Terms of Service
(v.20230818)This Services Agreement is effective as of the date you submit an order for services to Superb Internet Technologies Inc. and/or CherryRoad Technologies Inc., or upon your signature (Effective Date), whichever is first. It is entered into by and between Superb Internet Technologies Inc. and/or CherryRoad Technologies Inc. (SI, Company, we, us, or our), and the entity set out in our records as the owner (Customer, you, or your).
This Agreement is the complete understanding between the parties concerning its subject matter and replaces any prior oral or written communications between them. This document is dynamic; the most recent version of this document available on our website shall control the parties' relationship. It is your responsibility to check the website often for updates. You agree to review this Agreement no less frequently than once per month to determine if any changes have been made. Changes will take effect at the next Renewal Term that is thirty days or more after the date of our change, unless you object in writing during that period. Should you not object to this change in writing within the period set out in the prior sentence, you will be deemed to have accepted the change. If you present us with a written objection to the change, within the thirty day period, the existing Agreement will apply unchanged until the last date of your current Initial Term or Renewal Term, and you may then terminate the affected Services without penalty or charge at the end of the Term, pursuant to the terms and provisions of this Agreement. Except for prior obligations of confidentiality and/or nondisclosure, there are no conditions, understandings, agreements, representations, or warranties, express or implied, which are not specified in this Agreement. This Agreement can only be modified by a written document executed by the parties.
The parties will indicate their acceptance of this Agreement in one of the following manners:
(i) submitting order for services to Superb; or
(ii) signing below as indicated.
- 1.1. If Customer incorporates our Services into its own products and/or services, its customer is referred to as "End User."
1.2. To become a Customer, you submit an Order Form to us. The products, services and other items you ask us to supply to you are referred to in this TOS as the "Services." Each Order Form submitted by you shall be deemed an offer by you to buy the Services from SI subject to our Agreement. No Order Form shall be deemed accepted by SI until we provision the Services. The initial Term of the Services is set out on your Order Form. The Term will renew for periods of equal length on each anniversary unless terminated as set out in paragraph 6. Any other provisions imposed by you on your own order forms, or otherwise, are expressly excluded. SI may alter this TOS at any time without notification to you. However, the current TOS is always available on SI's website. When you complete the Order Form, you are required to provide us with information about you (Customer Information). We will rely on this Customer Information. It is your obligation to provide us with correct, understandable and updated Customer Information. If you fail to do so, you will be in material breach of this TOS. The entity listed in the field "Organization" on the Order Form is considered by us to be our Customer and the owner of all information, equipment and other items associated with the account and Services we provide.
- 2.1. Additional Terms
All Services are covered by the terms of this Agreement. Certain Services have additional terms as set out in the sections referenced below:
- 2.1.1. Shared Hosting - Section A
2.1.2. Cloud & VPS - Section B
2.1.3. Dedicated - Section C
2.1.4. Equipment Rental / Lease to own - Section D
2.1.5. Colocation - Section E
2.1.6. Professional Services - Section F
2.2. Configuration and support
- 2.2.1. The Services and/or Equipment are configured by us for a typical user. Equipment is defined as a dedicated server, firewall, switch, or router that you rent or lease from SI. This Equipment may have default or factory settings that are less than optimal for your, or an End User's, needs. It is your obligation to determine whether these settings are appropriate or secure. We have no liability to you or an End User for damages based on these settings. From time to time, these settings may be modified by us to optimize network performance. We are not responsible to you for any resulting damage.
2.2.2. We are not obligated to modify the Equipment to accommodate your use. You may not terminate this contract based on your inability to use the Services because such a use is incompatible with the Equipment. If your use of the Services damages our Equipment, you will be charged for any repairs we need to make to the Equipment at our standard hourly consulting rate applicable at the time of the repair, plus the costs of parts, if any.
- 2.3.1. Third parties may have reserved the right to make changes to their services. We will use reasonable efforts to determine whether these changes will alter our Services, and work with the Third Parties to mitigate this change. However, we have no liability for these changes and you may not terminate the Agreement even if these changes are material changes.
2.3.2. We will use reasonable efforts to ensure that the Services set out on your Order Form are available during the Term. However, in certain circumstances, we may be unable to continue to provide the Services to you. We will not be in breach of the Agreement if we are unable to provide the Services to you because: (i) a third party stops making key aspects of the Services available to us; (ii) a law, regulation or order prohibits us from providing the Services; (iii) circumstances beyond our reasonable control make it cost prohibitive for us to continue to provide the Services to you; (iv) an "alpha" or "beta" period ends; (v) a trial period ends; or (vi) at any time within the termination notice period prior to a Renewal Term.
Your use of our Equipment and Services must be reasonable. This use may not consume so much of our network, and if you purchase shared hosting, processing, resources so as to limit the use of those resources by other customers. You may not attempt to circumvent any restrictions we place on your use of our network, and if you purchase shared hosting, processing, resources. If we determine that your use falls within the descriptions set out in this paragraph, we have the right to limit your use of our resources while we determine a more suitable set of resources for you. Once we propose these resources to you, you may either accept or reject them within 5 business days. If you reject them, you agree to change your use of the Services so that your use is reasonable; if you fail to do so, and continue to use an excessive amount of resources, those Services may be terminated without notice.
2.5.1. If set out on your Order Form, we will provide back-up Services to you (Back-Up Services). Back-Up Services are secondary to your own back-up and disaster recovery efforts. You understand and agree that our Back-Up Services: (i) only capture data that is available to them at the time the Back-Up Services run; (ii) do not run constantly, and may miss new data; (iii) cannot capture some data; (iv) only back-up partial data (up to your maximum purchased back-up storage space); and (v) are not failsafe. Data from the Back-Up Services is provided in raw form. You may be required to reformat or otherwise reconfigure the data for your use. We do not provide this reformatting or reconfiguration as part of the Back-Up Service. We have no responsibility to hold data in the Back-Up Services pursuant to "litigation hold" letters or other documents. However, if we agree to do so, we will charge you for these activities.
2.5.2. We may determine that certain file extensions are not suitable for the Back-Up Services. It is your obligation to verify whether particular files will be backed up.
If your request for technical support exceeds that of the included service level or of similarly situated customers, or is based on your lack of technical sophistication, we may charge you our standard hourly rate for support. We will inform you, and receive your consent, prior to charging you for technical support. If you request technical support, you agree that we may have full access to the Equipment, account and any and all items accessible to us based on your request. While we will use reasonable efforts to provide technical support to you, all support is provided AS-IS and on a "best efforts basis," and subject to the disclaimers of warranties and limitation of liability set out herein. We retain the right to refuse to provide technical support to you or terminate your account if your use of technical support exceeds that of similarly situated customers, if you refuse to pay for the support that you require, or if you are verbally or otherwise abusive to our employees or contractors.
2.7. Third Party Software
The Services may include software provided by Third Parties. You may be required to agree to licenses provided by the Third Parties prior to your use of this software. The Equipment and/or Services may have installed software for which you are required to have a preexisting license, or to procure such a license. Your use of this software shows that you do in fact have such a license, and you: (i) agree to provide us with evidence of that license on our, or a Third Party's request; and (ii) indemnify us from any claims made against us based on that use.
2.8.1. We each agree that, in order to carry out our respective obligations set out in this TOS, a level of cooperation and civility is required. While we have endeavored to set out specific instances in which cooperation is required, we each agree to work together to the extent reasonably possible.
2.8.2. You agree that you have the knowledge and experience to use the Services and Equipment as well as to administer the Services so that they may be used.
2.8.3. You are required to implement industry standard methods to maintain the security of the Services and Equipment. This includes, but is not limited to, only uploading data, software and other items that you have determined are free of security issues, setting secure passwords (not using dictionary words, username as password, or other weak, easily crackable passwords) for all of your, and your user, login instances, and promptly patching any and all your software, including the operating system, when any new security patches come out. Your End Users have the same obligation, and you are responsible for their failure to do so.
2.8.4. It is your obligation to report any security breaches in the Services and/or Equipment. You agree to notify us within 24 hours from your initial determination that there has been un-authorized access to any aspects of your Services and/or Equipment, unless circumstances prohibit you from providing this notice within that timeframe. Such notices should contain information you believe will be helpful to us, but at a minimum, the time, place, and aspects of the Service affected. You should provide us with periodic updates of the status of your investigation until it is concluded.
