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<br />Network Services Terms & Conditions North America (Ver. 02/08) <br />Confidential <br /> <br />(;) Cogent Communications, Inc. 2008 <br /> <br />OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER <br />APPLICABLE LAW <br /> <br />5.3. CUSTOMER RECOGNIZES THAT THE INTERNEl' CONSISTS OF MULTIPLE <br />PARTICIPATING NETWORKS TIIAT ARE SEPARATELY OWNED AND NOT <br />SUBJECT TO COGENT'S CONTROL. CUSTOMER AGREES THAT COGENT <br />SHALL Nor BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE <br />SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO <br />MALFUNCflON OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S} <br />OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO COGENT'S CONTROL, <br />OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF <br />CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET <br />SERVICE PROVIDERS. COGENT SHALL HAVE NO LIABIlITY HEREUNDER FOR <br />DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR <br />ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENfS (SUCH AS <br />COMPUTER VIRUSES, WORMS, COMPlITER SABOTAGE, AND 'DENIAL OF <br />SERVICE' ATTACKS). COGENT IS NOT LIABLE FOR ANY BREACH OF <br />SECURITY ON THE CUSTOMER'S NETWORK, REGARDLESS OF WHETHER ANY <br />REMEDY PROVIDED IN TIllS CSA FAILS OF ITS ESSENI1AL PURPOSE. <br />CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RESPONSIBLE FOR <br />ANY SELECflON OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, nnRD <br />PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH <br />WHOM COGENT MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A <br />TIIlRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENI10N OF, OR THE <br />ACTS OR OMISSIONS OF, COGENT IN CONNECTION WITH THE SERVICES. <br />WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL Nor <br />HOLD COGENT RESPONSIBLE FOR (A) TIDRD PARTY CLAIMS AGAINST <br />CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER'S <br />RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR <br />DAMAGE TO CUSTOMER ASSOCIATED WITII THE INOPERABILITY OF <br />CUSTOMER'S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE <br />SERVICES OR THE COGENT NETWORK. CUSTOMER AGREES TO MAKE ALL <br />CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST COGENT, AND <br />WAIVES ANY RIGHT TO RECOVER DAMAGES (OIRECfL Y OR BY INDEMNITY) <br />RELATED TO THE SERVICES BY CLAIMING AGAlNST OR THROUGH A TInRD <br />PARlY TO nus CSA. <br /> <br />5.4. NEm-IER COGENT NOR ANYONE ELSE INVOLVED IN CREATING, <br />PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING <br />SERVICES) OR SUPPORTING TIlE SERVICFS SHALL BE LIABLE TO CUSTOMER, <br />ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, <br />INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING <br />om OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, <br />WITHOur LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF <br />TECHNOLOOY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSffiILITY <br />OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT <br />(INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). <br /> <br />5.5. NO ACTION OR PROCEEDING AGAINST COGENT MAYBE COMMENCED <br />BY THE CUSTOMER MORE THAN ONE (1) YEAR AFfER THE LAST DAY ON <br />WHICH THE SERVICE WIDCH IS THE BASIS FOR THE ACTION IS RENDERED, <br />AND CUSTOMER ACKNOWLEDGES THAT TInS LIMITATION CONSTITUTES AN <br />EXPRESS WAlVER OF ANY RIGHfS UNDER ANY APPLICABLE STATUTE OF <br />LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR <br />SUCH A CLAIM. <br /> <br />6. INDEMNITY. <br /> <br />6.1. Customer will indemnify, defend and hold harmless COGENT and its <br />directors, officers, employees, affiliates, and its agents and subcontractors <br />from and against any claims, suits, actions, and proceedings from any and <br />all third parties, and for payment of any Losses, to the extent such Losses <br />arise (a) as a result of non-compliance by Customer with its obligations <br />under the CSA, (b) from any and all claims by any of Customer's <br />customers or other third party end users in connection with a Service <br />(including, without limitation, any claims regarding content transmitted <br />using a Service or violation of data protection legislation), regardless of <br />the form of action, whether in contract, tort, warranty, or strict liability; <br />nrovided however that Customer will have no obligation to indemnify <br />and defend COGENT against claims for damages for bodily injury or <br />death caused by COGENT's gross negligence or willful misconduct; or <br />(c) from claims of copyright infringement and all manner of intellectual <br />property claims, defamation claims, claims of publication of obscene, <br /> <br />indecent, offensive, racist, unreasonably violent, threatening, intimidating <br />or harassing material, and claims of infringement of data protection <br />legislation, to the extent such Losses are based upon (i) the content of any <br />information transmitted by Customer or by any of Customer's customers <br />or authorized end users, (ii) the use and/or publication of any and all <br />communications or information transmitted by Customer or by any of <br />Customer's customers or authorized end users, or (Hi) the use ofService(s) <br />by Customer in any manner inconsistent with the terms of this CSA, <br />including without limitation the AUP. <br /> <br />7. ADDITIONAL PROVISIONS. <br /> <br />7.1. Except as to payment obligations of Customer, neither Party shall have <br />any claim or right against the other party forany failure ofperfonnance due to <br />Force Majeure. <br /> <br />7.2. Neither Party is the agent or legal representative of the other Party, and <br />this CSA does not create a partnership, joint venture or fiduciary relationship <br />between COOENT and Customer. Neither Party shall have any authority to <br />agree for or bind the other Party in any manner whatsoever. This CSA confers <br />no rights, remedies, or claims of any 'kind upon any third party, including, <br />without limitation, Customer's subscribers or end.USelS. <br /> <br />7.3. This CSA for Setvice is made pursuant to and shall be comtrued and <br />enforced in accordance with the laws of the District of Columbia without <br />regard to its choice of law principles. Any action arising out of or related to <br />this CSA shall be brought in the District or Federal courts located in the <br />District of Columbia, and Custoiner consents to the jurisdiction and venue <br />of such courts. <br /> <br />7.4. Notices, if required, must be sent in writing by e-mail, courier or fust <br />class mail (postage prepaid) to the appropriate contact point listed on the <br />Order Form, and are considered made when received at that address; <br />provided, that termination notices to COGENT must be sent in accordance <br />with Section 4.4 above. In the event of an emergency, COGENT may only <br />be able to provide verbal notice first; such verbal notice will be followed <br />by written notice. Customer is responsible for accuracy of its information <br />on the Order Form, including points of contact. <br /> <br />7.5. Customer may not assign this CSA without COGENT's prior written <br />consent, which consent shall not unreasonably be withheld. Any such <br />assignment without COGENT's prior written consent shall be void. <br /> <br />7.6. Without limiting any other obligation which expressly survives the <br />expiration or prior termination of the term of the CSA, the expiration or <br />prior termination of the term of the CSA shall relieve both Parties of any <br />fm1her obligations hereunder, except with respect to the Sections 2 3 43 <br />44 and 5 throum 7. which shall survive any expiration or tennination of <br />these Terms. <br /> <br />7.7. If (but only it) required by COGENT's or Customer's agreement with <br />Customer's Landlord: (a) any cessation or interruption in COGENT's <br />Service does not constitute a default or constructive eviction by <br />Customer's Landlord, and (b) Customer agrees to waive and release <br />Landlord and its related parties from any liability in connection with any <br />damages whatsoever incurred by Customer, including lost revenues, which <br />arise, or are alleged to arise, out of any interruption of or defect in the <br />COGENT Service, REGARDLESS OF WHETHER SUCH INTERRUPTION OR <br />DEFECT IS CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE <br />GROSS NEGLIGENCE OR WILLFUL MISCONDUcr) OF A RELEASED PARTY. <br /> <br />7.8. The COGENT Network is owned by COGENT, or its licensors, and <br />is protected by copyright and other intellectual property laws. Customer <br />agrees that title to and ownership of the Services, in any form, shall at all <br />times and in any event be held exclusively by COGENT. Customer shall <br />be 'entitled to only such rights with respect to the Services as are <br />specifically granted herein. <br /> <br />7.9. This CSA and such other written agreements, documents and <br />instruments as may be executed in connection herewith are the final, entire <br />and complete agreement between Customer and COGENT and supersede <br />all prior and contemporaneous negotiations and oral representations and <br />agreements, all of which are merged and integrated into this CSA. <br /> <br />7.10. This CSA and any Addendum thereto may be executed in one or <br />more counterparts all of which taken together shall constitute one and the <br />sl,lme instrument. <br /> <br />Page 2 of3 <br />Cogent Communications, Inc, lOt5 31"' St., N.W., Washington, D.C., 20007 202.295.4200 www.c02.entco.com <br /> <br />Customer: Q <br />