Terms & Conditions
1.0 DEFINITIONS
The fundamental tenet of colo operational reliability is uptime. Uptime is determined by two factors in conjunction – network availability and power.
Service Order Form (SOF): The SOF is the signature page executed by the Customer which contains the specified service or resource that Sirius Data Hosting will be providing to or managing for the customer.
Customer Premise Provisions: The components to be delivered to the customer’s service location(s) that will comprise the product or service to be provided.
Product or Service: The deliverable item or solution offering outlined in the SOF that the Customer agreed to purchase and that Sirius Data Hosting provides.
Provider: Sirius Data Hosting, and any Sirius Data Hosting Personnel, Subsidiaries, Agents, or Affiliates, involved in providing the service.
Provider Facilities: Non-customer premise Space, power, equipment, wiring, and other non-personnel resources under the control of, or contracted by, the Provider to deliver Services to the Customer.
Customer Facilities: Space, Power, equipment, wiring, and other non-personnel resources under the control of, or contracted by, the Customerthat affect Services to the Customer.
Customer: the Company that Sirius Data Hosting is servicing under this agreement and any of its Personnel, Subsidiaries, Agents, or Affiliates, receiving service(s) under this agreement.
End User or User: The Customer, or any of its personnel, Subsidiaries, Agents, or Affiliates, receiving service(s) under this agreement or any Sirius Data Hosting Value Added Reseller or Agent agreement.
Customer Premise Equipment: Equipment situated on the Customer’s premises by the Customer, Sirius Data Hosting or Sirius Data Hosting Value Added Reseller, Contractor, or Agent in the deployment of Service(s) to the customer’s location(s).
Monthly Recurring Charges: Charges that accrue on a monthly basis, and that Sirius Data Hosting posts to the Customer’s account every month, as consideration for the utility based services that Sirius Data Hosting provides.
Non-Recurring Charges: One time charges that do not accrue a monthly basis, and that Sirius Data Hosting posts to the Customer’s account, as consideration for either installation/set up Service(s) or product based offerings that Sirius Data Hosting provides.
Network: Any provider facilities, customer premise equipment, or third party owed components, affecting the services to the customer.
On-Net: Services delivered solely by provider facilities.
Off-Net: Services utilizing any non-provider facilities.
Service Commencement Date: The official date Sirius Data Hosting notifies the Customer that Services are available for Use.
Term: The period beginning on the Service Commencement Date and ending upon Service Expiration date.
Exhibits: Any documents including diagrams, illustrations, tables, or pictures, presented to the Customer as attachments to this Agreement.
Agreement: The agreement between Customer and Provider embodied within this document and attached exhibits.
2.0 CUSTOMER ACKNOWLEDGEMENTS
Customer Acceptance of Obligations to Provider: All rights and obligations stipulated within this Agreement commence upon Customer execution of the Service Order Form. Ordering newProvider service(s) or utilizing existing Provider service(s) automatically constitutes acceptance of this Agreement regardless of the existence of an executed Service Order Form. Upon initial Customer acceptance of this agreement Provider will initiate provisioning of services. Customer acknowledges that Provider incurs significant financial risk by initiating new orders or maintaining availability of existing services. The customer accepts full responsibility and assumes all associated financial obligations to the Provider upon ordering newProvider service(s) or utilizing existing Provider service(s).
Cooperation with Provider: Customer is obligated to facilitate Customer Premises access to Provider personnel for the purpose of service installation, testing, maintenance, repair, or termination. Such access will be provided upon request and without delay. The customer is obligated to maintain friendly engagements with all Provider personnel and interact with Provider in a courteous manner that will help foster a harmonious and symbiotic relationship.
Notice of Claims and Problems: Customer immediately shall notify Company upon its receipt of any information that might adversely affect the Company, including, but not limited to, notices of any claims or proceedings that involve Service, and Customer promptly shall notify Company of any problem relating to Service or Service performance and reasonably co-operate with Company in repairing the Service problem.
Maintenance of CustomerFacilities: Customer is obligated to maintain Customerfacilities that are interconnected with or affect any Service(s) provisioned by Provider. It is the Customer’s obligation to ensure customer facilities do not expose harm to Provider, its Provider Service(s), Provider personnel or other Provider customers. If such exposure existsProvider may terminate Service(s) with no liability or obligation to Customer.
