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FOR CURRENT CLIENTS
Master Service Agreement - Dedicated Servers
a. The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE,AGREE AND AUTHORIZE COLOCATION AMERICA Corporation TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term.” b. This Agreement may be terminated i. by either party by giving the other party thirty (30) days prior written notice (subject to an early cancellation fee payable by Customer as provided below), ii. by COLOCATION AMERICA in the event of nonpayment by Customer, iii. by COLOCATION AMERICA, at any time, without notice, if, in COLOCATION AMERICA’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of the this Agreement and related agreements, AUP, or Customer’s use of the Services disrupts or, in COLOCATION AMERICA’s sole and absolute discretion and/or judgment, could disrupt, COLOCATION AMERICA’s business operations and/or c. If you cancel this Agreement prior to the end of the Initial Term or any Term thereafter, i. you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, ii. you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term . Any cancellation request shall be effective thirty (30) days after receipt by COLOCATION AMERICA, unless a later date is specified in such request. d. COLOCATION AMERICA Corporation may terminate this Agreement i. if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or ii. immediately by giving written notice to Customer, if COLOCATION AMERICA determines in good faith that Customer’s use of the Customer Web site or the Customer Content violates any term or condition. If COLOCATION AMERICA cancels this Agreement prior to the end of the Term for your breach of this Agreement and related agreements, the Customer’s use of the Services disrupts, COLOCATION AMERICA shall not refund to you any fees paid in advance of such cancellation and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and COLOCATION AMERICA shall have the right to charge you an administrative fee of $50.00. e. Upon termination of this Agreement for any cause or reason whatsoever, customer shall not have any further rights or obligations under this Agreement, except as expressly set forth herein. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which COLOCATION AMERICA Corporation may be entitled. f. Additional Resource Charges. You will be charged additional nonrefundable fees in the event that you used excessive resources including, without limitation, additional bandwidth, file transfer or disk space in excess of the amount included with your account. You agree to pay for any and all charges that may coincide with the usage of COLOCATION AMERICA’s services at the then current prices. g. Late payment. If your payment is received late, you may be responsible for paying a late fee. Services and your account may remain suspended until payment is received by COLOCATION AMERICA. If your account is left unpaid for 30 days, your account and your files and data will be deleted. A termination under this condition, or any other, will not relieve you from paying any past due fees plus interest that have accrued prior to the termination. In the event of collection enforcement, you will be liable for any costs, including, without limitation, attorneys’ fees, court costs, and collection agency fees. h. No warranty. COLOCATION AMERICA makes no warranties or representations of any kind for the services being offered. The service is provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties of title, non-infringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by COLOCATION AMERICA Corporation or its agents or employees shall create a warranty. COLOCATION AMERICA provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components. Under no circumstances shall COLOCATION AMERICA be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties use of the service to access your account, or to access the Internet or any part thereof, or your or any third parties reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with COLOCATION AMERICA service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service and terminating your account. You understand that by placing information on COLOCATION AMERICA’s servers that such information becomes available to all Internet users and that COLOCATION AMERICA has no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of COLOCATION AMERICA’s servers and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through COLOCATION AMERICA or on the Internet generally. i. Backup of data. Your use of the service is at your sole risk. COLOCATION AMERICA is not responsible for files and data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on COLOCATION AMERICA’s servers. j. Representation. You represent to COLOCATION AMERICA that you are (1) at least eighteen 18 years of age; (2) you possess the legal right and ability to enter this agreement; (3) you will use the account/service only for lawful purposes and remain in accordance with this Agreement and all policies and guidelines of COLOCATION AMERICA Corporation; (4) you will be financially responsible for your account; (5) you have acquired, or will acquire all necessary arrangements for hypertext links to a third party Web sites or other content; (6) you have verified or will verify the accuracy of materials distributed or made available through use of the account, including, without limitation, your content, claims, warranties, guarantees, nature of business, and address where business is conducted, and (7) your content does not infringe or violate any right of any third party (including intellectual property rights) or violate any applicable law, regulation or ordinance. k. ACKNOWLEDGEMENT. By placing and continuing to maintain or place information on COLOCATION AMERICA servers you are stating and acknowledging that you have read the aforementioned terms and conditions and that you understand such terms and conditions and agree to be bound by them. l. SEVERABILITY. If any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable. m. APPLICABLE LAW and JURISDICTION. This agreement shall be governed by the applicable laws of the State of California, USA (“California”) and the United States of America. Customer agrees that all services provided by COLOCATION AMERICA shall be deemed to have been requested and provided in Los Angeles County, California. Customer further agrees that the Court of Los Angeles, California, shall have personal jurisdiction over Customer and exclusive subject matter jurisdiction over any and all controversies or claims arising from or relating to this agreement or the services provided by COLOCATION AMERICA Corporation. Customer agrees to accept service of process related to this agreement by ordinary mail, postage prepaid, to the most recent address provided by Customer. n. Colocation equipment, In addition to COLOCATION AMERICA.s