READ THE TERMS OF THIS AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE COMPLETING THE NEW CUSTOMER ENROLLMENT PROCESS. BY COMPLETING THE NEW CUSTOMER ENROLLMENT FORM YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU ARE COMPLETING NEW CUSTOMER ENROLLMENT ELECTRONICALLY VIA THE WEB REGISTRATION PROCESS, YOU MUST INDICATE YOUR ACCEPTANCE OF DIGITAR’S TERMS, ON BEHALF OF AND AS AN AUTHORIZED AGENT OF THE CUSTOMER, BY ENTERING YOUR FULL LEGAL NAME AT THE END OF STEP 2 OF THE NEW CUSTOMER ENROLLMENT WEB REGISTRATION PROCESS.
IF YOU DO NOT AGREE TO ALL OF THE TERMS HEREIN, SELECT THE “CANCEL” (OR EQUIVALENT) BUTTON AT THE END OF STEP 2 OF THE NEW CUSTOMER ENROLLMENT WEB REGISTRATION PROCESS.
DigiTar Services Agreement
This DigiTar Services’ Agreement (“Agreement”) is made and entered into by and between DigiTar, Inc., (“DigiTar”), located at 3355 North Lake Harbor Lane Boise, ID 83703, and the Customer completing New Customer Enrollment Form (“Customer”) herein referenced and affiliated hereto.
WHEREAS, DigiTar has specific Solutions-as-a-Service (SaaS) network facilities available for its customers, to manage Cyber Communications content; and WHEREAS, Customer desires to utilize said SaaS network services; and WHEREAS, DigiTar has agreed to grant Customer use access to such SaaS network services, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises herein and other good and valuable consideration, the parties agree as follows:
A. DigiTar’s Duties & Obligations.
1. Service Provided. DigiTar shall provide Customer with “use access” for the minimum number of Customer users, committed and contracted for on the New Customer Enrollment Form herein referenced and affiliated hereto, or any additional users as may be added as a result of Customer’s user growth, to DigiTar’s SaaS network services (the “Service”). All use access to SaaS network services of DigiTar, by customer, must adhere to all policies and rules of DigiTar. This applies to the content of any information passing through or stored (temporarily or permanently) on such cyber security network facilities, or placed on such cyber security network facilities’ equipment. There is no guarantee of end-to-end bandwidth through the cyber security network facilities, the Internet or through other carriers’ networks.
2. Performance. Customer is entitled to the “Performance” commitment from DigiTar, for a minimum period of One (1) year or longer, as may be agreed to between DigiTar and the Customer pursuant to this Agreement, as set forth in the this DigiTar Cyber Security Services Agreement.
B. Customer’s Rights, Obligations, and Restrictions.
1. Use of Service. Customer may use DigiTar’s Service for lawful purposes only. Any transmission or re-transmission of material in violation of any Federal or State laws or regulations is expressly prohibited. This extends to and includes, but is not limited to, any copyrighted materials, content communications deemed to be abusive, threatening or obscene, or any content or communications prohibited by trade secrets.
2. Assignment. Customer may not sell, assign or transfer its’ Service without prior written consent of DigiTar. DigiTar may at any time sell, assign or transfer this Agreement with thirty (30) days prior written notice.
3. Credit worthiness of Customer. The provision of Service and/or products by DigiTar to Customer is subject to DigiTar’s continuing approval of Customer’s creditworthy status. Customer, at DigiTar’s request, must furnish all financial information necessary to determine such creditworthiness.
4. Rates. All rates for Service provided to Customer are as set forth on the applicable DigiTar Standard Services Price List, hereto referenced and incorporated as of the date of the New Customer Enrollment.
5. Payment. Customer is responsible for payment of all installation charges and one year’s Service Fee at the time Service is ordered for the minimum number of users contracted for on the New Customer Enrollment form attached hereto.  THESE CHARGES ARE NON-REFUNDABLE.  Annual billing will commence on the day Service is activated and will continue yearly, in advance, throughout the term of this Agreement. Payment is “Due Upon Receipt” of invoice.
If payment is not received within thirty (30) days of the invoice date, Customer is subject to a 10% late penalty fee. After payment is thirty (30) days past due, Customer’s Service is subject to interruption without notice. If Service is interrupted for non-payment, and DigiTar agrees to restoration, there will be a restoration fee, payable in advance, equal to 20% of the annual Service rate, but not less $25.00. No Service will be available to Customer until all charges are paid in full. The date of restoration of Service is not guaranteed. Accounts in default are subject to an interest charge of 1.5% per month on the outstanding balance. If state law of Customer does not allow an interest rate of 1.5% per month, the maximum allowable rate for that state will be applied. Customer agrees to pay all reasonable expenses, including but not limited to, attorney and collection agency fees incurred in the enforcement of this Agreement. Any payment returned to DigiTar for insufficient funds will be subject to a $50.00 penalty fee. Customer must deliver guaranteed funds, including the $50.00 penalty fee and any applicable interest starting from the invoice due date, to DigiTar, within five (5) calendar days of notification by DigiTar of notice of returned payment for insufficient funds. If payment is not received within five (5) calendar days, Customer will be subject to interruption of Service, as stated herein. A payment is considered received when it arrives at any DigiTar business office. Any payment not received at such location within the required time will be considered overdue.
