is an agreement between you and K2G Computer Consulting (K2G) regarding your purchase and use
of K2G T1 line Internet access, web hosting, e-mail
services, and other related services (the "Service").
READ THESE TERMS AND CONDITIONS CAREFULLY.
1.0 The Service
K2G will provide you with the Service utilizing A T1
LINE K2G will connect your location to the K2G network
using a T1 Line leased by K2G from a local exchange
carrier. K2G will then provide IP connectivity
for you connect to the Internet.
The Service is intended for Diamante Tenants use and
is offered at the speed, price, and containing the features
as described in the process, under which you ordered
service from K2G (in either case, the "Enrollment").
On your behalf, K2G will order the telephone lines and
equipment required for the provision of the Service
from a local exchange carrier.
As a part of the Service installation process K2G will
provide you with certain hardware and software (the
"Equipment") that will allow you to access
the Service and which will support additional services
K2G may offer you in the future. You acknowledge and
understand that K2G retains full title and ownership
to the Equipment. You agree to facilitate upgrades of
the Equipment and to return the Equipment at your sole
expense to K2G upon the end of the Term, or Termination,
as defined in paragraph 3.0, whichever is earlier. If
you fail to return the equipment to K2G within the requisite
period, you agree to pay a $499 Equipment Fee, which
will be charged in accordance with Paragraph 4.0 below.
To receive the Service, you must also utilize a personal
computer meeting the following System Requirements:
- Microsoft Windows 95/98/
Intel Pentium or greater processor
16MB RAM, 20 MB free hard disk space (minimum)
CD ROM for software installation
USB*, or parallel port**
MS Internet Explorer
4.x/ Netscape Navigator 4.X or later
- Microsoft Windows 2000 PC
Intel Pentium II or greater processor
64MB RAM, 20 MB free hard disk space (minimum)
CD ROM for software installation
or USB port
MS Internet Explorer 4.x/ Netscape
Navigator 4.X or later
- Microsoft Windows NT PC
Pentium or greater processor
32MB RAM, 10MB Free hard disk space (minimum)
CD ROM for software installation
MS Internet Explorer 4.x/ Netscape Navigator
4.X or later
- Apple Macintosh
MacOS computer running system version
7.5.3 or later
MacTCP or Open Transport with
TCP/IP control panels and DHCP
MS Internet Explorer 4.x/ Netscape
Navigator 4.X or later
*USB requires Windows 98
** In some instances you may need to
temporarily suspend PC connection to the equipment in
order to use devices attached to printer passthrough
port. Dependent on type/make of device.
Wiring and Installation.
In some cases, new Service from K2G will require work
on your inside wiring or a diagnostic visit to your
premises by a technician. You acknowledge that the inability
of an installation technician to access your location
or other operational impediments may preclude or delay
delivery of the Service. You acknowledge that the use
of an installation technician may incur an hourly charge
or flat fee if a technician is required to resolve problems
with your inside wiring to complete the Service delivery.
You further acknowledge this charge may occur at the
discretion of the K2G installation representative, and
is your sole responsibility.
1.6 IP Addresses.
Any IP addresses, URLs, email addresses or user IDs,
assigned for use by you are owned by K2G, not you, and
are not portable by you to another ISP. You understand
that IP assignments are not guaranteed, and may be modified
as required by K2G and/or the American Registry for
Internet Numbers (ARIN).
This Agreement applies to all user IDs associated with
your account. You are responsible for the use of each
of such user IDs, whether used under any name or by
any person, and for ensuring full compliance with this
Agreement by all users of your user IDs, Service, or
account. You are responsible for maintaining the confidentiality
of your passwords. In the event of a breach of security,
you will be liable for any unauthorized use of the Service
until you notify the K2G Order Center at (623) 776-1600
3.0 Term and Termination
You agree to a term (the "Term") for this
Agreement which shall commence on the date the Service
is activated by K2G, or within 7 days after your line
has been provisioned, which ever is earlier (the "Activation
Date"). The Term shall automatically continue thereafter
on a month-to-month basis for a period of on year
The following are the only means by which this Agreement
may be terminated:
- a. Material Breach by K2G.
