TERMS AND CONDITIONS
These Terms & Conditions are between TRUSSTECH, Inc. (“TRUSSTECH”) and the Customer (“Customer”) named on the TRUSSTECH Technical Service Order, Estimate, or Invoice (“TSO”). These terms and conditions constitute the agreement (the “Agreement”) for the provision of the Services selected by Customer and designated on a Technical Service Order, Estimate, or Invoice.
The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services. Additional terms and conditions may apply to the Internet or other Services provided by TRUSSTECH or affiliated entity(ies) (“Affiliate”) and should be reviewed in either the “ADDITIONAL TERMS APPLICABLE TO INTERNET-RELATED SERVICES” section, as applicable.
By purchasing the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and TRUSSTECH by, among other things, requiring (1) mandatory ARBITRATION of disputes; (2) charging a TERMINATION FEE; and (3) LIMITING TRUSSTECH’S LIABILITY under the Agreement. Customer acknowledges that they are of legal age and legally authorized to enter into this Agreement.
GENERAL TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under common control with TRUSSTECH.
Agreement: These terms and conditions and the Technical Service Order Agreement, estimate, or invoice executed or accepted by Customer.
TRUSSTECH Equipment: Any and all facilities, equipment or devices provided by TRUSSTECH or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, cabling, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by TRUSSTECH, shall not be considered TRUSSTECH Equipment.
Confidential Information: All information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential.” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.
Customer-Provided Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
Licensed Software: Computer software or code provided by TRUSSTECH or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Party: A reference to TRUSSTECH or the Customer; and in the plural, a reference to both companies.
Service(s): The technical expertise, labor, materials, and third-party services such as Internet provided by TRUSSTECH to Customer described in one or more Technical Service Order(s). All Services are for commercial use only, except as otherwise expressly permitted herein.
Service Commencement Date: The date(s) on which TRUSSTECH first renders Service to a Customer or makes Service available for use by Customer. A single Technical Service Order containing multiple Services or Service Locations may have multiple Service Commencement Dates.
Technical Service Order: A request for TRUSSTECH to provide the Services to Service Location(s) submitted by Customer to TRUSSTECH (a) on a then-current TRUSSTECH form designated for that purpose or (b) if available, through a TRUSSTECH electronic order processing system designated for that purpose.
Technical Service Order Agreement: The agreement under which all Technical Service Orders are submitted to TRUSSTECH.
Service Location(s): The Customer location(s) where TRUSSTECH provides the Services.
Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Technical Service Order. Tariff: A federal or state TRUSSTECH tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
Termination Charges: Charges that may be imposed by TRUSSTECH if, prior to the end of the applicable Service Term or completion of the project (a) TRUSSTECH terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges with respect to each terminated Technical Service Order shall equal, in addition to all amounts payable by Customer in accordance with Section 4.3, one hundred percent (100%) of the remaining fees that would have been payable by Customer under the Technical Service Order if the Services described in the Technical Service Order had been provided by TRUSSTECH completely. In the event the Agreement is terminated as herein described during the initial Service Term, Termination Charges shall also include one hundred percent (100%) of any amount paid by TRUSSTECH in connection with Custom Installation, as that term is defined in Section 2.7, for the Services provided by TRUSSTECH under the Technical Service Order.
ARTICLE 2. DELIVERY OF SERVICES
2.1 Orders. Customer shall submit to TRUSSTECH a (i) properly executed Software License and Service Agreement and(ii) properly completed Technical Service Order to initiate Services to a Service Location(s). A Technical Service Order shall become binding on the parties when (i) it is specifically accepted by TRUSSTECH either electronically or in writing, (ii) TRUSSTECH begins providing the Services described in the Technical Service Order or (iii) TRUSSTECH begins Custom Installation (as defined in Section 2.7) for delivery of the Services described in the Technical Service Order, whichever is earlier. When a Technical Service Order becomes effective it shall be deemed part of, and shall be subject to, the Software License and Service Agreement.
