Colocation Terms of Service
March 15, 2018 Version
For a previous version of the Colocation Terms of Service, please email email@example.com
All services provided by Liquid Web are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or Local law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless Liquid Web, from any claims resulting from the subscriber's use of Liquid Web's services which damages the subscriber or any other party.
This COLOCATION MASTER SERVICES AGREEMENT TO THE COLOCATION SERVICE ORDER FORM, including the Schedule of Equipment and the Service Level Agreement attached hereto as exhibits and incorporated herein by reference (“Terms and Conditions”) is entered into by Liquid Web. (collectively referred to as “Liquid Web”) and are made a part of Liquid Web’s standard COLOCATION ORDER FORM (hereinafter referred to as the “Colocation Contract”) made by and between Liquid Web and the Customer identified therein. The Colocation Contract is incorporated by reference as if fully set forth herein. Capitalized terms not defined herein shall have the same meaning as in the Colocation Contract.
1. THE BUILDING. Liquid Web owns and operates the data center facility. Liquid Web has the right to execute license and colocation agreements with third parties for space in the building.
2. GRANT OF LICENSE; TERM; PERMITTED USES; NO REAL PROPERTY INTEREST.
Customer owns the computer and related communications equipment (“Equipment”) more particularly described in the Schedule of Equipment attached hereto as Exhibit “A” and incorporated herein by reference.
(a) Grant of License. Liquid Web hereby grants to Customer the right and non-exclusive and non-sublicensable license (“License”) to install, operate and maintain the Equipment in the specific space or spaces (“Space”) located in the Premises (“Premises”) in the Building, as specified by Liquid Web. The License is granted for the Term, as set forth in Section 2(b) and for the Permitted Uses, as set forth in Section 2(c). Notwithstanding the foregoing, Liquid Web reserves the right to relocate, change or otherwise substitute replacement space in the Premises for the Space at any time during the Term hereof, provided that the replacement space is substantially similar in size and configuration to the original Space, and provided further that Liquid Web shall provide customer with thirty(30) days prior written notice of such change. Customer may not assign this Agreement, sublicense the Space or allow any other person or entity to use the Space for any reason, without first obtaining the prior written consent of Liquid Web.
(b) Term. This Agreement and the license granted herein shall each commence on the date of the account signup and, unless terminated in accordance with Sections 11, 12 or 13 herein, shall each automatically renew for successive terms equal to the initial term unless cancelled by either party in writing at least thirty (30) days before the expiration of the current term (the “Term”). This agreement is valid for a month-to-month term for services are automatically renewed each month in perpetuity subject to written cancellation via help desk ticket (manage.liquidweb.com) or email sent to firstname.lastname@example.org (email subject to valid proof of account ownership). LiquidWeb is not able to schedule cancellation requests.
(c) Permitted Uses. Customer has the right to use the Space solely for the purpose of (i) installation of the Equipment in the Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment (Collectively with (i))-(iii), as the “Permitted Uses”). Unless otherwise agreed by Liquid Web in writing, Customer shall perform the Permitted Uses at its sole cost and expense.
(d) Not a Grant of an Interest in Real Property. Customer represents, warrants, acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space, the Premises or the Building; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.
3. Fees Required to Begin Service. On the date of account signup, Customer agrees to and shall pay to Liquid Web that amount which is equal to the sum of (a) the cost to install the racks, cabinets, cages, custom space, electrical circuits, fiber optic connections, cable, panels and other items necessary for the Equipment to function in the Space (“Expense Component”), plus (b) a prepayment equal to the number of month’s recurring fees determined by Liquid Web (the “Fee Component”) (hereinafter together, the “Fees Required to Begin Service”). The Expense Component shall be applied by Liquid Web to pay the costs and expenses referenced in the Colocation Service Order Form. The Expense Component is not refundable to Customer, and shall be deemed earned by Liquid Web upon receipt. The Fee Component shall be applied by Liquid Web to prepayment of the Fee due from Customer for the first month or months of the Term. The Fee Component is not refundable to Customer, and shall be deemed earned by Liquid Web upon receipt.
