STANDARD TERMS AND CONDITIONS
CONFIDENTIAL AND PROPRIETARY
May 22, 2014
The parties hereby agree to the following:
Definitions. Except as set forth in this Section or as otherwise set forth in the Service Agreement, capitalized terms shall have the definitions assigned to them below. Except as otherwise set forth herein, technical terms commonly used in the industry that appear in these Standard Terms and Conditions shall be so construed.
“Authorized representative” means an employee, agent, contractor or other person that Customer designates in writing as having authority to have access to the 5NINES Center and Premises on Customer’s behalf. Customer may, at no additional charge, designate up to three (3) Authorized Representatives who will each be granted Data Center facility access badges. Any additional Authorized Representatives will be granted Data Center facility access badges at the price set forth in the “Additional Services” section of the Service Order Detail. Customer may replace an Authorized Representative upon ten (10) business days prior written notice.
“Change Management Order Form” (or “CMO Form”) means a valid 5NINES change order form that is submitted by Customer which requests certain additions, changes and deletions to the Services, service components and additional features contained in the Service Order Detail.
“Customer Provided Equipment” (or “CPE”) includes devices or components located within the customer premise or the Data Center which is owned by or provided by the customer.
“Data Center” means a particular 5NINES facility within which the Premises are located.
“Service Level Agreement (SLA)” means the 5NINES general service level agreement set forth on 5NINES’, as specified by this Service Agreement or by the Service Description.
“New Charges” means those new Monthly Recurring Costs (MRCs) and/or Non-recurring Costs (NRCs) that are associated with changes or additions that Customer wishes to make to any of its existing Service.
“Premises” means that area within a Data Center in which CPE is installed pursuant to the Service Agreement and the Service Order Detail.
“Service Agreement” means the agreement made between 5NINES, LLC and the Customer for 5NINES to provide for the services described in the Service Order Detail for the fees listed and according these Standard Terms and Conditions in exchange for the Customers commitment to use those services and pay the fees. The Service Agreement is articulated in the Service Agreement document signed by a 5NINES LLC representative and a Customer representative and is a binding contract for such services and terms.
“Service Order Detail” means the listed details of the services ordered, service components and additional features, including the applicable rates, charges and quantities for each (i.e., the pricing tables) ordered by Customer, as documented in the Service Agreement and as may be amended in writing by the parties.
“Software” means software (including third party software) and related documentation, if any, provided by 5NINES to Customer in connection with any of the Services.
“Start of Service Date” means the date upon which 5NINES makes the applicable Service(s) available for Customer’s use.
“Statement Period” means the frequency in which invoicing and statements will be delivered and reflects the period in which the applicable Service(s) were delivered.
“Third Party Carrier Circuits” means data and/or voice teleco circuits that 5NINES has contracted for with a Telecom Carrier or other Network Provider on behalf of the customer.
- Service Description. The Service Agreement sets forth the description of 5NINES’ services referred to herein as the “Services” as provided pursuant to the Service Agreement and these Standard Terms & Conditions. Except for any changes made to the Service Order Detail pursuant to Section 6.2 of these Standard Terms & Conditions, all terms and conditions of the Service Agreement and the Service Order Detail Exhibit and the Service Agreement entered into between the parties shall prevail over any conditions in any other Order Form, Customer purchase orders, payments or other forms.
A detailed, technical description of the Service and its various components (the “Service Description”), which is subject to change at 5NINES’ sole discretion, is available upon request from the 5NINES sales representative. The Service Description is subject in all respects to the Service Agreement between Customer and 5NINES. In addition to the termination remedies set forth in these Standard Terms & Conditions, Customer may terminate the Service Agreement without liability (other than for charges accrued but unpaid as of the termination date) upon thirty (30) days prior written notice if 5NINES materially and adversely changes the Service Description, so long as written notice of such termination is delivered to 5NINES within thirty (30) days of the effective date of such material adverse change. If Customer does not deliver such notice to 5NINES within the specified period, Customer will be deemed to have waived its right to terminate the Service Agreement.
In general, the Service can be comprised of any of the following service components and features and will vary depending upon those Services, features and components that Customer orders pursuant to the Service Order Detail:
(a) Data Center Facilities – the structure, equipment and systems that make up the Data Center includes monitoring systems, power distribution, storage and backup infrastructure, LAN/WAN connectivity equipment, heating/ventilating/air conditioning (HVAC) systems and fire detection and suppression systems provided for the delivery of the Service.
(b) Space – the Service includes the physical space (e.g. rack, cage, cabinet) which is provided for the installation and operation of the CPE.
(c) Power – all Premises are provided with standard amounts of power in order to power the CPE, as more fully detailed in the Service Description. Power circuits may be ordered for multiple diverse feeds and/or for high power consumption CPE.
