All provisions of KOS's Service Agreement ("Agreement") apply to the Customer's Principal Account and Associate Accounts billed to the Principal Account. The benefits of, or rights conferred by this agreement are nontransferable. Use of KOS's accounts is expressly limited to the individual or business whose name appears on the account and dependents of the account holder living at the same address. If Customer is less than 18 years of age, Agreement must be signed by a parent or legal guardian, who is responsible for all charges related to use of Customer's account(s). KOS reserves to right to change without notice the Company's service, including, but not limited to, access procedures, hours of operation, menu structures, commands, documentation, vendors and services offered.
2. Data and Proprietary Rights in Data
Customer acknowledges that KOS provides certain Data Services to Customer ("Services") and that (i) the Services provided by KOS hereunder contain trade secrets belonging to KOS; (ii) the Services provided by KOS hereunder are proprietary to KOS and Customer shall not disassemble, decompile, or otherwise reverse engineer any product delivered to Customer by KOS or otherwise attempt to learn the source code, structure, algorithms, or ideas underlying the products; (iii) Customer agrees not to provide, lease, lend, use or otherwise allow others to use the Services to or for the benefit of third parties and (iv) Customer will not modify, incorporate into or with other software or create a derivative work of any part of the Services.
3. Terms and Credit
Customer agrees to pay KOS all charges relating to the use of Customer's account(s) according to rates and prices stated on invoices at the time of commencement in Canadian Dollars. KOS reserves the right to make a reasonable change in monthly service pricing to any existing contract for Services, due to an increase or decrease in costs of business, at any time. KOS will notify the customer in writing no less than 30 days in advance of the billing changes.
Invoices are sent on the 1st, 5th, 15th or 25th day of each month, depending on the billing group you belong to. Payment is due by the date indicated on the invoice. Payments more than 15 days late will be subject to a charge of one and one-half percent (3%) per month or the maximum rate of interest allowed by law, whichever is less. In addition, a late charge of seven dollars (CA$7.00) will be assessed. Returned checks will result in a twenty five dollar (CA$25.00) fee to be charged to the Customer. Returned receipts from a debit account will result in twenty five dollars (CA$25.00) charged to the Customer. Accounts unpaid 60 days after date of invoice may have their service interrupted. Such interruption does not relieve Customer from the obligation to pay the full amount due.
In addition to any price specified herein, Customer shall be responsible for the gross amount of any present or future federal, provincial, municipal or other government sales, use, excise, value added or other similar taxes applicable to the price, sales or delivery of any Services furnished here under or to their use by Customer.
5. Acceptable and Lawful Use
Any material published by Customer in connection with the use of services provided by KOS must not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything threatening, obscene or libelous. Customer must abide by the Acceptable Use Policy (Appendix A) of KOS. Any violation of the Acceptable Use Policy may result in the suspension or cancellation of services provided to Customer by KOS without notice.
No information contained in any transmission or otherwise exchanged between Customer and KOS shall be considered confidential except to the extent provided by written agreement between the parties. Customer shall be responsible for creating back-up copies of any information it delivers or receives from KOS. KOS is not responsible for Customer's personal files residing on KOS's equipment. Customer shall properly use those security procedures that are reasonably sufficient to ensure that all transmissions of information are authorized and to protect its business records and data from improper access.
The service may not be used to breach the security of another user or to attempt to gain acceses to any other person's computer, software or data, without the prior consent and knowledge of that person. The service may also not be used in any attempt to circumvent the user authentication or security of any host, network, or account. This includes but is not limited to accessing data not intended for you, logging into or making use of a server or account that you are not expressly authorized to access, or probing the security of other networks.
7. Limited Warranty
The services are provided to Customer on an "as is, as available" basis and KOS makes no other warranties, statutory, express or implied, with respect to products or services supplied under this Agreement and disclaims all other warranties, including the warranties of merchantability, fitness for particular purpose and noninfringement. This provision states Customer's exclusive and sole remedy for breach of warranty and the entire extent of KOS's liability for defective products.
8. Limitation on KOS's Liability
In no event shall KOS be liable under any contract, torts, negligence, strict liability or other legal theory for (a) damages in excess of the purchase price or (b) any special, consequential, incidental or indirect damages (including without limitation loss of profit, loss of savings, loss of or damage to data, loss of goodwill, computer failure or malfunction or any and all other commercial damages or losses) whether or not KOS has been advised of the possibility of such loss and however caused. This exclusion includes any liability that may arise out of third-party claims against Customer. In no event will KOS be liable for costs of procurement of substitute goods by Customer. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
In addition, KOS shall not be liable to Customer for any incidental, consequential, indirect or special damages arising or resulting from any delay, omission or error in the electronic transmission or receipt of any order or contract pursuant to this agreement. Without limiting the obligations of Customer under this agreement, KOS shall not be liable for any failure to perform its obligations where such failure results from any cause beyond KOS's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference) that prevents such party from transmitting or receiving orders or contracts.
