Terms of Service
IMPORTANT NOTICE: *All Payments To Digital Management Partners, LLC Are Non-Refundable*
Digital Management Partners, LLC. (“The Company”) agrees to furnish services to the Subscriber, subject to the following Terms of Service (TOS). Use of Digital Management Partners, LLC Service constitutes acceptance and agreement to Digital Management Partners, LLC’s Acceptable Usage Policy (AUP) as well as Digital Management Partners, LLC’s Terms of Service (TOS). All provisions of this contract are subject to the Terms of Service (TOS) of Digital Management Partners, LLC and Acceptable Usage Policy (AUP). The AUP may be changed from time-to-time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment. This Agreement shall be construed in all respects in accordance with the laws of the state of Illinois, county of Cook applicable to contracts enforceable in that state. Venue will be Cook County, Illinois.
1. Disclosure to Law Enforcement
The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition, Digital Management Partners, LLC shall have the right to terminate all service set forth in this Agreement.
2. Service Rates
Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time-to-time. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.
Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month’s service.
4. Payments and Fees
Service will be interrupted on accounts that reach 5 days past due. Subject to company’s discretion, it may provide an additional 5 days, including the billing due date, to client, before initiating cancel. If you desire to cancel your account, please follow the proper procedure to do this as outlined in category #7 in this TOS.
5. Refund and Disputes
All payments to Digital Management Partners, LLC are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred.
6. Failure to Pay
The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable suspension and any collection fees.
7. Account Cancellation
Requests for canceling accounts must be submitted through the Cancellation Submit option in the manage.gigenet.com client portal and at least 15 days prior to the next service renewal. If cancellations are not submitted 15 days before the service renewal, you assume responsibility for the full amount.
Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the Company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that the Company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the Company. Subscriber further acknowledges that the Company’s liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the Company be liable for any special or consequential damages, loss or injury.
9. Support Boundaries
9a. Digital Management Partners, LLC, provides 24×7 technical support to our subscribers (except for a few holidays and short company meetings when we close our center.) We limit our technical support to our area of expertise. The following are our guidelines when providing support: Digital Management Partners, LLC provides support related to your server or virtual site’s physical functioning. Digital Management Partners, LLC does not offer technical support for application-specific issues such as CGI programming, HTML, or any other issue. Digital Management Partners, LLC does not provide technical support for YOUR customers. If you can email, we encourage you to email email@example.com for assistance. If you can get online and have additional questions, the answers may be on our website; we encourage you to check there first. Lastly, the Help files in the program you are using may have the answer to your question so please investigate these resources before calling technical support.
9b. Digital Management Partners, LLC offers leveled Support Management Plans. All support time outside of the scope allotted by the client’s current Management Plan is billable at $150/hour.
9c. End-of-Life Applications and Operating Systems: The use of EOL (End-of-Life) applications and operating systems is discouraged by Digital Management Partners, LLC. While some situations may occasionally lead to support for such systems being attempted, no guarantees can be expected, nor any responsibility assumed for issues that may arise from these attempts, regardless of the client’s Support Management Plan.
10. SPAM and Unsolicited Commercial Email (UCE)
Digital Management Partners, LLC takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that customers of Digital Management Partners, LLC may not use or permit others to use our network to transact in UCE. Customers of Digital Management Partners, LLC may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. In addition, it is not acceptable to transmit bulk email through remote SOCKS, HTTP or other similar proxies who in turn make a SMTP (TCP port 25) connection to the destination mail servers. This technique may result in account suspension or termination. Violations of this policy carry severe penalties, including termination of service. In order to prevent unnecessary blacklisting due to spam. we reserve the right to occasionally sample bulk email being sent from servers.
10a. Violation of Digital Management Partners, LLC’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Digital Management Partners, LLC will initiate an immediate investigation (within 48 hours of notification). During the investigation, Digital Management Partners, LLC may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Digital Management Partners, LLC may, at its sole discretion, restrict, suspend or terminate customer’s account. Further, Digital Management Partners, LLC reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Digital Management Partners, LLC will notify law enforcement officials if the violation is believed to be a criminal offense.
10b. As our Customers are ultimately responsible for the actions of their clients over the Digital Management Partners, LLC network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
11. Abuse Services
Delisting blacklisted IPs is subject to $10.00 per delisting. Mail log cleanup is subject to $5.00 per hour of cleanup. If a security scan is run, cleanup of infected or malicious files is subject to $20.00 per cleanup.
12. Internet Relay Chat (IRC)
Digital Management Partners, LLC does NOT ALLOW IRC to be run on any servers. There are no exceptions to this policy. Violation of this policy may result in account suspension and/or termination.
13. Open or “Anonymous” Proxy
Digital Management Partners, LLC does not permit use of Open or “Anonymous” proxy servers. There are no exceptions to this policy. Violation of this policy may result in account suspension and/or termination. IMPORTANT NOTICE: **BEGINNING IMMEDIATELY**, anyone hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice.
14a. IP Address Ownership: If Digital Management Partners, LLC assigns Customer an Internet Protocol address for Customer’s use, the right to use that Internet Protocol address shall belong only to Digital Management Partners, LLC, and Customer shall have no right to use that Internet Protocol address except as permitted by Digital Management Partners, LLC in its sole discretion in connection with the Services, during the term of this Agreement. Digital Management Partners, LLC shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Digital Management Partners, LLC, and Digital Management Partners, LLC reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by ARIN’s new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
14b. Bandwidth and Disk Usage: Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the “Agreed Usage”). Digital Management Partners, LLC will monitor Customer’s bandwidth and disk usage. Digital Management Partners, LLC shall have the right to take corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in Digital Management Partners, LLC’s sole and absolute discretion. If Digital Management Partners, LLC takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation, Digital Management Partners, LLC may, at its sole discretion, collect a deposit, in an amount determined by Digital Management Partners, LLC, against customer’s credit card on file with Digital Management Partners, LLC.
14c. System and Network Security: Users are prohibited from violating or attempting to violate the security of the Digital Management Partners, LLC Network. Violations of system or network security may result in civil or criminal liability. Digital Management Partners, LLC will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:
Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access
Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”
Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting
Taking any action in order to obtain services to which such User is not entitled
15. Notification of Violation
15a. Digital Management Partners, LLC is under no duty to look at each customer’s or user’s activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
15b. First violation: Any User, which Digital Management Partners, LLC determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at Digital Management Partners, LLC’s discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.
15c. Second Violation: Users that Digital Management Partners, LLC determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
15d. We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer’s network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.
16. Suspension of Service or Cancellation
Digital Management Partners, LLC reserves the right to suspend network access to any customer if in the judgment of the Digital Management Partners, LLC network administrators the customer’s server is the source or target of the violation of any of the other terms of the Aup or for any other reason which Digital Management Partners, LLC chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer’s machines were suspended.
Digital Management Partners, LLC wishes to emphasize that in agreeing to the Digital Management Partners, LLC Acceptable Use Policy (AUP) and Terms of Service (ToS), customer indemnifies Digital Management Partners, LLC for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to Digital Management Partners, LLC or the bringing of any claim against Digital Management Partners, LLC by any third-party. This means that if Digital Management Partners, LLC is sued because of a customer’s or a customer of a customer’s activity, the customer will pay any damages awarded against Digital Management Partners, LLC, plus all costs and attorney’s fees.
19. Miscellaneous Provisions
You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference.
19a. A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
19b. Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation.
19c. Digital Management Partners, LLC takes no responsibility for any material input by others and not posted to the Digital Management Partners, LLC Network by Digital Management Partners, LLC. Digital Management Partners, LLC is not responsible for the content of any other websites linked to the Digital Management Partners, LLC Network; links are provided as Internet navigation tools only. Digital Management Partners, LLC disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party’s violation of this policy.
