Kayenta Technologies Internet service ("Services") is an Internet access service. This Master Service Agreement ("Agreement") states the terms and conditions under which Kayenta Technologies LLC ("Kayenta Technologies") will provide Services to the customer ("Customer" or "you"). By using the Services, Customer agrees to be bound by the terms of this Agreement.
Kayenta Technologies will provide Services to you subject to the terms and conditions of this Agreement and any applicable tariffs.
You represent and warrant you are at least 18 years of age, appreciate and understand the words and terms of this agreement and verify and acknowledge that Services are being installed with your permission in your home, business, or designated location.
Kayenta Technologies may revise, modify or discontinue any or all aspects of Services, including but not limited to Services and Equipment prices, any applicable tariffs, and any terms and conditions in this Agreement.
You will install, operate, and maintain any hardware or software not provided by Kayenta Technologies. Kayenta Technologies is not responsible for the information transmitted or received on any hardware or software provided by you.
You will ensure that any hardware or software you provide is compatible with Services. If this hardware or software impairs your use of Services, you will continue to pay Kayenta Technologies for Services. If Kayenta Technologies notifies you that hardware or software provided by you impairs or is likely to impair Services, you agree to eliminate the impairment. Kayenta Technologies may suspend Services until the impairment is corrected. At your request, Kayenta Technologies may troubleshoot difficulties caused by hardware or software provided by you at Kayenta Technologies's then current standard list prices.
Kayenta Technologies is not liable if any changes in the Services cause any hardware or software provided by you to become obsolete, require alteration, or affect performance of the hardware or software.
To prepare for Services you will at your expense, prepare your site(s) to comply with Kayenta Technologies's installation and maintenance specifications, pay Kayenta Technologies any applicable charges to relocate any installed Services, provide Kayenta Technologies and its suppliers reasonable access to Premises to perform any required acts, and be responsible for cabling that connects equipment not provided by Kayenta Technologies to Services.
If you change your address, you will notify Kayenta Technologies of your new address before the move and you will remain liable for all of its obligations under this Agreement. You agree to pay the standard Kayenta Technologies transfer charges plus any additional payments required for installation of Equipment at Customer's new location.
Kayenta Technologies reserves the right to charge for on-site technical support.
Kayenta Technologies will manage its network in Kayenta Technologies's sole discretion. Customer will provide all reasonable information and authorizations required by Kayenta Technologies for the purpose of installing Services, performing network grooming, maintenance, upgrade and addressing emergencies. Customer will cooperate in good faith and follow through with any coordination efforts required in a timely manner.
The term of this agreement shall commence on the Service activation date and shall remain in effect through the Service Term of each Service Order issued hereunder.
Each Service Order is effective upon execution, and the Service Term of each Service order begins on the Acceptance Date of the applicable Service. Following expiration of the Service Term, the Service Order shall continue in effect on a month to month basis until terminated by either party with at least five (5) days advance written notice to the other party.
You agree to pay for Services and all other charges described in this Agreement, including the Service Order, and to comply with all of the terms and conditions of this Agreement. You will pay Kayenta Technologies's invoice(s) in U.S. currency by the invoice due date. You will pay any applicable sales, use, excise, and like taxes if applicable and as stated separately on each invoice.
If you fail to pay any amounts owing to Kayenta Technologies within 20 days, Kayenta Technologies will have the right to suspend your Services until payment is made.
If you fail to pay any amounts owing to Kayenta Technologies within 30 days, Kayenta Technologies will have the right to disconnect your Services. Upon disconnection, you agree to pay all amounts owing to Kayenta Technologies. A reconnect fee will apply for continuing Services after a disconnection.
Customer will be liable for payment of all fees regarding insufficient funds, bounced checks, credit card charge-back fees, or other bank fees relating to problems in payment processing up to the maximum applicable charge as allowed by law.
Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.
