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Network Services Terms & Conditions North America (Ver. 02/08) <br />C Cogent Communications, Inc. 2008 <br />Network Services Terms & Conditions North America (Ver. 02/08) <br />Confidential <br />cogent <br />B cAmRs <br />C 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 charges. 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. SERVICECHARGESANDBILLING. <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. If 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 Internet <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 lst), 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 Section4 l(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 WITH 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 />COGENT 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 FACILITIES, 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 <br />Page 1 of 3 Customer Ply <br />Cogent Communications, Inc. 1015 3 1" St, N.W„ Washington, D.C., 20007 202 295.4200 www.coeentcocom