4. AGREEMENT TO PROVIDE SERVICES AND PAY FEES; SERVICE LEVEL AGREEMENT. Pursuant to this Agreement, Liquid Web has agreed to provide certain services (“Services”) to the Customer, and the Customer has agreed to pay certain fees (“Fees”) to Liquid Web in consideration therefore. Liquid Web shall have the right to increase the Fees: (a) after twelve (12) months of consecutive service in proportion to increases in the Consumer Price Index applicable to the geographic area where the Building is located, plus two percent (2%), provided however, that Liquid Web provided Customer with sixty (60) days prior written notice of such increase in fees. Customer may purchase additional Services offered by Liquid Web from time to time on terms and conditions mutually agreed to in writing. Liquid Web agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in the Service Level Agreement.
5. PAYMENT OF FEES; DUE DATE; LATE CHARGE; DEFAULT INTEREST. On or before customer account’s billing date of each and every month during the Term hereof (each, a “Due Date”), Customer agrees to and shall pay the Fees to Liquid Web, in advance, for the Services to be rendered by Liquid Web to Customer during said month, without offset, deduction or credit of any kind and in good and drawable funds. If Customer fails to pay the Fees to Liquid Web by the Due Date of any month during the Term hereof for three (3) consecutive months, on the next late payment, customer will be assessed an administrative charge in the amount which is equal to five (5%) of the overdue Fees (“Administrative Charge”); in addition Liquid Web may charge interest on all due but unpaid Fees at 1.5% per month (“Default Interest”) until paid in full. Customer agrees to and shall pay to Liquid Web for all costs of collection of the Fees, Default Interest and Administrative Charges. Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of this Agreement. If Customer requests that Liquid Web provide services not specifically set forth herein and Liquid Web agrees to provide such services, Customer agrees to pay Liquid Web's standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service. Liquid Web may suspend any or all Services to Customer if payment for any Service is overdue by thirty (30)days.. A “Reinstatement Fee” equal to seventy-five dollars ($75.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated. If a Fee is disputed in good faith by Customer then the parties shall work together in good faith to resolve the dispute. Notwithstanding any other term in this Agreement, Customer may suspend the payment of all disputed amounts until the dispute is resolved and all of Liquid Web’s obligations shall continue unabated until dispute resolution. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate.
6. RETURNED CHECK FEE AND CREDIT CARD CHARGE BACKS
A returned check penalty fee of $25 will be charged to any customer’s account for any check dishonored by their financial institution. This fee will be waived if the check was returned in error, provided that supporting documentation is submitted. The returned check and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer’s behalf has written two or more returned checks, check cashing privileges will be revoked. If a returned check was used to pay for more than one customer’s account, each account will be assessed the $25 returned check fee. Payments made by a returned check are reversed from the customer account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.
A credit card charge back fee of $50 will be charged to any customer’s account for any charge back received by their financial institution. The original charge amount and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer’s behalf has used a credit card to pay for services ending in 2 or more chargebacks, will result in credit card payment privileges being revoked (full payment will be due via money order or wire transfer). This fee will be waived and credit card payment privileges reinstated if the chargeback resulted in error, provided that supporting documentation is submitted. If a credit card was used to pay for more than one customer account resulting in multiple chargebacks, each account will be assessed the $50 fee. Chargebacks received are reversed from the customer’s account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.
7. RULES AND REGULATIONS. Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises and the Building from time to time published by Liquid Web (whether written or published on Liquid Web’s website) https://www.liquidweb.com/about-us/policies/
Each party acknowledges that it may acquire from the other information that is of a special and unique character and constitutes Confidential Information. The Receiving Party agrees to exercise the same degree of care accorded its own Confidential Information, but in no case less than reasonable care. For purposes hereof, “Confidential Information” means any information that a disclosing party (the “Disclosing Party”) treats in a confidential manner and that is marked “Confidential Information” prior to disclosure to the other party (the “Receiving Party”). Confidential Information does not include information which: (a) is public or becomes public through no breach of the confidentiality obligations herein; (b) is disclosed by the Receiving Party with the prior written approval of the other party; (c) was known by the Receiving Party at the time of disclosure; (d) was developed independently by the Receiving Party without use of the Confidential Information; (e) becomes known to the Receiving Party from a source other than the disclosing party through lawful means; (f) is disclosed by the disclosing party to others without confidentiality obligations; or (g) is required by law to be disclosed, provided however, that such party shall provide notice to the other party as soon as reasonably practicable.