2.2 Speed. TRUSSTECH makes no representation regarding the speed of Internet Service. Actual speeds may vary and are not guaranteed. Many factors affect speed including, without limitation, the number of workstations using a single connection.
2.3 Access. Customer, at no cost to TRUSSTECH, shall secure and maintain all necessary rights of access to Service Location(s) for TRUSSTECH to provide the Services, unless TRUSSTECH has secured such access prior to this Agreement. In addition, Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of equipment used to provide the Services within the Service Location(s). TRUSSTECH and its employees and authorized contractors will require free ingress and egress into and out of the Service Location(s) in connection with the provision of Services. Upon reasonable notice from TRUSSTECH, Customer shall provide all required access to TRUSSTECH and its authorized personnel.
2.4 Service Completion Date. Upon final installation and connection of the necessary facilities and equipment to provide the Services, TRUSSTECH shall notify Customer that the Services are completed and available for use, and the date of such notice shall be called the “Service Completion Date.” Any failure or refusal on the part of Customer to be ready to receive the Services on the Service Completion Date shall not relieve Customer of its obligation to pay TRUSSTECH for Services rendered.
2.5 TRUSSTECH Equipment. TRUSSTECH Equipment is and shall remain the property of TRUSSTECH regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time TRUSSTECH may remove or change TRUSSTECH Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any TRUSSTECH Equipment or permit others to do so, and shall not use the TRUSSTECH Equipment for any purpose other than that authorized by the Agreement. TRUSSTECH shall maintain TRUSSTECH Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at TRUSSTECH’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the TRUSSTECH Equipment. Customer is responsible for damage to, or loss of, TRUSSTECH Equipment caused by its acts or omissions, and its noncompliance with this Section, or by fire, theft or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of TRUSSTECH. Customer agrees not to take any action that would directly or indirectly impair TRUSSTECH’s title to the TRUSSTECH Equipment, or expose TRUSSTECH to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following TRUSSTECH’s discontinuance of the Services to the Service Location(s), TRUSSTECH retains the right to remove the TRUSSTECH Equipment including, but not limited to, that portion of the TRUSSTECH Equipment located within the Service Location(s). To the extent TRUSSTECH removes such TRUSSTECH Equipment, it shall be responsible for returning the Service Location(s) to its prior condition, wear and tear excepted.
2.6 Customer-Provided Equipment. All Customer-Provided Equipment that Customer provides to TRUSSTECH in connection with the Services must be fully compatible with the Services. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by TRUSSTECH’s employees or authorized contractors when the difficulty or trouble report results from Customer-Provided Equipment.
2.7 Engineering Review. Technical Service Order submitted by Customer may be subject to an engineering review by TRUSSTECH. The engineering review will determine whether TRUSSTECH can meet the Customer’s requested Service Completion Date (”Custom Installation”) for the ordered Services at the requested Service Location(s). TRUSSTECH will provide Customer written notification in the event Service installation at any Service Location will require
an additional one-time installation fee (“Custom Installation Fee”). Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Technical Service Order with respect to the affected Service Location(s).
2.8 Administrative Web Site. TRUSSTECH may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). TRUSSTECH may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify TRUSSTECH if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and TRUSSTECH shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorized by Customer. TRUSSTECH shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. TRUSSTECH may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site. These terms and policies will be posted on the site.
ARTICLE 3. CHARGES, BILLING AND PAYMENT
3.1 Charges. Customer shall pay TRUSSTECH one hundred percent (100%) of the Custom Installation Fee prior to the installation of Service. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable Technical Service Order(s), Estimate(s), or invoiced by TRUSSTECH. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of TRUSSTECH Equipment, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Except as otherwise indicated herein or on the applicable Technical Service Order(s), monthly recurring charges for Internet Services shall not increase during the initial Service Term.
