Acceptance. Subscriber's use of any services provided by Chaska
in the Agreement constitutes acceptance of these Terms and Conditions and
Subscriber's agreement to adhere to the Network Policies and Procedures.
Capitalized terms shall have the meaning giving them in the Agreement unless
otherwise defined in these Terms and Conditions.
Payment. Service is provided at standard rates and billed
on a monthly basis, for a minimum of one month. Usage charges and minimum
usage charges for Services are billed in arrears, fixed monthly recurring and
non-recurring charges are billed in advance. Billed charges include applicable
taxes and tax-related surcharges. Chaska reserves the right to change its
rates and charges at any time. Chaska may require Subscriber to make
reasonable deposits or other assurances of payment. Payment for all charges,
taxes and tax-related surcharges is due upon receipt of a City of Chaska
invoice. A late payment charge of 1.5% per month if a business, or the maximum
legal interest rate if any individual, may be assessed for amounts unpaid,
commencing thirty (30) days after the invoice date. If Subscriber contends
that any such invoice is incorrect, Subscriber shall promptly notify Chaska in
writing within ten (10) days after receipt of such invoice and specify the
reason for such contention. If Subscriber does not so notify Chaska,
Subscriber forever waives the right to further dispute such invoice and
Subscriber agrees to the accuracy of such invoice. Except as otherwise
provided by the terms of any special orders or contracts for Services, either
party each shall have the right to cancel the Services upon 30 days written
notice, subject to termination charges identified below. Chaska has the right
to immediately discontinue Services upon Subscriber's Default (defined below).
Subscriber agrees to pay Chaska for all costs and expenses incurred by Chaska
in collecting amounts owed by Subscriber including reasonable pre-judgment and
post-judgment attorneys' fees.
Termination Charge. Pricing is contingent upon the fulfillment of the
Term, and Subscriber agrees that if the Agreement is terminated by Subscriber
prior to the end of the Term, Subscriber shall pay a termination charge equal
to: a) thirty five percent (35%) of the monthly rate for service terminated
multiplied by the number of months, or portion thereof, remaining in the Term
of the Agreement; plus) the full balance of all billed but unpaid recurring and
all outstanding non-recurring charges. The termination charge will be waived
when the Subscriber discontinues services and ALL of the following conditions
are met: 1) Subscriber signs a new service agreement for any other Chaska
provided service(s). All applicable nonrecurring charges will be assessed for
the new service(s); 2) Both to current service and the new service(s) are
provided solely by Chaska; 3) The order to discontinue service and the order to
establish new service(s) are received by Chaska at the same time; 4) The new
service(s) installation must be completed within thirty (30) calendar days of
the disconnection of service, unless such installation delay is caused by
Chaska; 5) The total value of the new service(s), excluding any special
installation charges, is equal to or greater than one hundred fifteen percent
(115%) of the remaining value of this Agreement; 6) Subscriber agrees to pay
any previously billed, but unpaid recurring, and any outstanding nonrecurring
charges in full at the time of order for new service(s) ' these charges cannot
be included as part of the new service(s) agreement.
Limitation of Use. The Services and Site connection are for the use
of the Subscriber's employees, contractors, and consultants only. Subscriber
may not physically connect computer facilities located at any other location to
the Chaska Network (other than via the internet connection provided by Chaska
network) or provide access to the Network to other organizations or users or
resell the services provided by Chaska without an amendment to the Agreement.
Any such amendment to allow resale or use of the Services by other persons or
organizations will include additional charges.
Intellectual Property Rights. Neither party shall have the right to use the
other's name, trademark, or trade name without the prior written consent of the
other party.
Disclaimer of Warranties. Chaska (including its directors, officers,
employees, and agents, all of whom shall be referred to herein as 'Chaska'),
any and all participating Chaska contractors and consultants, are not
authorized to make any affirmation of fact or warranty with respect to the
Network or the Services, software or hardware supplied under the Agreement.
CHASKA DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE NETWORK,
SERVICES OR EQUIPMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitations of Liability. Chaska shall not be liable to Subscriber for
direct, incidental, special, or consequential damages of any kind whatsoever
arising out of or related to the use or inability to use the Network, the
Services, or hardware or software. The entire liability of Chaska for all
claims of whatever nature arising out of the provision of the Services or
related to the Agreement shall not exceed an amount equal to the proportionate
fixed monthly charges to the Subscriber for the period of service during which
any mistake, omission, interruption, delay, error, or defect effected in the
Service or Chaska equipment. Chaska shall not be liable for special, punitive,
consequential, or incidental damages.
Indemnity by Subscriber. Subscriber shall indemnify and hold Chaska
harmless from any and all damages, liabilities, losses, costs and expenses,
including attorney's fees, arising out of or related to Subscriber's use of the
Network or Services, or Subscriber's breach of the Agreement.
