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Colocation Agreement & Terms

Thank you for choosing InterNet Services to provide your Colocation services. As used in this Agreement, the term “Customer Equipment” refers to any and all computer equipment, software, networking hardware or other materials placed by or for Customer in the Colocation Space, other than InterNet Services Equipment.

Fees and Billing. Customer agrees to pay all Activation Charges, Monthly Fees and other fees (collectively, “Service Fees”).

1.1

Activation Charges. InterNet Services will bill Customer for all Installation Charges and first month recurring Service Fees (the “Activation Charges”). InterNet Services will not commence installation, initiation and Service unless and until it has received payment in full of all Activation Charges.

1.2

Recurring Service Fees. InterNet Services will begin billing for Recurring Service Fees on the date that is the earlier of: (a) the First Day of a Month; or (b) the date that Customer places Customer Equipment in InterNet Services’ premises, pro rata. If, however, Customer is unable to use the Services commencing on the Installation Date solely as a result of delays caused by InterNet Services (not to include delays caused by third party service providers), then the Installation Date shall be extended one day for each day of delay caused by InterNet Services. On the first day of each month, InterNet Services fees will be due and payable in full for services to be provided in the current month. Recurring Service Fees do not include monthly telephone company charges or data line charges that are each billed separately by third parties. All additional power agreements will increase at a rate of 10% annually for the length of the term.

1.3

Payment. All fees and charges will be due, in U.S. dollars, on the first day of the service month as indicated on the original InterNet Services invoice. Late payments will accrue interest at a rate of one and one-half percent (1¹/₂%) per month, or the highest rate allowed by applicable law, whichever is lower. If in its judgment InterNet Services determines that Customer lacks financial resources, InterNet Services may, upon written notice to Customer, modify the payment terms to secure Customer’s payment obligations before providing Services. InterNet Services, using its sole judgment, reserves the right to determine whether to charge interest to a late paying customer, or to consider the customer as having breached this contract as specified in Paragraph 11.

1.4

Taxes. All payments required by the Agreement are exclusive of applicable taxes and shipping charges. Customer will be liable for and will pay in full all such amounts (exclusive of income taxes payable by InterNet Services).

Term. The Term of this Agreement is specified in the Original Order. This Agreement shall automatically renew as defined in the following sections unless either party provides written notice of non-renewal within thirty (30) days of the end of the Term.

2.1

Renewal Terms: Monthly, Quarterly, Semi-Annual, Annual, and Bi-Annual are available.

2.2

Renewal Option. Subject to the conditions stated in this Section, Customer shall have the option to extend this agreement for up to five terms, each term consisting of 5 times the original term. Each such Renewal Term shall commence the day following expiration of, as applicable, the initial Term or the preceding Renewal Term, and shall be for a Base Rent equal to the Base Rent at time of applying, and otherwise on and subject to all of the terms and conditions set forth in this Agreement. Customer may exercise the option granted hereby by written notice to InterNet Services, but only if, all of the following conditions are satisfied:

(a)

Customer shall have given such notice not less than 30 days before the last day of the initial Term or Renewal Term to be extended;

(b)

During the Term preceding delivery of such notice, Customer shall not have defaulted in any of its obligations hereunder, or InterNet Services shall, for purposes of this Section only, waived the absence of any such default as a condition precedent to Customer’s right to exercise the option:

(c)

At the time that Customer gives such notice, and continuing until the first day of the Renewal Term, there shall not exist hereunder any default of Customer nor any event or circumstance that, with notice, the passage of time, or both, could ripen into a default.

(d)

Customer is operating in the Premises in a manner consistent with the Terms of this Agreement.

Installation. InterNet Services grants you the right to operate Customer Equipment at the Colocation Space, as defined on your Original Order. The Colocation Space is provided on an “AS-IS” basis, and you may use the Colocation Space only for the purposes of maintaining and operating Customer Equipment as necessary to support local access communications facilities and links to third parties. Customer will install Customer Equipment in the Colocation Space after obtaining the appropriate authorization from InterNet Services to access InterNet Services’ Premises. InterNet Services’ Premises include all InterNet Services owned or leased property including Customer Colocation Space. Customer will remove and be solely responsible for all packaging of Customer Equipment.

Access. You will have access to the Colocation Space on a 24-hour basis. You may access the Colocation Space only in accordance with InterNet Servives’ Security and Access Policies. Customer is responsible for any and all actions of Customer representatives and any escorted persons. No unescorted persons may enter the Colocation space under any circumstances.