(d) Management & Support Services – the management, consulting or administration services provided by 5NINES, for servers, user devices, applications and network equipment, and may include data storage, tape backup, remote access and ITIL management processes.
(e) Monitoring Services – the systems and personnel required to provide monitoring of CPE, which may include system checks, network hardware checks and other monitoring services.
(f) Notification and Reporting – the Service includes notification service of various Service-related events, including monitoring services and informational reports (e.g., bandwidth utilization, web server statistics and trouble ticket tracking).
(g) Network Services and Bandwidth – the Service includes a high-speed network connection via an Ethernet LAN connection, land line WAN connection, or Microwave connection. Services connect CPE to either the 5NINES backbone and upstream internet providers or telecommunications carrier peers.
(h) Web and Email Hosting – the Service includes access and use of shared and dedicated web hosting servers for world wide web sites and electronic mail.
(i) Application Hosting – the Service includes access and use of shared and dedicated application hosting servers.
(j) Telephony Services – the Service includes access and use of the telephone system functions and features and lines for voice communications.
(k) Dedicated Hardware and Software Services – the Service includes access and use of 5NINES hardware and software.
(l) Virtual Private Server and Cloud Hosting – the service includes access and use of virtual machines on 5NINES host servers.
(m) Storage Services – The service includes access and use of 5NINES Storage Area Network (SAN) and Network Attached Storage (NAS) devices.
(n) Other Services – additional services may include wiring cross-connects to other network services (e.g., frame relay or ATM networks), domain name registrations and transfers, and other ancillary services.
All Service is subject to facilities and capacity availability. Prior to providing Service, a completed Service Order Detail Exhibit must be submitted by Customer and accepted by 5NINES, if not already completed and attached hereto. 5NINES reserves the right to reject any Service Order Detail in its reasonable discretion. All accepted Service Order Details shall be governed by the terms of the Service Agreement.
- Obligations of the Parties.
3.1 Both parties agree that during the Term of the Service Agreement either party may publicly refer to each other orally and/or in writing, as a customer of 5NINES (e.g., sample Customer list), and upon termination of the Service Agreement, both parties right to publicly refer to each other as customer shall terminate. Any other public reference to one party by the other shall require the express written consent of the other party. Neither party shall disclose the terms of the Service Agreement to any third party without the prior written consent of the other party. Each party shall use reasonable precautions to protect the other’s Confidential Information and employ at least those precautions that such party employs to protect its own confidential or proprietary information, but in no event shall the standard of care be less than the standard of care which a reasonable business person would use in protecting its own confidential information.
3.2 Subject to reasonable availability and in connection with the Service, 5NINES shall, at Customer’s reasonable request, assign Service address space and/or order domain names for the benefit of Customer, and 5NINES will route those addresses on 5NINES network; it being understood and agreed that neither Customer nor any of its End Users shall have the right to route these addresses. 5NINES shall retain ownership of all such IP addresses, and upon termination of the Service Agreement, Customer’s access to such IP addresses shall terminate. Customer shall directly pay any Monthly Recurring Costs “MRC’s” and Non-recurring Costs “NRC’s” associated with the domain names to the domain name registrar.
4.1 The term of the Service Agreement shall commence upon the Start of Service Date of the Service Agreement (or, if applicable, an amendment to the Service Agreement if added after its Start of Service Date) and conclude upon the expiration or termination of the last-to-expire (or terminate) Service ordered hereunder. The term for Service ordered hereunder will commence on the Start of Service Date and will continue for thirty-six (36) months from the Start of Service Date, unless another term commitment is indicated in the Service Order Detail (the “Minimum Service Term”). After the conclusion of the Minimum Service Term, the Service will automatically renew on a month to month basis at the then current monthly rates. Upon written notice to the other party at least thirty (30) days prior to the conclusion any such Minimum Service Term or the Renewal Term, as the case may be, either party may terminate the Service associated with the Service Agreement.
4.2 If Customer was granted a discount or waiver of any charges hereunder based upon Customer’s Minimum Service Term commitment (a “Discount”) and if the Services provisioned hereunder are terminated prior to the conclusion of such Minimum Service Term for reasons other than a default by 5NINES, Customer shall pay to 5NINES an amount equal to the Discount, in addition to any other applicable charges set forth in the Service Agreement.
4.3 If Customer requests a full or partial turn-down of Service prior to the conclusion of the Minimum Service Term, then Customer shall pay any applicable early Cancellation Charges for the affected Services. “Cancellation Charge” means an early cancellation charge that is imposed if Service is terminated prior to the conclusion of the then-current term.
4.4 Cancellation charges for Dedicated Hardware & Software Services and third party Carrier Circuits shall be equal to one-hundred percent (100%) of the then-current MRCs multiplied by the number of months, or portion thereof, remaining in the then-current term. Cancellation charges for all other services shall be equal to fifty percent (50%) of the then-current MRCs multiplied by the number of months, or portion thereof, remaining in the then-current term.
