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Acceptable Use Policy.

KCFIBER, LLC (k/a liNKCity) Customer Agreement & Acceptable Use Policy

Welcome to this site operated by KCFIBER, LLC, its subsidiaries and affiliates (“KCFIBER, LLC”, “KCFIBER”, “we”, “our” and “us”). This site offers a wide variety of products and services which may be accessed through the site (“Site”). The term “you” or “your” includes any of your subsidiaries, affiliates, employees, agents, customers, contractors or entities you represent (“end users”).

IMPORTANT: THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS IN THAT IT LIMITS KCFIBER’S LIABILITY. PLEASE READ THESE TERMS OF USE CAREFULLY. By accessing or using our Site or Service in any way you are agreeing to comply with this Agreement, including any documents, policies and guidelines incorporated by reference (referred to collectively as the “Agreement” or “Customer Agreement”).  This Agreement contains the terms and conditions that govern your access to and use of the Service Offerings and is a binding agreement between KCFIBER, LLC and you. This Agreement takes effect when you order a product or service provided by us through this Site or a customer service representative (“Service Offering”) or click any “I Accept” button or check box or when you use any of the Service Offerings or when you access and use our Site (the “Effective Date”).  THE DESCRIPTION OF YOUR SERVICE AND OTHER TERMS, SET FORTH IN THE CUSTOMER SERVICE SUMMARY OR ORDER CONFIRMATION LETTER YOU RECEIVED, ARE PART OF THIS AGREEMENT.  Your payment for and use of the Service constitutes your agreement to be bound by the charges on your order and invoice and the terms and conditions set forth in this Agreement.

1.  AUTHORITY.

1.1 Your Representations.  You represent to us that you are lawfully able to enter into contracts and are at least 18 years of age.  If you are entering into this Agreement for an entity, such as a company, you represent to us that you have legal authority to bind that entity.  If you are not at least 18 years of age or older or if you are not fully able and competent to enter into the terms, conditions, and representations set forth in this Agreement, please exit the Site or do not order our Services..

2.  CHANGES TO THE TERMS OR THE SITE. We may change or modify the Terms of this Agreement from time to time without notice other than posting a revised version on the Site or by notifying you by email or on your invoice. The amended terms will become effective upon posting or, if we notify you by email or invoice, as stated in the email or invoice message. Your continued use of the Service Offerings after the effective date of any changes to the Terms of this Agreement shall constitute your consent to the changes and your agreement to be bound by the modified terms. We reserve the right to change, modify or discontinue, temporarily or permanently, the Site, the Terms and the Service Offerings, at any time without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service Offerings, the Terms, or the Site. It is your responsibility to check the Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.

3.  ACCOUNT FOR SERVICE & SUPPORT.

3.1 Generally. You may use the Service in accordance with this Agreement. You agree to adhere to all rules and regulations related to your use of the Service, including the Acceptable Use Policy.

3.2 Setting Up Your Account. To access the Services, you must create an account associated with a valid e-mail address and place an order for a Service Offering.  You are responsible for all activities that occur on your account, regardless of whether the activities are by you, your employees or a third party and we are not responsible for unauthorized access to your account. You agree to contact us immediately if an unauthorized party is using your account or if your account information is lost or stolen.  You may terminate your account and this Agreement at any time in accordance with the Terms of this Agreement.  As you place your order for Service Offerings and set up your account, the following requirements apply:

(a)  One Account.  You may only create one account per customer name and all orders must include your real name, address, and phone number.

(b)  False Information.  Providing false information may result in immediate termination of all your accounts without refund.

(c)  Multiple Accounts.  Opening multiple accounts will result in termination without refund.

(d) Credit Card Purchases.  If the name on your credit card does not match the company name or the contact person’s name associated with your account, we may reject payment without notice.

4.  SERVICE OFFERINGS and SERVICE LEVEL AGREEMENT (“SLA”).

4.1 Service Offerings.  We may change or discontinue any of the Service Offerings or change or remove features of the Service Offerings at any time without notice.