standard nonpayment procedure, release of any collocated (colocation clients hardware) requires billing approval with client paying any and all balances outstanding. Under no circumstance shall any significant piece of equipment be removed without 2 day advance notice and payment in full for services rendered and client obligations under contract signed between the client and COLOCATION AMERICA are fully fulfilled. This does not include replacing a piece of equipment with a similar piece of equipment. Should client fail to make payment and/or fulfill its obligations within 15 days COLOCATION AMERICA may remove client.s hardware from racks/cabinets and place them in storage. Additional storage and retrieval from storage fees will be added in case of such event. Should billing balances not be settled after 30 days, COLOCATION AMERICA reserves the right to resell, take ownership of the collocated equipment and/or discard colocated equipment. Client agrees to forfeit any claim on such equipment after above mentioned 30 day period. o. Client understands and agrees that the Client is responsible for monitoring the bandwidth utilized by servers in his account and that in case of excess utilization will be liable to pay any and all fees associated with the overage according to prices set forth by COLOCATION AMERICA Corporation p. Client agrees that contacts added to Clients account will be representatives of the Client and are authorized by the Client to add and/or remove services and request actions be taken by COLOCATION AMERICA Support Staff. Client is liable for requests made by the representatives regardless of their employment status and/or relationship with the Client. The Client is solely responsible for maintaining accuracy of point of contact and authorized individuals on the account. q. If paying by Credit Card, the Client hereby authorize COLOCATION AMERICA Corporation to charge the VISA / MasterCard / Discover / AMEX credit card account(s) for charges from COLOCATION AMERICA Corporation including prepayment of monthly minimums that may accrue from month to month or any past due balances in order to bring the account to a current status. This authorization type is valid until revoked in writing. r. The Client understands and agrees that the Client is responsible for paying all collection, legal, and attorney costs associated with enforcing this agreement.
Master Service Agreement - Colocation
Thank you for choosing Colocation America Inc. to provide your Colocation services. As used in this Agreement, the term “you” and “Customer” refers to the above-named corporation, partnership or other business entity that enters into this Agreement. The initial Order Form is the online order form filled out upon signing up. Colocation America Inc. and Customer may enter into subsequent Order Forms, which may supercede or complement prior Order Forms. As used in this Agreement, the term “Customer Equipment” refers to any and all computer equipment, software, networking hardware or other materials placed by or for Customer in the Colocation America Inc. Datacenter(s), other than Colocation America Inc. Equipment. Colocation America Inc. will begin installation, initiation and service after it receives and accepts: (1) your Order Form; (2) a copy of this Agreement signed by your authorized representative and (3) payment of amounts due under Section 1.1 below, detailed on your Order Form. 1. Fees and Billing. Customer agrees to pay the Activation Charges, Monthly Fees and other fees indicated on the Order Form (collectively, “Service Fees”). 1.1 Activation Charges. Colocation America Inc. will bill Customer for all Installation Charges and first month recurring Service Fees (the “Activation Charges”) (as specified on the Order Form) upon Colocation America Inc. acceptance of this Agreement and the Order Form. Colocation America Inc. will not commence installation, initiation and Service unless and until it has received payment in full of all Charges due. 1.2 Recurring Service Fees. Colocation America Inc. will begin billing for monthly Recurring Service Fees, on the date that is the earlier of: (a) the Installation Date specified on the Order Form; or (b) the date that Customer places Customer Equipment in Colocation America’s premises. Colocation America Inc. will bill Customer for services to be provided in the current month. The prices for services provided under this agreement shall be guaranteed for the initial term of the agreement and may be subsequently modified by Colocation America Inc. provided there is a 30 day prior written notice to the customer. 1.3 Payment. All fees and charges will be due, in U.S. dollars, on the first day of the service month as indicated on the Colocation America Inc. invoice. Late payments will accrue interest at a rate of Fifteen percent (15%) per month, or the highest rate allowed by applicable law, whichever is lower. If in its judgment Colocation America Inc. determines that Customer lacks financial resources, Colocation America Inc. may, upon written notice to Customer, modify the payment terms to secure Customer’s payment obligations before providing Services. Colocation America Inc., using its sole judgment, reserves the right to determine whether to charge interest to a late paying customer, or to consider the customer as having breached this contract as specified in Section 11 of this agreement. 1.4 Term. The Term of this Agreement is specified in the Order Form. This Agreement shall automatically renew as defined in section 1.6 unless either party provides written notice of non-renewal within twenty nine (29) days of the end of the Term. 1.6 Renewal Term. 1 Year 1.6.1 Renewal Option. Subject to the conditions stated in this Section 1.6.1, Customer shall have the option to extend this agreement for up to 12 Terms, each term consisting of 1 month. Each such Renewal Term shall commence the day following expiration of, as applicable, the initial Term or the preceding Renewal Term, and shall be for a Base Rent determined pursuant to section 1.6.2, and otherwise on and subject to all of the terms and conditions set forth in this Agreement. Customer may exercise the option granted hereby by written notice to Colocation America Inc., but only if, all of the following conditions are satisfied: (a) Customer shall have given such notice not less than 29 days before the last day of the initial Term or Renewal Term to be extended; (b) During the Term preceding delivery of such notice, Customer shall not have defaulted in any of its obligations hereunder, or Colocation America Inc. shall, for purposes of this Section 1.6.1 only, waived the absence of any such default as a condition precedent to Customer’s right to exercise the option: (c) At the time that Customer gives such notice, and continuing until the first day of the Renewal Term, there shall not exist hereunder any default of Customer nor any event or circumstance that, with notice, the passage of time, or both, could ripen into a default. (d) Customer is operating in the Premises in a manner consistent with the Building and Land. Subsequent references to the “Term” of this agreement shall include the Term and the Renewal Term(s), if any, for which Customer effectively exercises the foregoing option. If all of the conditions stated to efficacy of the foregoing option are not timely satisfied, then this agreement shall expire on the last day of, as applicable, the expiring initial Term or Renewal Term. As of the date each Renewal Term begins, this agreement shall be deemed modified in the manner set forth above, without the necessity of any further agreement or document; provided, however that either party to this agreement shall, upon request of the other party, execute, acknowledge, and deliver an instrument evidencing such renewal and modification of this agreement. 