1. Programming Service
(a) The Company shall provide to designated locations on the Premises the programming channels and signals, hereinafter referred to as “Service,” which may be modified from time-to-time by Company in its sole discretion. At all times during the term of this Agreement, the Company will deliver to the Premises its standard channel lineup for the Service, except as otherwise required by applicable law.
(b) The Customer acknowledges and agrees that (i) the programming and information contained in the Service may not be changed or altered by Customer or its agents; (ii) delivery of the Service to the Premises and the use of the Service by Customer is subject to the applicable laws, rules and regulations of federal, state and local governments; (iii) because the Company makes use of certain programming owned by others in providing the Service, the Company is not guaranteeing the provision or future availability of any particular program or channel, and the Customer will make no claims nor undertake any legal action against any person or entity, including the Company, if certain programming is interrupted, discontinued or substituted; and (iv) i f the Customer engages in a public performance of the copyrighted material contained in the Service, the Customer, not the Company, shall be responsible for obtaining any necessary public performance licenses.
2. Term of Agreement. For Business Customer this Agreement shall commence on the date such service was installed and shall remain in effect for a period of the number of months designated on the reserve of these terms and conditions (the “ Initial Term ”). At the end of the Initial Term or any subsequent Renewal Term (as defined below), this Agreement will automatically renew on a month to month basis (each such period a “ Renewal Term ” and together with the Initial Term, the “ Term ”), unless either party delivers written notice of its intent not to renew to the other party at least thirty (30) days prior to the expiration of the previous term..
3. Rates, Fees, and Liquidated Damages. The Customer shall pay to the Company the rates and fees set forth on the reverse side for the Service and any maintenance, installation or other technical services provided by the Company to Customer. Monthly recurring charges are subject to periodic increase upon thirty (30) days notice. Customer shall also pay all taxes, franchise fees, and other governmental assessments (“Taxes”) and such Taxes shall be in addition to the Service fees above. The monthly rate for the Service shall be due and payable in advance as billed by EATEL; and the failure of Customer to make payment in full by the due date shall be a material default of the Agreement. The fees for any maintenance, installation or other technical services provided by the Company to Customer shall be due and payable within twenty (20) days of the Customer's receipt of the Company's invoice for such services; and the failure of Customer to make payment in full for such services by the 20th day after receipt of such invoice shall be a material default of the Agreement. In the event the Customer fails to make the timely payment of any monthly rate or other fees as required herein, in addition to any other remedies available to it at law or in equity, the Company shall have the right to immediately terminate the Service to the Premises and this Agreement upon five (5) days' prior written notice to Customer, and the Customer shall be liable for any past due amounts and for liquidated damages in an amount which shall be determined by multiplying the then current monthly fee by the number of months remaining in the Term multiplied by fifty (50) percent. Rates can be increased upon thirty (30) days written notice.
4. Access To Premises. Customer gives the Company the right and license for the Term of this Agreement to enter the Premises during reasonable hours to install, connect, disconnect, transfer, inspect, improve, maintain, service, repair, remove and/or replace any portion of the equipment and/or Internal Distribution System (as hereinafter defined) used to provide the Service, and to do all other things necessary to ensure its continued operation. Upon expiration of the Term or earlier termination of the Service in accordance with this Agreement, the Company shall have the right and license to enter the Premises and remove its equipment and any Internal Distribution System installed by Company, subject to the provisions set forth herein. The parties agree to cooperate fully and promptly in carrying out this Agreement.
5. Internal Distribution System.
(a) The " Internal Distribution System " shall mean all distribution plant and associated electronics, wiring and equipment necessary to distribute the Service to the designated locations on the Premises.
(b) If an Internal Distribution System now exists on the Premises, the Company shall inspect such facilities, at Customer's expense, to determine if it meets current FCC and Company specifications. If Customer's existing Internal Distribution System is usable, as reasonably determined by the Company, Customer grants to the Company during the Term of this Agreement the right and license to use this Internal Distribution System to deliver the Service to the Premises. The Company reserves the right to discontinue the Service immediately if it is determined that the Internal Distribution System is violating FCC signal leakage specifications or other applicable laws, rules and codes. The Company shall have the right to modify Customer's Internal Distribution System to facilitate the delivery of the Service to the Premises, subject to receiving Customer's prior consent, which shall not be unreasonably refused. Ownership of such Internal Distribution System shall remain in Customer, subject to the use of such system by Company pursuant to this Section.
(c) In the event an Internal Distribution System does not exist within the Premises, or if the existing Internal Distribution System is not usable by the Company, the Company will install an Internal Distribution System in the Premises. The Internal Distribution System to be installed by Company will meet all applicable FCC specifications and will be installed in a workmanlike manner. Ownership of such Internal Distribution System shall be and remain in Company and shall be used exclusively for Company operations unless such system is transferred by Company as provided herein.
(d) Upon expiration of this Agreement, or upon its termination for any reason, Company shall, at Customer's option: (i) enter the Premises and remove its equipment and the Internal Distribution System (including internal wiring) installed by Company; or (ii) offer to sell to Customer the Internal Distribution System installed by Company at a cost equal to Company's investment (including materials, labor and overhead) in the Internal Distribution System.