Removal of Customer Equipment. Customer will provide InterNet Services with written notification two (2) days before Customer wishes to remove a significant piece of Customer Equipment. (This does not include replacing a piece of equipment with a similar piece of equipment). Before authorizing the removal of any significant Customer Equipment, InterNet Services’ accounting department will verify that Customer has no payments due to InterNet Services. Once InterNet Services authorizes removal of Customer Equipment, Customer will remove such Customer Equipment, and will be solely responsible to leave area in good operating condition at its own expense.

Assistance. At the request of Customer, InterNet Services may assist Customer in performing light duties or correcting minor problems such as circuit problems and/or outages, which may include:

Rebooting of equipment.

Pressing of reset or other readily accessible buttons or switches.

Reconfiguration of non-restricted cables with push-on type connectors.

Working cooperatively with Customer and/or third party provider to locate and correct circuit problems.

Customer shall pay InterNet Services a fee of $100.00 per hour for a minimum of one (1) hour for each occurrence in which assistance is required during normal business hours (8:30 am to 5:00 pm PST Monday through Friday, excluding holidays). A fee of $150.00 per hour and a minimum of three hours will apply to non-business hours and holidays.

Relocation of Customer Equipment. InterNet Services shall not arbitrarily or capriciously require Customer to relocate Customer Equipment; however, upon ninety (120) days written notice or, in the event of any emergency, InterNet Services may require Customer to relocate Customer Equipment; provided however, the site of relocation shall afford comparable environmental conditions for the Customer Equipment and comparable accessibility to the Customer Equipment. In the event that InterNet Services requires Customer to relocate Customer Equipment, all costs shall be borne by InterNet Services.

Security. InterNet Services does not guarantee security of Customer Equipment or of the Colocation Space. InterNet Services requires that you and your employees comply with all Colocation Security Procedures as defined by InterNet Services' Security and Access Policies in order to maximize the security of the InterNet Services premises. Only individuals whom you have identified as “Customer Representatives” (and persons escorted by Customer Representatives) listed on the Original Order will be permitted to enter the Colocation Space. Only Customer Representatives will be permitted to request Services on your behalf or to request any support services with respect to Customer Equipment. For good cause, InterNet Services may suspend the right of any Customer Representative or other person to visit the InterNet Services premises and/or the Colocation Space. InterNet Services will assist in security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so.

Resale. Should Customer resell any portion of the Service to any other party, Customer assumes all liabilities arising out of or related to such third party sites and communication. Customer agrees to enter into written agreements with any and all parties to which it resells any portion of the Services with terms and conditions at least as restrictive and as protective of InterNet Services’ rights as the terms and conditions of this Agreement, including without limitation, Sections 2.3,3,4,6,7,8,9, and 10.

10.

Acceptable Use Guidelines. Customer must at all times conform its use of and comply with all state and federal laws with respect to its operations in the Colocation Space. If InterNet Services is informed by government authorities or other parties of illegal use of InterNet Services’ facilities or InterNet Services otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by InterNet Services or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in Breach (defined below) of this Agreement and InterNet Services may immediately suspend Customer’s Service.

11.

Insurance. Customer will keep in full force and effect during the term of this Agreement: (i) business loss and interruption insurance in an amount not less than that necessary to compensate Customer and its customers for complete failure of Service; (ii) comprehensive generally liability insurance; (iii) employer’s liability insurance; and (iv) worker’s compensation insurance. Customer agrees that Customer and its agents and representative shall not pursue any claims against InterNet Services for any liability InterNet Services may have under or relating to this Agreement unless and until Customer or Customer’s employee, as applicable first makes claims against Customer’s insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Customer should try to name InterNet Services as an additional insured on all general liability insurance.

12.

Limitations of Liability.

12.1

Personal Injury. Each Customer Representative and any other persons visiting InterNet Services facilities does so at his or her own risk and InterNet Services shall not be liable for any harm to such persons resulting from any cause other than InterNet Services’ gross negligence or willful misconduct resulting in personal injury to such persons during such a visit.

12.2

Damage to Customer Business. In no event shall InterNet Services be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer’s business, Customer’s customers or clients, Customer Representative’s activities at InterNet Services or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customer’s business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.

12.3

Damage to Customer Equipment. InterNet Services assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause other than InterNet Services’ gross negligence or willful misconduct. In no event will InterNet Services be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer Equipment of any lost revenue, lost profits, replacement good, loss of technology, rights or services incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of any Customer Equipment, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.

13.

Defense of Third Party Claims and Indemnification.

