BUSINESS SERVICES CUSTOMER TERMS AND CONDITIONS
The Customer named on the Sci-Tek Systems Business Service Order Agreement and Sci-Tek Systems Telecom “Sci-Tek Systems” agree that the terms and conditions on the Sci-Tek Systems Business Service Order Agreement and these terms and conditions constitute the agreement (the “Agreement”) for the provision of the Services selected by Customer and designated on a Service Order. Services may include Sci-Tek Systems Business and Hospitality commercial high-speed internet services (“Internet”) and Sci-Tek Systems Business and Hospitality commercial digital voice services, including enhanced voice, toll free and trunk services (“Voice”) (each a “Service” and collectively “Services”).
The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services. Additional terms and conditions apply to the Internet and the Voice Service and should be reviewed in either the “ADDITIONAL TERMS APPLICABLE TO INTERNET SERVICE” section, or the “ADDITIONAL TERMS APPLICABLE TO VOICE SERVICE” section, as applicable.
GENERAL TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under common control with Sci-Tek Systems.
Agreement: These terms and conditions and the Service Order Agreement executed by Customer.
Sci-Tek Systems Equipment: Any and all facilities, equipment or devices provided by Sci-Tek Systems or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by Sci-Tek Systems, shall not be considered Sci-Tek Systems Equipment.
Confidential Information: All information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential.” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.
Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
Licensed Software: Computer software or code provided by Sci-Tek Systems or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Party: A reference to Sci-Tek Systems or the Customer; and in the plural, a reference to both companies.
Service(s): The Internet, Toll Free Trunk and Voice services provided by Sci-Tek Systems to Customer described in one or more Service Order(s). All Services are for commercial use only, except as otherwise expressly permitted herein.
Service Commencement Date: The date(s) on which Sci-Tek Systems first makes Service available for use by Customer. A single Service Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.
Service Order: A request for Sci-Tek Systems to provide the Services to Service Location(s) submitted by Customer to Sci-Tek Systems (a) on a then-current Sci-Tek Systems form designated for that purpose or (b) if available, through a Sci-Tek Systems electronic order processing system designated for that purpose.
Service Order Agreement: The agreement under which all Service Orders are submitted to Sci-Tek Systems.
Service Location(s): The Customer location(s) where Sci-Tek Systems provides the Services.
Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Service Order.
Tariff: A federal or state Sci-Tek Systems tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
Termination Charges: Charges that may be imposed by Sci-Tek Systems if, prior to the end of the applicable Service Term (a) Sci-Tek Systems terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges with respect to each terminated Service Order shall equal, in addition to all amounts payable by Customer in accordance with Section 5.3, seventy-five percent (75%) of the remaining monthly fees that would have been payable by Customer under the Service Order if the Services described in the Service Order had been provided until the end of the Service Term. In the event the Agreement is terminated as herein described during the initial Service Term, Termination Charges shall also include one hundred percent (100%) of any amount paid by Sci-Tek Systems in connection with Custom Installation, as that term is defined in Section 2.7, for the Services provided by Sci-Tek Systems under the Service Order.
ARTICLE 2. DELIVERY OF SERVICES
2.1 Orders. Customer shall submit to Sci-Tek Systems a properly completed Service Order to initiate Services to a Service Location(s). A Service Order shall become binding on the parties when (i) it is specifically accepted by Sci-Tek Systems either electronically or in writing, (ii) Sci-Tek Systems begins providing the Services described in the Service Order or (iii) Sci-Tek Systems begins Custom Installation (as defined in Section 2.7) for delivery of the Services described in the Service Order, whichever is earlier. When a Service Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
2.2 Speed. Sci-Tek Systems makes no representation regarding the speed of the Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.
2.3 Access. Customer, at no cost to Sci-Tek Systems, shall secure and maintain all necessary rights of access to Service Location(s) for Sci-Tek Systems to install and provide the Services, unless Sci-Tek Systems has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Sci-Tek Systems Equipment used to provide the Services within the Service Location(s). Sci-Tek Systems and its employees and authorized contractors will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice from Sci-Tek Systems, Customer shall provide all required access to Sci-Tek Systems and its authorized personnel.
2.4 Service Commencement Date. Upon installation and connection of the necessary facilities and equipment to provide the Services, or in the case of Voice, the day Voice Service is activated, Sci-Tek Systems shall notify Customer that the Services are available for use, and the date of such notice shall be called the “Service Commencement Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Commencement Date shall not relieve Customer of its obligation to pay applicable Service charges.
