1. DEFINITIONS.
Effective Date:
As used in this Agreement, "Effective date"
means the earlier of either the date this Agreement
is accepted by selecting the “I Accept”
option presented on the screen after this Agreement
is displayed or the date you begin using the Service.
Customer Data: As
used in this Agreement, "Customer Data" means
any data information or material provided or submitted
by you to the Service in the course of using the Service.
Content: As used
in this Agreement, "Content" means the audio
and visual information, documents, software, products
and service contained or made available to you in the
course of using this Service.
Appropriate Notice: As
used in this Agreement, "Appropriate Notice"
means either written notice to VISI or by means of the
online cancellation system provided by VISI for the
Customer.
2. RESTRICTIONS AND ACCEPTABLE
USE.
Customer may use the Services only
for authorized and lawful purposes. Unless expressly
authorized by VISI in a Schedule to this Agreement,
Customer agrees that it will not use the Services (i)
for any purpose other than for Customer’s own
needs; (ii) to export, re-export, download or electronically
transmit any software, technical data, message or content
in violation of any export law, regulation or restriction
of the United States and its agencies or authorities;
(iii) to disseminate or transmit any unsolicited commercial
e-mail messages (SPAM), chain letters, bots, spiders,
crawlers, or other repetitive information collection
or distribution devices, and Customer will use reasonable
efforts commensurate with industry standards to prevent
others from doing the same; (iv) to create a false identity
or otherwise attempt to mislead any party, including
but not limited to VISI, as to the identity of the sender
or the origin of any communication, information or other
material; (v) to attempt to discover, use, copy or modify
the information or materials of others or in any way
violate their privacy or security; or (vi) to use VISI’s
networks to access or monitor other computation, information
or communication devices or resources of VISI or any
third party without that party’s express written
consent, including but not limited to, engaging in any
unauthorized security probing activities or other attempts
to evaluate VISI’s networks or host system.
Customer will ensure that any materials
and information transmitted through, stored on, derived
from or in any way related to the Services (“Customer
Materials”): (a) will not contain any illegal
or otherwise inappropriate material or content, including
but not limited to, material that is unlawful, threatening,
abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another’s privacy, tortious,
pornographic, obscene, violates or infringes the intellectual
property or privacy rights of any person; and (b) will
not involve or contain any Self-Help Code or Unauthorized
Code as defined in this Section 2. “Self-Help
Code” means any back door, time bomb, drop dead
device, or other routine, code, algorithm, routine or
code designed or used (i) to: disable, erase, alter
or harm VISI or VISI’s other customers, or any
of their respective computer systems, programs, databases,
data, hardware or communication systems, automatically
with the passage of time, or under the control of, or
through some affirmative action by, a person other than
VISI, or (ii) access any computer system, program, database,
data, hardware or communication system of VISI or VISI’s
other customers. “Unauthorized Code” means
any virus, Trojan horse, worm, or other routines, code,
algorithm or component designed or used to disable,
erase, alter, or otherwise harm any computer system,
program, database, data, hardware or communication system,
or to consume, use, allocate or disrupt any computer
resources, in a manner which is malicious or intended
to damage or inconvenience.
Customer’s right to use the
Services provided hereunder is limited to Customer and
is non-transferable. Customer agrees not to resell or
distribute the Services to any third party. Customer
agrees to assume responsibility and liability for any
damages arising out of or relating to any third party
use of the Services provided to Customer.
While VISI assumes no obligation
to monitor Customer’s behavior with respect to
the Services or Customer’s usage of the Services,
VISI maintains the right to monitor Customer’s
behavior and usage, and to immediately and without notice
suspend or terminate this Agreement, any Schedule, or
the provision of any Services hereunder, if VISI reasonably
believes that the Customer has violated any of the restrictions
set forth in this Agreement, or is otherwise the cause
of harm or interference with VISI’s rights or
property, or the rights or property of others.
