This Server Co-location Contract, together with the Addendums hereto and a part hereof (herein “Agreement”), is entered into and effective as of ________________ between Webjogger Internet Services, the Internet Service Provider, located at 194 West Kerleys Corners Road, Tivoli, NY 12583-5821 (herein “Webjogger” or “ISP”) and _________, located at ______________________ (herein “Client”).
Webjogger hereby agrees to provide co-location services to Client (hereinafter referred to as “Service” as described in detail in Addendum A, a part hereof) at Webjogger’s datacenter facility located at 194 West Kerleys Corners Road, Tivoli, NY 12583-5821 (herein “Facility”). Services shall be provided in accordance with the terms and conditions herein. In no event shall Webjogger provide any service to Client prior to execution of this Agreement by both parties.
TERM, RENEWAL AND TERMINATION
The initial term of this Agreement shall be 12 months from the date hereof (“Initial Term”), and the Agreement shall automatically renew for an additional 12 month term (“Renewal Term”) unless terminated by either party as provided herein. Either party may, without cause, terminate this agreement upon written notification to the other party at least 30 days in advance of the termination date, said termination to take place at the end of the Initial Term and any Renewal Term. Webjogger may terminate this Agreement for cause for the following: (a) failure of Client to timely pay for Services, as stated in more detail in “Billing” below; (b) if in Webjogger’s opinion Client has violated any terms or conditions of this Agreement, Webjogger’s Acceptable Use Policy (Addendum B attached hereto and made a part hereof), and any other policies, procedures or Agreements of Webjogger that apply to Service hereunder; or (c) if in the opinion of Webjogger Client’s use of Services could disrupt or adversely impact Webjogger’s business operations; provided however that in the event of termination under (b), Client shall have 30 days from receipt of the notice of termination in which to correct any and all deficiencies and/or breaches of this Agreement. Client may terminate for cause in the event Webjogger fails to perform its obligations hereunder, provided Webjogger shall have 30 days from receipt of the notice of termination in which to correct the matter.
Any termination shall not relieve Client of any liability incurred prior to such termination. Additionally, if Webjogger terminates this Agreement for cause, or Client terminates this Agreement without cause, prior to the end of the Initial or Renewal Term(s), Client shall be liable for, and shall pay to Webjogger within 30 days of such termination, all monthly recurring charges associated with the terminated Services for the balance of the Term.
ENTIRE AGREEMENT; AMENDMENT, SEVERABILITY, ASSIGNMENT
This Agreement, and all other documents or agreements cited or referred to in this Agreement, represent the entire agreement between the parties regarding the subject matter hereto, and supersedes all previous representations, understandings or agreements, whether written or oral. Any amendment hereto shall be valid only if in writing and signed by both parties. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement shall remain in full force and effect. Either party may assign this Agreement only with the prior written consent of the other party hereto.
Client agrees access to other networks via the Service shall be in compliance with those networks’ policies and rules. Client agrees such use of other organizations’ networks or computing resources subjects Client to those organizations’ permission and usage policies. Should a conflict arise between those policies/rules and this Agreement, this Agreement shall take precedence. Should a violation of another organization’s policies jeopardize Webjogger’s ability to continue to provide services to other clients via those networks, Webjogger reserves the right to terminate this Agreement in the same manner described above in “Term, Renewal and Termination”.
APPLICABLE LAW; DISPUTE RESOLUTION
The laws of the state of New York shall govern the responsibilities and obligations of each party under this agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration proceedings shall be held in Dutchess County, New York, before a single arbitrator who has special knowledge of the industry or technology involved in the dispute.
In the event such an action is required to enforce the terms of the contract, the reasonable attorney’s fees and costs or the prevailing party shall be paid by the breaching, or losing, party.
All notices required or permitted under this Agreement shall be in writing and shall be deemed given to a Party either (a) when hand delivered to such Party against a receipt therefore; (b) on the next business day after when deposited with a nationally-recognized delivery service with instructions to provide next-business-day delivery and proof of delivery to such Party to Webjogger’s original address or Client’s original address, as the case may be or to such other address of a Party as such party may by notice hereunder designate to the other Party; (c) certified mail with return receipt considered delivered when receipted; (d) facsimile transmission with transaction report delivery considered made at time transmission is received; or (e) email with receipt verification and would be considered delivered when verified.
