General Terms and Conditions
This is a general services agreement (the "Agreement") between Digiport Miami, LLC ("Digiport"), and Digiport's customer named in the attached Order Form (the "Customer"). Digiport and Customer are hereinafter referred to as the "Parties" or individually as a "Party."
1.TERM, RENEWAL, AND TERMINATION.
1.1.This Agreement shall apply to all services provided by Digiport to Customer (the "Services"), commence on the date of last execution of the applicable Order Form (the "Effective Date"), and shall continue through the term set forth in the Pricing and Payment Worksheet (the "Term") and any renewal Term(s), whether by execution of renewal agreements or by auto-renewal.
1.1.1.If: (i) Customer purchases additional Services after the Effective Date (the "Additional Services"); and (ii) if the then-remaining Term for the Services is one year or more, unless otherwise stated in the Order Form Amendment, the Term for the Services and Additional Services shall not be extended merely because Customer purchased Additional Services; and the Term for the Additional Services shall be the same as the Term for the Services.
1.1.2.If: (i) Customer purchases Additional Services after the Effective Date; (ii) the current remaining Term for the Services is less than one (1) year; and (iii) the Order Form Amendment represents greater than a 2120% change in Digiport's pricing for the Services, unless otherwise stated in the Order Form Amendment, the Term for the Services and Additional Services shall be extended one (1) year.
1.2.Following the expiration of the then-current Term, the Term shall automatically renew for an additional one (1) year Term unless and until cancelled in writing by either Party at least sixty (60) days before the expiration of then-current renewal Term. The terms applicable to any such renewal or extension shall be the same as those set forth in this Agreement, except that the fees applicable to such renewal or extension shall be at Digiport's then current rates. Digiport shall notify Customer of any increase in fees for the renewal Term at least thirty (30) days prior to the scheduled expiration of the then-current Term.
1.3.Notwithstanding anything to the contrary set forth in this Agreement, Digiport may terminate this Agreement, the Services, and any Additional Services, without cause, by providing thirty (30) days written notice to Customer..
1.4.If Customer decides to terminate a Service or Additional Services prior to the end of a Term or renewal Term for any reason other than in response to Digiport's default of Digiport's material obligations under this Agreement, Customer shall be subject to early termination charges. Early termination charges shall be equal to the number of months remaining in the Term multiplied by the monthly recurring rate for the Services and Additional Services. Customer shall be obligated to pay all such charges within thirty days from Customer's notice of termination.
1.5. If Customer defaults in the performance of any of Customer's material obligations pursuant to this Agreement, and if any such default is not corrected within thirty (30) days after such default shall have been called to the attention of Customer, in writing, by Digiport, then Digiport, at Digiport's option, may, in addition to any other remedies Digiport may have, thereupon terminate this Agreement by giving written notice of termination to Customer.
2.PAYMENT.
2.1.Digiport shall provide Customer with a monthly invoice. Customer's first invoice shall include all charges, including but not limited to: (i) charges described in the Order Form (ii) non-recurring charges; (iii) recurring charges for the first full month; (iv) any additional charges incurred because of Customer's special requests; and (v) any pro-rated charges for Services provided before the first full month of service. Customer shall be responsible for all applicable taxes and fees.
2.2.All fees shall be payable monthly in advance, with the first such payment due on the date of execution of this Agreement. Payment of invoiced amounts shall be due to Digiport within thirty (30) days of the date of invoice. Late payments shall be assessed a late fee of the greater of ten (10%) percent or $50; and accrue interest at the lesser of 1-1.5?% per month or the maximum rate allowed by law. In the event any check given for any payment under this Agreement shall be dishonored at any time for any reason whatsoever not attributable to Digiport, Digiport shall be entitled, in addition to any other remedy that may be available, to the maximum charge permitted by law.
2.3.Digiport reserves the right to: (i) invoice Customer retroactively for any Services and Additional Services provided for which Digiport had not previously billed Customer; (ii) invoice Customer retroactively for the costs of the removal and storage of any of Customer's equipment, property, or data Customer has in Digiport's facility (the "Customer Property") if this Agreement is terminated and the Customer Property is not removed by Customer within fifteen (15) days of such termination; (iii) to seize and sell the Customer Property to satisfy Customer's outstanding balance due if Customer does not pay off any balance due within fifteen (15) days of termination of this Agreement and Customer has not removed the Customer Property; and (iv) seize any Deliverable Digiport deems appropriate to ensure Customer's payment of outstanding balances upon termination of this Agreement. Upon termination of this Agreement for any reason, Customer may not remove Customer's Property from Digiport's facilities until all money due to Digiport from Customer under this and any other agreement between Customer and Digiport has been paid in full. Nothing in this Agreement shall be construed as creating any obligation on Digiport to store any Customer Property after termination of this Agreement. Digiport hereby reserves all of Digiport's remedies including those remedies that may arise from Digiport's security interest in the Customer Property.
3.SECURITY INTEREST.
3.1.As collateral security for all of Customer's payment obligations under this Agreement, the Order Form, and any related supporting agreements, Customer hereby grants Digiport, to the maximum extent permitted by law, a first priority security interest in (i) the Customer Property, and (ii) any and all income, proceeds, products and profits derived from this Agreement (such items of collateral are hereinafter collectively or individually referred to as the "Security"). Customer shall, at Digiport's expense, take all commercially reasonable action required by Digiport to further evidence or perfect such security interest. In the event Digiport exercises Digiport's rights set forth in this Section, Customer shall cooperate in good faith in assisting Digiport.
3.2.The Customer represents and warrants that:
3.2.1.Except for the security interest granted by this Agreement, the Customer has, or on acquisition shall have, full title to the Security free from any lien, security interest, encumbrance, or claim, and the Customer, at the Customer's cost and expense, shall defend any action that may affect Digiport's security interest in, or the Customer's title to, the Security;
3.2.2.No financing statement covering the Security, any part of the Security, or any proceeds of the Security is on file in any public office;
3.2.3.Customer shall not sell, contract to sell, lease, encumber, or dispose of the Security or any interest in Security without the written consent of Digiport until this Agreement and all debts secured by the Security have been fully satisfied;
3.2.4.Until final termination of this Agreement Customer, at the Customer's own cost and expense, shall insure the Security with companies acceptable to Digiport against the casualties and in the amounts that Digiport shall reasonably require, with a loss payable clause in favor of Digiport. Customer must deliver a duplicate copy of each such policy to Digiport;
3.2.5.Customer shall keep the Security in good order and repair and shall not waste or destroy the Security or any part of the Security. The Customer shall not use the Security in violation of any statute or ordinance, and Digiport shall have the right to examine and inspect the Security at any reasonable time; and
3.2.6.Customer grants to Digiport a security interest in and to all proceeds, increases, substitutions, replacements, additions, and accessions to the Security and to any part of the Security. This provision shall not be construed to mean that the Customer is authorized to sell, lease, or dispose of the Security without the prior written consent of Digiport.
3.3.Upon the occurrence of any default by Customer that has not been cured, Digiport shall have the right with or without legal process and with or without previous notice or demand for performance, to replevy, take possession or control of the Security or any part thereof at the same or different times and, generally, to exercise any and all rights, of any kind or nature, afforded to a secured party under Florida Statutes, or other applicable law, or in equity. Without limiting the generality of the foregoing, Customer agrees that Digiport shall have the right upon nonpayment of any amounts due pursuant to this Agreement, and such nonpayment has not been cured subject to the mandatory requirements of applicable law (if any), to sell or otherwise dispose of all or any part of the Security at public or private sale for cash, upon credit or for future delivery as Digiport shall deem appropriate. Upon consummation of any such sale Digiport shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Security so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of Customer it being understood that Customer shall retain the right to redeem the Security at any time prior to sale.
