K&M COMMUNICATIONS SERVICES TERMS AND CONDITIONS FOR SERVICES

1. Applicability of these Terms and Conditions.
a. Except as otherwise mutually agreed in writing, these “K&M Communications Services Terms and Conditions for Services” together with the terms and conditions of any applicable Service Description (defined below) (collectively, the “Terms and Conditions”) set forth the terms and conditions pursuant to which K&M Communications Services (“K&M”) will provide Services (defined below) to Customer (defined below).
b. By receiving Services from K&M, Customer agrees to be bound by these Terms and Conditions. All Services are subject to these Terms and Conditions and K&M hereby expressly rejects any inconsistent, conflicting, different, or additional terms in a Customer purchase order or any other document and such terms shall have no force or effect, either through acceptance of such purchase order by K&M in writing or by performance.
2. Definitions. In addition to terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings:
a. “Customer”, “you”, or “your” means End User of the Products
b. “List Price” means K&M’s then-current price of a Product (defined below) or Service (as applicable) specified on the Price List (defined below).
c. “Maintenance Service Program” means a Service Program (defined below) that includes Technical Support, Repairs (both defined below), and in some cases, additional Services specific to the Service Program.
d. “Parts” means components of the Products.
e. “Price List” means K&M’s then-current published list of generally available Products and Services and their associated List Price, applicable to specific geographical location(s) or other restrictions as determined by K&M from time to time.
f. “Products” means equipment generally available and identified on the Price List, including any Releases (defined below) thereto.
g. “Professional Services” means Services such as installation, network analysis, training, and other Services, but excludes Technical Support, Repairs, and any other Services provided as part of a Maintenance Service Program.
h. “Professional Service Program” means a Service Program that includes either a bundle of Professional Services or an individual Professional Service.
i. “Release” means a Software update, bug fix, upgrade, or modified version of the Software issued by the manufacturer of the Product.
j. “Repair” means Services intended to restore a Product to working order and refurbish a Product to like-new condition and which may result in Replacement of the Product with a new Product or another Repaired Product.
k. “RMA” or “Service Ticket” means Authorization for the Customer K&M to return a covered Product for Repair.
l. “Service Description” means a K&M-published document that details the Services provided as part of a Service Program, is descriptive of one or more Service part numbers, and functions as a statement of work. The Service Description for each Service Program purchased hereunder will be deemed attached and incorporated herein as a ‘statement of work’.
m. “Service Program” means a bundle of Services or an individual Service, each as defined in a Service Description, but excludes T&M (defined below).
n. “Services” means K&M’s generally available services identified on the Price List, including Service Programs and T&M.
o. “Technical Support” means Services provided by telephone, email, and/or to resolve issues with the operation of the Products. And excludes on-site unless purchased as a secondary item.
p. “Time and Materials” or “T&M” means Services that are available for a fee which is based on the time spent and the materials used to provide the Services, instead of as part of a Service Program, including Technical Support, Repairs, and other Services.
3. Ordering Services.
a. To provide Services, K&M must first receive a purchase order for validly quoted Services. Such purchase order must contain, at least, the following information: (a) the Services being purchased; (ii) contact name, telephone, and email; (iii) if applicable, the models of the applicable Products; (iv) the appropriate pricing information from the K&M estimate; (v) the site location(s) where the Products will be installed, together with a contact name, contact email address, and telephone number at the location; and (vi) the Maintenance Period (defined in Section 6(d)(ii) below), if applicable. All purchase orders are subject to acceptance by K&M and shall be of no effect absent such acceptance. Acceptance or rejection of a purchase order, and notification to you thereof, shall take place within 24 hours of receipt. K&M may signify acceptance of a purchase order either in writing or by performance.
b. Any undisputed payment due hereunder shall be paid by electronic transfer or by other means, as specified by K&M within thirty (30) days of the invoice date and shall not be subject to any offset, discount, allowance, set off, recoupment, or other deduction. Payment terms are subject to an approved line of credit. Any undisputed payment not made when due shall be subject to a late payment charge in the amount of one and one-half percent (1½%) per month or the legal maximum, whichever is less, on the past due balance.
4. Availability of Services.
a. Unless otherwise provided in an applicable Service Description, Services will be provided during K&M’s business hours Monday through Friday, exclusive of Federal holidays.
b. K&M reserves the right to terminate or modify any Services at any time in its sole discretion; provided, that any such modifications will not affect any Services already ordered and accepted by K&M prior to such modifications.