4.2 Service Description.  High Speed Internet Service gives you fiber optic access to Internet, and offers you the ability to upload and download information from Internet end points connected to our network.  The Internet consists of many interconnected networks that connect to our network.  Although we exchange traffic with other networks, we do not warrant that we will connect to or continue to remain connected to other networks except by agreement with those networks.  Our ability or inability to connect to other networks could affect your service.  Therefore, we make no promise that you will be able to transfer data at any specific speed.

4.3 Speed Ranges and Service Performance.   We offer numerous service options to our business customers from 2 Megabits to 1 Gigabit.  Speed describes the capacity to transmit data.  Generally capacity is measured in gigabits, kilobits, or megabits that can be transferred in one second.  Email and basic web browsing do not require high data transfer speeds but uses like video streaming and conferencing require higher speed services.

Current speed ranges are summarized on our Site listing downstream and upstream rates between your network interface device and the point you connect to our network.  This represents the Service’s expected maximum speed capabilities.  Service speeds are measured between your location and a point on our network which represents only a small section of the transmission path connecting you to content providers.  Performance of our Service is also impacted by numerous other variables outside our control including your location, wiring at your premises, your devices and/or modem, the remote server you are accessing, the network performance outside our network, the networks you and others are using when transferring data, and others.  As such, we do not guarantee end-to-end performance of your service.  Service is provided “as is”.

4.4 IP Addresses.  A static Internet Protocol (“IP”) address or multiple static IP addresses may be included as part of business customer Services, depending on the Service you select.  Static IP addresses may not be available with all Services. You may not use the Service IP addresses in a manner inconsistent with the intended use of your Service.  Our Service may not support both IPV6 and IPV4 Internet addresses.  IPv6 addresses may require additional equipment that we may or may not offer.

4.5. Availability.  Our Internet Access Service is only available to North Kansas City residents and businesses.  Dark Fiber Service may be available to businesses outside the North Kansas City city limits.

4.6 Service Upgrades.  Some Service upgrades require new and/or different customer premises equipment (“CPE”).

4.7 Data Usage.  The data plan you selected contains an unlimited data allowance delivered at varying speeds depending on the Service selected.  As such, there are currently no overage fees associated with your service.  Use of equipment such as digital TV, home security, home alarm systems, etc. all impacts your data usage and speed.

4.8 Network Management.  You agree that we may take reasonable network management steps to limit: 1) network harm;   2) capacity and network performance degradation; 3) service levels degradation;  and 4) customer access degradation.  Reasonable network management practices include, but are not limited to capping data usage, limiting bandwidth, limiting data throughput speed, limiting data consumption or modifying customer technology.

4.9  Our current Service Level Agreement (SLA) for business customers is as follows:

(a)  ALL SERVICES ARE OFFERED “AS IS”.

(a)  Service Availability.  We strive to and anticipate that our Service will be available to you most of the time.

(b)  Service Disruption.  A Service disruption occurs when your Service is completely offline for more than 24 hours due to an unplanned fault in our network or power infrastructure.

(c)  Planned Maintenance Disruptions.  Disruptions caused by planned maintenance are not covered by this SLA.

(d)  Unplanned Disruption.  In the event that there is an unplanned Service disruption, business customers may call customer support and request an Account credit to be issued for a prorated amount of your monthly invoice amount equal to the time of the Service disruption.  For example: If you pay $60 per month for your Service and it is unavailable for 24 hours (during a 30 day month) due to an unplanned service outage, you may request an account credit  for $2.  You understand that this is your sole remedy for an unplanned service outage.

4.10 Changes to the Service Level Agreement.  We may add, change or discontinue our Service Level Agreement from time to time in accordance with the Terms of this Agreement.

4.11 Equipment.  Other than the equipment provided to you for use with the Service, you must provide all Equipment and devices necessary to receive the Service. Any Equipment not provided by us is not our responsibility and we do not provide support or maintenance on your equipment. Modems and routers provided by us will be either a new or a fully inspected refurbished equipment.

If we determine that the Equipment we installed is damaged due to your intentional acts or negligence, you will be responsible for the repair and/or replacement costs.

We will provide you certain Equipment that may be located inside or outside of your premises, where our fiber network terminates into a Network Interface Device (“NID”).

Tampering with or attempting to connect to the Equipment will be treated as an intentional act by you. You agree to notify us immediately at our customer support line if the Equipment or Services are being stolen or fraudulently used. You are responsible for stolen Equipment or Services as well as all monthly recurring and other fees for Services if you fail to provide timely notice to us of a theft.  Theft of Equipment or Service may also result in additional charges or Service termination.