You agree that interest will accrue on all past-due amounts at the rate of 18% per annum (1.5% per month) until paid in full. In the event any amounts(s) is/are referred to a third party debt collection agency, you agree that in addition to any other amounts(s) allowed for by law, (such as interest, court costs, reasonable attorney's fees, etc.) You will also be responsible for a collection fee of up to 40% of the principal amount(s) owing as allowed by Utah Code Annotated, sec. 12-1-11. The terms of this paragraph shall apply to all amount(s) incurred by you or by any individual for whom you have legal responsibility whether such amount(s) are incurred today or after today.
You authorize Kayenta Technologies or its authorized contractors to install a customer premises unit, software, wiring and other equipment ("Equipment"), at the address you provide ("Premises").
To provide Services, Kayenta Technologies is required to complete the installation of various Equipment at your Premises. Standard Equipment includes but is not limited to the installation of an antenna and the routing of cable, as applicable by the path deemed acceptable by Kayenta Technologies or authorized contractor to your device. Any custom installation work that you request, including placing cable under carpet, through cabinets, through interior walls or inside molding, will require an additional charge that must be paid at the time the installation work is performed. Kayenta Technologies will not be liable for any alterations or damages to Premises that result from the installation or removal of Equipment, including but not limited to: any holes in walls, seals, vents, roof tiles, windows, carpet, gas lines, power cables, cable wiring, antenna mounting brackets, or leaks of any kind.
Kayenta Technologies will configure Customer's computer or router IP settings. You must provide and maintain the devices including computer(s) and router(s) necessary to receive Services, including a working Ethernet port.
Kayenta Technologies may assign to you on a temporary basis a Public or Private Internet Protocol Address from the address spaces assigned to Kayenta Technologies ("IP Address"). You acknowledge that the IP Address is the property of Kayenta Technologies, is assigned to you as a service by Kayenta Technologies, and is not portable. Kayenta Technologies reserves the right at its sole discretion to change the IP Address assignment at any time during the Term of this Agreement without prior notice and without liability. Kayenta Technologies will use reasonable efforts to avoid any disruption to you resulting from any renumbering requirement by notifying Customer via their primary email account before the change. You agree that the IP Address provided by Kayenta Technologies will be returned to Kayenta Technologies on the termination date of this Agreement.
Customer is responsible to provide equipment compatible with the Service and Kayenta Technologies's network and facilities. Customer will bear the cost of any addition equipment or protective apparatus (e.g. routers, surge protectors) reasonably required to be installed because of the use of Kayenta Technologies's network or facilities by Customer or Customer's authorized users ("End Users"). Any wiring required to extend a communications termination and/or demarcation at the Customer or End User premises is not the responsibility of Kayenta Technologies, and Kayenta Technologies is not responsible for the costs thereof.
You warrant that you own Premises to which Services will be provided, or you have obtained the valid consent of the owner for any necessary changes to Premises or with Premises wiring that arise out of the installation, maintenance, repair and removal of Equipment. In addition, Customer has reviewed any restrictive covenants or homeowners restrictions ("Restrictions") to confirm that Customer may place an antenna on Premises. If it is later determined that the installation of the Equipment violates any Restrictions or that Customer failed to obtain appropriate permission, Kayenta Technologies may terminate this Agreement and discontinue Services. Customer agrees to hold harmless Kayenta Technologies for any damages or losses caused by your (i) failure to comply with the Restrictions or (ii) failure to secure appropriate permission. Kayenta Technologies may in its discretion, require evidence that Customer has obtained appropriate permission.
If, within thirty days of Service Order, Kayenta Technologies determines that Customer's location is not serviceable under normal installation guidelines, Kayenta Technologies may terminated this Agreement.
If Kayenta Technologies is required to engage in construction to provide Customer's service and Customer cancels this Agreement prior to installation, Customer shall be liable for Kayenta Technologies's reasonable construction charges in addition to any early termination charges.