13.1

Defense. Customer will defend InterNet Services, its director, officer, employees, affiliate and customers (collectively, the “Covered Entities”) from and against any and all claims, actions or demand brought by or against InterNet Services and/or any of the Covered Entities alleging: (a) with respect to the Customer’s business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive harassing or illegal conduct or violation of the Acceptable Use Guidelines or Anti-Spam Policy; (b) any damage or destruction to the Colocation Space, InterNet Services premises, InterNet Services Equipment or to any other InterNet Services customer which damage is caused by or otherwise results from acts or omissions by Customer, Customer representative or Customer’s designees; (c) any personal injury or property damage to any Customer employee, Customer Representative or other Customer designee arising out of such individual’s activities related to the Services, unless such injury or property damage is caused solely by InterNet Services’s gross negligence or will misconduct; or (d) any other damage arising from the Customer Equipment or Customer’s business (collectively, the “Covered Claims”). In the event of any claim under this paragraph, InterNet Services may select its own counsel.

13.2

Indemnification. Customer hereby agrees to indemnify InterNet Services and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless InterNet Services and each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, “Losses”) suffered by InterNet Services and each Covered Entity which Losses result from or arise out of a Covered Claim.

13.3

Notification. Customer will provide InterNet Services with prompt written notice of each Covered Claim of which Customer becomes aware, and, at InterNet Services’ sole option, InterNet Services may elect to participate in the defense and settlement of an Covered Claim, provided that such participation shall not relieve Customer of any of its obligation under this Section.

14.

Reliance on Disclaimer, Liability Limitations and Indemnification Obligations. Customer acknowledges that InterNet Services has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customer’s indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of their essential purpose.

15.

Conditions of Breach. Breach of this Agreement will occur if either party does not fulfill its obligations under this Agreement and such Breach is not cured within fifteen (15) days of written notice by the other party. Specifically relating to payment of Recurring Service Fees, the Customer will be in Breach of this Agreement if Customer has not paid its invoice within thirty (30) days of the invoice due.

16.

Remedies for Breach. If Customer is in Breach of this Agreement, InterNet Services may (a) discontinue all Services to Customer; (b) disconnect Customer from its Internet, power and telecommunications services; (c) remove Customer Equipment from Colocation Space and place in storage; and (d) order Customer to pay any and all amounts due to the date that the Customer Equipment was removed and order Customer to buy out the remaining term of the Agreement as specified in the Original Order (“Early Buy Out”). If InterNet Services is in Breach of the Agreement, Customer has the right to withhold recurring Service Fees for the time period from which the Breach occurred to the date that the Breach was cured.

17.

Termination of Services. If Customer wishes to terminate this Agreement prior to the date specified on the Original Order, it may elect an Early Buy Out. If the Customer is in Breach of this Agreement, InterNet Services may order the Customer to purchase an Early Buy Out. The amount due in an Early Buy Out shall be equal to the sum of 1/2 the amount of unused services for the agreed upon Term. In the event of a Month to Month Term, Customer shall have given such notice not less than 30 days before the last day of the current Term.

18.

Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

19.

No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Colocation Space or other InterNet Services premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances.

20.

Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

21.

Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party that should not be unreasonably withheld, except to a party that acquires substantially all of the assigning party’s assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

22.

Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated above, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier.

23.

Relationship of Parties. InterNet Services and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between InterNet Services and Customer. Neither InterNet Services nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

24.

Choice of Law and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio. Each party agrees to submit any and all disputes concerning this Agreement, if not resolved between the parties, to binding arbitration under one (1) neutral, independent and impartial arbitrator in accordance with the Commercial Rules of the American Arbitration Association (“AAA”); provided, however, the arbitrator may not vary, modify or disregard any of the provisions contained in this Section. The decision and any award resulting from such arbitration shall be final and binding. The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. Both parties shall equally share the fees of the arbitrator. The arbitrator may award attorney’s fees to the prevailing party as determined by the arbitrator.

25.

Changes Prior to Execution. Customer represent and warrants that it made no changes to this Agreement prior to providing this Agreement to InterNet Services for its acceptance and execution, and that InterNet Services alone incorporated any and all changes negotiated between, and accepted by, Customer and InterNet Services into this Agreement or into an addendum executed by both parties.

26.

Governing Law, Venue; Waiver of Trial by Jury. This agreement shall be deemed entered into in the State of Ohio. You agree that the laws and judicial decisions of Lake County, Ohio, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Lake County, Ohio. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.

27.

Acceptance of Agreement. This agreement will be considered accepted in its entirety if Customer begins using services of InterNet Services prior to receipt of a written and signed agreement.

28.

Entire Agreement. This Agreement, together with the Original Order and InterNet Services policies referred to in this Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties. Both parties represent and warrant that they have full power and authority to execute and deliver this Agreement and to perform their obligations under this Agreement. Should any terms of this Agreement be declared void or unenforceable by any arbitrator or court of competent jurisdiction, such terms will be amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of the Agreement will remain in full force and effect. If a conflict arises between Customer’s purchase order terms and this Agreement, this Agreement shall take precedence.