(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 NID.

(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 from them.

(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 THIS AGREEMENT.

(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 control.

(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 Service Subscriber.

(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 party.

(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.

7. ACCESS:
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.

8. LICENSE:
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 to viruses;

(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.

19. INDEMNITY:
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, may:

(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 may have.

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, without notice.

23. MISCELLANEOUS:
(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 matter hereof.

(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 by law.

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