5. Scope of Services. K&M will provide the Services only for those Products: (a) for which K&M has been paid all applicable fees in full (if any), and (b) which are properly recorded with K&M in accordance with K&M’s then-current policies. The purchase of Services for one or more Products does not entitle you to receive Services for other Products that are not covered by such Services. The scope of the Services provided under a Service Program will be defined in the applicable Service Description. If you request or require Services that are outside the scope of the Services purchased, K&M may charge for such Services at the then-current T&M rate or the List Price for such Services, as applicable.
6. Services.
a. Releases. K&M will provide Releases subject to availability and applicable, (i) the Product warranty, (ii) a Maintenance Service Program, or (iii) payment of the List Price (minus any applicable discount) for the Release. K&M will support all available Releases.
b. Repairs. K&M will Repair a Product subject to availability and applicable, (i) the Product warranty, (ii) a Maintenance Service Program, or (iii) T&M fees. All Products returned for Repair must be sent to K&M’s designated facility in accordance with K&M’s then-current RMA policies and procedures to be provided by K&M to Customer. K&M is not responsible for Products returned without an RMA. All RMA requests can be made through K&M’s email portal rma@kmcomservices.com or the 1-855-271-9959 x 2. Unless pre-purchased, the sender bears all delivery costs (including, without limitation, insurance) and risk of loss associated with the shipping of an RMA to K&M and must adequately package any Products or Parts being returned to K&M. Upon receipt of a returned Product, K&M shall determine, in its sole discretion, whether the Product defect or damage is covered. Products that are damaged due to any of the Services exclusions set forth in Section 8 below or which are not repairable shall be replaced by an equivalent Product at List Price minus any applicable discount, except as otherwise stated in an applicable Maintenance Service Program. Replacement Products or Parts will be equivalent in performance to New Products. Returned Products or Parts removed from a Product, when exchanged for an equivalent item, will become the property of K&M.
c. Technical Support.
(i) K&M will provide remote Technical Support subject to, as applicable, (x) a Maintenance Service Program, or (y) T&M fees.
(ii) If an issue is not resolved by remote Technical Support and if K&M determines that on-site Services are necessary, K&M will dispatch a Technical Support personnel to the affected site subject to, (x) Customer’s entitlement to on-site Technical Support under a Maintenance Service Program, or (y) receipt of a purchase order or payment in advance for T&M fees and associated expenses, and (z) the availability of K&M personnel. Customer shall ensure that the site is accessible by K&M’s personnel. K&M reserves the right to invoice for all applicable re-visit fees, as published in the Price List, in the event that a site is not available or properly prepared for Services when a K&M technician is dispatched. Customer will pay all travel and living expenses unless otherwise stated in an applicable Service Description.
d. Maintenance Service Programs.
(i) Services are provided, and Maintenance Service Programs must be purchased on a per Product basis. (ii) The term for Maintenance Service Programs will be one (1) year or as provided on K&M’s quotation or the purchase order (each, a “Maintenance Period“). You must provide K&M with notice of renewal or modification of a Maintenance Service Program no less than ninety (90) days prior to the expiration of the Maintenance Period.
(iii) Products must be running the latest available Release and be fully operational to qualify for a Maintenance Service Program. Any non-functioning Products for which you wish to purchase a Maintenance Service Program must first be Repaired at K&M’s then-current T&M rate.
e. Professional Service Programs. K&M will provide Professional Services subject to a Professional Service Program that has been purchased for the applicable Product(s).
7. Customer Obligations. In addition to Customer’s responsibilities stated elsewhere in these Terms and Conditions, Customer agrees to comply with the following.
a. You have the continuing obligation to keep all Products that are under a Maintenance Service Program at either the then-current Release or the next previous major Release if available.
b. You must provide K&M personnel with free and full access to the Products and, for any on-site Services, appropriate access to the facilities where the Products are installed at all times during which Services are to be provided and adequate working space within a reasonable distance from the Products (including heat, light, ventilation, electric current and outlets) at no charge to K&M. All environments where K&M personnel will provide on-site Services must be free from all risks to health and safety, except to the extent notified to K&M in writing and specifically accepted in writing by K&M.
c. You are responsible to ensure the proper maintenance of the installation site and to provide the proper environment for the Products in accordance with the manufactures applicable published specifications, including, the necessary utility services for use of the Products.
d. You will be responsible for replacing, at your own expense, any and all consumable items used in connection with the Products, including without limitation, batteries, chargers, power supplies, and cases.
e. K&M strongly recommends the use of a current, reputable anti-virus program in connection with any PC-based, open-architecture Product, and that is regularly updated and run, especially in connection with the emergence of any new viruses and/or ‘worms’.
f. You are solely responsible for backing up your data.
g. K&M may require an open purchase order or credit card number to cover any out-of-scope Services that may be requested or required during the term of a Service Program.
h. It is your responsibility to ensure to make sure the proper coverage for the that the Products have been purchased in order for K&M to provide the Services.
i. You are responsible for any additional Customer obligations or responsibilities identified in an applicable Service Description.
j. You agree to pay K&M all fees and expenses incurred pursuant to this Agreement.
