APPLICATION OF ADDITIONAL TERMS AND CONDITIONS
The services (“Services”) referenced in the Agreement will be offered to the Customer
by the Company, or a subsidiary, affiliate, director, member, or employee of
NOCTURNAL TECHNOLOGIES. The Agreement (as defined below) between
Customer and Company sets forth the legal rights and obligations governing the
Company’s provisioning, and delivery of Services by NOCTURNAL TECHNOLOGIES
to the Customer and Customer’s use of the Services. Customer shall contract for the
Services on each NOCTURNAL TECHNOLOGIES Service Order Agreement, as
Company may update such form from time to time (“SOA” or “Order”) with applicable
operating entities providing such Services. The Agreement consists of the terms and
conditions in the Agreement, each SOA, the Product Terms and Conditions (as defined
herein) and these general Service terms and conditions (the Product Terms and
Conditions and the General Terms and Conditions are collectively herein after referred
to as the “Additional Terms”), both set forth here (collectively, and as applicable, the
“Terms and Conditions”), and applicable tariffs (collectively, the “Agreement”). The
supplemental product terms and conditions applicable to certain NOCTURNAL
TECHNOLOGIES products and incorporated herein by reference (the “Product Terms
and Conditions”). Only those Product Terms and Conditions for specific Services, as
listed therein, ordered or used by Customer are applicable to this Agreement. In the
event of any inconsistency between the terms contained herein and the Product Terms
and Conditions, and only to the extent of the inconsistency, the Product Terms and
Conditions shall control. In the event of any inconsistency between the Agreement or the
Additional Terms, exhibits, or Orders made a part or in accordance with the Agreement
precedence shall be given to:

(1) Product Terms and Conditions
(2) General Terms and Conditions set forth herein
(3) The terms of the Agreement; and
(4) Any SOA or Order executed pursuant to this Agreement.

THESE GENERAL TERMS AND CONDITIONS, THE PRODUCT TERMS AND
CONDITIONS, THE ACCEPTABLE USE POLICY (“AUP”), AND THE PRIVACY
POLICY, MAY BE MODIFIED FROM TIME TO TIME AT COMPANY’S
DISCRETION OR AS REQUIRED BY APPLICABLE LAW. CHANGES TO
AGREEMENTS SHALL TAKE FORCE IMMEDIATELY UNLESS OTHERWISE
SPECIFIED IN WRITING. CUSTOMER AGREES TO REVIEW SUCH CHANGED
ITEMS FROM TIME TO TIME AND BE BOUND BY SUCH CHANGES, AS THEY
PERTAIN TO THE PARTICULAR SERVICES CUSTOMER HAS CHOSEN OR
MAY CHOOSE IN THE FUTURE. IF COMPANY DETERMINES THAT CHANGES
TO THESE GENERAL TERMS AND CONDITIONS, THE PRODUCT TERMS AND
CONDITIONS, THE AUP, AND/OR THE PRIVACY POLICY WILL MATERIALLY
AND DETRIMENTALLY AFFECT CUSTOMER’S SERVICE OR RIGHTS
THERETO AND ARE NOT MANDATED BY LAW OR REGULATIONS,
COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO
PROVIDE NOTICE OF SUCH CHANGES AND AN OPPORTUNITY TO OBJECT
IN WRITING IN THE MANNER PRESCRIBED IN SUCH NOTICE. IN ANY CASE,
THE CHANGES SHALL NOT DIMINISH ANY APPLICABLE SERVICE LEVEL
AGREEMENTS ENTERED INTO AT THE SERVICE COMMENCEMENT DATE.
CUSTOMER HEREBY CONSENTS TO THE INCORPORATION OF THE
PRODUCT TERMS AND CONDITIONS, THE PRIVACY POLICY, AND THE AUP.
CUSTOMER AGREES THAT ACCEPTANCE OF THE AGREEMENT
CONSTITUTES CONSENT TO THE USE OF ELECTRONIC RECORDS.
CUSTOMER MAY REQUEST HARD COPIES OF PART OR ALL OF THE TERMS
AT ANY TIME BY CONTACTING NOCTURNAL TECHNOLOGIES. THE
OFFERING AND PROVISION OF SERVICES IS SUBJECT TO ANY NOCTURNAL
TECHNOLOGIES REQUIRED APPROVALS AND REQUIREMENTS. IF
CUSTOMER USES THE SERVICES, CUSTOMER IS DEEMED TO HAVE
ACCEPTED THE TERMS AND CONDITIONS, THE AUP, THE PRIVACY POLICY,
AND THE APPLICABLE TARIFFS.
Terms with initial caps not otherwise defined herein shall have the meanings ascribed in
the Agreement.
1. DEFINITIONS
1.1. Agreement: The SOA (as defined herein), collectively with its incorporated Terms and
Conditions, including but not limited to those set forth herein, including the Product
Terms and Conditions (as defined herein), is the Agreement between the Customer and
the Company. The SOA may also be called a Work Order.

1.2. Authorization Code(s): A code in numbers and/or letters employed by a Customer to
gain access to a Company Service.
1.3. Communications Facilities: Communications facilities that the Company is required to
construct and/or to acquire in order to provide Service(s) to the Customer.
1.4. Company: The applicable NOCTURNAL TECHNOLOGIES entity that is/are providing
Services under the Agreement.
1.5. Customer: The person, firm, corporation or other entity, which order or uses Service and
is responsible for the payment of charges for such Service and compliance with the
Company’s regulations.
1.6. Domain Name: In computer networks using the Transfer Control Protocol/Internet
Protocol, the domain name is an address on the Internet that is comprised of a
hierarchical sequence of names (labels) separated by periods (dots), e.g.
cyclonenetworks.net.
1.7. End of Service Date: The End of Service Date is the last day of the minimum written
notice of termination period.
1.8. FCC: The Federal Communications Commission.
1.9. Individual Case Basis (ICB): A service arrangement in which the regulations, rates and
charges, product, or terms and conditions are non-standard and are developed based on
the specific circumstances of the Customer’s situation.
1.10. Initial Term: The initial service term as set forth on the SOA. If no Initial Term is set
forth on the SOA, the term of the Agreement is three (3) years.
1.11. Invoice Date: The invoice date is the date the invoice was created by the Company and
turned over to the proper authorities for delivery to the Customer.
1.12. Malware: is any software developed for the purpose of doing harm to a computer or a set
of hardware and software which processes data in a meaningful way. Examples of
malware are but are not limited to ad ware, viruses, and worms.
1.13. M/M: Month to month.
1.14. MOU: Minutes of use.
1.15. Network Number: The part of an Internet address that designates the network to which
the addressed node belongs.
1.16. Non-Recurring Charges: The one-time charges for Services or facilities, including but
not limited to, charges for construction, installation or special fees for which the
Customer becomes liable at the time the Service Order is executed.
1.17. Product Terms and Conditions: The supplemental product terms and conditions for
certain Company Services may be found by contacting NOCTURNAL
TECHNOLOGIES.
