By opening an account with WWW Internet Solutions, Inc. (dba ISOCNET) you agree to abide by the following Terms and Conditions:
1. Definitions
1.1 WWW Internet Solutions, Inc. (dba ISOCNET) will be referred to as “The Provider” in the following terms and conditions.
1.2 The user will be referred to as “The Subscriber” or “Customer” in the following terms and conditions.
1.3 All currency mentioned in this document or on any content page of The Provider’s web site shall be defined in U.S. currency or U.S. dollars (USD).
2. Provider Liabilities
2.1 The Provider exercises no control whatsoever over the content of the information originating outside of its systems or passing through it. Use of any information obtained via The Provider is at The Subscriber’s own risk.
2.2 The Provider specifically disclaims any responsibility for the accuracy or quality of information obtained through its services.
2.3 No warranty is made by The Provider regarding any information, services or products provided through, in connection with, or located on the computer systems of The Provider or other services provided by The Provider. The Provider disclaims any and all warranties of any kind, whether expressed or implied, for the service it is providing. Provider is not responsible for any damages The Subscriber’s business may suffer as a result of services obtained from The Provider.
2.4 The Subscriber agrees to indemnify and hold harmless The Provider, its directors, officers, shareholders, agents and employees, and its other subscribers from any and all claims, costs, expenses, judgments, liabilities, causes of actions, attorneys’ fees, litigation and court costs resulting from The Subscriber’s use of The Provider’s services in any manner, whether directly, indirectly or by any act of commission or omission.
3. Subscriber Responsibilities
3.1 The Subscriber certifies that either he or she is of at least 18 years of age or has the consent of his or her legal guardian.
3.2 The Subscriber will not share their user information in whole or in part with any third party, including but not limited to their username, login name or password for any service offered by Provider. PLEASE NOTE, THE PROVIDER WILL NEVER REQUEST THE SUBSCRIBER TO PROVIDE THEIR USER INFORMATION SUCH AS USERNAME, LOGIN NAME AND/OR PASSWORD VIA EMAIL.
The Subscriber is fully responsible for any and all account activity by the Subscriber and/or anyone Subscriber allows service access whether intentional or not. It is The Subscriber’s sole responsibility to protect their user information and account access. Failure to do so is a clear violation of the Provider’s Terms and Conditions and Subscriber must bear the consequences as outlined within.
3.3 It shall be the responsibility of The Subscriber to keep The Provider informed of any changes to The Subscriber’s information so that all information is valid and up to date at all times. This shall include mailing address, phone numbers and credit card information. This information may be submitted by email, fax or telephone in that order of preference.
3.4 Any liability of The Provider, including without limitation any liability for damages caused or allegedly caused by any failure of performance, error, omission, interruption, electrical surge/damage/interference, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction of or unauthorized access to, alteration of, or use of data whether for breach of contract, tortuous behavior, negligence, or under any other cause of action, shall be strictly limited to the amount paid by or on behalf of The Subscriber to The Provider for the current month.
3.5 The Subscriber is solely responsible for the knowledge of and adherence to any and all laws, statutes, rules and regulations pertaining to (1) the Subscriber’s use of any of The Provider’s services, and (2) the communication means by which The Subscriber connects to The Provider services or any other service provided by The Provider. The Provider may only be used for lawful purposes.
3.6 The Subscriber is prohibited from transmitting on or through any of ISOCNET’s services, any material that is, in ISOCNET’s sole discretion, unlawful, obscene, threatening, abusive, libelous, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law. ISOCNET’s services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to: any material, data, matter, software/software code, intellectual property, protected by copyright, trademark, privacy or other proprietary, personal or property right, trade secret, or any other statute, material legally judged to be threatening or obscene, or material protected by trade secret transmission, promulgation, theft, procurement of, communication, alteration, publication or storage of any information, protected material/property, data or material in violation of any national law of any sovereign nation, or of international law, the United States Annotated Code, or of any state or local law, statute, regulation or rule. The Provider reserves the right to remove such material from its servers.
3.7 The Subscriber’s are prohibited from running adult sites on or through any of The Providers services or equipment.
3.8 The Subscriber agrees to educate their customers about spam so that it does not become a problem for The Subscriber or The Provider. If The Subscriber sells accounts they must provide an Acceptable Use Policy (AUP) at least as restrictive as The Provider’s Acceptable Use Policy (AUP).
