Terms of Service
1. PAYMENT: Kricket Internet Service's billing cycle runs from the 15th of the month to the 15th of the following month. All bills are mailed out on the 1st of each month. Customer agrees to pay Kricket Internet Service a monthly service charge ("Service Charge") that is billed monthly in advance throughout the term of this Agreement. The first bill shall include the prorated Service Charge from the Service Commencement Date through the end of the 15th of the month billing period in which the Service Commencement Date occurs, plus the subsequent monthly Service Charge amount and a non-recurring installation charge. Except as otherwise agreed, Kricket Internet Service shall submit monthly invoices and payment of all invoice charges shall be due at the address shown on the invoice by the invoice due date ("Due Date") no later than the 15th of the month. Any amounts not paid by the Due Date ("Delinquent Charges") will be subject to a late charge of $5.00 per month or the maximum lawful rate, whichever is lower ("Late Charge"). Any applicable governmental charge, surcharge, federal, state and local use, excise, or sales tax or similar levy, chargeable to or against Kricket Internet Service because of the Service or Equipment provided to Customer, shall be charged to and paid by Customer in addition to the Service Charge and other charges under this Agreement. Customer agrees to pay all costs, including reasonable attorney's fees, expended in collecting Delinquent Charges.
2. EQUIPMENT LOAN/RETURN: Kricket Internet Service may provide and install certain Equipment, as more particularly identified above in Addendum A, without charge for Equipment, at Customer's premises to enable Customer to use the Service. This Equipment is provided to Customer "AS IS" and shall at all times remain the sole and exclusive personal property of Kricket Internet Service, notwithstanding its installation or attachment to Customer's premises. Customer shall not have any right or interest in or to this Equipment, other than to use the Equipment in accordance with and for the duration of this Agreement. Customer shall keep this Equipment at all times free and clear of all claims, liens or encumbrances of any kind or nature. Customer agrees to provide Kricket Internet Service with access to this Equipment upon reasonable advance notice for purposes of inspection, maintenance or removal. Customer shall not make or cause to be made any alterations, additions, improvements or repairs to this Equipment. Customer agrees to allow Kricket Internet Service to immediately recover this Equipment upon termination of the Agreement. Such Equipment shall be returned in the same condition as received by Customer, reasonable wear and tear excepted. In the event of any loss or damage to this Equipment, from any cause, or theft or failure to return the Equipment within thirty (30) days of expiration or termination of the Agreement, Customer shall be liable to Kricket Internet Service for the current cost of replacement or repair, which shall be invoiced to Customer by Kricket Internet Service and payable within thirty (30) days of the date of the invoice, as provided in Section 1 above.
3. SUSPENSION OR TERMINATION OF SERVICE: Kricket Internet Service may suspend or terminate service if Customer fails to pay all Delinquent Charges within 10 days after the bill is rendered. No such suspension or termination shall be deemed an Interruption as defined in Section 4 below.
4. INTERRUPTION OF SERVICE CREDIT: For an interruption of Service ("Interruption") that is not due to negligence or noncompliance with this Agreement on the part of Customer or the operation or malfunction of facilities, power or equipment provided by the Customer, Customer will receive a credit for the period during which Service was interrupted if service is interrupted for more than 48 hours after written notice by the Customer to Kricket Internet Service. An Interruption begins when the Customer reports a service, facility or circuit to be interrupted and releases it for testing and repair. An Interruption ends when the service, facility or circuit is operating properly. Credit allowances are calculated on the basis of a 30-day month; and the credit shall be a pro-rata allowance against the Service Charge for the interrupted Service based on the duration of the interruption in one-day increments.
5. LIMITATION OF LIABILITY: LIMITATION OF WARRANTY: EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL KRICKET INTERNET SERVICE BE LIABLE FOR ANY DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL OR PUNITIVE, OR ANY LOST PROFITS OF ANY KIND, OR DAMAGES BASED ON ANY THIRD PARTY CLAIM, ARISING OUT OF MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS, OR DEFECTS IN THE SERVICE OR EQUIPMENT, (INCLUDING THOSE RELATED TO REGULATORY OR LEGAL REQUIREMENTS DATA PROCESSING), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OBLIGATIONS OF KRICKET INTERNET SERVICE HEREUNDER. CUSTOMER AGREES THAT IT'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF KRICKET INTERNET SERVICE'S PERFORMANCE HEREUNDER SHALL BE CREDIT FOR SERVICE INTERRUPTION AS PROVIDED IN SECTION 4 ABOVE. KRICKET INTERNET SERVICE MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, OR FITNESS FOR ANY PURPOSE OF ANY SERVICE OR AS TO NONINFRINGEMENT OF PATENTS, COPYRIGHTS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
6. CANCELLATION: Either party may cancel this Agreement with or without cause and Kricket Internet Service will be allowed to retrieve its Equipment according to section 2.
7. SERVICES: The provision by Kricket Internet Service and the purchase by Customer of services in connection with this Agreement shall be subject to the terms and conditions of this Agreement, except as superseded by the terms and conditions of any pertinent addenda attached hereto.
8. ADDITIONAL PROVISIONS:
(A) Non-waiver: The failure of either party to give notice of default or to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a waiver of any term or condition hereof, and the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance shall not constitute a waiver or extension of time with respect to any other matter, including future application of the same provision
(B) Venue & Attorneys' Fees: This Agreement shall be governed and construed in accordance with the laws of the State of Louisiana, excepting therefrom its conflicts of law rules, and both parties consent and submit to the exclusive jurisdiction and venue of the 12th Judicial District Court, Avoyelles Parish, State of Louisiana. Each party hereby waives any exception or challenge such party may have to the jurisdiction and venue or forum non-conveniens. Each party hereby waives any and all right such party nay have to a trial before a jury. Customer shall be responsible for all expenses and reasonable attorneys'' fees incurred by Kricket Internet Service to enforce this Agreement.
(C) Entire Agreement: This Agreement, including Addenda and matters incorporated herein by reference, contains the entire understanding of the parties, and supersedes any prior quotations, proposals, arrangements, or understandings relating to the subject matter hereof. No subsequent agreement between the parties concerning Service and Equipment shall be effective unless contained in writing, signed by both parties.
(D) Assignment: Customer may not assign or transfer its right or obligations under this agreement without the prior written consent of Kricket Internet Service.
(E) Notices: Required or permitted notices shall be in writing and delivered by registered or certified mail return receipt requested, postage prepaid, if to Customer, to a person identified as a "Service Contact" and if to Kricket Internet Service, to Contract Administrator, 336 Center Street, Marksville, Louisiana 71351, or as otherwise provided by proper notice hereunder, and the effective date of any notice under this Agreement shall be the date of receipt or refusal of delivery.
(F) Regulatory Jurisdiction: Provision by Kricket Internet Service of Service and Equipment and other matters related to this Agreement are subject to applicable federal, state and local regulatory authority.
(G) Severability: Each Service described in a Service Description is deemed a separate Service; and termination of any Service shall not affect any other Services.
(H) Partial Invalidity: If any provision of this Agreement shall be held invalid or unenforceable under applicable law, the remainder shall not thereby be affected and shall be given full effect.
(I) Confidentiality: Except with consent of the other party or as required by law or court order, neither party will disclose the existence of this Agreement or any information regarding its terms or the parties performance hereunder ("Confidential Information") to any third party.