2.8.5. No data transmission over the Internet is 100% guaranteed to be secure. Neither SI, nor third parties, is responsible for security of information transmitted over the Internet. The security of our network is maintained according to generally accepted industry standards. We agree to provide you with written notice if we determine that there has been unauthorized access to aspects of the Service that are fully within our control. This notice will be provided to you as soon as reasonably possible; however mitigation of the security of our network shall take priority over notification. If we determine that your use of the Services and Equipment endangers the security of our network, or any of our other customers or third parties, you are required to cooperate with us in a security review. If we determine that your use of the Services or Equipment has in fact compromised the security of the items set out in this subparagraph, you will be charged for any security remediation. Your ability to use the Services may be suspended during this time.
3.1 The Term of this contract begins on the Effective Date. The Initial Term is set out on your Order Form. Upon expiration of the Initial Term, the Services renew for a period of equal length until terminated in writing (Renewal Term). A party must notify the other in writing of its intent to terminate this Agreement no later than 30 calendar days prior to the next Renewal Term or the alternate requested Termination Date (Termination Request). Any such termination or cancellation will be subject to the payment of any outstanding Fees. Fees for a Renewal Term will not change unless agreed upon by the parties. If you have prepaid the Fees, and this Agreement is terminated due to a violation of our AUP, then you consent to forfeit (through your or your End Users' action(s) of violating the AUP) the remaining prepaid amount on account, regardless of the total. If there is no prepaid amount remaining on the account, or the prepaid amount is for less than 1 full month, and this Agreement is terminated for violation of our AUP, then you shall owe 1 monthly payment. Non-prepaid Term Contracts do not allow for early termination; if the Contract is terminated prior to the end of a non-prepaid Term by you for any reason other than a material breach or by us for any reason, the unpaid total amount of Fees remaining for the duration of Terminated Term Contract become immediately due (Due Date is the Termination Request date) and payable. Non-prepaid Term Contracts automatically become month-to-month upon completion of the initial Term Contract period.
Any termination or cancellation will be subject to the payment of any outstanding Fees. Fees for a Renewal Term will not change unless agreed upon by the parties. If you have prepaid the Fees, but cancel prior to the end of the prepaid Term, the Fees for the entire Term in question will be recalculated without the Special Promotion and/or term discount, on a month-to-month basis (using the month-to-month fees in place at the time of your initial Service Order, including any setup fees), and the resulting used Services amount (for service term up to the Termination Date) deducted from the amount you have pre-paid, to determine any credit due. In some cases this may result in an additional payment due from you to us. All months shall be always rounded up for used months and rounded down for credit months; only full months are used in calculation (there is no proration past a full month). In case of a credit owed, the credit will be applied to your account (credits are not refunded) and may be used anytime within the next 24 months (credits expire in 24 months).
4.1. The billing cycle for the Services is set out on the Order Form. You are responsible for all Fees set out on the Order Form, on a Product Page (located at www.superb.net), or elsewhere in this Agreement (Fees). Non-recurring and domain name registration Fees are not refundable, nor are they subject to any satisfaction guarantee.
4.2. We often offer special promotions (Special Promotions). These Special Promotions have specific terms. Generally they do not apply to current customers, nor do they apply to Renewal Terms. If you terminate the Services to which a Special Promotion applied, the discount, or other benefit provided by the Special Promotion, will be removed and your account will be re-billed as if it had been set up without the Special Promotion. If this results in additional Fees, you will be charged those Fees.
5.1. If the Fees are not paid by the Due Date, your account will be considered delinquent and Services may be suspended. You are responsible for all amounts charged to us as a result of your delinquency, including, but not limited to, collection charges and attorneys’ fees. Any payment you make while your account is delinquent will first be applied to the incurred collection charges and attorneys’ fees, and only after those charges are fully paid, applied to your outstanding delinquent balance. This will affect how your late fee compounds. Your account is only considered to be in good standing when it has been paid in full, including all collection charges and attorneys’ fees. We may charge you late fees of 2% per month or the maximum amount allowed by law. In addition, an account disconnect/disable fee of $25 will be charged to your account if it is delinquent and your Services are suspended.
5.2. Credit cards
It is your responsibility to keep an accurate and valid credit card on file with us. You expressly authorize us and/or Superb Internet Technologies to charge this credit card for all Fees outstanding. We maintain each of your previously used credit cards on file, and may charge the Fees to them. Should you wish to remove a card, please contact us by opening a billing ticket via myCP®. We have no liability to you or any third party should your access to the Services and/or Equipment be disrupted by your failure to provide us with a valid credit card, or should the charges on your credit card be declined. You will be charged $1.00 each time your credit card is declined after the Due Date (there is no charge for declines prior to Due Date; for FlexCloud service, all automatic refill transactions are considered as “after the Due Date”). In the event of a chargeback dispute decided in our favor, you will be responsible for any charges connected with the dispute, including a chargeback fee of $250. Your account will be suspended pending resolution of the dispute.
5.3. Should the Services be suspended based on your failure to pay Fees when due, the Equipment will be disconnected from our network, and will have no access to the Internet. You must pay all past due Fees, and any other charges, before we will reconnect the Equipment. If the Services are suspended and the Equipment is disconnected, the Equipment will be recycled in 30 calendar days, and at that time the data on the Equipment will not be recoverable. If your Services are reconnected 30 calendar days or more after your account became delinquent, a Reconnect fee of $150 will apply. No guarantees are made as to the recoverability of any data or configuration if Services are reconnected 30 calendar days or longer after your account became delinquent, and under no circumstances will any data or configuration recovery be performed by us.
5.4. If you believe a Fee charged to you is not correct, you agree to contact us in writing within 30 calendar days of the date when you were charged this Fee, but in no case subsequent to the Due Date (Fee Dispute). Your Fee Dispute must contain a detailed description of the grounds for your dispute (including a reference to the particular paragraph of this Agreement on which your claim is based), and be in sufficient detail for us to determine the basis and underlying causes for the Fee Dispute. We will then have 30 calendar days to review the Fee Dispute, and either accept or reject it. If we accept it, you will be credited the amount of the disputed Fee. If we reject it, we will provide you with a written explanation of the basis of our rejection. We will then each have 30 calendar days to resolve our dispute. If the Fee Dispute is not resolved within this period of time, we may each pursue our remedies pursuant to paragraph 14.5 entitled "Choice of Law, Jurisdiction and Venue." You may only dispute individual Fees. You may not withhold payment on your entire account because you are disputing a Fee.
5.5. Legal costs associated with indemnification will be billed to your credit card on file, or, if no credit card is on file or if charges are declined, you will remain responsible for these costs, and any additional costs associated with their collection. Non-payment of our invoice for these costs will result in your account being considered delinquent and disconnected, as set out in paragraph 6.1 of this Agreement.
6.1. Termination for material breach
Either party may terminate the Agreement, or a particular Service, for the other party's material breach. The party claiming a material breach must provide written notice to the allegedly breaching party and 60 calendar days to cure. Any notice must contain sufficient information that would allow the allegedly breaching party to cure the material breach. The term "material breach" shall be determined from the perspective of a reasonable business person experienced in web hosting products similar to the Services. Your termination of the Agreement, or a particular Service, is your sole and exclusive remedy for our material breach. The following activities shall be considered a material breach on your part, entitling us to immediate termination of the Agreement without opportunity for you to cure or refund of any Fee: (i) failure to pay Fees when due; (ii) failure to cure your, or an End User's, violation of the Agreement; or (iii) failure to cooperate with our security requests, or engaging in any activity that endangers our network, network stability, or materially endangers our other customers. Either party may terminate the Agreement, or a particular Service, immediately if a material breach is incapable of cure.
6.2. Termination by You
6.2.1. Termination through your myCP® control panel. You may terminate the Services through your myCP® control panel (Termination Request) within 30 calendar days of the Renewal Date, within 30 calendar days of the alternate requested Termination Date, or in accordance with the breach and cure provisions set forth above. The myCP® control panel is the required way to terminate the Services. We will send you an email verification of the Termination Request (Termination Verification). You must acknowledge the Termination Verification in order to complete termination of Services. If you do not acknowledge the Termination Verification, or, you fail to use a Termination Request to terminate the Services, the Services will not be terminated and Fees will still be charged. You must follow this procedure in order to terminate each Service. Once you provide us with the Termination Verification, it may take us up to 5 calendar days to process the termination. Once the termination is processed, the soonest possible day for your Services to be terminated is 30 calendar days from the date of receiving and verifying your Termination Verification. You are responsible for any Fees that accrue during this period. We recommend that you submit a Termination Request at least 35 calendar days prior to your desired date of termination.