3. LICENSE GRANT & RESTRICTIONS
VISI hereby grants you a non-exclusive,
non-transferable, worldwide right to use the Service,
solely for your own internal business purposes, subject
to the terms and conditions of this Agreement. All rights
not expressly granted to you are reserved by VISI and
its licensors.
You shall not (i) license, sublicense,
sell, resell, transfer, assign, distribute or otherwise
commercially exploit or make available to any third
party the Service or the Content in any way; (ii) modify
or make derivative works based upon the Service or the
Content; (iii) create Internet "links" to
the Service or "frame" or "mirror"
any Content on any other server or wireless or Internet-based
device; or (iv) reverse engineer or access the Service
in order to (a) build a competitive product or service,
(b) build a product using similar ideas, features, functions
or graphics of the Service, or (c) copy any ideas, features,
functions or graphics of the Service.
4. PRIVACY.
VISI agrees to treat your private
information in accordance with the terms of our then
current privacy policy, which is incorporated herein
for all purposes, and which is available for review
at http://home.visi.com/about/privacy.html or by sending
an e-mail request to: customercare@visi.com.. VISI reserves
the right to modify its privacy policy in its reasonable
from time to time.
5. CUSTOMER DATA
VISI does not own any data, information
or material that you submit to the Service in the course
of using the Service ("Customer Data"). You
shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness, and
intellectual property ownership or right to use of all
Customer Data, and VISI shall not be responsible or
liable for the deletion, correction, destruction, damage,
loss or failure to store any Customer Data. VISI reserves
the right to withhold, remove and/or discard Customer
Data without notice for any breach, including, without
limitation, your non-payment. Upon termination for cause,
your right to access or use Customer Data immediately
ceases, and VISI shall have no obligation to maintain
or forward any Customer Data. To enable VISI to provide
the Service, you grant VISI a worldwide and fully sublicensable
license to use, distribute, reproduce, modify, adapt,
publish, translate, publicly perform, and publicly display
your Customer Data.
6. INTELLECTUAL PROPERTY
OWNERSHIP.
VISI (and its licensors, where applicable)
shall own all right, title and interest, including all
related Intellectual Property Rights, in and to the
VISI Technology, the Content and the Service and any
suggestions, ideas, enhancement requests, feedback,
recommendations or other information provided by you
or any other party relating to the Service. This Agreement
is not a sale and does not convey to you any rights
of ownership in or related to the Service, the VISI
Technology or the Intellectual Property Rights owned
by VISI. The VISI name, the VISI logo, and the product
names associated with the Service are trademarks of
VISI or third parties, and no right or license is granted
to use them.
7. FEES, EXPENSES, AND PAYMENT.
VISI will automatically renew and
bill your credit card or issue an invoice to you on
a monthly, quarterly, semi-annually, or annual basis
in accordance of the Service ordered. Fees based on
amount of Customer usage will be billed monthly in arrears;
all other fees will be billed in advance. All invoices
are payable upon receipt. Any invoiced amounts not received
by VISI within thirty (30) days of the applicable invoice
date shall incur late charges at the rate the lesser
of one and one-half percent (1.5%) per month or the
maximum rate allowed by law. Customer agrees to pay
all fees and any applicable late charges. All payment
obligations are noncancelable and all amounts paid are
nonrefundable. If Customer believes that a billing discrepancy
has occurred, Customer must notify VISI in writing within
sixty (60) days of the date of the relevant invoice
or all amounts set forth on an invoice will be deemed
accepted by Customer, and Customer agrees to claims
regarding disputed charges will be waived by customers
after the sixty (60) day period. Any adjustments of
fees and expenses will be made to subsequent invoices
or a final adjusting invoice. Customer agrees to pay
all attorney and collection fees arising out of any
efforts undertaken by VISI to collect any unpaid balance
of Customer’s account.
VISI reserves the right to change
its fees and charges for use of portions of the Services,
to institute new or additional fees, and to change its
policies and procedures with respect to pricing and
billing at any time, provided, however, that VISI gives
Customer thirty (30) days prior written notice of any
such change.
