Terms & Conditions
This document is a legally binding agreement and describes services and service orders.
Installation of Service
Customer shall obtain and maintain obtain and maintain throughout the Term, such consents (including without limitation landlord and land owner consents) as are necessary to timely permit Siteserver personnel to install, operate and maintain the Services and Siteserver Equipment at Customer's facilities.
Customer shall permit Siteserver reasonable access to the facilities at any time as needed to install, configure, upgrade, maintain or remove the Siteserver Equipment and other Service components located at the Customer's facilities.
Customer shall not charge Siteserver, and shall ensure that Siteserver does not incur any fees or expenses whatsoever in connection with Customer's provision of space, power or access as described in these Terms and Conditions.
Services delivered via Microwave will require rooftop access to your premises.
Pursuant to section 3.1, customer agrees to obtain consents for such access and have available keys required to access the rooftop of Customer premises.
Siteserver will install a small Microwave unit utilizing a non-penetrating rooftop mount, parapet mount, or utilize and existing 2” or larger pole to facilitate the installation of required equipment.
An ethernet cable will be run from the Microwave unit to the customer termination point through an existing roof opening or roof penetration.
Siteserver shall use commercially reasonable efforts to install the Service in accordance with the requested Service start date indicated on a Service Order.
Siteserver will provide Customer with a completion notice (“Completion Notice”) upon completion of the installation of a Service.
In the event that Siteserver is unable to install the Service in accordance with the agreed upon schedule as a result of (a)
Siteserver not being able to obtain access to equipment or space required for the installation of the Service, then Customer shall pay Siteserver the standard
installation fee of $295 for any installation from made by Siteserver and an additional installation fee for each subsequent trip necessitated to perform the Service installation.
Customer's use of the Service (including all content transmitted via the Service) shall comply with all applicable laws and regulations and the terms of the Master Agreement.
Customer shall not resell or redistribute (whether for a fee or otherwise) the Service, or any portion thereof, or make any use of the Service other than for Customer's internal business purposes, unless otherwise agreed in writing by Siteserver.
Customer shall ensure that its End Users' use of the Service, if any, shall comply with all applicable laws and regulations and terms of the Master Agreement.
Siteserver may audit Customer's use of the Service remotely or otherwise, to ensure Customer's compliance with the Master Agreement.
Customer shall ensure that all Siteserver Equipment at Customer's facilities remains free and clear of all liens and encumbrances, and Customer shall be responsible for loss or damage to the Siteserver Equipment while at Customer's facilities.
Customer is responsible for ensuring that any Customer equipment used in connection with the Services is protected from fraudulent or unauthorized access.
Customer is responsible for all access to and use of the Service (whether or not such use is fraudulent or authorized)
and for the payment of all charges incurred on Customer's Service account, including any charges resulting from fraudulent or unauthorized access
to any Customer equipment until such time as Customer informs Siteserver of such fraudulent or unauthorized access.
In addition, as between the Parties, Customer is responsible for: (a) all content that is viewed, stored or transmitted via the Service; and (b)
all third party charges incurred for merchandise and services accessed via the Service, if any.
Customer shall conform its equipment and software, and ensure that each End User conforms its equipment and software, to the technical specifications for the Service provided by Siteserver.
The term of this agreement shall begin upon commencement of delivery of the Service(s) set forth in a Service Order,
and shall remain in effect for the term specified in the Service Agreement.
The term for the applicable Service shall be set forth in the Server Order (“Initial Term”)
and shall remain in effect until expiration as set forth in the Service Order.
Unless otherwise specified in the Service Agreement, if the Customer continues to receive Services after the expiration of the Initial Term,
the Services shall renew for successive terms unless at least thirty (30) days prior to the expiration of the then-current term,
either party notifies the other other party of such party's intent not to renew this Agreement.
Customer shall pay all Service Fees, including recurring and non-recurring charges, fees and taxes,
(including Service Installation and activation charges, usage-based charges, and equipment charges)
(collectively the “Service Charges”) as set forth on the Service Order in accordance with the following payment terms:
Service Charges shall be billed to Customer on a monthly basis commencing upon Service installation, and are payable within thirty (30)
days after Customer's receipt of an invoice.
Customer must bring any billing error(s) to Siteserver's attention within thirty (30) days after Customer's receipt of an invoice or Customer waives
its right to a refund or credit associated with such billing error.
Siteserver may charge a late fee of up to 1.5% per month for any amounts not paid when due.
Customer shall be responsible for all costs of collection (including reasonable attorneys' fees) to collect overdue amounts.
If Siteserver fails to present a charge in a timely manner, such failure shall not constitute a waiver of the charges for the fees to which it relates, and Customer shall pay such invoice in accordance with these payment terms.