6.2.2. Alternate Termination. Only if you have no access to your myCP® control panel, you may use the following alternate acceptable methods of Terminating Service (Alternate Termination Request): Send registered mail or fax to:
Superb Internet Technologies Inc. / CherryRoad Technologies Inc.
6 Upper Pond Road
Parsippany, NJ 07054
All mailed or faxed termination requests must include, at minimum, the full company and individual contact name and email address of the account holder, the customer ID number and the primary domain name, and the last 5 digits of the credit card on file, or, if no credit card is on file, then the identifiable details of the last payment made (such as account number check or wire transfer sent from, exact amount, exact date sent). All requests must be signed by the primary account holder. If any of this information is unavailable or cannot be verified, further verification of the request may be required, or the request should be submitted via myCP®. An Alternate Termination Request will not be processed until all the required information listed in this paragraph is provided and verified by us. The required 30 calendar day termination notice period will begin effective the date the complete Alternate Termination Request is verified by us and confirmed by you (i.e., on the day when we have received your Termination Verification).
For account security purposes and to ensure the request is received and processed properly by our staff, we cannot accept termination requests by any other means, including telephone or email. All such requests will be directed to our acceptable methods of Termination Request.
- 6.3.1. We may terminate a particular Order Form, or aspect of the Services, if a Third Party ceases to make components of them available to us, or if providing them to you becomes cost prohibitive as set out in paragraph 2.3.2 or 30 calendar days prior to the end of the Initial Term or any Renewal Term.
6.3.2. On termination of the Agreement, SI shall be entitled to immediately block the Services and to remove all data located on the Equipment.
6.3.3. Following termination, the space used on the Equipment for the Services (or, if applicable, the Equipment itself), IP space and Back-Up Services (if any), are recycled. It is your obligation to ensure that you arrange to complete the transfer of anything you need from the Services and/or Equipment on the Termination day prior to 12:00 am in the time zone of the particular data center in which the Services are provided. We have no obligation to forward mail following Termination. You remain responsible for your data, and any subsequent disclosure arising from your abandonment of it. We will use commercially reasonable efforts to securely dispose of data should you fail to remove it.
7.1 The individual listed as the "Name" contact for an Organization's account is the owner of the account and is personally liable for the fulfillment of the Term Contract obligations, if applicable, and any and all other account payment obligations, acts as a personal guarantor and authorizes us to conduct periodic credit checks.
7.2 Upon learning of an ownership dispute, we may lock the account and prohibit transfer of the account to another entity, and require judicial resolution of the ownership dispute.
7.2. If you administer the account on behalf of another individual or entity, you agree that you will do so on a good faith basis. You agree to indemnify us against all losses and liabilities we sustain should you administer the account in ways that are adverse to an End User, the actual owner of the account, and such an activity results in a claim against us or a third party.
7.3. Ownership Disputes. Accounts will only be transferred after we receive a transfer request signed by a representative with power to bind the organization, and only if the account is in good standing. We may, at our discretion, require additional information and perform security verification prior to acting upon the transfer request. The new owner of the account must agree to this TOS, related policies incorporated by reference and provide a new credit card for billing purposes.
8.1. SI and its licensors retain ownership of all intellectual property rights in the Services. SI grants to you a non-exclusive, non-transferable, royalty free license to access and use the Services. This license terminates upon expiration of the Agreement. All trademarks, product names and company names or logos used by SI are SI property or that of their respective owners. No permission is given by SI to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner's rights. You are not permitted to circumvent any devices designed to protect our, or our licensor's, ownership interests. You are prohibited from reverse engineering any technology used in connection with the Services.
8.2. If we have not provided a license for you to use software as part of the Services and/or Equipment, you agree to procure the Required Licenses to use all the Services. "Required Licenses" means any licenses, consents or approvals required to use software, hardware or other items installed on the Equipment, or whose use is facilitated by the Service. You agree to provide us with copies of the Required Licenses promptly upon our written request, and indemnify us from claims based on your failure to procure, or agree to, a Required License.
8.3. You represent and warrant that you and your End Users own all right, title and interest to, or have appropriate license or other right to use, all materials used in connection with or transmitted through the Service (Objects), and will maintain all rights, consents, and approvals required to grant us the right to access, use and/or modify the Objects in connection with our performance of the Service. You agree to provide proof of such ownership or license upon our written request. Furthermore, you represent and warrant that neither you nor your End Users' use of the Objects and/or Services will infringe the intellectual property or other proprietary rights of us or any third party.
8.4. From time to time you may contact us for technical support. The information you provide us to secure technical support may be used by us to improve our products and services (Feedback Information). You agree that Feedback Information of a general nature shall be considered non-confidential and our property. You further assign to us a no-charge assignment to all worldwide rights, title, and interest in all intellectual property rights to the Feedback Information, and agree to help us secure such rights. We shall be free to use such information on an unrestricted basis.
8.5. You grant us, and any third parties we use to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in conjunction with the Services. This license terminates on the expiration or termination of this Agreement. All right, title and interest in your technology shall remain with you, your End Users, or your licensors.
9.1. Reciprocal Warranties
We each warrant to the other that: (i) we each have the power, authority and legal right to enter into this Agreement; and (ii) we each have the power, authority and legal right to perform our obligations under this Agreement and all incorporated provisions.
9.2. Your representations and warranties
You represent and warrant that: (i) you have the experience and knowledge necessary to use the Services and Equipment; (ii) you and your End Users understand and appreciate the risks inherent to you, your business and your person that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Services necessary to take advantage of them; (iv) that you will not violate any applicable laws and/or regulations in your use of the Services; (v) that you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (vi) that you will make back-up copies of all information in a location independent of ours, and will not use our Back-Up Services as your sole back-up; and (vii) that you will pass through the terms of this TOS, AUP and any agreements incorporated by reference to your End Users or require them to be bound by contracts no less protective of our interests as those documents. 9.3. OTHER THAN SET OUT IN THE PARAGRAPH ENTITLED "RECIPROCAL WARRANTIES," WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. IN PARTICULAR, WE MAKE NO WARRANTIES WHATSOEVER ABOUT THE MATERIALS POSTED ON OUR FAQ, SUPPORT, OR OTHER SELF-HELP WEBSITES. YOUR USE OF THIS INFORMATION IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICES WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF. THIS WARRANTY EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM US, OUR EMPLOYEES OR THIRD PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION. SOME STATES DO NOT ALLOW US TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 CALENDAR DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
11.1. We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Services infringe any issued U.S. patent or U.S. registered copyright. This indemnification provision is expressly limited to aspects of the Services which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Services. This paragraph will be conditioned on your promptly notifying us in writing of the claim and giving us full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Services; (ii) replace an individual component of the Services with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Services, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this Agreement with regard to such Services and refund to you the price originally paid by you to us for the Services, or the Fee actually received by us from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based. This shall be your only remedy, and our only obligation to you, should a third party allege that the Services infringe any issued U.S. patent or U.S. registered copyright.
11.2. You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) your use of the Services; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the term "you" as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or Services, the use of which is facilitated by us.
It is each of our responsibilities to ensure that the Internet is used for legitimate purposes. To that end, the acceptable uses of the Services are set out in this paragraph. Because accepted, and unaccepted, uses of the Internet change over time, the acceptable uses below are not an exhaustive list. We reserve the right to prohibit a particular use of the Services as unacceptable if it interferes with our network, business, or accepted Internet standards.
12.1.1. You are responsible for sending mail in accordance with the CAN-SPAM Act. SI will take all reasonable steps to ensure accurate and prompt routing of messages, but it will not accept any liability for non-receipt or misrouting or any other failure of email.
12.1.2. "SPAM" means more than 20 messages sent by you, or on your behalf, that violate the CAN-SPAM Act, endanger our ability to provide mail services to other customers, or jeopardize our network stability.