8. TAXES.
Customer agrees to pay or reimburse
VISI for all sales, use, excise and other taxes and
governmental charges that VISI is at any time required
to pay or collect in connection with the sale, licensing
or furnishing of the Services under this Agreement.
9. RIGHT TO MAKE SERVICE
CHANGES.
VISI retains the right to change
in its discretion and without liability to Customer,
the methods, processes and/or the suppliers by which
VISI provides Services to Customer, as well as the right
to change, add to or delete Service or Service offerings
provided that VISI gives appropriate notice of any such
change.
10. CUSTOMER’S REPRESENTATIONS
AND WARRANTIES.
Customer represents and warrants
that: (a) the Customer Materials and the display or
transmission of the same, does not and will not violate
or infringe upon the copyright, patent, trademark, trade
secret or other proprietary or intellectual property
rights of any third party; (b) Customer has all rights
necessary to maintain, use, modify, display and transmit
the Customer Materials; (c) Customer Materials and any
action by Customer related to the Service(s) or this
Agreement do not as of the Effective Date, and will
not during the term of this Agreement, operate in any
manner that would violate, any applicable code, law,
rule, regulation, ordinance or order; and (d) Customer
has the full authority to enter into and to fully perform
all of its duties and obligations under this Agreement.
11. INDEMNIFICATION.
Customer agrees to defend, indemnify,
and hold harmless VISI, its affiliates, agents, officers
and employees against all claims, costs and expenses
(including attorneys’ fees), and liabilities arising
out of or relating to: (a) an actual or alleged violation
of any of the restrictions contained in Section 2 of
this Agreement by Customer or any of its officers, employees,
agents or invitees, or ; (b) an actual or alleged breach
of any warranties contained in Section 12 of this Agreement
by Customer or any of its officers, employees, agents
or invitees, or; (c) an actual or alleged failure to
perform any other duties or obligations under the Agreement
by Customer or any of its officers, employees, agents
or invitees, or (d) an actual or alleged tortious act
or omission by Customer or any of its officers, employees,
agents or invitees, or (e) an actual or alleged claim
of libel, slander, defamation, infringement of intellectual
property or other claim arising from or relating to
Customer Materials transmitted through any Services
provided by VISI.
12. WARRANTY.
VISI represents and warrants that
it will provide the Services in accordance with generally
accepted industry standards, and in compliance with
all applicable federal laws, rules, regulations and
orders. This warranty is limited to thirty (30) days
from the initial performance of the specific Service
or delivery of the specific product, whichever is applicable.
13. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY PROVIDED
IN SECTION 12 OF THIS AGREEMENT, ALL SERVICES ARE FURNISHED
BY VISI AND ACCEPTED BY CUSTOMER “AS IS,”
“WITH ALL FAULTS,” AND WITHOUT ANY WARRANTY
WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY,
OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY
EXCLUDED AND DISCLAIMED BY VISI. VISI DOES NOT WARRANT
THAT ANY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS
OR THAT IT WILL BE UNINTERRUPTED OR ERROR FREE. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE
SERVICES, THE ACCURACY OR QUALITY OF THE INFORMATION
TRANSMITTED OR RECEIVED VIA THE SERVICES, IS WITH CUSTOMER.
14. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES (INCLUDING
NEGLIGENCE AND FUNDAMENTAL BREACH) WILL VISI BE LIABLE
TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS,
LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL
OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY SERVICE FURNISHED UNDER THIS AGREEMENT
OR THE USE OR INABILITY TO USE THE SAME, EVEN IF VISI
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE. VISI’S AGGREGATE LIABILITY FOR ANY CLAIMS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
SERVICE FURNISHED UNDER THIS AGREEMENT WILL IN ANY EVENT
BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY CUSTOMER
TO VISI UNDER THIS AGREEMENT FOR THE ONE (1) MONTH IMMEDIATELY
PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM.
VISI’S SERVICES MAY
BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRNOIC COMMUNICATIONS.
VISI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES,
OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15. BASIS OF THE BARGAIN.