3.4.Digiport shall give Customer fifteen (15) days written notice (which Customer agrees is reasonable notice within the meaning of Florida Statutes Section 679.611 or its equivalent in other jurisdictions) of Digiport's intention to make any sale of the Security. Such notice, in the case of a public sale, shall state the time and place for such sale. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Digiport may fix and state in the notice of such public sale. At any such sale, the Security, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as Digiport may in Digiport's sole and absolute discretion determine. Digiport shall not be obligated to make any sale of any Security if Digiport shall determine not to do so, regardless of the fact that notice of sale of such Security shall have been given. Digiport may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Security is made on credit or for future delivery, the Security so sold may be retained by Digiport until the sale price is paid by the purchaser or purchasers thereof, but Digiport shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Security so sold and, in case of any such failure, such Security may be sold again upon like notice. At any public or, to the extent permitted by law, private sale made pursuant to this Section, Digiport may bid for or purchase, the Security or any part thereof offered for sale and may make payment on account thereof by using any "Obligation" (defined as all present and future monetary obligations of Customer to Digiport under this Agreement) then due and payable to Digiport from Customer as a credit against the purchase price and Digiport may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to Customer, provided that the purchase price paid by Digiport reflects at least the fair market value on the secondary market of the Security. For purposes of this Section, a written agreement to purchase the Security or any portion thereof shall be treated as a sale. As an alternative to exercising the power of sale, Digiport may proceed by a suit or suits at law or in equity to foreclose and to sell the Security or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
3.5.In the event Digiport exercises this right in lieu of a sale of Security as provided above, then the amounts payable to Digiport, which are in default, shall be credited by an amount equal to the fair market value of such Security and Digiport shall retain Digiport rights to pursue collection of any remaining unpaid amounts.
3.6.Digiport shall apply the proceeds of any collection or sale of the Security, as well as any Security consisting of cash, as follows:
3.6.1.First to the payment of all costs and expenses incurred by Digiport in connection with such collection or sale, or otherwise in connection with this Agreement, or any of the Obligations, including all court costs and the fees and expenses of Digiport's agents and legal counsel, the repayment of all advances made by Digiport on behalf of Customer and any other costs or expenses incurred in connection with the exercise of any right or remedy;
3.6.2.Second to the payment in full of the Obligations in such order as Digiport may elect; and
3.6.3.Third to Customer or Customer's successors or assigns, or as a court of competent jurisdiction may otherwise direct.
3.7.Digiport shall have absolute discretion as to the time of application of any such proceeds, moneys, or balances. Upon any sale of the Security by Digiport, including pursuant to a power of sale granted by statute or under a judicial proceeding, the receipt of sale from Digiport or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Security so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to Digiport or such officer or be answerable in any way for the misapplication thereof.
4.INVOICE DISPUTES. Customer shall have up to twenty-five (25) days, commencing five (5) days after the date of Digiport's invoice, to initiate a dispute over charges. To dispute an invoice, Customer must send Digiport a written itemized description of the specific items Customer disputes as contained in such invoice. The Parties agree to use their reasonable best efforts in resolving billing disputes.
5.IMPLEMENTATION AND BACKUP.
5.1.To implement the Services or Additional Services, Customer may be required to provide Digiport with technical information. Until Digiport receives this information, Digiport shall have no obligation to provide the Services or Additional Services. After received the required technical information, Digiport's obligation to provide the Services or Additional Services shall commence a reasonable time after Digiport receives this technical information.
5.2.Customer has sole the responsibility to back up Customer's data. Customer acknowledges and agrees that a backup at a geographically remote second facility is important for data backup and recovery.
6.PRIVACY POLICY, ACCEPTABLE USE POLICY. Digiport's Digiport's shall retain all customer data as Private without sharing of information to third party firms. Digiport strictly prohibits any Internet traffic that could have a negative impact on IP routing and reserves the right to restrict the distribution of this traffic at any time. This includes the distribution of Spam or as may evolve on the internet any form of internet traffic that upstream carriers or private organizations deem unfit for the internet and cause a restrictive routing policy to be in place. Privacy Policy and Acceptable Use Policy are posted online at __________________________. Customer shall be responsible for reviewing these policies from time to time and ensuring Customer's activities do not violate these policies. These policies are dynamic and may change from at any time in Digiport's sole and absolute discretion.
7.WARRANTY.
7.1.CUSTOMER AGREES THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS SET FORTH BELOW ARE REASONABLE, REFLECT AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS BOTH KNOWN AND UNKNOWN THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, AND ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT.
7.2.THE TRANSMISSION, STORAGE, VIEWING AND RETRIEVAL OF DATA AND FILES THROUGH THE INTERNET ARE SUBJECT TO A VARIETY OF CONDITIONS BEYOND DIGIPORT'S CONTROL THAT MAKE SUCH TRANSMISSION, STORAGE, VIEWING AND RETRIEVAL POTENTIALLY UNRELIABLE. THE SERVICES AND ADDITIONAL SERVICES, INCLUDING BUT NOT LIMITED TO, ALL CONTENT, SPACE, LICENSES, POWER, BACKUP POWER, FUNCTIONS, MATERIALS, AND INFORMATION ARE PROVIDED "AS IS."
7.3.DIGIPORT DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. DIGIPORT DOES NOT WARRANT THAT THE SERVICES OR ANY MATERIALS OR CONTENT CONTAINED THEREIN SHALL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS SHALL BE CORRECTED; OR THAT THE SERVICES AND ADDITIONAL SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DIGIPORT SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES AND ADDITIONAL SERVICES INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.
8.LIMITATIONS OF LIABILITY. DIGIPORT SHALL NOT RESPONSIBLE FOR ANY BUSINESS INTERRUPTIONS THAT MAY BE CAUSED BY THE CUSTOMER'S USE OF THE SERVICES AND ADDITIONAL SERVICES, OR THE CUSTOMER'S INABILITY TO ACCESS THE SERVICES OR ADDITIONAL SERVICES. UNDER NO CIRCUMSTANCES SHALL DIGIPORT BE LIABLE TO THE CUSTOMER FOR COST OF PROCUREMENT OF REPLACEMENT SERVICES OR DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE THE SERVICES OR ADDITONAL SERVICES EVEN IF DIGIPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF DIGIPORT TO THE CUSTOMER FOR ALL CLAIMS RELATING TO THIS AGREEMENT AND ANY SERVICES OR ADDITOINAL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY THE CUSTOMER TO DIGIPORT PURSUANT TO THIS AGREEMENT DURING THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE.
9.INDEMNITY. Customer agrees to indemnify, defend and hold harmless Digiport and Digiport's subsidiaries and affiliates from and against any and all liabilities, claims, losses, damages, costs and expenses, including, but not limited to, reasonable attorneys' fees, related to or arising from: (i) Customer's use of the Services or Additional Services; (ii) any violation of Digiport's Privacy Policy and Acceptable Use Policy by Customer or Customer's end-users; (iii) Customer's negligent or willful acts or omissions; and (iv) Customer's breach of any agreement with Digiport.
10.INSURANCE.
10.1.Customer shall bear the solely responsibility for insuring the Customer Property. Digiport shall not provide such insurance, nor shall Digiport insure the Customer Property.
10.2.Customer, at Customer's expense, shall obtain and keep in full force and effect at all times for the duration of this Colocation Agreement, with a carrier or carriers satisfactory to Digiport, insurance policies of the following kinds and in the following amounts:
10.2.1.Comprehensive General Liability Insurance in an amount not less than $1,000,000 per occurrence for bodily injury or property damage; and
10.2.2.Worker's Compensation in an amount not less than that prescribed by statutory limits.