3.2 Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from the amounts charged by TRUSSTECH. These may include, without limitation, charges resulting from accessing on-line services, calls to parties who charge for their telephone-based services, purchasing or subscribing to other offerings via the Internet or interactive options on Public View Video, Video, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated herein or on the Technical Service Order(s), TRUSSTECH will invoice Customer in advance on a monthly basis for all monthly recurring charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to TRUSSTECH for all invoiced amounts within five (5) days after the date of the invoice. Any amounts not paid to TRUSSTECH within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro rated charge for the Services, from the date of installation to the first day of the new billing. In certain cases, TRUSSTECH may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. TRUSSTECH shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
3.4 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by TRUSSTECH. No acceptance of partial payment(s) by TRUSSTECH shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
3.5 Payment by Credit or Debit Card. Upon Customer’s written request and TRUSSTECH’s acceptance of such request, TRUSSTECH will accept certain credit or debit card payments for charges generated under the Agreement. By providing TRUSSTECH with a card number, Customer authorizes TRUSSTECH to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that TRUSSTECH stop charging the card. Customer agrees to provide TRUSSTECH with valid updated card number or alternate payment information on a timely basis prior to the expiration or termination of the card on file or in the event that Customer’s card limit is or will be insufficient to cover payment. If TRUSSTECH is unable to charge Customer’s card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by TRUSSTECH. TRUSSTECH may limit the option to pay by card to specific Services or may discontinue acceptance of card payments in whole or in part upon thirty (30) days prior notice to Customer.
3.6 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide TRUSSTECH with credit information requested by TRUSSTECH. Customer authorizes TRUSSTECH to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to TRUSSTECH will be true and correct. TRUSSTECH, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, TRUSSTECH may require Customer to make a deposit (in an amount not to exceed an estimated two-month’s charge for the Services) as a condition to TRUSSTECH’s provision of the Services, or as a condition to TRUSSTECH’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by TRUSSTECH as security for payment of Customer’s charges. If the provision of Service to Customer is terminated, or if TRUSSTECH determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer’s account or will be refunded to Customer, as determined by TRUSSTECH.
3.7 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
3.8 Other Government-Related Costs and Fees. TRUSSTECH reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether TRUSSTECH or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer.. These obligations may include those imposed on TRUSSTECH or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that TRUSSTECH or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. Taxes and other government-related fees and surcharges may be changed with or without notice.
3.9 Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to TRUSSTECH for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to TRUSSTECH, all disputed amounts shall become immediately due and payable to TRUSSTECH.
3.10 Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, TRUSSTECH may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any TRUSSTECH Equipment that Customer fails to return in accordance with the Agreement. If TRUSSTECH is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned TRUSSTECH Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to TRUSSTECH under the Agreement or at law or in equity.
3.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
3.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. TRUSSTECH may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. TRUSSTECH reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.
ARTICLE 4. TERMINATION OF AGREEMENT
4.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Technical Service Order, or this Agreement in whole or part, at any time during the Service Term upon sixty (60) days prior written notice to TRUSSTECH, and subject to payment to TRUSSTECH of all outstanding amounts due for the Services or equipment and material purchases already provided by TRUSSTECH at the time of notice, any and all applicable Termination Charges, and the return of any and all TRUSSTECH Equipment.
4.2 Termination for Cause.
(a) If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within five (5) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions
during any twelve (12) month period, TRUSSTECH may, at its option, terminate this Agreement, terminate the affected Technical Service Orders, suspend Service under the affected Technical Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Technical Service Orders as a condition of continuing to provide the Services. However, TRUSSTECH will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the parties have reviewed the dispute and determined in good faith that the charge is correct.
(b) If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Technical Service Order materially affected by the breach.