1.18. Recurring Charges: The monthly charges to the Customer for services, facilities and
equipment which continue until the End of Service Date.
1.19. Service Commencement Date: The date on which the Company notifies the Customer
that the Services are installed or connected and are available for use. The parties may
mutually agree on a substitute Service Commencement Date. The duration of Services is
calculated from the Service Commencement Date to the End of Service Date.
1.20. Service Order Agreement or “SOA”: The written agreement for communications
Services, including the Terms and Conditions, executed by the Customer and the
Company in the format specified by the Company. This may also be called a “Work
Order”.
1.21. Services: The services provided to the Customer by the Company either pursuant to an
SOA or through the Customer’s use of the Company’s services.
1.22. Station: Denotes the network control signaling unit and any other equipment provided at
the Customer’s premises which enables a customer to establish communications
connections and to effect communications through such connections.
1.23. Third Party Product: A third party product is a product that was neither created by the
Customer or the Company.
1.24. United States: The 48 contiguous states and the District of Columbia, Hawaii, Alaska,
Puerto Rico, the US Virgin Islands, as well as the off-shore areas outside the boundaries
of the coastal states of the 48 contiguous states to the extent that such areas appertain to
and are subject to the jurisdiction and control of the United States, including but not
limited to, Puerto Rico, U.S. Virgin Islands, and American Samoa.
1.25. User or End User: Any person or entity that obtains or uses the Company’s Services,
regardless of whether such person or entity is so authorized by the Customer.
2. LIMITATIONS ON SERVICE
2.1. Service Offered Subject to Availability: Service is offered subject to the availability on a
continuing basis of all necessary facilities, including facilities the Company may obtain
from other entities to furnish Service. The Company reserves the right to limit or to
allocate the use of existing facilities, Services or systems, or of additional facilities,
Services or systems offered by the Company, when necessary because of lack of
facilities, or due to some other cause beyond the Company’s control.
2.2. Right to Make Service Changes: The Company reserves the right to change, increase or
decrease from time to time, in its discretion and without liability to Customer, the
methods, processes and/or the suppliers by which Company provides Services to
Customer, as well as the right to change, add to or delete Service(s) or Service offerings
with appropriate notice to Customer.
2.3. Right To Change Additional Terms: Additional Terms may be modified from time to
time at the Company’s discretion or as required by applicable law. Customer agrees to
review such changed items from time to time and be bound by such changes, as they
pertain to the particular Services Customer chooses now or may choose in the future. If
the Company determines changes to the Additional Terms will materially and
detrimentally affect Customer’s Service or rights thereto, the Company will use
commercially reasonable efforts to provide notice of such changes and an opportunity to
object in writing in the manner prescribed in such notice. In any case, the changes shall
not diminish any applicable service level agreements entered into at the Service
Commencement Date.
2.4. Company’s Right to Block or Discontinue Service
2.4.1. Network Blockage or Degradation: The Company reserves the right to immediately
discontinue furnishing Services when the manner in which the Customer uses or misuses
the Services results, or may result, in network blockage or other service degradation
which adversely affects service to members of the public, the Customer, or other
customers of the Company.
2.4.2. Customer Violation of the Agreement or the Law: The Company reserves the right to
immediately discontinue furnishing Services, when the Customer is using the Services or
threatens to use the Services in violation of the provisions of the Agreement, including
any applicable tariffs or in violation of the law.
2.4.3. Unlawful or Unauthorized Use: Services may be discontinued by the Company, at any
time and without notice to its Customers, by blocking traffic to or from certain countries,
cities, exchanges, or individual stations, by blocking origination for Company Services,
or by blocking using certain customer authorization codes and/or access codes when the
Company deems it necessary to take such action to prevent unlawful and/or
unauthorized use of its Services. The Company also reserves the right to suspend, at any
time and without notice to Customer, the origination of domestic and/or international
traffic associated with any or all Services if the Company deems that such action is
necessary to prevent any unlawful and/or unauthorized use of the Services as a result of
the failure (whether in full or in part) of any systems, software and/or equipment,
including, but not limited to fraud detection systems, that are utilized by Company to
provide and/or support any Service.
2.4.4. Customer Responsible for Charges: The Customer will be responsible for all charges
incurred, including charges associated with the Customer’s use of Services that may be
owed to other carriers, including but not limited to any access charges the Company may
incur as a result of Customer actions.
3. WARRANTIES AND STANDARDS FOR SERVICES
3.1. Company represents and warrants to Customer that it has the right to provide Customer
the Service specified herein, and that it is an entity, duly organized, validly existing and
in good standing under the laws of its origin, with all requisite power to enter into and
perform its obligations under this Agreement in accordance with its terms.
Each party represents and warrants that each is an entity, duly organized, validly existing
and in good standing under the laws of its origin, with all requisite power to enter into
and perform its obligations under this Agreement in accordance with its terms.
COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESSED, IMPLIED OR STATUTORY, REGARDING THE FITNESS OF
SERVICES RENDERED BY EMPLOYEES, MEMBERS OR AGENTS, SYSTEM
EQUIPMENT,d COMPANY-OWNED OR PROVIDED EQUIPMENT USED BY THE
CUSTOMER, INCLUDING ANY EQUIPMENT WITH RESPECT TO WHICH TITLE
MAY TRANSFER TO CUSTOMER (EXCEPT TO THE EXTENT SET FORTH IN A
SEPARATE NOCTURNAL TECHNOLOGIES SALE TRANSFER DOCUMENT).
THIS INCLUDES, BUT IS NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY
RIGHTS. ADDITIONAL WARRANTY LIMITATIONS RELATED TO SPECIFIC
PRODUCTS MAY BE FOUND BY CONTACTING NOCTURNAL
TECHNOLOGIES.
3.2. Limitation of Liability
3.2.1. LIMITATION ON COMPANY’S LIABILITY FOR DIRECT DAMAGES: COMPANY
SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM:
(A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR
MISUSE OF AN ACCOUNT, CUSTOMER OR COMPANY EQUIPMENT, OR
SERVICE RENDERED TO THE CUSTOMER; (B) ANY ACT OR OMISSION OF
CUSTOMER OR ITS END USERS, OR ANY OTHER ENTITY FURNISHING
EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER; OR (C) PERSONAL
OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR
RECORDED DATA RESULTING FROM THE SERVICE OF THE EQUIPMENT,
EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITIES
SET FORTH IN THIS AGREEMENT ARE FAIR AND REASONABLE IN THE
CIRCUMSTANCES OF THIS AGREEMENT.
3.2.2. LIMITATION ON COMPANY’S OR CUSTOMER’S LIABILITY FOR INDIRECT OR
CONSEQUENTIAL DAMAGES: IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR
OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA,
GOODWILL OR PROFITS, SAVINGS OR REVENUE, HARM TO BUSINESS,
WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR ANY CAUSE WHATSOEVER. FOR PURPOSES OF THIS
AGREEMENT, A PARTY’S OUT-OF-POCKET COSTS FOR DAMAGES OF THE
KINDS SPECIFIED IN THE FIRST SENTENCE OF THIS SECTION 3.2.2 WHICH
ARE RECOVERED FROM SUCH PARTY BY A THIRD PARTY SHALL BE
DEEMED TO BE INDIRECT DAMAGES TO SUCH PARTY, EXCEPT TO THE
EXTENT SUCH DAMAGES ARE PART OF CLAIMS FOR WHICH
INDEMNIFICATION IS DUE UNDER SECTION 4 HEREIN.
