This Agreement is between Lanset America Corporation and it's subsidiaries DataNOC and Hostik, and all customers using DataNOC/Hostik web services:
The Customers mentioned above will hereafter be referred to as "User".
-1- Subject to the provisions hereof, the account will be opened upon reception of contract, "signup form" , email, or phone, and repeated in each successive billable period thereafter at the then applicable prevailing rates and charges, unless written notice of cancellation is received from User in accordance with section (12).
-2- Charges for "billable period rate" services are payable prior to the beginning of each period.
-3- CUSTOMER WARRANTIES. (a) The Customer represents and warrants that it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms; (b) Customer represents and warrants that neither its equipment nor facilities will pose a hazard to Lanset's equipment or facilities or create a hazard to Lanset's personnel or customers or the public in general; (c) Customer represents and warrants that its use of the Services will comply and conform with all Applicable Law and any other authorities having jurisdiction over the subject matter of this Agreement and it will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities; Customer will indemnify and hold Lanset harmless from any and all loss, liability, claim, demand, and expense (including reasonable attorneys’ fees) related to Customer’s violation of this Section.
-4- USER AGREES TO USE ALL LANSET/DataNOC/Hostik SERVICES AND FACILITIES AT USER'S RISK. LANSET/DataNOC/Hostik SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE. IN NO EVENT SHALL LANSET/DataNOC/Hostik BE LIABLE FOR ANY LOSS OF DATA OR ANY OTHER DAMAGES.
-5- User agrees to protect and indemnify LANSET against any and all liability, loss, or expense arising from claims of libel, unfair competition, unfair trademarks, trade names or patents, violations of rights and privacy and infringement of copyrights and property resulting from User's use of LANSET/DataNOC/Hostik services.
-6- LANSET/DataNOC/Hostik reserves the right to cancel any account, at any time, without notice, for any reason LANSET/DataNOC/Hostik considers appropriate. Use of the email system to send unsolicited email or Usenet postings is not allowed from any LANSET/DataNOC/Hostik account. "Sexually Explicit Adult Content" is not allowed on LANSET/DataNOC Servers. At LANSET/DataNOC/Hostik discretion, access to LANSET/DataNOC account may be revoked at any time for abusive conduct on the system and/or the Internet and its resources as a whole
-7- LANSET/DataNOC/Hostik does not actively monitor the content of the websites but rigorously investigates any complaint. User is solely responsible for usage of LANSET/DataNOC/Hostik and any statement User makes on LANSET/DataNOC/Hostik system may be deemed a "publication" of the information entered. Acknowledging the foregoing, User specifically agrees not to use LANSET/DataNOC/Hostik service in any manner that is illegal, libelous, or against any LANSET/DataNOC/Hostik policy.
-8- The billable service period begins on the date the services indicated in this agreement become available to User.
-9-LANSET/DataNOC may, with 30 days notice, amend the rates and or charges for any future server usage and/or services.
10. DISCLAIMER/LIMITED WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, LANSET/DataNOC/Hostik MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LANSET/DataNOC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
11. LIMITED LIABILITY. LANSET'S LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS INVOICED TO CUSTOMER BY LANSET/DataNOC DURING THE MONTH PRIOR TO THE OCCURRENCE OF ANY CLAIM. IN NO EVENT WILL LANSET/DataNOC BE LIABLE TO THE CUSTOMER FOR LOSS OF USE, INCOME OR PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS OR HARM TO BUSINESS OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE FORESEEABILITY THEREOF EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
-12- Written notice of cancellation must be received from User at least 5 days prior to the beginning of the next billable period. Special order servers and upgrades exceeding $10000 monthly requires minimum 12 months commitment by the User. LANSET/DataNOC/Hostik have discretion as to what hardware, software or upgrade is considered to be an "Special order".
-13- This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, United States of America, and the courts of the judicial district of county of Sacramento shall have exclusive jurisdiction in respect of any proceeding in connection with this Agreement.
-14- THE ABOVE ACCOUNT AND BILLING INFORMATION APPLY TO THIS SERVICE AGREEMENT.
