FOTOKEM TERMS & CONDITIONS FOR NETWORK SERVICES
These Terms and Conditions govern "Customer" use of Foto-Kem Industries, Inc.'s ("FotoKem") fiber optic and Internet connectivity network ("Services"). By using FotoKem Services, Customer accepts and agrees to be bound by the Terms and Conditions of the following "Agreement."
(a) "We" or "us" or "FotoKem" means Foto-Kem Industries, Inc. or its affiliated or dba entities.
(b) "Customer" means the party entering into the Agreement as well as all employees and independent contractors working for Customer.
(c) "Third Party" means any person or entity other than Customer or FotoKem.
(d) "FotoKem Network" means FotoKem's fiber optic line(s) or internet connectivity or wired or wireless access points, switches, radio and/or microwave connections.
(e) "Facilities" means FotoKem supplied devices and/or systems used to deliver Services, including but not limited to terminal and other equipment, wires, lines, circuits, ports, routers, switches, channel service units, data service units, cabinets, racks and the like. Facilities shall not include devices sold to Customer by FotoKem and paid for by Customer, or owned by Customer or by a Third Party.
(f) "Services" means services to be supplied by FotoKem to Customer, including but not limited to allowing, Customer access to the FotoKem Network and Internet connectivity.
(g) "Site" means location(s) where Services are to be provided.
(h) "Licensed Software" means computer software, in object code format, the use of which is required for use of Services ordered by Customer.
(i) "FotoKem Equipment" means equipment (if any) supplied by or on behalf of FotoKem to Customer or placed at or on the Site for the purposes of providing Services.
(j) "Customer Equipment" means all equipment other than FotoKem Equipment.
(k) "Planned Outage" means loss of Services which occurs due to repair, maintenance and servicing at a specified times in which FotoKem has notified Customer in advance.
(l) "Intellectual Property Rights" means patents, trade-marks, service marks, copyrights, trade names, know-how, licenses or consents in relation to any of these.
(m) "Confidential Information" means business information that is and should reasonably be recognized as being confidential, and may include, (but not be limited to), details of network infrastructure and design, third party service providers, addresses, passwords, etc. Confidential Information may also include, specifications, drawings, data, documentation, manuals, instructions, customer lists, business plans, developments, trade secrets, technical or other expertise and know-how, licensed software, source code, updates, and other non-public information regarding the business of a party, provided to a party by the other party, where such information is conspicuously and reasonably marked or otherwise communicated or considered as being "Confidential."
2. ACCESS TO FOTOKEM NETWORK
FotoKem contracted with one or more vendors to install network connectivity at FotoKem Facilities. FotoKem agrees to provide Customer access to that network connectivity assuming Customer acceptance and adherence of and to these Terms & Conditions, and Customer's responsible use of Services.
3. CUSTOMER EQUIPMENT
Aside from FotoKem Equipment, if any, Customer shall be responsible to obtain and have in place all equipment needed to access the FotoKem Network. FotoKem shall have no obligation for securing or maintaining Customer Equipment, and no liability for Customer's inability to access the FotoKem Network due to lack of or failure of Customer Equipment, or where the use of additional or other Customer Equipment would enable such access.
4. WIRELESS ACCESS
If applicable, Wireless access points may be provided as a courtesy, and not as an obligation. Customer acknowledges these are subject to, various forms of interference and disruption resulting in Customer's inability to maintain connectivity to the FotoKem Network. Customer shall maintain access to wired network ports, to reduce the effects of disruption in wireless access, and a redundant network connection that FotoKem or Customer can use for remote troubleshooting and /or as a temporary internet connection until restoration of connectivity to the FotoKem Network can be completed. In no event will FotoKem be responsible for any disruption in connectivity caused by Wireless Access points.
5. REPORTING SERVICE ISSUES
Customer shall report service issues to FotoKem as soon as possible. FotoKem may but is not required to pass-on to Customer any credit, rebate or other consideration FotoKem may receive from a vendor on account of defect in service.
FotoKem reserves the right at any time to make changes or additions to, or to replace any part of, the FotoKem Network, equipment, specifications, access control or other aspect of the equipment or Services, whether for safety, seeking to improve service, or to lower cost, or to conform to statutory requirements or requirements of regulatory bodies or internet governing body or as FotoKem otherwise deems desirable. FotoKem may but is not required to make an effort to contact Customer to agree to timing for implementing changes, but does not assure success in doing so.
7. PERMITS, CONSENTS
Customer shall, at Customer's cost, obtain all permits, permissions, licenses, consents, or registrations deemed necessary by FotoKem, to deliver, install, and maintain at Customer's Site any FotoKem Equipment required to facilitate Services.
