Last Revised: 2014
These Terms and Conditions (the “Terms and Conditions”) are applicable to each c|g solutions (“c|g”) Service Order Form (each, a “SOF”) and Product Order Form (each, a “POF”) and are hereby incorporated in their entirety into each SOF and POF as if fully set forth therein. Each SOF and POF executed by c|g and Customer (as identified in the SOF), together with these Terms and Conditions, is referred to collectively herein from time to time as the “Agreement”.
1. Services and Products. A Service ordered by Customer pursuant to a SOF listed under the Service Description column will be referred to herein as a “Service” and collectively, “Services”. The applicable description(s) for any Services ordered by Customer pursuant to a SOF are hereby expressly incorporated into and form a part of these Terms and Conditions. Products ordered by Customer pursuant to a POF will be referred herein as “Products”. The applicable description(s) for any Product ordered by Customer pursuant to a POF are hereby expressly incorporated into and form a part of these Terms and Conditions. Services are provided on as-requested basis; in the event that during any month Customer does not request or use a Service, Customer acknowledges and agrees that Customer is still obligated to pay the Monthly Recurring Fee schedule detailed in the SOF for the remainder of the term. In the event Services ordered by Customer are set forth in any applicable SOW in the SOF, the fee schedule set forth in Section 24 below will be applicable. Capitalized terms used in a SOF that are not otherwise defined therein shall have the meanings given to them in these Terms and Conditions, and if any capitalized term is not defined in these Terms and Conditions, such undefined term shall have the meaning generally given thereto in relevant industry practice. In the event of a direct conflict between the terms of a SOF, on the one hand, and these Terms and Conditions, on the other hand, the relevant terms of these Terms and Conditions shall control.
2. Term. The term for the Services (the “Term”) will be for the number of months stated on the SOF, and will commence during the month specified on the SOF, and will end upon the last month of any specified Service term. Unless otherwise stated in the SOF, the Term shall be month-to-month. Upon expiration of the Term for an applicable Service, Service will continue to be provided unless canceled by either party with ninety (90) days prior written notice pursuant to Section 15. Upon receipt of a cancellation notice and during the 90 day notice period, c|g shall only provide Service in support of the transition to a new solution for Customer; no new support or project issues will be addressed during the 90 day notice period. Unless Customer notifies c|g at least ninety (90) days prior to the end of any original committed term or renewal term of its intention not to renew the Service, the Term for the applicable Service shall automatically renew for identical successive terms.
3. Pricing. Customer agrees to pay c|g the then-current monthly charges for the Services as set forth in a SOF and, as applicable, Section 24 below (the “Fees”).. All charges identified on the SOF are exclusive of any sales, use or similar taxes. The prices for Products will be as set forth on the POF and include sales, use or similar taxes. Customer agrees to promptly pay any sales or use taxes if levied by the State of Texas. Fees do not include the costs associated with connecting through an available Internet connection.
4. Customer Responsibilities. In performing the Services, c|g may instruct the Customer to perform certain tasks relating to the Services. Customer shall perform all such tasks. Upon commencement of Services, Customer will be asked to provide detailed information regarding authorized users. Customer must keep this information up-to-date. Customer will also provide c|g, or its authorized representative, reasonable and free access to Customer’s networking equipment and computers. Throughout the Term, Customer will be contacted via telephone or email and required to make various decisions regarding Customer’s networking equipment and computers; Customer agrees to promptly respond to such emails and phone calls. Throughout the Term c|g will need physical access to Customer’s facilities; Customer agrees to provide parking for c|g representatives while they are on the Customer’s premises. In the event c|g representative must pay for parking, Customer agrees to reimburse either the c|g or its representative. Periodically, third-party couriers may be used to pickup or deliver Customer equipment; Customer agrees to reimburse c|g for any and all courier expenses incurred. Customer agrees, that during the term of this agreement, not to provide access to Customer’s network to any third-party for any purpose whatsoever and to safeguard network from unauthorized access. Customer agrees it shall implement reasonable security and environmental precautions to ensure a high level of Services availability. Customer further covenants that it shall not place any data on a backup server that (a) infringes on the intellectual property rights of any third party, (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising, (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, (d) is obscene, pornographic or indecent, or (e) contains any viruses, trojan horses, worms, cancelbots, time bomb, or other computer programming routines that are intended to damage, detrimentally interfere with, intercept, or expropriate any system, data, or personal information.
