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<br />Network Services Terms & Conditions North America (Ver. Apr. 05)
<br />Confidential
<br />
<br />cog C~MDCAtNS
<br />
<br />Optical Internet
<br />
<br />cc: Cogent Communications, Inc. 2004
<br />
<br />NETWORK SERVICES
<br />TERMS & CONDITIONS
<br />NORTH AMERICA
<br />
<br />I. SERVICESA~uT.:RM.
<br />1.1. Pursuant to the CSA, Cogent will provide the Services to Customer
<br />for the Service charges. Customer's signature on the Order Form or use
<br />of the Service or COGENT Network constitutes its acknowledgement
<br />and agreement to be bound by the CSA. Capitalized terms are defined at
<br />the end ofthese Terms.
<br />1.2. Each Service's Initial Term is indicated on the applicable Order
<br />Form. Customer will be deemed to have accepted the Service as of
<br />the Service Date. At the end of the Initial Term, the CSA will renew
<br />for successive Renewal Terms equal in length to the Initial Term
<br />unless and until terminated as provided herein.
<br />1.3. Customer may order additional Services or locations in North
<br />America through additional Order Forms, which will be governed by
<br />this CSA. Customer's account must be current in order to make
<br />changes to Services or order additionlll Services.
<br />2. SERVICE CIIARGt:S A~U BILLI~G.
<br />2.1. Service charges are on the Order Form and do not include
<br />applicable Taxes unless so indicated. I\ew servICes or
<br />upgrades/relocations will result in additional fees/charges. If a prior
<br />Service location remains installed after II new Service location is
<br />installed, Customer will be responsible for Service charges for both
<br />Service locations umiltemlinated as provided for ellch Service.
<br />2.2. Invoices are sent monthly in lldvance. Customer agrees to pay all
<br />charges and applicable Taxes for the Service upon receipt of the
<br />invoice without counterclaim, set-off or deduction. ^ late charge shall
<br />be added to Customer's past due balance of the lesser of 1.5% per
<br />month or the maximum legal rate. COGEI\T may change the
<br />specifications, Terms or charges for the Service for llny Renewal Tenn
<br />by providing Customer at least sixty (60) days advllnce notice.
<br />Customer agrees that its obligation to pay service charges and Taxes
<br />under this Agreement shall survive the termination of the CSA.
<br />2.3. Customer's claiming tax exemption must provide COGENT with
<br />a properly executed exemption form.
<br />3. SERVin: USt; A:"I> l:"n;RRlIPT10,>;.
<br />3.1. Customer's use of COGENT's Services or Network may only be
<br />for lawful purposes and must comply with COGENT's AUP.
<br />Transmission of any material in violation of any law, regulation or the
<br />AUP is strictly prohibited. Access to other networks connected to
<br />COGENT's Network must comply with such other networks' rules.
<br />Resale of COGENT's Internet Access Service is allowed by Type I
<br />customers paying COGENT's Carrier/Service Provider rates and by
<br />all Type 11 customers (i.e" T-l, T-3). All other customers must pay
<br />COGENT's Carrier/Service Provider rates to resell such Service
<br />3.2. COGENT's obligations and Customer's exclusive remedies for
<br />failure of COGEl'\T's Network or any Service are stated in tIle
<br />COGENT SLA.
<br />4. TERMI:"A TIO:'<l. RESTRICTlO:-.l OR SUSPE:"SIO'll.
<br />4.1. Prior to the Service Date, COGEl'\T may terminate the CSA if
<br />not approved by COGENT corporate management (including credit
<br />check). COGENT lllso may restrict suspend or terminllte the CSA,
<br />Customer's use of or access to any Service, or both, at any time if
<br />(a) Customer is in materitll breach of the CSA (including but not
<br />limited to the AUP) and, in COGENT's sole judgment, an immediate
<br />restriction or suspension is necessary to protect the COGENT
<br />Network or COGENT's ability to provide services to other customers;
<br />or (b) Customer's account is unpllid sixty (60) days after dllte of
<br />invoice; or (c) COGENT facilities at Customer's loclllion are
<br />ullllvailable, (i,e., no connectivity and building access).
<br />
<br />4.2. Either Party may terminate the CSA: (a) at the end of an Initial
<br />Tenn or Rene\val Term by providing the other Party with at least
<br />thirty (30) days written notice (notices provided during a monthly
<br />Renewal Tenn will not be effective until the end of the next month
<br />(i.e" notice received April 20th is eft"ective June 1st); or (b) except as
<br />otherwise stated herein, during llll Initial Teml or Renewlll Term if the
<br />other Party breaches any material term or condition of this CSA and
<br />fails to cure such breach within thirty (30) after receipt of written
<br />notice of the same.
<br />
<br />4.3. If the Service is terminated prior to the Service Date, Customer
<br />shall pay COGENT for all Initial Costs for Customer's Service order.