8. PROVISIONS REGARDING CUSTOMER USE OF SERVICES
(a) Customer shall use the Services according to these terms, and all other operating guides and instructions FotoKem notifies Customer of.
(c) Customer shall not: (i) let any Third Party use or access the FotoKem Network; (ii) use the FotoKem Network other than to access the Services for purposes specified in these terms; (iii) use the FotoKem Network in any way that in FotoKem's opinion may bring the Services or FotoKem into disrepute; and/or (iv) make any representation or warranty to a Third Party as to quality, availability, or fitness for a particular purpose, of the Services.
(d) Following notice from FotoKem, an intellectual property owner, government authority or law enforcement agency that particular Internet sites, domain names, or newsgroups are or may be carrying Illegal material or unlawfully carrying material, Customer shall take all necessary steps to prevent access to such sites, domains or newsgroups by Customer or Customer employees, and shall cooperate fully with any FotoKem investigation in response to such notice. Should Customer be found in violation of governing laws, Customer agrees to accept responsibility for any and all damages, fines, charges, or expenses associated with such notice and/or investigation.
9. SUSPENSION OF SERVICE
(a) FotoKem may (in addition to all other rights) suspend providing Services, with or without prior notice, in whole or in part, if (i) required or convenient to comply with an order, instruction or request of, or to cooperate with, a government, court, utility service, or other authority; (ii) convenient for FotoKem or its vendor to perform work relating to upgrading, repair or maintenance of the Services or FotoKem Network or any part thereof including PoPs, servers or any component or part of connectivity; (iii) Customer fails to timely pay any amount due to FotoKem; or (iv) Customer breaches any provision of these terms.
(b) FotoKem may, but is not required, prior to suspension under Section 9(a), or a scheduled service interruption, attempt to notify Customer of the timing and/or reason for suspension or interruption of Services.
10. REMEDY FOR LOSS OF CONNECTIVITY
(a) As it is the responsibility of FotoKem's Internet provider (not FotoKem) to provide Internet connectivity to FotoKem, FotoKem shall not be responsible or liable for interruption or any failure or inability of Customer to access the Services. FotoKem's obligation is limited to requesting that its vendor restore connectivity promptly. FotoKem strongly recommends that Customer maintain redundant access to Internet connectivity.
(b) No remedy shall be available to Customer, and Customer waives and releases any claim, for inability to obtain Services during a planned outage, interruption or suspension under Section 9, or termination under Section 11.
(a) FotoKem shall have the right to terminate Services, with or without notice, if (i) Customer fails to pay FotoKem as and when due; (ii) Customer breaches these terms; (iii) a trustee, liquidator, receiver, or administrator is appointed over Customer or any part of Customer's assets, Customer becomes insolvent or unable or fails to pay its debts as they mature, makes an assignment or arrangement for benefit of creditors, bankruptcy insolvency or other debt relief proceedings are instituted by or against Customer, an application is made to a Court for relief from debt obligations or to restructure, Customer adopts a resolution or takes other action to effect its winding up or termination of its existence, or a Court of competent jurisdiction makes an order or takes any action to that effect; (iv) Customer defaults in the performance of or compliance with any agreement with FotoKem and (in case of a remediable breach) fails to remedy the breach within three (3) days of notice of breach being given in any form by FotoKem; (v) the Services can no longer be provided by FotoKem for any reason whatsoever; or (vi) Customer violates intellectual property rights of others, including but not limited to, infringing or misusing a Third Party's trademark, copyright, patent or trade secret.
(b) Customer may terminate the Services by providing FotoKem 30 days' written notice if FotoKem fails in a material way to provide the Service. Should there be no enforceable service term as stipulated by contract, Customer may terminate Services by providing FotoKem 30 days written notice.
12. CONSEQUENCES OF TERMINATION
(a) On termination for any reason Customer shall (i) immediately stop using the Services; (ii) ensure Customer does not mislead or represent to others that Customer has any contractual arrangement with FotoKem; (iii) stop use of any trademark or other intellectual property belonging to FotoKem (but this Section does not imply that these terms grant, or that Customer has, any right to use such trademark or other intellectual property); (iv) destroy or return to FotoKem (at FotoKem's option) all material containing FotoKem intellectual property; and (v) return to FotoKem all software, hardware and other equipment which FotoKem may have provided to Customer for purposes of using the Services.
13. PROPERTY RIGHTS
(a) Customer shall not violate and shall cause its employees to not violate intellectual property rights of any person or entity, including, but not limited to, any trademark, patent, copyright or trade secret. Customer shall monitor employees' use of the Services sufficiently to comply with the foregoing obligation. Customer shall not use the Services or FotoKem's servers to access, bypass, download, stream, share, or do any other act in violation of rights of Third Parties. Customer shall not seek to or actually circumvent FotoKem's security procedures and shall abide by all requirements imposed by FotoKem.