-15- Recurring Billing Authorization: User hereby authorizes LANSET/DataNOC/Hostik to charge the indicated credit card for services provided and applicable excess usage fees. User agrees that this is a periodic charge that will be made according to the billing cycle, and in order to terminate the recurring billing process User must either cancel User's account, or arrange for an alternative method of payment. User understands that all account cancellations for which an active recurring billing authorization exists must be made in writing according to the requirements of the Lanset America Corp. Terms of Service (TOS) which User has read and understand. User agrees not to dispute Lanset recurring billing with credit card issuer as long as the amount in question was for services rendered prior to cancellation of the account. User agrees that User will not dispute any charges from Lanset America Corporation (LANSET/ DataNOC/Hostik) unless User has already made an effort in good faith to rectify the situation directly with Lanset, and those efforts have failed. User agrees to the terms and conditions set forth in the Lanset TOS, and User understands that User will forfeit any fees paid to date if User's account is terminated as a result of a TOS violation. User understands that Lanset will not mail any invoices or bills, User will receive the receipt through email. User agrees that any credits issued by Lanset for any reason will not be refunded to the credit card, but instead deducted from the next bill. User agrees that if User has any problems or questions regarding the LANSET/DataNOC/Hostik service, User will contact Lanset for assistance, using the contact information on their web site at www.Lanset.com . User authorizes Lanset and its sponsoring agency to run an address verification search. This verification process is a security measure designed to protect the client from illegal fraud against the credit card. User guarantees and warrants that User is the legal cardholder for this credit card, and that User is legally authorized to enter into this recurring billing agreement with Lanset.
Internet Acceptable Use Policy:
This Acceptable Use Policy specifies the actions prohibited by Lanset/DataNOC to users of the Lanset Network. Lanset reserves the right to modify this Policy at any time.
General information: Lanset America Corporation is committed to providing high-quality Internet products and services for its customers. Lanset also is committed to being a responsible member of the Internet Community. Therefore, Lanset/DataNOC holds both itself and its customers to a higher standard of accountability as set forth in this Acceptable Use Policy. Lanset's Acceptable Use Policy specifies the actions prohibited by Lanset to users of the Lanset Network. Lanset reserves the right to modify this Policy at any time. If Lanset receives abuse complaints, Lanset will work diligently to resolve these complaints with our customers. However, if a customer does not abide by Lanset's Acceptable Use Policy or otherwise fails to cooperate adequately in the resolution of any complaint, Lanset may immediately restrict or terminate the customer's services, at Lanset's sole discretion, in addition to any other remedy that may be available to Lanset/DataNOC/Hostik .
Illegal use: The Lanset/DataNOC/Hostik Internet Network may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law, policy, rule, or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, pornographic, defamatory, constitutes an illegal threat, or violates export control laws. Lanset has the right, in its sole discretion, to take such action as necessary, including but not limited to: blocking or suspension or termination of the customer's services, relative to any material that in Lanset's sole judgment violates this Policy. Lanset is not responsible nor will Lanset be liable for the removal of, failure or delay in removing any such material.
System and network security: Violations of system or network security are prohibited and may result in criminal and civil liability. Lanset/DataNOC/Hostik will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
•Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
•Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
•Interference with service to any user, host or network including, without limitation, mail-bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
•Forging of any TCP/IP packet header or any part of the header information in an email or a newsgroup posting.
Spam Emails: Sending or causing to be sent unsolicited electronic mail messages (spam), including, without limitation to commercial advertising and informational announcements is explicitly prohibited. Lanset reserves the right to take any and all legal and technical action required to prevent mail relaying, and unsolicited email from entering, utilizing or remaining within the Lanset Network. A customer running their own mail server may not relay through Lanset's mail servers. If Lanset/DataNOC/Hostik receives complaints resulting from an open relay, the customer may be subject to network restrictions.
Distribution of Internet Viruses or Other Destructive Activities: Distributing information regarding the creation of and sending Internet viruses, worms, Trojan Horses and other destructive activities such as cracking is expressly prohibited.
Other Activities: Engaging in activities, whether lawful or unlawful that Lanset determines to be harmful to its subscribers, operations, reputation, goodwill or customer relations is expressly prohibited.
