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HOSTIRIAN COLOCATION CONTRACT - blank by wuyunyi

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									Hostirian Colocation Service Order Form – v08.01.01




  HOSTIRIAN COLOCATION                                            SERVICE ORDER FORM
REVIEW, DATE AND INITIAL THE ATTACHED SERVICE SPECIFICATION AND TERMS & CONDITIONS

ACCOUNT INFORMATION

     1.   Company Name:

     2.   Hostirian Account #: ________________________

     3.   Customer Administrative & Billing Contact:
          Name _____________________________ Title: ____________________
          Address: _____________________________________________________
          City: ____________________________     State: ______ Zip: ______________
          Voice#: ________________________       Fax#: ________________________
          Email: ________________________
     4.   Customer Technical Contact:
          Name _____________________________ Title: ____________________
          Address: _____________________________________________________
          City: ____________________________     State: ______ Zip: ______________
          Voice#: ________________________       Fax#: ________________________
          Email: ________________________        Pager: ________________________
     5.   Customer Authorized Representatives:
          (Personnel authorized to access Customer’s Colocation Space.)
          Name _____________________________
          Customer or 3rd Party: ____________________
          Voice#: ________________________         Fax#: ________________________
          Email: ________________________          Pager: ________________________
          Name _____________________________
          Customer or 3rd Party: ____________________
          Voice#: ________________________         Fax#: ________________________
          Email: ________________________          Pager: ________________________
          Name _____________________________
          Customer or 3rd Party: ____________________
          Voice#: ________________________         Fax#: ________________________
          Email: ________________________          Pager: ________________________

     6.   Challenge Phrase: _______________________________________
          Faxed (on Company Letterhead) Change Orders or Requests for Escorted Access
          into Colocation Space will require the Customer or Authorized Representative to
          State the above Challenge Phrase as an added layer of Security.

     7.   DOMAIN NAME REGISTRATION and DNS SERVICE
          All domain names must be registered or transferred by the Customer and paid separately to a
          recognized Domain Name Registrant. Unless specifically designated to the contrary, Hostirian
          will act as the primary and secondary DNS authority for all domain names.




                                                      Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01



     8.   COLOCATION SERVICE and PRICING

          Term:

          Allocated Rackspace:

          Description of Each Piece of Customer Equipment that will be Colocated
          (include power requirements):




          Additional Hostirian Services to be provided not covered in Hostirian
          Colocation Service Specifications:



          Set-Up Fee: Monthly Service Fee:

          Effective Contract Dates ___________________ to ___________________

     9.   SERVICE ACCEPTANCE
          THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ, AND UNDERSTAND, THAT THIS ORDER IS
          SUBJECT TO THE ATTACHED HOSTIRIAN COLOCATION SERVICE SPECIFICATIONS AND HOSTIRIAN
          COLOCATION TERMS & CONDITIONS, WHICH MUST BE INITIALED AND DATED AND CUSTOMER
          AGREES TO BE BOUND BY THESE TERMS. EACH PARTY FURTHER WARRANTS THAT IS HAS FULL
          CORPORATE POWER AND AUTHORITY TO ENTER INTO AND DELIVER THIS AGREEMENT AND TO
          PERFORM TO ITS OBLIGATIONS HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE
          APPEARS BELOW IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT
          PARTY.

          In Witness thereof, the parties have entered this Agreement as of the date set forth:

          __________________________________________________________________
          Authorized Customer Representative / Title (printed or typed)

          __________________________________________________________________
          Customer Signature                            Date of Signature



          __________________________________________________________________
          Authorized Hostirian Representative / Title (printed or typed)

          __________________________________________________________________
          Signature                                                    Date of Signature




                                                           Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01




  HOSTIRIAN COLOCATION SERVICE SPECIFICATION
     1.   BASIC SERVICES
          A. Domain Name Registration and Authority
              All domain names must be registered or transferred by the Customer and paid separately to a
              recognized Domain Name Registrant. Unless specifically designated to the contrary,
              Hostirian will act as the primary and secondary DNS authority for all domain names.
              Customer is responsible for all fees. All fees subject to change.
          B. Network Numbers
              Hostirian will provide one IP address per server at no charge. Additional IP addresses will be
              provided as needed for an additional charge. All IP addresses assigned by Hostirian are and
              will remain at all times the property of Hostirian, and will be reassigned and reused by
              Hostirian in its sole discretion for other Hostirian customers upon termination of Service.