Kayenta Technologies retains ownership of all equipment installed on Premises including radio, interconnecting cable, antenna, and power supply unless explicitly stated in the Service Order as a sale of equipment.
Neither party will adjust, align or attempt to repair the other party's telecommunications equipment except as expressly authorized in advance in writing by the other party. Neither party's telecommunications equipment will be removed or relocated by the other party.
You grant to Kayenta Technologies or any appointed subcontractors an irrevocable license to enter into or onto your Premises during normal business hours, Monday through Saturday, in order to install, repair, replace or remove Equipment. This license will be effective whether or not you are present during the service call. This license will survive termination or cancellation of this Agreement and will run with the land and inure to the parties' successors and assigns.
Customer agrees that Customer will not sell, transfer, lease, assign, or otherwise encumber any equipment owned by Kayenta Technologies. Customer agrees to pay the full retail cost for the repair or replacement of any lost, stolen, damaged, or unreturned equipment, together with any costs incurred by Kayenta Technologies in obtaining or attempting to regain possession of the equipment.
Customer must notify Kayenta Technologies of damages to any equipment owned by Kayenta Technologies. Kayenta Technologies will not be responsible for the repair of equipment if notice is not made.
Kayenta Technologies will support all equipment up to Point of Termination including radio and/or Kayenta Technologies supplied router, interconnecting cable, antennas and power supply. Support for all other connecting equipment becomes the responsibility of the Customer unless otherwise stated in the customer Service Order. Point of Termination is where the Ethernet cable originates from the outside Demarcation point.
Support hours are limited to business hours unless otherwise specified in the customer Service Order.
Kayenta Technologies assumes no responsibility for the operation, maintenance or repairs of your existing wiring or internal network equipment unless specified on a Service Order.
Kayenta Technologies assumes no responsibility for the operation, maintenance or repairs of your computers, computer peripherals, video players, smart TVs, or other consumer electronic hardware.
Kayenta Technologies will not support file and print sharing or other local area network functionality unless otherwise stated on the customer Service Order.
Customer is solely responsible for notifying Kayenta Technologies of any problems, malfunctions, or quality degradation of the service. If notice is not made, and a trouble ticked is not opened, Kayenta Technologies has no responsibility to repair service.
7. Acceptable Use Policy
When you use Services for Internet access, you may not:
restrict or inhibit any other user from using the Internet;
post or transmit any unlawful, threatening, abusive, libelous, defamatory, vulgar, obscene, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions, constituting or encouraging, conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation U.S. export control laws and regulations;
post or transmit any information or software that contains a virus or other harmful component;
post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through Services for commercial purposes;
upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other materials, or other proprietary right, or derivative works without obtaining permission of the copyright owner or right holder;
upload, post, publish, reproduce, transmit or distribute in any way any component of the Services or derivative works, as Services are copyrighted as a collective work under U.S. copyright laws;
remove or alter copyright management information including, without limitation, name or identification information of the author or owner, copyright note or terms & conditions for use of a work;
avoid, bypass, remove, deactivate or circumvent by any means, any process or system such as copy protection systems that are intended to protect the rights of a copyright owner;
send unsolicited e-mail that causes complaints from the recipients of the unsolicited e-mail;
send large quantities of unwanted or unsolicited e-mail to individual e-mail accounts (also known as "spamming");
make any unauthorized attempt to gain access to any account or computer resource not belonging to that user (also known as "hacking");
operate a web server, file server, mail server, chat server, proxy server, game server or to run any other server applications without prior written consent by Kayenta Technologies;
obtain or attempt to obtain Services by any means or device with intent to avoid payment;
transmit computer viruses, worms, Trojan horses, or other harmful software programs;
knowingly engage in any activities that will cause a denial of Services (e.g., synchronized number sequence attacks) to any Kayenta Technologies customers or end-users;
use Kayenta Technologies's products and services to interfere with the use of the Kayenta Technologies network by other customers or authorized users;
violate the law or aid another in any unlawful act;
use excessive amounts of bandwidth, packets per second, or open connections, as determined in Kayenta Technologies's sole discretion;
resell or share in any way your Services or any other Kayenta Technologies service to any third parties without prior express written consent; or
any other activity added to Kayenta Technologies's acceptable use policy, found online at www.kayenta.net which is hereby incorporated by reference.