• Provide the Server(s) and all the additional equipment necessary to connect the Server(s) into Webjogger’s Facility
• Comply with Webjogger’s Acceptable Use Policy (Addendum B), and all of Webjogger’s policies and procedures and other agreements between the parties that apply to Services hereunder, all a part hereof;
• Comply with the rules of other networks when accessing those networks through Webjogger’s network.
• Provide and maintain in effect, all insurance coverage necessary in the mutual, reasonable opinion of Webjogger and Client, and for any systems and/or equipment, which the Client will locate on Webjogger’s premises and provide Webjogger with copies of such policies. Client is advised to adequately insure its equipment against damage or loss and is further advised to maintain Business Interruption Insurance should Client’s equipment not be usable due to loss or damage.
• Hold Webjogger, its customers, agents, employees and assigns, harmless from any and all liability not arising out of such persons or entity’s gross negligence or intentional acts regarding Client’s property while in the care, custody and control of Webjogger.
• Hold Webjogger harmless for any damage to the Client’s equipment from damage due to outside sources, not arising out of Webjogger’s gross negligence or intentional acts.
All Client’s systems which are connected to Webjogger networks shall be configured in accordance with industry standards, applicable laws and regulations, specifically to conform with approved “Request For Comments” standards documents which are published from time to time by the Internet Engineering Task Force (http://www.ietf.org/rfc.html). Webjogger will notify Client of any issues or conflicts in regard to this issue so that client may rectify them within a reasonable time frame.
Systems connected to Webjogger networks shall not be configured in any way which obscures system-identity information.
Proxy servers of any kind shall be configured so as to prevent unauthenticated use from the public Internet.
Client is responsible for promptly reporting to Webjogger any issue which could compromise the stability, service or security of any user or system connected to Webjogger networks.
Physical equipment and/or software products are the Client’s responsibility, including the installation and/or service of such equipment and/or software. Client agrees to be responsible for the use and compatibility of hardware and software. Upon notice from Webjogger that the hardware and/or software in question is causing, or likely to cause hazard, interference or service obstruction, Client shall promptly eliminate the hazard, interference or obstruction to Webjogger’s reasonable satisfaction. Webjogger shall be the sole judge and arbiter of what constitutes such interference, hazard, or obstruction. In the event Client’s use of hardware and/or software impairs the functional utility of the ISP, and Webjogger determines the necessity of interrupting or disconnecting Client’s service, Client shall nonetheless remain liable for Webjogger’s monthly Service fee, as well as any additional repair or replacement costs directly attributable to damage from Client’s equipment.
Client agrees to pay for the Service in accordance with Webjogger’s Billing Rates currently in effect as stated in Addendum C (attached hereto and made a part hereof) of this Agreement. The Rates will be in effect for the Initial Term, and may be changed by WEBJOGGER after the end of the Initial Term or any Renewal Term by giving Client written or e-mailed notice of the new Rates at least sixty (60) days before the end of Term. In addition to the Rates, Webjogger will bill Client for all federal, state, county, and local taxes, surcharges, fees, and universal service contribution on the Services. Charges for the Services will begin upon installation of Client equipment in Facility. One-time set-up fee as described in Addendum C will be due upon signing of Contract. A credit card number is required in all cases to secure Client’s account with Webjogger. Client must keep Webjogger informed of any changes in Client’s credit card information, or Client will be in default under this agreement. Bad checks will incur additional fees of $50 plus any fees incurred by Webjogger to collect sums due including, but not limited to, reasonable attorney’s fees, costs and interest. Bad check fees will be due before continuing services can be rendered.
Client shall be billed on the first of each month, for one month’s service in advance. Payment by Client shall be due to Webjogger within thirty (30) days from the date of the invoice. Accounts with past due invoices will be subject to late fees, consisting of a 1.5% monthly finance charge. Service to past due accounts may at Webjogger’s discretion be temporarily suspended and those accounts may be subject to a reconnection fee equal to 1/3 of monthly fee once payment in full of all past due amounts is received. Suspension of service does not remove the client from the obligation to pay Webjogger the contracted monthly fees. Client may be considered in Default of the Agreement if payment for any Service has not been made within ten (10) days after Webjogger has sent Client a notice via e-mail that such payment is overdue. If Client is in Default of this Agreement, Webjogger may terminate all Services under this Agreement without further notice to Client in accordance with “Term, Renewal and Termination”.