10.3.Customer shall have thirty (30) days after Customer's acceptance of this Agreement to review and adjust Customer's insurance coverage as needed to comply with this Section. Each policy shall provide that no change or cancellation shall become effective except upon thirty (30) days' prior written notice to Digiport of such change or cancellation. In the event of any change or cancellation not acceptable to Digiport, Digiport may demand that Customer obtain replacement coverage. If Customer fails to obtain replacement coverage within ten (10) days after such demand by Digiport, Customer shall be in default of this Agreement.
10.4.If Customer uses a contractor in connection with this Agreement, then Customer shall require such contractor to have commercially reasonable insurance coverage before undertaking any work for Customer.
11.OPERATION OF FACILITIES. Digiport retains the right to maintain and operate Digiport's facilities in such a manner as shall best enable Digiport to conduct Digiport's normal business operations. Customer may not terminate this Agreement based on changes in such operations unless such a change materially alters the type of services provided by Digiport.
12.SUPPORT.
12.1.Customer may purchase support from Digiport. Support may be provided by Digiport 24/7/365 days per year. Support issues shall be billed based on one hundred and fifty dollars ($150) an hour for lead tlevel 2 technicians and seventy-five dollars ($75) an hour for level 1junior technicians, billed in thirty minute increments "Support Rates". Rates subject to change after initial twelve months of service to then current market rates for such service. Customer expressly understands that technical support is a highly technical service that carries no guarantees of results. Digiport technicians shall use their best efforts to resolve all Customer technical support requests, but Digiport cannot and shall not guarantee results.
12.2.Digiport shall not be required to provide any support unless Customer purchases support. If Customer has not purchased support Digiport may, at Digiport's sole and absolute discretion, use Digiport's best efforts to provide assistance but shall not be required to do so unless otherwise stated in this Agreement or any other agreement.
12.3.Support Contracts shall be subject to 9am - 7pm Monday through Friday ("Standard Hours") at above stated rates. Items requiring off-hour work shall be billed at 150% of current Support Rates ("Off Hour Rates"). Support Contracts shall be classified based on Support Response Times; 4hr, 8 hr or Best Efforts and Classes of Service; Working Hours or 24/7. Services covered within the Support Contracts shall be specifically described in the Pricing and Services Worksheet and shall not include items outside the scope of the agreement. Digiport will make best efforts to assist customers in resolution outside the scope of the agreement.
12.4.As a tool for measuring the consistency of services the Service Level Agreement 1 ("SLA1") shall indicate 99.9% reliability; Service Level Agreement 2 ("SLA 2") shall indicate 99.5% reliability. In the course of business it shall be necessary to complete maintenance events to maintain a secure and stable operating environment ("Maintenance Window"). Digiport shall take precautions to minimize the impact of such maintenance on customer operations. Maintenance Windows shall not be included in the measurement of Service Level Agreements.
13.NETWORK.
13.1.Digiport shall provide and connect a cable from the core switch on Digiport's network to the jack on the rack or cabinet provided for such connections in the Space. Network availability or "up-time," which refers to the ability of Customer to access the Digiport network, shall be not be less than 99.95% during any calendar month (the "Network Availability Objective" and "SLA1) not including Maintenance Windows. Network unavailability shall be determined by calculating the length of time of a complete failure of the Services (the "Outage"). Outages shall be measured from the minute Customer notifies Digiport of, or Digiport otherwise becomes aware of, the Outage until the minute Digiport notifies Customer that the Outage has been resolved. Digiport services shall not be held responsible for failures accountable to third party provisioned circuits outside of the facility including T-1, PRI or Metro Ethernet Circuits. Circuits provisioned from third parties shall be subject to the terms and conditions of the third party provider with consideration to cancellation, service level agreement, delivery timeframes and other provisions unique to that provider.
13.2.Data transfer fees relating to the Services shall be based on Customer average monthly throughput. Customer shall be billed according Contracted Mbps as detailed in Pricing and Services Worksheet according to industry standard 95th percentile billing. Overrage usage shall be billed at pay a 20% premium above Contracted pricing. $______ for each kbps over Customer monthly kbps allotment. If Customer does not use all of Customer's kbpsMbps allotment, Customer shall not receive a refund or prorated billing. Data transfer overage charges are payable in arrears by the date specified in the applicable invoice. Customer may increase or decrease the contracted bandwidth allotment for the current or a future billing period at any time without penalty by providing notice to Digiport.
13.3.
14.MARKETING. Customer consents to the use by Digiport of Customer's name, trademarks, and logos, together with a summary description of the engagements arising out of this Agreement, in Digiport's promotional materials.
15.MISCELLANEOUS.
15.1.Notices. Whenever under the provisions of this Agreement, notice is required or permitted to be given, it shall be in writing, in English, and shall be deemed given either when delivered personally, or by courier, or by facsimile machine with printed transmittal confirmation sheet, or three (3) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to the Party for whom it is intended or to such other addresses as a Party shall hereafter designate in writing to another Party.
15.2.Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any and all other prior or contemporaneous written or oral agreements or understandings between them with respect to the subject matter contained in this Agreement.
15.3.Assignment. The Customer shall not assign rights or interests nor delegate duties under this Agreement without the prior written consent of Digiport, which consent may be withheld for any reason in Digiport's sole discretion. Any purported assignment or delegation violating this provision shall be void.
15.4.Governing Law. This Agreement and the interpretation of the terms shall be governed by and construed in accordance with the laws of the State of Florida, without regard to that state's conflicts of laws rules.
15.5.Jurisdiction and Venue. The Parties irrevocably submit and consent to the exclusive jurisdiction and exclusive venue of the Florida state courts in and for Miami-Dade County Florida and the Federal Courts in and for the Southern District of Florida. The Parties waive all rights to trial by jury in any action or proceeding instituted in connection with this Agreement. The Parties agree not to raise the defense of forum non conveniens.
15.6.Force Majeure. Except for Customer's obligation to pay fees and expenses to Digiport, neither Party shall be liable for any delay in performing its obligations under this Agreement, if such delay is caused by circumstances beyond the Parties' reasonable control, including without limitation, any delay caused by any act or omission of the other Party, acts of God, war, terrorism, floods, windstorm, labor disputes, or delay of essential materials or services. The delayed Party shall promptly notify the other Party of the reasons for and the likely duration of the delay, whereupon an extension of time equal to the period of delay, but not greater than thirty (30) days, shall be granted to the delayed Party. If the period of the delay shall exceed thirty (30) days, then the non-delayed Party may cancel further performance of the delayed obligation without any penalty whatsoever.
15.7.Survival. The following Sections shall survive termination or expiration of this Agreement: _______________________.
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Colocation Terms and Conditions
This is a colocation services agreement (the "Colocation Agreement") between Digiport Miami, LLC ("Digiport"), and you as Digiport's customer (the "Customer") purchasing Digiport's colocation service (the "Colocation Service"). Digiport and Customer are hereinafter referred to as the "Parties" or individually as a "Party."
1.Digiport's Colocation Service.
The Colocation Service COLOCATION AGREEMENT
This is a colocation services agreement (the "Colocation Agreement") between Digiport Miami, LLC ("Digiport"), and you as Digiport's customer (the "Customer") purchasing Digiport's colocation service (the "Colocation Service"). Digiport and Customer are hereinafter referred to as the "Parties" or individually as a "Party."
2.Digiport's Colocation Service.
2.1.The Colocation Service provides the Customer with licensed space in Digiport's facility (the "Space") for collocating and interconnecting the Customer's equipment, property, and data (the "Property") with Digiport's network. The particular Colocation Service features and Space are described in the Customer's Pricing Sheet.
2.2.This Colocation Agreement only conveys a license to occupy the Space. The Customer shall only acquire a license to occupy the Space for the Term (defined below) of this Colocation Agreement, and shall acquire no other rights in the Space.