Customer shall and does hereby indemnify and hold harmless Siteserver, its affiliates, suppliers and their respective officers, members, directors,
employees and agents, from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities, and losses
(including, but not limited to, reasonable attorneys' and other professionals' fees), arising out of or relating to:
(a) personal or physical injury or property damage caused by any of the Customer Parties;
(b) any work done at the Building by or for any of the Customer Parties,
(c) any negligent or willful act or omission by any of the Customer Parties, or any breach of this Agreement by Customer;
(d) any damages arising out of the Services or the Space or the failure of Services, or the use by any of the Customer Parties of the Space or Building, and/or
(e) the destruction or damage to Customer Equipment or any other property of any of the Customer Parties, except as caused by Licensor's negligence or willful misconduct.
There shall be no third party beneficiaries to this Agreement. This Section shall expressly survive the expiration or earlier termination of this Agreement.
Disclaimer of Warranty
CUSTOMER ASSUMES COMPLETE AND TOTAL RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK.
SITESERVER EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT AVAILABLE OR TRANSMITTED THROUGH THE SERVICE, AND SITESERVER EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT.
EXCEPT AS SPECIFICALLY SET FORTH IN THE MASTER AGREEMENT, THE SERVICE, SITESERVER EQUIPMENT AND SITESERVER MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO ADVICE OR INFORMATION GIVEN BY Siteserver, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER THE SERVICE MAY NOT BE SECURE.
CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY DATA, MATERIAL OR TRAFFIC OF ANY KIND WHATSOEVER CARRIED, UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S OR AN END USER'S COMPUTER SYSTEM OR EQUIPMENT (INCLUDING NETWORK EQUIPMENT) OR LOSS OF SUCH DATA, MATERIAL OR TRAFFIC DURING, OR THAT RESULTS FROM, CUSTOMER'S OR ITS END USERS' USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, CUSTOMER'S OR END USERS' SENDING OR RECEIVING, OR UPLOADING OR DOWNLOADING, OR ATTEMPTS TO DO SAME, OF SUCH DATA, MATERIAL OR TRAFFIC.
IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT Siteserver'S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THE MASTER AGREEMENT AND Siteserver DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THE MASTER AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY OR QUIET ENJOYMENT.
Limitation of Liability
IN NO EVENT SHALL SITESERVER BE LIABLE TO CUSTOMER, AN END USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MASTER AGREEMENT, REGARDLESS OF WHETHER SITESERVER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SITESERVER'S AGGREGATE LIABILITY FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE MASTER AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY)) SHALL BE LIMITED TO THE FEES PAID OR OWED BY CUSTOMER UNDER THE SERVICE ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM IN THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM ARISES.
IN NO EVENT SHALL SITESERVER'S AFFILIATES, THIRD PARTY SERVICE PROVIDERS OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER UNDER THE MASTER AGREEMENT.
SITESERVER SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO REACH 911 OR OTHER EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE PROVIDER OR ANY FAILURE OR FAULT RELATING TO CUSTOMER-PROVIDED EQUIPMENT, FACILITIES OR SERVICES.
EXCEPT FOR CLAIMS FOR INJUNCTIVE RELIEF, AS DESCRIBED BELOW, ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THE MASTER AGREEMENT SHALL BE BROUGHT IN SIMI VALLEY, CA AND SHALL BE RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER RELATED DISPUTES.
CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT BE PERMITTED.
THE ARBITRATOR OF ANY DISPUTE OR CLAIM BROUGHT UNDER OR IN CONNECTION WITH THE MASTER AGREEMENT SHALL NOT HAVE THE POWER TO AWARD INJUNCTIVE RELIEF; INJUNCTIVE RELIEF MAY BE SOUGHT SOLELY IN AN APPROPRIATE COURT OF LAW.
NO CLAIM SUBJECT TO ARBITRATION UNDER THE MASTER AGREEMENT MAY BE COMBINED WITH A CLAIM SUBJECT TO RESOLUTION BEFORE A COURT OF LAW.
THE ARBITRABILITY OF DISPUTES SHALL BE DETERMINED BY THE ARBITRATOR.
JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION.
IF ANY PORTION OF THIS SECTION IS HELD TO BE UNENFORCEABLE, THE REMAINDER SHALL CONTINUE TO BE ENFORCEABLE.
In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to any law or regulation, the remaining provisions of this Agreement will remain in full force and effect.
The Parties shall not be deemed to waive any of their rights or remedies under this Agreement unless such waiver is in writing and signed by the party to be bound.
The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.
Notices to you shall be effective when sent by email to the email address provided to us or, at our option, 3 days following the date deposited in regular United States Mail, postage prepaid, addressed to your address as kept in our files.
You are responsible for notifying us of any changes in your address.
Written notice to us shall be effective when directed to our Legal Department and received at our Corporate Address located here.
Your notice must specify your name and Account information. All notices from you to Siteserver must be made in writing.
Siteserver shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, fiber cuts, actions or inactions of third party providers or suppliers, riots, sabotage, war, government requirements, or other events that are beyond Siteserver's reasonable control.