- 126.96.36.199. SI's services may not be used to send SPAM.
In addition to the definition of SPAM above, Customers or others acting on their behalf may not send email promoting or advertising domain names, URLs or e-mail addresses hosted by SI. See RFC2636 for more information on SPAM.
188.8.131.52. Other Commercial Announcements
Neither customers nor End Users may post any commercial advertisement on any public bulletin board system or web site unless it is expressly allowed on that system or web site. Complaints will be handled in the same manner as SPAM complaints.
184.108.40.206. Bulk Mailing Through Superb.net
SI's mail servers are the only servers designed to send Bulk E-mail using the mailing list system that may be part of the subscriber's account. Sending Bulk (or Broadcast) e-mail through or from any Superb.net owned server that is not expressly designed to handle mailing lists is strictly prohibited. This specifically includes, but is not limited to, Superb.net web servers running any operating system or combination of server software. Violations of this policy may lead to sanctions permanently or temporarily inhibiting the ability to send any mail from those servers or total account termination at SI's sole discretion.
220.127.116.11. Mail Bombing
"Mail Bombing" is sending more than 10 substantively similar e-mails to the same recipient in any 24-hour period.
SI's systems may not be used to engage in Mail Bombing.
Usenet is a distributed hierarchy of publicly accessible forums primarily defined by RFC1036.
- 18.104.22.168. Usenet Spam
"Cross-posting" is posting a single Usenet message that is marked as appearing in multiple newsgroups.
"Multi-posting" is repeatedly posting identical or substantively similar messages. Multi-posting is considered bad because each copy of a multi-posting must be separately distributed across Usenet, whereas a cross-posted message need only be transferred once (even though it appears in multiple newsgroups).
Briedbart Index. In order to quantify how bad a multi-posted or cross-posted message is, the Briedbart index is used.
If during any 45-day period, a series of substantively similar messages are posted, the first cross-posted to n1 groups, the second to n2 groups, the third to n3 groups, etc., the Briedbart index of that series of postings is calculated as the sum of the square roots of n1, n2, n3, etc.
22.214.171.124. Prohibition of EMP
Excessive Multi-Posting (EMP). EMP is any series of substantively similar postings with a Briedbart index greater than 20.
SI's systems may not be used for EMP. Customers or others acting on their behalf may not engage in EMP promoting or advertising domain names, URLs or e-mail addresses hosted by SI.
126.96.36.199. Off-Topic or Commercial Posts in Blogs and Forums
- 188.8.131.52.1. Definitions
Charter - Many newsgroups, blogs and forums have charters which place restrictions on what messages may be posted to them. Charters can be searched for here: http://www.faqs.org/faqs/faqsearch.html.
Off-topic - Where a charter exists for a newsgroup, blog or forum, a message posted to it which violates that charter is "off-topic."
SI's systems may not be used to post off-topic messages. Customers or others acting on their behalf may not post off-topic messages promoting or advertising domain names. URLs or e-mail addresses hosted by SI are also prohibited.
IRC-related programs, including, but not limited to, clients, bots, and servers, may not be run using SI's Services. No connections to IRC or IRC-like servers or hosts may be made from SI's Services.
Customers may not make use of the multicast protocol unless they have a written and signed exemption to this rule from SI. Customers using the multicast protocol without prior written authorization will be billed up to $500 per hour that multicast is used.
184.108.40.206. Open Proxies
Customers may not make use of proxy servers that are not protected by a username and/or password or restricted to specific IP addresses to make indirect network connections to other network services. This includes, but is not limited to, SOCKS proxies, Web proxies, Network address translation (NAT) proxies, Web-based proxy servers and open SMTP relays.
SI expressly reserves the right to suspend or terminate, without notice, all Services for any customer who violates the acceptable uses set out in this Agreement. The sub-sections in this section are only presented as a guide to how complaints are normally handled; however, we reserve the right to take immediate action without notice if necessary to protect our network or business. In such a situation, mere complaints about any violation or unacceptable activity may lead to suspension or termination of any Service or Services offered by SI. No refunds are provided for Services terminated because of any violations of our AUP.
If practical, we will contact you (either by a ticket via myCP®, e-mail or telephone) before any action is taken. Where SI believes that the violation was accidental or will not be repeated, SI may, at its discretion, choose to re-enable Services. In these circumstances, SI may also place restrictions or further conditions on your use of SI's network, require a formal undertaking from you regarding your future conduct or require payment to cover costs incurred by SI In dealing with the abuse incident. In certain circumstances, SI may suspend your Services in the interests of preventing further abuse while SI investigates.
220.127.116.11. Consequences of UBE and UCE Complaints
UBE and UCE are a material breach of this Agreement, and will be dealt with firmly by SI. Since it is true that complaints do come in about UBE or UCE and the complainant is actually a valid subscriber, there is an allowance as follows: the responsibility lies on Customer to make sure their mailing lists are kept up to date and clean of all non-subscribers. Even responded to warnings under this section will count against the total for subsequent offenses.
18.104.22.168. Two or More Complaints in One 24-Hour Period
If UBE or UCE generates 2 or more complaints in one 24-hour period, Customer will be notified of those complaints with copies of the reported e-mails. This one chance will be given to cease this activity, secure the network from relaying/abuse, or unsubscribe those who filed the complaints.
22.214.171.124. Five or More Complaints in Three Consecutive 24-Hour Periods
If UBE or UCE generates 5 or more complaints in three 24-hour periods, Services will be suspended for 10 calendar days. Customer will be notified of those complaints with copies of the reported e-mails. It will be the responsibility of Customer to request reconnection when the ten-day suspension period has expired. A reconnection fee, equivalent to the normal account/service set-up Fee, will apply.
126.96.36.199. Eight or More Complaints in Five Consecutive 24-Hour Periods
If UBE or UCE complaints indicate an open relay or open proxy, or SI discovers an open relay or open proxy through the course of business, Customer will be notified after the Service is suspended. Restoration of the Service will require written acknowledgement of the reason for suspension and either:
1) An indication that the security issue will be remedied including how this will be achieved; or
2) Customer pays SI to remedy the security issue on the Customer's behalf.
If any Services used by Customer, or End User, are found to be the cause for any part of SI's network being blocked or "blacklisted" by any third party in any way, SI reserves the right to terminate some or all Services offered by SI without notice. It is the responsibility of Customer to ensure that it and its End Users are not abusing SI's network and causing problems for other customers.
12.2.1. You may not allow any remote code execution of malicious software.
12.2.2. You may not engage in activity that may be reasonably interpreted to be malicious or harmful.
12.2.3. You must comply with Intellectual property protections.
- 188.8.131.52. Copyright Infringement
SI is registered with the United States Copyright Office pursuant to the Digital Millennium Copyright Act (DMCA). The DMCA contains very specific criteria setting out what an allegation of copyright infringement must contain. The criteria are available at http://www.copyright.gov/title17/92chap5.html#512. SI is not required to respond to notices that do not fall within these criteria. Please review them carefully. Under Federal Law, you may be subject to civil penalties if you misrepresent your copyright interest in a DMCA complaint.
SI's designated agent for receipt of notices pursuant to the DMCA is:
Superb Internet Technologies Inc. / CherryRoad Technologies Inc.
6 Upper Pond Road
Parsippany, NJ 07054
If we receive notice that content on your site allegedly violates the DMCA, we are required to take certain actions. It is important in that case that you understand your rights and obligations. We cannot advise you on these.
184.108.40.206. Other Intellectual Property Infringement
Customers, and End Users, may not engage in activity that infringes or misappropriates the intellectual property rights of others. This includes, but is not limited to, trademarks, service marks, trade secrets, software piracy and patents. Complaints about such activity by customers or End Users may be directed to .
Customers determined to have infringed another entity's trademark will be required to remove the infringement from the site in question completely. Customers who wish to protest trademark infringement notices will be required to follow our standard abuse procedures. Failing to do so promptly may result in immediate service suspension for the account in question. 220.127.116.11. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on licensed products.
18.104.22.168. You may not reverse engineer, decompile, or disassemble licensed products.
Under no circumstances may SI's systems be used to gain access or deny access to a system or attempt to gain or attempt to deny access to a system without the permission of the system's owners (or rightful users).