1.6.2 Renewal Term Base Rent. Base Rent for the Premises shall be increased on the first (1st) day of the 12th Renewal Term (one year anniversary) to an amount equal to the “fair market rental value” of the Premises (which fair market rental value determination may include increases in Base Rent during the Renewal Term). Fair market value shall be determined by Colocation America Inc. in its sole but reasonable discretion, after evaluating, among other things, the rents at similar buildings in the same geographic area. Within ten (10) days after Colocation America’s receipt of Customer’s written notice of the exercise of the Renewal Option as set forth in section 1.6.1, Colocation America Inc. shall provide Customer with Colocation America’s determination of fair market rental value. Upon Colocation America’s written notice of fair market rental value to Customer, Customer shall have ten (10) business days to accept or reject such Base Rent in writing. Should Customer reject such Base Rent, Customer shall have no further additional right to renew or extend the agreement term, and Customer shall vacate the Premises at the end of agreement term. Customer’s failure to deliver written notice to Colocation America Inc. accepting or rejecting such Base Rent within said ten (10) business day period shall be deemed Customer’s acceptance of the same. 2. Colocation. 2.1 Installation. Colocation America Inc. grants you the right to operate Customer Equipment at the Colocation Space, as defined on your Order Form. The Colocation Space is provided on an “AS-IS” basis, and you may use the Colocation Space only for the purposes intended. Customer will install Customer Equipment in the Colocation Space after obtaining the appropriate authorization from Colocation America Inc. to access Colocation America’s Premises. Colocation America’s Premises include all Colocation America Inc. owned or leased property including Customer Colocation Space. Customer will remove and be solely responsible for all packaging of Customer Equipment. Customer may ship equipment to Colocation America Inc. and request Colocation America Inc. to install and/or configure additional software/hardware which may be billed separately at an hourly rate unless defined in the attached order form. Customer is Solely Responsible for insuring Customer Equipment and agrees not to hold Colocation America Inc. liable in the event of damage to Customer Equipment. 2.2 Access. You will have access to the Colocation Space on a 24-hour basis. You may access the Colocation Space only in accordance with Colocation America’s Security and Access Policies, a copy of which is available by sending your request to [email protected] Customer is responsible for any and all actions of Customer representatives and any escorted persons. No unescorted persons may enter the Colocation space under any circumstances. 2.3 Removal of Customer Equipment. Customer will provide Colocation America Inc. with written notification two (2) days before Customer wishes to remove a significant piece of Customer Equipment. (This does not include replacing a piece of equipment with a similar piece of equipment). Before authorizing the removal of any significant Customer Equipment, Colocation America’s accounting department will verify that Customer has no payments due to Colocation America Inc.. Once Colocation America Inc. authorizes removal of Customer Equipment, Customer will remove such Customer Equipment, and will be solely responsible to leave area in good operating condition at its own expense. Optionally Customer may request Colocation America Inc. to ship Customer Equipment to Customer in which case Customer will incur freight cost and any other delivery fees involved in shipping the Equipment to Customer. In the Customer is Solely Responsible for insuring the Equipment and Customer agrees not to hold Colocation America Inc. liable in the event of damage to Customer Equipment. 2.4 Remote Hands and Support. At the request of Customer, Colocation America Inc. may assist Customer in performing light duties or correcting minor problems which may include: a. Rebooting of equipment. b. Pressing of reset or other readily accessible buttons or switches. c. Reconfiguration of non-restricted cables with push-on type connectors. d. Following Customer instructions in attempt to bring a system online where customer can access it remotely if possible. Remote Hands service is provided Free of Charge as a courtesy to Customer. Remote Hands service is limited to 30 minutes per month and will be confined to assisting Customer execute tasks when remote execution of such task is not possible. After 30 minutes the Customer must request support from Colocation America Inc. System and/or Network Engineers. Customer may request additional support from Colocation America Inc. System and/or Network Engineers in which case Customer shall pay Colocation America Inc. a fee of $100.00 per hour for a minimum of one (1) hour for each occurrence in which assistance is required. Support Fees are waived if problem is solely due to Colocation America Inc. Network or Datacenter facility and if it is found the Customer Equipment were not cause or reason for existence of the problem. Colocation America Inc. provides Network and Connectivity Guarantees outlined in Colocation America Inc. SLA (Service Level Agreement) which is available to you by sending request to [email protected], no other Guarantees or Warrantees are provided or promised to Customer. The SLA outlines the only remedy provided to Customer in the event of any outage. 2.5 Relocation of Customer Equipment. Colocation America Inc. shall not arbitrarily or capriciously require Customer to relocate Customer Equipment without prior notice; however, upon seven (7) day notice or, in the event of any emergency, Colocation America Inc. may require Customer to relocate Customer Equipment. In the event that Colocation America Inc. requires Customer to relocate Customer Equipment, all costs shall be borne by Colocation America Inc. and Colocation America Inc. may perform relocation if requested by Customer or in the event of emergency. 