3.2.3. Limitation of Company’s Liability for Service Interruptions: With respect to claims or
suits by Customers or any others for damages relating to or arising out of acts or
omissions under the Agreement, Company’s liability for service interruptions, if any,
shall be limited to credit allowances as expressly provided in the Agreement and
applicable tariffs or as otherwise set forth in the Additional Terms.
3.2.4. Limitation of Company’s Liability for Installation Delay: The Company shall not be
liable for any damages whatsoever resulting from delays in meeting Service delivery
dates requested or specified by Customer, or inability to provide Service. Customer may
not cancel the Agreement if there is a delay in installation related to the Services unless
such delay is solely due to Company and such delay is longer than one hundred eighty
(180) days beyond the parties agreed Service Commencement Date; provided however,
in no event may Customer cancel if Company has incurred any cost, whether monetary
or otherwise, associated with a Service Order.
3.2.5. Limitation of Company’s Liability for Force Majeure Events: In no event shall Customer
have any claim or right against Company for any failure of performance due to causes
beyond its control, including but not limited to: acts of God, fire, explosion, vandalism,
cable cut, storm, flood or other similar occurrences; any law, order regulation, direction,
action or request of the United States Government, or of any other government,
including state and local governments having or claiming jurisdiction over Company or
of any department, agency, commission, bureau, corporation, or other instrumentality of
any federal, state, or local government, or of any civil or military authority; national
emergencies; unavailability of materials or rights-of-way; insurrections; riots, wars; or
strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages,
breaches or delays.
3.2.6. Limitation of Company’s Liability for the Facilities of Others: The Company assumes no
responsibility for the availability or performance of any systems or related facilities
under the control of other entities, or for other facilities provided by other entities used
for Service to the Customer, even if the Company has acted as the Customer’s agent in
arranging for such facilities or Services. Such facilities are provided subject to such
degree of protection or non-preemptability as may be provided by the other entities. In
addition to other limitations of liability set forth in the Agreement, the Company shall
not be liable for any act or omission of any other company or companies furnishing a
portion of the Service, or for damages associated with Service, circuits, or equipment
that it does not furnish, or for damages which result from the operation of Customerprovided
systems, equipment, facilities or services which are interconnected with
Company Services.
3.2.7. Limitation of Company’s Liability for “On-Line” Services: Company “on-line” Services
are provided on an “As Is” basis. Customer acknowledges and accepts that
communications and transactions conducted on-line may not be absolutely secure, that
there may be system failure that may limit Customer’s accessibility to on-line Services
and that on-line Services are not guaranteed to be error free. By enrolling for and using
such on-line Services, Customer agrees to accept all responsibility and risk associated
with the use of such on-line Service and the Internet generally.
3.2.8. Limitation of Company’s Liability for Misuse of Customer’s Service: The Company shall
not be liable for the use, misuse, or abuse of a Customer’s Service, Equipment, or
Customer’s facilities by Customer, Customer’s agents or employees, third parties
including, without limitation, members or employees of the Company, or the members
of the public
3.2.9. Limitation of Company Liability for Billing Errors: The liability of the Company for
errors in billing that result in overpayment by the Customer shall be limited to a credit
equal to the dollar amount erroneously billed. Furthermore, no errors shall change or
diminish Customer’s obligation to pay for Services rendered or used.
3.3. Limitation of Company Liability for Licensing Errors or Omissions: All operating
systems, software, and any other relevant licensing is the Customer’s responsibility. The
Company cannot and will not be held responsible for any licensing violations of the
Customer. The Customer acknowledges this and agrees to purchase any necessary
licensing components needed to fulfill the requirements set forth in any and all Company
and Third Party Products.
4. INDEMNIFICATION
4.1. Customer’s Indemnification of Company: Customer and/or end user shall indemnify,
defend and hold harmless Company and its parent company, affiliates, subsidiaries,
employees, directors, officers, and agents from and against all claims, demands, actions,
causes of actions, damages, liabilities, losses, and expenses (including reasonable
attorney’s fees) incurred as a result of:
4.1.1. Claims for libel, slander, infringement of copyright or unauthorized use of trademark,
trade name or service mark arising out of use of the Service, including any violation of
the Agreement or related acts or omissions by Customer, its end users, or other users of
its account, or the placement or transmission of any message, information, software or
other materials on the Internet by Customer or end users of Customer’s account;
4.1.2. Claims for patent infringement arising from combining or connection of Customer or
third party materials, equipment, services, and/or facilities;
4.1.3. Claims for damage to property and/or personal injuries (including death) arising out of
the gross negligence or willful act or omission; and
4.1.4. Claims related to any Customer representations herein regarding Customer’s traffic and
Customer’s use of Services, including but not limited to those set forth in Sections 5 .8
and 6.1.
4.2. Company’s Indemnification of Customer: Company shall indemnify, defend and hold
harmless the Customer and its parent company, affiliates, employees, directors, officers,
and agents from and against all claims, demands, actions, causes of actions, damages,
liabilities, losses, and expenses (including reasonable attorney’s fees) incurred as a result
of:
4.2.1. Claims for patent or copyright infringement relating to the Company’s equipment or
Company’s software used by Company to provide the Services hereunder; and
4.2.2. Claims for damages to property and/or personal injuries (including death) arising out of
the gross negligence or willful act or omission of Company.
4.3. These indemnifications shall survive the termination of the Agreement.
5. CUSTOMER’S OBLIGATIONS
5.1. Initiation of Customer’s Obligations: The execution of the Agreement by the Customer
and acceptance thereof by the Company initiates the respective obligations of the parties.
If the Customer uses the Services, but does not execute an SOA, the Customer is deemed
to have consented to the terms of the SOA, including the incorporation of these General
Terms and Conditions and any applicable Product Terms and Conditions.
5.2. Use and Maintenance of Equipment:
5.2.1 Customer Must Maintain manufacturer warranties or service agreements on all
equipment, servers, workstations, and networking gear. If no agreement is available from
the original vendor or manufacturer, the customer will be responsible for all fees, parts,
and repairs for equipment
5.2.2 Customers should use a conscience effort to keep equipment maintained and up to date
by using Service from Company and advice obtained from the Company.
5.2.3 Customer agrees to maintain a suitable working environment for Company
representatives.
5.2.4 Customer agrees to provide a suitable environment for equipment maintained, serviced,
owned by, or leas from the Company. Suitable environmental conditions may be
obtained by contacting Company or via direct recommendation by a representative of the
Company.
5.3 Non SOA Customers: Work performed by Company for Customer that is not covered
by an Agreement or for a Customer that is not bound under any Agreement shall be
bound by the Additional Terms and Conditions and charged according the currently
Active Services Schedule.