19d. Digital Management Partners, LLC is not responsible for any damages your business may suffer. Digital Management Partners, LLC does not make implied or written warranties for any of our services. Digital Management Partners, LLC denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Digital Management Partners, LLC.
20. Responsibility for Content
You, as Digital Management Partners, LLC’s customer, are solely responsible for the content stored on and served by your Digital Management Partners, LLC server.
21. Windows Servers
Requirements for using Microsoft software. Subscribers are prohibited from allowing more than five (5) authenticated users of the Microsoft Windows Server Operating Systems under Microsoft licensing terms and could create liability issues with Microsoft if violated. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on Software Products or that appear during the use of Software Products. Customer further agrees not to reverse engineer, decompile, or disassemble the Software Products. Digital Management Partners, LLC may provide you access to other third party software and/or services (“Third Party Products “) through reseller relationships Digital Management Partners, LLC has established with certain commercial vendors, including without limitation, Microsoft Corporation (“Third Party Vendors”). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by Digital Management Partners, LLC and not by the Third Party Vendor. Neither Digital Management Partners, LLC nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. Customer expressly acknowledges and agrees that use of third party products is at customer’s sole risk and such third party products are provided “as is” and without representation or warranty of any kind from Digital Management Partners, LLC or any third party vendor, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, accuracy or completeness of responses or results, correspondence to description, or non-infringement of third party rights. To the maximum extent permitted by applicable law, neither Digital Management Partners, LLC nor any third party vendor will be legally responsible for any damages, whether direct, indirect, or consequential, arising from the use or inability to use any third party product. Customer agrees to observe the terms of any license and/or applicable end user subscriber agreement for third party products and that customer shall be fully liable to third party vendors and Digital Management Partners, LLC with respect to any improper use of such third party products or violation of license agreements with them and/or applicable end user subscriber agreements.
22. Denial of Service
We reserve the right to refuse service to anyone at any time for any reason.
23. Notification and Management of Customer Data Incidents
Digital Management Partners, LLC maintains security incident management policies and procedures specified in the Security, Privacy, and Architecture Documentation and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Digital Management Partners of which Digital Management Partners becomes aware (a “Customer Data Incident”). Digital Management Partners shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Digital Management Partners deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Digital Management Partners’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Users.
24. LIMITATION OF LIABILITY; INDEMNIFICATION
THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER FORM (EXCLUDING EARLY TERMINATION CHARGES (AS DEFINED IN THE RELATED SUPPLEMENT)) IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY COMPANY, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.
Personal Data Processing Addendum
This Personal Data Processing Addendum (“PDPA”) addresses Personal Data Processing, privacy and cyber security obligations in addition to those expressed in the Terms as between Digital Management Partners and Customer for subscriptions to the Digital Management Partners Services and Platform. By agreeing to these Terms, Customer acknowledges that it and its Authorized Affiliates qualify as the “Controller” as defined under General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) to the extent that Digital Management Partners processes Personal Data in connection with Customer’s subscription to Platform. All capitalized terms not defined in this PDPA shall have the meaning set forth in the Terms. In the course of providing the Services to Customer pursuant to the Terms, Digital Management Partners may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data.
This PDPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in the Terms.
2. Processing of Personal Data
Roles of the parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Digital Management Partners is the Processor.
3. Digital Management Partners Personnel
3.1 Confidentiality. Digital Management Partners shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Digital Management Partners shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
3.2 Reliability. Digital Management Partners shall take commercially reasonable steps to ensure the reliability of any Digital Management Partners personnel engaged in the Processing of Personal Data.
3.3 Limitation of access. Digital Management Partners shall ensure that Digital Management Partners’ access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
3.4 Data protection officer. Members of the Digital Management Partners have appointed a data protection officer. The appointed person may be reached at DPO@GigeNET.com.
4. Rights of Data Subjects
Data subject request. Digital Management Partners shall, to the extent legally permitted, promptly notify Customer if Digital Management Partners receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Digital Management Partners shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Digital Management Partners shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Digital Management Partners is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Digital Management Partners’ provision of such assistance.
Controls for the protection of customer data. Digital Management Partners shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Security, Privacy and Architecture Documentation. Digital Management Partners regularly monitors compliance with these measures. Digital Management Partners will not materially decrease the overall security of the Services during a subscription term.
6. Deletion or Return of Customer Data
Digital Management Partners shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and time frames specified in the Security and Privacy Documentation.
7. European Specific Provisions
7.1 GDPR. With effect from 25 May 2018, Digital Management Partners will Process Personal Data in accordance with the GDPR requirements directly applicable to Digital Management Partners’ provision of its Services.
7.2 Data protection impact assessment. With effect from 25 May 2018, upon Customer’s request, Digital Management Partners shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Digital Management Partners. Digital Management Partners shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 11.2 of this PDPA, to the extent required under the GDPR.
UPDATED: September 7th, 2022
Master Services Agreement
These General Terms and Conditions together with all Supplements, Order Form(s), Exhibits and other addenda attached hereto from time to time constitute the Master Products and Services Agreement (“Agreement”) which is effective as of the last date of execution below (“Effective Date”) by and between Digital Management Partners, LLC. (“Company”), an Illinois Limited Liability Company, and Customer. Company and Customer are collectively referred to as the “Parties” or individually as a “Party.”
“AUP” means the Company’s Acceptable Use Policies as published on the Company’s website from time to time, and which are incorporated into this Agreement by reference. “Commencement Date” means the date upon which Company begins to provide an ordered Product or Service as more fully described in the relevant Supplement or Order Form. Customer Location” refers to a location designated in an Order Form for connection to Company Network. “Company Network” means, collectively, the IP network, system capacity and related facilities (including, without limitation, routers, switches and communication channels) owned or controlled by Company to the extent it applies to the Product or Service. “Order Form” refers to any, mutually executed, product order (“Product Order”), service order (“Service Order”), schedule (“Schedule”), contract, or statement of work (“Statement of Work”) to these General Terms and Conditions and respective Supplement, detailing the Products or Services, the Term, Customer charges, the estimated Commencement Date and any other relevant terms agreed upon by the Parties. “Products or Services” means the products or services provided by Company (including, without limitation, Leased Fiber, In-Building Fiber, Co-location, Bandwidth, Managed Services, Managed Wavelengths and Capacity) to Customer. “Supplement” means a fully executed supplement to these General Terms and Conditions each containing additional terms and conditions that govern the related Products or Services provided by Company. “Term” means the period of time in which Company provides Products or Services to Customer pursuant to an Order Form. “Termination for Cause” means the immediate suspension or termination of service to a Customer pursuant to either this Agreement, corresponding Supplements, or any outstanding Order Form resulting from any reported violation of the Company’s AUP, or for defaulting upon any obligation of payment arising pursuant to this Agreement or any other outstanding Order Form of the Customer’s. “Grace Period” refers to a period of time in which the Company agrees to refrain from charging interest on a disputed invoice.
2. STRUCTURE OF AGREEMENT
From time to time, the Parties will execute one or more Supplement(s) and Order Forms for Company to provide Products or Services, each of which is automatically incorporated into this Agreement and subject to these General Terms and Conditions. Likewise, the Company reserves the right to amend its AUP from time to time with prior notice to the Customer, and the parties hereby specifically agree that any such amendments to said AUP shall be binding upon the Customer.