DISCLAIMER OF WARRANTIES AND LIABILITY:YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH A LANSET/DataNOC WEBSITE OR NETWORK. ANY CONTENT OR INFORMATION ACCESSED BY OR PROVIDED TO YOU THROUGH A LANSET/DataNOC NETWORK OR WEBSITE IS PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." LANSET/DataNOC, ITS AGENTS, AND ITS LICENSORS DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH ITS WEBSITE OR NETWORK. YOU ACCESS SUCH CONTENT OR INFORMATION AT YOUR OWN RISK. LANSET/DataNOC DOES NOT GUARANTEE THAT ITS NETWORK OR WEBSITES WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR THAT IT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UNDER NO CIRCUMSTANCES WILL LANSET/DataNOC, ITS AFFILIATES, ITS AGENTS OR ITS LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES THAT ARISE FROM THE USE OF ITS NETWORK OR WEBSITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND-FOR EXAMPLE, COMPENSATORY, SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES-EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE AGGREGATE LIABILITY OF LANSET, ITS AGENTS, AND ITS LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY CONNECTED TO ANY LANSET/DataNOC NETWORK OR WEBSITE WILL NOT EXCEED $100.00. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF LANSET/DataNOC, AND ITS AFFILIATES, AGENTS AND LICENSORS IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
INDEMNIFICATION: You agree to indemnify, defend and hold harmless LANSET/DataNOC/Hostik from and against all claims, liabilities, losses, expenses, damages and costs (including reasonable attorneys' fees) that arise from: (1) any violation of this Policy and Agreement by you; (2) any violation of any rights of a third party by you; (3) any violation of applicable law; (4) information or content that you submit, post, transmit or make available through our Websites, Services or Network; or (5) your use of our Websites, Services or Network.
MODIFICATION OF THE POLICY AND AGREEMENT: LANSET/DataNOC/Hostik reserve the right to modify this Policy and Agreement at any time, effective upon its posting, as modified, on DataNOC.com. You agree to the Policy and Agreement by accessing or using our Websites, products or services, or by sending any electronic transmission through our Network.
MISCELLANEOUS: Any failure to insist upon or enforce performance of any provision in this Policy and Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice will act to modify any provision in this Policy and Agreement. LANSET/DataNOC/Hostik may assign its rights and duties under these terms to any party at any time without notice to you. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions so that it does not affect the validity and enforceability of any remaining provisions.
2. Colocation
In addition to above general Terms of Service, following applies to Colocation services:
DataNOC.com provides Colocation Services to customers from it's own Colocation Data Center in the U.S and from third party data centers, where the company has presence as tenant. These Colocation Services Terms and Conditions are designed to regulate the process of designing and providing the highest level of service available for Colocation Services delivered by DataNOC. DataNOC reserve the right to relocate customer’s servers and other co-located equipment to a colocation facility within the same geographical area if it becomes essential(in its sole discretion) for fulfilling its commitment to providing the service. DataNOC provides 60 days’ notice in advance and will arrange all the necessary steps for the move within reasonable amount of time and minimal downtime.
2.1 ORDERING AND PROVISION SERVICES
Customer may request Colocation Space and Services from DataNOC by placing a Service Order, Online Service Order or Phone Service Order. Upon agreement of a Service Order, DataNOC shall provide Colocation Space and Services to Customer as stated in these Colocation Terms and Conditions(Colocation Agreement).
2.2 DataNOC will start collecting monthly fees according to the terms specified in each service order. Unless otherwise agreed, DataNOC will invoice and collect by auto-pay monthly in advance for all recurring Fees and estimated usage (power and bandwidth) fees. At the end of each 30-dayservice period usage-based fees will be amended if the need be. Fees will be listed on Service Orders, except for Online Service Orders, which will be subject to DataNOC list price unless otherwise, agreed with the Customer.
2.3 All amounts payable by Customer to DataNOC under these Colocation Terms and Conditions exclude Taxes. Customer shall be responsible for (a) Taxes related to its activities and the ownership and operation of Customer’s Equipment and (b) Taxes imposed or assessed thereon by any governmental or other authorities.
