GENERAL TERMS AND CONDITIONS
“Company” shall mean Northwest Nexus, Inc. dba NuOz, NuOz Corporation.
“Subscriber” shall mean end user of service(s).
“Parties” shall mean Company and Subscriber(s). “Party” shall mean Company and/or Subscriber respectively.
1.1. Company’ Service (s) are defined as software, hardware, Internet services and/or labor.
1.2. Company shall have the right to change the connection and location of Company equipment and/or service(s), provided that such change does not degrade the quality or level of service(s) provided to the subscriber.
1.3. Company will use reasonable diligence to preserve the continuity of the service(s), but in the event of service(s) failure, in whole or in part, Company shall not be subject to any liability or penalty for any such failure, regardless of the cause thereof, nor shall there be any reduction in the rate (s) because of such failure.
1.4. Company shall not be obligated to modify, improve, make any additions to, or modernize any of its hardware, service(s), or connections as the technical art progresses.
1.5. For the purpose of making necessary repairs on the lines or other parts of its equipment and service(s), as well as making changes provided for in this agreement, Company may suspend service(s) for such periods, and in such manner as may in its judgment be necessary, without the requirement of notice to subscriber. Company will attempt to provide the subscriber reasonable notice of interruption of service(s) caused by server repairs, changes and updates.
2.1. Company assumes no responsibility for the operation, service, or repair of any software or equipment located on subscriber’s premises unless provided and installed by Company. The ownership of any software or equipment provided and installed by Company on subscriber’s premises shall be and remain in Company ownership, unless purchased by subscriber.
2.2. Subscriber agrees to assist Company in protecting and maintaining Company’s interest in the software and equipment provided and/or installed by Company at subscriber’s premises.
2.3. Subscriber shall be solely responsible for any loss or degradation in service(s) due to software or equipment that is provided and installed by Company and under the care, custody and control of the subscriber.
3.1. Access to Company service(s) can only be accomplished through the use of passwords issued to the subscriber by Company. No one other than the subscriber is allowed to use the password and subscriber will be responsible for any improper or misuse of the passwords.
3.2. Company service(s) shall not be used for any purpose, or in any place, or in any part of the place for installation other than that stipulated in this agreement.
3.3. Use of any information obtained via Company service(s) are at subscriber’s own risk. Company specifically denies any responsibility for the accuracy or quality of information obtained through its service(s).
3.4. Company may disconnect subscriber’s service(s) without notice for misuse, fraud, or tampering with the connections or other equipment provided and/or installed by Company. Any costs incurred as the result of violation of this subsection, such as inspections, changes, replacements, or repairs, shall be paid by subscriber.
3.5. Subscriber shall notify Company promptly of any problem in its service(s) and, if necessary, provide Company reasonable assistance in correcting any such problem.
4.1. Company will use its best efforts to provide the subscriber service(s) described in this agreement. Company does not warrant that the hardware and/or service(s) provided under this agreement will meet service(s) requirements or that their operation will be uninterrupted or error-free. The warranty does not cover any hardware and/or service(s) or equipment which has been subjected to damage, used contrary to the instructions of Company, or to hardware and/or service(s) that have been altered, changed or modified in any way, by anyone without the express written consent of Company.
4.2. COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. COMPANY ALSO MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF SERVICE (S). THE SERVICE (S) WILL BE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS, AND LIABILITIES ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR (C) IMPLIED WARRANTY OF NONINFRINGEMENT.
4.3. COMPANY TAKES NO RESPONSIBILITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES SUFFERED BY SUBSCRIBER INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA FROM DELAYS, NONDELIVERIES, MISDELIVERIES, OR SERVICE (S) INTERRUPTIONS CAUSED BY COMPANY OR SERVICE (S) ERRORS AND/OR OMISSIONS.
5.1. IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), REPRESENTATION, STRICT LIABILITY, OR PRODUCT LIABILITY OF CUSTOMER, FOR COVER OR FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS, DATA, USE OF EQUIPMENT, OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF EITHER PARTY OR ITS EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S OBLIGATION FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE MONTHLY AVERAGE OF THE FEES ACTUALLY PAID BY SUBSCRIBER TO COMPANY, UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT COMPANY MAY HAVE WITH SUBSCRIBER, IN THE THREE (3) MONTHS BEFORE SUCH CLAIM IS ASSERTED.
5.2. SUBSCRIBER WAIVES AND RELEASES COMPANY FROM ANY AND ALL CLAIMS IN TORT AND/OR STRICT LIABILITY RELATING TO THIS AGREEMENT, INCLUDING CLAIMS FOR LOSS OF OR DAMAGE RESULTING FROM LACK OF SERVICE (S) OR FROM ANY EQUIPMENT WITH WHICH THE SERVICE (S) IS USED AND ANY AND ALL CLAIMS FOR CONTRIBUTION OR INDEMNIFICATION. THIS WAIVER AND RELEASE DOES NOT AFFECT OR IMPAIR, AND SUBSCRIBER EXPRESSLY RETAINS, WHATEVER RIGHTS IN TORT AND STRICT LIABILITY COMPANY MAY HAVE AGAINST THE SUBSCRIBER.