Scope: Over the course of the service period Customer may require additional Service(s) from Company which are outside the scope of the executed SOF. Provider will evaluate the new requirements and make recommendations at its discretion. Customer acknowledges that out of scope requirements will be contracted for at market rates determined by Provider together with any associated ancillary costs.
Regulatory Action and Associated Ancillary Costs: Services may becomesubject to regulatory costs in the form of additional taxes, ancillary charges, surcharges, or fees, levied by the action of the federal, state, city, county governments or court authorities. In the event such charges may be passed through to Customer in whole or in part.
Pricing Adjustments: Provider may adjust Monthly Recurring Charges and post additional Non Recurring charges to the account, while the Agreement is in term, due to: changes in scope, customer relocations, inflation, regulatory action, increases in the costs of power, or any other vital component necessary to deliver Service(s) to the Customer.
3.0 BILLING AND PAYMENT
Monthly Recurring Charges: The Monthly Recurring Charges for the Service(s) are fixed-level sums and defined in the SOF. Provider will invoice for Monthly Recurring Charges one Month in Advance and prorate Charges where appropriate. The Customer certifies that all Monthly Recurring Charges are valid, correct, and of valuable consideration for the corresponding Service(s). The Customer assumes responsibility to pay all invoices including any ancillary charges such as taxes, surcharges, or fees associated with the Monthly Recurring Charges.
Non-Recurring Charges: The Non-Recurring Charges for the Service(s) are defined in the SOF. The Customer certifies that all Non-Recurring Charges are valid, correct, and of valuable consideration for the corresponding Service(s). The Customer assumes responsibility to pay all invoices including any ancillary charges such as taxes, surcharges, or fees associated with the Non-Recurring Charges.
Mode of Payment: Customer Agrees to pay by check or wire transfer as to Provider’s Address or Bank Account as Directed by Authorized Provider Personnel.
Invoicing Commencement Date: The Invoice Commencement Date shall coincide with the Service Commencement Date.
Payment Deadline and Late Fees: : All invoices are due within 30 calendar day. Any invoice not paid in full within 30 days will be subject to a 1.5% late fee.
4.0 SERVICE LIMITATIONS
ServiceAvailability: Service availability rests on all Provider, Customer, and third party facilities operating in unison at expected capacity. Service may become unavailable under circumstances not limited to the following scenarios:
- Failure of On-Net Provider Facilities
- Failure of Off-Net Provider Facilities
- Failure of Customer Facilities
- Failure of Customer Premise Equipment
- Failure of Off-Net third party Network
- Force Majeure impacting Network availability
Provider may not be liable for circumstances where services become unavailable. Service unavailability shall not constitute material breach.
Limited Facilities: Service availability is dependent on sufficient capacity and operability of all required facility components utilized in the delivery of the Service(s). Based on current usage patterns or forecasted utilization, Provider may determine the need to alter, substitute, or replace facility components with alternate means of providing comparable service. Provider may, at its own discretion, proceed with such action in the best interest managing capacity and maintaining Service(s) to the customer. Proper notice will be provided to the Customer in advance.
5.0 DISCLAIMERS WARRANTIES, AND REPRESENTATIONS
Disclaimer: Due to the nature of the Service(s) being deployed, Provider may not always have direct control over all the various network components, and therefore Service(s) availability may be reliant on third party vendors for maintenance, or repair thereof. Provider does not guarantee Services will always be up and running, or that packets will be delivered error free. Customer may experience issues with downtime, errors in transmission, miss-deliveries, delays, and receipt of SPAM that may be undesired and not commercially viable. Provider will not be responsible for any damages as a result.
Warranties: Provider warrants it is a wholly owned, and duly organized, private business entity incorporated in good standing within the jurisdiction of the Commonwealth of Virginia. Sirius Data Hosting does not violate any laws or regulations in the performance of its duties and obligations under any customer Agreement. Furthermore, executing this agreement does not constitute any violation of or conflict with any law.
Representations: Provider represents that a fully executed Agreement will constitute a legally binding, and validly enforceable contract in accordance with its terms. Provider represents its business practices are establish in accordance with industry standards and best practices. The Services Provider is offering follow all expectations set forth within the Service Order Form (SOF) presented to the Customer and reflect the Customer’s requirements as represented to Provider by authorized Customer representation. Provider has the wherewithal in terms of resources and qualified personnel to carry out its obligations in fulfilling the customer requirement in a timely and professional manner. Provider will adhere to its obligations under this agreement.