     2.   POWER SUPPLY
          A. UPS System
              All racks are supported by Un-interruptible Power Supply (UPS) system that conditions
              power and protects servers from short-term power outages and surges.
          B. Back-Up Generator
              All racks are supported by a diesel-powered generator that can provide auxiliary power for an
              indefinite period of time in the event of a major power failure. In case of an emergency
              requiring suspension of electrical power, Hostirian will make reasonable efforts to inform
              Customer if such an event occurs. Hostirian will make reasonable efforts to minimize the
              duration of any such outage. In case of emergency, Hostirian may delay physical access to
              the colocation space. In such case Hostirian will provide a reasonable estimate of the duration
              of such delay.
          C. Increasing Power Requirements
              Hostirian will be responsible for the ongoing power usage fees. However, any consistent and
              excessive power usage that continues after notice may result in Hostirian increasing the
              Monthly Service Fee upon written notice to the Customer.

     3.   CUSTOMER ACCESS TO SPACE
          A. Overview
             Hostirian will provide reasonable commercial access to Customers and their Authorized
             Representatives. Hostirian will provide Customer with escorted access, at no charge, for the
             first seven (7) calendar days after the customer is notified in email or writing that the
             colocation space is available.
             Customer receives five (5) hours per month of free escorted access during regular business
             hours of 8:30 AM to 5:30 PM Monday through Friday. Thereafter, escorted access shall
             require and be subject to an hourly fee of $150 per hour for the necessary Hostirian personnel
             to escort Customer. Unused free hours shall not carry over from month to month but must be
             used in the month in which they accrue.
             Fees for visits on Saturdays, Sundays, Federal holidays, State Holidays, or after regular
             business hours will accrue from the time of dispatch and be charges at a premium of one and
             one-half times the hourly fee. No escort fees will be charged where Customer is not required
             to have an escort.
          B. Customer Responsibilities
             Customer must designate “Customer Authorized Representatives” on the Service Order Form
             who are authorized to have access to the Customers space and equipment. Customers are
             required to give a minimum of four (4) hours advance notice to Hostirian in order to gain
             access to the colocation space. Shorter notice may be appropriate given an emergency
             situation such as an equipment failure.
             Notice shall include name of Customer Authorized Representative, requested access time,
             purpose of visit, expected duration, and Challenge Phrase. Notice sent via fax on company
             letterhead.




                                                      Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01



          C. Limitations
             Hostirian restricts access to the area necessary to access the colocation space. Customers
             Authorized Representatives identified in unauthorized areas may have access rights
             suspended or terminated.
             Hostirian reserves the right to delay access as reasonably necessary given a Hostirian
             emergency situation or some other essential Hostirian activity, provided that such access
             rights would be delayed for other colocation customers as well.
             No photo equipment, video or voice recording equipment, food or drink, or hazardous
             materials shall be brought into the colocation area. Use of any such items may result in
             suspension or termination of access rights.

     4.   BILLING ISSUES
          A. Set-Up Fees and Monthly Service Charges
             Set-up fees will be billed and included with the first monthly invoice.
             Monthly Service Charges will commence three (3) business days after the Customer is
             notified that the Colocation Space is available to the Customer.
             The Colocation Space is considered available to the Customer when all of the following have
             occurred: 1) The Colocation Space is ready for the Customer to install their equipment, 2) All
             network IP addresses have been made available, and 3) Power has been made available.
          B. Service Delivery Time
             Hostirian will notify the Customer when the Colocation Space is made available. Notice will
             be faxed to the Customer’s Technical Contact on the Service Order Form.
             The Colocation Space will normally be available to Customer no later than 15 calendar days
             after Hostirian has received a signed and dated Hostirian Colocation Service Order Form.
          C. Automatic Renewal
             Unless terminated by the Customer or Hostirian, the service Agreement will automatically
             renew after the initial service term commitment on a month-to-month basis, subject to the
             then applicable rates.

     5.   CUSTOMER RESPONSIBILITIES
          A. Installation
             Customer shall at its own expense supply, order, install, configure, engineer, troubleshoot,
             and maintain all Equipment, including cabling and termination devices necessary to support
             Network access and console access to the Equipment. Upon completion of installation or
             maintenance, Customer shall remove all installation tools and material from the Colocation
             space shall restore the area around the Colocation Space to its pre-installation condition.
          B. Maintenance
             Customer is responsible for any costs or expenses associated with providing any
             administrative, technical, emergency or support personnel or services necessary for dealing
             with Hostirian or for providing and maintaining Customer’s Equipment, Content, or access to
             Hostirian equipment providing access to the network. In only legitimate emergency
             situations, and only upon specific Customer request for assistance, Hostirian may, in its sole
             discretion, provide such services but only on a strictly limited basis as determined by
             Hostirian, provided Customer agrees to pay for Hostirian’s assistance at a time and material
             basis of $150 per hour or any portion thereof.