(a) INSURANCE REQUIREMENTS OF CUSTOMER. Customer agrees to and shall maintain in force and effect during the Term of this Agreement, a policy or policies of commercial general liability insurance, with a company licensed to do business within the state where the Building is located, insuring Customer against all hazards and risks customarily insured against by persons locating equipment such as the Equipment in space in buildings such as the Space in the Building. The policy shall be written on a per-occurrence basis with blanket contractual liability coverage, with respect to use of the Space in the Premises and operation of Customer’s business therein, with a combined single-limit coverage of not less than One Million Dollars ($1,000,000) and aggregate umbrella coverage of not less than an additional One Million Dollars ($1,000,000). Customer shall maintain property insurance (inclusive of coverage for data, media and electronic data processing perils) written on a “Special Form” basis at full replacement cost value. Customer’s policies shall contain provisions providing that such insurance shall be primary insurance insofar as Customer is concerned, with any other insurance maintained by Liquid Web being excess and noncontributing with the insurance of Customer required hereunder; and the same shall provide coverage for the contractual liability of Customer to indemnify Liquid Web. Each of Customer’s policies shall name Liquid Web, as an “additional insured”. All such policies shall provide that Customer’s insurer waives all rights of subrogation against Liquid Web. Customer shall procure and maintain workers’ compensation insurance in accordance with all applicable federal and state laws subject to statutory limits.
(b) INSURANCE REQUIREMENTS OF LIQUID WEB. Liquid We shall, at a minimum and at its own expense, carry and maintain during the entire Term of this Agreement, including any subsequent extensions thereof, the following types and limits of insurance coverage: (a) Workers’ Compensation insurance in accordance with all applicable federal and state laws subject to statutory limits, which shall include a waiver of subrogation in favor of Customer; (b) Employer’s Liability insurance with limits of not less than $1,000,000 per accident for bodily injury and $1,000,000 per employee and policy limit for disease or the local statutory limit, whichever is greater, which shall include a waiver of subrogation in favor of Customer; (c) Commercial General Liability (CGL) or Public Liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate, which shall include Customer as an additional insured.
10. INDEMNITY. Customer and Liquid Web and their respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an“Indemnifying Party”) each hereby agree to and shall indemnify, defend, protect and hold the other party and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an “Indemnified Party”) free and harmless from and against all Claims (defined below) for damages (including but not limited to attorneys’ fees, costs and expenses), injury and death arising out of or relating directly or indirectly to the failure or alleged failure by the Indemnifying Party to comply with or otherwise perform its obligations under this Agreement, excepting therefrom Claims arising out of or relating to the intentional misconduct or gross negligence of the Indemnified Party. For purposes of this Agreement, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs. This indemnification extends to and includes (a) Claims for injury to any persons (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction of the Space or Premises), but specifically excluding (b) Claims for economic and consequential loss or damage, and resulting, incidental or punitive damages of any kind. The provisions of this section shall survive the expiration or earlier termination of this Agreement. An Indemnified Party seeking Indemnification shall give the Indemnifying Party prompt notice of any claim asserted or threatened against such Indemnified Party on the basis of which such Indemnified Party intends to seek indemnification, but the obligations of the Indemnifying Party shall not be conditioned upon receipt of such notice except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice). The Indemnifying Party shall promptly assume the defense of any Indemnified Party and may select counsel in its sole and reasonable discretion. Notwithstanding the foregoing, any Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Indemnifying Party and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. No Indemnifying Party may agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party. Each party’s maximum aggregate liability to the other hereto or any third party for any damages or other liabilities, whether based on warranty, contract, negligence, or otherwise, shall not exceed the sum of the total Fees paid to Liquid Web by customer under this Agreement.
11. DISCLAIMER OF WARRANTY. Upon execution and delivery of this Agreement, Customer accepts the Space on an “as is where-is” basis. Except as otherwise specified in this Agreement or this Schedule, Liquid Web makes no representations or warranties, express or implied, as to the condition of the Space, the Premises or the Building and specifically disclaims, any and all express or implied representations or warranties including without limitation, any warranties of merchantability or fitness for a particular purpose.
