The use of services from Tier.Net Technologies, LLC (hereinafter referred to as "Tier.Net", "us", "we", or "our") constitutes agreement to these terms and policies:
Colocation Hosting Terms of Service are a supplement to Tier.Net's Terms of Service Policy to provide more specific terms as they relate to the colocation hosting of customer-owned and rent-to-own dedicated servers and related accessories. In instances in which Customer has entered into a written agreement known as a "Colocation Master Services Agreement," the terms of the Colocation Master Services Agreement will supersede these terms.
TIER.NET and Customer acknowledge and agree that upon execution of a colocation service order, they shall be legally bound by these Terms of Service.
THE BUILDING: TIER.NET owns and/or occupies certain Buildings for the purpose of providing data center related hosting services. Pursuant to its ownership or a Lease with a Building owner, TIER.NET has the right to execute and enter into this Agreement for Space in the Premises located within the Building. Customer is not a party to, or a beneficiary under the Building or Building Lease and has no rights thereunder.
Customer owns or is renting to own the computer and related communications equipment ("Equipment") that Customer is colocating within designated areas of Tier.Net’s datacenter.
Subject to the terms and conditions set forth in this Agreement, TIER.NET hereby grants to Customer the right and non-exclusive license ("License") to install and operate the Equipment in the specific space or spaces ("Space") located in the premises ("Premises") in the Building, as specified by TIER.NET during the Term of this Agreement and solely to use the Space for the Permitted Uses set forth below and for no other purposes. In instances that Customer maintains a minimum half or full private rack of colocated space, Customer shall have 24/7 access to the Space in accordance with the reasonable policies and requirements of the Building owner. Such policies include, but are not limited to, providing acceptable advance notice of intended access via TIER.NET's support ticketing system, providing valid government-issued photo identification upon arrival, and escorting any persons not directly employed by Customer. TIER.NET will add authorized representatives of Customer to the Access Control List (ACL) to allow access, to up to two representatives at a time, to the space without the need for advance access permission. However, for security purposes, it is understood that Customer will still notify TIER.NET via support ticket at least 30 minutes in-advance of any intended presence in the Building. Continued ACL access is contingent upon following all policies of the Building owners and management. It should be noted also for security purposes, photography or videography of any kind is strictly prohibited inside the datacenter. Notwithstanding the foregoing, TIER.NET reserves the right to re-locate, change or otherwise substitute replacement space in the Premises for the Space at any time during the Term hereof, provided that the replacement space is substantially similar in size and configuration to the original Space.
This Agreement and the License shall commence on the date that the space is ready for use by the Customer for a minimum term of one month unless otherwise specified. After the initial term, and for each term thereafter, the term will continue to automatically renew for an additional 1-month term unless canceled by either party in writing at least thirty days before the expiration of the current term (the "Term"). Provided, however, the Term shall terminate prior to the scheduled date of termination if subject to Sections 12, 13, and/or 14 below.
Customer has the right to use the Space solely for the purpose of (i) installation of the Equipment in the Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment. Also, Customer shall have the right to sublease the Space, provided such sublease is subject to the same terms and conditions of this Agreement (the "Permitted Uses"). Unless otherwise agreed by TIER.NET in writing, Customer shall perform the Permitted Uses at its sole cost and expense. Customer shall not use or allow or permit the use of the Space for any use or purpose other than a Permitted Use.
Tier.Net’s Network and Services must be used in a manner that is permitted within the laws of the United States of America and that is consistent with their intended purpose. Certain state and local laws may also apply that are specific to the location of the Building. Users may not use Tier.Net’s Network and Services in order to knowingly transmit, distribute or store material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, (c) that is fraudulent, obscene, defamatory, libelous, threatening, abusive or hateful or that contains a virus, worm, Trojan horse, or other harmful component, (d) containing fraudulent offers for goods or services or any promotional materials that contain false, deceptive or misleading statements, claims or representations or (e) generally, in a manner that may expose Tier.Net or any of its personnel to criminal or civil liability.
Tier.Net takes no responsibility for any material created or accessible on or through Tier.Net's Networks and Services that is not posted by or at the request of Tier.Net. Tier.Net does not monitor nor exercise any editorial control over such material but reserves the right to do so to the extent permitted by applicable law. Tier.Net is not responsible for the content of any websites other than Tier.Net’s websites, including for the content of websites linked to such Tier.Net's websites. Links are provided as Internet navigation tools only.