5.3. Subscriber specifically agrees that Company shall not be responsible for unauthorized access to or alteration of your transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through or using the SERVICE (s). Subscriber specifically agrees that Company is not responsible or liable for any act or omission of any third party including but not limited to any threatening, defamatory, obscene, offensive, or illegal content or conduct of any other party or any infringement of another’s rights, including intellectual property rights. Subscriber specifically agrees that Company is not responsible for any content sent using and/or included in the SERVICE (s) by Subscriber or any third party.
6.1. This agreement commences upon utilization of service(s) or upon execution of written agreement by both parties.
6.2. This agreement will last for the term month to month unless otherwise stated in writing from the date of execution as otherwise noted. Pricing during any extension of the initial Term will be subject to Company’ then current rates.
6.3. The agreement shall continue to renew unless such renewal is terminated by written notice from the subscriber thirty (30) days prior to the renewal date. Subscriber shall be responsible for payment for the term of the agreement in advance of the service(s) received. Notwithstanding the foregoing, any billing statement received by subscriber from Company is immediately due and payable.
6.4. Should the subscriber choose to discontinue service prior to the completion the term of the agreement, discontinuance charges will apply. Discontinuance charges will be equal to the remaining unused months of the agreement term times the monthly subscription fees stated above. For example, if subscriber cancels at 10 months into a 12-month agreement and the monthly subscription fee(s) were $100.00, the discontinuance fee would be $200.00.
7.1. Monthly recurring payments are due on the start date of each subsequent month.
7.2. Payment of the first month and last month fees are required on the initial invoice or as otherwise agreed to in writing by both parties.
7.3. Subscriber agrees to pay all taxes, including federal excise taxes, inspection fees, and license fees that may be levied or assessed by any governmental entity on account of the service(s) rendered to subscriber.
7.4. In the event any monthly payment due has not been made within ten (10) calendar days of its due date, a late charge may apply and must accompany the delinquent payment.
7.5. If any payment is not made within thirty (30) calendar days of its due date, then Company, at its sole discretion and without limiting other remedies, may elect to suspend its performance and service(s) under this agreement and assess late fees.
7.6. If payment is not received on the date due, Company may immediately terminate service(s) to the subscriber with or without written notice. If the service(s) is disconnected, service(s) will be reconnected to the subscriber only: (1) at the discretion of Company, and (2) on payment in full of the outstanding balance plus the expenses of disconnecting and reconnecting the service(s) and any assessed late fees.
7.7. If upon the review of the creditworthiness of a subscriber, Company deems that the credit of subscriber is impaired to such an extent that timely payment is doubtful, Company may disconnect service(s) without written notice to subscriber if the bill is not paid within such shorter period as may be specified in the notice.
7.8. In the event of suspension of the service(s), Subscriber will pay any and all fees to re-establish the service(s).
8.1. Company may, in its sole judgment, terminate this agreement by written notice to subscriber whenever subscriber violates a provision herein. If Company terminates this agreement under the provisions of this section, subscriber shall not be entitled to a refund of any kind, and Company shall incur no liability by reason of such termination.
8.2. In the event of termination under this Section, all contributions, maintenance rates, and other money paid to Company by subscriber shall be forfeited. Subscriber shall not be entitled to a refund of any kind.
8.3. Upon termination or expiration of the term, Company will be entitled to enter subscriber’s premises to remove hardware and software specifically belonging to Company or which hasn’t been paid for in total by subscriber to Company.
8.4. Company may immediately terminate the agreement upon the occurrence of any of the following events:
8.4.1. Nonpayment of any amounts due under this agreement.
8.4.2. Breach of any other agreement between subscriber and Company that is not corrected within thirty (30) business days receiving written notice.
8.4.3. Any assignment by the other party to the benefit of creditors or bankruptcy filing by or against the other party, and;
8.4.4. The cessation of the other party as a going concern or failure to conduct its operations in the ordinary course of business.
9.1. Subscriber shall have no authority to settle any claim on behalf of Company.
9.2. Subscriber agrees to indemnify and hold Company harmless from and against any loss, liability, claim, or damage (including reasonable attorneys fees) sustained by Company as a result of any claim or allegation that the data stored, transmitted or received by subscriber infringes any patent, copyright, trade secret, or other intellectual property rights of any third party, or is alleged to be obscene or similarly offensive. If such use is alleged, subscriber shall immediately notify Company and cease all infringing or obscene use.