In the event K2G is in default
of this Agreement, you may terminate this Agreement
by giving K2G ten (10) days prior written notice
thereof; provided, however, that this Agreement
shall not terminate at the end of said ten (10)
days notice period if K2G has cured the breach of
which it has been notified prior to the expiration
of said ten (10) days.
- b. Material Breach by Customer.
In the event you are in default
of this Agreement (other than a breach by you of
paragraph 4.0) K2G may terminate this Agreement
by giving you ten (10) days prior notice thereof;
provided, however, that this Agreement shall not
terminate at the end of said ten (10) days notice
period if you have cured the breach. In the event
you are in default of the AUP, K2G may, at its sole
- i. Enforce and impose
the remedies described in this Agreement or its
Acceptable Use Policy; or
- ii. Immediately terminate
the Service and this Agreement.
- c. Termination for Convenience.
Either you or K2G
may terminate this Agreement at any time for convenience
upon thirty (30) day's prior written notice to the
other Party. 3.3 Surviving Paragraphs.Paragraphs 3.3,
6 and 7 of this Agreement, inclusive of subparagraphs
shall survive any termination of this Agreement.
4.0 Fees and Payment
You shall pay K2G all applicable monthly service fees
and any additional fees and charges incurred in connection
with the Service, as specified in your Enrollment. The
fees and charges include, but may not be limited to,
a one time set-up charge, a one time K2G installation
or cancellation charge, monthly connectivity charges,
customer premise equipment charges, charges for additional
agreed-upon services provided by K2G.
Monthly Charges for Service commence upon the Activation
Date, and will be billed to you each month thereafter.
If the charge is not honored and K2G does not otherwise
receive the full amount of your account balance within
30 days of the billing date, the lesser of an additional
1.5%, or the highest percentage allowed by law, of the
outstanding balance may be added to your bill as a late
charge each month and will be due and payable immediately.
K2G reserves the right to increase fees, surcharges,
monthly subscription fees or to institute new fees at
any time upon 30 days prior notice. In the event that
your Service is terminated or canceled, on-line time
remaining in the then-current month is not credited
to your account is not convertible to cash or other
form of credit. You understand and acknowledge that
you may not receive a bill in the mail for your Service.
Except where additional methods of payment are specifically
required or permitted under applicable law or regulation
or as otherwise agreed to by K2G from time to time,
you agree that you will provide a major credit or charge
card (i.e., MasterCard, Visa, American Express or Discover)
that K2G may charge for all Service fees or other amounts
payable under this Agreement. Additionally, you agree
that K2G may pre-charge your monthly Service fee to
the credit or charge card supplied by you during registration
or as provided to the ISP whose Service is being replaced
by K2G with your approval under the Enrollment. With
respect to such charges the following authorization
- I authorize automatic credit or charge card billing
by K2G . I agree that the charges described above
will be billed by K2G to the credit or charge card
that I have provided to K2G in my Enrollment, or otherwise
when I applied for the Service. I understand that
K2G 's monthly billing cycle is based on the activation
date for my Service, with the fee for the Service
each month charged and due at the beginning of the
billing cycle. I understand that all charges are considered
valid unless disputed in writing within fifteen (15)
days of the date I receive my credit or charge card
bill. I agree that K2G will not be responsible for
any expenses that I may incur resulting from overdrawing
my bank account or exceeding my credit limit as a
result of an automatic charge made under this Agreement.
Credit card payment is not required for residents of
Diamante. If you think a charge is incorrect or you
need more information, you should contact our billing
department. You must contact us within 60 days of receiving
the statement on which the error or problem appeared.
5.0 Acceptable Use Policy
5.1 Code of
You acknowledge that you have read and understand, and
agree to comply with, all applicable provisions of the
then current copy of K2G' Acceptable Use Policy, incorporated
herein by this reference, which can be found at: http://www.connectaz.com
and may be updated at K2G's sole discretion without
notice. K2G agrees to provide a "hard copy"
of said policy upon your written request.
You agree that K2G has the right to immediately suspend
or terminate the Service or your use of user IDs, email
addresses or URLs, in the event you violate the Acceptable
Use Policy. You expressly agree that K2G shall not be
liable to you for any action K2G takes to remove or
restrict access to obscene, indecent or offensive content
made available by you, nor for any action taken to restrict
access to material made available in violation of any
law, regulation or rights of a third party, including
but not limited to, rights under the copyright law and
prohibitions on libel, slander and invasion of privacy.