5. Payment Terms and Suspension of Service. Invoices for Monthly Recurring Fees will be issued monthly, in advance. Payment of all other Fees should be made NET30 (within 30 days of invoice). Payment for Fees is due by the first day of the calendar month. Payments not received by the 7th day of the month are considered late, and in addition to any remedy available, c|g may then suspend all or any portion of the Services until payment in full for all Fees have been received. In the event Customer has not paid the Fees for Services by the 28th day of the month, Customer agrees to pay a $500 finance charge and an additional $500 for each month Customer has not paid for Services thereafter. All charges identified on the SOF are exclusive of any sales, use or similar taxes. Any such taxes will be calculated and invoiced by c|g when and if levied by the State of Texas and Customer agrees to pay any such taxes within five business days of receipt of notice in accordance with Section 15 of this Agreement. Invoices for Products are due with 50% of the invoiced amount upon the signed order, and the remainder 50% (or applicable amount at such time) is due upon receipt of products at c|g facilities and prior to being delivered to Customer. If Customer has committed to a Term, then Customer may not reduce Services below the committed Monthly Recurring Fee as agreed in the SOF for the Term.
6. Collocated Equipment. Customer agrees and understands that c|g’s data center and network operations center are not accessible by Customer. Customer also agrees that any Customer owned equipment located in c|g’s data center will not be released until all unpaid Fees have been paid. In the event that any unpaid Fees are not paid within 30 days after they become due, c|g, at its discretion, may elect to sell Customer equipment to satisfy any unpaid account balances. If the sale of Customer equipment does not satisfy the account balance, Customer remains responsible for the payment of the remainder of the account balance. If the sale of Customer equipment is required to satisfy account balances, c|g has absolutely no obligation to safeguard, backup, retain, or return to Customer any data residing on the equipment.
7. Hosted Services. c|g’s hosted services are provided with monthly recurring charge depending on the services purchased by Customer. c|g reserves the right to charge a variable installation fee on a one-time basis for Hosted service. Hosted services include DNS, email, spam filtering, VOIP, backup and other such services that may be provided. Customer agrees to release c|g from any responsibility and liability for the availability, timeliness, security or reliability of the Hosted Services. c|g also reserves the right to modify, suspend or discontinue the hosted services with thirty (30) days notice and without any liability to Customers. Customer also agrees all associated assets related to hosted services including servers, hard drives, and software are the property of c|g despite any charges collected for installation.
8. Limitations. Monthly Recurring Fees do not include coverage for: (a) repairs or replacement to equipment without proper authorization by c|g, (b) failures due to Customer’s failure to keep equipment and software in warranty and up to best practices., (c) repairs conducted to equipment by someone not authorized by c|g, (d) deliberate abuse, misuse, negligent alternation of equipment or components by Customer or its agents or employees, (e) negligence of the Customer or its agents or employees, (f) insufficient heating ventilating or air conditions (HVAC) or HVAC system failure at Customer location.
9. Procurement. During the Term, c|g will handle the procurement and delivery of technology related products and services at no additional cost to Customer. Should the Customer decline to make use of our procurement services and purchase technology related hardware and software, Customer agrees to pay c|g a Professional services fee based on the volume of work required to integrate new equipment and/or software purchased to the Customer network
10. Termination. Either party may terminate this Agreement at any time for any reason upon ninety (90) days written notice; provided, that, in the event Customer terminates Services prior to the expiration of the committed Term for any such Service, or if c|g terminates this Agreement for default (as set forth below), Customer will be subject to an early termination fee equal to 100% of the Monthly Recurring Fee associated with the Services for the remaining months in the Term, including any renewal Terms for any applicable Services.