4.12 Reselling is Not Permitted.  Reselling service without express written consent from us, or offering any public information service, such as running a web server or FTP server, is prohibited.

5.  DATA PRIVACY.

5.1 Data Privacy. You consent to our collection, use and disclosure of information associated with the Service Offerings.

6.  YOUR RESPONSIBILITIES.

6.1 Content. If you use our network for customers to gain access to your website, you are solely responsible for the management, development, maintenance, use, backup and restoration of Your Content. You are also responsible for changing data on or settings for your modem and/or router. You must confirm and monitor compliance of your content with the Acceptable Use Policy, the law, the Digital Millennium Copyright Act, and any claims or notices sent to you claiming that your content infringes on any person’s rights.  We are not responsible for the loss of your data or for the back-up or restoration of your data regardless of whether this data is maintained on our servers or your computer server.

You, not us, are entirely responsible for all content that you upload, download, post, email, transmit or otherwise make available via your website and Service (“Content”).   We do not pre-screen or control Content that is posted by users on any website, and, therefore, do not guarantee the accuracy, integrity or quality of such Content.   In our sole discretion, we may pre-screen, refuse or remove any Content that is available via our Site that is illegal, violates these Terms of Service or the AUP, or exposes us to any risk liability. We may preserve and disclose Content  if required to do so by law or we determine that preservation or disclosure is reasonably necessary to: (a) comply with a legal proceeding; (b) respond to claims of third-parties; or (d) protect the rights and safety of our customers.

6.2 Security and Backup. You are solely responsible for taking any and all steps to maintain security, protection and backup of your server and website content.  You may use encryption technology to protect it.  We recommend that you routinely archive your content and data on a daily basis in order to protect it in case of equipment failure or accidental loss caused by equipment, network, human error, or power outage.  Your failure to maintain a routine backup schedule to a remote backup location could result in a total loss of your data.

6.3 Violations. Any action that you knowingly or unknowingly permit any person or entity to take related to this Agreement or your content or your use of the Service will be deemed an act by you.  You will ensure that all Users comply with this Agreement.  If you become aware of a violation of this Agreement by an User, you agree to immediately terminate such User’s access to your content and the Service Offerings.

6.4 Acceptable Use Policy – Restrictions on Use.  You may not use, or encourage, promote, facilitate or instruct others to use, the Service Offerings or  Site for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive.  We do not voluntarily participate in any government mass collection of data and we do not ever plan to. Prohibited activities or content include:

(a)  Illegal Activities. Any illegal activities, including advertising or disseminating or promoting child pornography, are prohibited.  You may not use Service Offerings in the commission of any crime that violates the laws of any local, state, and federal government of the United States of America. Violations of this provision may result in us making your information and information about your service and your use of our Service Offerings available to law enforcement with or without your consent or knowledge.

(b)  Harmful or Fraudulent Activities. Activities that may be harmful to others or our operations or reputation are prohibited.

(c)  Infringing Content. You may not upload any material to your website that violates or infringes on the copyright, intellectual property rights or trademark rights of any individual or organization.

(d)  Offensive Content. Content that is defamatory, grossly offensive, obscene, abusive, invasive of privacy, or is otherwise objectionable, including content that exploits children or constitutes child pornography, relates to bestiality, expresses bigotry or hatred, constitutes harassment, or depicts non-consensual sex acts.  This includes material that defames, abuses, or threatens any person or group.  Content including nude art, pornography, sex-related merchandising and links to such sites elsewhere that are permitted by the laws in the city of Kansas City, the state of Missouri and the country of the United States of America comply with acceptable use.

(e)  Harmful Content. Content, software or computer technology that may damage, interfere with, intercept, or expropriate any system, program, or data, including viruses, trojan horses, worms, time bombs, or cancelbots are strictly prohibited.  Piracy, hacking, cracking, phreaking, warez, pyrotechnics, exploitive software and texts or communications that educate or encourage this activity and/or use are also prohibited.