Customer acknowledges that VISI has
set its prices and entered into this Agreement in reliance
upon the Warranty Disclaimer and Limitation of Liability
set forth in Sections 13 and 14 of this Agreement, and
that the same form an essential basis of the bargain
between the parties.
16. TERM AND TERMINATION.
The term of this Agreement shall
commence upon the Effective Date and the Services shall
commence and continue as specified in each applicable
Schedule (the “Initial Term”). Unless otherwise
specified in a Schedule, the Initial Term of a Schedule
for Services will automatically renew for successive
one (1) month periods (the “Renewal Term”),
unless terminated in accordance with this Section 15.
This Agreement and/or its Schedule(s)
may be terminated by VISI, immediately and without notice,
if: (i) Customer violates Section 2 (“Restrictions
and Acceptable Use”) of this Agreement; (ii) Customer
violates Section 10 (“Customer’s Warranties”)
of this Agreement; or (iii) Customer violates any applicable
law, rule, regulation, or ordinance while using the
Services.
This Agreement and/or its Schedule(s)
may be terminated by either party, if: (i) the other
party is in material breach which has not been cured
within thirty (30) days of receipt of written notice
of such material breach; or (ii) with or without cause
upon thirty (30) days prior Appropriate Notice of its
intention to terminate this Agreement or any Schedule,
provided that if Customer elects to terminate this Agreement
or any Schedule prior to the expiration of the initial
term or any renewal term, Customer shall first pay VISI
a Termination Fee of one-hundred percent (100%) of the
total fees due and payable for the Services under a
terminated Schedule for the period between the requested
date of termination and the end of the then current
Initial or Renewal Term. Customer acknowledges and agrees
that the Termination Fee is not a penalty and is intended
to compensate VISI for its damages resulting from Customer’s
early termination, which would be difficult to accurately
ascertain.
Prior to termination of this Agreement
or any Schedule, Customer shall pay all unpaid fees
due and payable for the Service through the date of
termination and other amounts due and payable, including
any applicable Termination Fee. In the event Customer
has prepaid funds that exceed the amount owed by Customer
to VISI at the time of termination, VISI shall refund
such remaining funds within forty-five (45) days of
the termination date. Upon termination of this Agreement,
paragraphs 3, 4, 7, 9, 10, 11, 13, 14, 15, 18, 19, 20,
21, 22, 23, 24 and 26 of this Agreement shall survive.
If the Services are suspended or
interrupted for any reason except a force majeure event
in accordance with Section 19 or a breach of this Agreement
by VISI, and this Agreement is not terminated, Customer
shall not be relieved of its obligation to pay all fees
and charges in accordance with this Agreement
17. DESIGNATED AGENT FOR DMCA.
Pursuant to Section 512(c)(2) of
the Copyright Revision Act, as enacted through the Digital
Millennium Copyright Act, VISI designates an agent as
described below, to receive notifications of claimed
infringement:
Legal Name:
Vector Internet Services, Inc.
12 South Sixth Street
Suite 630
Minneapolis, MN 55402
Doing Business As:
VISI
Visi
Wavefront Communications
Designated Agent:
Jeff Kozel
12 S. 6th St., Suite 630
Minneapolis, MN 55402
Voice: 612-395-9000
Fax: 612-288-0889
Email: abuse@visi.com
18. NOTICES.
VISI may give notice by means of
a general notice on the Service, electronic mail to
your e-mail address on record in VISI’s account
information, or by written communication sent by first
class mail or pre-paid post to your address on record
in VISI’s account information. Such notice shall
be deemed to have been given upon the expiration of
48 hours after mailing or posting (if sent by first
class mail or pre-paid post) or 12 hours after sending
(if sent by email). You may give notice to VISI (such
notice shall be deemed given when received by VISI)
in writing to the applicable address set forth below
by (a) registered or certified mail, return receipt
requested; (b) overnight delivery with a nationally
recognized courier; or (c) hand delivery. You may use
the following address for notifications: Vector Internet
Services (d/b/a VISI), Attn: Chief Financial Officer,
12 South Sixth Street, Suite 630, Minneapolis, MN 55402.
19. FORCE MAJEURE.
VISI shall not be liable for any
delay or failure in performing any obligation under
this Agreement where cause for such failure or delay
is beyond VISI’s reasonable control.