It is the Client’s responsibility to ensure that any payments Webjogger receives are clearly noted with respect to the account for which they are intended. Termination of Client’s account does not relieve Client’s responsibility under this Agreement to pay all fees and expenses incurred including for Service to the end of the term wherein termination takes place, this includes all fees and expenses incurred by Webjogger including but not limited to any collection fees, attorney fees and expenses, and court costs incurred by Webjogger as a result of termination or clients breach of this Agreement.
LIMITATION OF LIABILITY
Client agrees that its use of Services and any information obtained through or from Webjogger is used at Client’s own risk, subject to Webjogger performing its obligation under this Agreement. Client acknowledges and agrees that Webjogger exercises no control over and accepts no responsibility for the content of the information passing through Client’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVIALABLE BASIS, IN ACCORDANCE WITH THE CURRENT TERMS OF THIS AGREEMENT. NONE OF WEBJOGGER’S EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (HEREIN “WEBJOGGER PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXRESSED OR IMPLIED, INCLUDING BUT NOT LIMTED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT WEBJOGGER PROVIDES. NO WEBJOGGER PERSON MAKES ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGHT THE SERVICES. WEBJOGGER IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIBAILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED WHETHER TO OR FROM CLIENT AND STORED BY CLIENT OR ANY OF CLIENT’S USERS VIA THE SERVICES PROVIDED BY WEBJOGGER, NOR FOR LOSS OF DATA FROM DELAYS, NON-DELIVERIES, INCORRECT DELIVERIES, OR SERVICE INTERRUPTIONS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY WEBJOGGER PERSON WILL CREATE A WARRANTY; NOR MAY CLIENT RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
Client agrees that the acceptance by Webjogger of any data, electronic files, or other information shall not constitute a liability for such data or files.
Webjogger’s entire liability, and Client’s exclusive remedy for any damages caused by any Service defect or failure, or for other claims arising in connection with Service or obligations under this Agreement shall be: (a) direct proven damages in the event of real or tangible property damage negligently caused by Webjogger, damages from willful misconduct or breach, or bodily injury, or death of any person and (b) for all other damages other than those in section (a) directly above and not excluded under this Agreement shall be limited to proven direct damages not to exceed in aggregate during any twelve (12) month period an amount equal to the total net payments payable by Client for the affected Service during the one month preceding the month in which the damage occurred. This does not limit Client’s responsibility for the payment of any and all properly due charges under this Agreement.
Neither Webjogger nor Client shall be liable for any indirect, incidental, consequential, punitive, reliance or special damages, including without limitation, damages for lost profits, advantage, savings or revenues of any kind or increased cost of operations, whether or not either party has been advised of the possibility of such damages. Webjogger also shall not be liable for any damages arising out of or relating to: inoperability, interaction, access or interconnection problems with applications, equipment, services, content or networks not provided by Webjogger; service interruptions or lost or altered messages or transmissions; or unauthorized access to or theft, alternation of or destruction of Client’s users or third parties’ applications, content, data, programs, information, networks or systems, except to the extent caused by Webjogger’s gross negligence or willful misconduct. The limitation of liability set forth herein shall apply regardless of the form of action, whether in contract, tort, strict liability, equity or otherwise; and whether or not damages were foreseeable. These limitations of liability shall survive (a) failure of any exclusive remedies provided in this Agreement and (b) any termination of this Agreement.
Client agrees to indemnify Webjogger and hold Webjogger harmless from all losses or damages (including but not limited to court costs and reasonable attorneys’ fees) to the extent caused by Client’s failure to abide by the material Terms and Conditions of this Agreement.
Client agrees to hold Webjogger harmless for lack of performance or delay caused by acts of God, natural disasters, fire, theft, war, riots, embargoes, strikes or acts by its vendors and suppliers, concealed acts of workers (whether of Webjogger or others) or accidents, and attacks by vandals or ‘cyber’ criminals, or as a result of illegal conspiracies or other illegal acts tending to victimize or interfere with the normal operation of the ISP, or any other force beyond Webjogger’s immediate and reasonable control. Webjogger will attempt to notify Client in the event of any of the foregoing occurrences. Client agrees to notify Webjogger of any knowledge of such activity they may have and testify to the same if subpoenaed by a court of law.
Use of any information obtained via Webjogger’s network is at Client’s own risk.