11. Default and Remedy. Customer shall be in “default” if (i) Customer fails to pay an invoice by the 10th day of the calendar month, (ii) Customer fails to abide by any material obligation, covenant, or condition of these Terms and Conditions, including Customer’s failure to make timely payments as specified herein, (iii) Customer fails to materially perform its responsibilities in any applicable SOF, (iv) Customer is insolvent, has made a general assignment for the benefit of creditors, has filed, or had filed against it (without obtaining a release within sixty days of filing), a petition in bankruptcy, or has had a receiver or trustee appointed for it or any of its assets; or (v) Customer provides network access or passwords to any third-party. In case of default, c|g may, in its sole and unfettered discretion and in addition to its other rights and remedies under applicable law, (y) continue to provide Services and allow Customer to cure the past due payments, (x) upon five (5) days written notice to Customer, terminate this Agreement, immediately terminate all of Customer’s rights under all SOFs, and require Customer to pay to c|g, upon demand, all prior unpaid Fees. In the event Customer believes c|g is in default or breach of a SOF or POF, Customer shall provide written notice to c|g pursuant to Section 15(a) or 15(b) below (the “Notice”). The Notice shall in commercially reasonable detail describe the nature of the default or breach. Upon receipt of the Notice by c|g, c|g shall have thirty (30) days to cure such default or breach and Customer agrees to reasonably assist c|g so that it may cure such default or breach. If c|g cures within the 30-day period, the applicable SOF or POF shall continue to be in effect as set forth in such SOF or POF.
12. INDEMNITY. CUSTOMER HEREBY AGREES TO INDEMNIFY, DEFEND, PROTECT, AND SAVE c|g AND ITS GENERAL PARTNER, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, MANAGERS, MEMBERS, SECURITY HOLDERS, AFFILIATES, AND AGENTS (THE “c|g PARTIES”), HARMLESS FROM AND AGAINST, AND HEREBY ASSUMES LIABILITY WITH RESPECT TO: (I) ANY PERSONAL INJURY TO ANY PERSON, INCLUDING DEATH; (II) ANY THIRD PARTY CLAIM, ACTION, SUIT, OR PROCEEDING ALLEGING ANY BREACH OF CUSTOMER’S COVENANTS CONTAINED HEREIN, AND (III) ANY LOSS OR DAMAGE TO ANY TANGIBLE PROPERTY OR FACILITIES ARISING OUT OF OR IN ANY WAY RELATING TO ANY BREACH OF CUSTOMER’S OBLIGATIONS UNDER THESE TERMS AND CONDITIONS OR THE ACTS OR OMISSIONS, NEGLIGENT, INTENTIONAL, OR OTHERWISE, OF CUSTOMER OR ANY OF ITS EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, MANAGERS, MEMBERS, SECURITY HOLDERS, AFFILIATES, OR AGENTS.
13. Warranty. c|g warrants the Services only as and to the extent set forth in the applicable SOF. ANY SUCH EXPRESS WARRANTIES AND RELATED EXPRESS REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRIGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. c|g DOES NOT WARRANT THAT CUSTOMERS USE OF THE SERVICES OR PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED. NOTWITHSTANDING THE FOREGOING, ANY SECURITY MECHANISMS IMPLEMENTED BY c|g MAY HAVE INHERENT LIMITATIONS AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THAT SUCH SERVICES SUFFICIENTLY MEETS CUSTOMER’S SECURITY AND OPERATIONAL NEEDS.
14. Limitation of Liability. The c|g Parties shall be liable only for direct damages due to gross negligence and willful misconduct. Under no circumstances shall the c|g Parties be liable for any indirect, incidental, exemplary, incidental, economic, special, punitive, or consequential damages, whether for breach of contract, negligence, or any other cause of action, including any lost data and lost profits. The c|g Parties’ total aggregate liability arising out of or relating to this Agreement, in contract, tort, or otherwise, shall be limited to the lesser of (a) $10,000.00; or (b) the amount actually paid to c|g by Customer for Services under the SOF(s) to which the damages relate. Customer acknowledges that the Fees reflect the allocation of risk set forth in this Agreement and that c|g would not enter into this Agreement without these limitations on liability. This Section shall be interpreted in the broadest sense to limit the liability on the c|g Parties.
15. Notices. Unless specifically provided for otherwise herein, a notice under these Terms and Conditions or otherwise relating to the Services shall be in writing, delivered to the address of the receiving party as set forth on the applicable SOF, and deemed effective (a) three business days after such notice is sent via registered or certified mail, (b) when received if sent via a recognized national delivery service with proof of delivery, or (c) thirty days after being posted on c|g’s website. Each party may change its address for notification by providing notice in accordance with this Section.