8. Services Exclusions. Not limiting any disclaimers in these Terms and Conditions, Services do not cover or include any of the following, except as otherwise stated in an applicable Service Description:
a. Damage to or defects in the Product resulting from causes external to the Product, including without limitation:
• disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning;
• excessive use of chemical cleaning agents or the use of unsupported chemical cleaning agents;
• failure of the installation site to conform to the manufacturer’s applicable specifications.
• use of the Product for other than intended purposes;
• viruses or conflicts involving software that is not installed or introduced by K&M;
• the performance of maintenance or the attempt to Repair a faulty system or Product by persons other than K&M employees or persons authorized by K&M.
• the installation of a 3rd Party Repair product not authorized by K&M.
b. Electrical work external to the Product.
c. Supplies or accessories, or painting or refinishing the Product;
d. Relocation of the Product;
e. The addition or removal of equipment, components parts, or attachments, features, to or from other devices not authorized by K&M, including communications devices, video devices, audio devices, networks, or links;
f. Repair of visual defects such as minor scratches, paint wear, or any other cosmetic issues that do not impact the operations or durability of the Product;
g. The backup or restoration of data.
9. Intellectual Property. K&M shall retain all right, title, and interest in and to, and possession of, any know-how, technical information, specifications, documents, ideas, concepts, methods, processes, techniques, and inventions developed or created by or on behalf of K&M relating to the Services. Any intellectual property, know-how, information, or documents supplied at any time by one party to the other shall be treated as confidential and covered by the confidentiality obligations set forth in Section 13 below.
10. Termination. Either K&M or Customer may terminate any Services, in whole or in part,    (a) if the other party fails to perform any material obligation hereunder or under any applicable Service Description, and fails to remedy such failure within thirty (30) calendar days after receipt of written notice of such default; (b) in the event that any proceedings are commenced against the other party or such party seeks protection under bankruptcy, insolvency, or other debtor’s relief law, or (c) the other party becomes insolvent or dissolves. K&M may refuse to provide Services, in whole or in part, if any person other than a K&M employee, or a K&M-designated service representative, alters a Product without K&M’s prior written consent, or in any way renders a Product unsafe. Services are non-cancellable except as set forth in this Section 10.
11. Indemnity. Customer and K&M shall each indemnify, defend and hold harmless the other from all claims, suits, losses, expenses, judgments, and liabilities (including reasonable attorney’s fees) arising out of personal injury or death to the extent caused by the negligence of the indemnifying party or its employees. The indemnitee shall give the indemnifying party prompt notice of and authority to defend or settle any such claim and shall give, at the indemnifying party’s request and expense, reasonable information and assistance thereto.
12. WARRANTY/LIMITATION OF LIABILITY.
a. K&M WARRANTS FOR NINETY (90) DAYS FROM THE PERFORMANCE OF ANY SERVICES HEREUNDER THAT SUCH SERVICES SHALL BE PERFORMED IN A TIMELY AND WORKMANLIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. K&M MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. K&M MAKES NO WARRANTY THAT OPERATION OF THE PRODUCT SERVICED WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT WILL K&M BE LIABLE FOR ANY DELAY IN FURNISHING SERVICES BEYOND K&M’S CONTROL. CUSTOMER MUST REPORT IN WRITING ANY BREACH OF THIS WARRANTY TO K&M DURING THE ABOVE WARRANTY PERIOD. CUSTOMER’S EXCLUSIVE REMEDY AND K&M’S ENTIRE LIABILITY FOR ANY BREACH OF SUCH WARRANTY SHALL BE TO RE-PERFORM THE SERVICES OR EXPEDITE SERVICES, AT K&M’S SOLE COST AND EXPENSE.