SERVICES (Addendum A)
In consideration of the non-recurring and recurring fees listed on Addendum C hereto, Webjogger shall:
• Provide the Client with operational space for their system(s) at Webjogger’s Facility, in the amount specified in Addendum C
• Provide the Client with an Ethernet connection to Webjogger’s network infrastructure
• Provide Internet access to Client system(s) at the bandwidth and data transfer rates specified in Addendum C
• Provide IP addresses to Client, conditional upon Client’s compliance with North American IP Registry (ARIN) policies regarding IP address allocation
• Provide maintenance of all Webjogger-owned equipment utilized in the provision of Services hereunder
• Provide system administration support of Client system(s) at Webjogger’s sole discretion
• Provide escorted access to Facility by appointment
• Have technical personnel available who can respond via phone 24×7 to any Client-initiated emergency contact. Webjogger will provide contact escalation list to client
• Notify the Client prior to any planned network outages such as relocation and maintenance of Webjogger’s networking devices
ACCEPTABLE USE POLICY (Addendum B)
The Service may only be used for lawful purposes. Transmission, retransmission, distribution, or storage of any information, data, communication, material or content (hereinafter known as “Content”) in violation of any federal or state law or regulation is strictly prohibited. The aforementioned shall include, but is not limited to, copyrighted Content, Content which infringes any trademark, trade secret, or other intellectual property right, violates export control laws or regulations, or violates any party’s confidentiality rights; Content which is used to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption computer file, database or network; threats, harassment, obscene or indecent, pornographic (including child pornography — Webjogger is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through Webjogger’s network), defamatory, libelous, threatening, abusive, hateful or excessively violent Content, or Content that would encourage any action that would constitute a criminal offense whether defined by local, state, federal or international law.
Client agrees to indemnify and hold harmless Webjogger, its parent company, any affiliated companies, each of their respective officers, directors, employees, shareholders, and agents (herein “Indemnified Party” or “Indemnified “Parties”) from any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorney’s fees), asserted, filed by a third party against any of the Indemnified Parties to the extent caused by Client’s unlawful use of this Service, Client’s violation of the Acceptable Use Policy, any breach by Client of any material terms or conditions of this Agreement and its representations and warranties hereunder, or any unlawful or negligent acts of omissions of Client which damages Client, Webjogger, or a third party. The obligation to indemnify provided herein shall survive termination of this Agreement.
Webjogger has designed certain Services to help you comply with regulatory guidelines that may be applicable to you. You are responsible for understanding the regulatory requirements applicable to your business and for selecting and using Webjogger’s Services in a manner that satisfies those requirements. Additionally, if credit card, debit card, or other payment card information (“cardholder data” as defined in the current version of the Payment Card Industry Data Security Standard), protected health information (“PHI”), or personally identifiable information (“PII”) will be transmitted to or from or stored on Webjogger equipment in conjunction with the Services, you must disclose to Webjogger such fact prior to any such transmission and/or storage. If you fail to make this disclosure, Webjogger may suspend providing the Services to you in its sole discretion. IN THE EVENT WEBJOGGER SUSPENDS SERVICE TO YOU BECAUSE OF YOUR FAILURE TO PROVIDE THIS NOTICE, IT WILL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU.
Client further agrees that it shall not, nor shall it permit others to:
• alter, tamper with, adjust, repair or circumvent any aspect of the Services; or
• resell, pass-through, sublicense, rent, lease, timeshare or rebrand the Services or otherwise provide the Services to any party not within Client’s enterprise and related personnel.
Users will be held responsible for the action of any third party agent that acts on behalf of, or for the benefit of, any end user and with end users knowledge and consent, and such end users shall be held directly accountable for any violations of this Acceptable Use Policy by such third party agents.
Webjogger does not control the content of data traversing Webjogger networks; accordingly, Webjogger assumes no responsibility for the content of any data or communication that may be transmitted over Webjogger networks.
These lists are not meant to be exhaustive, but merely illustrative of examples of inappropriate and improper conduct which is prohibited on Webjogger networks.
The following general actions are considered “abuse” and are strictly prohibited:
• Any conduct which is inconsistent with generally accepted norms and expectations of the Internet community (whether or not detailed in this AUP). Webjogger reserves the right, in its sole discretion, to make a determination whether any particular conduct violates such norms and expectations.
• Forging message headers or identity information, or taking any action with the intent of bypassing restrictions or limits on access to a specific service or site. This prohibition does not restrict the legitimate non-commercial use of pseudonymous or anonymous services.
• Falsifying identity or contact information (whether given to Webjogger, a Registrar, or other parties).
• Sending or distributing information regarding the creation of any virus, worm, Trojan horse or harmful code or attachment.