3.9 The Subscriber agrees to abide by the purpose and acceptable use of The Provider’s policy. Use of The Provider’s services to access other networks, computers, or services, must comply with the policies of these entities.
3.10 The Subscriber agrees to promptly investigate and deal with any spam or other abuse complaints reported.
4. Price and Payment
4.1 The charges payable by The Subscriber for the provision of the services are set out in the service descriptions.
4.2 Prices based on annual contracts are payable in advance and represents a commitment for twelve months of service and there are no provisions for cancellations prior to the end of the term.
4.3 Payment of all sums due to The Provider under this agreement shall be made by cash, credit card, wire transfer, Western Union transfer, cashier’s check, personal check or money order on a monthly, quarterly, semi-annual or annual basis depending on the service subscribed to by The Subscriber. Approved credit cards are American Express, Discover, MasterCard and Visa. If payment is to be made by credit card The Subscriber under this agreement, authorizes The Provider to automatically apply the appropriate prepayment charges to The Subscriber’s credit card for each billing cycle and that The Provider may apply the amount due to the provided card at any time.
4.4 The Subscriber agrees to supply appropriate payment for the services received from The Provider, in advance of the time period during which such services are provided. All payments are due by the 1st of the month. Accounts are in default if payment is not received within 10 calendar days after the date of the invoice. If The Subscribers payment is returned to us unpaid The Subscriber is immediately in default and subject to a returned check administration fee of $50.
4.5 Accounts determined to be in default may have their service suspended. Such interruption does not relieve The Subscriber from the obligation to pay the monthly account charge. If such interruption occurs, in order to reactivate an account, a reconnect fee equal to up to 100% of the listed setup charge for services in default with a $25.00 minimum will be applied in addition to any outstanding balances. If The Subscriber defaults, The Subscriber agrees to pay The Provider its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under these Terms and Conditions. The Subscriber understands and agrees that The Provider shall not be responsible for any charges or expenses that The Subscriber may incur resulting from overdrawing The Subscriber’s bank account or exceeding The Subscriber’s credit card limit as a result of an automatic or manual charge generated by The Provider pursuant to this authority.
4.6 Accounts in default for a period exceeding 30 days are subject to collections. Collection fees and/or expenses are the responsibility of The Subscriber as outlined in 4.5.
4.7 The Provider reserves the right to terminate the services to The Subscriber in the event of any default of payment.
5. Termination, Suspension, or Cancellation of Accounts
5.1 The Provider reserves the right to cancel service for any reason without prior notice. Prepaid service cannot be cancelled without prior written consent from The Provider and fees for such services are non-refundable. All fees paid in advance of cancellation will be pro-rated and refunded by The Provider to The Subscriber if The Provider initiates its right of cancellation and The Subscriber is NOT in violation of these Terms and Conditions. If cancellation is caused by The Subscriber and/or its client’s breach of the Terms and Conditions, then The Subscriber agrees that no refund is due. Cancellations are processed at the end of the month and The Subscriber is responsible for payment for the full month of service. The Subscriber must notify The Provider in writing by mail, fax or e-mail 30 days prior to the cancel date. Monthly charges will not be pro-rated except at the time of activation of a new account.
5.2 Due to protection concerns, all account cancellations must be done in writing via US mail, e-mail or fax. Notifications of cancellation must include the company letterhead, account name, principal contact name with a valid signature, last four digits of credit card number on file and reason for cancellation. Third party cancellations are not accepted.
Upon termination, either by The Provider or The Subscriber, for any reason, The Subscriber is responsible for deleting his/her host registrations from domain registrar(s) within 10 business days. The Subscriber further agrees to pay The Provider all reasonable administration cost if The Provider must intervene in reregistering the host.
5.3 The Provider shall have the right to suspend or terminate service to The Subscriber, without notice at any time if The Subscriber violates the terms of this agreement. If such a suspension is to last for more than 15 days, The Subscriber will be notified as to the reason.
5.4 The Provider shall have the right to suspend or terminate service to The Subscriber, without notice at any time if any action by The Subscriber results in a loss or reduction of service event for any other ISOCNET customer.
