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| This JapanNet Internet Dial Up Access Services Agreement (hereinafter referred to as the "Agreement") is entered into by and between the Party(s) identified below (the "Customer") and KDDI AMERICA, INC. (the "Company"). JapanNet (a registered service mark) is an Internet Access Service, provided by KDDI America, Inc. (the "Company"), subject to the Customer's compliance with the terms and conditions set forth below, including all attachments and/or appendices referenced herein. |
| 1. |
Services: The Company shall provide, subject to the terms and conditions stated herein, and the Customer shall accept and pay for all the Services, subscribed to by the Customer in any and all "Service Applications" (hereinafter referred to as the "Services"), hereinafter submitted by the Customer. The Services shall be provided pursuant to this Agreement and the rates, terms, and conditions described in the respective Service Application. This Agreement incorporates by reference the terms of such Service Applications. Customer shall be aware that, if applicable, portions of the Services provided outside of the U.S. may be subject to additional regulations and/or taxes imposed by the foreign countries in which the Services are provided. |
| 2. |
On line Service Applications and Rates:
Only the JapanNet "Type B" service, detailed below, can be subscribed to via this website. All JapanNet services description and rates are provided below, in Table 1. Table1 |
| Service Type |
Type B |
Type C |
Type D |
| Set Up Charge |
$10.00 |
$30.00 |
$30.00 |
| Monthly Charge |
$19.95 ($14.95) (*1) |
$30.00 |
$55.00 |
| Access Method |
Analog/ISDN (1B/64kbps) |
Analog/ISDN (1B/64kbps) |
Analog/ISDN (2B/128kbps) |
| Connection Usage |
Unlimited |
Unlimited |
Unlimited |
| Payment |
Credit Card Only |
Credit Card / Check |
Credit Card / Check |
| Invoice |
No |
Yes |
Yes |
| Additional E-mail Account |
Up to 5
(monthly $3.00 per account) |
Unlimited
(monthly $10.00 per account) |
Unlimited
(monthly $10.00 per account) |
| Personal Domain Name |
N / A |
Installation: $100
Charge: $100
Termination: $100 |
Installation: $100
Charge: $100
Termination: $100 |
| Mobile (*2) |
$4.00 per 30 minutes |
$4.00 per 30 minutes |
$4.00 per 30 minutes |
| Roaming (*3) |
$4.00 per 30 minutes |
$4.00 per 30 minutes |
$4.00 per 30 minutes |
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*1 Type B monthly charge for Customers using KDDI America long distance telephone service, "ICHIBAN TALK", is $14.95, instead of $19.95.
*2 "Mobile Access" is an internet access service, which utilizes a toll free phone number, this service is only available to domestic U.S. applicants.
*3 "Global Roaming Service" is an internet access service, which utilizes certain third party's services, as specified on www.kdd.net.
*4 All charges for Telephone and/or ISDN services, to access JapanNet services, shall be imposed by the respective telephone service provider. Customer is responsible for all such charges and for determining whether the access point's phone number is within Customer's local calling area, and for any long distance charges which customer may incur while connecting to JapanNet services.
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| 3. |
Term: Unless specified otherwise in the Service Application, the term of this Agreement shall be month to month, commencing on the date of installation of the Services and terminating at the end of the calendar month during which Customer places its termination order or whenever terminated by Company, pursuant to the terms and conditions noted herein. |
| 4. |
Charges & Payments: The total charges payable by Customer, forms of payment (check or credit card and frequency of those payments, to the Company for the Services, shall be set forth in the Service Application. (JapanNet is invoiced monthly. Payment is due thirty (30) days after date of invoice.) The rates set forth in the Service Applications do not include the following: charges for KDDI America, Inc. services other than those set forth in the Service Applications; taxes, tax related or tax-like surcharges; and other related charges. Customer agrees to pay all such additional charges, to the extent applicable, in addition to the charges set forth in the Service Applications. The additional charges, if any, for any necessary terminal equipment at each termination point of the Services will be set forth in the Service Application. Charges for Telephone or ISDN service to access the Services, shall be imposed by its respective provider. Upon receipt of the monthly invoice, the Customer shall pay the amount billed, by the date specified on the invoice (the "Due Date"). Please note that late payment charges are in effect, at the maximum rate allowed by law. If any check/payment is returned to the Company unpaid, the Customer shall be considered immediately in default and subject to a returned check charge of $25.00. Accounts which remain unpaid for thirty (30) days, after date of invoice, may have their Services suspended and/or terminated. Such interruptions do not relieve the Customer from the obligation to pay the monthly charge and/or any other charges then due and owing. In addition, accounts in default are subject to an administrative late payment charge of $50 and an interest rate of 1.5% per month on the outstanding balance or the maximum allowable by law in the Customer's State. Furthermore, if the Customer defaults, the Customer hereby agrees to pay for all of Company's reasonable expense, incurred by the Company in enforcing its rights under this Agreement, including reasonable attorney's fees. The Customer may be required by the Company to provide its credit card number upon submitting its Service Application, and the Customer hereby unconditionally authorizes the Company to charge said credit card in case where the Customer becomes in default as set forth herein, regardless of payment method selected by the Customer. |
| 5. |
Credit for Outage: The Company will not provide any credit to the Customer for any outage. |
| 6. |
Termination by the Company: The Company may terminate or suspend any Services provided under this Agreement and/or any Service Application or terminate this Agreement (or any applicable portion(s) thereof), without liability, effective upon 30 days prior notice to Customer for any of the following reasons:
1) Customer fails to pay any amount due and owing to the Company by the due date.