2.5 Sci-Tek Systems Equipment. Sci-Tek Systems Equipment is and shall remain the property of Sci-Tek Systems regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time Sci-Tek Systems may remove or change Sci-Tek Systems Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Sci-Tek Systems Equipment or permit others to do so, and shall not use the Sci-Tek Systems Equipment for any purpose other than that authorized by the Agreement. Sci-Tek Systems shall maintain Sci-Tek Systems Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at Sci-Tek Systems’ expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Sci-Tek Systems Equipment. Customer is responsible for damage to, or loss of, Sci-Tek Systems Equipment caused by its acts or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of Sci-Tek Systems. Customer agrees not to take any action that would directly or indirectly impair Sci-Tek Systems’ title to the Sci-Tek Systems Equipment, or expose Sci-Tek Systems to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following Sci-Tek Systems’ discontinuance of the Services to the Service Location(s), Sci-Tek Systems retains the right to remove the Sci-Tek Systems Equipment including, but not limited to, that portion of the Sci-Tek Systems Equipment located within the Service Location(s). To the extent Sci-Tek Systems removes such Sci-Tek Systems Equipment, it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted.
2.6 Customer-Provided Equipment. Sci-Tek Systems shall have no obligation to install, operate, or maintain Customer-Provided Equipment. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the cable modem, route and/or coaxial input connection. All Customer-Provided Equipment and wiring that Customer uses in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by Sci-Tek Systems’ employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment.
2.7 Engineering Review. Each Service Order submitted by Customer shall be subject to an engineering review by Sci-Tek Systems. The engineering review will determine whether the cable plant must be extended, built or upgraded in order to provide the ordered Services at the requested Service Location(s), or whether Service installation has to be expedited to meet the Customer’s requested Service Commencement Date (”Custom Installation”) . Sci-Tek Systems will provide Customer written notification in the event Service installation at any Service Location will require an additional one-time installation fee (“Custom Installation Fee”). Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Service Order with respect to the affected Service Location(s).
2.8 Administrative Web Site. Sci-Tek Systems may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). Sci-Tek Systems may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify Sci-Tek Systems if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and Sci-Tek Systems shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorized by Customer. Sci-Tek Systems shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. Sci-Tek Systems may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site. These terms and policies will be posted on the site.
ARTICLE 3. CHARGES, BILLING AND PAYMENT
3.1 Charges. Customer shall pay Sci-Tek Systems one hundred percent (100%) of the Custom Installation Fee prior to the installation of Service. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable Service Order(s) or invoiced by Sci-Tek Systems. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of Sci-Tek Systems Equipment, per-call charges, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Some Services such as measured and per-call charges, (as explained below in the Voice Additional Terms) may be invoiced after the Service has been provided to Customer. Except as otherwise indicated herein or on the applicable Service Order(s), monthly recurring charges for Internet Services shall not increase during the initial Service Term.
3.2 Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by Sci-Tek Systems. These may include, without limitation, charges resulting from accessing on-line services, calls to parties who charge for their telephone based services, purchasing or subscribing to other offerings via the Internet or interactive options on Public View Video, Video, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated herein or on the Service Order(s), Sci-Tek Systems will invoice Customer in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to Sci-Tek Systems for all invoiced amounts within thirty (30) days after the date of the invoice. Any amounts not paid to Sci-Tek Systems within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, Sci-Tek Systems may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. Sci-Tek Systems shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
3.4 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by Sci-Tek Systems. No acceptance of partial payment(s) by Sci-Tek Systems shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
3.5 Payment by Credit Card. Upon Customer’s written request and Sci-Tek Systems’ acceptance of such request, Sci-Tek Systems will accept certain credit card payments for charges generated under the Agreement. By providing Sci-Tek Systems with a credit card number, Customer authorizes Sci-Tek Systems to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that Sci-Tek Systems stop charging the credit card. Customer agrees to provide Sci-Tek Systems with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If Sci-Tek Systems is unable to charge Customer's credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by Sci-Tek Systems. Sci-Tek Systems may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
3.6 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide Sci-Tek Systems with credit information requested by Sci-Tek Systems. Customer authorizes Sci-Tek Systems to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to Sci-Tek Systems will be true and correct. Sci-Tek Systems, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, Sci-Tek Systems may require Customer to make a deposit (in an amount not to exceed an estimated two-month's charge for the Services) as a condition to Sci-Tek Systems’ provision of the Services, or as a condition to Sci-Tek Systems’ continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by Sci-Tek Systems as security for payment of Customer's charges. If the provision of Service to Customer is terminated, or if Sci-Tek Systems determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer's account or will be refunded to Customer, as determined by Sci-Tek Systems.