Users may not send unsolicited e-mail messages, including, without limitation, bulk commercial advertising or informational announcements ("Spam") in a way that could be reasonably expected to adversely impact Tier.Net's Network and Services, including, without limitation, using an e-mail account on Tier.Net's network to send Spam, or using the service of another provider to send Spam or to promote a site hosted on or connected to Tier.Net’s network. In addition, Users may not use Tier.Net’s Network and Services in order to (a) send e-mail messages which are excessive and/ or intended to harass or annoy others, (b) continue to send e-mail messages to a recipient that has indicated that he/she does not wish to receive them, (c) send e-mail with forged TCP/IP packet header information, (d) send malicious e-mail, including, without limitation, "mailbombing", (e) send or receive e-mail messages in a manner that violates the use policies of any other internet service provider, or (f) use an e-mail box exclusively as a storage space for data.
Users are prohibited from violating or attempting to violate the security of Tier.Net’s Network and Services, including, without limitation, (a) accessing data not intended for such User or logging into a server or account which such User is not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with, disrupt or disable service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing”, (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or (e) taking any action in order to obtain services to which such User is not entitled. Violations of system or network security may result in civil or criminal liability. Tier.Net will investigate occurrences that may involve such violations and may involve, and co-operate with, law enforcement authorities in prosecuting Users who are involved in such violations.
Any User which Tier.Net determines, in its sole discretion, to have violated any element of this Acceptable Use Policy shall receive a written warning and may be subject, at Tier.Net’s discretion, to a temporary suspension of service until such User agrees in writing to refrain from any further violations. However, where Tier.Net deems it necessary, it may in its sole discretion immediately suspend or terminate such User’s service without issuing such a warning. Users which Tier.Net determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice and Tier.Net may take such further action as Tier.Net solely determines to be appropriate under the circumstances to eliminate or preclude such violation. Tier.Net shall not be liable for any damages of any nature suffered by any Customer, User, or any third party resulting in whole or in part from Tier.Net’s exercise of its rights under these policies.
In the course of serving our Customers, we may acquire, store and transmit communications and information that Customers might regard as private or sensitive. Some of this information – such as Customer name, address, credit card information, etc. – is provided to us by Customers in order to obtain Services. Other information – such as Customer’s account status, choice of Services, Customer logs, etc. – is created and maintained by us in the normal course of business. We also may use cookies, which are small pieces of information that a website can store in a designated file on a user’s computer for various reasons. Furthermore, we may store Customer’s emails and other electronic communications as necessary for the transmission and delivery of those communications.
Customer represents, warrants, covenants, acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space, the Premises or the Building; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.
Prior to the date of execution of the Colocation Service, Customer agrees to and shall pay to TIER.NET that amount which is equal to the sum of the first month’s term plus any applicable setup fees. Customer shall not engage in any of the Permitted Uses until all of the requirements of this Section 3 have been fully satisfied. If an additional advance payment is required, the advance payment shall be held as a non-interest bearing security deposit and will be applied to any balance due in the event of default.
Pursuant to the Colocation Service Order Form, TIER.NET has agreed to provide certain services ("Services") to the Customer, and the Customer has agreed to pay certain fees ("Fees") to TIER.NET in consideration therefore. The Services include the License. For month-to-month , quarterly, and semi-annual service terms, TIER.NET shall have the right to increase the Fees as needed but prior to the renewal of an additional term. If under a minimum one-year term commitment, Tier.Net shall have the right to increase the Fees (a) Every Twelve (12) months.
Customer shall have the right to purchase additional Services offered by TIER.NET from time to time. TIER.NET agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in this Agreement. The term of any additional services shall also be incorporated into the term of the existing service. Add-on services cannot be cancelled part-way through the term of the existing colocation services. Customer also agrees to pay Tier.Net for any requested "Remote Hands" technical services provided as requested to service Customer’s equipment and/or network configuration. Customer also agrees to pay for any bandwidth overages beyond the contracted amount of bandwidth included as indicated on the Colocation Service Order Form.
As a Colocation Customer, you acknowledge that you are responsible for all things related to the operation and management of your equipment. Colocation hosting services are not the same as dedicated server hosting services. You acknowledge that you understand the differences, especially as they relate to the cost of operating and maintaining your equipment. Costs that may be typically included with dedicated server hosting are not included in colocation hosting. For example, the Customer bears the responsibility for hardware maintenance and repairs, de-racking, shipping, insurance, and other related costs. A copy of our current Colocation Remote Hands rates, which describes many of these additional services, is available upon request.