3. Security. Colocation America Inc. does not guarantee security of Customer Equipment or of the Colocation Space. Colocation America Inc. requires that you and your employees comply with all Colocation Security Procedures as defined on Colocation America’s Security and Access Policies (a copy of which is available to you by sending request to [email protected]) in order to maximize the security of the Colocation America Inc. premises. Only individuals whom you have identified as “Customer Representatives” (and persons escorted by Customer Representatives) listed on the Order Form will be permitted to enter the Colocation Space. Only Customer Representatives will be permitted to request Services on your behalf or to request any support services with respect to Customer Equipment. For good cause, Colocation America Inc. may suspend the right of any Customer Representative or other person to visit the Colocation America Inc. premises and/or the Colocation Space. Colocation America Inc. will assist in security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so. 4. Internet, Local and Long Distance Services. Colocation America Inc. Datacenter is carrier neutral and customers may request services other than those provided by Colocation America Inc. from other providers in which case Customer is responsible for ordering all Internet, local and long-distance lines from carriers and ordering any and all necessary cross-connects from Colocation America Inc.. Colocation America Inc. Recurring Service Fees for such cross-connects are as indicated on the Order Form. The carriers will install such circuits in Customer’s name. Customer will be solely responsible for such circuits and for all payments due to the carriers. Customer will notify the carrier directly when Customer wishes to terminate or modify such circuit. Customer understands that Colocation America Inc. does not own or control these services and that Colocation America Inc. is not responsible or liable for performance (or non-performance) of such services. Customer also agrees to cover all cost incurred by Colocation America Inc. in order to facilitate Customer request. Colocation America Inc. reserves the right to refuse access to any carrier at its sole discretion. 5. Resale. Should Customer resell any portion of the Service to any other party, Customer assumes all liabilities arising out of or related to such third party sites and communication. Customer agrees to enter into written agreements with any and all parties to which it resells any portion of the Services with terms and conditions at least as restrictive and as protective of Colocation America’s rights as the terms and conditions of this Agreement, including without limitation, Sections 2.3,3,4,6,7,8,9, and 10. 6. Acceptable Use Guidelines. Customer must at all times conform its use of and comply with all sate and federal laws with respect to its operations in the Colocation Space. If Colocation America Inc. is informed by government authorities or other parties of illegal use of Colocation America’s facilities and/or Network or Colocation America Inc. otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Colocation America Inc. or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in Breach (defined below) of this Agreement and Colocation America Inc. may immediately suspend Customer’s Service. Customer agrees to comply with all of Colocation America’s Policy or Policies governing use of its Datacenter, Colocation Space and/or Network. Customer also agrees that due to the evolving nature of the Internet these policies may be amended or modified by Colocation America Inc. without prior notice as long as they are posted on Colocation America’s website and made available to Customer in writing upon request. Customer agrees to be bound by all such governing policies posted at http://www.ColocationAmerica.com/legal.html including but not limited to Acceptable Use Policy (AUP) and Terms and Conditions of Colocation America Inc. Network and Services utilized by Customer in addition to Colocation Service. 7. Insurance. Customer will keep in full force and effect during the term of this Agreement: (i) business loss and interruption insurance in an amount not less than that necessary to compensate Customer and its customers for complete failure of Service; (ii) comprehensive generally liability insurance; (iii) employer’s liability insurance; and (iv) worker’s compensation insurance. Customer agrees that Customer and its agents and representative shall not pursue any claims against Colocation America Inc. for any liability Colocation America Inc. may have under or relating to this Agreement. 8. Limitations of Liability. 8.1 Personal Injury. Each Customer Representative and any other persons visiting Colocation America Inc. facilities does so at his or her own risk and Colocation America Inc. shall not be liable for any harm to such persons resulting from any cause other than Colocation America’s gross negligence or willful misconduct resulting in personal injury to such persons during such a visit. Customer also understands that Colocation Space will be occupied by equipment and tools required in the operations of Datacenter which may be hazardous when operated by inexperienced operators, the Customer is solely responsible for any harm to Customer Representatives due to operation or in relation to use of these equipment and/or tools in Colocation America Inc. facilities. 8.2 Damage to Customer Business. In no event shall Colocation America Inc. be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer’s business, Customer’s customers or clients, Customer Representative’s activities at Colocation America Inc. or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customer’s business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. 8.3 Damage to Customer Equipment. Colocation America Inc. assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause other than Colocation America’s gross negligence or willful misconduct. In no event will Colocation America Inc. be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer Equipment of any lost revenue, lost profits, replacement good, loss of technology, rights or services incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of any Customer Equipment, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. 9. Defense of Third Party Claims and Indemnification. 