5.4. Prohibition on Customer’s Use of Company Service Marks & Trademarks: A Customer
shall not: (a) use any service mark or trademark either of the Company or any of its
affiliated companies or of which the Company or any of its affiliated companies is a
licensee, or (b) refer to the Company or any of its affiliated companies in connection
with any Service, product, equipment offering, promotion, or publication of the
Customer, without the prior written consent of the Company.
5.5. Customer’s Agreement to Use of Electronic Records: Customer agrees and consents to
the use of electronic records by the Company. Customer may request hard copies of part
or all of the Additional Terms at any time by calling NOCTURNAL TECHNOLOGIES.
5.6. Notice of Claims: Customer shall immediately notify Company of any notices that are
served on Customer that might adversely affect Company, including but not limited to
notices of any claims or proceedings that involve the Services.
5.7. Notice of Problems: Customer shall promptly notify Company of any errors, “bugs” or
problems with the Services of which Customer becomes aware.
5.8. Customer’s Request for Additional Services: Should additional service(s) be requested
by Customer subsequent to execution of the Agreement, Customer and Company agree
to execute an additional agreement for such service(s). Customer agrees that additional
Services are offered under and pursuant to the terms, conditions and limitations as set
forth in any applicable tariff(s) and such additional agreement(s).
5.9. Cooperation: Customer agrees that, if another carrier and/or regulatory agency determine
it is necessary to audit the traffic which is the subject of the Agreement, Customer will
cooperate in any such investigation. In addition, to the extent any third party attempts to
recover access charges from Company as a result of such audit/investigation, Customer
agrees that it will indemnify and hold harmless Company for any and all costs and
charges resulting from such third party actions. This does not prohibit Customer from
challenging charges assessed by the third party or the classification of its traffic being
subject to access charges.
5.10. Customer’s Compliance with FCC Registration Requirement: Customer warrants and
represents that if it is required by FCC rules or regulations to file FCC Form 499-A, it
had on file with the FCC a valid, accurate and up-to-date FCC Form 499-A prior to the
Service Commencement Date.
5.11. Customer’s Compliance with Licensing Requirements: The Customer acknowledges
and agrees to purchase any necessary licensing components needed to fulfill the
requirements set forth in any and all Company and Third Party Products.
5.12 Customer Agrees to Maintain Documentation: Customer agrees that it has the sole
responsibility and burden to keep current copies, understand and document any changes
made to any and all agreements between the Customer and the Company. This includes
but is not limited to the Additional Terms and Conditions. Customer understands that it
may contact the Company to obtain a written copy of any agreements that pertain to the
relationship between the Customer and the Company. The Customer may have a
representative of the Company describe any changes made at no cost to the Customer.
6. BILLING AND PAYMENT ARRANGEMENTS
6.1. Customer Is Responsible For Payment of All Charges, Including Customer Service
Misuse: Customer shall pay Company for Services pursuant to the Agreement, including
the recurring, non-recurring rates and charges and the usage charges set forth in the
Order. An Order shall delineate the type of Service, quantity of product, locations(s)
serviced, order term and other information necessary for Company to provide Service to
the Customer. The Customer is responsible for payment of all charges for Service
furnished to the Customer. This responsibility is not changed by virtue of any use,
misuse, or abuse of the Service or Customer provided systems, equipment, facilities, or
Services interconnected to the Service, which use, misuse, or abuse may be occasioned
by third parties, including, without limitation, the Customer’s employees or other
members of the public. For example, the Customer agrees to pay the Company for all
charges billed as a result of any use of the Customer’s authorization code(s), whether
such use is by Customer or by a third party in connection with a lost, stolen or
misappropriated authorization code, or otherwise. It is the Customer’s responsibility to
inform the Company that an authorization code(s) has been stolen or lost.
6.1.1 Rates and Fees: The rates and fees for Services shall be set forth in the applicable SOA
and shall be valid for the Initial Term and any renewal term unless otherwise agreed;
provided however, all rates for international Services are subject to change on five (5)
days notice from Company (with new rates automatically effective on the 6th day from
the date of such notice). If no rates are set forth, all rates shall be the Company’s current
rates as defined in the Services Schedule.
6.2. Billing Begins on Service Commencement Date: Regular billing for the Services will
begin on the Service Commencement Date. Thereafter, invoices will be for the specified
period of Service (monthly or yearly) and are due upon receipt. Receipt shall be
presumed within three (3) days after mailing. Monthly Recurring Charges are billed in
advance while Usage Charges are billed in arrears. When Service is initiated on other
than the first day of the month or terminates on other than the last day of the month, the
charge for that month shall be determined by prorating the monthly payment by the
number of days during which Service was provided.
6.3. Billing Terminates at End of Service Date: For the purpose of billing, billing terminates
at the End of Service Date.
6.4. Non-recurring Charges: Non-recurring charges are payable upon the Service
Commencement Date or as otherwise billed by the Company.
6.5. Recurring Charges: Recurring charges which are fixed in amount and not dependent on
usage are billed in advance.
6.6. Usage Charges: Usage and related charges will be billed by the Company in arrears.
6.7. Other Fees Not Included in Service Prices
6.7.1. Federal, State, and Other Fees: Customer is responsible for federal, state, local,
franchise, or other surcharges, taxes and fees. These may not be defined at the time of
the agreement.
6.7.2. Set-up, Installation and Disconnect Fees: Customer agrees to pay the applicable set-up,
installation and disconnect fees. Installation and disconnect fees are non-refundable
Prices for Services contemplate installations made in normal locations and under normal
working conditions. Any installations to be made under other circumstances are subject
to additional charges.
6.7.3. Charges Imposed By Others: If an entity other than the Company imposes charges on the
Company associated with the provision of Services to the Customer or while performing
Service to the Customer, these charges will be passed onto the Customer.
6.8. Additional Payment Required for Additional Services: Customer agrees that any
additional Services requested, whether verbally or in writing, or used (including but not
limited to an upgrade or relocation of Customer’s circuit) will incur additional fees and
charges, and Customer agrees to pay these fees and charges when invoiced.
6.9. Interest Owed on Past Due Amounts: Invoices not paid in full within thirty (30) days of
the invoice date, unless otherwise specified on the invoice, will be past due and subject
to a 1.5% per month interest fee or the maximum rate permitted by law, whichever is
greater, on all past-due balances. Interest on past due amounts will be applied at the sole
discretion of the Company.
6.10. Fees Owed on Past Due Amounts: Invoices not paid in full within thirty (30) days of the
invoice date, unless otherwise specified on the invoice, will be past due and subject to an
administrative late processing fee. The fee for late payment shall be determined by the
amount billed on the invoice. The fees are set forth as follows:
6.10.1. If the amount billed is under $1000.00 the late processing fee shall be $50.00.
6.10.2 If the amount billed is over $1000.00 the late processing fee shall be $50.00 per $1000
invoiced. The invoiced amount shall be rounded up to the next $1000.00 increment
when figuring out the late processing fee.