(e) All equipment, including customer reception equipment, provided by the Company that is used to distribute and receive the Service throughout the Premises is and shall remain the property of Company and shall be used exclusively for Company operations.
(f) The Company will maintain the Internal Distribution System in a workmanlike manner in accordance with all applicable codes, regulations, or laws. Any damage caused to the Premises by Company during installation, maintenance, repair, or removal of the Internal Distribution System will be repaired to the reasonable satisfaction of Customer.
(g) During the Term of this Agreement, the Customer will not, nor will it permit others to (i) use the Internal Distribution System in a manner that causes interference to or is otherwise incompatible with the Company's Service and equipment or the Company's rights under this Agreement; or (ii) modify, or connect any other device to, the Internal Distribution System if such action could reasonably be expected to interfere with the Company's rights under this Agreement. Company shall be entitled to reasonable compensation from third parties for any permitted use of any Company installed Internal Distribution System, which third party use shall be at Company's sole discretion.
6. Indemnification and Limitation of Liability.
(a) Customer shall indemnify, protect, defend and hold harmless the Company, its officers, employees and agents, from and against any and all damages, claims, demands, liabilities, losses, costs and/or expenses (including reasonable attorneys' fees) suffered or incurred by the Company, its officers, employees or agents, relating to or arising out of any negligence, willful misconduct or breach or non-performance of this Agreement by Customer, its agents, contractors or employees. This indemnification shall be in addition to and not in lieu of any rights or remedies which may be available at law or in equity, including, but not limited to, injunctive relief or specific performance. This indemnification shall survive the expiration or earlier termination of this Agreement.
(b) EATEL SHALL NOT BE LIABLE FOR DAMAGES FOR TEMPORARY INTERRUPTION OR OUTAGE OF THE SERVICES REGARDLESS OF THE CAUSE. EATEL SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION OR REMOVAL OF THE SERVICE UNLESS CAUSED BY THE NEGLIGENCE OF EATEL. UNDER NO CIRCUMSTANCES WILL EATEL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS ARISING FROM THIS AGREEMENT.
7. Default. In the event that either party fails to perform or observe any of the material conditions or agreements to be performed or observed by it hereunder (the "Defaulting Party") and such failure is not cured within ten (10) days after receipt of written notice from the other party (the "Non-defaulting Party"), the Non-defaulting Party, in addition to any other rights or remedies it may have, shall also have the right to immediately terminate this Agreement.
8. Miscellaneous Provisions.
(a) No Agency. This Agreement does not create any agency, joint venture or partnership between the Company and Customer, each of which are independent business entities. Neither party shall have the right, power or authority to act for the other in any manner.
(b) Force Majeure. Company shall not be deemed to be in breach of this Agreement and shall have no liability to any person if it is unable to perform any of its obligations under this Agreement as a result, in whole or part, of any labor dispute, failure of usual sources of supply, war, riot, insurrection, vandalism, disturbances, fire, flood, earthquake, accident, storm, loss of the right to use right-of-ways or utility poles and/or conduit, act of God or government, or any other cause beyond the Company's reasonable control. If the Service is interrupted for any other reason within the reasonable control of the Company for a continuous period of thirty (30) days, Customer shall have, as its sole remedy, the right to terminate this Agreement.
(c) Customer's Warranties. Customer, for business only, warrants that (i) it holds all rights and has full authority to execute this Agreement and to grant the rights herein granted; and (ii) there are no existing agreements, nor will there be any such agreements during the Term that would prevent, or be violated by, Company's providing the Service and charging and receiving the rates and fees described herein.
(d) Successors and Assigns. This Agreement shall bind and benefit the parties and their respective successors, assigns and personal representatives.
(e) Amendments/Waivers. This Agreement is the entire understanding between the parties and supersedes any prior agreements or understandings whether oral or written. This Agreement may not be amended except by a written instrument executed by both parties. Failure of Company to exercise any of its remedies as set forth in this Agreement or at law or in equity in the event of any default by Customer shall not constitute a waiver of the right of Company to exercise the same in the event of a subsequent default by Customer.
(f) Disputes and Venue. In addition to any other remedy allowed by law or in equity, the prevailing party in any action brought under this Agreement shall be entitled to recover from the other party reasonable attorney's fees, costs and necessary disbursements. The parties hereby agree that venue shall be exclusively with the District Court of the 23 rd Judicial District, State of Louisiana.
(g) Governmental Rules. This Agreement shall be governed by the laws of the state in which the Premises are located except where the laws of the United States have precedence. This Agreement and the obligations of the parties shall be subject to all applicable laws, regulations, court rulings, administrative orders, and presidential decrees, as they may be amended from time to time.
(h) Severability. If any one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any way.
(i) Notices. Any consent, election or notice required or permitted to be given under this Agreement shall be in writing and sent by certified or registered mail addressed to the EATEL shall be sent to 913 S. Burnside Avenue, Gonzales, LA 70737, Attn: Legal Department, or to such other address or addresses as shall, from time to time, be furnished in writing by the party to receive such notice to the other party. Any notice to Customer shall be sent to the address provided in the signature section of this Agreement.
(j) Captions. The captions by which the Sections and paragraphs of this Agreement are identified are for convenience of reference only, and shall in no way define, limit affect or be used to interpret the provisions of this Agreement.