2) Customer fails to perform a material obligation (other than payment of amounts due or other failures to perform specified herein) under this Agreement, which failure is not remedied within thirty (30) days of the notice to Customer contact point provided on the Service Application.
3) Customer fails to comply with and/or violates any local, state, FCC, national, or international regulation, law, or tariff applicable to use of the Services.
4) Company determines in its sole discretion that continued provision of such facility, equipment, or Services would contravene any local, state, national, or international regulation, law, or tariff. Company determines in its sole discretion that discontinuance or suspension of service is necessary to prevent or protect against fraud or otherwise protect its personnel, agents, facilities, or services.
5) Company determines in its sole discretion that continued provision of such facility, equipment, or if any third-party subcontractor or vendor to Company for any reason fails to provide a facility, component of equipment, or service in connection with any Services provided hereunder. |
| 7. |
Limitation of Liability: Notwithstanding anything contained herein to the contrary, neither party will be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages, including, but not limited to, lost profits, however arising, even if it has been advised of the possibility of such damages. Each party's aggregate liability for damages under this Agreement (whether in contract, tort or otherwise) shall in no event exceed all fees paid by Customer under this Agreement. |
| 8. |
Infringements, Warranties & Regulatory: The Customer recognizes that Company exercises no control whatsoever over the content of the information passing through the JapanNet network. The Company makes no warranties of any kind, whether expressed or implied, for the Services it is providing. The Company also disclaims any warranty of merchantability or fitness for a particular purpose and/or any other warranty, whether statutory and/or contractual in nature. The Company will not be responsible for any damage the Customer suffers. This includes loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions caused by its own negligence or the Customer's errors or omissions. Use of any information obtained via JapanNet is at the Customer's own risk. The Company specifically denies any responsibility for the accuracy or quality of information obtained through its Services. JapanNet may only be used for lawful purpose. Use of JapanNet for lawful commercial purposes is both permitted and encouraged. Transmission of any material in violation of any federal, state or any local rules and regulations is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected as trade secret. The Customer agrees to indemnify and hold harmless the Company from any claims resulting from the Customer's use of JapanNet which damages the Company and/or any other party. If Customer accesses any other networks connected to JapanNet, then Customer must comply with the rules appropriate for those other networks. Connectivity is provided for the Customer's organization only. Resale or use of the connection by another organization is prohibited. |
| 9. |
Force Majeure: No failure or omission by either Party to carry out or observe any of the terms and conditions of this Agreement shall give rise to any claim against such Party or be deemed a breach of this Agreement if such failure or omission arises from an act of God or any other circumstances commonly known as force majeure, an act of Government, or any other cause beyond the reasonable control of such Party. The Party experiencing the force majeure event shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease. |
| 10. |
Assignment & Succession: This Agreement shall be binding upon and inure to the benefit of the heirs, successors, and/or assigns of the Parties. Customer may not assign its rights or obligations hereunder without the prior written consent of the Company. |
| 11. |
Governing Law: This Agreement shall be governed by and construed in accordance with the internal laws of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of New York to the rights and duties of the parties. |
| 12. |
Waiver: No forbearance by either party to enforce any provision under this Agreement or any right existing under this Agreement shall constitute a waiver of such provisions or rights or be deemed to amend or modify this Agreement. |
| 13. |
Entire Agreement: This Agreement and the Service Applications referenced herein, shall constitute the entire and exclusive statement of the rights, obligations, and understandings of the Parties with respect to Services and any other subject matter herein discussed. The terms of this Agreement may only be amended in writing signed by an authorized representative of the Parties. |
| Rev. 01-AUG-2003 |
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