All Fees and other sums which are or may hereafter be owed to TIER.NET by the Customer under this Agreement (including without limitation Default Interest, Late Charges and attorney’s fees and other costs of collection are called the "Obligations". In order to secure the payment and performance of the Obligations, the Customer hereby grants to TIER.NET a security interest, within the meaning of Article 9 of the Uniform Commercial Code (the "UCC") in all Equipment, cable, wiring, connecting lines, and other installations, equipment or property of the Customer now or hereafter installed or placed in the Space or Premises. Except with respect to TIER.NET’s security interest, the parties agree that the Uniform Commercial Code shall not apply to the Agreement.
On or before the first (1st) day of each and every month of service during the Term hereof (each, a "Due Date"), Customer agrees to and shall pay the Fees to TIER.NET, in advance, for the Services to be rendered by TIER.NET to Customer during said upcoming month, without offset, deduction or credit of any kind and in good and drawable funds. If Customer for any reason fails to pay the Fees to TIER.NET by the Due Date of any month during the Term hereof, Customer will be assessed an administrative charge in the amount which is equal to ten (10%) of the overdue Fees ("Administrative Charge"); in addition, TIER.NET may charge interest on all due but unpaid Fees at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law ("Default Interest") until paid in full. Customer agrees to and shall pay to TIER.NET for all costs of collection of the Fees, Default Interest and Late Charges plus TIER.NET’s attorneys’ fees, costs, expenses, and court costs and fees paid or incurred in connection therewith. Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of the Agreement. If Customer requests that TIER.NET provide services not specifically set forth herein and TIER.NET agrees to provide such services, Customer agrees to pay TIER.NET’s standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service and such services shall be included within the definition of "Services". TIER.NET may suspend or otherwise cease performing any or all Services to Customer if payment for any Service is not timely paid in full. Such suspension shall include, without limitation, denying Customer access to the Space or Premises and changing locks and access codes. Time is of the essence with respect to Customer’s performance and the making of payments hereunder. A Reinstatement Fee equal to seventy-five dollars ($75.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate and all Services subject to those undisputed Fees shall be deemed fully accepted and by TIER.NET and in full compliance with this Agreement.
Customer is responsible for all taxes under this Agreement, however designated, levied, or based on such charges excluding income taxes payable by TIER.NET, and Customer's tax obligations include, without limitation, all state and local privilege taxes, sales and use taxes, excise taxes based on gross revenue, and ad valorem or personal property taxes (collectively, "Tax"). Customer agrees that if any of the foregoing is paid by TIER.NET, Customer shall reimburse TIER.NET for the amount paid plus any related expenses incurred and interest assessed. Unless otherwise stated as a separate line item on any bill or invoice provided by TIER.NET, all payments required by this Agreement are exclusive of any applicable Tax.
All Fees and other sums which are or may hereafter be owed to TIER.NET by the Customer under this Agreement (including without limitation Default Interest, Late Charges and attorney’s fees and other costs of collection are called the "Obligations". In order to secure the payment and performance of the Obligations, the Customer hereby grants to TIER.NET a security interest, within the meaning of Article 9 of the Uniform Commercial Code (the "UCC") in all Equipment, cable, wiring, connecting lines, and other installations, equipment or property of the Customer now or hereafter installed or placed in the Space or Premises. Except with respect to TIER.NET’s security interest, the parties agree that the Uniform Commercial Code shall not apply to the Agreement.
Customer agrees to and shall abide by and honor all rules, regulations, policies, and procedures with regard to the use of the Space, the Premises and the Building from time to time published by TIER.NET (whether written or published on TIER.NET’s website)
TIER.NET and Customer, for itself, its agents, employees, and representatives, agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law.
Customer agrees to and shall maintain in force and effect during the Term of this Agreement one or more policies of commercial general liability insurance, with a company licensed to do business within the state where the Building is located, insuring Customer against all hazards and risks customarily insured against by persons locating equipment such as the Equipment in space in buildings such as the Space in the Building.