5.5 Accounts that have been suspended for 90 days will be deleted.
6. Session Limits
6.1 The Provider reserves the right to impose session limits.
7. Improper Use
7.1 A breach of our Acceptable Use Policy will constitute a material breach of this agreement and shall entitle The Provider to terminate the agreement pursuant to 5.3.
7.2 The Subscriber shall not (or authorize or permit any other party to) use the service for the transmission of any material which is in violation of any law or regulation or which is defamatory, menacing, obscene, in breach of third party intellectual property rights (including copyright) or in breach of trade secrets. Any breach of this clause will be deemed to be a material breach of this agreement and shall entitle The Provider to terminate the agreement pursuant to 5.3 and for this purpose it shall be irrelevant whether The Subscriber is aware of the content or illegality of any material so transmitted or not.
7.3 Notwithstanding and in addition to 5.3 The Provider may suspend the service without notice with immediate effect if in The Provider’s reasonable opinion The Subscriber is in breach of 7.2.
8. Development and Professional Services
8.1 Quotations (Estimates)
8.1.1 Quotations may be provided by ISOCNET to offer the client a guide on the projected cost of a project prior to any discovery or research for the project. All quotations will be clearly marked as such and are not an indication of the exact final cost to complete the Development Work (any application, website or other development work including but not limited to updates or changes to existing websites/applications or a complete new development project).
8.1.2 All quotations provided by ISOCNET are valid for a period of 30 days from date of issue. Quotations not accepted within this timeframe must be re-issued.
8.1.3 All quotations will need to be formalized to a Statement of Work (SOW) agreement before acceptance by either party as the final estimated cost of the Development Work. All pricing is estimated and all SOW pricing may fluctuate by ±10%.
8.1.4 All quotations are required to be accepted using the Statement of Work agreement and returned to ISOCNET within the 30 day period from date of issuance.
8.1.5 If the completed Development Work is not hosted by ISOCNET, ISOCNET will not be liable for any additional time or resources, above and beyond that already included in the quotation, required to get the completed Development Work operational with an alternative provider.
8.1.6 If the completed Development Work is not hosted by ISOCNET, ISOCNET will bill any additional time and or resources, above and beyond that already included in the quotation, required to get the completed Development Work installed on the clients host at the hourly rate that is current for ISOCNET at the time. The minimum cost for this will be 2 hours at the above mentioned rate.
8.2 Payment Terms
8.2.1 All quotations provided by ISOCNET, require a 50% deposit upon the signed acceptance of the Statement of Work unless otherwise specified in writing.
8.2.2 ISOCNET will only commence work on the quoted Development Work once any deposited funds have cleared.
8.2.3 Prompt scheduling and the ability to keep projects on schedule is critical to ISOCNET’s business. For this reason failure to respond to an ISOCNET request for information for more than 30 days will trigger the need for payment in full prior to project completion and ISOCNET will invoice at this time.
8.2.4 Failure to respond to an ISOCNET request for information for more than 45 days deems a project as complete and any and all outstanding balances become due in full at this time. Any further development work beyond this point will have to be requoted to continue.
8.2.5 Unless prior arrangement has been made in writing, final payment is required before moving the Development Work to live status.
8.2.6 Any cost arising from payment clearings or transaction charges are solely the responsibility of the Client and will be charged as such in addition to a processing fee to ISOCNET based on the then current hourly Development rate in 30 minute increments with a minimum of 1 hour.
8.3 Intellectual Property
8.3.1 Unless specified in writing, all quotations provided by ISOCNET do not include any source code license.
8.3.2 All source code and associated intellectual property relating to said source code, developed by ISOCNET, solely remains the property of ISOCNET, except where specific code license has been issued to the Client and said issuance has been indicated in writing from ISOCNET.
8.3.3 ISOCNET reserves the right to implement licensing features within the quoted Development Work, except where a code license has been issued by ISOCNET.
8.3.4 Any alteration, reverse engineering, derivative work or manipulation of any kind on the code, compiled or otherwise, by anyone other than ISOCNET, of any Development Work created by ISOCNET, without the prior expressed written approval of ISOCNET will be considered as copyright infringement in violation of U.S. Copyright Laws and will result in immediate and appropriate legal actions.
8.3.5 Any costs incurred by ISOCNET for third party code license required to complete the quoted Development Work are the responsibility of the Client and will be solely borne by the Client. Any such third party code license will be attached to the existing ISOCNET code license for the quoted Development Work.