3. INVOICING AND PAYMENT
3.1. Installation Charge. If a non-recurring installation charge or setup fee (“Installation Charge”) is specified in an Order Form, Company will invoice Customer for and Customer will pay such Installation Charge, upon the effective date of the Order Form (“Order Form Effective Date”). If the Installation Charge is “estimated”, Customer agrees to pay an initial amount, so specified in such Order Form, on the Order Form Effective Date and the remaining balance of the “actual” Installation Charge upon the Commencement Date. The balance of the actual Installation Charge will be invoiced by Company and paid by Customer within five (5) days of such invoice, unless otherwise noted on the invoice itself.
3.2. Recurring Charge. If a recurring charge (“Recurring Charge”) (e.g. Monthly Charge, Quarterly Charge, Annual Charge, etc.) is specified in an Order Form, Company will invoice Customer for and Customer will pay the Recurring Charge in advance for each period and within five (5) days from the date of such invoice, unless otherwise noted on the invoice itself. Company will begin to invoice the Recurring Charge on the Commencement Date. Invoices for partial months will be pro-rated. Multiple types of Recurring Charge may be set forth in the Order Form. For purposes of this definition, Recurring Charges do not include O&M Charges.
3.3. Prepayment. Any prepayment (“Prepayment”) specified in an Order Form, is payable upon the Order Form Effective Date. If a Prepayment is for a portion of a Term, the amount of such Prepayment will be applied as a credit to the final Recurring Charges at the end of such Term.
3.4. O&M Charges. If operation and maintenance charges (“O&M Charge”) are specified in the Order Form, Company will invoice Customer for and Customer will pay such O&M Charge beginning on the Commencement Date and upon each anniversary of the Commencement Date during the Term of the Order Form, and within five (5) days from the date of such invoice, unless otherwise noted on the invoice itself. Although O&M Charges are recurring, for purposes of this definition, O&M Charges are not included in the definition of Recurring Charges.
3.5. Additional Charges. If applicable, Company will invoice Customer and Customer will pay invoices for any additional charges for Products or Services which are specified in an Order Form.
3.6. Applicable Taxes. Company will invoice Customer and Customer will pay any and all applicable taxes (“Applicable Taxes”) as more fully described in Section 4, below, with respect to specific Customer charges.
3.7. Late Payments. All invoices must be paid in accordance with their terms without set off or deduction, unless a dispute has been opened in writing with the company prior to the monthly renewal date. Following submittal in writing of the disputed charge(s) to the Company, a grace period of (2) weeks will follow the Customer’s recurring billing date, in which, the company pledges to acknowledge and act, according to their discretion, upon the dispute. Late payments failing to provide a written dispute prior to the Customer’s renewal date with be evaluated at the Company’s discuretion and will accrue interest on the unpaid sum as of at the lesser of (i) the highest legal rate of interest permitted in the State of Illinois or (ii) one and one-half percent (1.5%) per month.
3.8. U.S. Dollars. Unless otherwise specified on an Order Form, all payments must be made by Customer to Company in U.S. dollars.
3.9. Consumer Price Index. The Recurring Charge and O&M Charge may be increased each year during the Term by the percentage increase, if any, in the Consumer Price Index – Urban Wage Earners and Clerical Workers (U.S. City Average, All Items, Base 1982-1984 equals 100) as published by the United States Department of Labor, Bureau of Labor Statistics (the “Index”). The Index for the calendar month which is four (4) months prior to the commencement Date will be compared with the Index for the calendar month which is four (4) months prior to each anniversary of the Commencement Date during the Term and the Recurring Charge will be increased in accordance with the percentage increase, if any, between such Indexes.
3.10. Early Termination Charges. If an Order Form is terminated prior to expiration by reason of: (i) Customer termination, if such termination is not an exercise of Customer’s rights or remedies under the Agreement, or (ii) a Customer Event of Default for failure to pay any payment, as provided herein, or (iii) Termination for Cause; in addition to all other charges then due and owing, Customer agrees to immediately pay an “Early Termination Charge” to Company. The Early Termination Charge is a sum equal to the net present value of the remaining Recurring Charges under all terminated Order Forms. If the Recurring Charges (or a component of the Recurring Charges) are fully prepaid, the Early Termination Charge is equal to the unamortized portion of such prepayment as of the date of termination. Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred by Company as a result of an early termination, and is not a penalty. Notwithstanding the foregoing, Company may seek all other available remedies in law and in equity in the case of Customer’s default resulting from any reason. In the event that litigation is necessary to obtain payment, the Customer agrees that it shall also be liable to the Company for all costs associated with litigation, including the Company’s court costs and attorney’s fees incurred. The failure to timely pay Early Termination Charges for any Order Form shall lead to the immediate termination of service on all outstanding Order Forms, all of which shall be accelerated, and all obligations of payment shall become immediately due and owing pursuant to the terms and provisions of this Section 3.10.
4. APPLICABLE TAXES
4.1. “Applicable Taxes” means taxes and fees imposed on Company by governmental authorities in connection with the Products or Services including, but not limited to, any sales, use, gross receipts, federal excise, privilege, property, public right-of-way, telecommunications franchise, privilege, property, occupational and similar taxes and surcharges based upon the gross revenues received from or by Customer or assets of Company made available to Customer. To the extent that taxes and fees are generally assessed against Company’s fiber optic cable assets (without reference to gross revenues received from or by Customer or assets made available to Customer), such taxes and fees will be apportioned to Customer based upon the ratio of the number of Leased Fibers on such Company fiber optic assets to the total number of fiber strands leased on such Company fiber optic cable assets. Notwithstanding the foregoing, Applicable Taxes do not include, any fee or tax which Customer otherwise pays directly to a state or local jurisdiction with respect to the gross revenues received from or by Customer or assets of Company made available to Customer; and any income, estate, transfer or corporate franchise tax levied on or assessed against Company.
4.2. Customer will be invoiced by Company for any and all of the foregoing Applicable Taxes. Notwithstanding the foregoing, Customer may provide Company with a certificate evidencing Customer’s exemption from payment of or liability for any Applicable Taxes.
4.3. Customer is solely responsible for calculating and remitting any and all assessments, including but not limited to franchise fees, license fees, right-of-way fees, taxes and any other assessment against Customer for Customer’s use of the Products or Services (collectively, Assessments”) with respect to providing service to end-user customers or to the extent Customer is required to calculate such Assessments. Assessments may be made by any governmental, quasi-governmental agency or regulatory body and Company will not direct or notify Customer to pay any Assessments, and is not directly or indirectly responsible in any way for Customer’s remittance of Assessments.
5.1. This Agreement commences on the Effective Date, and continues through the latest expiration of all Order Form Term(s) subject to this Agreement, unless earlier terminated as provided herein.
5.2. The Term for each Order Form begins on the Commencement Date of the related Product or Service and remains in effect until the expiration of the initial period so specified. Upon expiration of the initial term, each Order Form will automatically renew for additional periods of one (1) year unless one Party provides the other written notice that it is terminating such Order Form not less than sixty (60) days’ prior to the end of the Term then in effect. Notwithstanding the foregoing, Customer acknowledges and agrees that Company may terminate a Product or Service without notice any time during or after the initial Term if underlying equipment leases or third party commitments expire.
The following events are “Events of Default”, the occurrence of which gives the non-defaulting Party the right to terminate the Agreement or affected Order Form(s) by written notice following the expiration of any stated cure periods and pursue its remedies under the Agreement:
a. Customer violates any provision of the Company’s AUP;
b. Customer fails to fully pay any of the payments (including Early Termination Charges) required hereunder, or pursuant to any other outstanding Order Forms that the Customer may have with the Company, within five (5) days after receipt of written notice of such failure.
c. Except as provided in clause (b), above, the breach of any material term or condition of this Agreement (including Order Forms) and such breach remains uncured thirty (30) days after delivery to the breaching Party of written notice of such breach;
d. The application for or consent to the appointment of a receiver, trustee or similar officer for it or any substantial part of its property or assets, or any such appointment is made without such application or consent by such Party and remains undischarged for a period of sixty (60) days; the filing of a petition in bankruptcy or a general assignment for the benefit of creditors;
e. Customer defaults under the terms of any other agreement or Order Form between the parties, whether such other agreement is executed contemporaneously, prior, or subsequent to the execution of this Agreement.