You agree that you will not permit or assist others to abuse or fraudulently use Services, including, but not limited to, unauthorized or attempted access, alteration, or destruction of another Kayenta Technologies customer's information, or using Services that cause interference with another customer's or authorized user's use of the Kayenta Technologies network. Illegal and unauthorized attachments to its facilities are costly to Kayenta Technologies and may create interference and a degradation of Services to other customers. Kayenta Technologies will be obligated to seek legal redress and assist in the criminal prosecution in matters involving illegal and unauthorized connections and attachments and injury to its wiring or facilities.
Except for information, products, or services clearly identified as being supplied by Kayenta Technologies, Kayenta Technologies does not operate or control any information, products or services on the Internet.
The Internet contains unedited materials that may be offensive or objectionable to you. You access these materials at your own risk. Kayenta Technologies has no control over and accepts no responsibility for these materials.
You may be held liable both under civil and criminal law for infringements of the intellectual property rights of others. You may be held liable for all the actual damages and profits, attorney's fees, costs, or the court may award statutory damages under the copyright act. Criminal liability can also include fines and imprisonment.
Kayenta Technologies may deny you access to all or part of the Services without notice if you engage in any conduct or activities that Kayenta Technologies in its sole discretion believes violates any of this Agreement's terms and conditions. If Kayenta Technologies denies you access to Services because of a violation, you will have no right (1) to access through Kayenta Technologies any materials stored on the Internet, or (2) to access third party services, merchandise or information on the Internet through Kayenta Technologies , and Kayenta Technologies will have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility to any consequences resulting from lack of notification.
Kayenta Technologies has no obligation to monitor Services. However, you agree that Kayenta Technologies has the right to monitor Services electronically as directed by law enforcement, and you consent to Kayenta Technologies's access, use and disclosure of any information as necessary to satisfy any law, regulation or other governmental request.
Kayenta Technologies reserves the right to refuse or to remove any information or materials, in whole or in part, that in its sole discretion are unacceptable, undesirable, or in violation of this Agreement.
Kayenta Technologies reserves the right to monitor the packetloss, latency, signal strength, uptime, utilization, temperature, and other metrics of network infrastructure in order to better maintain stability and performance of the network.
9. Money Back Guarantee
Kayenta Technologies will provide a 30-day money back guarantee on all Kayenta Technologies residential services. If within the first 30 days of completion of the Service Order, the Customer is not satisfied with the Kayenta Technologies service, Kayenta Technologies will refund monies paid to Kayenta Technologies for Services.
Kayenta Technologies cannot refund any payment made more than 30 days ago.
No provision in this agreement implied or contractual shall allow for a refund of monthly money paid to Kayenta Technologies on the basis of non-compliance of guarantees except for the 30-day money back guarantee.
Customer may terminate the Services at any time by contacting Kayenta Technologies. Upon termination, Customer agrees to pay any outstanding account balance and Customer will return any equipment to Kayenta Technologies. If customer does not return Equipment within thirty days of the date of termination of Customer's account, Kayenta Technologies will add a charge to Customer's account balance for the full retail value of the Equipment.
Kayenta Technologies may terminate or disconnect the Services at any time without prior notice if Kayenta Technologies believes in its sole discretion that Customer has: (i) failed to pay Customer's bill when due, or (ii) violated any provision of this Agreement.
If a Service is terminated either by Customer without cause, or by Kayenta Technologies for cause or Customer's failure to pay Customer's bill when due, Customer will pay Kayenta Technologies an amount equal to the following: (i) any unpaid amounts for Services provided through the date of termination, and (ii) a cancellation fee equal to 50% of the monthly recurring cost per Service per month remaining in the Service Term.