8.4 Cancellations
8.4.1 Should the Client wish to cancel acceptance of the quotation, ISOCNET will invoice the client for any work completed to date, as a percentage of the total work involved.
8.4.2 The minimum cancellation fee will be 30% of the accepted quotation.
8.4.3 The client must advise ISOCNET in writing of the request not to proceed with work.
8.5 Content (This includes but is not limited to any text, photographs, documents, graphics, logos or links to be included in the Development Work.)
8.5.1 Clients are required to ensure ISOCNET that the content of the Development Work provided by Client as well as that being quoted adheres to all the current Federal and State legislation including Copyright Laws regarding such materials.
8.5.2 The Client shall further indemnify ISOCNET in respect of any claims, costs and expenses that may arise from any material included within the quoted Development Work by ISOCNET at the Client’s request.
8.5.3 ISOCNET reserves the right not to include any material supplied by the Client within the quoted Development Work if ISOCNET deems said material inappropriate or offensive.
8.5.4 ISOCNET will not populate the Development Work with the final content unless said content is delivered to ISOCNET in digital format (emailed file, disc, CD or Flash Drive) prior to commencement of the Development Work. Said content, if available, will be used for testing purposes and may not be formatted exactly as required by Client. If content is not available mock placeholder content will be used.
8.5.5 It is the Client’s responsibility, in all cases, to ensure the Development Work content is displayed and formatted as they require. If the Client cannot format the Development Work content, ISOCNET will offer this service at ISOCNET’s current hourly rate at the time of the request.
8.6 Permissions and Copyrights
8.6.1 The Client will obtain all necessary permissions and authorities with respect to the use of all copy, graphics, logos, names and trademarks and any other material supplied by the Client to ISOCNET.
8.6.2 Supply of said material by the Client to ISOCNET shall be regarded as a guarantee from the Client that all such permissions and authorities have been sought and obtained for said material.
8.6.3 No responsibility will be accepted by ISOCNET for damages or losses incurred by the Client from the use of material for which permission or authority has not been obtained.
8.7 Errors and Liabilities
8.7.1 ISOCNET will pursue due care to ensure the Development Work created by ISOCNET is free of errors.
8.7.2 ISOCNET will correct any errors made by ISOCNET staff in the workmanship involved in the production of the quoted Development Work during the warranty period.
8.7.3 ISOCNET does not accept responsibility for losses or damage arising from errors within the Development Work.
8.7.4 ISOCNET does not accept responsibility for errors, damages, losses or additional costs that relate to third party products that ISOCNET may require completing the quoted Development Work.
8.8 Alterations
8.8.1 Any alterations requested by the Client after development has begun will incur extra development and regression testing time. Dependent upon the alteration or change requested an average of three (3) business days of additional development time per alteration should be allowed for. The 3 business day average may not be indicative of the time required and can be extended commensurate of the time involved to implement said changes.
8.8.2 ISOCNET will not accept responsibility for any alterations performed by the Client or any third party which may cause or induce errors within the quoted Development Work. This will also void any warranty that may be in effect at that time.
8.8.3 If ISOCNET is required to correct said alterations or errors resulting from said alterations, induced, injected or otherwise caused by parties other than ISOCNET, the Client will be charged at the hourly rate that is current for ISOCNET at the time said errors are to be fixed. If said errors result in an Emergency or Immediate attention that requires the fix to be placed ahead in the available development queue an additional Rush Fee equal to 25% of the total billable fee will be charged.
8.9 Completion of Work
8.9.1 All time frames offered by ISOCNET to the Client are estimates. The intrinsic nature of application development and its intricacies do not offer ISOCNET the luxury of defining definite time frames.
8.9.2 ISOCNET will endeavor to complete all work within the estimated time frames discussed with the Client in the quotation. However, ISOCNET will not be liable for any penalties, monies or hardships otherwise incurred by the Client if the Development Work cannot be delivered within the estimated timeframe.
8.9.3 ISOCNET will not release the quoted Development Work unless all payments have been met under the obligations of the quotation or Statement of Work agreement.
8.9.4 The quoted Development Work remains the property of ISOCNET until all obligations have been met for release of said Development Work to the Client.