<br />If the Service is terminated after the Service Date, Customer shall pay
<br />COGENT (a) for the Service up through the date of termination; and
<br />(11) except in the case of termination by Customer as provided in
<br />Section 4.2 above, or by COGEI\T due to loss of connectivity or
<br />building access at Customer's building(s) under Section 4.l(c) above,
<br />the Initial Costs (unless already paid) and the Termination Charge.
<br />Customer acknowledges that because actual damages to COGENT
<br />caused by early termination of a Service order are uncel111in and would
<br />be difficult to determine, the Termination Charge is a reasonable
<br />liquidated damage and is not a penalty. Any reconnect ions of the
<br />Service shall result in lldditional reconnect ion charges to Customer at
<br />COGEI\T's then-prevailing rates.
<br />
<br />4.4. If Customer defaults in any of its payment obligations under the
<br />CSA, Customer agrees to pay COGENT's reasonable expenses.
<br />including but not limited to legal and collection agency fees, incurred
<br />by COGENT in enforcing its rights. All termination notices by
<br />Customer must be sent separately for each Service (including
<br />terminating one Service location after a Service is switched to a new
<br />Service location) and must be sent to terms(tpcogentco.com.
<br />
<br />5, DISCI.AIMER OF WARKA:-.lTY A:-.lD L1MITATIO:-.l OF LIABILITY.
<br />
<br />5.1. EXCEPT AS OTHER\VISE EXPRESSLY SET FORTH HEREIN, THE
<br />SERVICES ARE PROVIDED "AS IS," A~D NEITHER COGENT NOR ANY 01'
<br />ITS PROVIDERS, LICENSORS, OFfICERS, EMPLOYEES, OR AGENTS
<br />MAKES ANY WARRA'l/TY, CO'l/DlTlON OR GUARANTEE WITH RESPECT
<br />TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAI'l/ED FROM THE
<br />lISE OF THE SERVICES, UNDER THIS AGREEMENT OR OTHERWISE. rilE
<br />SERVICES ARf: I'lIRCHASED WITH K'l/OWLEDGE Of THIS WARRANTY
<br />L1MITATIOl'<. COGE~T EXPRESSLY DISCLAIMS ALL OTHER
<br />Wi\RRANTIES, COJ\DITIONS OR GUARANTEES OF A'l/Y KIND, EITHER
<br />EXI'RESS OR IMPLIED, INCLUDI'I/(j, BUT NOT LIMITED TO ANY
<br />WARRAJ\TIES OR CONDITIO'l/S OF MERCHAl\TABILITY, NO)\;-
<br />l'l/fRINGEME~T, SATISfACTORY Ql;AI.ITY, AJ\D/OR HIJ\f'SS FOR A
<br />PARTICULAR PURPOSE. COGE~T DOES NOT MOJ\JTOR, AND DISCLAIMS
<br />ALL LIABILITY ^~D RESPO'l/SIBILITY FOR. THE CONTENT OF ANY
<br />COMJ\.lUJ';ICATION TRA~SMITTED BY CL'STOMER OR OTHERS, AND
<br />DISCLAIMS ALL LIABILITY AJ\D RESPONSIBILITY FOR U~AUTHORIZED
<br />USE OR MISUSE OF THE SERVICES.
<br />
<br />5.2. WITHOUT I'REJUDICE TO OR L1MITI'l/G OF COGENT'S RIGHT TO
<br />RECEIVE PAYMfNT fOR SFRVICfS. COGEJ\T'S EJ\TIRE L1AllILlTY FOR
<br />ALL CLAIMS OF WHATEVER NATURE (IJ\CIUDING CLAIMS BASED ON
<br />J\EGLlGENCE) ARISI'l/G OUT OF THIS AGREEMEJ\T AND AU. OTHERS
<br />BETWEEN CTSTOMER AND COGEJ\T, AJ\D THE PROVISION BY COGENT
<br />OF FACilITIES, TRANSMISSIOJ\., DATA, SERVICES OR EQUIPMENT
<br />INCLUDING, BUT NOT UMITED TO, DAMAGE ro RI,AI./I'ERSONAI
<br />PROPERTY, SHAlL J\OT EXCEED THE LESSER Of (A) THE AMOUNT PAID
<br />BY CUSTOMER FOR Till- SERVICI, AT ISSLE IN TilE PRIOR SIX (6)
<br />MONTHS TO THE ACTlO'l/ riIVI'l/G RISE TO THE CLAIM, OR (1-1) 0'1/1'
<br />IIUNDRFD TIlOllSAJ\D DOLLARS ($100,000.00) 1'1/ TOTAL; PROVIDED,
<br />HOWEVER, THAT THE FOREGOI'l/G LIMITATIONS SHAI.L 'l/OT AI'PLY lOOK
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<br />Cogent Communications, Inc. 101531" SI.. N.W., Washington, D.C., 20007 202.295.4200 WWW.COllcntco.com
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<br />COGENT:
<br />Customer:
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