9.1 Defense. Customer will defend Colocation America Inc., its director, officer, employees, affiliate and customers (collectively, the “Covered Entities”) from and against any and all claims, actions or demand brought by or against Colocation America Inc. and/or any of the Covered Entities alleging: (a) with respect to the Customer’s business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive harassing or illegal conduct or violation of the Acceptable Use Guidelines or Anti-Spam Policy; (b) any damage or destruction to the Colocation Space, Colocation America Inc. premises, Colocation America Inc. Equipment or to any other Colocation America Inc. customer which damage is caused by or otherwise results from acts or omissions by Customer, Customer representative or Customer’s designees; (c) any personal injury or property damage to any Customer employee, Customer Representative or other Customer designee arising out of such individual’s activities related to the Services, unless such injury or property damage is caused solely by Colocation America’s gross negligence or willful misconduct; or (d) any other damage arising from the Customer Equipment or Customer’s business (collectively, the “Covered Claims”). In the event of any claim under this paragraph, Colocation America Inc. may select its own counsel. 9.2 Indemnification. Customer hereby agrees to indemnify Colocation America Inc. and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless Colocation America Inc. and each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, “Losses”) suffered by Colocation America Inc. and each Covered Entity which Losses result from or arise out of a Covered Claim. 9.3 Notification. Customer will provide Colocation America Inc. with prompt written notice of each Covered Claim of which Customer becomes aware, and, at Colocation America’s sole option, Colocation America Inc. may elect to participate in the defense and settlement of an Covered Claim, provided that such participation shall not relieve Customer of any of its obligation under this Section. 10. Reliance on Disclaimer, Liability Limitations and Indemnification Obligations. Customer acknowledges that Colocation America Inc. has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customer’s indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of their essential purpose. 11. Conditions of Breach. Breach of this Agreement will occur if either party does not fulfill its obligations under this Agreement and such Breach is not cured within ten (10) days of written notice by the other party. Specifically relating to payment of Recurring Service Fees, the Customer will be in Breach of this Agreement if Customer has not paid its invoice within ten (10) days of the invoice due date. 12. Remedies for Breach. If Customer is in Breach of this Agreement, Colocation America Inc. may (a) discontinue all Services to Customer; (b) disconnect Customer from its Internet, power and telecommunications services; (c) remove Customer Equipment from Colocation Space and place in storage; and (d) order Customer to pay any and all amounts due to the date that the Customer Equipment was removed and order Customer to buy out the remaining term of the Agreement as specified in the Order Form (“Early Buy Out”). If Colocation America Inc. is in Breach of the Agreement, Customer has the right to withhold recurring Service Fees for the time period from which the Breach occurred to the date that the Breach was cured. 13. Early Buy Out. If Customer wishes to terminate this Agreement prior to the date specified on the Order Form, it may elect an Early Buy Out. If the Customer is in Breach of this Agreement, Colocation America Inc. may order the Customer to purchase an Early Buy Out. The amount due in an early buyout shall be the remaining portion of the renewal term. 14. Miscellaneous Provisions. 14.1 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. 14.2 No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Colocation Space or other Colocation America Inc. premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances. 14.3 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business. 14.4 Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party that should not be unreasonably withheld, except to a party that acquires substantially all of the assigning party’s assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. 14.5 Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated above, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier. 14.6 Relationship of Parties. Colocation America Inc. and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Colocation America Inc. and Customer. Neither Colocation America Inc. nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. 14.7 Choice of Law and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of California. Each party agrees to submit any and all disputes concerning this Agreement, if not resolved between the parties, to binding arbitration under one (1) neutral, independent and impartial arbitrator in accordance with the Commercial Rules of the American Arbitration Association (“AAA”); provided, however, the arbitrator may not vary, modify or disregard any of the provisions contained in this Section. The decision and any award resulting from such arbitration shall be final and binding. The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. Both parties shall equally share the fees of the arbitrator. The arbitrator may award attorney’s fees to the prevailing party as determined by the arbitrator. 14.9 Changes Prior to Execution. Customer represent and warrants that it made no changes to this Agreement prior to providing this Agreement to Colocation America Inc. for its acceptance and execution, and that Colocation America Inc. alone incorporated any and all changes negotiated between, and accepted by, Customer and Colocation America Inc. into this Agreement or into an addendum executed by both parties. 14.10 Entire Agreement. This Agreement, together with the Order Form and Colocation America Inc. policies referred to in this Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties. Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Agreement and to perform their obligations under this Agreement and the person whose signature appears above is duly authorized to enter into this Agreement on behalf of the respective party. Should any terms of this Agreement be declared void or unenforceable by any arbitrator or court of competent jurisdiction, such terms will be amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of the Agreement will remain in full force and effect. If a conflict arises between Customer’s purchase order terms and this Agreement, this Agreement shall take precedence. In the case of international, federal, state or local provisions to the contrary on the face of this purchase order, attachments to this purchase order, or on the reverse side of this purchase order, this purchase order is being used for administrative purposes only, and this purchase order is placed under the subject solely to the terms and conditions of this Agreement executed between Customer and Colocation America Inc..