6.11. Credit Balance in Closed Accounts: If a Customer whose account for Services has been
closed has a credit balance showing, the Company will transfer the credit to another
account of the Customer, if there is one, or will mail a check for the balance to the
Customer if Company believes it has a valid and current address. If the Company is not
certain that it has a valid and current address, it will include a notice with the final
invoice, which will be mailed to the Customer’s last known address, asking the Customer
to verify the address so that it can make a refund, or it will write to the Customer at that
address and request verification. Such verification can be made by calling a designated
telephone number or by writing to a specified address. Upon receiving verification, a
check for the balance will be mailed. If the final invoice or the notification letter is
returned by the post office as undeliverable, or if no response is received within thirty
(30) days of mailing, the Company at its option may begin applying a closed account
maintenance charge of $2.50 per month in the second monthly billing period following
the month in which the account was closed, and will continue to apply that charge until
the Customer requests a refund in writing or the balance is exhausted.
6.12. Customer Responsible for Collection Costs: Customer agrees to reimburse Company for
any costs incurred as a result of any collection activity, including but not limited to
reasonable attorneys’ fees, unless otherwise prohibited by law.
6.13. Billing Modification Due to De Minimus Amounts Owing: The Company’s invoices are
due upon receipt, as otherwise noted in the Agreement, unless the Company indicates:
(1) on the invoice some portion of or all of the charges on the invoice are not due until
the balance reaches a specified amount because of the de minimus amount due; or (2) the
Company temporarily suspends the billing process because of the de minimus amount
due until the amount due from the Customer reaches a level, which, at the Company’s
sole discretion, is deemed large enough to justify re-initiating the billing process; or (3)
or the Company modifies the billing process for Customer, in its sole discretion, because
of the de minimus amount due, and invoices Customer every other month rather than
monthly unless a Customer invoiced in such a manner requests monthly billing.
6.14. Refunds for Services and Hardware Sold: The Company shall grant no refunds,
reimbursements, or credits for any type or kind of consulting services already rendered.
The Company shall also grant no refunds on products sold unless otherwise specified in
writing by the Company.
7. AGREEMENT TERM, TERM RENEWAL AND TERMINATION/DEFAULT
7.1. Termination by Either Party and Renewal: The initial Service term shall be as set forth
on the Order (as specified, the “Initial Term” or “Term” of such Order) and shall begin
on the Service Commencement Date. If no Initial Term is set forth, the term of such
Order shall be three (3) years. If neither the Customer nor Company cancels the
Agreement before the end of the Term, the Agreement will automatically renew for a
similar term and at the rates specified in the Agreement (unless otherwise stated in the
notice) and pursuant to the terms of the Agreement, including any applicable tariffs.
Unless Company has already provided notice of its intent to terminate the Order,
Company will notify Customer in writing at least sixty (60) days prior to the expiration
of the Agreement, regarding the pending expiration of the Agreement and the automatic
renewal of the Agreement if no action is taken prior to expiration. If Customer notifies
Company of its decision to cancel the Agreement within the notice period, actual
termination of Service may not occur until thirty (30) days after receipt of Customer’s
notification. If Customer chooses to take Service for a minimum term or minimum
commitment and Customer cancels Service before the end of the Term or prior to the
retirement of the minimum commitment or Service is terminated by Company for cause,
actual termination of Service may not occur until thirty (30) days after receipt notice and
Customer shall be subject to various early termination charges for the Agreement, or for
any commitment shortfall, as set forth therein. If the term of the Agreement is month-tomonth,
the Agreement may be terminated by either party providing the other with
written notice of termination at least thirty (30) days prior to the termination date.
7.2. Customer Default/Termination After Service Commencement Date: Except as otherwise
required by law or applicable regulation, if, after the Service Commencement Date,
Customer: (a) fails to pay any amount required under any Agreement with
NOCTURNAL TECHNOLOGIES when due and such failure continues for ten (10)
days after written notice to Customer that the same is due and payable; (b) fails to
comply with any other material provision of the Agreement and such noncompliance
continues for thirty (30) days after written notice to Customer thereof; or (c) Customer
cancels or terminates Service, including any part of an integrated Service offering at any
time before completion of the Initial Term or any renewal Term, then Company may
elect to pursue one or more of the following courses of action, as applicable: (i)
terminate, in whole or in part, any or all of Customer’s Service(s) ordered hereunder,
whereupon all charges for the remaining Term are immediately due and payable for the
terminated Service(s), and Customer shall pay an early termination charge that shall be
equal to seventy-five percent (75%) of Customer’s average monthly usage for the six (6)
months prior to the termination month (or such lesser period if fewer than six (6) months
of Service were utilized), times the number of months remaining in the Term of the
Agreement (provided, however, that in the event Customer has made an annual or other
revenue commitment, the shortfall of that commitment over the remaining Term shall be
the measure of the early termination charge); (ii) take immediate appropriate action to
enforce payment, including suspension or discontinuance, in whole or in part, of all or
any part of the Services ordered, and/or (iii) pursue any other remedies as may be
provided at law or in equity.
7.3. Customer Default/Termination Before Service Commencement Date: In addition to any
other rights and remedies that Company may have, including those set forth in the
Agreement, Customer agrees that if Customer cancels, terminates or breaches the
Agreement after execution of the Agreement but prior to the Service Commencement
Date, except as termination is otherwise specifically permitted in the Agreement,
Customer shall pay Company an early termination charge of five (5) months of the
anticipated monthly recurring charges or commitment level, along with all nonrecurring
charges.
7.4. Construction or Acquisition of Equipment or Facilities: In the event Company is
required to construct facilities and/or acquire equipment to provide Service to Customer,
Customer acknowledges and agrees that Company will incur significant costs in
providing Service to Customer. Customer agrees that all costs for Equipment or
facilities will paid for by the customer before the Service Commencement Date.
7.5. Service Delays: Company will notify Customer that the Services are installed or
connected and available for use. The date of such notice shall be the Service
Commencement Date. Billing will begin on the Service Commencement Date. The
parties may mutually agree in writing upon a substitute Service Commencement Date. If
Customer notifies Company in writing that it is not prepared to utilize the Services or
facility immediately after Company has notified the Customer that the requested Service
is ready for use, Company may nonetheless begin billing the Customer on the Service
Commencement Date. Company may bill Customer for any costs Company has incurred
in provisioning the Services. Customer agrees to cooperate with Company to accomplish
Service activation by providing reasonably access to Customer’s premises and
facilitating testing and Service delivery requirements and Customer agrees Company
shall have reasonable access to Customer’s premises to repair, maintain, or retrieve
Company’s equipment throughout the term of the Agreement. Customer may not cancel
the SOA if there is a delay in installation related to the Services unless such delay is
solely due to Company and such delay is longer than one hundred eighty (180) days
beyond the parties agreed Service Commencement Date; provided however, in no event
may Customer cancel such Order if Company has agreed to construct or is constructing
communications facilities to provide service to Customer.