2.3.Customer shall request any changes to the Colocation Service in writing. Any changes to the Colocation Service, whether requested by Customer, or initiated by Digiport, may be performed by Digiport if Digiport determines in Digiport's sole and absolute discretion that the changes are reasonable and acceptable to Digiport.
3.Digiport's Responsibilities.
3.1.Digiport shall provide the Colocation Service specified in the Pricing Sheet.
3.2.Digiport shall furnish the Space with the electrical service stated on the Pricing Sheet. All such power shall be backed up by Digiport's backup generator power. If Customer requires additional electrical power service, Digiport shall provide such additional service based on the then-current availability to provide such power, and at the then current market rates for such provisioning. Customer shall pay Digiport for the installation, operation, and maintenance of any Property necessary for the provision of such additional electrical power service. Customer shall manage and monitor the electrical circuit to keep power usage within standard electrical code operating guidelines to prevent failure of the electrical circuit. Standard electrical code operating guidelines currently set recommend usage at sixty percent (60%) of the electrical circuit load, and maximum usage at eight percent (80%) of electrical circuit load.
3.3.Digiport's goal is to never require Customer to relocate the Property. Notwithstanding the foregoing, Digiport reserves the right to require Customer to relocate the Property in the following circumstances:
3.3.1.In an emergency (the "Emergency"), as defined by Digiport in Digiport's sole discretion;
3.3.2.If the Property causes unacceptable interference with Digiport Property or the Property of other colocation customers; or
3.3.3.Upon forty-five (45) days' written notice to Customer.
3.4.In the event of an Emergency, Digiport's work shall take precedence over Customer's operations. Digiport may remove or rearrange the Property during an Emergency without any liability to Customer or any individual or entity associated with Customer.
3.5.Digiport reserves the right to operate and maintain the facilities in which the Space is located in such a manner as shall best enable Digiport to fulfill Digiport own service requirements.
3.6.Upon one hundred and twenty (120) days prior written notice or, in the event of an Emergency such time as may be reasonable, Digiport reserves the right to change the location of the Space or the Digiport facility to a site which shall afford comparable environmental conditions for the Property and comparable accessibility to the Property. Digiport and Customer shall work together to minimize any disruption to Customer's business resulting from such relocation.
4.Grant of License and "As-Is."
4.1.Digiport grants to Customer a license for the limited right to occupy the Space. Digiport grants this license to Customer solely for the purpose of locating, installing, maintaining, and operating the Property, described in the Pricing Sheet, in the Space.
4.2.Customer's use of the Space is subject to all terms and conditions of this Colocation Agreement and Digiport's General Services Agreement. In the event of conflict between the terms of this Colocation Agreement and the General Services Agreement, the terms of the General Services Agreement shall govern.
4.3.Customer hereby acknowledges that Digiport has no obligation to make alterations, improvements, additions, decorations or changes within Customer's Space or any part thereof, except to the extent required to conform to the standard physical space and electrical power configurations in effect for this Colocation Agreement. The Space is provided by Digiport with utilities (heat, power, and water) included in the monthly license fee. Customer's specific power requirements and related service levels are set forth below. Digiport shall make available to Customer all services provided by the landlord of the Space, which are directly related to this Colocation Agreement, as such services are made available to Digiport. Digiport shall not directly provide any of those services to Customer.
4.4.Customer shall keep the Space tidy and free of any debris and clutter. Customer shall maintain the Space in compliance with any governmental laws and regulations, including any fire codes. If Customer fails to fully comply with this Section 2.4, as determined by Digiport in Digiport's sole discretion, Customer agrees to allow Digiport, at Customer's expense, to take any measures necessary to correct this situation.
4.5.Upon termination of the Colocation Agreement, Customer shall leave the Space in as good condition, normal wear and tear excepted, as the Space was when Customer first occupied the Space, and Customer immediately shall remove any Property from the Space.
4.6.Customer shall not make any physical alternations or modifications to the Space without Digiport's prior written consent, which consent may be withheld for any reason in Digiport's sole discretion. Any violation of this Section shall be deemed to be a material breach of this Colocation Agreement.
4.7.Customer hereby acknowledges that Customer assumes all of the risk associated with any permitted alterations of the Space. Customer shall, without limitation, indemnify, defend, and hold Digiport harmless from and against any and all claims, damages, losses, costs, expenses, or liabilities, including reasonable attorney's fees, arising out or in connection with such alterations to the Space.
4.8.Customer's use of the Space is pursuant to a license only. Customer's right to use the Space and the terms of this Colocation Agreement shall not be construed as creating a landlord-tenant relationship or creating any estate or interest in real property.
4.9.Customer shall not allow any third parties to use the Space, except as Customer's invited guest in direct connection with Customer's business.
5.Customer's Responsibilities.
5.1.Customer shall have access to the Space 24x7x365. Customer may only access the Property located in the Space, and shall not access the Property or space of any other Digiport customer at any time for any reason. Digiport may suspend Customer's right to enter or work in the Space if, in Digiport's sole discretion, suspension is necessary to avoid a hazardous condition. Customer shall access the Space and operate the Property in a safe and workmanlike manner in accordance with the industry standard for such activities.
5.2.Customer may not use the Space to interconnect with telecommunications services provided by parties other than Digiport without Digiport's prior written approval. Such approval shall not be unreasonably withheld. Digiport may charge a reasonable interconnection fee to cover costs incurred by Digiport as a result of permitting such third-party interconnection.
5.3.Customer shall ensure that:
5.3.1.Digiport has access to the Property so that Digiport may perform Digiport's duties under this Colocation Agreement;
5.3.2.The names of Customer personnel accessing the Space are registered with, and approved by, Digiport. Unregistered or unapproved Customer personnel shall not be allowed to enter the Space.
5.3.3.All existing Property conforms to the manufacturer's specifications; and
5.3.4.If damage or destruction to any Digiport Property (e.g., test Property or monitors) results from Customer's breach of the foregoing or Customer's breach of any part of this Colocation Agreement, Customer shall promptly, and at Digiport's option, either repair or replace the damaged or destroyed Property.
5.4.Customer is responsible for the installation, maintenance, and connectivity of the Property. Customer shall submit an Installation Form to Digiport no less than twenty-four hours prior to any Property installation. Customer shall provide Digiport with no less than twenty-four (24) hours notice prior to any major maintenance, repair, or installation of the Property. For the purpose of this Agreement, "major" shall mean activities other than customary and usual Property maintenance, repair, or installation. Except as may be specified elsewhere in this Colocation Agreement, Digiport shall not install, maintain, support, or have any responsibilities for the Property.
5.5.Customer shall provide Digiport with no less than twenty-four hours notice of any removal of Property from the Space.
5.6.Before beginning any delivery, installation, replacement or removal work, Customer must obtain Digiport's written approval with respect to Customer's choice of suppliers and contractors, which approval shall not be unreasonably withheld. Digiport may request additional information before granting approval and may require substitution of suppliers and contractors as conditions for Digiport's approval. Approval by Digiport is not an endorsement of Customer's supplier or contractor, and Customer shall remain solely responsible for the selection of the supplier or contractor and all payments for construction work or any other work.
5.7.All persons either contracting with Customer or furnishing or rendering labor and materials to Customer shall be notified in writing by Customer that they must look only to Customer for payment for any labor or materials. All such third-parties shall be required to have commercially reasonable insurance coverage before undertaking any work for Customer. If any lien is filed against the Space or Digiport facility as a result of the acts or omissions of Customer or Customer's employees, agents, contractors, or subcontractors, Customer shall discharge the lien or bond the lien off within five (5) days after Customer learns that the lien has been filed.