If K2G is informed of an alleged copyright or trademark
infringement involving your account, K2G will attempt
to notify you of the allegations and secure a response.
K2G may, in its sole discretion, remove or terminate
the account containing materials, which K2G believes
may create, constitute, or contribute to copyright or
6.1 No Warranties.
THE K2G SERVICE AND THE EQUIPMENT ARE PROVIDED ON AN
AS IS, AS AVAILABLE BASIS, SOLELY FOR YOUR Diamante-
USE AND K2G DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND, WHETHER, STATUTORY, EXPRESS OR IMPLIED,
REGARDING THE K2G SERVICE, ANY SERVICES PROVIDED IN
CONNECTION THEREWITH, OR THE EQUIPMENT INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT
OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES
ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE.
K2G EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY
THAT THE K2G SERVICE OR EQUIPMENT WILL BE ERROR FREE,
SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION
GIVEN BY K2G, ITS EMPLOYEES, AND LICENSORS OR THE LIKE
SHALL CREATE A WARRANTY; NOR SHALL CUSTOMER RELY ON
ANY SUCH INFORMATION OR ADVICE.
You acknowledge that temporary interruptions of the
Service may occur from time to time, and that delays
and disruptions on other computer networks beyond K2G's
control may negatively impact your use of the Service.
You acknowledge that Service is available at a higher
cost from various providers which is more-appropriately
designed for business uses, which may be subject to
less chance of disruption and which is therefore, in
most cases, more expensive.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL
K2G OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING
OR PROVIDING THE K2G SERVICE OR ANY SERVICES PROVIDED
IN CONNECTION THEREWITH, BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOSS OF REVENUES OR LOST PROFITS,
OR DAMAGES THAT RESULT FROM THE USE OF OR INABILITY
TO USE THE K2G SERVICE, DELAYS IN INSTALLATION, MISTAKES,
OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL
ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION,
FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED
ACCESS TO K2G'S RECORDS, PROGRAMS OR SERVICES, EVEN
IF K2G HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
Because some states do not allow the exclusion or limitation
of liability for consequential or incidental damages,
in such states, DOS's liability is limited to the greatest
extent permitted by law.
IN NO EVENT SHALL K2G'S LIABILITY TO CUSTOMER EXCEED
TWICE THE AGGREGATE AMOUNTS PAID BY YOU TO K2G FOR THE
K2G SERVICE DURING THE PREVIOUS TWELVE MONTHS.
7.1 Assignments and Resale.
You may not assign this Agreement without the prior
written consent of K2G, and any such attempted assignment
shall be null and void. You may not resell the K2G Service
or any portion thereof. K2G may freely assign this Agreement
without notice to you.
Upon written or electronic request of K2G, you agree
to defend, indemnify and hold harmless K2G, its officers,
directors, employees, agents and licensees, from any
claims, liabilities, losses, damages and expenses, including
reasonable attorneys fees, arising out of or relating
to your use of the K2G Service.
Law and Forum Selection
Interpretation and enforcement of this Agreement shall
be governed by the laws of the State of Arizona (excluding
its choice of law rules).
7.4 Force Majeure.
Neither party shall be liable in any amount for failure
to perform any obligation under this Agreement if such
failure is caused by the occurrence of any unforeseen
contingency beyond the reasonable control of such party
including without limitation fire, flood, war, strikes,
explosions or acts of God.
Agreement and Amendments
This Agreement, the Enrollment, and the Acceptable Use
Policy set forth the entire agreement of the parties
with respect to the Service, and supersede any and all
prior agreements of the parties with respect to such
subject matter. K2G may, in its sole discretion, change,
modify, add, or remove portions of this Agreement at
anytime. K2G will provide notice of such changes by
electronic or postal mail. Your continued use of the
Services following notice shall be deemed your acceptance
of any modification.
Any notices in connection with this Agreement will be
sent to you at the e-mail address for your account,
or the address supplied by you in the Enrollment.
© 2001 K2G , Inc. All rights