9.3. Subscriber will defend, indemnify, and hold harmless Company from any and all claims, damages, costs, and expenses (including attorneys’ fees) relating to this Agreement or arising from (a) subscriber’s use of the service(s); (b) the content, storage, or use of information by subscriber, and; (c) any loss of data.
9.4. In the event that Subscriber has property of any type or kind in Company’s facilities, Subscriber will insure its hardware, software, and peripheral equipment or other equipment of any type against any and all perils or loss. Subscriber acknowledges that Company does not insure any of Subscriber’s property.
10.1. This agreement shall in all respects be interpreted and governed by the internal laws of the State of Washington. The place of making and the place of performance for all purposes shall be Seattle, Washington regardless of the actual place of execution or performance. In the event of any litigation between the parties, the sole and exclusive jurisdiction for such action shall be Superior Court of King County, Washington or the United States District Court for the Western District Court of Washington. Customer irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of such Terms or Agreement.
10.2. Subscriber hereby waives any right to trial by jury of any claim arising out of this agreement and any related document, whether now or hereafter arising and whether sounding in contract, tort, or otherwise, and hereby consents and agrees that any such claim may, at Company’s election, be decided by trial without a jury and that Company may file an original counterpart or copy of this agreement with any court as written evidence of the waiver and agreement contained herein.
10.3. Subscriber will not assign all or any part of this agreement or any of its rights under this agreement to the service(s)s without the prior written consent of Company, provided that subscriber may assign all of its right, title, and interest in and to this agreement, upon sixty (60) days’ prior written notice to Company, to a successor to subscriber by way of merger, consolidation, or other corporate reorganization, or a sale of substantially all of subscriber’s assets, where such successor agrees in writing to be bound by all the provisions of this agreement. No assignment, with or without Company’s consent, will relieve subscriber from its obligations under this agreement. Subject to the foregoing restriction on assignment, this agreement will be fully binding on, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
10.4. The prevailing party in any legal proceeding between the Subscriber and Company shall be entitled to recover from the other party it’s reasonable attorney’s fees and expenses incurred.
11.1. Force Majeure: Company shall not be responsible for the consequences of acts or causes beyond the control of Company. Such acts or causes include but are not restricted to: (1) acts of God or of the public enemy, (2) acts of the government of the United States, or any state or political subdivision thereof, (3) fires, floods, explosions, earthquakes, wind storms, hurricanes, lightning, or other catastrophes, (4) civil riots, (5) strikes, (6) acts of terrorism, (7) work stoppages, (8) unusually severe weather, (9) inability of Company to obtain equipment or material, (10) intervening acts of third persons.
11.2. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this agreement (other than the payment of amounts owed) if such delay or failure arises by any reason beyond its reasonable control. Without limiting the generality of the foregoing, Company is not and cannot be held responsible by Subscriber for the operations of Company’s leased premises, Internet carriers, any and all utility providers or the functionality of the Internet as a whole. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this agreement.
11.3. A failure or delay by Company to resort to any right or remedy available to it shall not be deemed a waiver of any right or remedy as to the matter or any subsequent matter.
11.4. Company and subscriber jointly acknowledge that, during the course of dealing with one another, one or both parties may have access to and will become aware of Confidential Information. The parties will not:
11.4.1. Use the Confidential Information of the other party and will take all reasonable steps necessary to maintain and protect such Confidential Information;
11.4.2. Disclose Confidential Information, without first obtaining the other party’s prior written consent, to anyone other than an agent, employee, or independent contractor having need for such disclosure in order to allow such agent, employee, or independent contractor to accomplish the purpose of this agreement; and
11.4.3. Use Confidential Information for any purpose other than to effectuate the purposes of this Agreement.
11.5. Unless expressly authorized in writing by the other party, during the Term and a period of one (1) year thereafter, each party will not knowingly employ or retain the service(s) of, nor solicit for employment or to provide service(s), any person who is or was employed by the other party during the term of this agreement.
11.6. No waiver by either Party of any provision of this agreement, in any one or more instances, will be deemed to be or construed as a waiver of the same or any other provision on any future occasion. The failure of either party to insist on or enforce strict performance of any of the provisions of this agreement or to exercise any rights or remedies under this agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely on any such provisions, rights, or remedies in that or any other instance; rather, the same will be and remain in full force and effect.
11.7. The invalidity or unenforceability of any provision of this agreement will not affect the other provisions hereof. If any provision of this agreement is found to be invalid or unenforceable, then the remainder will have full force and effect, and the invalid provision will be modified or partially enforced to the maximum extent permitted by law to effectuate the purpose of this agreement.
11.8 This agreement constitutes the entire understanding and contract between the parties unless expressly agreed to in writing by the two parties.