3.7 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
3.8 Other Government-Related Costs and Fees. Sci-Tek Systems reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether Sci-Tek Systems or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer.. These obligations may include those imposed on Sci-Tek Systems or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that Sci-Tek Systems or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. For example, Voice customers are charged a monthly regulatory recovery fee to help defray Sci-Tek Systems’ contributions to municipal, state, and federal programs including, without limitation, universal service, telecom relay services for the visually/hearing impaired, and 911/E911 programs and infrastructure. This regulatory recovery fee is not a tax, and it is not government-mandated. Taxes and other government-related fees and surcharges may be changed with or without notice,
3.9 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to Sci-Tek Systems for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to Sci-Tek Systems, all disputed amounts shall become immediately due and payable to Sci-Tek Systems.
3.10 Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, Sci-Tek Systems may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Sci-Tek Systems Equipment that Customer fails to return in accordance with the Agreement. If Sci-Tek Systems is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Sci-Tek Systems Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Sci-Tek Systems under the Agreement or at law or in equity.
3.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
3.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Sci-Tek Systems may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. Sci-Tek Systems reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.
ARTICLE 4. TERM
4.1 Agreement Term. This Agreement shall terminate upon the expiration or other termination of the final existing Service Order entered into under this Agreement. The term of a Service Order shall commence on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service. Unless otherwise stated in these terms and conditions, if a Service Order does not specify a term of service, the Service Term shall be one (1) year from the Service Commencement Date.
4.2 Service Order Renewal. Upon the expiration of the Service Term, this Agreement and each applicable Service Order shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless otherwise stated in these terms and conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term, or in the case of Louisiana Customers, notice of non-renewal is delivered to Sci-Tek Systems within thirty (30) days following the expiration of the Service Term or the then current Renewal Term. Except as otherwise identified in the Agreement, at any time during initial Service Term and from time to time thereafter, Sci-Tek Systems may increase the charges for Voice Services subject to thirty (30) days prior notice to Customer. Effective at any time after the end of the initial Service Term and from time to time thereafter, Sci-Tek Systems may modify the charges for Internet Services subject to thirty (30) days prior notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing.
ARTICLE 5. TERMINATION OF AGREEMENT AND/OR A SALES ORDER
5.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Order, or this Agreement in whole or part, at any time during the Service Term upon sixty (60) days prior notice to Sci-Tek Systems, and subject to payment to Sci-Tek Systems of all outstanding amounts due for the Services, any and all applicable Termination Charges, and the return of any and all Sci-Tek Systems Equipment.
5.2 Termination for Cause.
(a) If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, Sci-Tek Systems may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services. However, Sci-Tek Systems will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the parties have reviewed the dispute and determined in good faith that the charge is correct.
(b) If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Service Order materially affected by the breach.
(c) A Service Order may be terminated by either party immediately upon notice if the other party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.
(d) Termination by either party of a Service Order does not waive any other rights or remedies that it may have under this Agreement.
5.3 Effect of Expiration or Termination of the Agreement or a Service Order. Upon the expiration or termination of a Service Order for any reason: (i) Sci-Tek Systems may disconnect the applicable Service; (ii) Sci-Tek Systems may delete all applicable data, files, electronic messages, voicemail or other information stored on Sci-Tek Systems’ servers or systems; (iii) if Customer has terminated the Service Order prior to the expiration of the Service Term for convenience, or if Sci-Tek Systems has terminated the Service Order prior to the expiration of the Service Term as a result of material breach by Customer, Sci-Tek Systems may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, permit Sci-Tek Systems access to retrieve from the applicable Service Locations any and all Sci-Tek Systems Equipment (however, if Customer fails to permit access, or if the retrieved Sci-Tek Systems Equipment has been damaged and/or destroyed other than by Sci-Tek Systems or its agents, normal wear and tear excepted, Sci-Tek Systems may invoice Customer for the full replacement cost of the relevant Sci-Tek Systems Equipment, or in the event of minor damage to the retrieved Sci-Tek Systems Equipment, the cost of repair, which amounts shall be immediately due and payable); and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to Sci-Tek Systems.
5.4 Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. Sci-Tek Systems may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects Sci-Tek Systems’ ability to provide the Services herein.