(c) TRUSSTECH RESERVES THE ABSOLUTE AND UNILATERAL RIGHT TO IMMEDIATELY TERMINATE SERVICE IF TRUSSTECH DETERMINES, IN THEIR SOLE JUDGMENT AND DISCRETION FOLLOWING APPROPRIATE INQUIRY, THAT CUSTOMER HAS UTILIZED SERVICE IN ANY WAY TO ENGAGE IN THE SOLICITATION, DOWNLOADING, TRANSMITTING, OR ARCHIVING OF ANY ILLEGAL OR IMMORAL OR PORNOGRAPHIC CONTENT. SUCH CONTENT WILL IMMEDIATELY BE FORWARDED TO APPROPRIATE LEGAL, REGULATORY, OR GOVERNMENT AUTHORITIES FOR APPROPRIATE PROSECUTION AND REMOVED COMPLETELY AND IRRETRIEVABLY FROM TRUSSTECH’S PORTAL OR STORAGE FACILITIES.
4.3 Effect of Expiration or Termination of the Agreement. Upon the termination of a Technical Service Order for any reason: (i) TRUSSTECH may disconnect the applicable Service; (ii) TRUSSTECH may delete all applicable data, files, electronic messages, voicemail or other information stored on TRUSSTECH’s servers or systems; (iii) if Customer has terminated the Technical Service Order prior to the expiration of the Service Term for convenience, or if TRUSSTECH has terminated the Technical Service Order prior to the expiration of the Service Term as a result of material breach by Customer, TRUSSTECH may assess and collect from Customer applicable Termination Charges; (iv) Customer shall, permit TRUSSTECH access to retrieve from the applicable Service Locations any and all TRUSSTECH Equipment (however, if Customer fails to permit access, or if the retrieved TRUSSTECH Equipment has been damaged and/or destroyed other than by TRUSSTECH or its agents, normal wear and tear excepted, TRUSSTECH may invoice Customer for the full replacement cost of the relevant TRUSSTECH Equipment, or in the event of minor damage to the retrieved TRUSSTECH Equipment, the cost of repair, which amounts shall be immediately due and payable); and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to TRUSSTECH.
4.4 Regulatory and Legal Changes. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. TRUSSTECH may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects TRUSSTECH’s ability to provide the Services herein.
TRUSSTECH reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (“Change of Service”). In the event of a Change of Service, TRUSSTECH will post to TRUSSTECH’S Web Site. Customer may request a Plan change at any time, subject to any applicable change of service fee and additional terms and conditions. The Plan change will take effect in the first month after the Plan is changed. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
ARTICLE 5. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
5.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY TRUSSTECH OR FOR EARLY TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF TRUSSTECH AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, DELAY IN THE INSTALLATION OF SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE TRUSSTECH EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
5.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT WITH RESPECT TO THE SERVICES, TRUSSTECH EQUIPMENT, OR LICENSED SOFTWARE. ALL
SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRUSSTECH DOES NOT WARRANT THAT THE SERVICES, TRUSSTECH EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, TRUSSTECH EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, TRUSSTECH EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
5.3 TRUSSTECH MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, TRUSSTECH EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
5.4 IN NO EVENT SHALL TRUSSTECH, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (I) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (II) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (III) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (IV) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
5.5 DISRUPTION OF SERVICE. TRUSSTECH shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer- Equipment; inability to obtain access to the Service Locations; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions, pandemic (whether by federal, state, or local declaration), or other acts of God; failure or reduction of power; or any court order, law, act or order of any federal, state, or local governmental agency restricting or prohibiting the operation or delivery of the Services.
5.6 Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of TRUSSTECH and its affiliates and agents is limited to the maximum extent permitted by law.
ARTICLE 6. INDEMNIFICATION
6.1 Subject to Article 5, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: (i) any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, TRUSSTECH Equipment, and Licensed Software; and (ii) any Claim of any third-party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, TRUSSTECH Equipment, and Licensed Software.
6.2 The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 6 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 7. SOFTWARE & SERVICES
7.1 License. If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Technical Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required
by TRUSSTECH, including, without limitation, end-user license agreements for the Licensed Software. TRUSSTECH and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
7.2 Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of TRUSSTECH; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
7.3 Updates. Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the TRUSSTECH Equipment or Customer-Provided Equipment. If TRUSSTECH has agreed to provide updates and changes, TRUSSTECH may perform such updates and changes remotely or on-site, at TRUSSTECH’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by TRUSSTECH.
