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Network Services Terms & Conditions North America (Ver. 02/08)
<br />Confidential
<br />c o g~et,~n~~to~5
<br />© Cogent Communications, Inc. 2008
<br />NETWORK SERVICES
<br />TERMS & CONDITIONS
<br />NORTH AMERICA
<br />1. SERVICES AND TERM.
<br />1.1. Pursuant to the CSA, Cogent will provide the Services to Customer for
<br />the Service chazges. Customer's signature on the Order Form or use of the
<br />Service or COGENT Network constitutes its acknowledgement and
<br />agreement to be bound by the CSA. Capitalized terms are defined at the
<br />end of these 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 the
<br />Service Date. At the end of the Initial Term, the CSA will renew for
<br />successive Renewal Terms equal in length to the Initial Term unless and
<br />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 this
<br />CSA. Customer's account must be current in order to make changes to
<br />Services or order additional Services.
<br />2. SERVICE CHARGES AND BILLING.
<br />2.1. Service charges are on the Order Form and do not include applicable
<br />Taxes unless so indicated. New services or upgrades/relocations will
<br />result in additional fees/charges. [f a prior Service location remains
<br />installed after a new Service location is installed, Customer will be
<br />responsible for Service charges for both Service locations until terminated
<br />as provided for each Service.
<br />2.2. Invoices are sent monthly in advance. Customer agrees to pay all
<br />charges and applicable Taxes for the Service upon receipt of the invoice
<br />without counterclaim, set-off or deduction. A late charge shall be added to
<br />Customer's past due balance of the lesser of 1.5% per month or the
<br />maximum legal rate. COGENT may change the specifications, Terms or
<br />charges for the Service for any upcoming Renewal Term by providing
<br />Customer at least sixty (60) days advance written notice. Customer agrees
<br />that its obligation to pay service charges and Taxes under this CSA shall
<br />survive the termination of the CSA.
<br />2.3. Customers claiming tax exemption must provide COGENT with a
<br />properly executed exemption form.
<br />3. SERVICE USE AND INTERRUPTION.
<br />3.1. Customer's use of COGENT's Services or Network may only be for
<br />lawful purposes and must comply with COGENT's AUP. Transmission of
<br />any material in violation of any law, regulation or the AUP is strictly
<br />prohibited. Access to other networks connected to COGENT's Network
<br />must comply with such other networks' rules. Only Customers whose
<br />service location (as set forth on the Order Form) is a COGENT-owned or
<br />carrier neutral data center may resell COGENT's Dedicated [ntemet
<br />Access Service (but not any other Service offered in such location).
<br />Customers located in any other service location may not resell their
<br />Service, in whole or in part.
<br />3.2. COGENT's obligations and Customer's exclusive remedies for
<br />failure of COGENT's Network or any Service are stated in the COGENT
<br />SLA.
<br />4. TERMINATION. RESTRICTION OR SUSPENSION.
<br />4.1. Prior to the Service Date, COGENT may terminate the CSA if not
<br />approved by COGENT corporate management (including credit check).
<br />COGENT also may restrict, suspend or terminate the CSA, Customer's use
<br />of or access to any Service, or both, at any time if (a) Customer is in
<br />material breach of the CSA (including but not limited to the AUP) and, in
<br />COGENT's sole judgment, an immediate restriction or suspension is
<br />necessary to protect the COGENT Network or COGENT's ability to
<br />provide services to other customers; or (b) Customer's account is unpaid
<br />sixty (60) days after date of invoice; or (c) COGENT facilities at
<br />Customer's location are unavailable, (i.e., no connectivity and building
<br />access).
<br />4.2. Either Party may terminate the CSA: (a) at the end of an Initial Term
<br />or Renewal Term by providing the other Party with at least thirty (30) days
<br />prior written notice (notices provided during a monthly Renewal Term will
<br />not be effective until the end of the next month (i.e., notice received April
<br />20th is effective June Ist); or (b) except as otherwise stated herein, during
<br />an Initial Term or Renewal Term if the other Party breaches any material
<br />term or condition of this CSA and fails to cure such breach within thirty
<br />(30) days after receipt of written notice of the same.
<br />4.3. If a Service is terminated prior to the Service Date, Customer shall
<br />pay COGENT for all Initial Costs for such Service. If the Service is
<br />terminated after the Service Date, Customer shall pay COGENT (a) for the
<br />Service up through the date of termination; and (b) except in the case of
<br />termination by Customer as provided in Section 4.2 above, or by
<br />COGENT due to loss of connectivity or building access at Customer's
<br />building(s) under Section 4.1(c) above, the Initial Costs (unless already
<br />paid) and the Termination Charge. Customer acknowledges that because
<br />actual damages to COGENT caused by early termination of a Service
<br />order are uncertain and would be difficult to determine, the Termination
<br />Charge is a reasonable liquidated damage and is not a penalty. Any
<br />reconnections of the Service shall result in additional reconnection charges
<br />to Customer at COGENT's then-prevailing rates.
<br />4.4. If Customer defaults in any of its payment obligations under the CSA,
<br />Customer agrees to pay COGENT's reasonable expenses, including but
<br />not limited to legal and collection agency fees, incurred by COGENT in
<br />enforcing its rights. All termination notices by Customer must be sent
<br />separately for each Service (including terminating one Service location
<br />after a Service is switched to a new Service location) and must be sent to
<br />terms@cogentco.com.
<br />5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
<br />5.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES
<br />ARE PROVIDED "AS IS," AND NEITHER COGENT NOR ANY OF ITS PROVIDERS,
<br />LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY,
<br />CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE
<br />RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS
<br />CSA OR OTHERWISE. THE SERVICES ARE PURCHASED W[TH KNOWLEDGE OF
<br />THIS WARRANTY LIMITATION. COGENT EXPRESSLY DISCLAIMS ALL OTHER
<br />WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER
<br />EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES
<br />OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT,
<br />SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
<br />CO('iENT DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND
<br />RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION
<br />TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY
<br />AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE
<br />SERVICES.
<br />5.2. WITHOUT PREJUDICE TO OR LIMITING OF COGENT'S RIGHT TO RECEIVE
<br />PAYMENT FOR SERVICES, COGENT'S ENTIRE LIABILITY FOR ALL CLAIMS OF
<br />WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING
<br />OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND
<br />COGENT, AND THE PROVISION BY COGENT OF FACILrrIES, TRANSMISSION,
<br />DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO,
<br />DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER
<br />OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE
<br />PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM, OR
<br />(B) ONE HUNDRED THOUSAND DOLLARS ($100,000.00) IN TOTAL;
<br />PROVIDED HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT
<br />APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY COGENT, OR FOR ANY
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<br />Cogent Communications, Inc. 1015 31" St., N.W., Washington, D.C., 20007 202.295.4200 www.cogentco.com
<br />Customer:
<br />25G-
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