12. EVENT OF DEFAULT BY CUSTOMER. Except as set forth in Section 5, the occurrence of any one or more of the following shall constitute an“Event of Default” by Customer under this Agreement: (a) on or after the thirtieth (30th) calendar day after the account invoice due date of each month during the Term hereof, Customer for any reason fails to pay to Liquid Web any Fees or any other amount due hereunder, or (b) on or after the 30th day after the date when due, Customer fails to pay to any other person or entity to whom Customer is required by this Agreement to make payment any amount required by this Agreement to be paid; or Customer fails to perform any obligation or covenant set forth in this Agreement and the same is not cured within ten (10) business days following receipt of written notice thereof.
13. LIQUID WEB’S REMEDY UPON DEFAULT; TERMINATION. Except as set forth in Section 5, in addition to all rights and remedies granted to Liquid Web in this Agreement (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default, Liquid Web shall have the right (a) to cease providing the Services to Customer without notice to Customer, (b) to remove the Equipment from the Space without written notice to Customer provided that Liquid Web returns the equipment to Customer as soon as shipment is provided by Customer/cost of shipment is paid by Customer, and (c) upon not less than thirty (30) business days written notice to Customer, to terminate this Agreement. In the event Liquid Web terminates this Agreement, the same shall terminate, expire and (except as otherwise provided in this Agreement) have no further force or effect on the date set forth in Liquid Web’s notice of termination. Upon such termination, Customer agrees to and shall immediately (i) pay to Liquid Web all Fees and other amounts due and owing for Services provided through and including the effective date of termination, (ii) if not already removed by Liquid Web, Customer shall remove its Equipment from and shall vacate the Space and the Premises, and (iii) Customer shall repair any damage, other than normal wear and tear, caused to the Space, the Premises or the Building as a consequence of any removal. Customer’s obligations under this section shall survive the termination or expiration of this Agreement.
14. Termination Fee and Removal of Equipment. This Agreement is subject to term commitments. In the event that this Agreement is terminated by Customer for any reason other than default by Liquid Web, prior to the end of the then-current term, Customer shall pay to Liquid Web an amount equal to three (3) months’ worth of Fees, unless there is less than three (3) months remaining in the applicable Term and, in such event, the remaining Fees due for the term. In addition, Customer will remove all Equipment within 30 days from the termination date. Liquid Web reserves the right to move any Equipment that remains in the Space after 45 days and charge Customer Fees at Liquid Web’s sole discretion and, after 60 days, if the Equipment remains unclaimed, it will be deemed abandoned and Liquid Web will dispose of it as it deems appropriate.
15. EVENT OF DEFAULT BY Liquid Web. The failure by Liquid Web to perform any obligation or covenant set forth in this Agreement, if the same is not cured within ten (10) business days following receipt of written notice thereof, shall constitute an “Event of Default” by Liquid Web. Upon the occurrence of such Event of Default, Customer may terminate this Agreement upon not less than three (3) business days written notice to Liquid Web.
16. ATTORNEYS’ FEES. If any legal or administrative action or proceeding is brought by either party against the other party to enforce or interpret any term or provision of this Agreement, the prevailing party in said action or proceeding shall be entitled to recover from the party not prevailing its reasonable attorneys' fees and costs incurred in connection with the prosecution or defense of such action or proceeding. The foregoing includes, without limitation, attorneys' fees and costs of investigation incurred in appellate and remand proceedings, or costs incurred in establishing the right to indemnification.
17. ASSIGNMENT. This Agreement shall be binding on the parties and their successors (through merger, acquisition or other process) and permitted assigns. Neither party may assign, delegate or otherwise transfer its obligations or rights under this Agreement to a third party without the prior written consent of the other party and any such transfer shall be void.
18. GOVERNING LAW. This Agreement and all documents and instruments executed in connection therewith or herewith shall be governed by and interpreted in accordance with the substantive laws of the State of Michigan without regard to principles of conflict of laws. The parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this Agreement shall be an appropriate court located in Eaton County, Michigan.
19. NO WAIVER. The failure of either party at any time to enforce any right or remedy available to it under this Agreement or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either party.