- Rates, Payment and Collection.
5.1 Pricing. Customer shall pay all applicable MRCs and NRCs as set forth in the Service Order Detail Exhibit listed as part of the signed Service Agreement, which will commence billing as of the Start of Service Date. 5NINES will not modify the rates set forth in the Service Order Detail Exhibit during the first twelve (12) months following the Start of Service Date (“Rate Lock Term”), unless such modification is based upon Regulatory Activity. After the expiration of the Rate Lock Term, 5NINES may modify the rates set forth in a Service Order Detail or eliminate certain components of the Service upon sixty (60) calendar days prior written notice to Customer; provided, however, 5NINES may reduce the sixty (60) day notice period, as necessary, if such modification is based upon Regulatory Activity. If 5NINES materially increases the rates set forth in a Service Order Detail for reasons outside of those of Regulatory Activity, Customer may terminate the affected Service without incurring cancellation charges, so long as written notice of such termination is delivered to 5NINES within thirty (30) calendar days of the effective date of such change. If Customer does not deliver such notice to 5NINES within such thirty (30) day period, Customer will be deemed to have waived its right to terminate the affected Service. All rates and charges for new Services will be quoted by 5NINES on an “individual case basis.” Pricing for nonstandard services that are not set forth in the Service Order Detail and/or the Service Description (including, without limitation, any non-standard professional or consulting service requested by Customer or its Authorized Representative) are provided by 5NINES at 5NINES then-current rates. The rates set forth in the Service Order Detail do not include any costs associated with CPE, all of which charges shall be additional.
5.2 Payment. 5NINES requires payment in advance of the Statement Period. Customer shall pay 5NINES for any sales taxes based on or measured by this Agreement. Any payment not made within fifteen (15) days of its due date is considered late and shall accrue compound interest at a rate of 1.5% per month. If payments are not made within the terms described, 5NINES shall have the right to disconnect services after 20 days of the due date. Service reactivation fees may apply. 5NINES retains the right to commence and prosecute suits for the collection of payments due under this Agreement. Customer agrees that Customer shall be responsible for any costs, including but not limited to attorneys’ fees, incurred by 5NINES as a result of 5NINES’ efforts to collect payments due under this Agreement. 5NINES may withhold future performance in the event timely payments are not received when due.
5.3 Miscellaneous. Unless the parties shall otherwise agree in writing, Customer shall have sole responsibility for ordering, securing installation and ensuring proper operation of any and all equipment required to enable Customer to receive the Service. Customer shall not be eligible for any discounts or promotional offers other than those specifically set forth in the Service Agreement, the Service Order Detail or in an attachment to the Service Agreement, all of which shall be signed by Customer and accepted by 5NINES.
- Service Level Agreement (SLA). The Service provided hereunder is subject to the Service Level Agreement (SLA), which is effective as of the first day of the second month after initial installation of Services. 5NINES guarantees the “Service Availability Goal” that the Service will be available 99.9% each month or that level specified in the Service Description. If 5NINES fails to meet this guarantee due to “5NINES Service Unavailability”, 5NINES will credit the Customer’s account as follows. For each cumulative hour of 5NINES Service Unavailability or fraction thereof below the 99.9% availability guarantee, within a calendar month, Customer’s account shall be credited with one day’s worth of usage / access fees. Fees will be calculated on a pro rata basis from the actual fees billed at the end of the calendar month in which the 5NINES Service Unavailability occurred. If the Service does not include Monitoring Services as part of the Service or as an additional Service, Customer must report the Service Unavailability via 5NINES emergency phone number and report the incident as “critical” or “911” priority in order to be eligible for credit. 5NINES Service Unavailability does not include any unavailability attributable to: (a) scheduled maintenance; (b) acts or omissions of Customer or any user authorized by the Customer; (c) failure in customer-end equipment or telecommunication lines connecting the customer to the 5NINES network; or (d) any force majeure event. In any calendar month, credits provided to Customer with respect to 5NINES Service Unavailability may not exceed one month’s usage / access fees. In order for the Customer to receive credit for 5NINES Service Unavailability, claims by Customer must be submitted by the Customer’s authorized technical contact within 10 calendar days of the end of the month in which the 5NINES Service Unavailability occurred. All claims are subject to review and verification by 5NINES prior to any credits being granted. Credit requests should be sent via e-mail and addressed to support@5NINESdata.com and should reference the date and time of the event. Each event must be reported and verified by a 5NINES authorized representative. 5NINES will acknowledge credit requests within 2 business days of receipt and will inform Customer via e-mail or U.S. Postal Mail within 10 days of this acknowledgment whether the claim request is approved or denied. Approved credits will appear on the Customer’s next monthly bill. 5NINES does not warrant that the services provided hereunder will be uninterrupted, error-free, or completely secure. The service level credits referred to in this section shall be 5NINES’s sole liability and Customer’s exclusive remedy for interruptions, delays, impairments, inadequacies or other defects in service with regard to any and all of the services. 5NINES does not make, and hereby disclaims, any and all other warranties whether express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
- Outages; Processing of Credits. If an Outage occurs, a trouble ticket will be issued. The Outage duration is measured from the time the trouble ticket is opened to the time the affected service is Operational again. Moreover, for purposes of measuring the duration of any Outage(s), the applicable non-overlapping time periods shall be aggregated each month. Once the Outage is resolved, Customer will be notified and a root cause analysis will be performed and a report will be delivered. The credits associated with the specific Outage are subject to the terms of this Section. Customer must initiate a written request within five (5) business days of the last day of the month in which the Outage occurred and, upon such request, and at the conclusion of the calendar month, 5NINES will measure the cumulative Outages for each affected service for that calendar month. Credits shall be applied to the month in which the event giving rise to the credit occurred. Outages spanning month-end will be handled as a single outage and credits will be applied appropriately for time in each month the outage occurred. Any SLA credits will be promptly issued against Customer’s invoice.
