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.
3.1 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.
9.1 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.