The following terms and conditions govern Tier3 Hosting and Consulting (“Tier3 Consulting”) provision of Tier3 Consulting services (“Services”) to the company or individual (“Customer”) as described on the Service Application Form. The term “Services” is limited to access, collocation services, web hosting, programming or software provided by Tier3 Consulting to facilitate Tier3 Consulting Services but does not include any equipment, facilities, programming or software at the Customer site. If access Services are, or become subject to, a tariff filed with the Federal Communications Commission or any other regulatory institution (“Tariff”), the terms and conditions of such Tariff, including rates, shall govern Customer’s use of the Services.
1. TERM. The Term begins on the first day of the following Month from when the Service Application Form was completed. The Term for Services (“Term”) will be for a period of one (1) month, and will automatically be renewed on a monthly basis, unless Customer or Tier3 Consulting notifies the other by thirty (30) days written notice that it does not wish to renew or this agreement is otherwise terminated by Tier3 Consulting hereunder.
2. RATES/FEES. Rates and fees for the services provided are stated in Schedule A and are determined by Tier3 Consulting and are subject to change. Tier3 Consulting will provide fifteen (15) days before the termination day of the contract, written notice of any change in base prices for the upcoming term of the contract. In the event of increases in base prices, Customer has until (10) days before the date of the effective increase to provide Tier3 Consulting with a written request to terminate services and incur no termination liability. Otherwise, Customer is responsible for service fees according to the new base prices for Tier3 Consulting services provided.
3. PAYMENT. Customer agrees to pay all charges incurred. Monthly charges shall be due on the first day of each month, and will apply to the following 28 to 31 days of service (calendar month). Payment shall be made in U.S. Dollars. A late fee shall be assessed on any overdue amount. A late fee charge of 2 percent per month, or a minimum of $25, or the highest rate permitted by law, if lower, will be applied on all amounts not paid within thirty (30) days of the date due. A notice of discontinuance will be issued for all accounts not paid within 15 days of the billing date. Any discounts and promotional pricing will be removed for any accounts that are past due. All Customer Services will be disconnected without further notice if any amounts are not paid within thirty (30) days of the date of the billing date. Customer will pay all applicable sales and use taxes, as well as duties or levies, on Services.
Customer’s Hosting services, domain names, web site launch and web hosting will not be initiated until Customer has completely paid the fees for web site design and development and any other pro-rated partial period, installation, completion or launch of a web site, and the first month Service as indicated by the current fee schedule. If Customer wishes to cancel a Service order before the Service is installed, the Customer must provide notice to Tier3 Consulting in writing with return receipt, and such notice must be received by Tier3 Consulting prior to Service installation. When a Customer cancels before initiation, all payments will be refunded, except for Setup Fee, which are non-refundable.
In the case of nonpayment for any services, including but not limited to hosting servers, consulting services, web design, development and web hosting, Tier3 Consulting reserves the right to deactivate the Customer’s web site or servers indefinitely, until full payment for all services have been received.
4. TERMINATION. To terminate Services, Customer must provide Tier3 Consulting with thirty (30) days prior written notice before renewal for the upcoming term of the contract.
5. RIGHTS AND OBLIGATIONS OF CUSTOMER.
A. Customer shall at its own expense provide all necessary preparations required to comply with Tier3 Consulting’s access, collocation, hosting and maintenance specifications, and shall be responsible for the costs of relocation of any equipment or telecommunications circuits (if any) once Services are installed. This includes a circuit from a location of Customer’s choice to the Tier3 Consulting point of presence (for Services other than co-location), circuit termination and packet switching equipment to connect Customer systems or networks to Services. For co-location Services, Customer shall provide the hardware to locate at Tier3 Consulting facility.
B. Customer shall provide information related to Services as requested by Tier3 Consulting to support and diagnose any problems with Services.
C. Customers shall not resell, nor knowingly assist or permit others to resell, Tier3 Consulting network access services through wide area network, modem, or co-location connections, i.e. activity commonly referred to as Internet Access Provider or Internet Service Provider. Customers may sell or resell information services, i.e. activity commonly referred to as Internet Presence Provider. Such allowed resale services include but are not limited to “web page” hosting, mail forwarding, electronic commerce transactions, and information distribution.
D. Customer shall not nor shall it knowingly permit or assist others to use Tier3 Consulting services for the purpose of unsolicited electronic message distribution or other activities considered an annoyance to network users and commonly referred to as “spamming.”