7.1 Maximum Service Credits; Exceptions.
(a) Under no circumstances will Customer be entitled to SLA credits in any one calendar month in excess of charges for seven (7) days of MRCs for the affected service. Notwithstanding the foregoing, in the event that, in any single calendar month, Customer would be eligible to receive SLA credits totaling twenty-four (24) or more days (but for the limitation set forth in this Section), then, Customer may, at its option and without penalty, either: (i) cancel the affected service only, but leave the Service Agreement and the remaining services in full effect; or (ii) terminate this entire Agreement, including all services. In either event, Customer must provide 5NINES with written notice of cancellation/termination to the Call Management Center with a courtesy copy to the attention of the General Counsel to the 5NINES facility address within five (5) business days following the end of such calendar month. Such termination will be effective thirty (30) days after receipt of written notice by 5NINES. Customer will be required to pay all outstanding balances, less any SLA credits issued by 5NINES, and Customer shall pay any de-install charges applicable to the return of the CPE (e.g., shipping, etc.). Customer’s remedies for any and all claims relating to the services (e.g., interruptions, deficiencies, etc.) shall be limited to those set forth in the SLAs set forth in this Section.
(b) In the event of a Service-related outage, as defined in the Service Level Agreement (SLA) section, those specific terms, measurements, SLAs, and remedies shall apply. In the event that Customer is entitled to multiple SLA credits under the SLAs in this Section arising from the same event, then such SLA credits shall not be cumulative. Customer shall be entitled to receive only the maximum single SLA credit available for such event (e.g., Customer shall not be entitled to “double credits” in the event of Service unavailability).
(c) SLA credits will not be available in cases where the SLA in this Section is not met as a result of: (i) the negligence, acts or omissions of Customer, its Authorized Representatives, employees, contractors or agents or its End Users; (ii) the failure or malfunction of equipment, applications or systems not controlled by 5NINES; (iii) circumstances or causes beyond the control of 5NINES, including instances of Force Majeure; or (iv) scheduled service maintenance, alteration, or implementation, including Normal Maintenance (as defined in these Standard Terms & Conditions). The SLAs set forth in these Standard Terms & Conditions only apply to services provided by 5NINES. Accordingly, Customer is solely responsible for administering and managing all aspects of its application(s). There are no SLAs associated with the availability (or unavailability), administration, monitoring or management of Customer’s application(s).
7.2 Maintenance Window Definition.
(a) Normal Maintenance. Normal Maintenance shall refer to: (i) upgrades of hardware or software; (ii) preventative and necessary maintenance (such as upgrading power supplies), or (iii) upgrades to increase capacity. Normal Maintenance while being conducted may degrade the quality of services provided which may include a disruption of the services; provided, however, that a disruption related to Normal Maintenance shall not be deemed to be an Outage. Normal Maintenance shall be undertaken at a time mutually negotiated and agreed upon by Customer and 5NINES during implementation. For maintenance not covered under mutually agreed upon Normal Maintenance hours, 5NINES shall provide two (2) days prior notice.
(b) Urgent Maintenance. Urgent Maintenance shall refer to efforts to correct hosting conditions which are likely to cause an Outage and which require immediate correction. Urgent Maintenance, while being conducted, may degrade the quality of the services provided, and which may include an Outage. An outage related to Urgent Maintenance shall be deemed an Outage for purposes of determining whether the service is Operational. 5NINES may undertake Urgent Maintenance at any time deemed necessary. 5NINES shall provide notice of Urgent Maintenance to Customer as soon as is commercially practicable under the circumstances.
