This Connectivity
& Bandwidth Agreement (the “Agreement”) by and between DIAD Networks, LLC “DIAD” Address: 7 Hemion Road Montebello, NY 10901 Contact: Philip Bodner, Telephone:
(732) 410-9033 x 853 Fax: (845) 503-2859 Email: pbodner@diadnetworks.com
and "Customer
This Agreement (which includes and incorporates by reference Schedule
1 attached and any subsequent Service Agreements referencing this contract)
sets forth the terms under which the parties agree that DIAD will provide
certain services to Customer according to the following specifications:
The Term of this Agreement will commence on the “Effective Date”
from Schedule 1 or the day the Customer connects to the DIAD Network, or accepts
any service referenced in Schedule 1 or subsequent Service Agreements
referencing this Agreement. The term
will be specified in Schedule 1 and will apply severally to each service
provided from the date of completed installation of each service (the start
bill date for that service). If a subsequent service order has a different
term, said term will be binding from the time of completed installation, but
will only apply to said service order.
GENERAL TERMS
AND CONDITIONS
1. Services: DIAD agrees to supply the
Services in accordance with the terms of this Agreement. Customer agrees to
receive the Services from DIAD in accordance with the terms of this Agreement.
2. Other Services. Upon written request by
Customer, DIAD may at its option, provide Customer with technical and
non-technical support, such as equipment reboots, troubleshooting, DNS and
other support (“Other Services”), in connection with Customer’s use of Connectivity &
Bandwidth Services provided by Supplier. Unless the parties agree otherwise,
Customer will pay for such Other Services in accordance with the schedule
detailed in the Technical Support Services Pricing section.
3. Payment.
3.1 Customer will
pay all taxes levied against or upon the services stipulated in the Service
Table (as amended by the parties from time to time) or otherwise provided by DIAD
under this Agreement.
3.2 All One-Time
Install Fees will be payable in advance. All Recurring Monthly Fees will be
payable monthly in advance.
3.3 Except for the
First Payment shown in the Service Table, which must be paid by Customer to DIAD
before commencement of the Term, all amounts will be due when the invoice is
received, invoices will be issued monthly. Customer will pay by check of
immediately available funds remitted to DIAD
Networks, LLC 7 Hemion Road Suite 212, Montebello, NY 10901.
3.4 If Customer is eligible,
DIAD will submit all forms to the SLD to help augment Customer’s payments. If
for whatever reason the SLD does not reimburse DIAD for the services in a
timely manner, Customer remains fully obligated to pay for services according
to the terms of this agreement.
3.5 The percentage of discount
paid by the SLD will be determined by the laws governing the SLD program at the
time of approval.
3.6 When the SLD augments
payment of customer’s bill, as per all SLD funding Customer will be required to
pay the unfunded portion from its own funds in a timely manner. All provisions
of this agreement apply.
4. Contract Renewal. At the end of the
initial term or renewal term for each Service, that Service shall automatically renew for the same term
stated in the then existing Service Order, unless Customer gives Tri Tech written
notice of cancellation at least 30 days before the term would otherwise expire.
If state law prohibits such automatic renewal, then the Service Order shall
continue on a month-to-month term at month-to-month rates.
5. Termination. Either party may terminate
this Agreement on 60 days written notice, if the other party (x) commits a material
default (which, in the case of Customer, will include any failure to make any
payment when due) and fails to rectify such default within 10 days after being
given notice of such default by the other party, or (y) becomes the subject of any voluntary proceedings under any
bankruptcy or insolvency laws, or becomes the subject of any involuntary
proceedings under any bankruptcy or insolvency laws which are not dismissed or
withdrawn within 60 days after filing. Customer will be liable for early
termination fees. Early termination fee shall be equal to the MRC’s for the
cancelled Services, multiplied by the number of months remaining in the term(s)
of those services.
6. If Customer is in Default. If Customer is in default of any of its
obligations under this Agreement, then DIAD may in its sole discretion without
notice suspend access to the Customer Connectivity, Bandwidth and Services
provided to the Customer, and (ii) DIAD may terminate this Agreement in
accordance with Paragraph 5, after such termination is effective, remove the
Customer’s data from its servers.
7. Credit Authorization. Customer hereby
authorizes DIAD and gives consent to DIAD under applicable privacy laws for DIAD
to obtain credit information and bank and other financial references regarding
Customer for the purposes of assessing Customer’s credit worthiness, and
Customer will promptly execute and deliver to DIAD such further documents and
assurances and take such further actions as DIAD may from time to time
reasonably request in order to carry out the intent and purpose of this
Section.