5.8.Access to the Space, installation of the Property, and type of Property installed, shall at all times be governed by generally accepted industry standards, applicable law and regulations, and reasonable rules imposed by Digiport. Customer shall promptly reimburse Digiport for all costs associated with Customer's failure to follow the foregoing including, without limitation, damages caused by Customer's employees, suppliers, contractors or visitors, during the Term of this Colocation Agreement or, after termination or expiration of this Colocation Agreement, as a consequence of removal of the Property installed in the Space. Before accessing the accessing the Space for the first time, Customer shall provide, and subsequently shall keep updated, a list of Customer's representatives authorized to access the Space. Customer shall have access to the Space twenty-four hours a day, seven days a week.
5.9.Notwithstanding any other provisions of this Colocation Agreement, Property placed in the Space shall not:
5.9.1.Interfere with or impair service provided by Digiport or by any other licensee of the Digiport facility;
5.9.2.Unreasonably disturb any other licensee of the Digiport facility;
5.9.3.Endanger or damage the facilities of Digiport or of any other licensee of the Digiport facility;
5.9.4.Compromise the privacy of any communications carried in, from, or through the Digiport facility; and
5.9.5.Create an unreasonable risk of injury or death to any individual or to the public.
6.Price and Payment Terms. In consideration of the license and Colocation Service provided hereunder, Customer shall pay to Digiport the recurring, non-recurring, and other charges set forth in the Pricing Sheet and in accordance with the payment terms and conditions set forth in the General Services Agreement.
7.Term and Termination.
7.1.This Colocation Agreement shall commence on the date accepted by Digiport and shall continue for the Term set forth in the Pricing Sheet, unless otherwise earlier terminated in accordance with this Colocation Agreement and the General Services Agreement (the "Term"). Customer's license to occupy the Space shall begin on the "Requested Service Start Date" set forth in the Pricing Sheet, or on the date Digiport completes preparation of the Space, whichever is later, and shall continue for the duration of the Term.
7.2.Promptly after termination or expiration of the license for the Space, Customer shall remove the Property and other property in the Space.
7.3.If Customer defaults in the performance of any of Customer's material obligations, and if any such default is not corrected within thirty (30) days after such default shall have been called to the attention of Customer in writing by Digiport, then Digiport, at Digiport's option, may, in addition to any other remedies Digiport may have, terminate this Agreement by giving written notice of termination to the other party and Digiport shall have the right to delete customer's data and re-provision the Space.
7.4.In the event the Digiport facility becomes the subject of a taking by eminent domain by any authority having such power, Digiport shall have the right to immediately terminate this Colocation Agreement. Digiport shall give Customer prompt notice, to the extent practicable of the eminent domain proceedings. Customer shall have no claim against Digiport for any relocation expenses, any part of any award that may be made for such taking or the value of any unexpired Term or renewed periods that result from a termination by Digiport under this provision, or any loss of business from full or partial interruption or interference due to any termination. However, nothing contained in this Colocation Agreement shall prohibit Customer from seeking any relief or remedy against the condemning authority in the event of an eminent domain proceeding or condemnation that affects the Space.
8.Limitation of Liability. In addition to the specific limitations of liability set forth in other paragraphs in the Colocation Agreement or in the General Services Agreement incorporated herein, Digiport shall not in any case be liable for any of the following:
8.1.The content of the information passing over Digiport's network;
8.2.Unauthorized access or damage to, alteration, theft, destruction or loss of, Customer's records, information, files or data caused by third parties;
8.3.Claims for damages caused by Customer; or
8.4.Any act or omission of any other party furnishing services or products, or the installation or removal of any and all Property or supplies.
9.8. Colocation Service Levels. Digiport shall provide support for the Colocation Service in accordance with the service level objectives SLA 2 as outlined in general terms and agreement. . set forth in SLA1.
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Metro Ethernet Terms and Conditions
Standard Terms and Conditions - Circuits Provisioned (Circuit for the purposes of this agreement shall include Metro Ethernet, T-1, Dark Fiber, In Building ISP, Wireless or other data transportation mechanism provided by Digiport)
TERMS and CONDITIONS Customer Care Center 305-424-00161-888-3-344161
Agreement Customer hereby agrees to i) all the rates, terms and conditions of this Agreement for Service (Agreement); ii) the rates, terms and conditions of the state and federal tariffs of Digiport Miami LLC (Digiport); and/or iii) the rates, terms and conditions that appear on Digiport's website (www.Digiport.com) to the extent that state and/or federal tariff do not otherwise apply, in each case as the same exist or may be modified in the future by Digiport, including limitations on Digiport's liabilities. The Service is intended only for the non-residential use of Customer, its authorized agents and employees, and may not be resold without the prior written consent of Digiport and any resale of Digiport services or products will be considered a breach of this Agreement.
Effective Date, Initial Term and Renewal Term (together Term) The initial term of the Service provided under this Agreement (Initial Term) shall commence on the following date, as applicable: (i) for long distance service, the date of Customer's first usage (ii) for all other services, the date the service for the first circuit becomes available to Customer. In the event multiple circuits are provisioned, Commencement date for billing shall be on a per circuit basis at availability of each circuit individually, with the Term of the agreement commencing upon final circuit availability. Customer agrees to the an Initial Term of no (month-to-month), one (1), two (2) or three (3) year(s), as indicated on the Agreement or if excluded from the Agreement a term of 61 Months.. Upon expiration of the Initial Term (if one year or longer), the Agreement shall automatically renew on the same terms and conditions (including, without limitation, the rates) for a term equal to the original term unless either party notifies the other of its intention to terminate the Agreement at the end of the Initial Term or Renewal Term, as the case may be, which such notice (the Notice) shall be in writing and provided to the other party at least thirty one hundred and twenty (31200) days prior to expiration of the Initial Term or the Renewal Term, as the case may be. In the event of such Notice, the Agreement shall terminate upon the expiration of the Initial Term or Renewal Term, as the case may be. The Notice must be in writing and sent by mail, registered, or certified mail, return receipt requested to Customer Care Center, Attn: Disconnect Processing Team, P.O. Box 1301 Arab, AL 35016200 SE 1st Street #400, Miami, FL 33131; or by email with confirmed receipt by Digiport, to disconnect@Digiport.com; or by facsimile transmission, with confirmed receipt by Digiport, to 1-800-488-1386305-503-5408 and received by Digiport at least 120 days 30 days prior to the discontinuance becoming effective. Customer shall notify Digiport in writing if the Customer contact person is changed. Digiport reserves the right to reject any Customer termination request received from any person other than the designated Customer contact person.
Our Best Guarantee If Customer is not satisfied with any Service provided by Digiport under this Agreement, Customer shall provide written notice specifying the performance deficiency in the Service and allow Digiport 20 business days (Notice Period) to bring the deficient performance to customarily acceptable industry performance standards (Cure), or if not capable of Cure within such notice period, make reasonable progress toward such Cure during the Notice Period. The written notice must cite this provision and reasonably detail the deficient performance. Notice under this section must be submitted by mail, registered, or certified mail, return receipt requested to Customer Care Center, Attn: Disconnect Processing Team, P.O. Box 1301 Arab, AL 35016200 SE 1st Street #400, Miami, FL 33131; or by email with confirmed receipt by Digiport, to disconnect@Digiport.com; or by facsimile transmission, with confirmed receipt by Digiport, to 1-305-503-5408800-488-1386 and received by Digiport at least 3120 days prior to the discontinuance becoming effective. Should the parties agree in writing that Digiport failed to Cure or make progress toward such Cure within the Notice Period, Digiport will cancel this Agreement upon request of Customer and Customer shall be responsible for paying all accrued charges for any Service used by Customer through the date of cancellation.