3. ACCESS TO AND USE OF THE DATANOC DATA CENTERS
3.1 Subject to these Colocation Terms and Conditions(Colocation Agreement), Customer will have access to the Colocation Space twenty-four (24) hours per day, every day of the year. However, Customer shall comply with the Policies, which have been incorporated herein by reference. DataNOC may modify the Policies from time to time effective upon notice. Customer may terminate a Service Order for Colocation Space, if DataNOC modifies the Policies in a way that materially adversely affects Customer’s use of the Colocation Space and the Services and if Customer provides written notice of termination within seven (7) days from the date of DataNOC notice of Policies change.
3.2 Customer shall be responsible and liable for all acts or omissions of Customer’s Authorized Persons, associates and for any equipment or services not provided by DataNOC. Customer shall compensate for harm or loss, secure against legal responsibility, defend and hold harmless the DataNOC Parties from any and all liability, loss, damages, costs and expenses(including reasonable attorneys’ fees and expenses) for third-party claims brought by, arising from or related to Customer’s Authorized Persons or associates.
4. WARRANTY AND LIMITATION OF LIABILITY
4.1 Each Party represents, warrants and agrees that it will comply with all applicable laws and regulations in connection with these Colocation Terms and Conditions. DataNOC represents, warrants and agrees that it shall provide the Colocation Space and perform the Services in a professional manner. Customer represents, warrants and agrees that it will maintain throughout the Term the legal right and authority to install, configure, operate and maintain Customer’s Equipment as contemplated by these Colocation Terms and Conditions.
4.2 All Colocation Space and Services are provided or performed on an “as is”, “as available”, basis, and customer's use of the Colocation Space and Services is solely at its own risk. Except as otherwise set forth in these Colocation Terms and Conditions, DataNOC does not make and, as a result of this document, disclaims all warranties including but not limited to express, implied and statutory warranties that the services will be uninterrupted, error-free, or completely secure and the implied warranties of merchantability or satisfactory quality, suitable for a particular purpose and non-infringement of any third party's intellectual property rights.
4.3 Notwithstanding anything to the contrary in this Colocation Agreement, in no event will either party be liable to the other party for (a) lost profits; (b) loss of business; (c) loss of revenues; (d) loss of data, interruption or corruption of data; (e) any consequential or indirect damages; or (f) any incidental, special, reliance, exemplary or punitive damages (if applicable), even if advised of the possibility of such damages, except that customer shall be liable for any fees or other amounts owed to DataNOC under this Colocation Agreement.
4.4 Notwithstanding anything to the contrary in these Colocation Terms and Conditions, DataNOC total liability to Customer in aggregate for the entire term (regardless of whether the claims are brought during or after the term) with respect to all claims arising from or related to the subject matter of these Colocation Terms and Conditions (including attorney's fees) will not exceed the amount actually paid by Customer to DataNOC for the one (1) month period immediately preceding the month in which the first claim arose. As a further limitation, DataNOC maximum liability for any claims relating to the Colocation Space and the Services offered or provided by DataNOC(a) for a non-recurring charge only; or (b) as remote hands and management services, shall not exceed the amount of the fee for such Colocation Space and Services provided on the occasion giving rise to the claim.
4.5 The limitations set forth in sections 4 (4.3) and 4(4.4) will apply to all claims and causes of action, regardless of whether in contract, an infringement, strict liability or other argument or position.
4.6. DataNOC and Customer each waive the right to bring any claim against the other Party arising out of or in any way relating to a Service Order more than six (6) months after the date such Service Order expires or is terminated. Each Party recognizes and agrees that the warranty disclaimers, limitations of liability and remedy limitations in this Agreement are materially bargained for by DataNOC and Customer.
5. INSURANCE
5.1 Customer agrees to maintain the insurance, at its expense, Commercial General Liability or Public Liability Insurance. Such insurance will include coverage for bodily injury and property damage; Workers’ Compensation and Employer’s Liability insurance where required by local statute; and All Risk Property Insurance on a replacement cost basis with limits adequate to cover the value of Customer’s Equipment.