A Denial of Service (DoS) attack is designed to disproportionately consume the resources of a system in order to reduce its ability to serve its function. Under no circumstances may SI's network be used in DoS attacks.
Abnormal traffic shapes may cause detrimental effects to other users and/or the network, and, in extreme cases, may have DoS attack-like effects.
12.2.5. You are solely responsible for maintaining the security of access codes, authorization codes, and passwords.
- 12.3.1. You agree to comply with all applicable international and national laws that apply to the Services, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
Customers must ensure that their packets per second (pps) ratio is below 1 packet/second per each 1000 bits/second (i.e., 1 pps per 1 Kb/s). Any higher pps to bandwidth ratios are a material breach of this contract and will result in immediate termination. Furthermore, Customer will be liable for a minimum fine of $500 per hour that the pps ratio is exceeded, or greater based on the scope of the effect on other users and/or the network.
12.5. Probes and Scans
- 12.5.1. Definitions
Port-Scan - A "port-scan" is making multiple attempts to connect to a computer on different ports in order to determine the services it provides.
Sweep - A "sweep" is a series of attempts to connect to multiple network addresses in order to determine whether they are in use, providing a specific service or to map a network's topology.
Spoofing - "Spoofing" is faking the details of a connection in order to make it appear to come from a different computer, organization or individual without their permission.
12.5.2. Prohibition of Probes, Port-Scans, Sweeps and Spoofing
Probes, port-scans, sweeps and spoofing of systems without the express permission of the owners of those systems is prohibited, and may be reported to law enforcement agencies.
SI reserves the right to use probes, port-scans, sweeps and spoofing on any system connected to the SI network in the course of performing security assessments and threat management.
13.1. All information disclosed by one party (Disclosing Party) to the other (Receiving Party) in connection with this Agreement shall be treated as confidential (Confidential Information) and (i) Receiving Party shall hold such Confidential Information in strict confidence using the same standard of care as it uses to protect its own confidential information but not less than reasonable care, and (ii) Receiving Party shall not use or disclose such Confidential Information for any purpose except (A) as necessary to fulfill its obligations under this Agreement, provided that Receiving Party shall limit access to such Confidential Information to such of its employees, agents and subcontractors who need such access to fulfill Receiving Party's obligations under this Agreement and Receiving Party shall require such persons to abide by the provisions of this Section, (B) as permitted by our policies, or (C) as required by law. Confidential Information shall not include information which (a) is now, or hereafter becomes, publicly known or available through lawful means, (b) is rightfully in Receiving Party's possession, as evidenced by Receiving Party's records, (c) is disclosed to the Receiving Party without confidential restriction by a third party who rightfully possesses and rightfully discloses the information, (d) is independently developed by the Receiving Party without any breach of this Agreement, or (e) is the subject of a written permission to disclose provided by the Disclosing Party.
13.2. Notwithstanding the above, we may disclose your name and address to law enforcement authority if in our reasonable discretion it is necessary or appropriate to do so.
13.3. We have no obligation to inform you, or an End User. that Confidential Information has been disclosed to law enforcement authorities, and in some cases may be prohibited by law from giving such notice. We may also disclose Confidential Information when it is necessary for us to protect our business, or others, from harm.
13.4. We are not required to provide information to you in conjunction with any civil litigation. If we choose to provide this information to you, it will be subject to a separate agreement, and you will be charged for our expenses in providing this information, including legal fees.
13.5. If a law or regulation compels disclosure of Confidential Information we have about you, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the account owner as set out in our records. We are not required to respond to demands by you that we provide Confidential Information about your account as part of your litigation. If we agree to do so, we will charge you an administrative fee of $300 per hour, charged in one hour increments, for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.
14.1. Each of our rights and obligations set out in this Agreement are undertaken as independent contractors. Neither of the parties shall have the right to create an obligation on behalf of the other, unless expressly set out on an Order Form.
14.2. During the Term and for a period of 3 years after the termination of this Agreement (the "Non-Solicitation Period"), you shall not solicit, discuss employment with, offer employment to, offer a contract to, nor otherwise use, hire, or utilize the services of any employee of SI or any person who has been employed or exclusively contracted by SI or is employed by any affiliate of SI and that affiliate provides aspects of the Services to you. You agree and acknowledge that the promises in this paragraph are reasonable in duration and scope and are necessary for the preservation of SI's goodwill and Confidential Information and for the protection of SI’s relationships with its customers, clients and employees. You further acknowledge and agree that a breach of any of the promises in this paragraph will cause immediate and irreparable damage to SI. Therefore, you agree that in the event of any breach by you, SI will have the right to obtain temporary, preliminary and permanent injunctive relief by any court with jurisdiction, so as to restrain any breach or to order specific performance of any provision of this Agreement, in addition to any other remedies available to it. Should any employee begin employment with you, you agree to pay SI two times the annual salary of that employee as compensation to SI for the disruption to its business by your action. This payment shall be in addition to, and not in lieu of, any other remedies available to SI.
14.3.1. Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or such other address as such party may from time to time have communicated to the other in writing. Notices shall be deemed received upon confirmation of receipt.
14.3.2. You are required to provide notices to us about the Services through the control panel. We will provide notices to you using the information you provide to us in the "My Details" section of the control panel. We have no responsibility for misdirected notices based on your failure to provide correct information.
14.3.3. Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:
Superb Internet Technologies Inc. / CherryRoad Technologies Inc.
6 Upper Pond Road
Parsippany, NJ 07054
14.4. Force Majeure. Except for the obligation to pay the Fees, neither party shall be liable to the other for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event more than 10 calendar days from the beginning of the event.
14.5. Choice of Law, Jurisdiction and Venue. All disputes shall be brought before the U.S. District Court for the District of Hawaii (District Court). The parties agree that this court shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Agreement or any other document entered into by the parties. Should the District Court be unwilling, or unable to exercise jurisdiction over a dispute, the parties agree to bring suit, and that jurisdiction and venue shall be proper before the appropriate Hawaiian state court located in Honolulu, Hawaii. The parties agree that venue shall be proper in the courts set out above, and agree that they shall not contest notice from either court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of Hawaii, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
14.6. If any provision of this Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
14.7. No waiver of rights under this Agreement, or any of our policies, or other agreement between the parties shall constitute a subsequent waiver of this or any other right under this Agreement. Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
14.9. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
14.10. The terms of this Agreement are intended by the parties to be the final expression of their agreement with respect to their subject matter and this Agreement may not be contradicted by evidence of any prior or contemporaneous agreement, except as expressly set forth herein. The parties further intend that this Agreement, including the SOW, shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding involving this Agreement.
14.11. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instrument in writing executed by the parties.
14.12. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit, nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of this Agreement.
14.13. Paragraphs 8, 9.3, 10, 11 and 14 shall survive the termination of this Agreement.
Shared - Section AThis Section incorporates by reference the Product Pages entitled "Shared Accounts" and "GridIron Platform."
1. Shared accounts cannot be transferred or used by anyone other than you. You may not sell, lease or assign the connection or parts of the connection to any party not named in our records. You may allow FTP access, SSH access, customer branded end user myCP® access, and host websites for your customers without violating this contract.
2. Shared IP. Your IP address (dedicated or shared, as applicable) may be changed to another IP address upon reasonable notice.
3. Fair Use. In instances in which an excessive amount of network, storage or processing resources are utilized by you, we reserve the right to place bandwidth, traffic, disk space, and/or CPU process limits on the Services to prevent the disruption of other customers. If your account usage exceeds these Fair Use guidelines, you may be required to upgrade your account or service type. Failure to do so within a reasonable timeframe will result in termination. We are the sole arbiter of what is considered to be high resource usage. For shared hosting accounts, excessive use thresholds include but are not limited to:
- database queries may not exceed 10% of system resources in any second
- database and general processing resource usage (CPU load, I/O, etc.) not to exceed 250% of that of other customers with the same account type average usage over the last comparable period
- there may be no more than 20 simultaneous processes
- no more than 10% of the GridIron® currently hosting server CPU for a period longer than 5 seconds
- no more than 64 MB of the server memory resources at any given time
- no more than 20 simultaneous connections from a single IP
- no more than 10Mb/s peak network activity
- While the traffic on the GridIron Platform accounts is unlimited, the bandwidth is limited as follows: (a) 95th percentile daily (any 24 hour period) bandwidth: 256 Kb/s for GridLITE, 512 Kb/s for GridPRO and 1024 Kb/s for GridMAX; (b) average monthly (any 30 day period) bandwidth: 128 Kb/s for GridLITE, 256 Kb/s for GridPRO and 512 Kb/s for GridMAX. Any and all other legacy account types are at the GridPRO limit levels.