Service Level Agreement
This Service Level Agreement (“SLA”) is issued in accordance with the Master Services Agreement (the “Agreement”) between Colocation America and Customer. Any capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Terms and Conditions of the Agreement. This SLA sets forth the colocation and power services to be provided by Colocation America to Customer and the Service Levels in accordance with which such services will be provided. 1. General 1.1. In this SLA, the following terms have the following meanings: a) “Facility” means the building in which the data centers are located. b) “Data Center” means the physical location where Colocation America houses computer systems and associated components. c) “Data Center Availability” means all the time in any calendar month the Data Center is available to visit, not to include Scheduled Downtime. d) “Data Center Downtime” means any interruption in the Data Center Availability guaranteed in Section 3.1., not to include Scheduled Downtime. e) “Force Majeur” means an act of nature (including fire, flood, earthquake, storm, hurricane or other natural disasters at data centers), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, or embargo. f) “Power” means the physical electricity delivered to the Customer within the Data Center. g) “Power Downtime” means any interruption to the Power delivered to the Customer within the Data Center guaranteed in Section 4.1. h) “Environment” means the recorded ambient temperature within the Data Center. i) “Environment Downtime” means a change in the recorded ambient temperature that is outside of the 66 and 78 degree range maintained within the Data Center guaranteed in Section 5.1. j) “Order Form” shall mean the order form for Services executed by both Colocation America and Customer. k) “Service Outage” shall mean any Data Center, Power or Environment downtime. l) “Services” shall have the meaning ascribed thereto in paragraph 2.1. 1.2. This SLA only applies to the Services to the extent that they are provided by means of systems and equipment that are either owned or operated by or on behalf of Colocation America. 1.3. Colocation America shall not be liable to pay compensation under this SLA where its failure to meet any of its obligations under this SLA is a caused by a Force Majeure event, by the performance of routine maintenance, by a failure in any Customer equipment, or by any act or omission of Customer, or third party acting on Customer’s behalf. 1.4. Credits and/or other compensation under this SLA shall only be payable where: a) Customer is not currently, nor was at the time the Service Outage occurred, in default of any of the terms and conditions of the Agreement and this SLA; b) Customer has submitted to Colocation America a claim in writing via [email protected] identifying the circumstances in which Customer claims that the credit and/or compensation arose; and c) Colocation America has agreed in writing, acting reasonably and without undue delay, to issue such credit and/or other compensation in connection with such claim. All credits and/or other compensation so payable shall be applied to Customer’s account to be reconciled following Colocation America’s agreement to issue such credit and/or other compensation in connection with such claim. In order to receive credits, Customer must submit a trouble ticket within 48 hours of the Service Outage. All claims for credits and/or compensation must be submitted promptly and in any event within 7 days from the date of the Service Outage. Claims should be submitted to [email protected] and marked in the subject line with “claim for services credit.” Customer’s failure to notify Colocation America within the period stated above shall result in Customer’s waiver of its right to receive any such credit and/or other compensation. 1.5. The maximum monthly credit and/or compensation available under this SLA is limited to an amount not greater than one month’s fees. Credit and/or other compensation provided here under shall be Customer’s sole and exclusive remedy for any Service Outage or any failure to meet the Deliverables. 1.6. Colocation America reserves the right to amend the SLA from time to time. Colocation America shall give Customer not less than one (1) month’s notice of any changes in the SLA and Customer will be notified by e-mail. Upon receipt of such notice, Customer shall have the right, for a period of 30 days thereafter, to terminate this SLA if Customer disagrees with such amendment. 