Security Agreement. If Subscriber is purchasing hardware or software
from Chaska, the Agreement hereby constitutes a security agreement under the Uniform
Commercial Code. Subscriber grants Chaska a security interest in any hardware
or software to secure Subscriber's payment for the hardware and software, and
of any amount due Chaska under any agreement between Subscriber and Chaska. If
an event of Default occurs as defined herein, Subscriber hereby consents and
acknowledges that Chaska may exercise, in addition to the rights and remedies
contained herein, all rights and remedies of a secured party under the Uniform
Commercial Code or any other applicable law. Subscriber agrees that upon
request of Chaska Subscriber will execute and deliver to Chaska a financing
statement evidencing such security interest. Subscriber also acknowledges and
agrees that a copy of the Agreement and these Terms and Conditions may be filed
as a financing statement.
Default. An event of Default under the Agreement shall mean
that (i) Subscriber's breach of any provision of the Agreement, (ii) a
bankruptcy petition, whether voluntary or involuntary, is filed by or against
Subscribed; (iii) Subscriber's assignment for the benefit of creditors; (iv)
Subscriber's failure to pay Chaska when due all amounts owed by Subscriber to
Chaska under any agreement between Subscriber and Chaska; (v) Subscriber fails
to perform any obligation under any agreement between Subscriber and Chaska.
If a Default occurs, Chaska has the right to exercise any one or more of the
following remedies: (i) to suspend or terminate Services without prior written
notice to Subscriber, and/or immediately terminate the Agreement or any other
agreement between Subscriber and Chaska; (ii) to declare the entire unpaid
amount owed to Chaska under any agreement between Subscriber and Chaska
immediately due and payable; (iii) to sue Subscriber to recover all unpaid
amounts owed to Chaska by Subscriber under any agreement between Chaska and
Subscriber; (iv) to take immediate possession of the hardware and software, or
any part thereof without a court order or other processes of law; and (v) to
pursue any other lawful remedy available to Chaska.
Force Majeure. Neither party shall be in beach of the Agreement
or liable for any loss or damage resulting from delays in furnishing services
or any other performance under or pursuant to the Agreement, caused by the act
of God or any other cause beyond the reasonable control of the party who is to
perform including but not limited to: delays from common carriers, labor
disputes, strikes, lockouts, shortages of or inability to obtain labor, energy,
insurrections, epidemics, acts of God or governmental actions not the fault of
the non-performing party.
Governing Law. The Agreement shall be governed by the laws of the
State of Minnesota.
Waiver. No waiver will be implied from either party's
conduct or failure to enforce rights. No waiver will be effective unless in
writing signed on behalf of the party against whom the waiver is asserted.
Relationship of Parties. Nothing herein contained shall be construed to
regard the parties as being partners or joint venturers, or to constitute the
arrangement herein provided for as a partnership or joint venture. Neither
party shall be bound by, or become liable for, any representation, commitment,
act of omission whatsoever of the other contrary to the provisions hereof.
Entire Agreement. The Agreement supersedes all proposals, oral or
written, and all negotiations, conversations or discussions heretofore
transpiring between the parties related to the Agreement. The parties
acknowledge that they have not been induced to enter into the Agreement by any
representations or statements, oral or written, not expressly contained herein.
The terms and conditions of the Agreement shall prevail, notwithstanding any
variance with the terms and conditions of any service order or other instrument
submitted to or by Chaska or Subscriber.
Modification. The Agreement shall not be deemed or constructed
to be modified, amended, rescinded, canceled or waived, in whole or in part,
except by written amendment signed by the parties hereto which specifically
identifies the term(s) or provision(s) to be affected thereby.
Paragraph Headings. Paragraph headings are provided for convenience of
reference and do not constitute a part of this Agreement.
Assignment. The Agreement shall be binding upon and inure to
the benefit of the parties hereto and each of their respective heirs,
representatives, successors and assigns, provided that the rights and
responsibilities of Subscriber hereunder are personal and may not be assigned,
pledged, transferred or sub-contracted without the prior written consent of
Chaska, which consent may be granted or withheld at Chaska's sole option. In
the event that Chaska shall consent to such assignment, pledge, transfer or
sub-contract, Subscriber shall obtain and furnish to Chaska a written agreement
in a form acceptable to Chaska under which the assignee, transferee or
subcontractor agrees to be bound by the terms of the Agreement.
Severability. In the event that any provision hereof is held
invalid or unenforceable by a court of competent jurisdiction, the remaining
provisions hereof shall nonetheless be enforceable. In the event that any
provision hereof is held to be overturned by such a court, such provision shall
be deemed amended to narrow its application to the extent necessary to make the
provisions enforceable according to applicable law and the provision shall be
enforced as amended.