Shared email customers may not exceed 100MB of data downloaded per day on a standard email plan of 250MB on a high volume plan (at an additional fee). Data downloads over 250MB per day are not permitted on the shared email platform.
- Disk Space. The disk space allocated to a shared web hosting account is to be only used for files directly related to your shared web hosting. You may not use this disk space for online file storage, sharing, archiving, or backup, even if doing so is incident to the shared web hosting services. You may have one (1) duplicate "backup" of your website files (up to 30 days old) on the server for the purposes of backup, testing or deployment. Any additional backups must be stored elsewhere and not on disk space allocated for your shared web hosting. Files which have been determined by us to be in violation of this policy are subject to immediate deletion, following ten (10) calendar days' written notice to you.
Cloud & VPS - Section BThis Section incorporates by reference the Product Page entitled "VPS Accounts."
1. Description of Services. Our Virtual Private Server (a.k.a. "Cloud") Services allow you to connect with our network using a portion of a server partitioned in a manner that allows you to have virtual control over all features and aspects of that server, other than certain preset characteristics ("Virtual Dedicated Product"). The Virtual Dedicated Product features and access speeds are set out on the Product Page.
2. Your use of the Equipment provided to use the Virtual Dedicated Product is not exclusive. You will take no actions to limit the use of the Equipment by our other customers or other entities in general. You will not alter, or attempt to alter mechanisms, including software, implemented by us to facilitate the sharing of the Equipment. You understand that certain aspects of the Virtual Dedicated Product are designed to facilitate use by multiple parties and these features may affect your use and administration of the Equipment. You may not terminate this contract based on the implementation of these features.
3. We provide Customers with the option of contracting with us to support the Cloud & VPS Product. Customers may purchase support by either enrolling in a pre-paid support plan, or pay-as-you-go. You may order pre-paid support through your control panel, or at the time you request support. All support is provided as is, and as available. Support is specifically subject to the disclaimer of warranties set out in this Agreement.
Dedicated - Section CThis Section incorporates by reference the Product Page entitled "Dedicated Accounts." Because we do not sell Dedicated Service as a standalone product, your Order Form will indicate the additional Services you have purchased. These additional Services are governed by other terms and conditions set out in this Agreement.
1. Sale of bandwidth
1.1. The particular Dedicated Services you choose to be provided by us are set out in your Order Form, described on the Product Pages, and referred to as the "Dedicated Service." If provided, specific Dedicated Service features, access speeds and other items you have initially selected are set out on your Order Form.
1.2. We agree to sell to you the amount of traffic specified on your Order Form. Your use will be the only user of the Equipment; however, we will retain ownership in the Equipment. We will install the Equipment in our data center.
1.3. You have the right to connect to our network, using the Equipment, on a 24 x 7 basis, limited by this Agreement.
3. We provide Customers with the option of contracting with us to support the Dedicated Product. Customers may purchase support by either enrolling in a pre-paid support plan, or pay-as-you-go. You may order pre-paid support through your control panel, or at the time you request support. All support is provided as is, and as available. Support is specifically subject to the disclaimer of warranties set out in this Agreement.
4. Dedicated Service is the combination of Hardware Rental or Lease-to-Own (Section D) and Colocation (Section E). As such, these two sections apply to all Dedicated Customers. In case of the lease-to-own option, the Dedicated Service pricing will be unbundled, including removing any bundle (of colocation and hardware rental) discounts, and change to the standard colocation rate for the Equipment once it is customer owned, past the end of the lease-to-own period.
Equipment Rental / Lease to Own - Section D1. Rental Description
Hardware rental is the standard provided for all dedicated servers (dedicated servers are a combination of hardware rental or lease-to-own and colocation). Hardware rental continues perpetually. We retain the ownership of the rental hardware, and you rent it on a month-to-month or other term commitment (as ordered). Please note that the provisions of Section E (Colocation) will apply to your Lease to Own Service.
The rest of this section applies to the lease-to-own option only.
2. Lease-to-Own Description
We are pleased to provide you with the opportunity to purchase one of the Servers described in the Order Form. The lease to own option is only available to you in conjunction with your acceptance of the Order Form, and the additional terms and conditions set out in this Section D.
Lease-to-own must be chosen at the time of server order; a standard hardware rental dedicated server may not be changed to lease-to-own at a later date, or retroactively.
To participate in the lease-to-own service, you first pay the hardware rental plus lease-to-own fee for one year. After that year, you own the server (and thus only pay the standard colocation fee, plus for any other services - but no longer for hardware rental, for year two and thereafter). Your ownership of the server is conditioned on your account being in good standing throughout that one year term.
3. Acceptable Termination
Upon the occurrence of an Acceptable Termination, all right, title and interest in the Server shall be transferred to you. An "Acceptable Termination" is prompt payment of all Fees, in full, when due, and compliance with this Agreement. Should you fail to pay any Fees when due and/or violate this Agreement, the lease to own aspect of this Agreement will terminate, any Fees paid toward ownership of the Server will be forfeited, and the parties relationship shall be governed by Section C. The earliest that "Acceptable Termination" can occur is after one year of your ownership of the Server (at the end of the 365th day), with timely payment of all Fees due up to that date. From the second year (366th day of service and on), the Service continues as colocation, at the standard colocation rate (any and all hardware rental plus colocation bundle discounts are removed at this time of unbundling the hardware rental plus lease-to-own aspect from the colocation) applied to Customer owned hardware plus any additional Services.
4. Lease to Own
In accordance with the terms and conditions of this Section D and the Agreement, we agree to lease to you, and you agree to lease from us, the units of personal property set out in the Order Form and referred to in it as the "Server." Except as specifically modified in this Section D, the terms and conditions set out in the Order Form will apply to your lease of the Server.
5.1. Upon the occurrence of an Acceptable Termination, as set out above, all right, title and interest in the Server shall be transferred to you. Your continued (active or inactive) use of your account/Server constitutes your acceptance of the Server in the condition at the time of transfer of ownership. You are encouraged to inspect the condition of the server at the time of Acceptable Termination. However, if you choose not to inspect the server within 10 calendar days of an Acceptable Termination, your continued use of the server indicates your acceptance of the server and its condition "AS IS." Your continued (active or inactive) use of your account/Server also constitutes your release of us from any and all obligations we may have with respect to the Server, and your agreement to look to the manufacturer(s) of the Server and its components for any issues related to its operation.
5.2. You are responsible for all taxes and fees imposed on the transfer of ownership of the Server from us to you.
5.3. Until the transfer of ownership from us to you, we reserve the right to file reasonable documentation signifying our ownership in the Server, and to place such notices directly on the Server in a manner that does not interfere with its day-to-day operation. You agree to cooperate with us in those efforts.
5.4. After the transfer of ownership, and as long as you colocate your Server with us, we will extend to it the manufacturer's warranty, if any in effect at the time of your request, for all of its hardware components. This warranty will not be extended by us if your Server is no longer colocated with us. By removing your Server from our facility, you expressly agree that no warranty is provided on the hardware by us and that you are to contact the respective hardware manufacturers directly for any warranty claims. However, our standard hourly rates will be charged for any and all hardware work we are requested to do on your owned Server unless you have purchased in advance and have in affect at the time of your request the optional Hardware Support service.
6.1. You agree that this lease is a net lease, and acknowledge and agree that it is your obligation to pay all fees and charges payable under this Section D, and our right in these payments, is absolute and unconditional and shall not be subject to any abatement, reduction, setoff, counterclaim or other defense for any reason whatsoever. It is our intent, and an inducement for us to enter into this Agreement, to claim all available tax benefits of the lease to own program with respect to the Servers.
6.2. Should an Acceptable Termination occur, we shall apply to the purchase price of the Server(s) any Fees set out in the applicable Order Form that have been paid by you to that time.
7.1. During the Term of this Section D and applicable Order Form, the Server(s) will remain in our possession, at our facilities. You shall have no right to move or disturb the Server(s) during this Term.