Customer and TIER.NET, and their respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies, and subsidiary companies (each, as an "Indemnifying Party") each hereby agree to and shall indemnify, defend, protect and hold the other party and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies, and subsidiary companies (each, as an "Indemnified Party") free and harmless from and against all Claims (defined below) for damages (including but not limited to attorneys’ fees, costs, and expenses), injury and death arising out of or relating directly or indirectly to the failure or alleged failure by the Indemnifying Party to comply with this Agreement, the License granted hereunder and Customer’s use of the Space. For purposes of this Section, the term "Claims" means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs. This indemnification extends to and includes (a) Claims for injury to any persons (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction of the Space or Premises). The provisions of this Section shall survive the termination, cancellation, or expiration of this Agreement for any reason. The Indemnified Party seeking indemnification under this Section shall give the Indemnifying Party prompt notice of any claim asserted or threatened against such Indemnified Party on the basis of which such Indemnified Party intends to seek indemnification, but the obligations of the Indemnifying Party shall not be conditioned upon receipt of such notice except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice). The Indemnifying Party shall promptly assume the defense of any Indemnified Party, with counsel reasonably satisfactory to such Indemnitee, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing, any Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Indemnifying Party and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. No Indemnifying Party may agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.
THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS. TIER.NET PROVIDES THE SPACE AND THE SERVICES ON AN "AS-IS WHERE-IS" BASIS AND WITH "ALL FAULTS" AND MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE SPACE, THE PREMISES, THE BUILDING, THE LICENSE, OR ANY OTHER RIGHTS, OBLIGATIONS OR PERFORMANCE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE ALL HEREBY
DISCLAIMED. TIER.NET SHALL NOT BE RESPONSIBLE FOR ANY DELAYS OF ANY KIND, REGARDLESS OF CAUSE. In the event of any breach of this Agreement by TIER.NET, Customer’s sole and exclusive remedy shall be as follows: upon delivery of written notice to TIER.NET of the breach, TIER.NET shall, in its sole discretion, re-perform or correct any Services or other breaches, or provide to Customer a refund or credit in accordance with the terms and conditions of the Service Level Agreement attached hereto as Exhibit B. THE FOREGOING OBLIGATIONS AND REMEDIES SET FORTH IN THE PRECEDING SENTENCE SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT, WHICH REMEDIES SHALL APPLY EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
The occurrence of any one or more of the following shall constitute an "Event of Default" by Customer under this Agreement: (a) Customer for any reason fails to pay to TIER.NET any Fees, Obligations or any other amount due hereunder within 10 days of any service due date or (b) Customer fails to perform any obligation or covenant set forth in this Agreement and is not cured within ten (10) business days following receipt of written notice thereof.
In the event of any default by Customer, TIER.NET will provide Customer written notice of such default, and Customer shall have five (5) days from receipt of notice to cure any such default, prior to TIER.NET taking any action or remedy provided to TIER.NET pursuant to this Agreement. If default has not been cured, in addition to all other rights and remedies granted to TIER.NET in the Agreement and available under applicable law, (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default by Customer, all obligations of TIER.NET to provide to Customer the Services and use of or access to the Space under this Agreement shall immediately and automatically terminate without further notice to Customer and TIER.NET shall have the right to: (i) cease providing the Services to Customer and cease providing access to or use of the Space and Premises and change locks and access codes, without notice to Customer, and (ii) remove the Equipment from the Space and Premises without notice to Customer in accordance with Section 12(c) below; and (iii) terminate this Agreement, subject to the continuing rights of TIER.NET under this Agreement to require payment of the Obligations and to exercise the remedies provided in Section 12(c) below.
Customer agrees that, upon the cancellation, expiration, or termination of the License or this Agreement by Customer, or if by Tier.Net due to Customer’s account becoming past due by more than 90 days or due to termination by court order, Customer shall, within ten (10) days, make payment in full on all Obligations under this Agreement, including all outstanding Fees, Default Interest, Late Charges, and other amounts, and promptly remove or have removed, at Customer’s sole cost and expense, all Equipment and all cable, wiring, connecting lines, and other installations, equipment or property installed or placed by or for Customer in the Space or Premises and restore those portions of the Space and Premises damaged by such removal to their original condition as it existed immediately prior to the installation or placement of such items.
