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Network Services Terms & Conditions North America (Ver. 02/08)
<br />Confidential
<br />OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER
<br />APPLICABLE LAW.
<br />5.3. CUSTOMER RECOGNIZES THAT TIC INTERNET CONSISTS OF MULTIPLE
<br />PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT
<br />SUBJECT TO COGENT'S CONTROL. CUSTOMER AGREES THAT COGENT
<br />SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE
<br />SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO
<br />MALFUNCTION 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 COMPONENTS (SUCH AS
<br />COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND `DENIAL OF
<br />SERVICE' ATTACKS). COGENT [S NOT LIABLE FOR ANY BREACH OF
<br />SECURITY ON THE CUSTOMER'S NETWORK, REGARDLESS OF WITHER ANY
<br />REMEDY PROVIDED IN THIS CSA FAILS OF ITS ESSENTIAL PURPOSE.
<br />CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RESPONSIBLE FOR
<br />ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD
<br />PARTIES IN CONNECTION WITH TI SERVICES (INCLUDING THOSE WITH
<br />WHOM COGENT MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A
<br />THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR TI
<br />ACTS OR OMISSIONS OF, COGENT IN CONNECTION WITH THE SERVICES.
<br />WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT
<br />HOLD COGENT RESPONSIBLE FOR (A) THIRD 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 (G)LOSS OR
<br />DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF
<br />CUSTOMER'S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE
<br />SERVICES OR TI COGENT NETWORK. CUSTOMER AGREES TO MAKE ALL
<br />CLAIMS RELATED TO TI SERVICES DIRECTLY AGAINST COGENT, AND
<br />WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY)
<br />RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD
<br />PARTY TO THIS GSA.
<br />5.4. NEITIR COGENT NOR ANYONE ELSE INVOLVED IN CREATING,
<br />PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING
<br />SERVICES) OR SUPPORTING TI SERVICES SHALL BE LIABLE TO CUSTOMER,
<br />ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT,
<br />INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING
<br />OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING,
<br />WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF
<br />TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY
<br />OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT
<br />(INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).
<br />S.S. NO ACTION OR PROCEEDING AGAINST COGENT MAY BE COMMENCED
<br />BY TI CUSTOMER MORE THAN ONE (1) YEAR AFTER TI LAST DAY ON
<br />WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED,
<br />AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN
<br />EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF
<br />LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL T[ME FOR
<br />SUCH A CLAIM.
<br />6. INDEMNITY.
<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 GSA; (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 />provided, 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 />© Cogent Communications, Inc. 2008
<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 (iii) the use of Service(s)
<br />by Customer in any manner inconsistent with the terms of this CSA,
<br />including without limitation the AUP.
<br />7. ADDITIONAL PROVISIONS.
<br />7.1. Except as to payment obligations of Customer, neither Party shall have
<br />any claim or right against the other Party for any failure of performance due to
<br />Force Majeure.
<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 COGENT 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 orend-users.
<br />7.3. This CSA for Service is made pursuant to and shall be construed and
<br />enforced in acwrdance 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 Customer consents to the jurisdiction and venue
<br />of such courts.
<br />7.4. Notices, if required, must be sent in writing by a-mail, courier or first
<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. [n 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 />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 />7.6. Without limiting any other obligation which expressly survives the
<br />expiration or prior termination of the term of the GSA, the expiration or
<br />prior termination of the term of the CSA shall relieve both Parties of any
<br />further obligations hereunder, except with respect to the Sections 2, 3, 4.3,
<br />4.4 and 5 through 7, which shall survive any expiration or termination of
<br />these Terms.
<br />7.7. [f (but only if) 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 aiise, out of any interruption of or defect in the
<br />COGENT Servlee, REGARDLESS OF WHETHER SUCH INTERRUPTION OR
<br />DEFECT' IS CAUSED BY THE ORDINARY NEGLIGENCE (BUT NOT THE
<br />GROSS NEGLIGENCE OR W ILLFUL MISCONDUCT) OF A RELEASED PARTY.
<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 />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 aze merged and integrated into this GSA.
<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 />same instrument.
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<br />Cogent Communications, Inc. lOlS 31°` St., N.W., Washington, D.C., 20007 202.295.4200 www.cogentcacom
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