b. EXCEPT FOR BREACHES OF CONFIDENTIALITY (SECTION 13) OR INTELLECTUAL PROPERTY (SECTION 9), IN NO EVENT, WILL EITHER CUSTOMER OR K&M BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
c. SUBJECT TO SUB-CLAUSE b ABOVE, EXCEPT FOR BREACHES OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, K&M’S MAXIMUM LIABILITY FOR ALL OTHER DAMAGES WILL BE LIMITED TO, (I) IN THE CASE OF MAINTENANCE SERVICE PROGRAMS, ONE (1) YEAR’S SERVICE FEES, OR (II) FOR ALL OTHER SERVICES, THE AGGREGATE SERVICE FEES PAYABLE TO K&M FOR THE APPLICABLE SERVICES. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. SUBJECT TO SUB-CLAUSE b ABOVE, EXCEPT FOR BREACHES OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, CUSTOMER’S MAXIMUM, AGGREGATE LIABILITY FOR ALL OTHER DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO K&M BY CUSTOMER UNDER THIS AGREEMENT FOR THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
13. Confidentiality.
a. Confidential Information. A party hereto (the “Disclosing Party“) may from time to time disclose to the other party (the “Recipient“) certain nonpublic information regarding the Disclosing Party’s business (“Confidential Information“). K&M’s Confidential Information includes (without limitation) the function and performance of the Products, these Terms and Conditions, and any other information relating to the Products and Services. Confidential Information includes information disclosed orally, visually, or through any tangible medium.
b. Protection of Confidential Information. Recipient will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms and Conditions and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of carrying out the Services and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
c. Exceptions. Recipient’s obligations under Section 13b with respect to any Confidential Information of the Disclosing Party will terminate if and when Recipient can document that such information: (i) was already lawfully known to Recipient at the time of disclosure by the Disclosing Party; (ii) was disclosed to Recipient without any confidentiality restrictions by a third party who had the right to make such disclosure; (iii) is or becomes generally publicly available neither through any fault of the Receiving Party nor through a breach of another agreement covering the Confidential Information by a third party; or (iv) was independently developed by Recipient without access to or use of the Disclosing Party’s Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is, (x) approved in advance, in writing by the Disclosing Party; (y) necessary for Recipient to enforce its rights under these Terms and Conditions in connection with a legal proceeding; or (z) required by law or by the order of a court or similar judicial or administrative body, provided that Recipient promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
14. Data Protection. YOU ACKNOWLEDGE AND AGREE THAT YOU, ACTING AS CONTROLLER OF ANY PERSONAL DATA STORED OR RECORDED ON THE PRODUCTS, ARE RESPONSIBLE FOR DELETING ALL SUCH PERSONAL DATA STORED OR RECORDED ON THE PRODUCTS BEFORE RETURNING OR OTHERWISE PROVIDING THE PRODUCTS TO K&M OR ITS SERVICE PROVIDERS IN CONNECTION WITH ANY REPAIR. K&M shall not be held accountable for Customer data.
15. Force Majeure. Except for the obligation to make timely payments, neither party hereto will be liable to the other for delays or failures to perform occasioned by causes beyond its reasonable control. Such acts or events shall include, without limitation, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, lockouts or slowdowns, factory or labor conditions, inability to obtain necessary labor, materials, or manufacturing facilities, delayed issuance of export control licenses. In the event of such delays or failures to perform, any dates or times by which K&M is otherwise scheduled to perform Services shall be extended automatically for a period of time equal in duration to the additional time required because of the delay or failure to perform. Each of the parties shall promptly inform the other of any event of force majeure, its expected duration, and cessation, respectively.
16. General.
a. Any notices required or permitted to be given hereunder shall be in writing and effective when received by a party at the address last notified to the other party by prior written notice. In the case of K&M such address, unless otherwise notified in writing, shall be as follows: K&M Communications Services, 1373 Forest Park Circle, Suite 202, Lafayette, CO 80026, Attention: VP of Operations
b. Except as otherwise set forth in these Terms and Conditions, these Terms and Conditions may only be modified by a written agreement duly signed by authorized representatives of the parties hereto, and variance from or addition to these Terms and Conditions in any order or other written notification will be of no effect. If any provision of these Terms and Conditions shall be held to be invalid, illegal, or unenforceable, the remaining terms of these Terms and Conditions shall in no way be affected or impaired. The waiver by a party of a breach of these Terms and Conditions shall not be construed as a waiver of any subsequent breach.
c. UNLESS OTHERWISE EXPRESSLY AGREED IN A SIGNED WRITING BY THE PARTIES IN ACCORDANCE HEREWITH, THESE TERMS AND CONDITIONS, TOGETHER WITH ANY APPLICABLE SERVICE DESCRIPTION, ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT OF TERMS AND CONDITIONS BETWEEN THE PARTIES, SUPERSEDING ALL PRIOR TERMS AND CONDITIONS, AGREEMENTS OR COMMUNICATIONS, ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.