2. Provision of Services 2.1. Colocation America will provide Customer with colocation and power services (the “Services”) in accordance with the terms and conditions contained herein for the six-month, one-year, two-year or month-to-month term set forth in the Order Form. 2.2. Colocation America will provide Services by the service commencement date set out in the Order Form. If Colocation America is unable to commence providing Services by the service commencement date, at Customer’s request Colocation America will credit. Customer’s account in the amount of 50% of the setup fee (non-recurring charge) set out in the Order Form. 2.3. For each additional business day from the service commencement date that Colocation America is unable to commence providing Services, at Customer’s request Colocation America will credit Customer’s account in the amount of an additional 5% of the setup fee, up to a maximum of 100% of the setup fee. 2.4. Colocation America shall charge, and Customer shall be obligated to pay, the fees for the Services set forth on the Order Form. 3. Service Levels for Facility & Data Center Availability 3.1. Colocation America guarantees an overall Facility and Data Center Availability of 100%. 3.2. Colocation America may temporarily suspend access to the Data Center to carry out periodic maintenance or upgrade work (“Scheduled Downtime”). 3.3. Except in the case of an emergency, Colocation America will provide Customer with one week’s notice of Scheduled Downtime. If Colocation America fails to provide the appropriate notice, at Customer’s request, Customer will be entitled to a credit to Customer’s account in the amount of the pro rated fee for the provision of one day of Services. This credit will only apply to monthly recurring fees on power and space within that Data Center. 3.4. Colocation America will endeavor not to suspend access to the Data Center Scheduled Downtime more than 12 times in any calendar year and not exceed a total of 12 hours in any calendar year and at Customer’s request, Customer will receive a credit to Customer’s account in the amount of the pro rated fee for the provision of one day of Services for each additional service suspension for such work. This credit will only apply to monthly recurring fees on power and space within that Data Center. 3.5. Colocation America will endeavor to accommodate Customer’s requirements in terms of outage times, however, depending on the circumstances this may not always be possible. Outage times will be quoted in Pacific Time to prevent mistakes being made over the various time zones. 4. Service Levels for Power Availability 4.1. Colocation America guarantees an overall Power Availability of 100%. 4.2. If Customer requests a credit for Power Downtime, and such request is validated by Colocation America, Colocation America shall credit Customer in accordance with the provisions hereunder: If in one calendar month a Customer experiences Power Downtime that is not the result of faulty equipment within the Customer’s cabinet or cage or any form of negligence on the Customer’s part, at Customer’s request Customer will receive a credit towards the invoice which Customer receives two months following the month in which Power Downtime was reported. For the purpose of determining the amount of any credit, Power Downtime will be deemed to commence when the Power outage is reported on Colocation America’s electrical monitoring system. An alert system notifies Colocation America support staff immediately when any Power Downtime is reported on the electrical monitoring system and a trouble ticket will be opened within 5 minutes of Colocation America’s discovery of Power Downtime if it has not yet been reported by Customer. 4.3. If there is Power Downtime in the aggregate in any calendar month, Customer shall be entitled to a maximum credit of 100% of that month’s invoice for the portion of the invoice that corresponds to Power and Space at the given Data Center in which Power Downtime occurred as illustrated in the table below: Length of Outage Percent of MRR Credited ——————————————————————– Up to 1 hour 5% MRR 1 – 2 hours 10% MRR 2 – 4 hours 15% MRR 4 – 6 hours 20% MRR 6 – 12 hours 25% MRR 12 – 24 hours 40% MRR 24 – 48 hours 50% MRR 48 – 72 hours 75% MRR 72+ hours 100% MRR 4.4. If Power Downtime is to occur, Customer may give written notice of Customer’s intent to terminate this SLA and any connections or other Services, which termination will take effect after 30 days. 5. Service Levels for Environment 5.1. The average ambient temperature in the Data Center will be 72 degrees Fahrenheit +/- 6 degrees at all times. Temperature may be measured at points in the Facility of Colocation America’s choosing provided that those points are within 2 feet of Customer’s equipment in Customer’s environment. Temperature is monitored and recorded electronically and provides audible alerts as well as alerts through a paging system if the threshold listed above is breached. 5.2. If Environment Downtime is to occur for more than 48 hours in the aggregate in any calendar month, Customer shall be entitled to a credit of 100% of that month’s invoice for the portion of the invoice that corresponds to Power and Space at the given Data Center in which Environment Downtime occurred. 5.3. If Environment Downtime is to occur for more than 48 hours in the aggregate in any calendar month, Customer may give written notice of Customer’s intent to terminate this SLA and any connections or other Services, which termination will take effect after 30 days.