- Data Center Specific Terms.
(a) License Grant. If the Service requires, 5NINES hereby grants to Customer a limited, personal, non-exclusive, non-transferable license (“License”) to access the Data Center as reasonably necessary in order to install, maintain and operate Customer’s CPE and the Customer Web Site (if applicable) within the Premises. Customer and its Authorized Representatives shall access and use the Data Center and Premises only for the foregoing purposes and to interconnect with 5NINES’ network. Customer has not been granted any real property interest in the Premises or Data Center and has no rights as a tenant or otherwise under any property or landlord/tenant laws, rules or regulations. The following items are prohibited in the Data Center: explosives, tobacco-related products, weapons, cameras (e.g., video, web, etc.), video tape recorders, flammable liquid or gases or similar materials, electro-magnetic devices, or other materials or equipment that 5NINES, at any time and at its reasonable discretion, deems prohibited. Customer and its Authorized Representatives shall not alter or tamper with any property or space within the Data Center other than the Customer’s CPE. Customer is solely responsible for assessing its own computer and transmission network needs and the results to be obtained there from. The License is co-terminus with the term of Service ordered hereunder and is subject and subordinate to the underlying ground or facilities lease or other superior right by which 5NINES has acquired its interest in the Data Center. Neither the License, nor the use of the Data Center or payment of any charges by Customer shall: (a) create or vest in Customer any easement or other property right, including any roof or subfloor rights, of any nature in the Premises or Data Center; nor (b) limit or restrict 5NINES’ right to access, operate and use the Premises, Data Center and facilities therein. Any additional access or property rights including, but not limited to, any roof or subfloor rights shall be contemplated and granted under separate agreement.
(b) Access to Premises. Customer and its Authorized Representatives shall comply with the requirements of any lease, rules and regulations of 5NINES or its lessor, including, but not limited to, the 5NINES Standards for Facility Security and Rules of Conduct (the “Standards”). A current copy of the Standards, which are subject to change at 5NINES’ reasonable discretion, is available upon request from the 5NINES Call Management Center. Customers will be give notice of any changes to the Standards and allowed at least ten (10) days grace period for compliance with such changes. Only Authorized Representatives shall be permitted to access the Premises and the Data Center on Customer’s behalf. 5NINES, at its sole discretion may refuse to allow an Authorized Representative to enter the Data Center. Authorized Representatives entering the Data Center in order to access the Premises may, at 5NINES’ sole discretion, be required to be accompanied by an authorized employee or agent of 5NINES (the “Escort”). All of Customer’s work in the Data Center and Premises shall be performed in a safe and workmanlike manner. Customer’s work operations in and around the Premises may be suspended if, in Escort’s reasonable discretion, any hazardous conditions arise or any unsafe or insecure practices are being conducted by an Authorized Representative. Customer shall defend, indemnify and hold harmless 5NINES from any claims, liabilities, costs and expenses (including reasonable attorney’s fees), arising out of or related to any damages caused by Customer, its Authorized Representatives, employees, agents and contractors to any part of the Data Center, 5NINES’ equipment or equipment of 5NINES customers.
8.2 Customer Premises Equipment (CPE).
(a) CPE and Software Ordering. Except as set forth in the Service Description or unless the parties agree in writing otherwise, Customer is solely responsibility for the ordering, installation, operation and Service compatibility of all CPE required to enable Customer to receive the Service. Prior to installation and thereafter upon 5NINES’ reasonable request, Customer will provide 5NINES an updated list of all CPE installed or to be installed in the Premises. If requested by Customer, 5NINES shall, subject to availability and on Customer’s behalf, obtain certain CPE (which also may include Software and/or other materials). Any CPE provided to Customer by 5NINES shall be provided pursuant to the terms and conditions of a separate agreement or order form. If any CPE or Software not provided by 5NINES impairs Customer’s use of any Service: (a) Customer shall remain liable for the payment of all Service charges; and (b) any applicable Service specifications or service levels may not apply. All CPE and Software provided by 5NINES are subject to the terms, rights and warranties set forth in the manufacturer’s or publisher’s warranty or end-user license applicable to such CPE or Software, with no warranty of any kind from 5NINES. In the event that Customer files a petition in bankruptcy, has an involuntary petition in bankruptcy filed against it, becomes insolvent, is unable to pay its liabilities when and as due, or if any of the foregoing are announced by Customer as planned or expected, then in such event 5NINES will have a security interest in the CPE and other Customer property located in the Data Center for purposes of securing any amounts owed by Customer to 5NINES.