(b) All legal and beneficial rights in all FotoKem Equipment and software FotoKem provides to Customer for use of the Services shall remain at all times the property of FotoKem or FotoKem's vendor.
(c) Should FotoKem provide proprietary software applications to Customer for the purpose of accessing Services, FotoKem, to the extent of its ability to do so, shall grant Customer a non-exclusive non-transferable license to use the software during the term, for the purpose of using the Services, and no other purpose. Customer shall not reproduce the software for any purpose, including back-up, without expressed written permission from FotoKem. Customer shall not modify, adapt, translate, reverse engineer, decompile or disassemble the software or create any derivative work based thereon or merge or include the software with or in any other software.
(d) Copyrights in all documents, drawings, designs and embodiments of information, including if applicable any access codes supplied by FotoKem to Customer shall remain vested in FotoKem or the copyright owner who provided these to FotoKem. Customer shall not copy, disclose or use these other than for the purpose for which they were supplied, without FotoKem's prior written consent.
(e) FotoKem shall have the exclusive right to commence, defend, conduct and settle all proceedings involving infringement or alleged infringement of FotoKem's Intellectual Property Rights or relating to the validity thereof.
(f) Customer shall notify FotoKem immediately in writing of any suspected infringement of FotoKem's Intellectual Property by Customer or any other person or entity. Customer shall give all reasonable assistance and documentation as FotoKem requests.
(g) Customer acknowledges that all Intellectual Property Rights are and shall remain (as between FotoKem and Customer) the property of FotoKem, its vendors, or others.
(h) Nothing in this Agreement shall act as an assignment by FotoKem to Customer of any copyright, patent, trademark, or other Intellectual Property Right belonging to FotoKem.
(i) Customer shall not use, whether in the course of business or otherwise, in relation to any goods, services, advertising or promotion, any registered or unregistered name, mark, design, logo or similar Intellectual Property Right of FotoKem, its vendors, or others. By way of illustration, no use may be made by Customer of the name FotoKem or any mark, logo or other Intellectual Property Rights without the expressed written permission of FotoKem. All Intellectual Property Rights and/or know-how generated or arising in the performance of or as a result of rendering the Services shall (to the extent not already vested in FotoKem) vest in and be the property solely of FotoKem.
14. LIMITATION OF LIABILITY
FOTOKEM SHALL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER FOR INTERRUPTION OR INABILITY OF CUSTOMER TO ACCESS THE SERVICES, OR LOSS OF CONNECTIVITY, INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR PRODUCTIVITY, OTHER THAN THE OBLIGATION TO USE REASONABLE EFFORTS IN SEEKING TO REESTABLISH THE CONNECTION. FOTOKEM SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR EQUIPMENT FAILURE, WHETHER SUPPLIED BY FOTOKEM OR CUSTOMER. FOTOKEM MAKES NO WARRANTY, EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES AS TO QUALITY, LEVEL, AMOUNT, FREEDOM FROM OR OTHER ASPECT OF: INTERRUPTION, CONNECTIVITY, DELIVERY, CONTINUITY, ERROR, DELAY, QUALITY, FITNESS FOR PURPOSE, SUITABILITY OR PERFORMANCE TO BE PROVIDED, ACCURACY OR CONTENT OF INFORMATION PASSING THROUGH ANY NETWORK, UNLESS EXPRESSLY STATED HEREIN. FOTOKEM SHALL NOT BE LIABLE TO CUSTOMER IN CONTRACT, TORT OR OTHERWISE, INCLUDING LIABILITY FOR NEGLIGENCE, OR FOR LOSS OF REVENUE, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, OR PROFITS, OR ANY INDIRECT, ECONOMIC OR CONSEQUENTIAL LOSS HOWSOEVER ARISING.
15. INDEMNITY AND UNDERTAKING
Customer shall indemnify, defend and hold harmless FotoKem from and against any and all liabilities, claims, costs and demands whatsoever (also including attorney's fees, costs, damages, fines, judgments and expenses), arising from claims by any Third Party (regardless of cause of action and whether suffered directly or indirectly by FotoKem or others) in connection with or relating to the use of the Services by Customer or breach of any term hereof by Customer.
