| Note: If you have already registered an Lunar Charc account but choose to not agree to all or any of the following terms and conditions after reading this agreement in full, please call Lunar Charc accounting to cancel your account. Service Agreement Lunar Charc LLC: Terms and Conditions You (the Lunar Charc customer and/or user, hereafter collectively referred to as "you") agree to purchase and/or use Lunar Charc services in accordance with the terms and conditions of this Service Agreement ("Agreement"). - Content Control--Lunar Charc LLC will exercise no control whatsoever over the content of any information passing through it.
- Lawfullness--You will use Lunar Charc LLC services only for lawful purposes. Any transmission or re-transmission of material in violation of any Federal or State laws and/or regulations is expressly prohibited. This extends to include, but is not limited to: any copyrighted materials, materials or communications prohibited by trade secret.
- Stated bandwidth(s) apply only to the customer-to-Lunar Charc LLC router port attachment. No guarantee of end-to-end bandwidth on the Internet is made.
- Charges to Customer Ñ Rates and service fees are set forth on the Lunar Charc LLC Hosting Agreement. Lunar Charc LLC will provide 30 days written notice prior to a change in our base prices. In the event that you do not wish to continue your account paying the changed base price, you, the customer, have 10 days from the date of notification of the effective increase to provide Lunar Charc LLC with a written request to terminate services and incur no termination liability. Otherwise, the existing service will be billed at the new base prices. However, you will continue to be responsible for all charges up to 30 days from the date the Lunar Charc LLC notice was received.
- Payment-- Installation fees and first month'scharges are required to be paid at the time your services are ordered. These fees and charges are non-refundable. Invoices for subsequent months are billed 30 days in advance. Invoices are due in full no later than 35 days after the bill date. After that your service is subject to interruption. If your service is interrupted for non-payment there will be a restoration fee (equal to the installation fee of the service type) to be paid in full and Lunar Charc LLC may take up to 30 days to restore service after payment. This policy will be strictly enforced. If you are not able to meet our payment terms please do not apply for services. You, the customer, will pay all sales and use taxes, as well as duties or levies on products and services.
- Default-- In the event of default, Lunar Charc LLC may retake possession of any and all hardware and/or software it has supplied you, employees and/or agents (before, during and after any sanctions to recover sums of money). In such a case, you will provide Lunar Charc LLC full and free access to the hardware and/or software for this purpose. Lunar Charc LLC will retain all payments made hereunder, and recover charges you owe as well as any damages Lunar Charc LLC may have sustained due to your default. Title and property rights, including all intellectual property rights to services, are and shall remain with Lunar Charc LLC whether or not they are embedded in any programming, software and/or hardware. If you are declared in default, Lunar Charc LLC will have all rights and remedies provided by law. Lunar Charc LLC may terminate your account and take any physical equipment and/or software products provided by Lunar Charc LLC subject to applicable state law, including the right to enter the premises where the physical equipment and/or software is kept in order to repossess it. You agree to pay Lunar Charc LLC's costs on demand as well as any reasonable attorney's fees and legal expenses incurred as a result of Lunar Charc LLC's exercise of any default remedies under this agreement
- Information--Any and all information you obtain through Lunar Charc LLC data network services (public and or private) is at your own risk.
- Ownership--You recognize and acknowledge that any and all Lunar Charc LLC services and/or products, programming and software used hereunder constitute valuable trade secrets of Lunar Charc LLC. You will use your best efforts to protect and keep confidential any and all programming and software used by you, your employees, and/or agents and shall never make any attempt to copy, examine in any way, alter or re-engineer, tamper with, or otherwise misuse such services, programs, hardware, etc.
- Cancellation--
- Lunar Charc may cancel and/or terminate service with 30 day written notice to you, the customer, for any reason.
- Only a written request to terminate service, made in accordance with c. and d. as applicable to you, relieves you and/or your company from the obligation to pay your charges. An act of default will accelerate payment to be due at once, and any type of credit agreement will be immediately and automatically terminated.
- Long-term service orders are considered to be anything extending over 3 months in length. To terminate long-term service, a company or an individual must provide Lunar Charc LLC with 45 days written notice. In case of early termination of any long-term order, the company or individual will pay a lump sum equal to six (6) months charges. There is NO termination charge when a customer upgrades to a higher level of service.
- To terminate month-to-month service, a company or an individual must provide Lunar Charc LLC with 30 days written notice. There is NO termination charge when a customer upgrades to a higher level of service.