6. TERM, TERMINATION AND SUSPENSION
6.1 These Colocation Terms and Conditions will commence on the Start Date and will terminate on the date the last Service Order then in effect expires or is terminated. A termination of these Colocation Terms and Conditions shall terminate all Service Order(s).
6.2 Either Party may terminate these Colocation Terms and Conditions by giving written notice to the other Party if the other Party breaches any material term or condition of this Colocation Agreement and fails to cure such breach within twenty (20) days after receipt of such notice. If Customer fails to cure a monetary breach, Customer will be responsible for all collection costs including reasonable attorneys’ fees. If the breach cannot be cured within twenty (20) days, the breaching Party shall be given a reasonable period of time, but not to exceed thirty (30) days after receipt of the notice to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach.
6.3 Either Party may terminate this Agreement immediately upon giving written notice to the other Party if such other Party becomes unable to pay its debts as they become due, ceases to do business, enters into a deed of arrangement, undergoes judicial management, commences the process of liquidation, has a receiver appointed or begins winding up or similar arrangements.
6.4 Without limiting DataNOC rights under Section 6 (6.2), DataNOC may suspend the provision of the Colocation Services, deny access to and the removal of Customer’s Equipment from the DataNOC data center, if Customer fails to cure any monetary breach of these Colocation Terms and Conditions within twenty (20) days after notice of the same (or within five (5) days after notice of the same in the event Customer’s account is past due on two (2) or more occasions during a twelve (12) month period).
6.5 DataNOC may suspend the use of Colocation Services if(a) Customer or Customer’s Equipment interferes with DataNOC operation or maintenance of the DataNOC data center or with one or more of DataNOC other customers' use thereof, and within a reasonable time, not to exceed two (2)hours after being notified by email or phone, Customer fails to (a) cease such interference; (b) provide a plan acceptable to DataNOC to cease such interference; or (c) authorize DataNOC to take action to cease such interference (billed at Managed Service rates); or (d) in DataNOC reasonable judgment Customer or Customer’s Equipment has the potential to interfere with DataNOC operation or maintenance of the DataNOC data center or with one or more of its other customers' use thereof, and within a reasonable time, not to exceed forty-eight (48) hours after being notified by e-mail or phone, Customer fails to (e) resolve such potential interference; (f) provide a plan acceptable to DataNOC to resolve such potential interference; or (g) authorize DataNOC to take action to resolve such potential interference (billed at Managed Service rates). If DataNOC suspends the use of Colocation Services pursuant to this Section 6 (6.5),unless DataNOC has subsequently terminated these Colocation Terms and Conditions as permitted under these Colocation Terms and Conditions, DataNOC will reinstate use of Colocation Services and resume the discontinued Services as soon as reasonably practical after it is reasonably satisfied that Customer has cured the breach(s) which gave rise to the suspension; and DataNOC may charge a reinstatement fee. Further, DataNOC may terminate these Colocation Terms and Conditions if Customer’s breach referred to in this Section 6 (6.5)continues for at least seven (7) days or occurs more than three (3) times in any twelve (12) month period.
7. REMOVAL OF CUSTOMER’S PROPERTY
7.1 Customer shall remove all of collocated equipment on the expiry or termination of the applicable Service Order or before its expiry date. Unless DataNOC otherwise allowed in written correspondence, failure to remove Customer’s equipment within ten (10) days from the termination of the applicable Service Order will constitute abandonment of Customer’s Equipment under the U.S. laws and DataNOC will be entitled to pursue all available legal remedies, including, without limitation and at Customer’s risk and expense: (a)immediately removing Customer’s equipment and storing it at Customer’s expense at an on-site or off-site location; (b) shipping it to Customer at Customer's expense; (c) upon thirty (30) days’ prior written notice to Customer, liquidating it, and retaining the proceeds.
7.2 Subject to Section 7 (7.1), while Customer has no right to use the Colocation Space or Services after a Service Order expires or terminates, if DataNOC permits Customer to do so in its sole discretion, Customer will remain bound by the Terms of the Service Order and these Colocation Terms and Conditions, including, without limitation, all payment obligations, and such continued use may be terminated by DataNOC immediately upon notice.