16. LIQUIDATED DAMAGES
Customer acknowledges that for each violation of a Third Party's intellectual property rights, FotoKem will have damages consisting of but not limited to costs to relay information concerning the claim and take measures to address the claim, and loss of reputation and business. Customer shall, in addition to performing the indemnity obligations above, pay FotoKem (at FotoKem's discretion), as liquidated damages, the sum of $5,000, on account of such damages. Customer acknowledges this liquidated damages provision represents reasonable compensation to FotoKem for the damages due to such breach. Nothing in this section 16 shall limit FotoKem's right to obtain injunctive and/or other provisional relief against Customer for breach of these terms.
17. FORCE MAJEURE
(a) A party shall not be liable to the other for any loss or damage which may be suffered by the other, due to cause beyond the party's reasonable control including without limitation act of God, inclement weather, failure or shortage of power, flood, earthquake, lightning or fire, strike, lock-out, trade dispute or labor disturbance, act or omission of government or other competent authority, other telecommunications operator, war, military operation, acts of terrorism, riot, accident, delay or failure in manufacture, production or supply by third parties of equipment and/or services, or technical problems which make it impracticable to perform these terms.
(b) If the delay caused by an event referred to in section 17(a) lasts more than 30 days, either party shall have the right, but not the obligation, to terminate the Services by giving written notice to the other party.
(a) Notices: Notices hereunder shall be in writing and be given by mail or email to the other party's address or other address as may be designated in writing from time to time by the other party. Notice sent by mail shall be deemed to be delivered at the earlier of actual receipt or three days after dispatch. Notice sent by email shall be conspicuously labeled to call special attention to it and deemed to be delivered the business day after successful transmission.
(b) Assignment: Customer shall not assign or delegate or purport to assign or delegate any rights or obligations hereunder, without FotoKem's prior written consent. FotoKem shall have the right to assign, subcontract or otherwise delegate any or all its rights and obligations to any person or entity.
(c) Modifications: FotoKem shall have the right by written notice to Customer to modify these terms at any time to comply with regulations or other requirement imposed on FotoKem by vendors, government regulations, or other authority.
(d) Delay: Delay or failure by a party to exercise a right or remedy shall be deemed not to waive the exercise of that right or remedy on another occasion, nor shall a single or partial exercise of rights or remedies, preclude other or future exercise of them. Remedies hereunder are cumulative and not exclusive of remedies provided by law. Any waiver shall be limited to the specific breach waived.
(e) Severability: If any provision of these terms shall be found by a court or other authority having jurisdiction to be invalid or unenforceable, that determination shall not affect the other provisions of these terms. All provisions not affected by the invalidity or unenforceability shall remain in full force and effect.
(f) Non-Exclusivity: These terms shall not prejudice any other arrangements or agreements FotoKem may have with any person or entity for telecommunications, internet or similar services. Nothing in these terms shall restrict FotoKem from providing identical or similar Services to any other person or entity, on any terms.
(g) Entire Agreement: Unless otherwise indicated, these terms represent the entire understanding between the parties relating to their subject matter and supersede all agreements and representations between the parties, whether oral or written, on its subject.
(h) Headings: Headings are for convenience only and shall not be used in the construction or interpretation of these terms.
(i) Construction: In these terms, where the context makes appropriate, the singular includes the plural and vice versa. These terms are not intended to benefit or confer any right or benefit on any Third Party.
(j) Relationship: The parties are independent and unrelated persons. Nothing herein shall be construed to create a partnership, joint venture, agency or similar arrangement or relationship. Neither party shall have power or authority to make any commitment for or bind the other party to any obligation. Neither party shall make any representation or warranty, express or implied, on behalf of the other party.
(k) Confidentiality: Customer acknowledges it may receive Confidential Information belonging to FotoKem which may include, but not be limited to, technical, contractual, business and financial information. Customer shall hold such information in strict confidence and take all reasonable steps to maintain its confidentiality. These restrictions shall not apply to the extent information or material is obtained by Customer from third parties without violation of confidentiality or non-disclosure obligation; publicly made available other than through Customer's fault; or disclosed to the public generally with prior written approval of FotoKem. Customer shall return all Confidential Information in its possession to FotoKem within one week of FotoKem's written request.
(l) Survival: Sections 10, 12, 13, 14, 15, 16, 17, 18 and all other provisions which, by nature survive expiration or termination, shall continue in effect regardless of termination or expiration of these terms, until performed or until by nature, such provisions have expired.
(m) Governing Law: These terms shall be interpreted according to the internal laws of the State of California, and all applicable federal laws, rules and regulations, without regard for states rules on conflicts of laws. In a dispute between the parties, exclusive jurisdiction and venue shall be in the United States District Court for the Central District of California or the Superior Court of the State of California for the County of Los Angeles. Customer consents to this jurisdiction and venue.
(n) Schedules: Any schedules attached to these terms are incorporated herein and shall be deemed an integral part thereof Schedule 1 - The Services.