will be charged on the delinquent balance at the rate of 5% per annum.
(c) Additional terms relating to pricing, billing and payment as the
same may be modified from time to time are available on the KPUNET.net
website and are incorporated as part of this Agreement.
22. INFORMATION DELETION:
Once Subscriber’s account has been terminated for any reason KPU shall
have the right to immediately delete all data, files, or other information
stored in Subscriber’s account or on any of KPU’s facilities or services,
(a) Subscriber acknowledges that this Agreement contains the entire
agreement between the parties relating to the services and/or equipment
described in this Agreement and that KPU and its employees have not
made orally or in writing any representations, warranties or agreements
inconsistent with the terms of this Agreement. No modification, change
or alteration of any of the terms of this Agreement shall be valid
unless contained in a writing and signed by KPU and Subscriber except
as otherwise proved herein. This Agreement supersedes all prior agreements
and understandings, both oral and written, with respect to the subject
(b) Subscriber agrees to notify KPU within thirty (30) days of any
change of Subscriber’s address.
(c) This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Alaska. Jurisdiction and
venue for any action relating to this Agreement or the Service shall
be in the appropriate court located at Ketchikan, Alaska.
(d) If any part of this Agreement is contrary to or prohibited by
or deemed invalid under applicable laws and regulations of any applicable
jurisdiction, the remaining provisions and parts thereof shall remain
and be construed in full force and in effect to the extent permitted