(f)  No Security Violations.  You may not use Services Offerings to violate the security or integrity of any network, computer, communications system, software application, network or computing device (each, a “System”). Prohibited activities include:  (i)  Accessing any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System;  (ii)  Monitoring data or traffic on a System without permission; (iii)  Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin. This prohibition includes the use of aliases or anonymous remailers.

(g)  No Network Abuse.  You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:  (i) Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled;  (ii)  Denial of Service (DoS) – Inundating a target with communication requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective;  (iii) Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques;  (iv)  Operating network services like open proxies, open mail relays, or open recursive domain name servers;  (v)  Using manual or electronic means to avoid any use limitations placed on a system, such as access and storage restrictions;  (vi)  Attack traffic that disrupts any portion of our network (incoming or outgoing) will be blocked until the customer is able to work with security personnel to resolve the issue;  (vii)  IRC websites and IRC servers are prohibited;  (viii)  You may not upload ROMs and Emulators;  (ix)  You must contact us prior to installing a CDN within our infrastructure.  “Shared Resource” CDN’s are strictly prohibited.

(h)  No E-Mail or Other Message Abuse.  You will not distribute, publish, send, or facilitate the sending of unsolicited mass/bulk e-mail (UCE) or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements.  You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission.  You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.  You will not reference Us in any unsolicited email that you send.

6.5 Our Monitoring and Enforcement of Acceptable Use.  We reserve the right, but do not assume the obligation, to investigate any violation of the Acceptable Use Policy or misuse of the Services Offerings or Site. We may:

(a)  General Options.  Investigate violations or misuse of the Service Offerings or Site; or terminate Service without warning, notice or refund; or remove, disable access to, or modify any content or resource; or examine the contents of any account at any time that violates the Acceptable Use Policy or any other agreement we have with you for use of the Services or the Site.

(b)  Report.  Report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of the Acceptable Use Policy.

6.6   Reporting of Violations of the Acceptable Use Policy.  If you become aware of any violation of the Acceptable Use Policy, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. To report any violation of this Policy, please contact our Customer Service number.

7.  ORDERS, BILLING & PAYMENT

7.1. Service Order, Credit Check and Payment. When you purchase the Service, you agree to a specific plan and price.  Business customers agree to pay: (1) the monthly fee specified when you ordered your Service; (2) the equipment charges specified when you ordered your Service; (3) any activation fees or installation charges specified when you ordered your Service, if any; (4) any late fees or reconnection of Service fees or chargeback fees for any unauthorized/unapproved chargebacks; and (5) any applicable taxes, recovery fees and surcharges which we pay to municipalities and other governmental entities and may pass on to you.

Service upgrades may require payment of a one-time fee if customer premises equipment (“CPE”) upgrades are required.  We may invoice you more frequently if we believe that your account may be fraudulent or at risk of non-payment. You will pay us using one of the payment methods we support.  All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding.  Fees for any new Service will be effective when we post updated fees on the Site unless we stated otherwise in a notice. We may increase fees for any existing Service Offerings at any time.

You give us permission to obtain your credit information from consumer credit reporting agencies at any time. If we determine that you may be a credit risk due to: (1) poor credit rating; (2) insufficient credit history; (3) fraudulent or abusive use of any of our services within the last five years; or (4) late payments for current or prior bills, we may refuse to provide the Services or we may require an advance payment, a non-refundable payment, and/or deposit.  We may refund deposits via bill credits.

7.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax.

7.3 Ordering.  The order process for Service Offerings is as follows:

(a)  Correct Information.  All orders must include your real name, address, phone number and email address. Providing false information may result in immediate termination of all your accounts without refund. Clients are limited to one account. Opening multiple accounts may result in termination without refund.

(b)  Priority.  Orders are deployed in the order in which they are received.

(c)  One-Time Payment.  One-time payments may be required at the time the order is placed depending on the Service selected by you.

7.4 Monthly Billing.  Monthly Billing will begin when the installation is complete.  Installation services may require a pre-payment.

7.5 Method of Payment.  Your monthly charges may be billed via a monthly bill or to a credit card. Credit card billing is not available for all Services.  Bills may be sent to you to your email or a paper bill may be mailed to your last known address.