Notices. Notices shall be effective when deposited in the
United States Mail, postage prepaid, to the addresses listed in the Agreement
or as subsequently provided by any party to the Agreement, and will be
considered as given when personally delivered, when sent by confirmed fax, or
twenty-four (24) hours after being sent by commercial overnight courier with
written verification of receipt.
Confidentiality. No information exchanged between the parties shall
be considered confidential unless it is the subject of a separate, written
non-disclosure agreement.
Published Policies
Incorporated into Agreement. Subscriber
shall comply with all published policies governing the use of the Network and
Services. Subscriber shall read all future system mail or news messages
containing the word 'policy', since these will contain information announcing
specific policy changes which are incorporated into the Agreement and are
binding upon Subscriber.
Data Rights. Neither Chaska nor Subscriber shall acquire any
rights in the data transmitted over the Network by virtue of the Agreement or
their use of the Network.
Electronic Communications
Privacy Act Notice. The Electronic
Communications Privacy Act requires Chaska to notify Subscriber if Chaska does
not offer the privacy of e-mail and files accorded paper mail. Subscriber
should assume that any e-mail or other communications may be seen by others,
either because of software problems or because Chaska reserves the right to
examine any file on the system to confirm compliance with this Agreement.
Evidence of illegal or prohibited activities may be disclosed to law
enforcement authorities.
NETWORK POLICIES AND PROCEDURES
Eligibility. Subscription to the Network is open to all
organizations and individuals, including commercial, industrial, academic,
governmental, and non-profit institutions wishing to gain access to the
Internet.
Administration and Security. Dialup Subscribers are responsible for preserving
the security of the Chaska Services made available to them and shall ensure
that their account passwords, access software, and any other resources provided
by Chaska are not disclosed to or obtained by any other persons. Subscribers
with group or family access accounts are responsible for appointing a Security
and Administrative Liaison, who will implement these policies within the
Subscriber organization. The Security and Administrative Liaison will be
responsible for authorizing all access to the Network from the Subscriber's
organization. The Network is not a secure network. Confidential or sensitive
data, proprietary software, and other secret information should not be
transmitted over the Network. Chaska assumes no responsibility for loss or
theft of information transmitted over the Network. Chaska reserves the right
to restrict the hardware and software configuration of devices connecting
directly to the Network to those products and vendors identified on the current
Approved Equipment listing maintained by Chaska.
Acceptable Use Policy. All traffic entering or carried by Chaska
facilities is unrestricted unless listed as unacceptable in this policy. It is
the policy of Chaska to provide its Subscribers the broadest possible range of
services and the broadest access to the community of organizations and
individuals that make up the world wide Internet. With the exception of
information specifically authored by or on behalf of Chaska, Chaska does not
develop or publish, nor does Chaska review, censor, or edit the materials and
information which are accessible through the Network, or the materials and
information which are accessible through the other computer networks which may
be connected to the network. The persons and organizations, including
Subscribers, who publish materials and information which are accessible through
the Network are solely responsible for the content of such materials and
information and are solely responsible to know and to comply with all laws
applicable to the publication of such materials and information. Chaska does
not accept responsibility for the content of the materials and information
published by others which are accessible through the Network and does not
accept responsibility for the violation of any laws resulting from such
publication.
It is the responsibility of all
organizations and individual users to:
'Respect the privacy of other users, and to not intentionally seek
information on, obtain copies of, or modify files, any kind of data, or
passwords belonging to other users without permission.
'Maintain use that is consistent with common ethical practice and
accepted community standards.
'Respect the legal protections provided by copyright and license
to programs, data, and documents.
Prohibited Use. Chaska prohibits use of the Network or Services for
any purpose which violates any applicable laws or regulations, or to transmit
any communication where the meaning of the message, or its transmission or
distribution would likely be highly offensive to the recipient or recipients.
Subscriber's use of the Network or Services shall not interfere with or disrupt
other Network users, services, or equipment. Such interference or disruption
includes, but is not limited to:
'Distribution of unsolicited advertising;
'Transmissions of any type or quantity that cause disruption of
service to others;
'Propagation of computer worms or viruses;
'Transmission of any material in violation at any federal or state
regulation, including but not limited to: copyrighted material, material
legally judged to be threatening or obscene, or material protected by trade
secret;
'Sending e-mail or NNTP (news) articles using a name and address
other than your own;
'Use of the Network to obtain unauthorized entry to other
computational, information, or communication devices or resources.
Enforcement. Even though Chaska does not review, censor, or edit
the materials and information which are accessible on the Network or other networks
which may be connected to the Network, if Chaska becomes aware that Subscriber
is in violation of the law or the Agreement, Chaska reserves the right to
impose disciplinary action up to and including restriction or termination of
Services and forfeiture of any fees paid to date. Evidence of illegal or
prohibited activities may be disclosed to law enforcement authorities.