20. NON-WAIVER.
VISI’s failure at any time
to enforce any of the provisions of this Agreement or
any right or remedy available hereunder or at law or
in equity, or to exercise any option herein provided,
shall not constitute a waiver of such provision, right,
remedy or option or in any way affect the validity of
this Agreement. VISI’s waiver of any default shall
not be deemed a continuing waiver, but shall apply solely
to the instance to which such waiver is directed.
21. SEVERABILITY.
Every provision of this Agreement
shall be construed, to the extent possible, so as to
be valid and enforceable. If any provision of this Agreement
so construed is held by a court of competent jurisdiction
to be invalid, illegal or otherwise unenforceable, such
provision shall be deemed severed from this Agreement,
and all other provisions shall remain in full force
and effect.
22. CHOICE OF LAW AND VENUE.
This Agreement shall in all respects
be governed by and interpreted, construed and enforced
in accordance with the laws of the State of Minnesota,
without regard to conflict of law principles. Customer
expressly agrees that the exclusive jurisdiction for
any claim or action arising out of or relating to this
Agreement shall be in the state or federal courts located
within the State of Minnesota, and Customer further
agrees and irrevocably submits to the exercise of personal
jurisdiction of such courts for the purpose of litigating
any such claim or action. Customer agrees that it must
commence any claim or action arising out of or relating
to this Agreement within one (1) year after the claim
or cause of action arose.
23. MODIFICATION TO TERMS.
VISI reserves the right to modify
the terms and conditions of this Agreement or its policies
relating to the Service at any time, effective upon
posting of an updated version of this Agreement on the
Service. You are responsible for regularly reviewing
this Agreement. Continued use of the Service after any
such changes shall constitute your consent to such changes.
24. ASSIGNMENT.
Neither party may assign, delegate
or otherwise transfer this Agreement or any of its rights
or obligations hereunder without the prior written consent
of the other, except that VISI may assign, delegate
and/or otherwise transfer this Agreement or its rights
and obligations hereunder to a parent, subsidiary or
other company under common control with VISI, or to
any person or entity which purchases or otherwise succeeds
to substantially all of VISI’s assets.
25. BINDING EFFECT.
This Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors and permitted assigns. Any attempted assignment
not in compliance with this paragraph shall be null
and void. No third party beneficiaries are intended
or shall be construed as created by virtue of this Agreement.
26. RELATIONSHIP OF THE PARTIES.
VISI is an independent contractor.
Nothing in this Agreement shall be construed as creating
any joint venture, partnership, employment or agency
relationship between the parties for any purpose whatsoever
or as constituting either party as the legal representative,
guarantor, surety, employee or agent of the other. Neither
party shall have the right or authority to assume, create
or incur any liability or obligation of any kind, express
or implied, against or in the name of or on behalf of
the other.
27. HEADINGS.
The headings herein are for convenience
only and are not intended to have any substantive significance
in interpreting this Agreement.
28. SCHEDULES AND EXHIBITS.
The attached Schedule(s) and Attachment(s),
and any exhibits thereto, and any future Schedule(s),
Attachment(s) exhibits, or addenda are incorporated
into this Agreement by reference. To the extent any
term on a Schedule or Attachment contradicts the terms
of this Agreement, the parties agree that the terms
of the Schedule(s) or Attachment(s) shall control.
29. ENTIRE AGREEMENT.
This Agreement sets forth the entire
agreement and understanding between VISI and Customer
regarding the subject matter hereof and supersedes any
prior representations, advertisements, statements, proposals,
negotiations, discussions, understandings, or agreements
regarding the same subject matter. Customer acknowledges
that it has not been induced to enter into this Agreement
by any representations or statements, oral or written,
not expressly contained in this Agreement.
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