7.4 Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of the Services may not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
7.5 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by TRUSSTECH, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from TRUSSTECH or other owner of such material, is prohibited.
ARTICLE 8. CONFIDENTIAL INFORMATION AND PRIVACY
8.1 Disclosure and Use. All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
8.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
8.3 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
8.4 Monitoring. TRUSSTECH shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that TRUSSTECH and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. TRUSSTECH reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in TRUSSTECH’s sole discretion, is unacceptable, undesirable or in violation of this Agreement.
ARTICLE 8A: CUSTOMER PRIVACY POLICIES
8A.2 Privacy Note Regarding Information Provided to Third Parties: TRUSSTECH is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
ARTICLE 9. PROHIBITED USES
9.1 Resale. Except as otherwise provided in these Terms and Conditions, Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
9.2 Use Policies. Customer agrees to ensure that all uses of the TRUSSTECH Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. TRUSSTECH reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if TRUSSTECH (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with TRUSSTECH’s ability to provide the Services to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Furthermore, the Services shall be subject to one or more Acceptable Use Policies (“AUP”) that may limit use, or (iv) reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of TRUSSTECH personnel or third parties. The AUP and other policies concerning the Services are posted on TRUSSTECH’s web site(s) at https://gettruss.io (or any successor URL) or on another web site about which Customer has been notified, and are incorporated to this Agreement by reference. TRUSSTECH may update the use policies from time to time, and such updates shall be deemed effective seven (7) days after the update is posted online, with or without actual notice to Customer. Accordingly, Customer should check the above web addresses (or the applicable successor URLs) on a regular basis to ensure that its activities conform to the most current version of the use policies. TRUSSTECH’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
9.3 Violation. Any breach of this Article 9 shall be deemed a material breach of this Agreement. In the event of such material breach, TRUSSTECH shall have the right to restrict, suspend, or terminate immediately any or all Technical Service Orders, without liability on the part of TRUSSTECH, and then to notify Customer of the action that TRUSSTECH has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 10. INSURANCE
10.1 TRUSSTECH shall have no contractual obligation, but may choose nonetheless, to maintain commercial general liability insurance that covers its liability and obligations hereunder including property damage and personal injury.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Majeure. Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, pandemic, quarantine, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of- way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control, except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
11.2 Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, TRUSSTECH may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, TRUSSTECH may partially assign its rights and obligations hereunder to any party that acquires from TRUSSTECH all or substantially all of the assets of a network(s) in which the Services is deployed to Customer. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
11.3 Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute,
transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by TRUSSTECH, Customer also agrees to sign written assurances and other export-related documents as may be required for TRUSSTECH to comply with U.S. export regulations.
11.4 Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to Customer shall be sent to the Customer billing address; notices to TRUSSTECH shall be sent to 204 Yale Avenue, Suite B, Claremont, California 91711, Attn: Admin, with an email copy to: email@example.com. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
11.5 Entire Understanding. The Agreement constitutes the entire understanding of the parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any purchase order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of TRUSSTECH may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of TRUSSTECH who has not been specifically authorized to make such modifications shall be binding upon TRUSSTECH. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both parties.
11.6 Tariffs and Sales Tax. Notwithstanding anything to the contrary in the Agreement, TRUSSTECH may elect or be required to file tariffs with regulatory agencies or collect sales tax on behalf of revenue agencies for certain Services. In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the Tariffs or sales tax regulations. Without limiting the generality of the foregoing, in the event of any inconsistency with respect to rates, the rates and other terms set forth in the applicable Sales Order shall be treated as individual case-based arrangements to the maximum extent permitted by law, and TRUSSTECH shall take such steps as are required by law to make the rates and other terms enforceable. If TRUSSTECH voluntarily or involuntarily cancels or withdraws a Tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the Tariff immediately prior to its cancellation or withdrawal. In the event that TRUSSTECH is required by a governmental authority to modify a Tariff under which Service is provided to Customer in a manner that is material and adverse to either party, the affected party may terminate the applicable Sales Order upon a minimum thirty (30) days’ prior written notice to the other party, without further liability.