Acceptable Use Policy
This Acceptable Use Policy document, including the following list of Prohibited Activities, is an integral part of your Hosting Agreement with Colocation America Corporation. If you engage in any of the activities prohibited by this AUP document Colocation America Corporation may suspend or terminate your account. Colocation America Corporation’s Acceptable Use Policy (the “Policy”) for Colocation America Corporation Services is designed to help protect Colocation America Corporation, Colocation America Corporation’s customers and the Internet community in general from irresponsible or, in some cases, illegal activities. The Policy is a non-exclusive list of the actions prohibited by Colocation America Corporation. Colocation America Corporation reserves the right to modify the Policy at any time, effective upon posting at https://www.colocationamerica.com/legal A. Modification. Colocation America Corporation reserves the right to modify this Policy at anytime. The modification or modified policy will be effective immediately upon posting at https://www.colocationamerica.com/legal B. Violations. Any violation will result in immediate suspension, termination and/or compensations awarded to Colocation America for damages caused by these violations as detailed in this Policy. You shall remain solely liable and responsible for your use of the Colocation America Services and any all content that you display, upload, download, or transmit through the use of the Colocation America Services. Colocation America will be the sole arbiter as to what constitutes a violation of this policy. There shall be no refund for any account which violates the AUP. In the event of an AUP violation, any and all materials if necessary will be provided to the proper authorities should charges need to be placed for any infraction of local, federal or international law. C. Illegal Use. You may use Colocation America’s Services for lawful purposes only. Transmission, distribution, sale, or storage of any material that violates any law, regulation or this Policy is strictly prohibited. This includes, without limitation: any copyrighted material regardless of copyright location; trademarks; patent; trade secrets, material that obscene, defamatory, constitutes an illegal threat or violates export control laws. Examples of unacceptable content or links include: pirated software, hacker programs or archives, Warez sites, copyrighted music, mp3s and any other form of media deemed worthy to fall under this section by the System Administrators and/or Management staff. Colocation America Corporation reserves the right to restrict, prohibit, or remove any content that it determines in its sole discretion to be harmful to the server, networks, equipment, reputation, customer or any other third party. D. E-mail. The sending of any form of Unsolicited Bulk Email through Colocation America Corporation’s servers is prohibited. Likewise, the sending of UBE from another service provider advertising a web site, email address or utilizing any resource hosted on Colocation America Corporation’s servers, is prohibited. Colocation America Corporation accounts or services may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider. Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Colocation America Corporation customers must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to from any Colocation America Corporation-hosted domain, or referencing any Colocation America Corporation account, is prohibited. Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, denial of service attacks is prohibited. Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org is not permitted and will cause immediate termination of services. Colocation America will be the sole arbiter as to what constitutes a violation of this provision. Any violation of this provision will result in immediate termination of your account. E. Server Resources. Colocation America allows acceptable usage of our CPU and server resources for those accounts which do not harm server performance or network integrity. Any misuse of these resources or use of massive amounts of the resources as determined by the System Administrators shall result in suspension of the account. Server misuse includes overuse of the CPU or server resources due to: excessive server hits, hit flooding, bandwidth over-usage, bandwidth flooding, corrupt scripts, malformed or excessive content, along with any other items for which system administrators deem a misuse of server resources. F. General Scripts/CGI-scripts. General Scripting/CGI-script sharing among domains not hosted by Colocation America is strictly prohibited. Any General Scripting/CGI-script considered to be harming system performance or network integrity will be shut down without prior notice. G. System and Network Security. Any form of violation of Colocation America’s, or any third party’s server, system, or network security through the use of Colocation America Services are prohibited and may result in criminal or civil liability. Colocation America may investigate such incidents and cooperate with the proper law enforcement authorities if a criminal violation is suspected. This includes, without limitation: (1) distributing or hosting content, destructive or harmful content including, without limitation, viruses, Trojan Horses, worms, time bombs, eggdrops, cancel bots or any computer programming routines that may damage or interfere with any system, program, data or personal information; (2) any form of hacking or unauthorized access, which includes, without limitation, use probing, or scanning of systems security or authentication measures, data or traffic; (3) interference with service to any user, host, or network including any form of attempts to overload a system, any form of system attacks, or forgery which can come from any kind of program/script/command or messages of any kind designed to interfere with a user’s terminal session, via any means, locally or by internet; (4) any form of interception which includes, without limitation, unauthorized monitoring of data or traffic on any network, server or system without express authorization from the owner; (5) any form of avoidance of system restriction; (6) and any form of failure to safeguard accounts which includes, without limitation, failure to prevent unauthorized access by giving away passwords. H. Fraud Content. Offering or distributing any fraudulent goods, services, schemes or promotions (e.g. – make money fast schemes, chain-letters, pyramid schemes), or submitting false data on any sign-up form, contract or online application through registration, or any fraudulent use of information obtained through the use of Colocation America Services, including, without limitation, use of credit card numbers, phone numbers, e-mail addresses, or home addresses is strictly prohibited. I. Customer Responsibility for Customer’s Users Each Colocation America customer is responsible for the activities of its users and, by accepting service from Colocation America, is agreeing to ensure that its customers/representatives or end-users abide by this Policy. Complaints about customers/representatives or end-users of a Colocation America customer will be forwarded to the Colocation America customer’s postmaster for action. If violations of the Colocation America Acceptable Use Policy occur, Colocation America reserves the right to terminate services with or take action to stop the offending customer from violating Colocation America’s AUP as Colocation America deems appropriate, without notice.
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