If Customer is in default, as set forth above, then, after expiration of the cure period, Company may, in addition to any other remedies that it may have under this Agreement or by law, suspend, disconnect and/or repossess any Products or Services, provided, however, that Customer will remain responsible to perform its obligations here under.
7. TERMINATION FOR CAUSE.
Pursuant to the terms and provisions of the Company’s AUP, this Agreement, any corresponding Supplements, or Order Forms, the Company shall have the right to suspend or terminate service on the Customer’s associated Order Forms for any reported violation of the AUP (a “Termination for Cause”). Further Company shall have the right to suspend or terminate service on the Customer’s associated Order Forms for any default of this agreement, any corresponding Supplements, or of any outstanding Order Form, shall constitute an immediate “Termination for Cause”.
8. REPRESENTATIONS AND WARRANTIES
8.1. Company warrants that any Products and Services to be provided to Customer will be at a professional level of quality conforming to generally accepted industry standards and in compliance in all material respects with all applicable laws and regulations. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement and all Order Forms, (iii) it will comply with all applicable federal, state and local laws, statutes, rules and regulations in connection with the provision and use of the Products and Services and (vi) this Agreement and all Order Forms, when executed, are the legal, valid and binding obligation of such Party.
8.3. Customer acknowledges that Company has no ability to determine whether the communications traffic carried by the Products or Services utilizing the Company Network is jurisdictionally interstate or intrastate. Customer represents and warrants that the communications traffic to be carried by the Company Network shall be jurisdictionally interstate, pursuant to the Federal Communications Commission’s mixed-use “10% Rule”(47 CFR 36.154, 4 FCC Rcd. 1352). Should Customer’s use of the Company Network ever become jurisdictionally intrastate, the provisioning of any related Product and Service may be subject to the jurisdiction of the relevant state Public Utilities Commission, subject to Company tariff(s) file with the relevant state Public Utilities Commission, and subject to certain taxes and fees imposed on intrastate transmissions. In the event the such Product or Service is subject to any such regulation or tariff(s), then this Agreement may be subject to such changes or modifications by the relevant state Public Utilities Commission as such Commission may, from time to time, direct in the exercise of its jurisdiction.
9. LIMITATION OF LIABILITY; INDEMNIFICATION
9.1. THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER FORM (EXCLUDING EARLY TERMINATION CHARGES (AS DEFINED IN THE RELATED SUPPLEMENT)) IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY COMPANY, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.
9.2. Company agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Customer for (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third party
claims arise out of or relate to Company’s gross negligence or willful misconduct or (ii) infringement or misappropriation by Company of any intellectual property rights under this Agreement.
9.3. Customer agrees to indemnify, defend and hold Company, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Company for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer of any intellectual property rights under this Agreement, or (iii) Customer’s or its customer’s use of the Products or Services, including without limitation, defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortuous or illegal conduct.
10. CONFIDENTIALITY; PUBLICITY
10.1. Confidentiality. Each Party agrees that the terms of this Agreement and all information furnished to it by the other Party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”). Each Party will treat the Proprietary Information and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. Information will not be deemed Proprietary Information if it (i) becomes publicly available other than through the actions of the Receiving Party; (ii) is independently developed by the Receiving Party; or (iii) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party is required by a governmental or judicial law, order, rule, regulation or permit to disclose Proprietary Information, it must give prompt written notice to the Disclosing Party of the requirements of such disclosure and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice shall not be a breach hereof.
10.2. Publicity. Neither Party may issue any advertising or other publicity material using the other Party’s name or marks or describing in any way the terms of this Agreement without first receiving the other Party’s written consent as to form and content, which consent may not be unreasonably withheld, conditioned, or delayed.
Neither Party will assign or transfer its rights or obligations under this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement upon notice and without the other Party’s consent to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with the assigning Party or (ii) into which it is merged or consolidated or which purchases all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
12. FORCE MAJEURE
Neither party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of “Force Majeure,” which is defined as any cause beyond the reasonable control of the party claiming relief, including without limitation the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by Company to construct and operate its facilities or network.
All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with an overnight delivery service for next day delivery, or (iii) three (3) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth on the signature page hereof. In addition, Company may send Customer notices, including notices for default or termination, to Customer’s email address or facsimile as contained on Company’s customer contact list. Such email or facsimile notification is deemed delivered on the day sent unless returned to sender.
14.1. Governing Law; Venue. This Agreement will be interpreted and construed in accordance with the internal laws of the State of Illinois without giving effect to its principles of conflicts of laws. The parties hereby agree that proper venue for any action governing or construing the terms and provisions of this Agreement shall lie in the Court of Common Pleas of Cook County, Illinois.
14.2. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
14.3. No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns.
14.4. Relationship of the Parties. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may not be deemed to constitute a partnership, joint venture or agency agreement between them.
14.5. Remedies Not Exclusive. Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.
14.6. Headings; Severability. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected.
14.7. No Implied Waiver. No failure to exercise and no delay in exercising, on the part of either Party, any right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.
14.8. Execution and Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14.9. Order of Precedence. If any conflict or contradiction exists between these General Terms and Conditions and a Supplement, the terms of a Supplement will control. If any conflict or contradiction exists between a Supplement and the terms of an Order Form, the terms of the Order Form will control. If any conflict or contradiction exists between these General Terms and Conditions and the terms of an Order Form, the terms of the Order Form will control.
15. ENTIRE AGREEMENT; AMENDMENT; EXECUTION
This Agreement, including all Supplements, Order Forms, Exhibits and addenda attached hereto is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written. This Agreement may be amended only by a written instrument executed by the Parties.
Colocation MSA Supplement
This Colocation Supplement is effective as of the last date of execution below (“Supplement Effective Date”) by and between Digital Management Partners, LLC. (“Company”) and Customer and is attached to and made a part of the Master Product and Services Agreement, by and between the Parties. Unless otherwise defined herein, capitalized terms in this Supplement shall have the definitions attributed thereto in the General Terms
1. ADDITIONAL DEFINITIONS
“Customer Equipment” means equipment (including without limitation, telecommunications equipment, servers, cables and wires) installed in a Colocation Space. “Colocation Space” means area in a Company leased or owned facility licensed for Customer’s use as provided hereunder.
2. COLOCATION LICENSE
Subject to the terms and conditions contained herein, Company will grant to Customer a license to install, operate and maintain Customer Equipment in a designated Colocation Space specified in an Order Form for the colocation charges set forth therein. The license Term shall be specified on each Order Form and shall begin on the Commencement Date specified therein. The license is a services agreement and is not intended to and will not constitute a lease of or tenancy or other interest in the Colocation Space or other Company premises, any Company or third party equipment or any other Company or third party real or personal property. Customer may not at any time grant any sub-license or assign of its rights, or make available to a third party any portion of the Colocation Space, in whole or in part, without Company’s prior written consent.
3. USE OF SPACE
3.1. Customer may use the Colocation Space only for the purposes of maintaining and operating computer and telecommunications equipment as necessary to support connections from Customer Equipment to the Company Network and from there to third parties. At all times Customer shall comply with the “Client Code of Conduct“ (as may be set forth at the Company website, and updated from time to time, subject to notice to Customer of any material changes).