11.7 Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect.
11.8 Survival. The rights and obligations of either party that by their nature would continue beyond the expiration or termination of this Agreement or any Technical Service Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Technical Service Order.
11.9 Choice of Law. The domestic law of the state of California shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law.
11.10. Mandatory Arbitration. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, CUSTOMER AND TRUSSTECH WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO CUSTOMER, INCLUDING ANY BILLING DISPUTES (“CLAIM”). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or Products provided or billed to Customer if Claims are asserted against TRUSSTECH in the same proceeding. Any controversy between the parties to this Agreement involving the construction or application of any of the terms, covenants, or conditions of this Agreement shall, on the written request of one party served on the other, be submitted to mediation, which shall be conducted in compliance with, and be governed by the provisions of sections 1775 through 1775.15 of the California Code of Civil Procedure. The parties shall use their best efforts to agree upon a person to mediate the dispute, but if they are unable to agree on one such person, each shall appoint one person, and then those two persons will select a third impartial mediator to form a panel to conduct the mediation. The cost of mediation will be borne by the parties equally. If the matter cannot be resolved by mediation, it shall be submitted to binding arbitration,
which shall be conducted in compliance with, and be governed by the provisions of sections 1280 through 1294.2 of the California Code of Civil Procedure. The parties shall use their best efforts to agree upon a person to arbitrate the dispute, but if they are unable to agree on one such person, each shall appoint one person, and then those two persons will select a third person to form a panel to conduct the arbitration. Unless a hearing is requested, disputes will be resolved based on written submissions and no personal appearance is required. If End User requests an arbitration hearing, that hearing will take place either telephonically or in Montclair, California. As a limited exception to the agreement to arbitrate, Customer and TRUSSTECH agree that: (a) Customer may file Claims in small claims court in San Bernardino County, California, if the Claims qualify for hearing by such court; (b) if Customer fails to timely pay amounts due, TRUSSTECH may assign the account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; and (c) any Claim filed as a class action is not subject to arbitration but instead must be filed in the California Superior Court, County of San Bernardino or in the United States District Court for the Central District of California.
11.11. Prefiling Notice of Claim. BEFORE INSTITUTING ARBITRATION OR SUIT, CUSTOMER AGREES TO PROVIDE TRUSSTECH WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO TRUSSTECH. IF TRUSSTECH IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN CUSTOMER OR TRUSSTECH MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION 11.10. All claim notices should be sent to:
Office of General Counsel
204 Yale Avenue, Suite B
Claremont, CA 91711
11.12. Governing Law. The Agreement and the relationship between Customer and TRUSSTECH shall be governed by the laws of the State of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 11.10, Customer and TRUSSTECH agree to submit to the personal and exclusive jurisdiction of the courts within the state of California, to the extent possible in San Bernardino County, and waive any objection as to venue or inconvenient forum. The failure of TRUSSTECH to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
11.13 No Third-Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
11.14 No Waiver. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).
11.15 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11.16 Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
11.17 Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
ADDITIONAL TERMS APPLICABLE TO INTERNET-RELATED SERVICES
In addition to Articles 1 through 11 above, Articles 12 and 13 are specifically applicable to Internet-Related Services:
TSO, ESTIMATE, and INVOICE TERMS AND CONDITIONS
(rev. 3.0 Mar-2022)
Page 10 of 11
ARTICLE 12: WEB HOSTING. If Customer submits a Technical Service Order(s) for web hosting services, the following terms shall also apply:
12.1 Authorization. By using the Services to publish, transmit or distribute material or content, Customer (i) warrants that the material or content complies with the provisions of the Agreement, (ii) authorizes TRUSSTECH, its agents and affiliates to reproduce, publish, distribute, and display such content worldwide and (iii) warrants that Customer has the right to provide such authorization. Customer acknowledges that material posted or transmitted using the Services may be copied, republished or distributed by third parties, and agrees to indemnify, defend and hold harmless TRUSSTECH, its agents and affiliates for any harm resulting from such actions.
