1. Grant of Access; Customer Equipment
a. Customer Equipment. Subject to the terms and conditions of this Agreement, commencing on the Requested Service Date set forth in Service Order Form and or Signed Quote and subject to PUREVOLTAGE approval, PUREVOLTAGE agrees to allow Customer to place certain equipment which is not provided to Customer by PUREVOLTAGE (the “Customer Equipment”) in the Co-location Space. Customer’s right to occupy the Co-location Space shall commence on the Requested Service Date as set forth on Service Order Form or the date on which PUREVOLTAGE completes the build-out of the Premises, whichever is later. The rights granted pursuant to this Section 1(a) are subject to the terms and conditions of any underlying lease or other superior right by which PUREVOLTAGE has acquired its interest in the Premises. Customer agrees that this Agreement shall not grant to Customer any property rights in any of the Premises. In the event, however, that this Agreement is construed by a PUREVOLTAGE lessor to grant property rights to any Premise, Customer agrees either to obtain the consent of the PUREVOLTAGE lessor to this Agreement and, if so required, to enter into an agreement approved by the PUREVOLTAGE lessor, or upon request of PUREVOLTAGE to immediately remove its Customer Equipment from the Premises. Customer shall be responsible for paying any fees or charges imposed by the PUREVOLTAGE lessor as a condition of granting its consent.
b. Installation and Removal of Customer Equipment. Customer shall arrange for delivery of each unit of Customer Equipment to the Co-location Space at Customer’s expense. Customer shall provide PUREVOLTAGE with no less than three (3) days prior written notice of the actual delivery date. Unless otherwise agreed in writing, Customer shall install the Customer Equipment at the Co-location Space and shall be responsible for any necessary cabling from the junction panel provided by PUREVOLTAGE to the Customer Equipment. Unless, Customer requests remote hands to install Customer equipment. Customer may not install any equipment at the Co-location Space, other than the Customer Equipment, without
PUREVOLTAGE’s prior written approval. Customer shall provide PUREVOLTAGE with written notification one (1) month before Customer removes any Customer Owned Equipment and such removal shall be subject to PUREVOLTAGE’s verification that there are no active contracts or outstanding charges due and payable by Customer to PUREVOLTAGE.
c. Use of Customer Equipment. Customer shall utilize the Co-location Space only for interconnection of the Customer Equipment with the Connectivity services to provided herein by PUREVOLTAGE to Customer, unless PUREVOLTAGE otherwise agrees in writing in advance.
d. Responsibility for Customer Equipment and Co-location Space. Customer shall be solely
responsible for the Customer Equipment, which shall remain Customer’s sole property, and all software and data stored thereon (the “Stored Information”). Unless otherwise specifically agreed in writing, PUREVOLTAGE shall have no duty to monitor, maintain or care for the Customer Equipment or Stored Information. Customer shall protect, maintain, and keep in good order the Co-location Space and the Customer Equipment, and shall ensure that neither Customer nor its agents or contractors damage any part of the Premises, the Co-location Space or any equipment located on or about the Premises.
e. Acceptance of Co-location Space. The installation and operation of the Customer Equipment by Customer shall be conclusive evidence that customer accepts the Co-location Space “as is”, and that the Co-
2. Use of Co-location Space
a. Access and Security. Before beginning any delivery, installation, alteration, replacement or removal work in the Co-location Space, Customer shall obtain PUREVOLTAGE’s, and if required, PUREVOLTAGE’s lessor’s, prior written approval of Customer’s employees, agents, and contractors who will be accessing the Co-location Space (“Approved Personnel”). PUREVOLTAGE shall have the right to require the removal of any Approved Personnel, such right not to be unreasonably exercised. Approved Personnel may access the Co-location Space on reasonable advance notice to PUREVOLTAGE in accordance with Schedule 1. Approved Personnel shall at all times while on the Premises comply with PUREVOLTAGE’s and PUREVOLTAGE’s lessor’s current security and safety procedures. PUREVOLTAGE does not guarantee the safety or security of the Co-location Space or of the Customer Equipment.