7.6 Credit or Debit Card Billing.  If you choose to make payment with a credit card or debt card, you authorize us to charge and/or place a hold on your card with respect to any unpaid charges for Services or any related equipment charges. You authorize the Credit Card Company and/or bank to pay any amounts on your bill without requiring a signed receipt.  This Agreement is your authorization to the Credit Card Company and/or bank to pay any amounts on your bill without requiring a signed receipt. You agree that we may continue to attempt to charge and/or place holds with respect to all amounts on your bill, or any portion thereof, to your Credit Card Company or bank until such amounts are paid in full. You agree that we will not be liable for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on, your card If we allow payment via an automatic payment or electronic funds transfer plan, you agree that all amounts on the bill may be charged to the account number provided for such automatic payment.  If charges cannot be processed through your credit or debt card or if you have insufficient funds, we will charge you an additional fee.

7.7 Late Payment & Failure to Pay.   If we do not receive your payment before the next billing date, you will be charged a late payment charge and/or an interest charge allowed by applicable law, on all amounts not paid. Acceptance of partial payments (even if marked “Paid in Full”) shall not waive any of our rights to collect the full amount due. Notice of any bill disputes must be in writing and received by us within 30 days after you received your bill or you will waive any objection. We may suspend or terminate Service if your payment is past due. If we suspend your service for non-payment, you must pay all past due amounts and a service reactivation fee in order to have service restored.  You agree that we may assign unpaid bill balances to a collection agency and you authorize and  consent to our outside collection agencies, counsel and agents to contact you regarding any unpaid past due charges at any mailing address,  phone number, or e-mail address that you have provided.

7.8 Returned Checks and other Instruments.  If you tender any check as payment and it is returned by a financial institution as unpaid for any reason, you will be charged a fee.

7.9 Bill Inquiries and Refunds.  If you believe you have been billed in error for the Services, please call our customer service phone number.  We do not issue refunds or credits on bills that are more than 30 days old.

7.10 Refunds.  Any amounts refunded in the form of bill credits, cash payments or any other form shall be inclusive of all applicable taxes that were originally paid on such amounts.

7.11  Matching Names.  If the name on your credit or debt card does not match the company name or the contact person’s name associated with your account, we may refuse payment.  Our credit card verification process may require you to provide photo identification or passport information as well as copies of your credit card.  This process applies to existing customers who desire to change the credit card associated with their account.  Failure to comply with the credit card verification process may result in our refusal of payment and termination of service.

8.  SERVICE SUSPENSION

8.1 We will suspend your right to access or use any portion or all of your Service and disconnect your Service immediately if we determine:

(a) Security or Fraud Risk.  Your use of the Service Offerings poses a security risk, or may adversely impact the Service Offerings or our systems or Content,  or may subject us to liability, or may be fraudulent or you are in breach of this Agreement (including if you are delinquent on your payment obligations).  If your payment is declined or you fail to submit payment on or before the invoice due date, your Service will be suspended and your account will be assessed a late fee; or

(b) Ceased Business.  You have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or become the subject of any bankruptcy, reorganization, liquidation, or dissolution.

(c) Terms of Use & Acceptable Use Policy.  You have violated any of the terms of our Terms of Use or our Acceptable Use Policy.

8.2 Suspension Impact.  If we suspend your right to access or use any portion or all of the Service Offerings:

(a)  Fees Incurred.  You remain responsible for all fees incurred through the date of suspension; and

(b) Fees Continuing.  You remain responsible for any applicable fees for any Service Offerings you continue to have access to, and for fees related to in-process tasks; and

(c) Our Right to Suspend.  Our right to suspend your access or use of the Service Offerings is in addition to our right to terminate this Agreement.

9.  SERVICE TERM & TERMINATION

9.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us.

9.2 Termination.

(a) General.  You may terminate this Agreement for any reason by calling our Customer Service number. We may terminate this Agreement at any time for any reason.

(b) For Cause Termination.  Either party may terminate this Agreement for cause if there is a breach of this Agreement by the other party.  We may terminate this Agreement immediately if any act or omission by you results in a suspension.  Your failure to make payment will result in your Service being terminated and a termination fee will be assessed against your Account.  We may also terminate if our relationship with a provider of software or technology we use to provide the Service Offerings expires or changes; or if we believe providing the Services could create a financial or technical burden or a security risk for us; or in order to comply with the law or requests of governmental entities; or if we determine any Service Offering has become impractical for any reason.