8. CONFIDENTIAL INFORMATION
8.1 “Confidential Information” means information disclosed by one Party to the other Party; including (a) information identified by the disclosing Party, in writing, as confidential at the time of disclosure; (b)information containing the disclosing Party’s customer base, customer information, technical information, trade secrets, customer communications or proposals, benchmarking information or information relating to its business operations; (c) the design of the DataNOC data center, infrastructure, the Colocation Space, the Services provided, equipment used at the DataNOC data center, the configuration of cables, networks and services at DataNOC data center.
Information is not deemed Confidential Information if it (a)is known to the receiving Party prior to receipt from the disclosing Party from a source other than one having an obligation of confidentiality to the disclosing Party; (b) becomes known to the receiving Party from a source other than one having an obligation of confidentiality to the disclosing Party; (c)becomes publicly known or otherwise ceases to be confidential, except through a breach of these Colocation Terms and Conditions by the receiving Party.
8.2 Neither Party will use or disclose Confidential Information from the other Party without the prior written consent of the other Party except where (a) if in the opinion of counsel, the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after taking steps to maintain its confidentiality where practicable; or (b) reasonably necessary to be made to that Party’s, or its employees, officers, executives, attorneys, accountants and associates or(c) necessary for a Party to exercise its rights and perform its obligations under these Colocation Terms and Conditions.
8.3 Neither Party grants the other Party the right to use its trademarks, service marks, trade names, copyrights, other intellectual property rights or other designations in any promotion, publication, or press release without the prior written consent of the other Party in each case.
9. MISCELLANEOUS
9.1 These Colocation Services Terms and Conditions, Acceptable Use Policy, Privacy Policy and all Service Orders, constitute the entire Service Agreement between the Parties with respect to the subject matter of this Colocation Terms and Conditions, and supersede and replace all prior discussions, negotiations, proposals, understandings and agreements. Each Party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in these Colocation Terms and Conditions, but nothing in this Section 9 (9.1) shall limit or exclude a Party’s liability for fraud. These Colocation Terms and Conditions may be executed in two or more counterparts, each will be deemed an original, but all together will constitute one and the same instrument.
9.2 Each Party agrees that it has reviewed these Colocation Terms and Conditions, and these Colocation Terms and Conditions shall not be interpreted more strictly against the drafting Party. The section headings and paragraphs in bold are for convenience only and will not be used to interpret these Colocation Terms and Conditions.
9.3 Sections 3 (3.4), 4 (4.3), (4.4) and (4.6), 7, and 9 (9.3)will survive the termination of this Colocation Agreement. Section 8 will survive for two (2) years after termination of these Colocation Terms and Conditions.
9.4 DataNOC may permit its subsidiary or other third party, to perform any of DataNOC obligations as provided for under the terms of this Colocation Agreement. DataNOC may transfer these Colocation Terms and Conditions or any of their rights and obligations hereunder with prior notice to Customer. Customer may transfer these Colocation Terms and Conditions or any of its rights and obligations as provided for under the terms of this Colocation Agreement to an Affiliate or to an entity which is acquiring Customer’s business or assets with prior notice to DataNOC, and in all such events the person or entity to whom these Colocation Terms and Conditions are assigned by Customer must agree in writing to be bound by all of the terms of these Colocation Terms and Conditions.
9.5 Except for Customer’s obligation to pay amounts owed under these Colocation Terms and Conditions, including Fees, neither Party will be responsible or in any way liable to the other Party, and neither Party will have any termination or other rights, arising out of or relating to a failure by the other Party to perform any of its obligations under this Agreement if such failure is caused by events or circumstances beyond its reasonable control. These events may include but not be limited to acts of God, war, labor strike, fire, flood, earthquake, health epidemic, an act of terror or any law, Service Order, regulation or other action of any governing authority.
9.6 The Parties are independent contractors and these Colocation Terms and Services do not establish any relationship of partnership, joint venture, employment, franchise or an organization between them. Neither Party may bind the other or incur obligations on the other’s behalf without the other’s prior written consent. There will be no third-party beneficiaries to this Colocation Agreement. No waiver of any breach of any provision of these Colocation Terms and Conditions will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.