16. Confidentiality. Each party, for itself, its agents, employees, and representatives, agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law; provided, however, that no liability shall arise hereunder as a result of the dissemination of any information which (i) was in the possession or control of one party prior to the date of disclosure to that party by the other party hereunder, or (ii) was in the public domain or enters the public domain through no improper act by the party to which such information was disclosed or any of that party’s agents or employees, or (iii) was rightfully given to a party by a source independent of the other party. Any report or other document prepared by c|g in the performance of the Services for use by Customer shall be deemed to be confidential information hereunder. Customer agrees that during the term of this agreement the configuration and design of Customer’s network is confidential and proprietary to c|g and that providing access to Customer’s network to any third-party would irreparably damage c|g’s competitive advantage in the market and breach this agreement. Customer agrees that c|g may refer to Customer by trade name and trademark, and may briefly describe Customer’s business, in c|g marketing and on its web site. Customer agrees and acknowledges that it is aware that each c|g employee and contractor is bound by employment contract that prohibits them from working as employee or contractor with any of our current or former clients. Customer further agrees not to hire or attempt to hire, or cause anyone to hire or attempt to hire, any current or former employee or independent contractor of c|g who served as an employee or independent contractor of c|g providing services to the Customer during the term of this Agreement and for a period of three years following the termination of this Agreement, any person or entity without the express written consent of c|g’s Chief Executive Officer AND c|g’s Chairman of the Board.
17. Force Majeure. Not withstanding anything to the contrary contained herein, c|g shall not be liable to Customer for any loss or damage, or deemed to be in breach of this Agreement due to a failure to perform, wholly or in part, if such nonperformance is due to causes beyond c|g’s control, including acts of God, fire, explosion, earthquake, hurricane, tornado, wind, flood, storm, or other natural occurrences; vandalism; third party theft; computer, voice mail, e-mail, or other telecommunications system or internet or network service provider failure; any law, order, regulation, direction, action, or lawful demand of any federal, state, local, or foreign governments having jurisdiction over c|g or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more such governments, or of any civil or military authority; national emergency; insurrection; riot; war; strike, lockout, work stoppage, or other such labor difficulty.
18. Entire Agreement. These Terms and Conditions and all SOFs and POFs executed by Customer and accepted by c|g constitute the entire agreement between the parties, and supersede any prior agreements between the parties (whether oral or in writing), with respect to the subject matter hereof. Any SOF or other documents received by facsimile transmission by either party containing signatures of approval of the other party shall be deemed originals and fully enforceable. Any SOF and POF may be executed by the parties in counterparts.
19. Binding Nature / Assignment. These Terms and Conditions and all SOFs and POFs between c|g and Customer shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement shall not be pledged, mortgaged, encumbered, assigned, or delegated (any, an “Assignment”) by Customer, in whole or in part, without first obtaining the prior written consent of c|g. c|g’s consent to one Assignment shall not be deemed to be consent to any other or subsequent Assignment. c|g’s waiver of or consent to any Assignment shall be ineffective unless set forth in writing, and Customer shall not be relieved of any of its obligations under this Agreement unless the consent expressly so provides. Any purported Assignment without the required consent shall be null and void and of no legal force or effect. Customer shall reimburse c|g on demand for any reasonable costs that may be incurred by c|g in connection with any proposed Assignment.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. The parties agree that this Agreement, including each SOF and POF, is entered into and performable in substantial part in Dallas County, Texas. No cause of action may be asserted against either party that accrued more than one year prior to the time the facts giving rise to the cause of action are discovered or should have been discovered. In the event a suit is brought by either party, or an attorney or collection agency is retained by c|g to collect any moneys due hereunder, the prevailing party shall be entitled to recover reimbursement for reasonable attorneys’ fees and expenses, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith.
21. Severability. If any provision(s) of these Terms and Conditions are held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the parties further agree to substitute a valid provision that most closely approximates the intended economic effect of the invalid provision.
22. Survival. The portions of these Terms and Conditions that by their sense and context are intended to survive the performance thereof by the parties hereto shall survive the completion of performance and termination or cancellation of any or all SOFs and POFs between c|g and Customer, including, without limitation, the making of any and all payments due hereunder.
23. Customer Authority. This Agreement is a legally valid and binding obligation of Customer, and is enforceable in accordance with its terms. If Customer is an entity (including but not limited to a corporation, partnership, or limited liability company), Customer represents and warrants that each individual signing this Agreement on its behalf is duly authorized to execute and deliver this Agreement on behalf of Customer in accordance with applicable law and Customer’s governing documents, and, if and to the extent necessary and applicable to an entity of Customer’s type, Customer’s Board of Directors or other governing body has approved this Agreement and authorized the individual signing this Agreement to do so on Customer’s behalf.
ADDITIONAL LINKS AND INFORMATION:
Service Level Agreement