7.6. Termination Not an Exclusive Remedy: Any action outlined herein by Company shall
not be construed as an exclusive remedy and shall not waive Company ‘s right to pursue
any other rights and remedies. It is agreed that Company’s damages in the event of
Service cancellation or termination shall be difficult or impossible to ascertain. The early
termination charges are intended, therefore, to establish liquidated damages and are not
intended as a penalty.
8. CUSTOMER CREDIT HISTORY, SECURITY DEPOSITS AND OTHER FORMS OF
PAYMENT ASSURANCE
8.1. Company May Seek Customer Credit History: Customer authorizes Company to request
information from a reporting agency to enable Company to assess Customer’s credit
history and agrees that such action is not the extension of “credit” to Customer, and that
Company may alter any Service or billing arrangements as a result, upon notice to
Customer.
8.2. Applicants or Customers May be Required to Provide a Deposit or other Assurances of
Payment: At the discretion of the Company, Applicants for Service or existing
Customers whose financial condition is not acceptable to the Company, or is not a matter
of general knowledge, may be required at any time to provide the Company a deposit,
bond, retainer, or other financial assurance. It may be made in cash or the equivalent of
cash, up to an amount equal to the applicable Agreement, up one (1) years service or
estimated monthly recurring charges by the Company. Any applicant or Customer may
also be required, at any time, whether before or after the commencement of Service, to
provide such other assurances of, or security for, the payment of the Company’s charges
for Services to be provided as the Company deems necessary including, without
limitation, advance payments for Service, third party guarantees of payment, pledges, or
other grants of security interest in the Customer’s assets, and similar arrangements. The
required deposit, bond or other financial assurances may be increased or decreased by
the Company as it deems At the Company’s option. Deposit, bond, retainer, or other
financial assurance provided by the Customer shall not be refundable.
8.3. Disconnection for Non-payment: If the Company disconnects a Customer’s Service for
non-payment of past due amounts, the Customer’s Service will remain disconnected until
such time as the Company receives payment for all past due amounts, including interest,
and confirms the availability of sufficient funds to satisfy the amount of payment.
9. BILLING DISPUTES
9.1. Customer Must Dispute Bills Within Thirty (30) Days of Invoice: In the event Customer
disputes any billing by Company, Customer shall notify Company in writing within the
payment period specified above (providing the billing identification, Circuit number, any
trouble ticket number and an explanation for the dispute), and shall nevertheless pay the
affected invoice within the payment period specified above. Customer may not withhold
payment of the disputed amount of the invoice. Company will investigate the dispute
and attempt to resolve the billing issues within fifteen (15) days. No charges may be
disputed more than sixty (60) days after the date such charges are invoiced and if not
disputed within that time, such charges shall be deemed undisputed by Customer.
Payment shall not prejudice Customer’s right to dispute charges, so long as they are
disputed in the manner and within the time specified in this Section. The parties will
cooperate in good faith to resolve any such disputes within a thirty (30) day period after
the dispute is submitted to Company. If the dispute is not resolved during this period,
then either party may seek alternative dispute resolution in accordance with the Dispute
Resolution process set forth herein. If a disputed amount is determined to be a legitimate
charge, interest, not to exceed 1.5% monthly may be charged on the unpaid balance, not
paid within thirty (30) days after the original invoice date. If this interest rate exceeds the
maximum rate allowable by law, then the interest chargeable shall be equal to the
maximum rate allowed by law.
9.2. The Date of the Dispute: The date of the dispute shall be the date Company receives
sufficient documentation to enable it to investigate the dispute.
9.3. The Date of Dispute Resolution: The date of the resolution is the date Company
completes its investigation and notifies Customer of the disposition of the dispute.
10. DISPUTE RESOLUTION PROCESS
10.1. Dispute Resolution Process: Except for (i) action seeking a temporary restraining order
or injunction, (ii)a suit to compel compliance with this dispute resolution process, (iii)
disputes relating to the lawfulness of rates, terms, conditions or practices concerning
Services that are subject to the Communications Act of 1934, as amended, or the rules
and regulations of the FCC, a state public utility commission or other administrative
agency, (iv) Customer non-compliance with publicity provisions, or (v) billing or
payment disputes or collections matters, all of which may be litigated (or brought before
the applicable agency in the case of subsection (iii)) at the election of Company, the
parties agree to use the dispute resolution procedures set forth in this Section with
respect to any controversy or claim arising out of or relating to the Agreement or its
breach.
10.2 Upon ten (10) days written notice, either party may submit disputes to binding
arbitration by a single arbitrator with a professional arbitration service selected by the
parties. If the parties do not otherwise agree on an arbitration service, such services, shall
be provided pursuant to the American Arbitration Association (“AAA”) Commercial
Arbitration Rules and Mediation Procedures. The costs of arbitration, including the fees
and expenses of the arbitrator, shall be paid equally by the parties. Each party shall bear
the cost of preparing and presenting its case. The parties agree that Du Page County,
Illinois shall be the location for the arbitration hearing.
10.3 The parties agree that this Section 11 and the arbitrator’s authority to grant relief shall be
subject to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, et seq. (“FAA”), the provisions
of this Agreement, and the AAA Code of Ethics for Arbitrators in Commercial Disputes.
The parties agree that the arbitrator shall have no power or authority to make any award
that provides for punitive or exemplary damages or damages otherwise limited or
excluded in this Agreement. The arbitrator’s decision shall be final and binding. The
award may be confirmed and enforced in any court of competent jurisdiction. All post
award proceedings shall be governed by the FAA.
11. CANCELLATION FOR CAUSE BY THE COMPANY
11.1. Company’s General Right To Discontinue Service(s): The Company may discontinue the
furnishing of any and/or all Service(s) to a Customer, without incurring any liability,
immediately and without notice if the Company deems, in its sole discretion, that such
action is necessary to prevent or to protect against fraud, tricks, tampering, schemes,
false or invalid numbers, false credit devices, electronic devices, or any other fraudulent
means or devices or to otherwise protect its personnel, agents, facilities or services or to
protect against actual or potential adverse financial effect.
11.2. Customer’s Refusal to Furnish Information: The Company may discontinue the
furnishing of any and/or all Service(s) to a Customer, without incurring any liability,
immediately and without notice if Customer refuses to furnish information to the
Company regarding the Customer’s creditworthiness, its past or current use of
Company’s communications Services, the jurisdictional nature or characteristics of the
Services or its planned use of Service(s).
11.3. Customer Provided False Information: The Company may discontinue the furnishing of
any and/or all Service(s) to a Customer, without incurring any liability, immediately and
without notice if Customer provided false information to the Company regarding the
Customer’s identity, address, creditworthiness, past or current use of Company’s
communications Services, jurisdictional nature or characteristics of the Services or its
planned use of Service(s).
11.4. Customer Refuses to Provide Payment Security: The Company may discontinue the
furnishing of any and/or all Service(s) to a Customer, without incurring any liability,
immediately and without notice if Customer states that it will not comply with a request
by the Company for security for the payment for Service(s) or will not pay any amounts
owing.