20. LIMITATION OF LIABILITY.
(a) In addition to the specific limitations of liability set forth in other paragraphs herein Liquid Web shall not in any case be liable for any of the following: (1) the content of the information passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Customer’s records, information, files or data, unless such loss was due to willful misconduct or gross negligence by Liquid Web; (3) economic consequential damages (including lost profits and savings) or incidental damages, even if Liquid Web is informed of their possibility; (4) claims for damages caused by Customer; (5) claims against Customer by any other party; or (6) any act or omission of any other party furnishing services and/or products, or the installation and /or removal of any and all equipment or supplies.
(b) In addition to the specific limitations of liability set forth in other paragraphs herein Customer shall not in any case be liable for any of the following: (1) the content of the information passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Liquid Web’s records, information, files or data, unless such loss was due to willful misconduct or gross negligence by Customer; (3) economic consequential damages (including lost profits and savings) or incidental damages, even if Customer is informed of their possibility; (4) claims for damages caused by Liquid Web; or (5) claims against Liquid Web by any other party.
(c) Notwithstanding the provisions of the Service Level Agreement (Exhibit “B”), Liquid Web SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CAUSES BEYOND ITS COMMERCIALLY REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, LABOR DISPUTES, FIRES OR OTHER CASUALTIES, NATURAL DISASTERS, OR THE CONDUCT OF THIRD PARTIES (“FORCE MAJEURE”).
(d) Notwithstanding the provisions of the Service Level Agreement (Exhibit “B”), Liquid Web SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS, WHICH RESULT FROM QUALIFIED SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY OUTSIDE THE SCOPE OF LIQUID WEB’S CONTROL, EXCEPT THAT CUSTOMER’S SOLE REMEDY FOR QUALIFIED SERVICE OUTAGES SHALL BE THE REFUND PROVIDED PURSUANT TO THE SERVICE LEVEL AGREEMENT (EXHIBIT “B”) Liquid Web SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. UNLESS SUCH DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION WAS WITHIN THE SCOPE OF LIQUID WEB’S CONTROL (e.g., paying the utility bill).
(e) LIQUID WEB ASSUMES NO LIABILITY FOR ANY DAMAGES TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY ACTION OR FAILURE TO ACT BY ANY OF CUSTOMER’S THIRD PARTY AGENTS, VENDORS OR SERVICE PROVIDERS.
(f) IN NO CASE SHALL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES WITH RESPECT TO ANY CLAIMS REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF THEY HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
21. AMENDMENTS. This Agreement may be amended or modified. By continuing to use the Services, you agree to be bound by the modified terms.
22. NOTICES. All notices and demands hereunder shall be in writing and shall be served by personal service by mail at the address of the receiving party set forth below (or at such different address as maybe designated by such party by written notice to the other party). All Notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of confirmed delivery or confirmed facsimile transmission. To be effective, Notices must be delivered to the attention of:
TO: Liquid Web Inc.
2703 Ena Drive
Lansing, MI 48917
ATTN: Legal Department
Telephone: (800) 580-4985
Fax: (517) 322-3994
23. RIGHT TO ACCESS SPACE. (a) Liquid Web retains the right to access the Space at any time and from time to time to perform maintenance and repairs, to inspect the Equipment and to perform the Services. (b) The Customer agrees to provide Liquid Web twenty-four (24) hours notice before visiting the Space. The Customer shall provide written notice for the visit, including the date, start, and end time of visit, the expected length of the visit, its account information, name of all visitors, and specify the hardware it will access at such visit. Failure to provide the requested information or provide twenty four (24) hours written notice may result in a delayed visit or a fee for the visit. Customer agrees that it will receive authorization from Liquid Web for tools or additional hardware it needs for the visit or for any installation of such hardware. Should the Customer fail to arrive or reschedule this visit with less than twenty-four (24) hours notice, an additional fee may apply. (c) Customer shall receive twenty-four (24) hours of escorted access per calendar year per account. Hours spent in the data center beyond the allotted twenty-four (24) hours are subject to additional fees. A single visit has a maximum cumulative time limit of four (4) hours, which includes any time the Customer spends outside of the data center. Should the Customer require more than four (4) hours, such visitation is subject to an additional fee and is outside of the yearly twenty-four (24) hour allotment.