• Knowingly engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the Webjogger network or on another provider’s network.
• Violating the acceptable use policies of Webjogger’s upstream Internet providers.
• Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this Acceptable Use Policy, which includes the facilitation of the means to SPAM, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.
Users of Webjogger networks must configure their systems in a secure manner. Should unauthorized persons exploit a user’s system, the user is responsible for both reporting the violation (where applicable), and then fixing the exploited system. For instance, should the security of a mail server be compromised to distribute unsolicited emails, the user is responsible for immediately re-configuring the system to prevent further unauthorized use.
Users are prohibited from
• Interfering or attempting to interfere with services (“Denial of Service Attacks”), whether intentionally or through neglect, of any other user, host, or network. The prevention of “unintentional attacks”, such as infection and subsequent propagation of computer viruses, are the responsibility of every user: anti-virus software should be installed on every system which connects to Webjogger networks.
• Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual’s system (often known as “hacking”). This prohibition extends to any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).
• Injecting, intentionally or negligently, false or unauthorized network control data into Webjogger networks, for instance in the form of incorrect routing or DNS information.
Users are prohibited from engaging in improper use or distribution of electronic mail (“e-mail”). Users are strictly prohibited from engaging in any of the following activities:
• Sending unsolicited mass or commercial e-mail (“spamming”) for any purpose whatsoever.
• Having third parties send out unsolicited commercial emails on any user’s behalf.
• Using Webjogger facilities to receive replies from unsolicited emails (commonly referred to as “drop-box” accounts).
• Configuring any email server in such a way that it will accept third party emails for forwarding (commonly known as an “open mail relay”). If a site has roaming users who wish to use a common mail server, the mail server must be configured to require some form of user identification and authorization.
• Running unconfirmed mailing lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Webjogger Clients must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to or from any Webjogger network is prohibited.
Mass or commercial email may be sent only to recipients who have expressly requested receipt of such e-mails, by the sending of an email request to the person performing the mass or commercial mailings. This exchanging of requests, acknowledgements, and final confirmations (commonly referred to as a “double opt-in” process) must be adhered to in their entirety for any mass or commercial email to be considered “solicited” by Webjogger.
Users that send mass or commercial e-mail are required to maintain complete and accurate records of all e-mail subscription requests, specifically including the email and associated headers sent by every subscriber, and to immediately provide Webjogger with such records upon request of Webjogger. Subscriptions that do not have a specific recipient-generated email request associated with them are invalid, and are strictly prohibited.
In the absence of positive, verifiable proof to the contrary, Webjogger considers complaints by recipients of e-mails to be de-facto proof that the recipient did not subscribe or otherwise request the e-mail(s) about which a complaint was generated.
Webjogger will notify Client in the event of complaints about unsolicited email, and will work with Client to address any issues.
Usenet (also known as Netnews or Newsgroups)
Webjogger recommends that users not post to any newsgroup until they have familiarized themselves with the subjects, established guidelines, and restrictions of such newsgroups. All Usenet guidelines and restrictions are incorporated herein by reference, and users of Webjogger networks agree to adhere to such guidelines unconditionally.
Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities:
• Making any posting for commercial purposes (including without limitation the pointing to specific URLs for commercial purposes), except where such postings are expressly permitted under the charter and/or Frequently Asked Questions (FAQ) of an applicable newsgroup.
• Posting binary files to newsgroups whose charter or name does not include allowances for such files.
• Canceling newsgroup postings other than your own, or using auto-responders or cancel-bots (except in cases of official newsgroup moderators performing their duties).
• “Excessive Cross-Posting” (ECP) or “Excessive Multi-Posting” (EMP), or “Usenet spam”: Webjogger retains the exclusive right to define these and other terms, however, we generally defer to the definitions found at http://www.cybernothing.org/faqs/net-abuse-faq.html
• Disrupting newsgroups with materials, postings, or activities that are (as determined by Webjogger in its sole discretion), excessive, or repetitious, unless such materials or activities are expressly allowed or encouraged under the newsgroup’s name, FAQ, or charter.
• Performing any unauthorized creation, cancellation, or removal of newsgroups.
The legitimacy of a given post or cancellation is generally determined by the official newsgroup or mailing-list moderator, therefore, Webjogger usually defers to their judgment on these issues, however, Webjogger retains the exclusive right to make these determinations.
BILLING RATES (Addendum C): Negotiated on a per Client basis.
Last Updated: October, 2013