9.3. Termination Impact.

(a) Rights Terminate.  Upon termination of this Agreement all your rights immediately terminate and you remain responsible for all fees incurred through the date of termination, including fees for in-process tasks.

(b) Post-Termination Assistance. Any post-termination assistance from us is in our sole discretion and subject to our agreement in writing from a manager.  Communications from our customer service representatives does not constitute our agreement to any post termination assistance.

10.  LICENSE RIGHTS AND RESTRICTIONS AND YOUR WARRANTIES

10.1 Adequate Rights. You represent and warrant to us that you have all rights necessary to enter into this Agreement; and none of Your Content or use of it or our Service will violate the Acceptable Use Policy.

10.2 Service Offerings License.  As between you and us, we own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, non-transferrable license to access and use the Services solely in accordance with this Agreement.

10.3 License Restrictions. You may not use Service Offerings for any purpose other than as permitted by this Agreement. You may not attempt to modify or tamper with software included in the Service Offerings or use the Service Offerings in a way intended to avoid fees or increase usage limits. All licenses immediately terminate if you do not comply with this Agreement.

11.  INDEMNIFICATION

11.1. General.  You will defend, indemnify, protect and hold harmless us and our employees, officers, directors, members or shareholders, lenders, principals, managers and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees regardless of whether any action is ever commenced) arising out of or relating to any third party claim, suit, action or proceeding brought against us concerning: (a) your use of the Service Offerings (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law, rule or regulation by you; (c) your content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the use or marketing of Your Content; (d) a dispute between you and any End User; (e) any negligent or willful act or omission by you; (f) any damages arising out of the Service Offerings or failure of Service Offerings; or (g) the destruction or loss or damage of your data.  If we are obligated to respond to a third party subpoena, order or process described above, you agree to reimburse us for reasonable attorneys’ fees, as well as all employees’ and contractors’ time and expense spent responding to the subpoena, order or process at our then-current hourly rates.  These obligations survive termination of your relationship with KCFIBER or your use of our Service or Site. KCFIBER reserves the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with KCFIBER in asserting any available defenses.

11.2. Process. We will notify you of any claim subject to Section 11.1, but our failure to immediately notify you will only affect your obligations under Section 11.1 to the extent that our failure prejudices your ability to defend the claim. You may use counsel of your own choosing (subject to our written consent) to defend against a claim or to settle a claim, provided that you obtain our prior written consent.  You agree that we may assume control of the defense and settlement process at any time.

12.  LIMITATIONS OF LIABILITY.

YOUR USE OF OUR SITE, SERVICE AND/OR SOFTWARE IS AT YOUR SOLE RISK.  IN NO EVENT SHALL KCFIBER, ITS EMPLOYEES, OFFICERS, OWNERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR INABILITY TO USE OUR SERVICE OR SITE OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, THE INABILITY TO USE AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, AIR CONDITIONING OUTAGES, SYSTEM FAILURES, HUMAN ERROR, OR OTHER INTERRUPTIONS, OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AVAILABLE THROUGH THE SITE OR THE SITE, THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, OR PRODUCTS, (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SITE; (iv) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE OFFERINGS (v) UNAUTHORIZED ACCESS TO OR ALTERATION OF OR LOSS OF YOUR TRANSMISSIONS OR DATA; (vi) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SITE; (vii) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; (viii) ANY ERROR, OMISSION, DEFECT, VIRUS OR THEFT THAT CAUSES DAMAGE OR LOSS OF YOUR CONTENT OR DATA  OR (ix) ANY OTHER MATTER RELATING TO OUR SERVICE OR SITE, EVEN IF KCFIBER OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR SITE IS TO STOP USING THE SITE AND/OR OUR SERVICES.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF KCFIBER UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).  IF YOU DO NOT AGREE, YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR SITE IS TO STOP USING THE SITE AND/OR THOSE SERVICES.

You authorize us to file a copy of this Section 12 in any proceeding as conclusive evidence that you consented to limitations of liability.

13.  DISCLAIMERS.

YOUR USE OF OUR SITE, SERVICE AND/OR SOFTWARE IS AT YOUR SOLE RISK.  OUR SERVICE OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS.  WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT & TITLE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE.