If Customer fails to promptly make full payment to TIER.NET of all Obligations and fails to remove any Equipment or other items as set forth in Section 12(b) above, or if TIER.NET has the right to remove the Equipment as set forth in Section 12(a) above, then, to the fullest extent permitted by law, TIER.NET shall have the right to take and hold possession of the Equipment, and TIER.NET shall have all of the rights of a secured party with respect to the Equipment and all other collateral for the Obligations. TIER.NET may, at Customer’s expense: (i) remove and store such Equipment and items; (ii) delete and remove all software, information data, and other stored items from the Equipment without retaining any copies or backups; and (iii) restore those portions of the Space and Premises damaged by such removal to their original condition as it existed immediately prior to the installation or placement of such items. All costs and expenses incurred in connection with (i), (ii), and (iii) in the preceding sentence shall be included within the definition of "Obligations". TIER.NET may, unless all outstanding Obligations are paid to TIER.NET within ten (10) days after written notice to the Customer, dispose of the Equipment and other collateral for the Obligations at public or private sale, in the manner permitted under the Uniform Commercial Code, and may exercise any other remedy available to TIER.NET at law or in equity.
Notwithstanding anything to the contrary contained in this Agreement, Customer shall not be permitted to remove any of Customer’s Equipment from the Space or Premises at any time when Customer is subject to an Event of Default, delinquent in meeting any of its payment obligations, or is otherwise in breach of any other material term under this Agreement. Full payment shall be a condition of Customer receiving access to the Space and Premises and Customer’s removal of its Equipment.
Upon the termination or cancellation of this Agreement for any reason whatsoever prior to the end of the then-current term other than termination or cancellation as a result of a default by TIER.NET under Section 13 below, all Fees and other costs, expenses, and amounts for the License, the Services and any other Obligations incurred during the full Term of the Agreement shall be immediately and automatically accelerated and due and payable in full to TIER.NET within ten (10) days of the date of such termination or cancellation.
The failure by TIER.NET to perform any obligation or covenant set forth in this Agreement, if the same is not cured within ten (10) business days following receipt of written notice thereof, shall constitute an "Event of Default" by TIER.NET. Upon the occurrence of such Event of Default, Customer may terminate the Agreement upon not less than three (3) business days' written notice to TIER.NET.
If any legal or administrative action or proceeding is brought by either party against the other party to enforce or interpret any term or provision of this Agreement, the prevailing party in said action or proceeding shall be entitled to recover from the party not prevailing its reasonable attorneys’ fees and costs incurred in connection with the prosecution or defense of such action or proceeding. The foregoing includes, without limitation, attorneys’ fees and costs of investigation incurred in appellate and remand proceedings, or costs incurred in establishing the right to indemnification.
The License and obligations under this Agreement are personal to Customer, and TIER.NET has entered into this Agreement and granted the License to Customer after an evaluation of creditworthiness and experience. Customer may not assign, sub-license or transfer this Agreement or the Space or License in whole or in part, whether by contract, merger, reorganization, or the sale of all or substantially all of the stock, equity, or control of Customer, and Customer will not allow any other person or entity to use the Space or License for any reason, without first obtaining the prior written consent of TIER.NET, which consent may be granted or withheld in TIER.NET’s sole and absolute discretion. Any purported assignment or delegation without the required consent shall be null and void and of no legal force or effect.
The Agreement and all documents and instruments executed in connection therewith or herewith shall be governed by and interpreted in accordance with the substantive laws of the State of Florida without regard to principles of conflict of laws. The parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this Agreement shall be an appropriate court located in Brevard County, Florida.
The failure of either party at any time to enforce any right or remedy available to it under the Agreement or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either party.
(I) THE TOTAL AND AGGREGATE LIABILITY OF TIER.NET TO CUSTOMER FOR ANY REASON WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSE, THE SERVICES, PREMISES OR SPACE SHALL NOT, IN ANY EVENT, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO TIER.NET BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; AND (II) IN NO EVENT SHALL TIER.NET BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, INJURY TO BUSINESS OR REPUTATION, LOST DATA, BUSINESS OR CUSTOMERS, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS WHICH RESULT FROM ANY OUTAGES OF THE SERVICES OR ANY OTHER FAILURE OF CONNECTIVITY OR ANY OTHER FAILURES.
(I) THE CONTENT OF THE INFORMATION PASSING OVER TIER.NET’S NETWORK; (II) UNAUTHORIZED ACCESS OR DAMAGE TO, ALTERATION, THEFT, DESTRUCTION OR LOSS OF, EQUIPMENT, CUSTOMER’S RECORDS, INFORMATION, FILES OR DATA; (III) CLAIMS FOR DAMAGES CAUSED BY CUSTOMER; (IV) CLAIMS AGAINST CUSTOMER BY ANY OTHER PARTY; OR (V) ANY ACT OR OMISSION OF ANY OTHER PARTY FURNISHING SERVICES AND/OR PRODUCTS, OR THE INSTALLATION AND/OR REMOVAL OF ANY AND ALL EQUIPMENT OR SUPPLIES.
CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK, INCLUDING, WITHOUT LIMITATION, FALLS, AND ELECTRIC SHOCKS, AND RELEASES TIER.NET AND ITS AGENTS, EMPLOYEES, AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY, EVEN IF CAUSED BY TIER.NET’S OWN NEGLIGENCE.
ALL OF THE LIMITATIONS IN THIS SECTION 18 SHALL APPLY EVEN IF TIER.NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE.
All notices and demands hereunder shall be in writing and shall be served by personal service by mail or, if non-USA entities, to the email address of the receiving party set forth below (or at such different address as may be designated by such party by written notice to the other party). All Notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of confirmed delivery or confirmed email or facsimile transmission. To be effective, Notices must be delivered to the attention of:
TIER.NET retains the right to access the Space at any time and from time to time to perform maintenance and repairs, to inspect the Equipment, and to perform the Services.
The phrase "Force Majeure" means and refers to any of the following events: acts of war, acts of God; rebellion or sabotage or damage resulting therefrom; expropriation or confiscation of facilities by any governmental authority; compliance with any order of any governmental authority; acts of the government in its sovereign capacity which cause a delay, deferral or suspension in TIER.NET’s ability to provide the Services; subsidence; earthquakes; hurricanes; fires; floods; explosion; accidents; quarantine restrictions; freight or other embargoes; casualty loss; strikes; labor disputes; shortages of materials or transportation; electrical blackouts or brownouts; the failure of any utility provider to deliver electricity or water to the Premises; and the failure of Customer’s Equipment. Notwithstanding the above, Force Majeure shall not include (a) any event caused by the fault, negligence, failure to pay money, or financial inability of the party claiming Force Majeure, and (b) any event within the reasonable control of the party claiming Force Majeure. A party’s obligation to pay money to another party will not be delayed, affected, or changed by an event of Force Majeure.
The parties agree that their relationship hereunder is in the nature of independent contractors. Neither party shall be deemed to be the agent, partner, joint venturer, or employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf. Each party shall be solely responsible for the payment of compensation, insurance, and taxes of its own personnel, and such personnel are not entitled to the provisions of any employee benefits from the other party. Neither party shall have any authority to make any agreements or representations on the other’s behalf without the other’s written consent. Additionally, TIER.NET shall not be responsible for any costs and expenses arising from Customer’s performance of its duties and obligations pursuant to this Agreement.
Both parties represent and warrant to the other: (1) that it is a duly organized and existing legal entity under the laws of its domicile if Customer is a corporation or partnership; (2) that it has full authority to enter this Agreement; (3) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and (4) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement, and this Agreement shall be construed as having been jointly drafted by the parties. The titles and headings for particular paragraphs, sections, and subsections of this Agreement have been inserted solely for reference purposes and shall not be used to interpret or construe the terms of this Agreement. Any purchase order or other instrument of Customer provided to TIER.NET or accompanying any payment is for Customer’s internal use only and its terms shall not alter or amend the terms of this Agreement.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.
Each party for itself, its agents, employees, and representatives agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law. The terms and conditions of this Contract shall be considered confidential or proprietary information under this paragraph. Neither party shall use the other party’s name in marketing materials including, but not limited to press releases, without the prior written consent of the other party. The obligations of confidentiality and indemnification stated herein shall survive the termination of any applicable License or Contract.
Unless superseded by a Master Colocation Services Agreement between Tier.Net and Customer, these Colocation Terms of Service represent an Agreement between Tier.Net and Customer for the use of Tier.Net’s colocation hosting services. The parties have read this Agreement and agree to be bound by its terms, and further agree that it, together with all related submitted orders, whether online or via email, (the terms of which are incorporated herein by this reference), constitutes the complete and entire agreement of the parties. No representations or statements of any kind made by either party that is not expressly stated herein shall be binding on such party. The parties agree that there are no third-party beneficiaries to this Agreement, whether express or intended.