(b) Installation and Changing of CPE. Except as otherwise set forth in the Service Description, Customer shall engineer, furnish, install and test, at its sole cost and expense, all CPE. If, however, 5NINES is installing CPE on Customer’s behalf, then certain provisions of this Subsection may not apply. Prior to installing CPE (“CPE Installation”) or making any CPE or logical configuration changes (“CPE Change”), Customer must so notify 5NINES in writing. In the case of CPE Installation, Customer must submit engineering plans and specifications (“CPE Installation Plans”) pertaining to the CPE Installation for 5NINES approval in the form required by 5NINES. In the case of CPE Change, Customer must advise 5NINES in writing of the nature of such CPE Change and may not attempt to make such CPE Change until 5NINES approves such CPE Change in writing. 5NINES shall notify Customer of its approval of such CPE Installation Plans or CPE Change as soon as commercially reasonable (which in some cases will be immediate approval, but will not be later than five (5) business days after receiving Customer’s written notice). In the case of CPE Installation, 5NINES shall also provide a written response (“5NINES Response”) that will include space assignment, any applicable NRCs in order to prepare the Data Center or Premises for Customer’s use (such as custom wiring, custom construction of cage or dividing walls, etc.), and the date when the Premises will be ready for installation of the CPE. CPE Installation and any CPE Changes shall not begin until 5NINES grants permission to commence same and may, at 5NINES sole discretion, be under the direct supervision of an Escort. All CPE shall be clearly labeled with Customer’s name and contact information. Upon completion of CPE Installation, Customer shall remove all installation material from the Data Center and Premises and shall restore same to their pre-installation condition.
(c) Maintenance. 5NINES will conduct routine, scheduled maintenance within its Data Centers as set forth in the SLA, during which time the CPE may be inaccessible by Customer or unable to transmit or receive data. Unless 5NINES expressly agrees otherwise in writing, 5NINES shall have no obligation to maintain the CPE and/or any Customer software. Customer will be notified in advance of scheduled Maintenance activity that could affect Customer operations.
(d) CPE Relocation. 5NINES may, upon thirty (30) days prior written notice, relocate any CPE (“Non-Emergency CPE Relocation”) and will relocate such CPE to a location which will afford comparable environmental conditions and accessibility. The parties will work together in good faith to minimize any potential, resulting disruption of Service. If an emergency event requires the immediate rearrangement or relocation of CPE (“Emergency CPE Relocation”), 5NINES may rearrange or relocate the CPE (with the same care used by 5NINES in handling its own equipment) as is reasonably necessary to respond to the emergency and Customer authorizes 5NINES to take such remedial actions. 5NINES shall use reasonable commercial efforts to notify Customer prior to performing the necessary Emergency CPE Relocation. Notwithstanding the foregoing, in the event of an emergency in the Data Center, 5NINES work shall take precedence over Customer’s operations in the Premises. 5NINES will bear the cost of any Emergency CPE Relocation of any Non-Emergency CPE Relocation and will reimburse Customer for any damages caused to the CPE or Customer as a result of the CPE relocation where such damage is the result of 5NINES negligence or willful misconduct.
(e) 5NINES Inspection and Remedial Rights. 5NINES may (but is not obligated to) make periodic inspections of CPE (“CPE Inspection”) upon reasonable advance notice to Customer, and Customer shall have the right to be present during CPE Inspection. If, however, such prior notice is not commercially practicable, 5NINES may make such CPE Inspection immediately, but shall thereafter provide notice of the CPE Inspection to Customer. The making of, or failure to make, CPE Inspections shall not give rise to any new, or alter any existing, obligations or liabilities of the parties under the Service Agreement. If the CPE is not installed and maintained in accordance with the terms of the Service Agreement, and Customer has not corrected such non-compliance within ten (10) days after receipt of notice thereof from 5NINES, 5NINES may either: (i) suspend the Services; or (ii) correct such non-compliance at Customer’s expense. If such condition poses either an immediate safety threat to people or an immediate threat to 5NINES Center or network facilities, 5NINES may, immediately and without notice perform such work and take such action that it deems reasonably necessary (“Corrective Action”). If 5NINES engages in such Corrective Action, 5NINES shall not be liable for any CPE damage or Service interruption. As soon as practicable after taking such Corrective Action, 5NINES will so notify Customer in writing and Customer shall reimburse all expenses reasonable incurred by 5NINES in connection therewith.