8.9.5 If ISOCNET is working as a third party to another company, said company is responsible in meeting the obligations for release of the quote Development Work to their client.
8.10 Warranty
8.10.1 ISOCNET will support and maintain original functionality delivered with the Development Work for 90 days from the go-live date of the project, including compatibility issues with all browser versions listed in the browser compatibility section of each Statement of Work. This does not include fixing compatibility issues with technology or versions of technology that was not publicly released at the time of the go-live date. (Compatibility issues with new browser versions not listed in the browser compatibility section of the SOW will be addressed as a custom option.)
8.10.2 After 90 days ISOCNET will support all applications at the hourly rate that is current for ISOCNET at the time. Support packages may be purchased for a reduced rate.
8.10.3 Any attempt to or actual alteration, reverse engineering, or manipulation of any kind on the code, compiled or otherwise, by the Client, of the Development Work created by ISOCNET, will immediately void any warranty that is in effect or due to Client.
9. Data Center Services
9.1 Recitals
9.1.1 ISOCNET owns or leases certain premises;
9.1.2 Customer desires to have access to a part of ISOCNET premises in which to install and operate Network equipment and cabling and to interconnect such equipment and cabling with the ISOCNET IP network; and,
9.1.3 ISOCNET is willing to provide to Customer, the right to utilize a part of its premises upon the terms and conditions set forth below.
9.2 Terms and Conditions
9.2.1 Right to Locate. ISOCNET hereby grants to Customer a non-exclusive right, subject to termination as provided herein, to locate, install, maintain, monitor, operate, replace, repair and remove (collectively “locate”) certain of its Internet related equipment (the “Equipment”), in a certain designated space (the “Space”) within a designated ISOCNET facility (the “Premises”).
9.3 Customer’s Responsibilities
9.3.1 Customer shall arrange for the transit and delivery of all Equipment to the Space at its sole cost and expense.
9.3.2 Customer shall provide ISOCNET with reasonable prior notice (not less than two (2) business days) of the actual delivery date of the Equipment.
9.3.3 Customer shall install, operate and maintain the Equipment at its sole expense and such installation, operation and maintenance:
(i) shall not cause harm to the Space or the Premises or any other facilities of ISOCNET, or third parties;
(ii) shall not interfere in any way with ISOCNET’s use or operation of the Premises or of its facilities or with the use or operation of any third party facilities;
(iii) shall not physically conflict or electrically interfere with the facilities of ISOCNET or third parties;
(iv) shall be in full compliance with Internet related industry standards, NEC and OSHA requirements, and in accordance with ISOCNET requirements and specifications.
9.3.4 All Equipment must be rack mountable using appropriate brackets, except where otherwise expressly permitted in writing by ISOCNET. Customer is solely responsible for assuring that the Equipment is mounted in an efficient and appropriate manner
9.3.5 All cabling shall be tied and organized, run to the side of the rack, and labeled. Connectors must be secured in the interface socket.
9.3.6 Customer shall be solely responsible for all costs associated with the configuration, installation, interconnection and operation of the Equipment, including without limitation, transportation related costs, and any electrical or other work which must be completed in order to interconnect the Equipment.
9.3.7 Customer shall be solely responsible for all maintenance and repairs on the Equipment. All such work, except for emergency repairs, shall be conducted only during normal business hours.
9.3.8 Customer must provide for remote access (via modem or other means) where available, in order to administer, configure, monitor and operate the Equipment.
9.3.9 Customer shall, at all times, comply with ISOCNET rules and regulations regarding access to its facilities, including without limitation, adequate notice before entry (not less than one business day), appropriate dress and professional conduct. ISOCNET may remove any personnel of Customer not in compliance with its rules and regulations, and may prohibit access by any person at its discretion.
9.3.10 Customer agrees to comply with all policies set out by ISOCNET with regard to the use of ISOCNET facilities, equipment, and services. This includes but is not limited to ISOCNET Terms and Conditions (T&C) which is located on the ISOCNET website and ISOCNET Acceptable Use Policy (AUP).
9.4 Approvals
9.4.1 Customer may not perform any construction or install any Equipment without written approval from ISOCNET. ISOCNET reserves the right to accept or reject Customer’s design at its sole discretion. All costs of design work shall be Customer’s responsibility.