- Credit-Worthiness-- Lunar Charc LLC will not be responsible for performance of its obligations thereunder where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors and will attempt to notify customers in the event of any of the foregoing occurrences. Should such occurrences continue for more than 90 days, Lunar Charc LLC or its customers may cancel service for the affected services and/or products with no further liability.
- Preparation and Relocation--You shall provide all necessary preparations required to comply with Lunar Charc LLC's installation, maintenance and operational specifications. Customers will be responsible for all costs of relocation of service once installed by Lunar Charc LLC and/or its vendors, and will provide Lunar Charc LLC, and its suppliers of communication service and equipment, reasonable access to your premises to perform any acts required by this agreement.
- Physical Equipment and Software--Physical Equipment and/or Software products that are NOT provided by Lunar Charc LLC are the responsibility of the customer, company or individual or both as the limits of the law allows for. Lunar Charc LLC will not be responsible for the installation of and/or service on equipment and/or software not provided by Lunar Charc LLC. All customers are responsible for the use and compatibility of hardware and software not provided by Lunar Charc LLC. In the event that the customer uses hardware and/or software that does impair the customer's use of Lunar Charc LLC services, the customer shall nonetheless be liable for regular payment to Lunar Charc LLC. Upon notice from Lunar Charc LLC that the hardware and/or software not provided by Lunar Charc LLC is causing, or in the sole opinion of Lunar Charc LLC, is likely to cause hazard, interference's or service obstruction, the customer shall eliminate the hazard, interference or service obstruction at once. Customers will, if necessary, pay Lunar Charc LLC to troubleshoot problems caused by such equipment and/or software not provided by Lunar Charc LLC. Lunar Charc LLC will not be responsible if any changes in hardware, software or services cause equipment not provided by Lunar Charc LLC to become obsolete, require modification or alteration, or in any other way affect the total performance of Lunar Charc LLC on an end-to-end basis and protect the Lunar Charc LLC backbone network and those networks attached to the Lunar Charc LLC network. In the case of customer-owned hardware and/or software connected to the Lunar Charc LLC network, the customer is totally responsible for any and all service to that equipment. Lunar Charc LLC, at its option, may supply technical services in the form of consulting and/or service to Lunar Charc LLC customers at their request. Such services will be billed out at rates set on the Lunar Charc LLC pricing sheet and/or at rates in effect at the time such services are requested. Lunar Charc LLC has the right to refuse any such technical services at its sole option. On leased telephone lines, no matter who the leasing party is, Lunar Charc LLC must have free and open access to such lines.
- Modifications to Terms and Concditions--Lunar Charc LLC always reserves the right to change its rates and otherwise modify these Terms and Conditions by notifying you 30 days in advance of the effective date of such changes. These Terms and Conditions hereby supersede all previous representations, understanding, or agreements and shall prevail notwithstanding any variance with terms and conditions of ANY and ALL orders submitted.
- Assigment by Customer--As a Lunar Charc LLC customer you may not sell, assign or transfer your service order without the prior written consent of Lunar Charc LLC. Lunar Charc LLC may at any time sell, assign or transfer this agreement with no notice.
- Assigment by Lunar Charc LLC--Assignment Ñ Lunar Charc LLC may assign this Agreement without Customer's prior written consent with 30 days prior notice. Customer may assign this Agreement without the prior written consent of Lunar Charc LLC with 30 days prior notice.
- Terms And Conditions/Acceptable Usage Policy Ñ This Agreement is subject to Lunar Charc LLC Terms and Conditions of Agreement ("Terms") and Acceptable Usage Policy ("AUP") that appear at http://hosting.Lunar Charc.com/agreements.html. Lunar Charc LLC at its sole discretion, may change the Terms and AUP at any time. Customer may request a current copy of the Terms AUP by sending or faxing a request to billing@Lunar Charc.com or at the address or fax number written below.
- Common Carrier - Lunar Charc LLC and Customer agree that Lunar Charc LLC is solely acting as a common carrier in its capacity of providing services hereunder, is not a publisher of any material or information and has no right to edit or censor the material at Customer's site. Lunar Charc LLC will exercise no control whatsoever over the content of any information passing through it.
- Any legal action arising out of failure, malfunction or defects in Lunar Charc LLC's services or goods shall be brought within a period of one year of the occurrence or is deemed waived.