12.2 Web Site Content. If applicable, TRUSSTECH will host Customer’s web site in a data center in accordance with TRUSSTECH’s then-current published specifications, including, without limitation, storage levels (“Customer Web Site”). Ownership of all graphics, text, or other information or content materials supplied or furnished by Customer for incorporation into or delivery through a Customer Web Site shall remain with Customer (or the party that supplied such materials to Customer). Ownership of any software developed or modified by TRUSSTECH and all graphics, text, or other information or content materials supplied or furnished by TRUSSTECH for incorporation into a Customer Web Site shall remain with TRUSSTECH (or the party that supplied such materials to TRUSSTECH). Customer agrees that TRUSSTECH has no proprietary, financial, or other interest in Customer’s goods or services that may be described in or offered through a Customer Web Site, and that Customer is solely responsible for content quality, performance, and all other aspects of its goods or services and the information or other content contained in or provided through a Customer Web Site. Customer assumes all responsibility for use by others of the Customer Web Site (including commercial transactions, whether completed or not).
12.3 Web Site Backup and Restoration. Customer acknowledges and agrees that (i) it is responsible for developing and maintaining procedures (apart from the Services) to protect the Customer content, including, without limitation, making appropriate backup copies of the Customer content as may be necessary for reconstruction of any data, files, informational materials, or electronic messages; and (ii) TRUSSTECH is not responsible for backup and restoration of Customer Content.
ARTICLE 13: PROVISION OF SERVICE/USE. Subject to the terms and conditions herein, Internet Services are intended for commercial use only. Customer is prohibited from reselling Hospitality Internet Services, except that Customer may use such Services to provide internet service to its short-term lodging accommodation end users. TRUSSTECH shall provide Hospitality Internet Service to a demarcation point at the Service Location. Customer shall be responsible for any and all facilities, equipment and/or devices required to use Hospitality Internet Services on the customer-side of the demarcation point.
ARTICLE 14. DOMAIN NAME REGISTRATION. If Customer submits a Technical Service Order(s) for domain name registration services, the following terms shall also apply:
14.1 Registration. At the request of Customer, TRUSSTECH will use commercially reasonable efforts to facilitate the registration of the Customer internet domain name (“Customer Domain Name”) with a domain name registration service of TRUSSTECH’s choosing, but only to the extent that Customer provides TRUSSTECH with all necessary information relevant to such registration. The domain name registration service will invoice Customer directly for all applicable registration fees, maintenance fees, and other applicable fees related thereto. Customer hereby acknowledges that Customer is entirely responsible for the payment of any and all such fees. TRUSSTECH does not represent that the Customer Domain Name will be available on an initial or ongoing basis. Further, Customer acknowledges that Customer, not TRUSSTECH, has ownership, control, and use of the Customer Domain Name. Further, Customer hereby agrees now and forever to release and to hold harmless TRUSSTECH, its employees, affiliates, agents, and contractors, from any and all losses, damages, rights, claims, and actions with respect to, or in any way arising from, the domain name registration service’s removal of allocation or support for the Customer Domain Name. Should Customer require modification of the Customer Domain Name or additional related services, additional charges may apply from the relevant registration service and from TRUSSTECH for setup of the modification or addition.
14.2 Sub-Domain Name. Should Customer be unable to register a unique domain name, TRUSSTECH may grant upon Customer request and only for the term of the Technical Service Order providing for such service, the limited, personal, and non- transferable right to specify and append a sub-domain name to TRUSSTECH’s prescribed domain name, for the sole purpose of uniquely identifying Customer’s e-mail address. TRUSSTECH does not represent that Customer’s selected sub-domain name will be available. Customer receives no right to TRUSSTECH’s domain name other that as specifically stated in this Article 15. Upon the termination of the applicable Technical Service Order, Customer shall surrender all rights, privileges and interest in and to the sub- domain name and TRUSSTECH’s domain name.