9.4.2 ISOCNET shall inspect the completed installation and must approve same before Customer is allowed to utilize the Equipment for any reason. Any installations that do not meet with ISOCNET approval will be subject to rejection by ISOCNET. ISOCNET also reserves the right to order reasonable modifications to any installations.
9.4.3 Customer is solely responsible for obtaining any and all necessary building permits or other authorizations required for collocation of its Equipment, and Customer shall not permit any lien or other encumbrance to attach to the Premises as a result of the collocation of its Equipment hereunder, and shall indemnify and hold harmless, ISOCNET, from and against any costs or liabilities arising from the placement and/or removal of any such lien or encumbrance.
9.5 Term and Termination
9.5.1 The minimum mandatory term of service shall be twelve (12) months unless otherwise stated in writing by ISOCNET, and the term shall commence on the first day the Space is made available by ISOCNET (the “Commencement Date”). The term shall remain in effect, unless sooner terminated in accordance with the provisions of the Agreement, and shall automatically renew for a period of twelve (12) months, and shall commence on the anniversary date of the commencement date each year.
9.5.2 After the minimum mandatory term of service either party shall have the right to terminate the Agreement or any given Collocation Schedule without further liability, at any time without cause, by giving at least thirty (30) days prior written notice to the other party; provided however, ISOCNET may terminate the Agreement or any Collocation Schedule without notice in the event: (i) an act of God or other occurrence beyond its reasonable control prevents it from reasonably complying with its obligations hereunder or under the Collocation Schedule; (ii) it is forced to vacate the Premises for any reason; (iii) compliance with the terms of the Agreement or of a Collocation Schedule is deemed unlawful or is otherwise prohibited by the establishment of law or regulation or order of a court or regulatory body having jurisdiction over such matters; or (iv) Customer is subject to any proceedings, whether voluntary or involuntary, regarding insolvency, bankruptcy, an assignment for the benefit of creditors, or the appointment of a trustee or receiver, or any similar event.
9.5.3 Following termination of the Agreement as permitted hereunder, neither party shall have any further liability to the other except that Customer shall be liable for payments due and owing hereunder as of the date of termination.
9.5.4 The Equipment is and shall remain the personal property of Customer notwithstanding the fact that it may be affixed or attached to the Premises. Upon termination of the Agreement or the applicable Collocation Schedule, all Equipment shall be removed by Customer within five (5) business days. Any Equipment not removed within such time shall be deemed abandoned, and may be stored by ISOCNET in the manner of its choosing. All costs of removal and storage incurred by ISOCNET in accordance with this provision shall be paid by Customer prior to release of the Equipment to its care and custody. Any Equipment not claimed within sixty (60) days of termination may be sold by ISOCNET in the manner of its choosing and any proceeds of such sale shall first be applied to amounts owed under this Agreement, and then to pay for costs of removal and storage and/or to reimburse ISOCNET for any such costs it has paid. Any proceeds remaining from such sale after payment of said costs shall be paid to Customer upon written request. ISOCNET shall make reasonable attempt to notify Customer of any sale of Equipment. ISOCNET shall not, under any circumstances, be responsible for any damage resulting from removal of Equipment, whether by ISOCNET or Customer.
9.5.5 Upon the giving of thirty (30) days advance notice to Customer, ISOCNET may require Customer to relocate the Equipment to other space within the Premises. In such event, ISOCNET shall pay its own costs of such relocation, and shall reimburse Customer for its reasonable costs, if any, related to such relocation.
9.6 Payments
9.6.1 Customer shall pay to ISOCNET monthly in advance, the Monthly Recurring Charges (MRCs) beginning on the Commencement Date thereof and continuing on the first day of each calendar month thereafter throughout the term of the Agreement. Time and material charges for installation, operations, maintenance and other support services provided by ISOCNET will be included in the regular monthly invoice or billed separately at ISOCNET discretion. Such services will be charged at the rates specified in the Collocation Schedule. In the event that the Commencement Date or the termination date of this Agreement are not on the first day of the month, then the fees for such month shall be pro-rated based upon a thirty (30) day month.
9.6.2 The First month of Monthly Recurring Charges (MRCs) and Non-Recurring Charges (NRCs) or one-time charges are due upon signature of this Agreement. All other MRCs are due on or before the first day of each month. Charges not paid when due shall be subject to an interest charge of one-and-one-half percent (1½%) per month of the amount due after thirty (30) days.