11.5. No Use of Service: The Company may discontinue the furnishing of any and/or all
Service(s) to a Customer, without incurring any liability, immediately pursuant to this
Section: (i) without notice, if the Customer’s account has shown no usage for six (6)
consecutive months; (ii) without notice, if a Customer who accesses the Service by use
of an authorization code has not used the Service for ninety (90) days.
11.6. Customer Insolvency: The Company may discontinue the furnishing of any and/or all
Service(s) to a Customer, without incurring any liability, immediately and without notice
if Customer becomes insolvent, assigns for the benefit of creditors, files for bankruptcy
or reorganization, fails to discharge an involuntary petition within the time permitted by
law, or abandons Service.
11.7. Condemnation of Facilities: Upon notice, Company may discontinue or suspend Service
to Customer upon condemnation of any material portion of the facilities used by
Company to provide Service to Customer or if a casualty renders all or any material
portion of such facilities inoperable beyond feasible repair.
11.8. Customer Obligated to Pay: The discontinuance of Service(s) by the Company pursuant
to this Section does not relieve the Customer of any obligation to pay the Company for
charges past or now due and owing for Service(s) furnished up to the time of
discontinuance. In the event the Company cancels the Customer’s Service for cause, and
the Customer is committed to a term or other plan for which charges apply, the
Customer will be obligated to pay as though it had terminated Service early for its own
convenience.
12. SYSTEMS SECURITY
12.1. Customer’s Use of Company’s Systems: Where Customers are permitted access to the
Company’s computer systems and data for the purpose of managing and maintaining
their Services, they will comply with the following:
12.1.1. Customers may access the Company’s systems only to the extent required to administer
and manage the Customer’s systems. Access to information beyond that authorized may
result in civil and/or criminal penalties.
12.1.2. Customers may not disclose or use information which may be learned as a consequence
of access to Company systems except as may be directly required to ensure the proper
operations of the Customer’s systems. Customers must take all reasonable precautions to
prevent any other person or entity that does not have a need to know from acquiring such
information.
12.1.3. Customers shall not in any manner or form disclose, provide, or otherwise make
available, in whole or in part, Company documentation, any related material or any other
confidential material except to those who have a need to know incident to the use of
Services. All documentation shall remain the property of the Company and may not be
copied, reproduced, or otherwise disseminated without the prior written permission of
the Company.
12.1.4. Customers shall take all responsible precautions to maintain the confidentiality of all
Company documents. Such precautions shall include the use of Personal Identification
Numbers (PINs) and passwords selected by and known only to the Customer’s individual
authorized users. Company telephone numbers and dial-up access number(s) assigned to
Customers by the Company, PINs, or any aspect of access and sign-on methodology
shall not be posted or shared with others under any circumstances. Customers shall
follow normal logoff procedures prior to leaving a terminal unattended. Customers
should report any known or suspected attempt by others to gain unauthorized access.
12.2. Security Access Devices: In the event that a security access device assigned to a
Customer for dial-up access is lost, stolen, or misplaced, the Customer must notify the
Company immediately.
12.3. Security of Passwords and Authorization Codes: Certain service offerings by Company
may require the use of passwords for access. For these Services, a user ID and password
will be selected for each user. Customer agrees that the security of all user ID and
password information is extremely important, that it is necessary to access these
systems, should be kept strictly confidential and that its accidental or unauthorized
disclosure may have serious consequences. By enrolling for and using these Services,
Customer accepts sole responsibility for the security of this information. Company shall
have no liability for the consequences of Customer’s failure to maintain the security of
its user information, or the risks associated with using these Services.
12.4. Security of Web Hosting User IDs: In addition to the section entitled “Security of
Passwords and Authorization Codes” above, Customer is responsible for the use of all
user IDs associated with Customer’s Web Hosting account, whether used under any
name or by any person, and for ensuring full compliance with the Agreement by all users
of Customer’s user IDs or account. Customer is responsible for maintaining the
confidentiality of Customer passwords. In the event of a breach of security through
Customer’s account, Customer will be liable for any unauthorized use of the internet
service until Customer notifies Company’s customer service department.
13. ALLOWANCE FOR INTERRUPTIONS
13.1. Credit for Interruptions: Except as otherwise provided in applicable tariffs or service
level agreements, in which event such tariffs or service level agreements shall control,
when the use of Service or facilities furnished by the Company is interrupted due to any
cause other than the negligence or willful act of the Customer, or the operation or failure
of the facilities or equipment provided by the Customer, and except as otherwise
provided in the Agreement or applicable tariffs, upon notice by the Customer, a pro rata
adjustment of the monthly Recurring Charges subject to interruption will be allowed for
the Service and facilities rendered useless and inoperative by reason of the interruption
whenever said interruption continues for a period of one (1) hour or more from the time
the interruption is reported to or known to exist by the Company. If the Customer reports
a Service or facility to be inoperative but declines to release it for testing and repair, it is
considered to be impaired, but not interrupted.
13.2. Application of Credit Allowances: For calculating credit allowances, every month is
considered to have thirty (30) days. A credit allowance is applied on a pro rata basis
against the monthly Recurring Charges specified in the Agreement and is dependent
upon the length of the interruption. Only those facilities on the interrupted portion of the
Service will receive a credit. Credit allowances for Service outages that exceed twentyfour
(24) hours in duration will be rounded up to the next whole twenty-four (24) hours.
13.3. Limitations on Allowances: No credit allowance will be made for:
13.3.1. Interruptions due to the negligence of, or noncompliance with the provisions of the
Agreement, including applicable tariffs, by the Customer or other entity providing
Service in connection with the Company’s Service;
13.3.2. Interruptions due to the negligence of any person other than the Company including but
not limited to, the Customer or other entities connected to the Company’s facilities;
13.3.3. Interruptions due to the failure or malfunction of non-Company equipment, systems or
Services;
13.3.4. Interruptions of Service during any period in which the Company is not given full notice
and/or free access to its facilities and equipment for the purpose of investigating and
correcting interruptions;
13.3.5. Interruptions of Service during a period in which the Customer continues to use the
Service on an impaired basis;
13.3.6. Interruptions of Service during any period when the Customer has released Service to
the Company for maintenance purposes or for implementation of a Customer order for a
change in Service arrangements;
13.3.7. Interruption of Service due to circumstances or causes beyond the control of the
Company.
13.4. Use of Alternative Service Provided by the Company: Should the Customer elect to use
an alternative Service provided by the Company during the period that a Service is
interrupted, the Customer must pay the charges for the alternative service used.
14. CUSTOMER PRIVACY AND CONTENT
14.1 Customer Privacy: Upon contacting Company for Services or information, Company
may request customer information. This information will be kept with regards to
Company’s Privacy Policy.
14.2 Eavesdropping: Company facilities are used by numerous Customers or entities
including, without limitation, other subscribers to Company’s Services. As a result, there
is a risk that Customer could be subject to “eavesdropping.” This means that other
Customers or entities may be able to access and/or monitor your use of the Service. This
risk of eavesdropping exists not only with our facilities, but also on the Internet and
other services to which access is provided as a part of the Service. Any sensitive or
confidential information posted, stored, transmitted or disseminated by Customer is done
so at the sole risk of the Customer, and neither Company and its parent company,
affiliates, subsidiaries, employees, directors, officers, or agents shall have any liability
whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of
or otherwise relating to such actions of Customer. Customer acknowledges that software
programs claiming to be capable of encryption are commercially available. The
Company makes no representation or warranty regarding the effectiveness of these
programs.