ARTICLE 6. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
6.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY Sci-Tek Systems OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF Sci-Tek Systems AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE Sci-Tek Systems EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
6.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT WITH RESPECT TO THE SERVICES, Sci-Tek Systems EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Sci-Tek Systems DOES NOT WARRANT THAT THE SERVICES, Sci-Tek Systems EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, Sci-Tek Systems EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, Sci-Tek Systems EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
6.3 Sci-Tek Systems MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, Sci-Tek Systems EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
6.4 IN NO EVENT SHALL Sci-Tek Systems, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
6.5 DISRUPTION OF SERVICE. Sci-Tek Systems shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer- Equipment; inability to obtain access to the Service Locations; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services.
6.6 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Sci-Tek Systems and its affiliates and agents is limited to the maximum extent permitted by law.
ARTICLE 7. INDEMNIFICATION
7.1 Subject to Article 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, "Claims") relating to: (i) any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, Sci-Tek Systems Equipment, and Licensed Software; and (ii) any Claim of any third party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, Sci-Tek Systems Equipment, and Licensed Software.
7.2 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 7 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Sci-Tek Systems, including, without limitation, end-user license agreements for the Licensed Software. Sci-Tek Systems and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Sci-Tek Systems; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
8.3 Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the Sci-Tek Systems Equipment or Customer-Provided Equipment. If Sci-Tek Systems has agreed to provide updates and changes, Sci-Tek Systems may perform such updates and changes remotely or on-site, at Sci-Tek Systems’ sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Sci-Tek Systems.
8.4 Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of the Services does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
8.5 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by Sci-Tek Systems, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from Sci-Tek Systems or other owner of such material, is prohibited.
ARTICLE 9. CONFIDENTIAL INFORMATION AND PRIVACY
9.1 Disclosure and Use. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
9.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
9.3 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
9.4 Monitoring. Sci-Tek Systems shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that Sci-Tek Systems and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. Sci-Tek Systems reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in Sci-Tek Systems’ sole discretion, is unacceptable, undesirable or in violation of this Agreement.
ARTICLE 9A: CUSTOMER PRIVACY POLICIES
9A.2 Privacy Note Regarding Information Provided to Third Parties: Sci-Tek Systems is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
ARTICLE 10. PROHIBITED USES
10.1 Resale. Except as otherwise provided in the General Terms and Conditions, Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
10.2 Use Policies. Customer agrees to ensure that all uses of the Sci-Tek Systems Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. Sci-Tek Systems reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Sci-Tek Systems (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with Sci-Tek Systems’ ability to provide the Services to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Furthermore, the Services shall be subject to one or more Acceptable Use Policies (“AUP”) that may limit use, or (iv) reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of Sci-Tek Systems personnel or third parties. The AUP and other policies concerning the Services are posted on Sci-Tek Systems’ web site(s) at Www.SciTekSystems.Com (or any successor URL) or on another web site about which Customer has been notified, and are incorporated to this Agreement by reference. Sci-Tek Systems may update the use policies from time to time, and such updates shall be deemed effective seven (7) days after the update is posted online, with or without actual notice to Customer. Accordingly, Customer should check the above web addresses (or the applicable successor URLs) on a regular basis to ensure that its activities conform to the most current version of the use policies. Sci-Tek Systems’ action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
10.3 Violation. Any breach of this Article 10 shall be deemed a material breach of this Agreement. In the event of such material breach, Sci-Tek Systems shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of Sci-Tek Systems, and then to notify Customer of the action that Sci-Tek Systems has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 11. SERVICE LEVEL AGREEMENTS (SLA)
Sci-Tek Systems is committed to providing the highest level of Service to its Customers. The SLA defines the minimum Service expectations a Customer may expect from Sci-Tek Systems Business Services. The remedies set forth in the SLA, which can be found on the Sci-Tek Systems website at Www.SciTekSystems.Com (or any successor URL, “Website”), shall be the Customer’s sole and exclusive remedy for any Service Interruption in the Services, outage, unavailability, delay or other degradation in the Services or any Sci-Tek Systems failure to meet the objectives of the Services.
ARTICLE 12. INSURANCE
12.1 Sci-Tek Systems shall maintain during the Initial Term or any Renewal Term commercial general liability insurance that covers its liability and obligations hereunder including property damage and personal injury.
12.2 The liability limits under these policies shall be, at a minimum, one million ($1,000,000) dollars per occurrence, with a combined single limit for bodily injury and property damage liability.