8. Force Majeure. Neither
party will be liable for any delay, interruption or failure in the performance
of its obligations if caused by acts of God, war, declared or undeclared, fire,
flood, storm, slide, earthquake, or other similar event beyond the
control of the party affected (“Force Majeure”). If any Force Majeure occurs,
the party claiming the Force Majeure will promptly notify the other. The party
claiming the Force Majeure will use commercially reasonable efforts to
eliminate or remedy the Force Majeure. This Section will not apply to excuse a
failure to make any payment when due.
9. Miscellaneous.
9.1 Notices.
Every notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing to the party at the
address first set forth above for such party and will be deemed to have been
delivered and given for all purposes (i) on the delivery date, if delivered
personally; (ii) one business day after deposit with a commercial overnight
carrier, with written verification of receipt, if sent by courier; (iii) upon
completion of transmission, if sent via facsimile with a confirmation of
successful transmission; and (iv) upon personal acknowledgement by the
recipient, if sent by email.
9.2 Compliance With Laws. Customer will comply with all applicable
laws, regulations, and ordinances.
9.3 Assignment.
Customer may not assign this Agreement or any of its rights or obligations or
the license hereunder, without the prior written consent of DIAD.
9.4 Survival.
The provisions set forth in Sections 3, 5, 7 8, and 9 (indemnity obligations
only) of this Agreement will survive termination or expiration of this
Agreement.
9.5 Reservation
of Rights. DIAD reserves all rights not specifically granted herein.
9.6 Entire
Agreement. This Agreement, the Schedule and any Service Agreement Addendums
constitute the entire agreement between the parties regarding the subject
matter hereof and supersede all proposals and prior discussions and writings
between the parties with respect thereto. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS AGREEMENT, DIAD MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR
IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OR TITLE OR NONINFRINGEMENT AND THOSE ARISING BY STATUTE
OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
9.7 Modifications.
This Agreement may not be altered, amended or modified, except in writing
signed by both parties.
9.8 No Waiver.
No failure or delay in enforcing any right or exercising any remedy will be
deemed a waiver of any right or remedy.
9.9 Severability
and Reformation. If any portion of this Agreement is determined to be or
becomes unenforceable or illegal, such portion will be reformed to the minimum
extent necessary in order for this Agreement to remain in effect in accordance
with its terms as modified by such reformation.
9.10 Remedies
not Exclusive. The remedies
available to the parties under this Agreement are cumulative and not exclusive
to each other, and any such remedy will not be deemed or construed to affect
any right which either of the parties is entitled to seek at law, in equity or
by statute.
9.11 Relationship.
The relationship of DIAD to Customer will be that of an independent contractor,
and neither DIAD nor any employee of DIAD will be deemed to be an agent or
employee of Customer.
9.12 Choice of
Law and Attornment. This Agreement will be
governed and interpreted by the laws of the jurisdiction where the Premises are
located, without regard to its conflicts of law provisions. The parties hereby
irrevocably and unconditionally attorn to the
non-exclusive jurisdiction of the courts of the jurisdiction where the Premises
are located, and all courts competent to hear appeals therefrom.
9.13 Further
Assurances. Each of the parties will promptly execute and deliver to the
other at the cost of the other such further documents and assurances and take
such further actions as the other may from time to time request in order to
more effectively carry out the intent and purpose of this Agreement and to
establish and protect the rights, interests and remedies intended to be created
in favor of the other.
9.14 Liens and
Encumbrances. Customer (and its clients) will not have the power, authority
or right to create and will not permit any lien or encumbrance, including
without limitation, tax liens, mechanics’ liens, builders liens or other
license or encumbrances with respect to work performed, in connection with the
Equipment or use of the Customer Space.
CONNECTIVITY
& BANDWIDTH TERMS AND CONDITIONS
10. Connectivity & Bandwidth Services.
10.1 DIAD will
provide to Customer the Internet Connectivity, IP Addresses and Internet
Traffic services (collectively, the “Bandwidth Services”), as specified in the
Service Table (as amended by the parties from time to time). DIAD will provide
Bandwidth Services in accordance with this Agreement, including the Service
Level Agreement contained herein.
10.2 Customer will
comply (and will cause its clients to comply as if those clients were the
Customer) with the Acceptable Uses Policy (as amended by DIAD from time to
time) contained herein.
10.3 DIAD will
have the right, but not the obligation, without prior notice, to monitor online
conduct and communications, in order to verify compliance with this Agreement
and applicable law.
10.4 The security
of content for transmissions made using the Bandwidth Services is the
responsibility of Customer.
10.5 Customer’s
sole remedy for any interruption of Connectivity & Bandwidth Services will
be to receive refunds in accordance with the Service Level Agreement.
10.6 Customer
agrees to defend, indemnify and hold harmless DIAD, and its officers, directors
and employees (collectively, the “Indemnities”), from any and all liabilities,
costs and expenses, including reasonable legal fees, related to or arising from
any action or claim by a third party against the Indemnities asserting an
intellectual property right violation or any other third party claims which
concern Customer’s (or its clients’) use of the Connectivity & Bandwidth
Services (including without limitation transmission of any message,
information, software or other materials, or service interruptions).