14.2. Customer Responsibility for Content: Customer acknowledges that Internet sites and
use of the Internet might consist of, include and/or provide access to images, sound, text
and other content that may be unsuitable for children and may be objectionable to adults.
Customer acknowledges that Company and its parent company, affiliates, subsidiaries,
employees, directors, officers, and agents are not responsible for any such content or
material and agrees that access to same through use of the Services is at Customer’s sole
risk. The reliability, availability and performance of resources accessed through the
Internet are beyond Company’s control and are not in any way warranted or supported
by Company. Customer acknowledges that safeguards relative to copyright, ownership,
decency, obscenity, reliability and integrity of content may be entirely lacking with
respect to the Internet and content accessible through it. Company does not evaluate,
endorse or in any way vouch for the accuracy, completeness, truthfulness or reliability of
any service, opinion, material of information made available through the Services.
Customer assumes all risk and liability of its use of the Internet.
14.3. Malware: Company makes no representation or warranty that any software or content
installed on Customer computer(s) or downloaded from the Service does not contain
malware or other harmful features and it is the sole responsibility of the Customer to
take appropriate precautions to protect any computer or other hardware from damage to
its software, files or data as a result of any such malware or other harmful feature.
Company may, but is not required to, terminate all or any portion of the installation or
operation of the Service if malware is found to be present on Customers system(s).
Company is not required to provide you with any assistance in removal of the malware.
If Company, in its sole discretion, decides to install or run malware check software on
Customer computer(s), Company make no representation or warranty that the malware
check software will detect or correct any or all malware. Customer acknowledges that
additional charges will be incurred for any service call made or required on account of
any problem related to malware or other harmful feature detected on Customer
system(s). NEITHER Company and its parent company, affiliates, subsidiaries,
employees, directors, officers, or agents SHALL HAVE ANY LIABILITY
WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY
HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY
MALWARE OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO
REMOVE IT.
14.4. File Sharing and Services: The Service functions in some ways as a Local Area Network
(LAN) with each Customer constituting a node on the network. As such, users outside of
the Customer may be able to access the Customer Equipment and other equipment
connected in some way to the Customer Equipment. In addition, some available software
includes capabilities that will permit other users to gain access to the Customer
Equipment and other equipment connected in some way to the Customer Equipment, and
to the software, files and data stored on such equipment. You acknowledge that if you
choose to run these applications or services, you should take appropriate security
measures, and that any failure by you to follow this recommendation is at your sole risk.
Neither Company and its parent company, affiliates, subsidiaries, employees, directors,
officers, or agents shall have any liability whatsoever for any claims, losses, actions,
damages, suits or proceedings resulting from, arising out of or otherwise relating to
access by others of the Customer Equipment or any other equipment connected in some
way to the Customer Equipment, or to the software, files and data stored on such
equipment.
15. ASSIGNABILITY
15.1. Assignment: Customer may not sell, transfer or assign the Agreement without the prior
written consent of the Company. Any such assignment without Company’s prior written
consent shall be void. Notwithstanding the foregoing, in the event the Agreement is
assigned by Customer to any other party, by assignment, operation of law or otherwise,
which party, prior to the assignment, has an agreement (the “Prior Agreement”) with the
Company or any of its affiliates for the provision of services, the Services being
provided shall continue to be governed by the Prior Agreement, and the Service
provided hereunder shall continue to be governed by the Agreement, each without
reference to the other except that the Company may require a deposit or additional
financial assurances as provided in the Agreement.
Company shall designate, from time to time, the Authorized Entities, as defined herein,
that own and/or operate telecommunications facilities in various geographical areas to
provide Services under this Agreement. Such designation shall constitute an assignment
to and assumption by such Authorized Entity of all of Company’s rights and
responsibilities related to the provision of Services under this Agreement in such
Authorized Entities’ respective geographical areas; provided, however, that Company
shall continue to invoice Customer for Services rendered and shall manage ordering
pursuant to the applicable Order. The term “Authorized Entities” shall mean either an
affiliate or subsidiary of Company.
16. NOTICES
16.1. Notice: Notices under the Agreement shall be in writing and delivered by certified mail,
return receipt requested, to the persons whose names and business addresses appear
below and such notice shall be effective on the date of receipt or refusal thereof by the
receiving party. If to Company:
NOCTURNAL TECHNOLOGIES
20 Danada Square West
Suite 210
Wheaton IL 60189
17. MISCELLANEOUS
17.1. Neither Party the Legal Representative of the Other: The Agreement does not render
either party the agent or legal representative of the other party and does not create a
partnership or joint venture between Customer and Company. Neither party shall have
any authority to agree for or bind the other party in any manner whatsoever. The
Agreement confers no rights of any kind upon any third party.
17.2. Severability: Any provisions struck by a court or legal body shall be deemed severed.
17.3. Choice of Law and Venue: The Agreement is made pursuant to and shall be construed
and enforced in accordance with the substantive law of the State of Illinois without
reference to its principles of conflicts of laws.
17.4. Non-exclusive: The Agreement is non-exclusive. Nothing in the Agreement shall
prevent Customer or Company from entering into similar arrangements with, or
otherwise providing services to, any other person or entity.
17.5. No Publicity: Customer shall not issue a news release, public announcement,
advertisement, or other form of publicity concerning the existence of the Agreement or
the supplies or Services to be provided hereunder without obtaining the prior written
approval of Company. Failure to comply shall permit the Company to immediately
terminate the Agreement, in addition to any and all other rights and remedies the
Company may have at law or equity.
17.6. Survivability: The terms and provisions contained in the Agreement that by their sense
and context are intended to survive the performance thereof by the parties shall survive
the completion of performance and termination of the Agreement, including, without
limitation, the making of any and all payments hereunder.
17.7 No Waiver: No Waiver of any of the provisions of the Agreement shall be binding
unless it is in writing and signed by both parties. The failure of either party to insist on
the strict enforcement of any provision of this Agreement shall not constitute a waiver of
any provision and all terms shall remain in full force and effect.
17.8 Rights to Offset: Should Customer be in default of an invoiced contractual obligation for
more than a thirty (30) day period and Company has moneys payable to the defaulting
Customer, upon notification to the defaulting Customer, Company may offset respective
payments by first applying such moneys to the full balance due by the defaulting
Customer and the remaining balance remitted in the normal course of business.
17.9 Complete Agreement: The Agreement, incorporating all the items referenced herein,
represents the complete agreement of the parties with respect to the Services, and
supersedes all other agreements whether written or oral. In no event shall the Agreement,
including all appendices, addenda, order forms and exhibits, be modified or amended in
anyway by e-mail.
17.10 Online Location: http://www.nocturnaltech.com
REV 03/14/2011