                                                      Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01




  HOSTIRIAN COLOCATION                                                       TERMS & CONDITIONS
     This agreement is made between Hostirian and Customer, identified as the party specified in Hostirian Colocation Service Order
     Form. The agreement consists of the Hostirian Colocation Service Order Form, Hostirian Colocation Service Specification,
     Hostirian Colocation Terms and Conditions, and any exhibits agreed to in writing between the parties and attached hereto. The
     parties agree, intending to be legally bound, as follows:

     1. DEFINITIONS
            “Customer” shall mean the Customer, and its employees, agents, and subcontractors (if any) involved in obtaining of
             Services, or otherwise designated by the customer.
            “Contract Start Date” shall be three business days after the date on which Hostirian makes available the Colocation
             Space, and notifies the Customer of the availability of that space for its Equipment.
            “Data Center” means the location in which Hostirian makes Space for the Equipment available.
            “Content” means the electronic data, software, programs, or information of various types made available to End
             Users by means of the Equipment.
            “End User” means any person enabled through a data connection over the Internet to access, use, purchase,
             download, or otherwise interact with the Content that is located or distributed by means of the Equipment.
            “Equipment” means only the Hostirian provided equipment, Hostirian-provided software, and all wiring within the
             Data Center. Hostirian Dedicated Servers Service does not include equipment located on the Customer premise,
             telephone circuits and data circuits, or any networks or network equipment not owned or controlled by Hostirian.
            “Network” means the TCP/IP based data communications network (including all hardware, software,
             telecommunications facilities and equipment) owned and operated by Hostirian and through which End Users may
             access Customer’s Content via the Internet.
            “Service” means the Hostirian Dedicated Servers Service as specified in this document.

     2. SERVICE SPECIFICS
             License Grant
              Subject to the Agreement, Hostirian hereby grants Customer, as of the Contract Start Date, a non-exclusive license to
              install, operate, maintain and access the Equipment in the Colocation Space. Hostirian reserves all rights not
              specifically granted to Customer under the above license, including the right to (i) access the Colocation Space in an
              emergency situation, (ii) grant additional licenses to other customers, and (iii) exercise or grant other rights not
              inconsistent with the rights granted hereunder.
             Availability
              Space will be available to the Customer as of the Contract Start Date. Customer is required to provide Hostirian with
              at least 24-hour notice of the expected delivery and installation date. Hostirian reserves the right to suspend or
              terminate this Agreement if Customer fails to initiate Equipment installation within thirty (30) days following the
              Contract Start Date.
             Delivery and Set-Up
              Except for Hostirian’s assistance in identifying the Colocation Space and applicable rack(s), Customer, at its own
              expense, is solely responsible for itself, or its third party agents, to order, deliver, unpack, and install the Equipment,
              for use in the Colocation Space. Customer shall have full responsibility to arrange for delivery and unloading of
              Equipment, bringing the Equipment into the Hosting Center, and then to rack the Equipment. Hostirian shall not
              provide any personnel, or otherwise, have any responsibilities for such activities, nor shall Hostirian undertake any
              responsibility to sign for, or assume any liability for acceptance of Equipment. Without assuming any liability for
              doing so, Hostirian may set limits or prohibit certain delivery and installation activities as Hostirian personnel
              reasonably determine. The installation of Equipment shall be conclusive evidence that Custome accepts the
              Colocation Space “as is” and that the Colocation Space is suitable for the use intended by the Customer and is in
              satisfactory condition at the time the Equipment was installed.
             Security
               Hostirian shall limit access to the Colocation Space and take reasonable security efforts to prevent access to the
              Colocation Space. Customer is solely responsible for End User access security or Network access security with
              respect to any of the Equipment or Content. Hostirian will reasonably assist in Network security breach detection or
              identification, but shall not be liable for any inability, failure or mistake in doing so.
             Domain Name and Network Number
               Customer shall arrange for the provision of Domain Name Service for any Equipment it desires to be accessible by
              hostname to End Users over the Internet, or, at its option, Customer may request that Hostirian provide Domain
              Name Service (“DNS”) only to the extent necessary to provide such access to the Equipment. Customer is solely
              responsible for the Domain Name registration and maintenance fees incurred in connection with each new domain
              name. Customer acknowledges and agrees that it shall have no ownership interest in any IP address which Hostirian
              obtains on Customer’s behalf and that such IP addresses are and shall remain the sole and exclusive property of
              Hostirian and upon termination if this Agreement, Customer’s access to and utilization of such IP addresses shall
              terminate.