7.2. Upon the occurrence of an Acceptable Termination, and transfer of ownership, you may take physical possession of the Server(s). Upon an Acceptable Termination, you agree that the terms of this Section D shall no longer apply, and the terms of Section E shall govern those aspects of the parties' relationship previously governed by Section D.
7.3. An "Acceptable Termination" is prompt payment of all Fees when due, and compliance with this Agreement. Should you fail to pay any Fees when due and/or violate this Agreement, at any time during the lease-to-own term, even if the breach is later cured, the lease to own aspect of this Agreement will terminate, any Fees paid toward ownership of the Server will be forfeited, and the parties relationship shall be governed by Section C. "Acceptable Termination" occurs after one year of your ownership of the Server (at the end of the 365th day), with timely payment of all Fees due up to that date. From the second year (366th day of service and on), the Service continues as colocation, at the standard colocation rate (any and all hardware rental plus colocation bundle discounts are removed at this time of unbundling the hardware rental plus lease-to-own aspect from the colocation) with Customer owned hardware plus any additional Services.
8.1. We agree to sell to you the amount of traffic specified on your Order Form. Your use will be the only user of the Server, however, we will retain ownership in the Server (as set out herein). We will install the Server in our data center.
8.2. You have the right to connect to our network, using the Server, on a 24 x 7 basis, limited by this Agreement.
10. We provide Customers with the option of contracting with us to support the Server. Customers may purchase support by either enrolling in a pre-paid support plan, or pay-as-you-go. You may order pre-paid support through your control panel, or at the time you request support. All support is provided as is, and as available. Support is specifically subject to the disclaimer of warranties set out in the TOS.
Should any portion of this Section D conflict with the Order Form or Agreement, the provisions of this Section D, the Order Form, then the Agreement shall prevail.
Colocation - Section E1. Colocation Product Description
This Section incorporates by reference the Product Page entitled "Colocation Accounts" located on our website. It also includes the bundled colocation service with all "Dedicated Accounts," whether on a rental or lease to own basis.
SI agrees to sublease the Space as more fully described in the Order Form according to the terms and conditions set out in this Schedule and all other applicable agreements. The products and services we provide pursuant to this Schedule are referred to as the "Colocation Product."
2. Colocation Product
2.1. We have designed the Space to accommodate the location, installation and maintenance of standard Equipment to interconnect with our network.
2.2. You may not sublet or assign your rights under this Agreement, or rent, sell, transfer or otherwise allow others to use the Space or any equipment located therein without our prior written authorization, which consent may be withheld by us in our sole discretion.
2.3. We encourage you to inspect the Space and ensure that it meets your needs. It is provided AS-IS. We make no representations or warranties as to the fitness of the Space for your intended use. You are responsible for all hardware, software, cabling, services and components not provided by us which are required for you to use the Space (Customer Equipment). We are not responsible for Customer Equipment. If the Customer Equipment is not compatible with the Space, or our equipment and/or network, you will still be bound by your Agreement with us. You are required, at your expense, to adequately secure, mount and otherwise ensure that the Customer Equipment does not present a danger and is installed pursuant to SI's specifications.
2.4. Upon notice from us that the Customer Equipment causes, or is likely to cause, a hazard, interference or obstruction of the Colocation Product, you shall remove the Customer Equipment, or portion of it, causing the interference, and we may disconnect the Colocation Product until the interference ceases.
2.5. We will make available to you all of the services provided by the landlord of the Space as they are made available to us. We are not responsible for the operations of the Space, other than as set out herein. You agree to look solely to the landlord of the Space for any damages, claims or losses caused by the operation of the Space. You are responsible for the installation, maintenance and connectivity of the Customer Equipment within your Space, and agree that you will conduct your operations, access the Space and operate the Customer Equipment in a safe and workmanlike manner in accordance with the industry standard for those activities.
2.6. Neither you, nor your agents or contractors, shall make any alterations or improvements to the Space prior to submitting plans and specifications for those improvements to us and receiving our prior written consent. Once these alterations or improvements are made, they will be considered fixtures, and may not be removed by you - unless you are directed to remove them by us. Upon termination, expiration or cancellation of your Colocation Services, you shall return the Space to the manner in which it existed upon commencement of the Agreement. If you do not remove Customer owned Equipment, you will be liable for the cost of removal, disposal and restoration of the Space to its original condition.
2.7. Upon our notice to you, you will take all actions reasonably necessary to comply with the requirements of any underlying agreement or instrument related to, or encumbering, the Space. In the event that any underlying agreement or instrument terminates, the Order Form governed by this Schedule shall automatically terminate. We shall not be liable for any damages related or caused by such a termination.
2.8. You, your employees, agents and contractors shall abide by all applicable laws, regulations, tariffs, rules and policies related to the Space. We have the right to limit your access to the Space if necessary to carry out our business. If we determine, in our sole and exclusive discretion, that your employees or agents are acting in a way that impairs our business, or that of our other customers, we may restrict their access to the Space.
2.9. Access to the Space must be pre-arranged and escorted. You will be charged our then current Fees for this access.
2.10. We may, upon reasonable notice to you, require you to relocate to another space; provided, however, that such other space shall afford reasonably comparable access, environmental conditions and facilities.
2.11. To secure the payment of the Fees, you grant to us a continuing security interest in, and lien upon, the Customer Equipment. In the event that you fail to pay us any amounts owed to us under any contract or Order Form with us, we shall restrict your physical access to the Space and Customer Equipment. You shall have 10 calendar days after receiving written notice from us to cure the payment delinquency. During this period, we shall continue to provide Services. If the payment delinquency has not been cured within 10 calendar days after you receive written notice from us, we shall: (i) end such Services; (ii) continue to restrict your physical access to the Space and Customer Equipment; and/or (iii) take possession of the Customer Equipment and store it, at your expense, and exercise all remedies available under the law applicable to the particular Order Form, all without being liable for prosecution or for damages.
3.1. Notwithstanding other provisions of the Agreement, Fees for the Colocation Product accrue upon the earlier of: (a) your use of the Colocation Product; (b) provision of the Colocation Product to your interface; or (c) your acceptance of the Colocation Product (each a "Service Commencement Date"). You are responsible for all Fees associated with transmissions from your Colocation Product, regardless of whether they originated from you. Invoicing for the Monthly Recurring Charge (MRC) will be monthly in advance for fixed and committed bandwidth. The MRC shall begin on the Service Commencement Date. Any Burst Usage (as defined in this subparagraph) shall be billed monthly in arrears. The burstable portion of the Colocation Product is billed on a usage basis in arrears (Burst Usage). Burst Usage shall be calculated as follows:
- 3.1.1. For Colocation Products that are provisioned on a per server basis, traffic is calculated as the sum of the total gigabytes per billing month transmitted and received by the switch on the server's front-end network (public) port. You will be billed the standard overage rates for any GB/m (gigabytes per month) in excess of your service included traffic amount. Traffic transmitted on the back-end (private network, no Internet access) port, if any, is not metered or billed.
3.1.2. For Colocation Products that are provisioned on the basis of one-half of a rack and greater, bandwidth is measured (sampled) from the switch every 5 minutes. At the end of the billing month (term), the samples are sorted from highest to lowest, and the top 5% (which is equal to approximately 36 hours of a 30-day billing cycle) of data is thrown away. The next highest measurement becomes the "billable utilization" for the month - the 95th percentile amount. You will be billed the standard overage rates for any Mb/s (Megabits per second) in excess of your service included bandwidth amount.
3.3. In the event of a Customer Equipment failure, the contracted bandwidth is still available and therefore continues to be chargeable as set out in this Agreement.
3.4. We work under the ARIN policy of allocation of IP address space and may only provide IP addresses to customers if they adhere to ARIN's terms and conditions.
3.5. Colocation service can be only terminated on the latter of: (a) the accepted and confirmed Termination Date (as defined earlier in the Terms of Service), or (b) the date of removal of all your equipment/property from the data center. Failure to remove any of your equipment/property from the data center by the Termination Date will null and void the termination request. The colocation service will continue, at the standard month-to-month rates, until a new accepted and confirmed Termination Date and the removal of all your property from the data center. Customer equipment storage fees are equivalent to the colocation fees.