In the event that Customer's Services are terminated or cancelled, no refund, including any fees Customer paid to Kayenta Technologies, will be granted.
11. Limitation of Liability and Disclaimer of Warranties
Kayenta Technologies represents and warrants to Customer that it has the right to provide Customer the Service specified herein, and that it is an entity, duly organized, validly existing and in good standing under the laws of Utah, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms.
Customer agrees that Customer uses the Services and any software and equipment supplied by Kayenta Technologies at Customer's sole risk. The Services and Kayenta Technologies equipment are provided on an "as-is basis," without warranties of any kind, including without limitation any warranties of non-infringement, fitness for a particular purpose and merchantability. Kayenta Technologies does not warrant uninterrupted use of the Services. Kayenta Technologies does not warrant that the Services will be error-free, free of viruses or other harmful components. Kayenta Technologies does not warrant that any data or files Customer sends or receives via the Services will be free from unauthorized access by others or that the other users will be unable to gain access to Customer's computer.
Kayenta Technologies's liability and the exclusive remedy of customer for damages associated with the installation, provision, termination, maintenance, repair or restoration of services, will be solely limited to an amount no greater than the amounts paid by customer to Kayenta Technologies during the Service Term. In no event will either party be liable to the other party for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever, including but not limited to any lost profits, lost revenues, lost savings, or harm to business. Each party hereby releases the other party, its subsidiaries and affiliates, and their respective officers, directors, managers, employees, and agents from any such claim. The provisions of this section will survive the termination of the agreement, the services and any sales order(s) issued hereunder.
The warranties and remedies set forth in this Agreement constitute the only warranties and remedies with respect to this Agreement. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
12. Customer Warranties
The Customer represents and warrants that it is an entity, duly organized validly existing and in good standing under the laws of its origin, with all requisite power to enter in to and perform its obligations under this Agreement in accordance with its terms.
Customer represents and warrants that neither its equipment for facilities will pose a hazard to Kayenta Technologies Equipment or facilities or create a hazard to Kayenta Technologies personnel or customers or the public in general.
Customer represents and warrants that its use of the Service will comply and conform with all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement and it will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities.
Customer may not assign this Agreement without the prior written consent of Kayenta Technologies, which consent will not be unreasonably withheld. Any assignment or transfer of this Agreement by either party shall be subject to the other party's rights and obligations herein, and any assignee or transferee shall continue to perform such obligations to the other party and shall, correspondingly, be entitled to the benefits of this Agreement pursuant to the terms and conditions hereof.
If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
15. Force Majeure
In the event that either party's performance is delayed, prevented, obstructed, or inhibited because of any act of God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic, destruction or shutdown of facilities, shortage or curtailment, riot, insurrection, governmental acts or directives, any full or partial failure of any communications or computer network or any cause beyond such party's reasonable control, the party's performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such occurrence.
The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.
The failure of either party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder will not be construed as a waiver of such provision or any provisions herein, and the same will continue in full force. The various rights and remedies given to or reserved by either party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered a waiver of any continuing or subsequent breach of the same provision.
18. Entire Agreement
This agreement and the schedules referenced in this agreement constitute the entire agreement with respect to the Services. This Agreement supersedes and nullifies all prior understanding, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement.
This Agreement is not intended to give and does not give any rights or remedies to any person other than Customer and Kayenta Technologies.
This Agreement and all matters arising out of or related to this Agreement will be governed by the laws of the State of Utah, without regard to conflicts of law provisions.
Kayenta Technologies may change, amend, alter, or modify this Agreement at any time. Kayenta Technologies may notify Customer of any change either by posting that change on Kayenta Technologies's website (www.kayenta.net), by sending Customer an e-mail, or by U.S. mail. If Customer continues to use the Services after notice has been made of a change, Customer agrees to accept those changes.