E. Customer shall not nor shall it knowingly permit or assist others to abuse or fraudulently use Services, including but not limited to the following:
1. Obtaining or attempting to obtain service by any fraudulent means or device with intent to avoid payment;
2. Accessing, altering, or destroying any information of another Tier3 Consulting Customer by any fraudulent means or device, or attempting to do so; or
3. Using Services so as to interfere with the use of the Tier3 Consulting network by other Customers or authorized users, or in violation of the law or in aid of any unlawful act.
6. EQUIPMENT, SERVICES OR SOFTWARE NOT PROVIDED BY Tier3 Consulting.
A. Tier3 Consulting shall not be responsible for the installation, operation, maintenance or technical support of equipment, services or software not provided by Tier3 Consulting; unless otherwise specified in service installation terms in separate Schedule A, nor shall Tier3 Consulting be responsible for the transmission or reception of information by equipment or software not provided by Tier3 Consulting.
B. Customer shall be responsible for the use and compatibility of equipment or software not provided by Tier3 Consulting. In the event that Customer uses equipment or software not provided by Tier3 Consulting that impairs the Customer’s use of Services, Customer shall nonetheless be liable for payment for Services. Upon notice from Tier3 Consulting that the equipment or software not provided by Tier3 Consulting is causing or is likely to cause hazard, interferences or service obstruction, Customer shall eliminate the likelihood of hazard, interference or service obstruction. Customer shall if necessary pay Tier3 Consulting to diagnose difficulties caused by equipment or software not provided by Tier3 Consulting. Tier3 Consulting will notify a designated technical contact of the Customer by telephone and e-mail before any such charges are incurred.
C. Tier3 Consulting shall not be responsible if any changes in Services cause equipment or hardware not provided by Tier3 Consulting to become obsolete, require modification or alteration, or otherwise affect performance of equipment or hardware not provided by Tier3 Consulting. In this case, Customer may terminate services or renegotiate the contract without penalty.
D. Tier3 Consulting requires these terms and conditions so that Tier3 Consulting can control the performance of the Tier3 Consulting network on an end-to-end basis and protect the Tier3 Consulting network. Tier3 Consulting’s intent is to manage the router on a cooperative basis with Customer for wide area network Services.
1. Tier3 Consulting reserves the right to allow or refuse, within reason, the make, model and/or software revision of Customer’s provided router to be used as the gateway to Tier3 Consulting.
2. The Customer will set the initial configuration of the Customer’s router interface into the Tier3 Consulting network as provided by the Tier3 Consulting.
3. Customer must permit Tier3 Consulting to access the router’s SNMP variables, and Customer must, at Tier3 Consulting’s request, permit one or more Tier3 Consulting network management systems to be the recipient of SNMP TRAP messages.
4. Customer will offer Tier3 Consulting read/write access to the router’s configuration tables provided that such services are requested by the Customer and included in service and maintenance agreement.
E. Customer is responsible for acquiring and paying the cost of adequate property insurance for all equipment or software not provided by Tier3 Consulting including such customer equipment or software installed at Tier3 Consulting’s facility.
7. RIGHTS AND OBLIGATIONS OF Tier3 Hosting and Consulting.
A. Tier3 Consulting shall install, operate and maintain Services. Tier3 Consulting shall not be responsible for cabling outside its premises, including telephone company lines that connect equipment not provided by Tier3 Consulting to the Tier3 Consulting Services.
B. Tier3 Consulting warrants that Services will be in good working order and will conform to Tier3 Consulting’s service level agreement detailed in Appendix B, upon the date installed. The foregoing warranties are in lieu of all other warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
C. Customer’s sole remedy for non-performance of Services pursuant to Tier3 Consulting’s service specifications shall be repair or replacement of Services. Customer has the right to terminate service, without penalty, due to chronic non-performance of Tier3 Consulting services. Chronic non-performance is defined as three or more outages per month for three consecutive months. Customer waives all other rights and remedies at law or in equity.
D. Tier3 Consulting shall not be liable, either in contract or in tort, for protection from unauthorized access of Customer’s transmission facilities or Customer premise equipment; or for unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedure or information through accident, fraudulent means or devices, or any other method, even should such access occur as a result of Tier3 Consulting’s negligence. Tier3 Consulting will perform due diligence in providing physical and Network security.
E. Tier3 Consulting shall not be liable for claims or damages caused by Customer’s fault, negligence or failure to perform Customer’s responsibilities; claims against Customer by any other party; any act or omission of any other party furnishing services; or installation or removal of equipment furnished by any service provider, except where caused by the gross negligence of Tier3 Consulting.