Conversion and Discontinuance Charge (for the Simpli-Business product) Customer must convert to the Simpli-Business T product within twenty-four (24) months of the commencement of the Initial Term. If the Customer has not made the conversion, commencing the twenty-fourth (24th) month of the Initial Term, Digiport shall begin to charge the rates as if Customer had converted to the Simpli-Business T product for Customer's configuration, plus any additional charges under the Elements Program, and Customer shall be required to pay such additional charges. If Customer terminates this Agreement after execution by Customer and prior to conversion to the Simpli-Business T product, Customer shall incur a Discontinuance Charge calculated as follows: (x) the monthly recurring charge calculated at the rates for the Simpli-Business T product for Customer's configuration multiplied by thirty-six (36), minus (y) the monthly charges actually paid by Customer prior to termination. The Discontinuance Charge shall include any waived installation charges, the cost of any Incentives and any Dedicated Access Fees. Because damages resulting from early termination would be difficult to determine, the parties agree that the Discontinuance Charge is a reasonable approximation of such damage and shall be considered a liquidated damage and not a penalty.
Discontinuance Charge (for the Simpli-Business T, Simpli-Business PRI and Simpli-Business IP products) If Customer terminates this Agreement after execution by Customer and before the expiration date of the Initial Term or Renewal Term, as applicable, even if prior to commencement of Service, Customer shall incur a Discontinuance Charge calculated as the sum of the following: (i) for long distance service, the Annual Usage Commitment (defined below) amount, if applicable, remaining unpaid for the remainder of the Initial Term or Renewal Term, as applicable; (ii) for all other Services, the total of all monthly recurring charges through the end of the Initial Term or Renewal Term, as applicable; (iii) any waived installation charges; (iv) the cost of any Incentives (defined below); and (v) any miscellaneous charges incurred for dedicated access, including but not limited to engineering fees, expedite fees, carrier and local exchange service order fees, change order charges, miscellaneous configuration charges, etc. ("Dedicated Access Fees"). Because damages resulting from early termination would be difficult to determine, the parties agree that the Discontinuance Charge is a reasonable approximation of such damage and shall be considered a liquidated damage and not a penalty.
Discontinuance Charge (other than for Simpli-Business family of products) If Customer terminates this Agreement after execution by Customer but prior to commencement of Service, Customer shall incur charges of $1500.00 per T1; $150 per dialable line account; and $150.00 per DSL. If Customer terminates this Agreement after commencement of Service and before the expiration date of the Initial Term or Renewal Term, as applicable, Customer shall incur a Discontinuance Charge, calculated as the sum of the following: (i) for long distance Service, the Annual Usage Commitment amount, if applicable, remaining unpaid for the remainder of the Initial Term or Renewal Term, as applicable (see below for definition of Annual Usage Commitment); (ii) for all other Services, the total of all monthly recurring charges through the end of the Initial Term or Renewal Term, as applicable; (iii) any waived installation charges; (iv) the cost of any Incentives; and (v) any Dedicated Access Fees. Because damages resulting from early termination would be difficult to determine, the parties agree that the Discontinuance Charge is a reasonable approximation of such damage and shall be considered a liquidated damage and not a penalty.
Termination Notices Any Customer notice of termination of the Agreement or any Service there under must be submitted by mail, registered, or certified mail, return receipt requested to Customer Care Center, Attn: Disconnect Processing Team, P.O. Box 1301 Arab, AL 35016200 SE 1st Street #400, Miami, FL 33131; or by email with confirmed receipt by Digiport, to disconnect@Digiport.com; or by facsimile transmission, with confirmed receipt by Digiport, to 1-800-488-13861-305-503-5408 and received by Digiport at least 30 days prior to the discontinuance becoming effective.
Incentives Incentive(s) include but are not limited to free or discounted services under the Term Discount Program, waiver of any fees (i.e., installation charges, loop charges), waived rental or other charges for the use of equipment, etc. If Customer cancels any service provided under an Incentive in full or in part, then Customer shall pay any fees Customer would have incurred without the Incentive. Likewise, Customer shall pay the then current rate for any equipment received under an Incentive (i.e., data CPE: multiplexers, CSU/DSU, routers, etc.) and/or, at Digiport's discretion, allow Digiport to retrieve the equipment from the Customer's premise during normal business hours.
T-1Circuit Facility Access (if applicable) Digiport charges for circuitT-1 facility access are based upon actual tariff rates filed by the dominant Local Exchange Carrier (LEC) operating in each LATA and are subject to change upon notice to Customer. Customer hereby appoints Digiport as the Customer's agent for the purpose of procuring and maintaining the T-1 circuit facility access from the LEC. Customer shall be solely responsible for payment of any charges or termination liability levied by Customer's equipment vendor or LEC associated with the special construction equipment needed to provide T-1circuit facility access. The price components apply to facility access only.
Circuit Installation Timing: Digiport will provide an estimate of the time required for delivery of the circuit to customer premises at the initial order completion. It is expressly understood that the delivery time for installation of transport circuits varies on factors including but not limited to fiber availability, construction conditions, local permitting requirements, public right of way easements, customer pathway completion and other possible installation requirements. Digiport personnel will prepare an installation plan at the initial ordering of the circuit and will provide an estimated time for delivery. Circuit delivery shall be at the option of Digiport located in tenant suite or common area access location as construction and future circuit provisioning may dictate. Installation of Circuits includes certain construction requirements including mounting backboard, 20 Amp power circuit and pathway for delivery of circuit. All costs related to any installations shall be in addition to costs outlined as Circuit costs and be the sole responsibility of Customer. Digiport shall provide requirements to Customer for either the contracting with a private vendor for the completion of these items or with Digiport to complete construction. Customer acknowledges that timing of approval, payment or construction of this pathway is required before fiber loop provider will commence construction and will effect delivery timing. Failure to complete delivery of construction requirements by customer may result in charges commencing prior service delivery.
Circuit Billing Commencement IdleT-1 Charge (if applicable) Commencement of the billing for the circuit shall be effected on the day of testing and turnover by LEC of circuit.
ustomer shall accept the T-1 loop facility no more than 10 business days after the T-1 loop facility has been installed or within 10 business days of a reasonable attempt by Digiport to install the service. If the T-1service is not accepted within this time frame, an idle T-1 fee will be assessed. This fee will equal $195 and be applied to the customer's account on a monthly basis until the T-1 service is accepted. Acceptance is denoted by the completed installation of all T-1 services ordered. Upon T-1 loop acceptance, the monthly charge will cease.