3.2. Add-Ons. Customer may request additional Colocation services (“Add-Ons”) by submitting orders to Customer’s assigned sales representative. Orders for Add-Ons will be effective when accepted by Company. Company may require, at its sole discretion, Customer’s written certification of orders for any Add-Ons so placed. Such Add-Ons may result in a One-Time Installation Charge and an increase in the invoiced Monthly Charge.
3.3. Modifications and Relocations. Company has the right prior to interconnection of Customer Equipment to the Company Network, to modify the location or amount of Colocation Space. Additionally, Company reserves the right to require Customer to relocate any or all of Customer Equipment upon five (5) days prior written notice, or in the event of an emergency, within such time as may be reasonable under the circumstances, to another comparable colocation space.
3.4. Construction. Customer may not perform any construction or modification to the Colocation Space without prior written consent from Company. Customer further agrees that all fixtures, alterations, additions, repairs, improvements and/or appurtenances attached to or built into on or about the Colocation Space will be considered and will remain fixtures and may not be removed by Customer. Upon termination or expiration of any Order Form, Customer must restore the Colocation Space to its original condition, reasonable wear and tear excepted.
4. CUSTOMER EQUIPMENT
Except as otherwise provided herein, Customer is responsible for all aspects of installation and removal of Customer Equipment, including bringing appropriate related equipment, tools and packaging materials. Customer will install Customer Equipment in the Colocation Space after obtaining the appropriate authorization from Company to access the premises. Customer will remove all packaging for Customer Equipment promptly after installation. Should Customer use an agent or other third party to deliver, install or remove Customer Equipment, Customer will be solely responsible for the acts of such party. Under no circumstances will Company be obligated to accept deliveries on behalf of Customer. At Customer’s option, Company will remove and package Customer Equipment and place it in a designated area for pick-up, on the condition that Customer either provide or pay for all needed packaging plus pay Company’s packaging fees and charges. If Company is forced to remove or clean up after any Customer activity, Company will invoice and Customer will pay all costs and Company charges associated with such removal or clean-up. Within ten (10) days after any termination of the related Order Form, Customer will remove all Customer Equipment and any other property from Company’s premises and return the Colocation Space in the same condition as it was prior to Customer installation. If Customer does not remove such Customer Equipment and property within the ten (10) day period, such Customer Equipment or property will automatically be deemed abandoned to Company (collectively “Abandoned Equipment”) without the need for further notice to Customer and, Company, at its option will (i) remove and store any and all Abandoned Equipment or return Abandoned Equipment to the Customer, (ii) dispose of the Abandoned Equipment without liability for any related damages, (iii) sell the Abandoned Equipment at any public or private sale, or (iv) assume ownership of the Abandoned Equipment collectively, “Disposal Rights”). Notwithstanding the foregoing, Company reserves the right to deny Customer the right to remove Customer Equipment from the Colocation Space if Customer is not current in the payment of its obligations pursuant to this Agreement, any other Agreement with the Company, or pursuant to any open and outstanding Order Form and, exercise any of its Disposal Rights, stated above, within ten (10) days after Company’s termination of the related Order Form. Except as specifically provided herein, Customer expressly assumes all risk of loss to Customer Equipment in the Colocation Space. Customer shall be liable to Company for any damage to the Company Colocation Space or equipment of Company or its other customers caused by Customer, Customer Equipment or Customer’s contractors, agents or employees. If during the Term, Customer removes significantly all of its Equipment in the Colocation Space, Customer will continue to pay the applicable Recurring Charges through the end of the Term and provide adequate assurance, as determined by Company, in its sole discretion.
5. SECURITY AND ACCESS PROCEDURES
Customer may access the Colocation Space only in accordance with the “Colocation Security and Access Procedures” (as may be set forth at the Company website, and updated from time to time, subject to notice to Customer of any material changes) and the owner or landlord of the underlying premises. For Company points of presence (“POPs”) or regeneration or amplification huts, Customer may require a security escort in the manner and, if applicable, for the rates provided in the Order Form. Company reserves the right to suspend for good cause the right of any of Customer employees, agents or representatives to visit and/or access the Company Colocation Space and related premises, based on such employees’, agents’ or representatives’ conduct. It is Customer’s responsibility to ensure that Customer’s access list is current and accurate. Customer shall be responsible for any unauthorized access to its equipment through the Internet and any resulting use of the Company Network. When deemed appropriate by Company, Customer’s employees, contractors or agents will be issued identification cards required for entry to the Colocation Space, which will be surrendered upon demand or upon termination or expiration of the Colocation Order Form. Notwithstanding any other provision of this Agreement, Company will have the right to immediately terminate the right of access of Customer or any of Customer’s employees, contractors or agents for security violations.
6. INTERCONNECTIONS TO AND FROM CUSTOMER EQUIPMENT
Customer may perform any interconnection where both ends terminate within Customer’s own racks(s) and/or cabinet(s). Upon Customer’s written request, Company will provide connections between Customer Equipment and the Company Network, third-party carriers and other Company customers, located within the Colocation Facility. All of the foregoing connections will be provided at Company’s then prevailing rates. Use of any of the foregoing connections is subject to audit by Company, who reserves the right to suspend any unauthorized connection.
7.1. Customer must carry, inclusive of umbrella policies, at its expense, Commercial General Liability coverage in the minimum amount of $1,000,000 each occurrence and $2,000,0000 annual aggregate. The policy will, at a minimum, insure against liability arising out of or from bodily injury, personal injury, property damage, products/completed operations and independent contractors and will include those coverages customarily found in a Broad Form General Liability Endorsement and Broad Form Property Damage Extension.
7.2. Customer’s insurance will be placed with insurance companies with an AM Best Rating of at least A, VIII. Customer agrees that it will be solely responsible for ensuring that its agents (including contractors and subcontractors) maintain other insurance at levels no less than those required by applicable law and customary in Customer’s and its agents’ industries.
8. ADDITIONAL REPRESENTATIONS FOR COLOCATION SERVICES.
Customer, for itself and on behalf of its officers, employees, agents, invitees and representatives, represents, warrants and covenants that:
8.1. Customer shall not install or operate any equipment in the Colocation Space that impairs or interferes with the operations of Company’s equipment or the use thereof by Company or any of Company’s customers;
8.2. Customer shall not permit any mechanic’s liens or other liens to be placed on the Colocation Space arising out of any work performed, materials ordered or obligations incurred by Customer or by any other party on behalf of Customer;
9. OUTAGES; SERVICE LEVEL AGREEMENT (“SLA”) FOR COLOCATION
9.1. Company guarantees 100% power availability for colocation. Customer may notify Company’s Client Service Center (“CSC”) of problems by telephone at (800) 561-2656, by the Company’s support ticket desk at http://support.gigenet.com, or by such other means as the Parties may agree. Provided that a Service Outage (defined below) is not attributed to a failure of Customer-provided equipment (“CPE”) or Customer-provided infrastructure, Company will respond and commence work within fifteen (15) minutes after notification or discovery of a Service Outage.
9.2. Service Outages. A “Service Outage” is defined as complete disruption of electrical power to the Customer’s power circuit, based on Company’s measurements, provided it is not caused by or resulting from (i) Force Majeure; (ii) an act or omission of Customer, its employees, agents or contractors; (iii) the use or failure of any CPE used in connection with the Colocation Service; or (iv) planned outages for maintenance or repair that are scheduled in advance by Company;
9.3. Service Outage Credit. Customer is entitled to a Service Outage credit (“Service Outage Credit”) equal to a percentage of their Monthly Service Charge as outlined in the following table, based on the total aggregate amount of Service Outages during the same calendar month:
The “Monthly Service Charge” is an amount equal to Customer’s total monthly recurring Colocation charges, but does not include Uplink Service charges.