F. Tier3 Consulting shall not be liable for damages to Customer equipment unless caused by the gross negligence or willful acts of Tier3 Consulting’s officers, employees, agents or contractors for loss through theft or vandalism of Customer equipment on Tier3 Consulting’s premises, and for damages caused by the use of Customer equipment or supplies.
G. Upon default by Customer, Tier3 Consulting may immediately terminate Services and retake possession of Services (before, during or after action to recover sums hereunder), retain all payments made hereunder, and recover charges and costs owed by Customer as well as any other damages Tier3 Consulting may have sustained because of Customer’s default. “Default” shall mean where Customer becomes subject of a voluntary or involuntary bankruptcy, insolvency,
reorganization or liquidation proceeding; makes an assignment for the benefit of creditors; admits in writing its inability to pay debts when due; or fails within ten (10) days after written notice to remedy any breach of this Agreement.
H. Tier3 Consulting may interrupt Customer Services immediately after an attempt to notify Customer by telephone at the telephone number Customer contact specified on the Service Application in any event where Tier3 Consulting has determined Customer is in breach of paragraph 5 of this Agreement. In the event such action is taken by Tier3 Consulting, Customer Services will be reinstated when Tier3 Consulting determines the condition has been remedied by Customer.
10. INDEMNITIES. Tier3 Consulting will be indemnified and saved harmless by the Customer from and against all loss, liability, damage and expense, including reasonable counsel fees, caused by:
1. Fire, flood, war, or any other casualty to Customer owned equipment physically located at Tier3 Consulting facilities.
2. Acts or omissions of officers, employees, agents or contractors of Customer that arise out of or are caused by the construction, installation, maintenance, presence, or use or removal of systems, channels, terminal equipment or software not provided by Tier3 Consulting that are connected to Tier3 Consulting Services and that result in claims and demands for damages to property or for injury or death to persons including payments made under any Worker’s Compensation Law or under any plan for employee’s disability or death benefits;
3. Claims for liable, slander, invasion of privacy or infringement of copyright, and invasion and/ or alteration of private records or data arising from any information, data or message transmitted over the network by Customer, and
4. Claims for infringement of patents arising from the use of equipment, software and systems not provided by Tier3 Consulting in connection with Services.
A. Customer shall not assign or transfer the Services without the prior written consent of Tier3 Consulting, unless such transfer or assignment is done under acquisition of Customer.
B. Tier3 Consulting will not be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes, or other concealed acts of workmen (whether of Tier3 Consulting or others), casualties, accidents or other occurrences beyond Tier3 Consulting’s control. Tier3 Consulting shall notify Customer in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty (60) days, Tier3 Consulting or Customer may cancel the Services with no further liability.
D. Any legal action arising out of failure, malfunction or defect in Services shall be brought within one (1) year of the occurrence or is deemed waived. Any and all actions shall be brought in the appropriate court system in the State of Colorado.
E. This Agreement may not be modified except by written amendment by the parties. No agent, employee or representative of Tier3 Consulting or Customer has authority to bind the parties to any representation or warranty unless such is specifically included in this Agreement, the Service Application, or written amendments thereto.
F. Notice to the parties of disputes arising under this Agreement shall be sent by registered mail to the parties to the administrative address of record for the Customer. All other notices may be sent by regular mail to the administrative address of record for the Customer. Notice to Tier3 Consulting shall be to:
Tier3 Hosting and Consulting
558 E Castle Pines Parkway B4-302
Castle Rock, CO
G. All users of Tier3 Consulting Services are responsible for ensuring their use complies with any policies in effect which may apply to their use. Further, users of Tier3 Consulting Services are responsible for determining which policies affect their specific use. This may include but is not limited to the National Science Foundation Appropriate Use Policy.
H. Nothing in this Agreement shall be construed to prohibit or restrain the entry by any Customer into any separate contract or agreement with any other Customer or third party on any terms.
I. This Agreement shall be governed by the laws of the State of Colorado.
J. Should any part or portion of the Agreement be found invalid as material, the balance of the provisions shall remain unaffected and shall be enforceable. The customer may cancel services without penalty.
K. It is understood and agreed by the parties hereto that this instrument constitutes the entire agreement between the parties. Each party hereby specifically advises the other that any representations inconsistent with the terms and conditions contained herein made by any officer, agent or employee are wholly unauthorized and specifically repudiated.