Internet Access (if applicable) - If Customer elects to receive Digiport Internet Access and/or Email Access (Access) as part of this Agreement, Customer covenants that none of Customer's internet content, Email content, transmission or any other internet activities will be in violation of any local, state, federal or international laws, regulations or treaties or Digiport's Internet Acceptable Use Policy or Email Acceptable Use Policy. Any such violations may be grounds for termination of the Access. Customer agrees to abide by Digiport's Internet Acceptable Use Policy and Email Acceptable Use Policy, which are available for review by Customer at http://www.Digiport.com/acceptable_policy.asphtm and http://www.Digiport.com/Emailacceptable_policy.htm%20use%20policy%208-24-07.pdf, respectively, or the successor URL for each which may be located on the Digiport website. - Digiport provides no user access security with respect to any of Customer's facilities or facilities of others. Customer shall be responsible for user access security and network access. Digiport will assist in network security breach detection or identification at Digiport's standard rate, but shall not be liable for any inability, failure, or mistake in doing so. - If Customer provides services through other networks, Digiport accepts no responsibility for authorization of such networks. Use of other networks may require approval of the respective network authorities and use will be subject to any acceptable usage policies such networks establish. Digiport does not own or control networks outside of Digiport, nor is Digiport responsible for performance (or nonperformance) within or over those networks or within non-Digiport-operated interconnection points between Digiport and other networks. - Digiport shall provide to Customer, in accordance with the Terms of this Agreement, technical consultation and instruction regarding network hardware, software, access techniques and commands at Digiport's standard rates. Digiport is not responsible to Customer for the cost or expense of administrative, technical, emergency, or support personnel at Customer's location necessary for dealing with Digiport and for providing and maintaining Customer's own computer equipment, or Digiport's or other network access. Consultation Services that are extended to Customer over the phone and which exceed the customer support commitments as described in this paragraph will cost $100.00 per hour; or $150.00 per hour, if performed on the customer's site. - Customer agrees to give Digiport polling rights to its router for the duration of this Agreement. This information will be kept in confidence and used for network polling and monitoring. - Digiport warrants that the Access will pass data packets from Customer's Router to the Internet. Use of any information obtained through the Access is at Customer's risk. Digiport specifically denies any responsibility for the speed, accuracy or quality of information obtained through the Access. - Digiport is not responsible for the reliability of equipment which Digiport did not install or configure or for the Customers' local networks or other hardware. Customer is responsible for assessing its own computer and transmission network needs, and is solely responsible for the results obtained there from. - If Digiport is listed as the billing contact for Customer's domain name, customer hereby consents to Digiport's annual renewal of Customer domain name unless otherwise instructed. - (for Simpli-Voice and Select 100 customers) If a Digiport point-of-presence (" POP") fails due to failure of its equipment or circuit(s) between POPs (except in the case of fire, flood or other Force Majuere event), and this failure results in disruption of the Access, then the following adjustment will be made: If the disruption is not resolved within 12 hours, Digiport will provide an additional Access day to Customer beyond the Access Term for each calendar day (or portion thereof) of the Access disruption. The foregoing represents the sole remedy available to Customer for Access disruptions.
Secure Access and/or IP/VPN (if applicable) The Secure Access service provided hereunder is the delivery via internet protocol of the Customer's data between two remote points utilizing Secure Access equipment. Digiport's Secure Access service includes the provision of the equipment as set forth in this Agreement necessary to encode and decode the Customer's data, but excludes the provision of the Local Loop, which must be contracted for separately. Digiport agrees to provide its Network Protect Secure Access service within a certain minimum service level. The Service Level Agreement applicable to Digiport's Secure AccessNetwork Protect is published on Digiport's web site at http://www.Digiport.com/networkprotect.htm IP20VPN01/SLA.asp, and is incorporated herein by reference. Customer acknowledges that Digiport does not represent or warrant that the Secure Access service will ensure uninterrupted or error-free operation.
Customer Premise Equipment (if applicable) In the event Digiport furnishes customer premise equipment of any sort (CPE) to Customer for use in connection with the services, Customer shall, unless waived as an Incentive, pay the aggregate rental charge for each item of CPE for the full Term of this Agreement. Should Customer return any item of CPE ordered by Customer and that has been used or taken out of its box, Customer will pay Digiport a Restocking charge. Customer shall provide all consumables (e.g., paper, toner, ink) used by any CPE. Digiport, through its employees or other repair personnel, will provide maintenance as required to keep CPE in good operating condition as a result of Customer's normal use. Any manufacturer's warranties or maintenance contracts will be for the benefit of Digiport. Digiport reserves the right to substitute another type of CPE of similar functionality at its discretion. Any substituted CPE or repair and replacement parts may be new or like new. Customer shall provide Digiport or other repair personnel reasonable access to the CPE. Customer agrees to assume and bear the entire risk of any partial or complete loss with respect to the CPE from any and every cause whatsoever including theft, loss, damage, (including damage caused by Acts of God, or Force Majeure), destruction or governmental taking, whether or not such loss is covered by insurance or caused by any fault or neglect of Customer. If Customer is receiving CPE at no rental cost to Customer, then Customer shall be billed a Monthly Equipment Maintenance Coverage charge and payment of such charge shall relieve Customer of liability for Acts of God, including lightning, power surge, fire, wind, flood and earthquake. Damage caused by power surge, fire, and flood, which is not the result of an Act of God, is specifically excluded from coverage. Customer agrees to give Digiport prompt notice of any damage to or loss of any CPE, or any abandonment or relocation from Customer's premise. CPE furnished by Digiport, including all Simpli-Business products, shall remain the property of Digiport. For Digiport-furnished CPE that cannot be recovered from Customer's site, Customer will pay Digiport the listed purchase price for such CPE. Customer shall pay any charges at Digiport's normal time and materials rates for any inside wiring installed by Digiport in Customer's premises. Customer shall be required to power all electronic CPE with battery backup systems to prevent any power surge related failures, any failure to do so shall result in voiding of Digiport warranty and Customer shall be solely responsible for replacement. CUSTOMER SHALL DEFEND AND INDEMNIFY DIGIPORT FROM ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, (INCLUDING REASONABLE ATTORNEYS FEES) ARISING OUT OF THE PURCHASE, POSSESSION, OPERATION, CONDITION, RETURN OR USE OF THE CPE OR BY OPERATION OF LAW, EXCLUDING, HOWEVER, ANY OF THE FOREGOING RESULTING SOLELY AND DIRECTLY FROM THE NEGLIGENT OR WILLFUL ACTS OF DIGIPORT.
Exclusive Local Provider (applicable only to T-1s with integrated local and internet/data services) I certify that Digiport is either my exclusive local service provider for this location or that 50% of the activated T1 channels are for local use. I understand the services provided at the rates herein are based upon this certification and that additional charges/fees will apply in the event that it is discovered that the foregoing conditions have not been met.
Software (if applicable) Customer may be required to use special software to use some of the Services and software may be embedded in some of the CPE used by Customer. Customer is granted a limited, non-exclusive, non-transferable license under the software manufacturer's copyrights to use the software (in executable code form) as specifically configured by the software manufacturer solely in connection with Digiport's services. All rights not specifically granted to Customer herein are expressly reserved by Digiport and/or the software manufacturer. Customer will perform regular backups using the Software and will report any errors in executing such backups promptly by fax or e-mail to software manufacturer. Customer will arrange for and maintain communication services used to connect to software manufacturer's site. The security mechanisms implemented by the software manufacturer may have inherent limitations and Customer is solely responsible for determining that this mechanism sufficiently meets Customer's security and operational needs. The Customer is responsible for any communication costs associated with the connection between the Customer site and software manufacturer's site. Customer further agrees that it shall not place any data on the Server that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Customer shall defend, indemnify and hold Digiport and the software manufacturer harmless against any third party claim, action, suit or proceeding alleging any breach of the covenants contained herein. Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (e) use the Software to process data or provide any service bureau activity for any third party; or (f) otherwise use or copy the Software, except as expressly allowed by this provision. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of on the Software. Any additional terms and conditions that are applicable to the use of such software may be found on Digiport's web site at www.Digiport.com and/or the applicable software or CPE manufacturer's website, and Customer agrees to abide by all such terms and conditions.
Shared Tenant Service Provider Agreement
If Customer intends to resell or re-bill Digiport services, Customer hereby certifies that it has all necessary state, federal, legal and regulatory authority to resell or re-bill any telecommunication services to its tenants or customers. In no event will Digiport directly bill any tenant or other customer of Customer. If Customer is found to be in violation of any federal, state or local law or regulation for reselling or rebilling telecommunications services, Customer shall indemnify Digiport for any related claims by any third party against Digiport, including attorneys' fees and costs. All such indemnity obligations of Customer shall survive termination or expiration of the Agreement.