                                                            Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01



               Risk of Loss
                Customer shall at all times before, during, and after the term of this Agreement bear the entire risk of loss, damage, or
                destruction of Equipment or any part thereof, from any and every cause whatsoever, as a result of its acts or
                omissions, or that of a third party performing services for Customer.
               Emergency Situations
                 In the event of an emergency that presents a substantial risk of a service outage, or damages to Equipment or data
                belonging top Hostirian, a third party, the Hosting Center, or to any persons or property present therein, Hostirian
                may rearrange Customer’s Equipment (with the same care used by Hostirian in rearranging its own Equipment) as is
                reasonably necessary to respond to the emergency; and only as necessary, Hostirian may disconnect Equipment if the
                emergency requires such disconnection to avoid damage. Hostirian shall use commercially reasonable efforts to
                notify Customer prior to rearranging the Equipment or disconnecting the Equipment, and in any case will notify
                thereafter. Customer reserves the right to shut down the Equipment at the Colocation Space in accordance with its
                emergency operating procedures, with notification thereafter to Hostirian within a reasonable time.

     3. CUSTOMER USE OF SPACE, EQIPMENT, CONTENT, AND NETWORK
            Access and Use of Space
             Hostirian shall provide reasonable commercial access for only the individuals listed in the Order Form as authorized
             to enter the Colocation Space, subject to the terms and conditions herein.
            Ownership of Equipment and Content
             All interest in and ownership of the Equipment and the Content including, but not limited to, those portions of the
             Content that are the Customer’s trade names, trademarks or service marks, are and shall remain the property of the
             Customer.
            Network Usage Restrictions
              Any Content or use of the Colocation Space that violates any laws or regulations of local, state or federal
             governments or agencies thereof, or any international treaties is prohibited. Further, actions such as, but not limited
             to, misuse of copyrighted materials, misappropriation of trade and other distinguishing marks, and use of the network,
             the Equipment, the Content, or any Hostirian facilities for defamatory, threatening or obscene purposes are
             prohibited. Any of the foregoing violations may be grounds for Hostirian to immediately suspend Service, and
             terminate this Agreement if necessary in Hostirian’s best interest.
            No Back-Up by Hostirian
              Hostirian shall not provide or guarantee any data back-up or data storage of Customer’s Equipment or Content.
             Customer is solely responsible for providing any data storage, data back-up and archival history with respect to its
             Equipment and its Content.
            Responsibility for its End Users
             Customer shall be solely responsible for providing customer services, technical support, pricing and service plans,
             billing and collections, and any and all other services to its End Users, and Hostirian shall have no obligations
             whatsoever to End Users under this Agreement.

     4. PAYMENTS
           Payments
            Customer accepts, and agrees to pay, all Service fees as set forth in the order Form. Billing for the Monthly Service
            Fees will monthly in advance, and Set-Up Fees and the first month service fee will be payable upon the Contract Start
            Date. Payment is due thirty days after date of invoice. .
           Customer Charges
            Customer is responsible for establishing and collecting the charges, if any, for Content and related services it offers to
            its End Users through the network and Equipment. Customer remains responsible for payment of the total amounts
            invoiced by Hostirian regardless of whether Customer is paid for Content and related services offered to its End
            Users.
           Late Payments
            Invoices not paid by their due dates shall be subject to a 1.5% per month interest fee on all past due balances.