4.1. During the Term of the Colocation Service, you, at your expense, shall obtain and keep in full force and effect at all times for the duration of this Agreement, insurance policies of the following kinds and in the following amounts: (i) Comprehensive General Liability Insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury or property damage; (ii) Employer's Liability in an amount not less than one million dollars ($1,000,000) per occurrence; (iii) Workers' Compensation in an amount not less than that prescribed by statutory limits; and (iv) adequate insurance coverage to protect the Customer Equipment as installed within the Space. You shall furnish us with certificates of such insurance upon request. Each policy shall provide that no change or cancellation shall become effective except upon 30 calendar days prior written notice to us of such change or cancellation. In the event of any change or cancellation not acceptable to us, we may demand that you obtain replacement coverage. If you fail to obtain replacement coverage within 10 calendar days after such demand by us, you will be in default of this Agreement. You waive your right, and your underwriters right, of subrogation against us, our officers, directors, agents, and employees thereof, and corporate shareholders and their officers, directors, agents and employees thereof, providing that such waiver in writing, prior to loss does not void or alter coverage. SI, and SI's affiliates, shall not insure or be responsible for any loss or damage to property of any kind owned or leased by you or your employees, servants and agents. Any policy of insurance covering the property owned or leased by you against loss by physical damage shall provide that the underwriters have given their permission to waive their rights of subrogation against us, our affiliates and their directors, officers, and employees, as well as their subsidiaries, including the director, officers and employees thereof.
4.2. If you utilize contractor(s) to perform any part of this Agreement, then you shall require such contractor(s) to comply with these insurance requirements and supply certificates of insurance to us before any work commences.
Except in the case of emergencies we will attempt to notify you no less than 24 hours prior to any scheduled service, maintenance or alteration of the network which would in our judgment affect you. Wherever reasonable and practical, we will endeavor to perform these activities in such a way as to minimize any interruption of service. Our routine network maintenance window is 11:00 PM to 5:00 AM local time at the data center.
6. Limitation of Liability
6.1. We only provide access to the Space and the Colocation Product. We have no liability for anything outside of these items, and our liability for the Space and the Colocation Product is limited by Section 10 of this Agreement.
6.2. In addition to the specific limitations of liability set forth in other paragraphs in this contract, and in our colocation rules, we shall not in any case be liable for any of the following: (i) 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; (ii) your acts, or the acts of your customers, End Users, employees, agents or invitees; and/or (iii) the acts of other lessors of Space from us or any other entity.
6.3. We shall only be liable for damages to or theft of Customer Equipment or property located in the Space proximately caused by the gross negligence or intentional acts of us, our agents or employees.
6.4. The limitations of liability set out in this paragraph are in addition to, and not in lieu of, limitations of liability and other similar paragraphs set out in Section 10 of this Agreement.
Without prior approval, you may not use the Space to interconnect with telecommunications service provided by parties other than us, or to run any interconnects between your Equipment that is not directly adjacent. We may charge an interconnection or cross-connect fee for such a service.
Professional Services - Section F1. Services
1.1. We agree to undertake and complete the tasks set out in the Statement of Work (SOW) in accordance with, and on, the schedule set out therein (Professional Services). We also agree to provide the Goods defined in the SOW. In some cases these Goods will be licensed to you, rather than sold. You agree to be bound by the terms of any license agreement covering these Goods.
1.2. We will devote reasonable time and effort, skill and attention to the performance of the Professional Services. Provided, however, that we will not be required to perform Services (including Professional Services not set out in the SOW) above and beyond those set out in the SOW unless agreed upon in writing. We are not responsible for the failure to provide Professional Service(s) set out in the SOW due to technical limitations or configurations or failure by you to provide accurate information necessary to perform the Professional Service(s). You will be billed only for hours of work completed.
1.3. The Professional Services shall be performed by us as an independent contractor. If set out in the SOW, we shall be your agent solely for the purpose of purchasing, and if necessary entering into license agreements for, the Goods. Other than the specific acts set out in the previous sentence, we shall not have the power to bind or represent you for any other purpose.
2.1. You will furnish us with all the data and information required by us to perform the Professional Services, as well as reasonable access to key personnel who have the requisite knowledge and experience to provide material assistance to us.
2.2. You will promptly obtain, and upon our request provide to us confirmation that you have received, all "Required Consents." Required Consents means any consents or approvals required to give us, and if necessary, our subcontractors the right or license to access, use and/or modify, the hardware, software and other products, data and content that you provide to us to perform the Professional Services, or that we require to perform the Professional Services. If you fail to provide us with the Required Consents, and we are unable to perform the Professional Services as a result, you will remain responsible for the full amount of the Fees.
The Effective Date necessary for us to provide the Professional Services to you is the date on which we accept the SOW. The term of our obligation to provide the Professional Services shall begin on the Effective Date. It shall continue until we deliver to you a statement that the milestones set out on the SOW are completed or this Agreement is terminated as otherwise set out herein.
4. Fees and Expenses
4.1. You will pay to us the fees set out in the SOW. Prior to commencement of any work, the payment for it must be received in full. If the SOW is split into multiple sections and/or milestones, prior to commencement of work on any section or milestone, payment for that section or milestone must be received in full. You will make all payments under this Agreement upon receipt of our invoice. Should you fail to make a timely payment, we will charge you a finance charge equal to the lesser of 2% per month or the maximum rate permissible under law.
4.2. Should you dispute any of the charges set out on an invoice, you shall notify us within 10 calendar days of your receipt of such an invoice. Your notice shall set out in sufficient detail the basis for your dispute. We shall have 30 calendar days from the date of such a notice of dispute to reply. The dispute shall be valid only if the invoice has been paid within 10 calendar days of issue; should an invoice not be paid, or be only partially paid, then you waive all rights of dispute and confirm that it is correct and valid. Should we disagree with your notice of dispute, the parties shall resolve the dispute as set out in paragraph 14.6 of our TOS. You are responsible for all taxes other than those taxes based on our income.
4.3. You will reimburse us for all of our reasonable out-of-pocket expenses in connection with the performance of this Section. Any reasonable expenses, such as media, materials, component procurement, product inventory, license fees and other related expenses required by us to perform our obligations under this Section will be billed to you at actual cost plus 20%. Any out of pocket expenses greater than $500 must be approved by you in advance, in writing.
5.1. Unless set out in the SOW, the Professional Services will be "works made for hire" and/or you shall own all right, title and interest in the Professional Services, to the extent that such right, title and interest is capable of copyright or patent. Subject to any reservation of rights set out in the SOW, we hereby assign to you our entire right, title and interest (throughout the United States and in all foreign countries), free and clear of all liens and encumbrances, other than a lien for any unpaid Fees, in and to intellectual property covered by this paragraph, which shall be your sole property. This expressly excludes any open-source or commercial software or scripts used, that are owned by their respective publishers.
5.2. We agree to assist you at any time, and not just during the Term, in consummating, evidencing or otherwise effecting the assignment of intellectual property covered by this paragraph as provided herein (which shall include any application for or registration or recordation of any patent or copyright), in any and all countries, which assistance shall include the execution of documents and any assignments to you). Standard hourly rates will apply and will be billed, in advance, for any such assistance.
5.3. Certain elements of the Professional Services may be based on our prior work and protected intellectual property. We warrant that we currently have a license or other right to use these elements as part of the Professional Services. You expressly understand and agree that certain intellectual property incorporated into the Professional Services may have been used by us in other projects, and will be used by us in subsequent projects (Template Services). We retain all rights in the Template Services. You shall have no intellectual property interest in the Template Services, other than a right to use them as incorporated into the Services. You grant to us unlimited, royalty-free, non-exclusive right to use, distribute, license, sub-license, sell and/or create derivative uses of the Template Services, regardless of the fact that they have been incorporated into the Professional Services.
5.4 If set out in the SOW, we will jointly own any intellectual property that is jointly developed. If this is the case, we each agree to cooperate to facilitate securing our respective rights in the resulting intellectual property. In addition, we each grant to the other unlimited, royalty-free, non-exclusive rights to use, distribute, license, sub-license, sell and/or create derivative uses of the intellectual property.
Each party is, shall be, and shall act as, an independent contractor. Other than as set out in paragraph 1.3 above, neither party shall represent or hold itself out as the agent of the other.