9.4. Customer Request Credit. Customer must notify Company in writing within five (5) business days from the time Customer becomes eligible to receive a credit. Failure to comply with this requirement will forfeit Customer’s right to receive a credit.
9.5. Limitation on Remedies. Company’s suspension or modification of Service in accordance with the terms of this Agreement shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement. The Service Outage Credit and Customer’s right to terminate under section 6.8 are Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for any failure by Company to provide Colocation Service or adequate service levels, including but not limited to any Service Outages, and under no circumstances shall a Service Outage be deemed a breach of this Agreement by Company. In no event shall Customer be entitled to any credit on its Colocation charges to the extent that the Downtime is caused by Customer attempting to exceed 80% of the amps of their power circuit, or otherwise violating the terms of this Agreement. Customer will not be entitled to a credit for any circuit overload or breaker trip due to Customer pulling in excess of 80% of the amps of a power circuit. Service Outage Credits will not be credited or payable for any period of time during which Company personnel or contractors are denied access to Customer Locations to remedy a Service Outage. Service Outage Credits will not be credited or payable for any period of time during which Customer does not make technically knowledgeable personnel available to work with the Company NOC to resolve issues.
9.6. All Service Outage Credits will be credited on the next recurring invoice for the affected Colocation Service after receipt of Customer’s request for credit. The aggregate maximum Service Outage Credit payable in a given calendar month shall not exceed the Monthly Recurring Charge for Colocation payable by Customer to Company for that same month for the affected Colocation Service.
9.7. Unless otherwise specified, if a Service Outage lasts longer than fifteen (15) days for any reason other than Force Majeure, then at any time thereafter, unless and until such Service Outage is corrected, either Party may terminate this Agreement with respect to the affected Colocation Service specified in an Order Form by written notice of termination delivered to the other Party.
9.8. In the event that Company dispatches personnel for a Colocation Service Outage or problems caused by Customer equipment or personnel, Company will invoice and Customer agrees to pay Company’s actual costs for time and travel associated with the dispatch.
Uplink MSA Supplement
This Uplink Service Supplement is effective on the last date of execution below (“Supplement Effective Date”) by and between Digital Management Partners, LLC. (“Company”) and Customer and is attached to and made a part of the Master Products and Services Agreement, by and between the Parties. Unless otherwise defined herein, capitalized terms in this Supplement shall have the definitions attributed thereto in the General Terms and Conditions.
1. ADDITIONAL DEFINITIONS
“Anti-Spam Policy” means that portion of the Company’s AUP which addresses the sending of Spam (as such term is defined below) by the Customer. For purposes of this Agreement, the Company’s Anti-Spam Policy shall cover and include the listing of any Customer, Customer-owned domains, or Customer-owned web sites on SpamHaus, the SpamHaus ROKSO list, or on Spam Cop, and shall also include the receipt of any spam complaints from either Spam Cop or SpamHaus, whether said complaints are legitimate or not. For purposes of this Agreement, the occurrence of any of these events shall be considered to be a violation of the Company’s Anti-Spam Policy.
“AUP” means the Company’s Acceptable Use Policies as published on the Company’s website from time to time, and which are incorporated into this Agreement by reference.
“Bandwidth” means the amount of bits per second transferred over the Company Network from and to Customer’s server(s);
“Burst” Bandwidth means the amount of Bandwidth in excess of Customer’s committed Bandwidth level as further defined in Section 7, below;
“Customer Location” refers to a location specified in an Order Form and connected by Company provisioned metro area network connectivity or Company provisioned in-building network connectivity whereby Customer connects to receive Uplink Service;
“Demarcation Point” means the termination point up to which Company is responsible to install the Company Network, as more fully described in Section 3.2;
“Spam” means the sending of bulk commercial e-mail, whether said bulk commercial e-mail is opt-in or not.
“TOS” means the Company’s Terms of Service, as published on the Company’s web site from time to time, and which are incorporated into this Agreement by reference.
“Uplink Service” means IP connectivity and Bandwidth provisioned by Company to Customer pursuant to an Order Form;
“Company Location” refers to a location specified in an Order Form and connected by Company provisioned connectivity whereby Company connects to the Company Network.
2.1. Uplink Service. Subject to the terms and conditions contained herein, Company will provision to Customer the Uplink Service pursuant to an Order Form providing Customer connectivity of its server(s) located at the Customer Location to the Company Network to enable the transfer of Bandwidth on terms specified in an Order Form. The Term shall be specified on each Order Form and shall begin on the Commencement Date specified therein.
2.2. Commencement Date. The Commencement Date for each Order Form is the date Company notifies Customer that Uplink Service is activated to Customer Demarcation Point. If activation is delayed as a result of Customer’s failure to obtain the necessary (i) CPE (defined in Section 3.1), (ii) In-Building Facilities (defined in Section 3.3) or (iii) Location License(s) (defined in Section 4.1), Company will give Customer written notice to cure such failure within five (5) calendar days. If Customer fails to cure within the five (5) calendar day period, Company may elect to (i) invoice Customer, which Customer agrees to pay, Company’s non-recurring and recurring costs that relate to the installation of Company Network to support the ordered Uplink Service, plus twenty (20%), reassign the Customer’s assigned ports at the Company Internet Service Exchange, and terminate the related Order Form.
3. INSTALLATION AND MAINTENANCE
3.1. Customer must procure and maintain, at its sole cost and expense, all necessary customer premise equipment or facilities (“CPE”), which are technically compatible to the Uplink Service and related Company Network.
3.2. Company or its agents will extend the Company Network to the Demarcation Point at each Customer Location. Unless otherwise specified in the Order Form, the Demarcation Point is a 10/100Mbps Fast Ethernet cable, 1000Mbps Copper or Fiber Gigabit cable, splice enclosure, or copper or fiber termination panel located (i) in the Customer’s co-location cabinet, (ii) in the basement or at the Company point of presence within a building, (iii) at the Company termination point within a central office, or (iiii) in the zero or last serving manhole serving a building for cases where Company does not gain access into such building.
3.3. Customer must procure, at its sole cost and expense, all necessary riser conduit, optical fiber strands, copper cable, switches, routers, hubs, and any other inside plant facilities (“In-Building Facilities”), within each Customer Location, to access and interconnect its own facilities with the Uplink Service. In the event that the Parties agree that Company will terminate the Company Network at a termination point beyond the Demarcation Point, Company will (i) perform a feasibility study (“Feasibility Study”), (ii) engineer and (iii) install the necessary In-Building Facilities (collectively (“In-Building Work”), for at least Company’s actual costs plus twenty percent (20%), which shall be separately invoiced.
3.4. Company or its agents will perform all maintenance and repairs to the Company Network up to the Demarcation Point at no additional charge to Customer, unless such maintenance or repair is necessary as a result of Customer’s actions. Customer is not permitted to access the Company Network except at Customer’s side of the Demarcation Point as provided in this Agreement.
3.5. Company may subcontract all or part of its performance obligations (including maintenance and installation) to a third party without consent of Customer, and Company will remain liable for all such obligations.
4. ACCESS AND APPROVALS
4.1. Customer acknowledges and agrees that it is ultimately responsible to obtain and maintain, for the duration of the related Order Form Term any necessary third party licenses, approvals or permissions (“Location License(s)”) for Company to extend the Company Network to the Demarcation Point at the Customer Location and install and/or utilize the necessary inside plant facilities, including, without limitation, power, riser conduit, copper cabling, and fiber optics. Such Location License(s) must include access and distribution rights (if required) and installation, maintenance and retrieval of any Company Network. Alternatively, the Parties may agree that Company will arrange to obtain, on Customer’s behalf, all or a portion of the necessary Location License(s) in consideration for Customer paying Company a license fee (“Location License Fee”).