24. RELATIONSHIP OF THE PARTIES. The parties agree that their relationship hereunder is in the nature of independent contractors. Neither party shall be deemed to be the agent, partner, joint venturer or employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf. Each party shall be solely responsible for the payment of compensation, insurance and taxes of its own personnel, and such personnel are not entitled to the provisions of any employee benefits from the other party. Neither party shall have any authority to make any agreements or representations on the other’s behalf without the other’s written consent. Additionally, Liquid Web shall not be responsible for any costs and expenses arising from Customer’s performance of its duties and obligations pursuant to this Agreement.
25. REPRESENTATIONS. Both parties represent and warrant to the other: (1) that it is a duly organized and existing legal entity under the laws of its domicile, if Customer is a corporation or partnership; (2) that it has full authority to enter this Agreement; (3) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and (4) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
26. HEADINGS. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
27. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
28. LIMITATION OF ACTIONS. No action, regardless of form, arising out of or relating to this Agreement may be brought by the Customer more than twenty-four (24) months from the date on which the cause of action accrues. The parties expressly agree that this part, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto.
29. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any such invalid provision shall be replaced with a valid provision which most closely approximates the intent and economic effect of the invalid provision.
30. ENTIRE AGREEMENT. This Agreement constitutes the full agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous purchase orders, agreements, quotations, proposals, correspondence, or communications, such subject matter. Any provision of a purchase order purporting to supplement or vary the provisions of this Agreement shall be void. The parties agree that there are no third party beneficiaries to this Agreement.
31. COLOCATION HANDS ON SUPPORT.
Colocated equipment is to be provided and configured by the Customer before being shipped to the Space. Additional hardware will not be made available for sale by Liquid Web. ‘Hands On Support’ may be provided by Liquid Web at an additional charge. A “helpdesk ticket” is required for “Hands on Support” as well as specific instructions from the Customer on how to remove/replace the hardware components for the general maintenance of the equipment. Installing OS, software, or otherwise configuring the server is outside the scope of ‘Hands On Support.’ Liquid Web reserves the right to refuse providing such ‘Hands On Support’ at its discretion, makes no warranties, and is not responsible for any damages caused to hardware, loss of data or loss of service as a result of the ‘Hands On Support.’
32. PROMOTIONAL USE
Liquid Web may refer to You, Your company, or your logo's for promotional purposes. Your company name, logos and the services that were provided to the customer by Liquid Web may be used in promotional materials, advertising, marketing releases, newsletter, public disclosures and on the Liquid Web website. This reference will be strictly limited to disclosure that Liquid Web has provided services to the company and will not contain any confidential, sensitive or proprietary information in such a reference. The reference will also not provide any personally identifiable information about the individual or technical information regarding the server configuration and design used by the customer at Liquid Web. However, Liquid Web may disclose any information requested by law enforcement or when compelled by court order, applicable laws or regulations.
SERVICE LEVEL AGREEMENT
Liquid Web agrees to and shall provide the Services to the Equipment in the Space in accordance with this Service Level Agreement. Capitalized terms not defined herein shall have the same meaning as in this Agreement and Terms and Conditions:
Liquid Web’s intention is to provide uninterrupted power to the Equipment in the Space; however, events occur from time to time that may interrupt the power delivered to the Equipment in the Space. In the event that Customer experiences an interruption in power delivery to the Equipment in the Space (a “Power Interruption”), excluding scheduled maintenance, Liquid Web shall, for each impacted power circuit in the Space, grant to Customer a percentage credit during the next succeeding month (a “Power Interrupt Percentage Credit”). Notwithstanding the foregoing, if a Power Interruption is caused by one or more events of Force Majeure or by the Customer exceeding 80% of a circuit breaker's rating under continuous load, the Customer shall not be entitled to a Power Interrupt Percentage Credit. The Power Interrupt Percentage Credit shall be based on the following schedule:
Liquid Web will provide the customer a credit for ten (10) times the amount of actual power interruption. This means that if the customer power infrastructure is unavailable for one (1) hour, customer will receive ten(10) hours of credit.