- Service - Customer understands and agrees that occasional temporary interruptions of any Internet Services may occur as normal events in the provision of the Internet Services. Lunar Charc LLC agrees to exercise reasonable care to prevent such occurrences, however, under no circumstances will Lunar Charc LLC be held liable for any financial or other damages due to such interruptions. In no event shall Lunar Charc be liable to customer or any other person for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, loss of information, loss of income or cost of replacement services. Customer understands and agrees that Lunar Charc LLC does not guarantee or warranty system backups and Customer is responsible for making data backups in addition to those provided by Lunar Charc LLC. Data backups provided by Lunar Charc LLC should not be solely relied upon by Customer. It is further understood by Customer that retrieval of data from system backups will be charged an hourly service rate. Stated bandwidth(s) apply only to the customer-to-Lunar Charc LLC router port attachment. No guarantee of end-to-end bandwidth on the Internet is made.
- Severability-- If any provision of this Agreement is not valid according to the law, all other provisions will remain in force. If any provision is stricken, both parties agree to negotiate a mutually acceptable substitute provision.
- Waiver--Lunar Charc LLC's failure to insist upon your complying with any term or provision of this lease or it's waiver of any default shall not be construed as waiving any such term or provision and shall not preclude Lunar Charc LLC from taking action regarding any subsequent default.
- Warranty/Limitation of Liability Ñ Customer hereby agrees that Lunar Charc LLC makes no warranties, express or implied and Customer hereby waives any claim based upon any breach thereof. Customer further agrees that Lunar Charc LLC shall not be liable for any consequential, indirect or punitive damages arising out of any breach, delay or default in performance of this Agreement, and in any event, the amount of damages due from Lunar Charc LLC to Customer shall never exceed, and shall be limited to, a credit allowance of all payments made to date of claim, but not to exceed one (1) months' service fee at current rates. Lunar Charc LLC liability arising out of delays in installation, commencement or restoration of Service, or out of mistakes, accidents, omissions, interruption delays, or defect in transmission, including those which may be caused by regulatory or judicial authorities, shall in no event exceed the amount of the credit allowance, if any, available under this Section. Without limiting the foregoing, Pocketbeach shall have no obligation to provide alternative routing with respect to any Service provided pursuant to this Agreement. IN NO EVENT SHALL LUNAR CHARC LLC BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY DAMAGES EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL INCIDENTAL, ACTUAL, PUNITIVE, OR FOR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF MISTAKES, NEGLIGENCE, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS OR DEFECT IN TRANSMISSION, OR DELAYS, INCLUDING BUT NOT LIMITED TO, THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OF THE OBLIGATIONS OF POCKETBEACH PURSUANT TO THIS AGREEMENT. POCKETBEACH MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE FOR THE SERVICE OR LOCAL ACCESS, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY POCKETBEACH ARE HEREBY EXCLUDED AND DISCLAIMED.
- Force Majeure - Lunar Charc LLC shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, storm 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 governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lockouts, or work stoppages or other labor difficulties; Lunar Charc LLC failures, shortages, breaches, or delays.
- Indemnity by Customer - Customer agrees to release, hold harmless, defend and indemnify Lunar Charc LLC, its subsidiaries, employees and agents from any claims, damages, including but not limited to consequential damages, or any other liability arising from Customer's use of Lunar Charc LLC services and facilities provided to Customer under this Agreement, even if Lunar Charc LLC has been advised of the possibility of such damages, including payment of Lunar Charc LLC reasonable attorney fees.
- Liability of Customer - Any mistakes, accidents, omissions, interruptions, delays or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the customer or other or by the use of Customer-provided facilities which are connected to Lunar Charc LLC facilities, shall not result in the imposition of any liability upon Lunar Charc LLC and customer shall pay to Lunar Charc LLC any reasoable costs, expenses, damages, fees or penalties incurred by Lunar Charc LLC as a result thereof, including costs of local exchange company, labor and materials.
- Nondisclosure - Lunar Charc LLC and Customer shall use their best efforts to keep the provisions (including price) of the Agreement from the public, competitors, or others who may gain benefit from such knowledge unless required by law to divulge such information to regulatory authorities or unless required in connection with enforcing that party's hereunder.
- Governing laws--This agreement shall be governed by the internal laws of the State of Utah.
- Acceptable Use-- ALL USERS DESIRING CONNECTIVITY ON THE INTERNET ARE SUBJECT TO THE ACCEPTABLE USE POLICY.
- Use of Lunar Charc LLC services by you as a company and/or an individual constitutes acceptance of these Terms and Conditions in full.
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