     5. TERM / EXTENSION / TERMINATION
        Term / Extension
         The Agreement term is effective upon the Contract Start Date and shall continue through the Service Term Commitment as
         set forth on the Order Form. Unless terminated by either party, this Agreement will automatically renew after the initial
         Service Term on a month-to-month basis, subject to the then applicable rates, unless otherwise agreed to in writing by the
         parties.
        Termination
         Either party mat terminate this Agreement upon written notice to the other (i) at the end of the initial or subsequent term, so
         long as notice is provided thirty (30) days before end of such term, or (ii) upon material breach of the Agreement by the
         other party, following a 30 day cure period. Hostirian may suspend or terminate the Agreement immediately if Customer
         is more than thirty (30) days late in paying an invoice upon five days prior notice. Any termination does not remove the
         Customer’s responsibilities to pay all Service Fees up to the date of the termination.
        Customer Default
         Customer acknowledges that Hostirian is providing services in expectation of Customer fulfilling its Service Term
         Commitment. In case of default by Customer following Contract Start Date and prior to completion of the Service Term
         Commitment as a result of Hostirian’s termination for non-payment or early cancellation by Customer, except for
         Hostirian’s material breach, Customer agrees to pay immediately as liquidated damages and not as a penalty, 75% of the
         remainder of the Service Term Commitment.
        Removal of Equipment



                                                            Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01



          Customer shall remove all items of Equipment located within the Colocation Space within ten (10) das of the termination
          of this Agreement. In the event the Equipment is not removed, such Equipment will be considered abandoned; and
          Hostirian may remove the Equipment and charge the Customer for secured storage costs plus any past due service fees.
         Denial of Access
          Acknowledging that Hostirian is providing Services in expectation of payment, in the event of Customer’s default,
          Hostirian may deny Customer access to the Colocation Space and itself remove Equipment, secure Equipment and retain
          possession thereof as security for the payment of any sums owned by the Customer under the Agreement. If payments of
          amounts owed are not made within a thirty-day period, Hostirian will exercise all rights of ownership over such Equipment
          including the right to sell the same and retain possession of any sale proceeds.

     6. INSURANCE
         Insurance
          Customer shall provide proof of insurance prior to installation of Equipment in the Colocation Space and maintain such
          insurance at all times during the initial and any renewal Term of this Agreement and during any ten-day removal period
          pursuant to Section 5 of this Agreement. Proof of insurance shall be provided by delivery of certificates of insurance to
          Hostirian. Hostirian shall not insure or be responsible for any loss or damage to property of any kind owned or leased by
          the Customer or its employees, servants, agents, including but not limited to the Equipment.

     6.   CONFIDENTIAL INFORMATION
          Each party acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or
          relating to its affairs. Such materials shall be expressly designated or marked as confidential. Confidential Information
          does not include (i) information already known or independently developed by the recipient; (ii) information in the public
          domain through no wrongful act of the recipient, or (iii) information received by recipient from a third party who was free
          to disclose it. Each party hereby agrees that it shall not use, commercialize or disclose the other party’s Confidential
          Information to any person or entity, except to its own employees or agents having a “need to know” such information in
          connection with the performance of this Agreement, and to other such recipients as the other party may approve in a
          signed, written document. Neither party shall alter or remove from any software, documentation or other Confidential
          Information of the other party (or any third party) any proprietary, copyright, trademark, or trade secret legend. The
          parties’ obligations of confidentiality under this Agreement shall survive termination of this Agreement for any reason.

     7.   INDEMNIFICATION OF HOSTIRIAN
          CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS HOSTIRIAN, ITS AFFILIATES,
          DIRECTORS, EMPLOYEES, AGENTS AND SUBCONTRACTORS, AGAINST ANY AND ALL ALLEGATIONS,
          CLAIMS, EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES AND DISBURSEMENTS), LIABILITY
          OR SUITS THREATENED, MADE OR BROUGHT IN RELATION OR ARISING FROM (i) CUSTOMER’S DESIGN,
          CREATION, PROVISION, DISTRIBUTION OR USE OF INFORMATION AND TECHNOLOGIES IN THEIR
          CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY RELATED COPYRIGHTS, TRADE SECREATS, TRADE
          NAMES, PATENTS, OR OTHER INTELLECTUAL PROPERY RIGHTS, OR (ii) CUSTOMER’S DEFAMATION,
          HARASSMENT, OR ANY OTHER LAWS, RULES, REGULATIONS, INTERNET OR OTHER COMMUNITY
          POLICIES, PRACTICES OR STANDARDS. OR INTERNATIONAL TREATIES IN EFFECT IN ANY COUNTRY OR
          JURISDICTION IN WHICH THE CONTENT CAN BE VIEWED OR RETREIVED; OR (iii) ANY OTHER ACTS OR
          OMISSIONS OF CUSTOMER AND/OR ITS END USERS THAT RESULT, DIRECTLY OR INDIRECTLY, IN
          CLAIMS OR LOSSES ATTRIBUTABLE TO SERVIVE OUTAGES INCURRED BY HOSTIRIAN OR HOSTIRIAN’S
          CUSTOMERS, , OR DAMAGES TO EQUIPMENT OR DATA BELONGING TO HOSTIRIAN OR TO OTHER
          CUSTOMERS OF HOSTIRIAN OR HOSTIRIAN DAMAGES TO THE HOSTING CENTER OR COLOCATION SITE
          OR TO ANY PERSONS OR PROPERTY PRESENT THEREIN.