Default
Should Customer fail to pay any invoiced item within 30 days of the date of invoice, Digiport reserves the right to cease providing the service invoiced until such time as the invoice is paid. Such interruption of service shall not be a breach of this Agreement, and shall not afford Customer any relief outlined in this Agreement or any other document. If, after 10 days written notice to Customer, the invoice shall remain unpaid, Digiport, at its election, may declare Customer in default. If Customer defaults, all amounts remaining to be paid under the Term of this Agreement shall immediately become due and payable. The remedies contained in this paragraph are cumulative and in addition to all other rights and remedies available to Digiport under this Agreement, by operation of law or otherwise. In addition, in the event of default, Customer shall pay Digiport for installation and removal of any CPE in the amount of Five Hundred and 00/100 Dollars ($500.00) per unit (i.e., per CPE router); such amount shall be immediately due and payable. Further, Digiport, at its option, may, upon written notice thereof, take immediate possession of any and all of the items of CPE owned by Digiport, wherever situated, and for such purpose enter upon any premises without liability for so doing and sell, dispose of, hold, use or lease any items of CPE which have not been fully paid for as Digiport in its sole discretion may decide. If Digiport is unable to retrieve any items of CPE, Customer shall be invoiced for the full, then current sales price of such CPE.
Arbitration
Any dispute, controversy or claim arising out of, connected with or relating to this Agreement, its performance or the breach thereof which cannot be settled by mutual agreement of the Parties shall be resolved by final and binding arbitration by a panel of three (3) arbitrators in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association (AAA) then in effect with such arbitration to be conducted in Huntsville, AlabamaMiami, Florida. Following notice of a Party's election to require arbitration, each Party will within thirty (30) days select one arbitrator, and those two arbitrators will within thirty (30) days thereafter select a third arbitrator. If the two arbitrators are unable to agree on a third arbitrator within thirty (30) days, the AAA will within thirty (30) days thereafter select such third arbitrator. Discovery as permitted by the Federal Rules of Civil Procedure then in effect will be allowed to the extent consistent with the purpose of the arbitration and as allowed by the arbitrators. Judgment upon the award rendered in any arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an enforcement, as the law of the state having jurisdiction may require or allow. The fact that arbitration is or may be allowed will not impair the exercise of any termination rights under this Agreement. The Parties agree that this arbitration provision has been included to rapidly and inexpensively resolve any disputes between them with respect to this Agreement, and that this provision shall be grounds for dismissal of any court action commenced by either Party with respect to this Agreement, other than (i) actions to compel a Party to comply with these dispute resolution procedures; (ii) actions specified in this provision; (iii) post-arbitration actions seeking to enforce an arbitration award; (iv) a dispute, controversy or claim relating to a breach or alleged breach on the part of either Party regarding confidential information; (v) a suit, action or proceeding to compel a Party to comply with its obligations to indemnify the other party pursuant to this Agreement; or (vi) a suit, action or proceeding arising out of or related to any Party's intellectual property rights. The Parties shall keep confidential, and shall not disclose to any person, except as may be required by law, the existence of any controversy hereunder, the referral of any such controversy to arbitration or the status or resolution thereof. The procedures specified in this provision shall be the sole and exclusive procedures for the resolution of an arbitrable dispute; provided, however, that a Party, without prejudice to these procedures, may file a complaint or seek a temporary restraining order, preliminary injunction, or other provisional judicial relief, if in its sole judgment such action is necessary to avoid irreparable damage or to preserve the status quo. Customer indemnifies Digiport for any costs associated with Customer's violation of this Arbitration provision.
General
Customer acknowledges that it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. - This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing agreements and all other oral, written or other communications between them concerning its subject matter. - This Agreement shall not be modified in any way except by a writing subscribed to by both parties. - This Agreement is not assignable by Customer except with Digiport's express written consent, without which, any such assignment or attempted assignment shall be void. - If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. - The headings in the Agreement are intended for convenience of reference and shall not affect its interpretation. - The waiver or failure of Digiport to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of that right or any other right under this Agreement. - The individual executing this Agreement on behalf of Customer hereby represents and warrants that he or she is duly authorized by all necessary action to execute this Agreement on behalf of Customer. - All notices to Digiport shall be in writing and shall be delivered or sent by mail, requested to Customer Care Center, P.O. Box 1301 Arab, AL 35016200 SE 1st Street #400, Miami, FL 33131 or to such other address as Digiport shall specify by notice given pursuant hereto. - Digiport shall not be liable or deemed to be in default for any delay or failure to perform under this Agreement or for interruption of service resulting directly or indirectly, from Acts of God or any other cause beyond Digiport's reasonable control (Force Majeure). - EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. - NEITHER DIGIPORT NOR ANY CPE, SERVICE, OR SOFTWARE PROVIDER TO DIGIPORT WILL BE LIABLE FOR ANY LOST OR ANTICIPATORY PROFITS OR REVENUES, OR SPECIAL OR PUNITIVE DAMAGES, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF DIGIPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. - IN NO EVENT SHALL DIGIPORT BE LIABLE FOR DAMAGES GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO DIGIPORT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. - This Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State where the Services are rendered. - Customer authorizes Digiport to conduct an investigation of Customer's credit history for the purpose of determining Customer's creditworthiness for payment for the service(s) and options. - Customer agrees to pay all costs of collection, including a reasonable attorney's fee, whether incurred by suit or otherwise. - Only an authorized officer of Digiport may agree to modifications to the terms and conditions of this Agreement. - This Agreement may only be executed by an Digiport Branch Manager or other authorized Digiport management person, and is subject to final credit approval.
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Acceptable Use Policy
Disruption of Network Services, Excessive Use
Customers and System Users shall ensure that use of Digiport Miami LLC network services shall not disrupt Digiport Miami LLC, its associated networks or equipment forming part of Digiport Miami LLC or the internet's systems. Customers and System Users shall not transmit any communication where the meaning of the message, or its transmission or distribution, would violate any applicable law or regulation or would likely be offensive to the recipient thereof. No message may be mass distributed, "broadcast," or otherwise sent on an intrusive basis to any Digiport Miami LLC Hosting user or to any directly or indirectly attached network. Use of Digiport Miami LLC Internet connection in a manner that is disruptive, damaging, unlawful, offensive, or intrusive as determined by Digiport Miami LLC shall be considered a breach of this Agreement and may result in cancellation of service. It is not acceptable to use Digiport Miami LLC services and facilities to interfere with or disrupt other network users, services or equipment. Such interference or disruption includes, but is not limited to: - improper, harassing or offensive distribution of unsolicited advertising, - excessive newsgroup cross-posting, - transmissions of any type or quantity that causes disruption of service to others, - propagation of computer worms or viruses, - use of the network to make unauthorized entry to other computer networks, information or communications devices or resources, - sustained, excessive use of Digiport Miami LLC equipment or network connection without prior arrangement with Digiport Miami LLC.
Spamming refers to the act of sending, supporting, assisting, or commissioning the sending of, unsolicited commercial messages over the Internet to others. This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such messages may only be sent to individuals that have explicitly requested the information from you. Spamming is considered harmful because it can overload the Company's server network, can disrupt service to our other customers, violate our terms of service with "upstream providers," and foster a negative perception toward the Company. Spamming includes, but is not limited to, any means of Internet-based transmissions, such as email, newsgroup, Internet fax or Internet phone. It is a violation of this AUP to commission spamming by a third-party, even if that third-party does not use Company systems, networks or resources, if the spam message contains any reference to a website hosted by us or contains any other reference, message or link attributable to any service, network or system of the Company.
Digiport Miami LLC shall be the sole arbiter of what is and is not a violation of these acceptable use policies. Digiport Miami LLC reserves the right to terminate an account at any time and for any reason that causes harm to any Digiport Miami LLC customer's web sites. Digiport Miami LLC reserves the right to delete all content and files immediately upon termination. Digiport Miami LLC reserves the right to withhold any prepaid funds for any site removed for violations of these policies. Digiport Miami LLC reserves the right to refuse, cancel, or suspend service at our sole discretion.
Digiport Miami LLC reserves the right to change the Acceptable Use Policy without prior notice or warning. Non-enforcement of any part of the Acceptable Use Policy does not constitute consent.
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