Term. The “Initial Term” shall begin on the Effective Date of the Agreement and end upon the completion of the term listed on the face of the Agreement. The Effective Date shall mean the date the service was activated and released to Customer as set forth on the initial billing. The Agreement will be automatically extended (“Extended Term”) on a monthly basis upon the expiration of the Initial Term, unless a party has delivered written notice to the other party of its intent to terminate the Agreement at least thirty (30) days prior to the end of the Initial Term or then current Extended Term, as applicable. Extended Term rates and charges will be billed and may be changed by JOINK without consideration of discounts and/or credits that may have been in effect during the Initial Term of this Agreement.
Force Majeure. JOINK shall not be responsible for any failure to perform its obligations hereunder arising from causes beyond its reasonable control that make such performance commercially impracticable or impossible. Customer will not be required to make full monthly payments to JOINK in the event JOINK’s services are suspended due to any of the circumstances described in this section.
Compliance with Laws. Both parties shall comply with all applicable national, federal, state, and local laws, regulations and codes, including the procurement of permits and licenses, when needed, of their respective states, territories, and/or countries in the performance of this Agreement. Customer agrees to cooperate with JOINK as necessary to insure that JOINK’s ownership of any assets located within Customer’s property is perfected. This Agreement shall be subject to and interpreted in accordance with the substantive laws of the State of Indiana without regard to choice of law principles.
Early Termination Charges. If: (a) Customer terminates this Agreement during the Initial Term for reasons other than Cause; or (b) JOINK terminates this Agreement for Cause pursuant to the sections entitled “Termination for Cause” then Customer will pay, within thirty (30) days after such termination: (I) all accrued but unpaid charges incurred through the date of such termination, plus (II) an amount equal to eighty percent (80%) of the monthly recurring charge multiplied by the number of months remaining in the unexpired portion of the Agreement on the date of such termination.
Termination for Cause. Either party may terminate this Agreement for Cause. As to payment of invoices, “Cause” shall mean the Customer’s failure to pay any invoice within sixty (60) days after the invoice date; however Service(s) and Offering(s) may be interrupted if payment isn’t received within thirty (30) days of invoice. For all other matters, “Cause” shall mean: (a) a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within thirty (30) days after delivery of such notice; (b) any insolvency, reorganization, bankruptcy, liquidation, assignment for the benefit of creditors, appointment of a trustee or receiver, or other similar event, or (c) customer’s violation of Joink’s acceptable use policies (www.joink.com/aup.asp). In addition to the right to terminate as set forth herein, if Customer defaults and such default continues beyond any notice and cure periods provided for herein, JOINK reserves the right to immediately suspend its performance under any affected Service(s) or Offering(s).
Temporary Disconnection By Joink. JOINK may discontinue service immediately, without notice, if interruption of service is necessary to prevent or protect against fraud or otherwise protect JOINK’s personnel, facilities, or services.
Rates and Charges. Customer agrees to pay the rates and charges specified in this Agreement. Except where explicitly stated otherwise for a particular service, all rates and charges are subject to change and all discount percentages set forth in this Agreement are fixed for the Initial Term only and not any Extended Term unless explicitly stated otherwise.
Billing and Payment. Customer agrees to pay JOINK for all Service within thirty (30) days of invoice date. Payments must be made at the address designated on the invoice or other such place as JOINK may designate. Amounts not paid on or before thirty (30) days from invoice date shall be considered past due, and Customer agrees to pay a late payment charge equal to eighteen percent (18%) per annum unless such charges are disputed by Customer. Customer must give JOINK written notice of a dispute with respect to JOINK charges or application of taxes within thirty (30) of the date of invoice, or such invoice shall be deemed to be correct and binding on Customer. Customer shall also be responsible for any cost of collections incurred by Joink.
Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, JOINK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY JOINK SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. JOINK SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.
Disclaimer of Certain Damages. Neither party shall be liable to the other for any indirect, consequential, exemplary, special, incidental, or punitive damages, including without limitation loss of use or lost business, revenue, profits, or goodwill, arising in connection with this agreement, under any theory of tort, contract, indemnity, warranty, strict liability or negligence, even if the party knew or should have known of the possibility of such damages.
Limitation of Liability. The total liability of JOINK to Customer in connection with this Agreement for any and all causes of actions and claims, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the greater of: (a) direct damages proven by Customer; or (b) the amount paid by Customer to JOINK under this agreement prior to the most recent cause of action. Nothing in this section shall limit JOINK’s liability: (a) in tort for its willful or intentional misconduct; or (b) for bodily injury or death proximately caused by JOINK’s negligence; (c) loss or damage to real property or tangible personal property proximately caused by JOINK’s negligence. The maximum JOINK liability will be limited to its maximum amount covered by insurance not to exceed $1 million. The foregoing sets forth JOINK’s sole obligations, and Customer’s sole and exclusive remedies.
Assignment. Either party may assign this Agreement or any of its rights hereunder to an affiliate or successor without the prior written consent of the other party. Any attempted transfer or assignment of this Agreement by either party not in accordance with the terms of this Section shall be null and void.
Service Marks, Trademarks and Publicity. Neither JOINK nor Customer shall; (a) use any service mark or trademark of the other party; (b) refer to the other party in connection with any advertising, promotion, press release or publication without obtaining the other party’s prior written approval.
Private Utilities. Customer agrees that it is responsible for locating all private utilities with temporary markers prior to Joink performing work on its facility. Customer agrees to hold Joink harmless for damage to any unmarked facilities on its private property.
Right of Way. Joink may cancel this Order with no obligation to Customer if it is unable to extend its existing network to the Installation Address first listed above entirely within available rights of way under terms acceptable to Joink in its sole discretion.
Customer Provided Space. The Customer agrees during that for the duration of the Agreement it will provide JOINK with the space within its home (the “Space”) for the installation and operation of JOINK’s facilities and equipment (as hereinafter defined).
Customer shall provide available power for the placement of Joink equipment.
Equipment Ownership. Except as provided below, JOINK’S property, Equipment and fixtures shall at all times remain the sole property of JOINK, whether or not affixed or attached to the Space or the premises and Customer hereby waives any right it may have now or in the future to hold or assert a lien of any kind against JOINK’S property, Equipment and fixtures. Customer agrees never to allow any interception, splicing, or access to JOINK duct or fiber optic installed on Customer’s property without JOINK’S express written approval.
Equipment Removal. Within thirty (30) days after termination of the Agreement, JOINK will, at its own expense, remove all Equipment and fiber facilities (excluding entrance duct and cable) from the Customer’s premises.
JOINK shall not be obligated to restore or pay for restoration of the Space or Customer’s premises to its original condition. Any such restoration cost shall be borne solely by the Customer.