     8.   WARRANTIES EXCLUDED
          HOSTIRIAN MAKES NO WARRANTIES IN CONNECTION WITH ITS NETWORK OR THE PROVISION OF
          ACCESS OR SPACE AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY,
          EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF
          MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAT PURPOSE OR USE.
          CUSTOMER ACKNOWLEDGES THAT HOSTIRIAN DID NOT SELECT, MANUFACTURE OR DISTRIBUTE
          THE EQUIPMENT IR ITS CONTENT AND THAT CUSTOMER HAS MADE THE SELECTION OF THE
          EQUIPMENT AND ITS CONTENT BASED SOLELY UPON ITS OWN JUDGMENT AND EXPRESSLY
          DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY HOTIRIAN OR ITS AGENTS/

     9.   LIMITATION OF LIABILITY
          NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE
          PARTIES AGREE THAT HOSTIRIAN, ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS AND
          SUBCONTRCTORS, SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON
          FOR ANY ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCUDENTIAL, RELIANCE,
          PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE
          WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF. ARIING OUT OF THE PROVISION
          OF ACCESS OR IN ANY WAR ARISING OUT OF THIS AGREEMENT, WIETHER IN AN ACTION ARISING
          OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT
          LIABILITY, PATENT OR INTELLECTUAL PROPERTY MATTERS OR ANY OTHER LEGAL OR
          EQUITABLE THEORY. NO ACTION OR PROCEEDING AGAINST HOSTIRIAN MAY BE COMMENCED
          MORE THAN ONE YEAR AFTER THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAUSE SHALL
          SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.



                                                          Hostirian, LLC
Hostirian Colocation Service Order Form – v08.01.01




     10. GENERAL TERMS
        Notices
         Any notice required or permitted hereunder shall be in writing and shall be deemed to have been given upon personal
         delivery, confirmation of receipt of fax transmission, or the next business day if sent by a nation-wide delivery service, or
         three (3) business days after being sent to the other party by US mail at the addresses listed on the Order Form or to such
         other persons and addresses as one party may from time to time notify the other in writing.
        Force Majeure
         Except for obligations requiring the payment of money, neither party shall be liable for delay in performance hereunder
         due to causes beyond its reasonable control; provided, that such party shall give notice to the other party of any actual or
         anticipated delay, shall take steps to minimize any such delay and overcome its effects, and shall properly resume
         performance when such cause or such delay is removed.
        Independent Contractors
         This agreement shall not be construed as constituting either party as a partner or agent of the other party or to create a joint
         venture or any other form of legal association that would impose liability on one party for the act or failure to act of the
         other party or as providing either party with the right, power, or authority to create any duty or obligation on behalf of the
         other party.
        Assignment
         Neither party may sell, transfer, or assign this Agreement, except to entities completely controlling or controlled by that
         party, or to entities acquiring all or substantially all of its assets, without the prior written consent of the other which
         consent shall not be unreasonably withheld or delayed. Any act in derogation of the foregoing shall be null and void;
         provided, however, that any such assignment shall not relieve the assigning party of its obligations hereunder.
        Waivers
         The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed
         a waiver of any further right under this Agreement.
        Severability
         If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining
         provisions of this Agreement will remain in full force and effect.
        Governing Law
         This Agreement shall be governed by the substantive law of the State of Missouri, without regard to its principles of
         conflicts of law.
        Entire Agreement and Changes
         This entire Agreement represents the complete Agreement and understanding of the parties with respect to the subject
         matter herein, and supersedes any other agreement or understanding, written or oral. In the event any conflict arises, this
         Agreement shall take precedence. This Agreement may be modified only in writing signed by both parties. Customer
         agrees and acknowledges that the signature by its authorized representative on the Order Form shall indicate acceptance of
         these terms and conditions.




                                                            Hostirian, LLC

								
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