Power Interrupt Percentage Credits are not cumulative from month to month and apply only to the month in which the Power Interruption occurred. Customer shall not receive during any month of the Term hereof a Power Interrupt Percentage Credit, which cumulatively exceed 100% of the monthly Fee allocable to the power circuit(s) affected in the Space. Where possible, Liquid Web will provide Customer with directed remote hands-services (without charge) to power up affected Equipment on a best effort basis
Network Uptime (only applicable when Liquid Web provides Internet Access)
Liquid Web guarantees that the network will be available 100% of the time in a given month excluding scheduled maintenance. Liquid Web will provide the customer a credit for ten (10) times the amount of actual downtime. This means that if the network is unavailable for 1 hour, customer will receive 10 hours of credit. Network uptime includes functioning of all network infrastructure including router, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and Liquid Web records such failure in the Liquid Web trouble ticket system.
Network SLA Exclusions
Many possible situations are completely beyond the control of Liquid Web, and therefore are not in the scope of this SLA. These situations include:
- Scheduled Network Maintenance - occasionally network maintenance will be required. Liquid Web will do everything possible to minimize and avoid downtime during this maintenance. You will receive prior notification of upcoming maintenance at the e-mail address we have on file. Scheduled maintenance periods are not eligible for SLA credits.
- Malicious Attacks - if a third party not associated with Liquid Web initiates a "Denial of Service" or other form of disabling attack against your Colocated Servers or major portions of our network, Liquid Web will do everything in its power to stop the attack, but cannot guarantee a resolution time.
- Legal Actions - In the case that a legal action is taken against a customer of Liquid Web and Liquid Web is required to act in accordance with the order, Liquid Web shall not be responsible for any SLA damages.
REFUNDS OR CREDITS
In order to qualify for a refund or credit pursuant to this Service Level Agreement, Customer must (a) contact Liquid Web’s Network Operations Center toll free number [(800) 580-4985] or email [email@example.com] within one (1) business day of the occurrence of the event for which the refund or credit is being requested and open a “trouble ticket”, and (b) within ten (10) calendar days of the occurrence of the event deliver to Liquid Web written notice describing with precision the dates and time of the event, the length of the event (in minutes and hours), the type of event, which rack, cage, or cabinet in the Space was affected by the event, and what effect the event had on Customer’s ability to operate the Equipment during the event. Upon opening of the “trouble ticket” Liquid Web will commence to investigate the facts which led to the event, and upon receipt of Customer’s written notice describing the event Liquid Web shall make an examination of Liquid Web’s facility monitoring system records for the impacted cage, rack or cabinet in the Space. Liquid Web agrees to and shall make a determination of whether Customer is entitled to a refund or credit within thirty (30) calendar days from the occurrence of the event. Until such determination, Customer shall continue to pay on a timely basis all monthly Fees required by this Agreement without offset, credit or deduction. The amount of any refund or credit to which Customer is entitled for an impacted power circuit, Internet access, or cross-connect shall not exceed one hundred percent (100%) of the monthly Fee allocable to the specific impacted power circuit, Internet access, or cross-connect. Under no circumstance will Customer be entitled to a refund or credit if the event complained of was caused by an event of Force Majeure, scheduled maintenance, or Customer's actions.
Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises and the Building from time to time published by Liquid Web (whether written or published on Liquid Web’s website) at https://www.liquidweb.com/about-us/policies/. By signing this Agreement the customer agrees to be bound by Liquid Web’s Terms and Conditions. Customer also Acknowledges that they have reviewed Liquid Web's Policies & Procedures. Liquid Web will confirm delivery date after the order has been validated and approved. Installation charges are an estimate only. Final charges are subject to completion of installation. Liquid Web cannot guarantee additional power for reconfiguration or upgrades of customer equipment, except as specified in this Agreement.
Customer authorizes Liquid Web to release customer’s name to other Liquid Web potential and current customers.
Customer agrees and acknowledges that it is solely responsible for ordering circuits directly from the carrier if Customer is not purchasing bandwidth from Liquid Web. Customer shall coordinate with the carrier the delivery and provisioning of circuits to Liquid Web facilities. Liquid Web may be able to assist only if circuit number(s) are provided. Customer understands that Liquid Web is not responsible for commitments made by carriers.
The service description is attached to customers account upon ordering services for the first time via the COLOCATION ORDER FORM.