6. Term and Termination of Agreement. Except for the initial Two (2) weeks Trial period established from the date of the New Customer Enrollment Form, during which time the Customer can elect to cancel the Services contracted for herein at no charge, the minimum term of this Agreement is One (1) Year or in multiple year increments as agreed to by DigiTar & Customer. Rates may vary depending on the actual number of users, services duration and term prescribed in the New Customer Enrollment Form herein referenced and affiliated with this Agreement. A long-term Agreement is considered to be a term greater than one (1) year.
After the term of this Agreement has expired, beginning on the date set forth in the New Customer Enrollment Form, the Agreement shall automatically renew for a time period of the same length as was specified on the New Customer Enrollment form attached here to. Either party may terminate the Agreement at its expiration by providing written notice thirty (30) days prior to the expiration date. In the case of early termination of any Agreement, Customer shall pay a lump sum equal to the remaining balance due for the remainder period of the agreement. Only a written request to terminate Service, subject to approval at DigiTar’s sole option, relieves Customer from the obligation to pay, all charges due, at the conclusion of the thirty (30) days.
In the event of termination of this Agreement by Customer, DigiTar may:
a) Consider all amounts owed to it hereunder to be immediately due and payable;
b) Deny Customer further access to DigiTar’ Services provided hereunder without any liability to DigiTar; or
c) Enter Customer’s premises and repossess any equipment or software that has not been paid for. Customer shall provide DigiTar free access to this equipment.
7. Data. Customer understands and agrees that the Internet is a compilation of on-line computer systems and databases operated by distinct entities having no business or legal relationship to DigiTar. DigiTar has no input whatsoever as to the content of Internet data accessed via the Service. Customer is solely responsible for any value or reliance it places on information obtained via the Internet or the Service. Information derived as a result of this Agreement is provided “as is” and at Customer’s own risk.
8. Compliance and Indemnification. Subscriber agrees to use the Service in compliance with all applicable laws and regulations and to upload and/or download files, if at all, only with the consent of the copyright or patent owner. Customer shall indemnify, defend and hold harmless DigiTar and its officers, directors, affiliates, agents, employees and assigns from and against all claims, actions, damages, losses, penalties, and expenses, including reasonable attorneys’ fees and disbursements, arising out of or resulting from a breach of this Agreement or any act or omission of Customer in connection with the use of the Service provided hereunder, which causes damage to Customer or any other party.
1. Limitation of Liability. IN NO EVENT SHALL DIGITAR BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICE PROVIDED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF DIGITAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, DIGITAR WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SAID SERVICE. DIGITAR’S MAXIMUM LIABILITY/RESTITUTION, WITHOUT LIMITATION, UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, SHALL BE LIMITED AND SHALL NOT EXCEED THE LAST ONE MONTH AMOUNT PAID BY CUSTOMER DURING THE AGREEMENT PERIOD WITH DIGITAR UNDER SAID AGREEMENT. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT DIGITAR HAS NOT MADE ANY GUARANTEES OR PROMISES WITH REGARD TO THE EXACT DATE OF THE COMPLETE INSTALLATION AND OPERATIONAL STATUS OF CUSTOMER. CUSTOMER SHOULD NOT TERMINATE ANY OTHER NETWORK SECURITY OR ALTERNATIVE SERVICE CURRENTLY IN USE PRIOR TO BEING NOTIFIED BY DIGITAR THAT INSTALLATION IS COMPLETE.
2. Force Majeure. DigiTar shall not be liable for any delay in performance of the Service hereunder, directly or indirectly caused by or resulting from acts of God, local phone company and other third party telecommunications providers, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties which are beyond the control and without fault or negligence of DigiTar.
3. Modification. This Agreement shall not be modified, except by a writing duly signed by both parties hereto.
4. Governing Law. This Agreement shall be adjudicated in, governed by, and construed in accordance with the laws of the State of Idaho, without regard to conflict of laws.
5. Entire Agreement. This Agreement and the documents referenced as affiliated herein and incorporated herein by reference, shall constitute the entire agreement of the parties and shall supersede any other terms and conditions proposed by or representations made by the parties.
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