(f) Removal of CPE. Within thirty (30) calendar days of the expiration or termination of the Service Agreement, Customer shall: (i) remove all CPE (including any other Customer property located in the Data Center, but excluding any CPE that is owned or leased by 5NINES) from the Data Center at its own cost and expense (except where 5NINES provides such CPE removal service in the case of certain managed services ordered by Customer, as defined in the Service Description); and (ii) return to a 5NINES Center employee any CPE that is owned or leased by 5NINES. If Customer fails to remove its CPE as required by this Subsection, 5NINES may, upon thirty (30) calendar days written notice, either (a) return such CPE to Customer’s address set forth in the Service Agreement; or (b) deem such CPE to be abandoned and move any such CPE to secure storage, and/or liquidate or otherwise dispose of the CPE in any commercially reasonable manner. If 5NINES elects to pursue any of these remedies, 5NINES shall have no liability to Customer and Customer shall bear risk of loss and shall be responsible for all associated costs and expenses (including reasonable attorneys’ fees). Notwithstanding anything to the contrary contained in this subsection, if Customer owes 5NINES an outstanding balance at the expiration or termination of the Service Agreement, 5NINES may, in addition to the foregoing remedies, retain any CPE or other Customer property located in the Data Center and, upon thirty (30) calendar days written notice to Customer, sell them to satisfy such unpaid sums. Any proceeds of such sale that remain after costs of sale (including reasonable attorneys’ fees) and satisfaction of any outstanding balance owed by Customer to 5NINES will be returned to Customer.
- In order to provide Customer with physical access to the Data Center and proximity to equipment owned by third parties, Customer shall at all times during the Term of the Service Agreement, at its own cost and expense, carry and maintain the following insurance coverage with insurers having a minimum “Best’s” rating of A-VII (A-7):
- “All Risk” Property insurance covering all CPE located in the Premises in an amount not less than its full replacement cost;
- Commercial General Liability insurance covering claims for bodily injury, death, personal injury or property damage (including loss of use) occurring or arising out of the license, use or occupancy of the Data Center or Premises by Customer, including coverage for premises-operation, products/completed operations and contractual liability with respect to the liability assumed by Customer hereunder. The limits of insurance shall not be less than: (1) Each Occurrence – $1,000,000, (2) General Aggregate – $2,000,000, (3) Products/Completed Operations – $1,000,000, and (4) Personal & Advertising Injury – $1,000,000;
The insurance limits required herein may be obtained through any combination of primary and excess or umbrella liability insurance. If applicable, Customer shall require its subcontractors and agents to maintain the same insurance. Upon request, customer shall forward to 5NINES certificate(s) of such insurance upon the effectiveness of the Service Agreement and upon any renewal of such insurance during the Term. The certificate(s) shall provide that: (i) 5NINES LLC (and its participating affiliates) be named as additional insured as their interest may appear with respects the Service Agreement; (ii) thirty (30) days prior written notice of cancellation, material change or exclusion to any required policy shall be given to 5NINES; and (iii) coverage is primary and not excess of, or contributory with, any other valid and collectible insurance purchased or maintained by 5NINES. This requirement of insurance is not applicable for services, such as shared hosting or dedicated server hosting, that do not require physical access to equipment.
- Limitation of Liability. In no event will either party be liable to the other party for any losses, lost profits, loss of business, lost revenues, lost data, delays, loss of technology, rights or services, consequential, indirect, incidental, special, reliance, exemplary or punitive damages, or viruses arising out of or related to the Service Agreement, or any other type of damages other than direct damages (and with direct damages, only to the extent permitted in the Service Agreement). Except for causes of action involving non-payment of sums due under the Service Agreement or damages caused by Customer, its Authorized Representatives, employees, agents and contractors to any part of the Data Center, 5NINES’ equipment or equipment of 5NINES customers, both party’s aggregate liability (including attorneys’ fees) to each other, if any, shall not exceed the amount of fees actually paid to 5NINES by Customer under the Service Agreement during the two months immediately preceding the date on which such claim (or related claims) first accrued.
Online Conduct Policy
This Online Conduct Policy (this “Policy”) applies to 5NINES’s Customers, defined as those with whom 5NINES has a contractual relationship for the provision of Internet services (or to whom 5NINES otherwise directly provides Internet services), as well as the Customer’s customers, agents, and users (defined collectively herein as “Users”).
Customer Content. Customer acknowledges that 5NINES exercises no control whatsoever over the content of the information passing through Customer’s website(s) and that it is the sole responsibility of Customer to ensure that the information it and its Users transmit and receive complies with all applicable laws and regulations and this Policy.
Prohibited Activities. Customer and their Users will not, and will not permit any persons using 5NINES’s Internet Service or Customer’s online facilities and/or services, including, but not limited to, Customer’s website(s) and transmission capabilities to, do any of the following (each, singularly, a “Prohibited Activity,” and collectively, “Prohibited Activities”):
- Engage in any activities or actions that infringe or misappropriate the intellectual property rights of any person or entity, including, but not limited to, using, posting, distributing, or downloading third party copyrighted materials without appropriate permission or attribution.
- Use, post, distribute or download third party information protected as trade secret information in violation of a duty of confidentiality or law.
- Engage in activities that would violate the privacy rights of others, including, but not limited to, collecting and distributing information about Internet users without their permission, except as permitted by applicable law.