6.0 LIMITATIONS OF LIABILITY
Limitation for Direct Damages: In no event, other than property damages caused by gross negligence or willful misconduct, shall Provider’s liability to the Customer for any direct damages exceed the total gross revenues collected from the Customer during the preceding three (3) months immediately prior to the event for which claims are made.
Limitation for Indirect Damages: In no event shall Provider be liable for any indirect damages resulting from interruptions of Service(s), delays, loss of data, force majeure, out of pocket costs associated with third party recovery efforts, or billing errors.
7.0 INDEMNIFICATION
Provider Indemnification of Customer: Without exception,Providerwill hold harmless, defend, and indemnify Customer, as well as its members, officers, employees, agents, and contractors, from any and all suits, proceeding, or other claim brought forward by any entity, arising from, or relating to damages to personal property or personal injuries that arise out of the gross negligence or act or omission of the Provider in the provision of Service(s) by the Provider.
Customer’s Indemnification of Provider: Without exception,Customerwill hold harmless, defend, and indemnify Customer, as well as its members, officers, employees, agents, and contractors, from any and all suits, proceeding, or other claim brought forward by any entity, arising from, or relating to damages to personal property or personal injuries that arise out of the gross negligence or act or omission of the Customer in the use of Service(s) by the Customer.
Procedures: Without exception,Customerwill hold harmless, defend, and indemnify Customer, as well as its members, officers, employees, agents, and contractors, from any and all suits, proceeding, or other claim brought forward by any entity, arising from, or relating to damages to personal property or personal injuries that arise out of the gross negligence or act or omission of the Customer in the use of Service(s) by the Customer.
8.0 AGREEMENT TERM
Term: The Term for which the Customer is obligated to retain Service(s) shall be equal to the initial term and any successive renewal terms. The Initial Term of this Agreement shall be for three (3) years unless otherwise specified on the SOF. The Initial Termshall begin on the Service Commencement Date. Upon the Service Expiration Data this Agreement will automatically renew for successive one (1) year renewal terms.
Termination: Customer may terminate Provider Service(s) with by submitting a request to terminate Service(s). The request to terminate Service(s) must be received in writing by Provider 60 Business days prior to the Service Expiration Date. If no request to terminate Services is received within the allowed time, this Agreement will automatically renew for successive one (1) year renewal terms.
Early Termination: Customer may terminate Services in the event the Customer relocates to an area Provider is unable to Service. Customer may terminate services due to uncured material breach. ShouldCustomer Terminate Service(s) for any reason other than uncured material breach, or relocation to an area unserviceable, an early termination feewill be applied to the Customer account.
Early Termination Fee: : Early Termination fees equal the total sum of all unpaid monthly recurring charges, and non-recurring charges, for all services ordered, remaining in Term.
10.0 DISPUTES
Billing Disputes: In all occurrences of disputed charges, Provider and Customer agree to cooperate in good faith to resolve 45 days of Provider’s receipt of Customer dispute notification. Customer may dispute any charges appearing on Provider invoice by furnishing notification and sufficient information for Provider to investigate the claim. Customer will allow Provider 45 days to carry out the investigation process and respond with the appropriate resolution. If Provider is unable to validate the information provided by Customer in order to justify the dispute, the customer’s claim will be returned for more information. If additional information is required the investigation period will be extended by additional 45 day periods. Customer is obligated to keep paying Provider invoices in full during investigation periods.
Dispute Resolution Process: Except in circumstances where provider elects to litigate, Provider and Customer agree on the dispute resolution procedures set forth regarding any disagreement, claim, or controversy relating to or arising out of use of Service(s), this Agreement, or its breach. Upon 45 days written notice either party may elect to submit disputes to binding arbitration. Disputes submitted to binding arbitration will fall in accordance with the American Arbitration Association Commercial Arbitration Rules and Mediation Procedures. Each Party shall agrees to bear the expenses associated in preparing and presenting its case. The location for the arbitration hearing shall be Fairfax County, Virginia and the arbitrator's decision shall be final and binding.