9.7 Access
9.7.1 All access to the Premises will be under escort from ISOCNET. In order to obtain access the Customer must notify ISOCNET a minimum of 24 hours in advance. Escorted Access will be granted between the hours of 8:00 am and 5:00 pm Monday through Friday except for observed U.S. Government Holidays. Access other than the times listed above, and without 24 hours advance notice, will be charged for at the hourly rate that is current for ISOCNET at the time for Escorted Access in 15 minute increments, with a minimum of 1 hour access. In the event that you choose to purchase a full cabinet and your account is paid in full (up to date), you will be allowed full unescorted access to your cabinet. Customer shall designate certain qualified persons who will be the only persons given access to the Customer Area (Designated Persons). Designated Persons will be listed on Supplier’s Access List and granted un-escorted access to their cabinet only.
9.8 Default; Indemnification
9.8.1 In the event of failure of either Party to comply with any material obligation of the Agreement, the other Party shall have the right to terminate this Agreement upon thirty (30) days advance notice in writing, specifying the default complained of. At the expiration of said 30 days, unless the Party in default shall have cured or diligently commenced to cure, its default, the other Party shall have the right at its election to terminate this Agreement forthwith.
9.8.2 Customer shall indemnify and hold harmless ISOCNET, its agents, contractors, officers, directors and employees from and against any and all claims, causes or damages, including injury or death to persons (including claims from employees of Customer), or damage to property, both real and personal, which may arise out of: (i) the presence of Customer’s Equipment, employees, contractors or agents at the Premises or in the Space; (ii) the installation or removal of the Equipment from the Space; (iii) any inherent defects in the Equipment; and (iv) the negligent or intentional acts or omissions of Customer, its agents, employees or contractors.
9.9 Insurance; Limitation of Liability
9.9.1 ISOCNET provides no insurance coverage whatsoever for loss or damage to any of the Equipment housed at its facility. Any such insurance coverage desired or required by Customer shall be the sole responsibility thereof. Furthermore, ISOCNET shall not be responsible for loss or damage to Customer’s equipment regardless of how such loss or damage was caused, except for gross negligence or willful misconduct by an employee, agent or representative of ISOCNET (not affiliated in any way with Customer).
IN NO EVENT SHALL ISOCNET BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUES OF CUSTOMER OR ANY THIRD PARTY, WHETHER FORESEEABLE OR NOT, OCCASIONED BY ANY DEFECT IN ANY FACILITY PROVIDED OR ARRANGED FOR CUSTOMER, OR THE PROVISION OF ANY SERVICE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE FURNISHING OF SPACE, OR FOR ANY OTHER CAUSE WHATSOEVER, AND WHETHER PRIOR NOTICE OF THE POSSIBILITY OF SUCH DAMAGES TO ISOCNET HAS BEEN GIVEN.
ISOCNET HEREBY EXPRESSLY EXCLUDES AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY SERVICES, FACILITIES OR SPACE PROVIDED OR ARRANGED FOR CUSTOMER BY ISOCNET, INCLUDING BUT NOT LIMITED TO EQUIPMENT HOUSING, ELECTRICAL SUPPLY OR NETWORK INTERCONNECTIONS.
Customer shall defend and indemnify ISOCNET from any claims, liabilities, losses, costs, or damages, including reasonable attorneys’ fees and costs, arising out of any transmission by Customer or any third party authorized by Customer to utilize the equipment, that is libelous, slanderous, an infringement of copyright, or which is otherwise illegal.
Customer will obtain and maintain, during the term of this Agreement and any Service Order, insurance of the kinds and in the minimum amounts required by law. ISOCNET may terminate this Agreement or any Service Order without further notice in the event Customer fails to comply with requirements of this section.
9.9.1A Worker’s Compensation Insurance affording protection in accordance with the Worker’s Compensation Law of the State(s) in which the services are
to be performed.
9.9.1B Comprehensive General Liability Insurance for bodily injury and for property damage. Such insurance must include coverage for liability assumed
under this Agreement or any Service Order, completed operations coverage and damage to the property of others in the care, custody or control of the
insured.