4.2. Customer agrees to pay any and all fees, recurring and/or non-recurring, (i) associated with obtaining and maintaining the rights specified in Section 4.1, above, and (ii) assessed by any building owner, landlord or other third party for the necessary license, approval and/or permission to install Company Network to or within (if applicable) a Customer Location.
5.1. Prior to the Commencement Date of Uplink Service, Company will obtain all material and applicable authorizations, leases, licenses, easements, rights of way, franchises, approvals, permits, orders, consents, and all other rights required for Company to operate and maintain the Company Network and provide the Uplink Service to Customer (collectively the “Authorizations”), and will use commercially reasonable efforts to maintain or renew all such Authorizations throughout the term of the Order Form. If any Authorizations are modified or terminated, threatening to cause or causing material financial harm to Company, or preventing or materially interfering with Company’s control, possession and/or use of the Company Network, then Company, may in sole discretion terminate this Agreement with respect to the affected Order Form without further obligation or liability to Customer. The foregoing is Company’s sole and exclusive liability and Customer’s sole and exclusive remedy with respect to termination as a result of the loss of an Authorization.
5.2. Company is providing the Uplink Service for Customer’s exclusive use. Customer shall have no right or interest in any of the Company’s network other than the right to use the Company’s network in connection with the Uplink service during the specified Term while Customer is not in breach hereunder.
5.3. Company may inspect Customer’s interconnection with the Uplink Service at any time without prior notice by Company.
5.4. Customer may not, without the express written consent of Company, perform, or contract with any third party to perform, any repairs or maintenance to the Company Network. Customer will not install any equipment to be used with the Uplink Service that damages or interferes with the Company Network or the Company’s customers.
5.5. If all or part of the Uplink Service or Company Network requires restoration, replacement or repair by reason of an act or omission of customer, its employees, agents, or contractors, such repair, replacement and/or restoration may be made by Company, at Customer’s sole expense, in accordance with Company’s then current time and materials rates plus Applicable Taxes. In addition, Customer will not receive any Service Outage Credit (defined below) by reason of the foregoing.
6. OUTAGES; SERVICE LEVEL AGREEMENT (“SLA”) FOR UPLINK SERVICE
6.1. Company guarantees to provide 100% network availability by continuous remote monitoring of the Company Network backbone. Customer may notify Company’s Client Service Center (“CSC”) of problems by telephone at (800) 561-2656, by the Company’s support ticket desk at http://support.gigenet.com, or by such other means as the Parties may agree. Provided that a Service Outage (defined below) is not attributed to a failure of Customer-provided equipment (“CPE”) or Customer-provided infrastructure, Company will respond and commence work within fifteen (15) minutes after notification or discovery of a Service Outage.
6.2. Service Outages. A “Service Outage” is defined as Packet Loss in excess of fifty percent (50%), based on Company’s measurements, or complete interruption of communications on the Uplink Network, provided it is not caused by or resulting from (i) Force Majeure; (ii) an act or omission of Customer, its employees, agents or contractors; (iii) the use or failure of any CPE or In-Building Facilities used in connection with the Uplink Service; or (iv) planned outages for maintenance or repair that are scheduled in advance by Company;
6.3. Service Outage Credit. Customer is entitled to a Service Outage credit (“Service Outage Credit”) equal to a percentage of their Monthly Service Charge as outlined in the following table, based on the total aggregate amount of Service Outages during the same calendar month:
The “Monthly Service Charge” is an amount equal to Customer’s total monthly recurring Uplink Service charges, but does not include incidental charges (i.e. Burst Bandwidth charges).
6.4. Customer Request Credit. Customer must notify Company in writing within five (5) business days from the time Customer becomes eligible to receive a credit. Failure to comply with this requirement will forfeit Customer’s right to receive a credit.
6.5. Limitation on Remedies. Company’s suspension or modification of Bandwidth in accordance with the terms of this Agreement shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement. The Service Outage Credit and Customer’s right to terminate under section 6.8 are Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for any failure by Company to provide Uplink Service or adequate service levels, including but not limited to any Service Outages or Company Network congestion, and under no circumstances shall a Service Outage be deemed a breach of this Agreement by Company. In no event shall Customer be entitled to any credit on its Bandwidth charges to the extent that the latency or Downtime is caused by Customer attempting to exceed the maximum bandwidth of Customer’s connection to the Company Network or otherwise violating the terms of this Agreement. Service Outage Credits will not be credited or payable for any period of time during which Company personnel or contractors are denied access to Customer Locations to remedy a Service Outage. Service Outage Credits will not be credited or payable for any period of time during which Customer does not make technically knowledgeable personnel available to work with the Company NOC to resolve issues.
6.6. All Service Outage Credits will be credited on the next recurring invoice for the affected Uplink Service after receipt of Customer’s request for credit. The aggregate maximum Service Outage Credit payable in a given calendar month shall not exceed the Monthly Recurring Charge for Bandwidth payable by Customer to Company for that same month for the affected Uplink Service.
6.7. Unless otherwise specified, if a Service Outage lasts longer than fifteen (15) days for any reason other than Force Majeure, then at any time thereafter, unless and until such Service Outage is corrected, either Party may terminate this Agreement with respect to the affected Uplink Service specified in an Order Form by written notice of termination delivered to the other Party.
6.8. In the event that Company dispatches personnel for a Uplink Service Outage or problems caused by Customer equipment or personnel, Company will invoice and Customer agrees to pay Company’s actual costs for time and travel associated with the dispatch.
7. BURST BANDWIDTH
Billing for Burst Bandwidth will follow the “95th percentile” rule: Usage samples will be collected and sorted from highest to lowest and the top 5% discarded. The next highest sample (the 95th percentile number) will then be used as the basis in computing the charge for the month for incremental Bandwidth beyond the committed level. Charges for Burst Bandwidth are recurring and will be billed after the end of the month.
8. DENIAL OF SERVICE
Customer will be fully responsible for any charges resulting from Bandwidth use caused by Denial of Service attacks. Company may, at the request of the Customer, provide Denial of Service attack mitigation services, terms of which will be outlined on the Order Form. Customers undergoing Denial of Service attacks waive their right to Service Outage Credits for downtime caused directly or indirectly by Denial of Service attacks.
9.1. Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by any government within whose jurisdiction Customer operates or does business.
9.2. No Resale. Customer may not resell the Uplink Service, including but not limited to the Bandwidth. For purposes of this Section, the provisioning of web-hosting or application service hosting on Customer’s equipment and/or ISP service is not considered reselling the Bandwidth. Customer hereby indemnifies Company against any harm or any claims arising out of acts or omissions of any customers of Customer or other third parties using Customer’s equipment or service that is the subject of this Agreement.
9.3. Acceptable Use; SPAM. Customer will at all times comply with and conform its use of the Service to the Company’s AUP, TOS, and Anti-SPAM Policy (collectively, the “Company Policies”) as set forth at the Company website, and updated from time to time, subject to notice to Customer of any material changes. In the event Customer violates the Company Policies where Company determines in its reasonable discretion that there is potential harm to its Network or business, Company shall have the right to immediately suspend Service. In other cases of violation of the Company Policies, Company will provide notice and opportunity to cure, to the extent Company deems reasonably appropriate, depending on the nature of the violation, the availability of the Customer and whether or not there has been a repeat violation. Company, in its reasonable discretion, shall re-enable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.