11. IP Addresses. Any IP Addresses
allocated to Customer by DIAD must be maintained by Customer in an efficient
manner as deemed by ARIN and utilized at 80% within 10 days of assignment by DIAD
to Customer. Failure to comply with this Section may result in the revocation
of IP Addresses by DIAD after five days notice to Customer.
TECHNICAL
SUPPORT AND SERVICES PRICING
Network
Operations Support (remote hands)
Network Operations
Support (8am – 5pm Mon – Fri) $150.00/hour billed in 15 minute increments
Network Operations
Support (Outside Business Hours) $250.00/hour billed in 15 minute increments
Tape Back-up
$50.00/month and $5.00/tape change during business hours
$50.00/ tape
change weekends/holidays non-business hours
24 hr. systems
monitoring $100.00/month/IP
ACCEPTABLE
USES POLICY (AUP)
Customer agrees to
use Connectivity & Bandwidth Services only for lawful purposes, in
compliance with all applicable law. Specific activities that are prohibited
include, but are not limited to:
· Threatening harm
to persons or property or otherwise harassing behavior
· Violating United
States export control laws for software or technical information.
· Misrepresenting
or fraudulently representing products/services using Customer’s account
· Transmission,
distribution or storage of any material in violation of any applicable law or
regulation
· Transmission,
distribution or storage of any material protected by copyright, trademark,
trade secret or other intellectual property right without proper authorization,
and material that is obscene, defamatory, an invasion of privacy or constitutes
an illegal threat, or is otherwise illegal.
· Facilitating,
aiding, or encouraging any of the above activities, whether using DIAD’s
network or service by itself or via a third party’s network or service.
· Interference
with a third party’s use of DIAD’s network or service, or ability to connect to
the Internet or provide services to Internet users.
Sending
unsolicited email messages, including, without limitation, commercial
advertising and informational announcements, is explicitly prohibited. Customer
will not use another site's mail server to relay mail without the express
permission of the site. It is strictly forbidden to send out unsolicited email
from any other network that advertises, promotes or in any way points to a
location inside DIAD network.
Customer is prohibited
from utilizing DIAD services to compromise the security or tamper with system
resources or accounts on computers at the Premises or at any third party site.
Specific
activities that are prohibited include, but are not limited to:
· Use or distribution
of tools designed for compromising security.
· 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.
· 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.
· Intentionally or
negligently transmitting files containing a computer virus or corrupted data.
DIAD, in its sole
discretion, will determine what action will be taken in response to a violation
on a case-by-case basis. Violation of this AUP could also subject Customer to
criminal or civil liability. DIAD may block access at the router level to
Customer's Equipment involved. If DIAD believes, in its sole discretion, that a
violation of this AUP has occurred, such action may also include, but is not
limited to, temporary or permanent blocking of access to Customer’s Equipment,
and the suspension or termination of Customer’s services under this Agreement. DIAD
may involve and will also fully cooperate with law enforcement authorities in
investigating suspected lawbreakers.
DIAD reserves the
right to modify this AUP at any time without notice.
Customer is
responsible for all use of the Connectivity & Bandwidth Services by itself,
its employees, agents, contractors, invitees and clients ,
whether such use is with or without the consent of Customer.
SERVICE LEVEL
AGREEMENT
DIAD has
implemented a high-availability Internet network infrastructure, available
within secure Co-location facilities. This has been accomplished by the
following:
1) All Customer
connections make use of Cisco’s HSRP (hot standby router protocol)
2) Multiple
upstream providers
3) Fully redundant
internal backbone
4) All network
devices in our NOC’s shall have onsite spares
5) All key network
components are monitored 24x7
DIAD will maintain
its network in such a manner as to provide to all customers the best possible
performance to the Internet. In order to achieve this DIAD makes the following
guarantees to all onsite Internet customers:
· 99.99%
guaranteed uninterrupted transit within the DIAD backbone
· Zero packet loss
internal to DIAD network
· DIAD internal
network will have an average latency of not greater than 1ms (inter-city)
· DIAD will
deliver all Customer traffic to a Tier one Internet carrier with an average latency not greater than 4ms (inter-city) –
Internet customers only.
In addition to the
above performance guarantees, DIAD will take all possible measures to insure
all Customer traffic reaches its destination in a timely fashion comparable and
within reason to any other carrier in the area. These measures include the
manipulation of routing tables so as to direct traffic to the Internet using
its best possible upstream link.
By signing below,
each party acknowledges that it has read, understands, and agrees to the terms
of this Connectivity & Bandwidth Services Agreement.