9.9.1C Such insurance policies shall, without limitation, cover claims resulting from the operations of subcontractors and Customer shall require any and all
subcontractors to procure and maintain in good standing the same types of insurance required by Customer specifically including contractual
indemnification in favor of ISOCNET and Customer.
9.9.1D Property and liability policies to be carried by Customer under this Agreement shall name ISOCNET as an additional insured. Each policy shall
contain an agreement by the insurer that the insurer will endeavor to provide ISOCNET notice of any cancellation or decrease in coverage of such policy
upon thirty (30) days prior notice to ISOCNET.
9.10 Force Majeure
9.10.1 Neither party shall be deemed liable in any respect (except to pay amounts due for services previously rendered) to the other for any delay, interruption or failure in performance hereunder resulting from causes beyond its reasonable control, including without limitation: fire, flood, water, the elements, explosions, acts of God, war, accidents, labor disputes, strikes, shortages of equipment or suppliers, failure of operational environment (including without limitation, electrical utilities or air conditioning), unavailability of transportation or other similar cause. In such cases, either party shall have the right to terminate this Agreement or any affected Collocation Schedule for any such cause that is not removed within thirty (30) days of its first affecting performance hereunder. This provision shall not prevent either party from being liable for a breach of its obligations hereunder, except if such party has acted reasonably diligently to remove the cause preventing its performance.
9.11 Other Provisions
9.11.1 Governing Law; Jurisdiction: This Agreement shall be governed by, construed applied and enforced in accordance with the internal laws of the State of Ohio, except that no doctrine of choice of laws shall be used to apply any law other than that of Ohio, and no defense, counterclaim or right of set-off given or allowed by the laws of any other state or jurisdiction, or arising out of the enactment, modification or repeal of any law, regulation, ordinance or decree of any foreign jurisdiction, be interposed in any action hereon. The parties hereto expressly agree that any action, suit or other proceeding brought by either party hereunder against the other arising out of this Agreement shall be brought and maintained in those federal or state courts located within Hamilton County, Ohio and Customer and ISOCNET hereby submit to the personal jurisdiction of those federal and state courts.
9.11.2 Assignment: Neither party may assign, sell or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided however, ISOCNET may assign its rights and obligations to an affiliate or pursuant to a sale of all or substantially all of its assets.
9.11.3 Separability: The parties agree that each provision of this Agreement shall be treated as a separate and independent clause, and the invalidity or unenforceability of any one clause shall in no manner affect the validity or enforceability of any of the other clauses hereof. If any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them so as to be enforceable to the extent compatible with the applicable law as it shall then be in effect.
9.11.4 Not a Lease: Customer understands and agrees that it is not a tenant of ISOCNET, and that the Collocation Agreement is not a lease and is not intended to, and shall not be deemed to grant Customer any property rights in the Space. In the event, however, that this Agreement is construed by the owner of the Building in which the Premises are located to be such a grant, Customer agrees to either enter into an agreement with the owner of the Building, or to promptly remove the Equipment, and that ISOCNET shall have no further liability to Customer in such case.
10. Non-Solicitation of Employees
10.1 Customer agrees that during the period of time they are a customer of ISOCNET, and for a period of three (3) years afterwards, not to, in any manner, directly or indirectly, solicit to hire or hire any person who at such time is, or who within the past six months was an employee of ISOCNET.
10.2 Customer also agrees that during the period of time they are a customer of ISOCNET, and for a period of three (3) years afterwards, not to, in any manner, directly or indirectly, interfere with or damage (or attempt to interfere with or damage) any relationship between ISOCNET or its affiliates and any client or prospective client.
11. Changes of These Terms
11.1 The Provider reserves the right to change the rates and fees by notifying The Subscriber 30 days in advance of the effective date of the change.
11.2 The Provider reserves the right to amend the Terms and Conditions and any such amendments shall become effective upon promulgation.
11.3 The Subscriber shall have the right, for a period of 15 days after the promulgation of any amendments to the Terms and Conditions, to terminate the contract, by giving written notice and receive a refund of any subscriber fees attributable to any period of time subsequent to the effective date of any such amendments to the Rules and Regulations.
11.4 Upon breach of this Contract, all of The Subscriber’s rights and privileges shall be immediately terminated. Upon termination of the account, The Provider has the right to delete all data, files or other information owned by The Subscriber.