9.4. Illegal Use. Customer will cooperate in any investigation of Customer’s alleged illegal use of Company’s facilities or other networks accessed through the Company Network. If Customer fails to cooperate with any such investigation, Company may suspend Customer’s Service. Additionally, Company may modify or suspend Customer’s Service in the event of illegal use of the Company Network or as necessary to comply with any law or regulation, including the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512, as reasonably determined by Company.
9.5. Other Networks. Customer is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the Company Network and/or through other public and private networks. Company is not responsible or liable for performance or non-performance of such networks or their inter-connection points.
9.6. Company Equipment. Customer shall have no right or interest in any Company-supplied equipment other than the right to use such equipment during the specified term while payments are current. Customer shall be liable to Company for any damage to such equipment caused by Customer or Customer’s representatives, agents or employees. Company shall not be liable for damage to, or loss of any of Customer equipment resulting from any cause, other than Company’s negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged equipment.
Client Code of Conduct Supplement
This Client Code of Conduct Supplement is effective as of the last date of execution below (“Supplement Effective Date”) by and between Digital Management Partners, LLC. (“Company”) and Customer and is attached to and made a part of the Master Product and Services Agreement, by and between the Parties. Unless otherwise defined herein, capitalized terms in this Supplement shall have the definitions attributed thereto in the General Terms and Conditions. Likewise, the Company reserves the right to amend its Client Code of Conduct Supplement from time to time with prior notice to the Customer, and the parties hereby specifically agree that any such amendments to said Client Code of Conduct Supplement shall be binding upon the Customer.
1. ADDITIONAL DEFINITIONS
“Customer Equipment” means equipment (including without limitation, telecommunications equipment, servers, cables and wires) installed in a Co-location Space.
“Co-location Space” means area in a Company leased or owned facility licensed for Customer’s use as provided hereunder.
“Facility” refers to any and all structural assets owned and operated by the Company.
2. COMPLIANCE WITH STAFF
By entering the facility, the customer agrees to respectfully acknowledge and follow all staff instructions while located at the facility.
3. FACILITY RULES
3.1. No food or drink allowed inside the facility.
3.2. All trash is the responsibility of the customer to dispose in the marked areas.
3.3. All equipment withdrawals must have a ticket placed and approved by Billing prior to the equipment leaving the facility.
3.4. All individuals must sign-in and sign-out prior to entering and leaving the facility.
3.5. Customer and any guests may not enter any areas other than their Colocation Space.
3.6. No children under the age of 14 may enter the facility without express written facility from the Company.
Entering and Navigating the Facility
- All entry points to the facility are monitored by video cameras, and all users are identified before gaining access to the facility.
- All visitors must be listed as an authorized contact, or pre-authorized by submitting a support ticket from an authorized contact before visiting the facility.
- All visitors must present a valid government issued photo ID and be escorted into the building.
- Customers are held strictly responsible for the actions of their visitors and contractors.
- All visitors must sign-in and out of the facility.
Work Area Expectations
- Food and drink are not allowed outside the office areas and conference rooms.
- Dispose of all trash in the proper receptacles.
- Customers may only access the common office areas and their assigned custom or cabinet space.
- Equipment generating an RF signal (wi-fi) is prohibited within the customer cabinet areas; however, cell phones are allowed.
- Combustible materials are not to be stored in cabinets, cages, or custom spaces.
- When completing work, visitors are required to:
1. Dispose of all waste in their area.
2. Clean their work area.
Injuries in the Facility
- Visitors must notify GigeNET staff of injuries as soon as possible.
- GigeNET staff will complete an incident report.
- A first-aid kit is available in the GigeNET office area.
The following are not allowed in the GigeNET facility:
- Loud music, horseplay, or abusive language.
- Firearms, knives, weapons, explosives, flammable materials, or toxic materials.
- Photography, cameras, or any image capturing devices are strictly prohibited unless permission from GigeNET staff is expressly granted. Cellular phones with cameras are permitted, however the camera may not be used.
- Visitors may not modify or alter the facilities (e.g. mount objects on the wall, cut or drill floor tiles, run or move electrical circuits, cross connect cables, access electrical panels, etc.).
The primary contact receives a badge that provides access to the colocation area. To make any changes to their badged employees, the primary contact must notify support. These requests are to be submitted to firstname.lastname@example.org. It is the sole responsibility of the customer primary contact to notify GigeNET if a badge should be disabled.
Equipment Shipping, Delivery, Storage, and Installation Expectations
Because GigeNET is a secure facility, all customers or customer contractors must strictly follow these rules while in the facility. In this document, customers and contractors are collectively referred to as customers.
Equipment Shipping, Delivery, and Storage
- Receiving hours are Monday-Friday, 8:00 a.m. – 5:00 p.m Central Time.
- Customers are solely responsible for shipping equipment from GigeNET and for meeting the carrier for pickup of the shipment. GigeNET will not participate in the shipping of customer equipment in any manner.
- Customers are solely responsible for equipment delivered to and stored at GigeNET. GigeNET is not responsible for receiving any customer equipment. However, GigeNET will, at the specific request of a customer, accept delivery of a specific shipment for that customer.
- The customer shall e-mail tracking numbers, a point of contact, expected delivery date, carrier, and a description of the shipment contents to email@example.com prior to delivery. Failure to provide this information to GigeNET will result in refusal of the shipment. The customer will absolve GigeNET of any responsibility for the contents and condition of the received shipment.
- GigeNET shall identify the proper area for storing customer equipment in the receiving area.
- All customer shipments must be removed from the GigeNET receiving area within 14 calendar days.
- Customers may reserve the designated staging area to assemble and disassemble equipment for periods not to exceed 24 continuous hours. GigeNET is not responsible for any equipment or tools left in this area.
- Customers may not store boxes in custom or cabinet areas. Customers may leave equipment in its shipping boxes for a period not to exceed seven days. Customers must break down and dispose of empty boxes and trash before leaving the facility.
Custom or Cabinet Equipment Installation Expectations
- Customers may not modify, or cause to be modified, GigeNET equipment or facilities.
- Customers may not install any equipment, including cabling, in the overhead cable trays. Contact the GigeNET to install cable.
- All customer equipment (servers, routers, switches, hubs, PDUs, power strips, etc.) must be located within the customer rack/cabinet.
Customers may not manipulate electrical or transport facilities. If electrical or transport facilities need to be added or changed, contact GigeNET to request changes or additions.
- When scheduling a tour, indicate whether a conference room will be needed.
- A complete list of attendee names must be supplied to GigeNET no less than two business days prior to the scheduled reservation.
- All attendees must possess a government-issued photo ID.
- A client contact name must be provided in regards to the reservation. The client contact will be responsible for the conduct of the attendees.
- No food or drink is allowed on tours.
- No photography is allowed during tours.
Customer Power & Breaker Budgets
Customers are allotted a certain amount of electrical power and a certain number of breaker positions based upon their contractual agreement. To request additional power contact GigeNET with details regarding your requirements.
All electrical circuits are limited by the National Electrical Code (NEC) to a maximum continuous draw of 80% of the circuit breaker rating. Customers are responsible for monitoring their use of power via their power distribution unit. If the load cannot be reduced and there is no other electrical circuit available, another circuit may be ordered through GigeNET, provided the usage does not exceed breaker and kWh budgets.
Failure to either reduce the electrical load or add additional circuits may result in tripping the circuit breaker. In this instance GigeNET will accept no responsibility for loss of power to customer equipment.
Customers experiencing trouble with access, power, or network issues should open a trouble ticket with GigeNET by emailing firstname.lastname@example.org or calling (800-561-2656).