You authorize us to file a copy of this Section 13 in any proceeding as conclusive evidence that you consented to limitations of warranties.

14.  MISCELLANEOUS

14.1 Confidentiality. You may use KCFIBER Confidential information only in connection with your use of the Service Offerings and will not disclose it during the Term or at any time during the 2 year period following your termination of Service. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of KCFIBER Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.

14.2 Force Majeure. We will not be liable for any failure or delay to perform any obligation under this Agreement where the failure or delay results from any cause beyond our reasonable control, including without limitation, acts of God, explosion, flood, fire or other casualty, vandalism, cable cut, failure of commercial power, adverse weather conditions or other elements of nature, labor disputes or shortages  or other industrial disturbances, inability to procure materials or transportation facilities, failure of any third party (including any other supplier) to provide services or facilities or equipment required for such performance or obligation, systemic electrical, telecommunications, or other utility failures, earthquake, blockages, embargoes, riots, governmental action or inaction or orders (such acts including without limitation any regulatory or administrative decision making performance or obligation economically or technically unfeasible), condemnation or the exercise of rights of eminent domain,  acts of terrorism, national emergency, or war.  Invocation of this clause shall not relieve you of your obligation to pay for any Services actually provided.

14.3 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party is an agent of the other for any purpose or has the authority to bind the other.

14.4 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

14.5 Waiver of Trial by Jury.  We and you agree, to the fullest extent that we may lawfully do so, to waive trial by jury in any action or proceeding brought by any party to this Agreement with respect to this Agreement, or any matter related to this Agreement.  This waiver of right to trial by jury is given knowingly and voluntarily by you, and is intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue.  We or you, as applicable, are hereby authorized to file a copy of this Section 14.5 in any proceeding as conclusive evidence of this waiver by you and us , as applicable.

14.6 Import and Export Compliance. You agree comply with all applicable import and export regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and any sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance related to the manner in which you choose to use the Service Offerings.

14.7 Notice.

(a) To You. We may provide any notice to you by: (i) posting a notice on the Site; (ii) posting a notice on your invoice or (iii) sending a message to the email address then associated with your account. Notices we provide by posting on the Site will be effective upon posting and notices we provide by email or invoice will be effective when we send the email or invoice. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact KCFIBER as follows: by certified mail to KCFIBER, LLC., 201 E. 16th, North Kansas City, MO  64116.  Notices provided by certified mail will be effective three business days after they are received.

(c) Language. All communications and notices must be in the English language.

14.8 Assignment. You will not assign this Agreement or any of your rights under this Agreement, without our prior written consent.  Any assignment or transfer without our prior written consent will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.

14.9 No Waivers.   No failure by us to exercise any power, right, privilege or remedy under this Agreement, and no delay in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.  All waivers by us must be in writing to be effective.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.

14.10 Severability.  If any term or provision of this Agreement is held to be invalid, illegal or incapable of being enforced by virtue of any federal or state law, or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect.   Upon such determination that any such term or provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.  If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

14.11 Governing Law; Venue; Attorney’s Fees.  This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Missouri, without regard to choice of law principles.  Any dispute arising from this Agreement shall be governed by the laws of the State of Missouri, and shall be decided solely and exclusively by State courts located in Clay County, Missouri or Federal Court within the County of Jackson.  Any Party who unsuccessfully challenges the enforceability of this forum selection clause shall reimburse the prevailing party for its attorney’s fees, and the party prevailing in any such dispute shall be awarded its attorneys’ fees.  You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.  You authorize us to file a copy of this Section 14.11 in any proceeding as conclusive evidence that you consented to venue.

14.12 Entire Agreement. This Agreement, without limitation, constitutes the complete and exclusive agreement between you and us with respect to the subject matter of this Agreement and supersedes and replaces any and all prior or contemporaneous representations, understandings, agreements, negotiations or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement).  If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.

14.13 Survival.  Any obligations under the Agreement which by their express terms are to survive, shall survive the expiration or termination of this Agreement.  In addition, any other obligations under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation confidentiality, limitation of liability, and indemnification, shall survive the termination or expiration of this Agreement.

 

 

Effective Date:  6-31-16

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