9. Cancellation and Termination
No cancellation of this agreement by Customer for default shall be effective unless and until KOS shall have failed to correct such alleged default within ninety (90) days after receipt by KOS of a written notice specifying such default. In the event of Customer's default in payment of the products or services purchased hereunder, Customer shall be responsible for all reasonable costs and expenses incurred by KOS in collection of any sums owing by Customer (including reasonable attorney's fees), and KOS may decline to provide Services to Customer without in any way affecting its rights under this contract. If, despite any such breach by Customer, KOS elects to continue to provide Services, such provision of Services shall not constitute a waiver of any breach by Customer or in any way affect KOS's legal remedies arising from such breach. Should Customer elect to cancel this agreement, Customer shall be liable to KOS for reasonable cancellation charges. If Customer becomes bankrupt or insolvent, or files or has filed against it any petition in bankruptcy, or makes an arrangement for the benefit of its creditors, or suffers a receiver or similar party to be appointed, KOS shall be entitled to cancel this contract or any order then outstanding without judicial intervention or declaration of default of Customer and without prejudice to any right or remedy which shall have accrued or shall thereafter accrue to KOS.
Customer shall be responsible for honouring the full length of any long-term contract entered unto. Customer agrees to pay any and all fees remaining in any given contract upon early cancellation, or if, having paid in advance, agrees that there shall be no refund for unused services for the remainder of the contract. KOS may provide a refund should KOS be unable to further provide the service contracted, or for another reason at the sole discretion of KOS.
10. Entire Agreement
It is intended that this agreement, in the absence of a separately negotiated contract, shall be the final expression of the entire agreement between the parties hereto with respect to the subject matter hereof and shall be a complete and exclusive statement thereof, superseding all prior or written or electronic agreements, orders, understandings, stipulations or negotiations with respect hereto. The terms and conditions hereof cannot be varied, altered, modified or abandoned in whole or in part, except by an agreement in writing signed by parties hereto subsequent to the date hereof, and in any event, acceptance by Customer of any Services provided by KOS shall constitute unqualified acceptance of KOS's terms and conditions of sale as herein set forth. No employee of KOS has authority to waive verbally or otherwise, any term or condition hereof except by a written document signed by an executive officer of KOS.
11. Customer's Purchase Order
KOS will not be bound by any terms of Customer's order that are inconsistent with the terms of this agreement. All orders are subject to acceptance by KOS. No form of acceptance except KOS's written acknowledgement mailed to Customer or KOS's commencement of performance shall constitute a valid acceptance of a Customer's Order. Any such acceptance is expressly conditioned on assent to the terms hereof and the exclusion of all other terms; the Customer shall be deemed to have assented to the terms hereof, whether or not previously received, upon accepting delivery of anything shipped by KOS or by use of any service privided by KOS. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms hereof.
12. Governing Law: Jurisdiction
This agreement shall be governed by and enforced in accordance with Ontario law as applied to contracts entered into in Ontario by Ontario residents to be performed entirely within the Province of Ontario, without reference to its conflict of law principles. The parties agree that the exclusive jurisdiction and venue of any action with respect to this contract shall be the Provincial courts of Kingston, Ontario (or, if there is federal jurisdiction, the Canadian District Court for the SouthEastern Region of Ontario).
13. Validity and Enforceability
The terms and conditions hereof are binding on the parties whether transmitted between the parties in paper format or electronically. In the case of an electronic transmission the parties agree not to contest the validity or enforceability of these terms and conditions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby. If introduced as evidence in paper format in any judicial, arbitration, mediation or administration proceeding, both parties agree that the terms and conditions hereof will be admissible against either party to the same extent and with the same force as other documents originated and maintained in paper format.
Any notices required or permitted to be given shall be in writing, sent via the Canadian Postal Service or otherwise delivered personally to such addresses as may be specified from time to time and such notice shall be deemed to be given when sent. 30 days written notice is required to terminate an account.
Stenographic and clerical errors are subject to correction.
In the event that any provision of these terms and conditions shall be declared void and unenforceable by a court of competent jurisdiction, the remaining provisions herein shall remain in full force and effect.
This contract shall bind and inure to the benefit of KOS's successors and assigns, including without limitation, any entity into which KOS shall merge or consolidate. Customer may not assign any of Customer's rights or obligations under this contract without KOS 's prior written consent. Any attempted assignment, delegation, or transfer by Customer without such consent of KOS shall be void.
18. Computer Virus
Customer agrees to hold KOS harmless for any and all damage caused to Customer in any manner whatsoever, if such damage is a result of a computer virus or the like contracted by Customer's computer system or network during the time Customer is connected to KOS's database, KOS's network, KOS's systems or occurs during the electronic transmission of any information between the parties.
19. Right to Damages
Customer acknowledges and agrees that KOS has a right to claim economic damages from its subscribers if there has been a violation of the Acceptable Use Policy and has caused KOS significant harm in any way.