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8. MONITORING AND MODIFICATIONS. TWC shall have the right,but not the obligation,to monitor traffic and content on its
<br /> network, in its sole discretion,including through the use of automatic content filters(including without limitation spam,virus,and adult
<br /> language sniffers and filters). TWC shall have the right,but not the obligation,to upgrade,modify and enhance the Equipment(including
<br /> related firmware)and the Service and take any action that TWC deems appropriate to protect the Service and its facilities. TWC also shall
<br /> have the right to add to,modify or delete any provision of the Terms of Use or any Service descriptions. TWC will notify Customer of any
<br /> material change in the Terms of Use or Service descriptions by posting notice of such change on the TWC web site or by email. If
<br /> Customer objects to any such material adverse change,then Customer may terminate this Agreement upon thirty(30)days written notice
<br /> without paying a termination fee as set forth in Section 9. Customer's continued use of the Service,without providing written notice of
<br /> termination,for more than thirty(30)days after such notice shall constitute Customer's acceptance of such change.
<br /> 9. TERMINATION.
<br /> a. Either party may terminate this Agreement upon thirty(30)days written notice of the other party's material breach,provided
<br /> that such material breach is not cured within such thirty(30)day period. TWC may terminate this Agreement in the event that
<br /> TWC is unable to fulfill any obligation under this Agreement due to Customer's(or a Customer Employee's or Customer's
<br /> branch office's)failure,or the failure of any owner or landlord controlling access or rights in or to the property in question,to
<br /> allow TWC access to space,equipment or software at any time during the Term of this Agreement(referred to herein as an
<br /> "Access Restriction"). In addition,in the event that Customer fails to comply with any laws or regulations applicable to the
<br /> use of the Service,the terms of this Agreement,or the Terms of Use,TWC may suspend or discontinue Customer's Service in
<br /> whole or in part upon ten(10)days advance notice;provided,however,that if Customer demonstrates that it is diligently
<br /> pursuing a cure for such failure within thirty(30)days,then TWC will not suspend or discontinue Customer's Service. If
<br /> Customer has not cured such failure within thirty(30) days, then TWC may suspend or discontinue Customer's Service
<br /> without further notice. In the event of a suspension,TWC may require a reconnect charge to restart the suspended Service.
<br /> b. Upon the termination or expiration of this Agreement:(a)TWC's obligations hereunder shall cease;(b)Customer promptly
<br /> shall pay all amounts due and owing to TWC for Service delivered prior to the date of termination or expiration,if any;(c)
<br /> Customer promptly shall cease all use of any software provided by TWC hereunder,and shall return such software to TWC;
<br /> and (d) Customer shall return to TWC or permit TWC to remove, in TWC's sole discretion,the Equipment in the same
<br /> condition as when received,ordinary wear and tear excepted. Customer shall be responsible for reimbursing TWC for the
<br /> repair or replacement,at TWC's commercially reasonable discretion,of any Equipment not returned in accordance with this
<br /> section.
<br /> c. Notwithstanding anything.to the.contrary herein, upon early termination of this Agreement by Customer, or by TWC for
<br /> Customer's breach, Customer shall promptly pay TWC,in TWC's discretion,a termination fee equal to the Service Charges
<br /> that would have been due for the remainder of the Initial Term or the then-current renewal term, as applicable. For the
<br /> avoidance of doubt,by signing the Cover Sheet,Customer is committing to procure the Services for the full Initial Term,
<br /> unless Customer terminates this Agreement early pursuant to the first sentence of this Section 9 as a result of TWC's material
<br /> uncured breach. Outside of that situation,if Customer,declines to receive or accept the Services,Customer will still be billed
<br /> for such Services and shall still be obligated to pay for such Services. The parties agree that the remedies set forth herein for
<br /> early termination are intended to establish liquidated damages in the event of such early termination,since damages in such an
<br /> event are difficult or impossible to ascertain,and these remedies are not intended as a penalty. The foregoing shall be in
<br /> addition to any other rights and remedies that TWC may have under this Agreement or at law or equity relating to Customer's
<br /> material breach.
<br /> d. Customer intends to fulfill this Agreement for the entire Term if funds are legally available to pay the Service Charges;
<br /> provided,however,that Customer may terminate the Agreement,without a termination fee or penalty,if funds sufficient to
<br /> pay the Customer's obligations under the Agreement are not appropriated. At least thirty(30)days prior to the end of the
<br /> then-current fiscal year,Customer shall certify in writing that(i)funds have not been appropriated for the next fiscal period
<br /> and(ii)such non-appropriation did not result from any act or failure by Customer.
<br /> 10. INDEMNIFICATION. To the extent permitted by applicable law and Customer's insurance policies,Customer agrees to defend,
<br /> indemnify and hold harmless TWC,its affiliates,its service providers and suppliers and their respective officers,directors,employees and
<br /> agents,from and against all claims,liabilities,damages and expenses,including attorneys'and other professionals'fees,arising out of or
<br /> relating to(i)the use of the Service,including but not limited to a breach of Section 4 herein;or(ii)personal injury or property damage
<br /> caused by the gross negligence or willful misconduct of Customer or its employees or agents. TWC agrees to defend,indemnify and hold
<br /> harmless Customer,its employees,officers and agents from and against all claims,liabilities,damages and expenses,including attorneys'
<br /> and other professionals' fees, arising out of or relating to personal injury or property damage caused by the gross negligence or willful
<br /> misconduct of TWC or its employees or agents.
<br /> 11. DISCLAIMER OF WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE AND THE
<br /> INTERNET AND ACCESSES THE SAME AT ITS OWN RISK. TWC EXERCISES NO CONTROL OVER AND HAS NO
<br /> RESPONSIBILITY WHATSOEVER FOR THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICE OR THE
<br /> INTERNET OR ACTIONS TAKEN ON THE INTERNET AND TWC EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH
<br /> TWC BUSINESS CLASS PROPRIETARY&CONFIDENTIAL
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