- Post, store, send, transmit, or disseminate information, data or material which is libelous, obscene, unlawful, threatening, or defamatory.
- Send very large numbers of copies of the same or substantially similar messages, empty messages, or messages which contain no substantive content.
- Impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other fraudulent activity.
- Access another person’s or entity’s computer or computer system, network, software or data without his or her knowledge and consent, breach the security of another Internet user or system, or attempt to circumvent the user authentication of any host, network or account.
- Restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation of 5NINES’s Internet service.
- Restrict, inhibit, interfere with, or otherwise disrupt another’s use or enjoyment of 5NINES’s Internet service.
- Intentionally omit, delete, forge or misrepresent transmission information, including headers, return mailing and Internet Protocol addresses.
- Interfere with “standard technical measures” as defined by 17 U.S.C. 512(i)(2).
- Engage in any activities or actions intended to withhold or cloak Customer’s or User’s identity or contact information.
- Use or attempt to use 5NINES’s Internet services for any illegal or unlawful purpose, in violation of applicable laws or regulations or in violation of the rules of any other service provider, websites, chat rooms or the like.
- Assist or permit another to engage in any of the Prohibited Activities described above.
Awareness of Prohibited Activities. If Customer or their Users become aware of any Prohibited Activity, Customer or Users will use their best efforts to remedy such Prohibited Activity immediately, including, if necessary, limiting or terminating the offending party’s access to Customer’s or User’s online facilities and/or 5NINES’s Internet service.
Violation of Policy. If 5NINES believes a Customer or its User has violated this Policy, 5NINES may take any responsive actions it deems appropriate under the circumstances with or without notice. These actions may include, but are not limited to, temporary or permanent removal of content, filtering of Internet transmissions, and the immediate suspension or termination of all or any portion of the 5NINES Internet service. 5NINES shall not have any liability for any of these responsive actions. These actions are not 5NINES’s exclusive remedies and 5NINES may take any other legal or technical actions it deems appropriate with or without notice.
Monitoring by 5NINES. 5NINES does not routinely monitor the activity of individual Customers or Users for violations of this Policy. However, 5NINES will respond appropriately if it becomes aware of any Prohibited Activity. 5NINES and its suppliers reserve the right at any time to monitor bandwidth, usage, transmissions, and content in order to, among other things, operate the 5NINES Internet services; identify violations of this Policy; and/or protect its network, the 5NINES Internet services, and 5NINES’s Customers.
Investigation. 5NINES reserves the right to investigate suspected violations of this Policy, including the gathering of information from the complaining party and/or from the Customer(s) or User(s) involved, and examination of material and data on 5NINES’s servers and network. During an investigation, 5NINES may suspend the account or accounts involved and/or remove or block material that potentially violates this Policy. Customer and their Users expressly authorize and consent to 5NINES and its suppliers cooperating with (i) law enforcement authorities in the investigation of suspected legal violations, and (ii) system administrators at other Internet service providers or other network or computing facilities in order to enforce this Policy. Upon termination of Customer’s or User’s account, 5NINES is authorized to delete any files, programs, data, email and other messages associated with Customer’s or User’s account (and any secondary accounts).
Spam. In addition to the above, the transmission, broadcast, support, or the hosting of any websites, products or services promoted by UBE (Unsolicited Bulk E-mail) a.k.a. “Spam” is a Prohibited Activity, and may result in any or all of the following:
1) Immediate and permanent termination of power, data, and KVM (Keyboard-Video-Mouse) connectivity.
2) Seizure and forfeiture of ownership of all equipment belonging to the individual or organization responsible for the UBE activity.
3) Immediate and permanent forfeiture of all pre-paid rack, cage, and connectivity charges.
4) Immediate revocation of physical access privileges to all 5NINES Center facilities.
5) The offending individual or organization will be financially responsible for all residual financial liabilities incurred by 5NINES due to violation of any upstream carrier’s policies or rules.
6) The offending individual or organization will be financially responsible for all residual financial liabilities and labor expense incurred by 5NINES repairing damage from UBE activity, e.g. RBL (Realtime Blackhole List) de-listing activity or efforts.
DMCA. 5NINES respects the intellectual property rights of others and expects its Customers and their Users to do the same. From time to time, 5NINES will receive notices from purported copyright holders alleging copyright infringement by Customers or their Users. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, 5NINES will respond to DMCA compliant notices it receives from purported copyright holders (“DMCA notices”) as stated in 5NINES’s DMCA Policy, which DMCA Policy is provided to Customers and available to Customers and Users upon request. DMCA notices must be e-mailed to 5NINES at email@example.com or at firstname.lastname@example.org, or sent to 5NINES’s DMCA agent as identified at: http://www.copyright.gov/onlinesp/agents/num-syms/5-nines.pdf.