TIER.NET provides general information on a wide range of topics that includes compliance, best practices, and cybersecurity on its website and blog with the best effort to help educate users. The information is intended for general information only and is not legal advice nor the best fit for all scenarios. TIER.NET’s postings will be updated from time to time, however, there will be cases where the information may be out of date.
TIER.NET agrees to and shall provide the Services to the Equipment in the Space in accordance with this Service Level Agreement. Capitalized terms not defined herein shall have the same meaning as in the Colocation Service Order Form and the Agreement:
TIER.NET’s intention is to provide uninterrupted power to the Equipment in the Space; however, events occur from time to time that may interrupt the power delivered to the Equipment in the Space. In the event that Customer experiences an interruption in power delivery to the Equipment in the Space (a "Power Interruption"), excluding scheduled maintenance, any Acts of God (including but not limited to interruptions caused by storms or natural disaster), TIER.NET shall, grant to Customer a percentage credit during the next succeeding month (a "Power Interrupt Percentage Credit"). Notwithstanding the foregoing, if a Power Interruption is caused by one or more events of Force Majeure or by the Customer exceeding 80% of a circuit breaker’s rating under continuous load, the Customer shall not be entitled to a Power Interrupt Percentage Credit. The Power SLA, and any related interruption credits, shall apply only to the affected space/rack/cabinet. A power downtime outage shall begin when customer loses complete power to a rack or cabinet. A credit will not be issued if Customer only has one side ("A") of power or if Customer experiences a power loss only on one side of an "A+B" power configuration.
Per 30 Minutes of downtime: 45 Minutes of the monthly fee allocable to the specific impacted power circuit.
Power Interrupt Percentage Credits are not cumulative from month to month and apply only to the month in which the Power Interruption occurred. Customer shall not receive during any month of the Term hereof a Power Interrupt Percentage Credit, which cumulatively exceeds 100% of the monthly Fee allocable to the power circuit(s) affected in the Space. Where possible, TIER.NET will provide Customer with directed remote hands-services (without charge) to power up affected Equipment on a best effort basis.
TIER.NET guarantees that the network will be available 99.99% of the time in a given month excluding scheduled maintenance, Acts of God (including but limited to storms or natural disasters), or for any downtime incurred as result of a denial of service (DDoS) attack or other malicious attack targeted against TIER.NET, the datacenter, or its clients. TIER.NET will issue a credit to the Customer for 45 minutes of the monthly Internet Access fee per each 30 minutes downtime (up to 100% of Customer’s monthly Internet Access fee). Network uptime includes functioning of all network infrastructure including router, switches, and related cabling provided by Tier.Net, with the exception of the PDU and any other components, parts, or cabling provided by the Customer. Network downtime exists when a particular customer is unable to transmit and receive data and TIER.NET records such failure in the TIER.NET trouble ticket system.
In order to qualify for a credit pursuant to this Service Level Agreement, Customer must (a) submit a support ticket through TIER.NET’s online customer portal or email [[email protected]] within one (1) business day of the occurrence of the event for which the refund or credit is being requested with notice describing with precision the dates and time of the event, the length of the event (in minutes and hours), the type of event, which rack, cage, or cabinet in the Space was affected by the event, and what effect the event had on Customer’s ability to operate the Equipment during the event. Upon opening of the support ticket, TIER.NET will commence investigating the facts which led to the event, and upon receipt of Customer’s written notice describing the event, TIER.NET and Customer shall make a joint examination of TIER.NET’s facility monitoring system records for the impacted cage, rack or cabinet in the Space. TIER.NET agrees to and shall make a determination of whether Customer is entitled to a refund or credit within thirty (30) calendar days from the occurrence of the event. Until such determination, Customer shall continue to pay on a timely basis all monthly Fees required by the Agreement without offset, credit or deduction. The amount of any refund or credit to which Customer is entitled to an impacted power circuit, Internet access, shall not exceed one hundred percent (100%) of the monthly Fee allocable to the specific impacted power circuit or Internet access. Under no circumstance will Customer be entitled to a refund or credit if the event complained of was caused by an event of Force Majeure, scheduled maintenance, Acts of God, malicious attack, or Customer’s actions.
Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises, and the Building from time to time published by TIER.NET (whether written or published on TIER.NET’s website). Customer agrees to be bound by these Terms and Conditions. Customer also acknowledges that it has reviewed TIER.NET’s Terms of Service and Privacy Policies (available online at www.tier.net/privacy).
Experts are online now to answer your questions.