b. Alterations and Removal. Customer shall not make any construction changes or material alterations (collectively “alterations”) to the Co-location Space, including cabling and power supplies, without PUREVOLTAGE’s and, if required, PUREVOLTAGE’s lessor’s, prior written consent. All fixtures, alterations, additions, repairs, improvements and/or appurtenances attached to or built into, on or about the Co-location Space, (collectively “fixtures”) shall be and remain part of the Co-location Space and shall not be removed by Customer unless so required by PUREVOLTAGE or its lessor, in which event the items required to be removed shall be removed at Customer’s sole cost and expense. Upon termination or expiration of this Agreement (other than termination pursuant to Section 5(b)(ii) hereof), but subject to paragraph (h) of this Section 2, Customer shall remove all Customer Equipment, except fixtures, within seven (7) days from the date of such termination or expiration of this Agreement (“removal period”). Within this same seven (7) days Customer shall restore the Co-location Space, at its expense, to the condition that it was in before the installation of such Customer Equipment. In the event of a termination of this Agreement pursuant to Section 5(b)(ii) hereof, but subject to paragraph (h) of this Section 2, Customer shall remove all Customer Equipment
(Other than fixtures) from the Co-location Space within forty-eight (48) hours and shall complete restoration work within seven (7) days of termination. Any items and/or Customer Equipment remaining after the removal periods set forth in this paragraph may, at PUREVOLTAGE’s discretion, be removed, stored, or disposed of, and such removal or disposal shall be at
PUREVOLTAGE’s discretion and need not be undertaken in a commercially reasonable fashion. The proceeds, if any, from the sale of such equipment shall be applied to the outstanding invoices of customer, if any. Customer shall be responsible for all costs associated with removal, disposal, and storage of the items and/or Customer Equipment and for the cost of restoration of the Co-location Space. Customer shall return to PUREVOLTAGE at the end of the removal period, all access key cards and other security devices that have been provided to Customer.
c. Inspection. PUREVOLTAGE and its designees, including a PUREVOLTAGE lessor, may inspect or observe the Customer Equipment at any time. If the Customer Equipment is located in a security enclosure, Customer shall furnish to PUREVOLTAGE the appropriate keys or information needed to enter into the enclosure.
d. Compliance with Laws and Regulations. Customer shall comply at all times with all applicable laws, regulations and ordinances relating to its use of the Co-location Space, the Customer Equipment, and the Stored Information and shall also comply with PUREVOLTAGE’s and
PUREVOLTAGE’s lessor’s general rules and regulations relating to the Premises and to the provision by PUREVOLTAGE of the Services hereunder, including PUREVOLTAGE’s Acceptable Use Policy posted on the PUREVOLTAGE Web site (currently located at https://PUREVOLTAGE.com), as amended from time to time (collectively, “PUREVOLTAGE Rules and Regulations”).
e. Relocation. Upon thirty (30) days’ prior email or written notice, or immediately in the event of an emergency, PUREVOLTAGE may require Customer to relocate the Customer Equipment to a location of comparable dimensions. In the event that the relocation is due to an event involving damage, destruction or condemnation of the Premises or Co-location Space, the costs of relocating the Customer Equipment shall be borne by PUREVOLTAGE. In the event that PUREVOLTAGE requires relocation of the Customer Equipment for any other reason, the costs of relocating the Customer Equipment shall be borne by PUREVOLTAGE. Customer may request in writing and PUREVOLTAGE, in its sole discretion, may agree to relocate the Customer Equipment to another location of Customer’s choice. PUREVOLTAGE may condition its approval of such relocation to Customer’s acceptance of additional terms and conditions. In the event
that PUREVOLTAGE agrees to relocate the Customer Equipment as a result of Customer’s request, all costs of the relocation shall be borne by Customer.
f. Third Parties. Customer may not permit any other person to occupy or use the Co-location Space (including by placing such person’s equipment in the Co-location Space) without first obtaining PUREVOLTAGE’s prior written consent, which consent may be withheld or conditioned in PUREVOLTAGE’s sole discretion.
g. Use of Capacity. Customer’s electrical usage shall not exceed the capacity provided for in the Service Order Form. In the event that Customer exceeds such capacity, PUREVOLTAGE may at its election either charge Customer for such excess usage in accordance with Section 4* of this Agreement or terminate this Agreement.
h. Lien. Customer hereby grants to PUREVOLTAGE the right to seize, or lien any Customer equipment located in PUREVOLTAGE’s facilities as security for the performance of Customer’s obligations under this Agreement. In the event of an uncured default, PUREVOLTAGE shall have the right to hold such equipment until Customer satisfies all outstanding balances due to PUREVOLTAGE as specified by this Agreement. In the event that Customer fails to pay all amounts due within thirty (30) days of the invoice, PUREVOLTAGE may retain or sell, at its sole discretion, any such equipment without liability, including but not limited to liability for the loss, transfer or release of any data which may exist on Customer’s equipment at the time PUREVOLTAGE takes possession or transfers or sells the equipment. Customer agrees to sign all financing statements, or any other documents required to perfect PUREVOLTAGE’s security interest.
i. Insurance. Customer agrees to maintain, at its sole expense, during the term of this Agreement and any Service Order, Commercial General Liability insurance in an amount not less than One Million Dollars ($1,000,000); Workers Compensation insurance as required by law and Employers Liability insurance in an amount not less than One Million Dollars ($1,000,000). All policies shall be written on an occurrence basis, placed with a company licensed to provide insurance in the state where Customer is receiving services under this Agreement, name PUREVOLTAGE as an additional insured and require that the insurer provide at least thirty (30) days prior written notice to PUREVOLTAGE of any non-renewal, cancellation, reduction in policy limit or other material change in Customer’s coverage. PUREVOLTAGE shall have no obligation to insure any property of Customer which is in PUREVOLTAGE’s possession or on PUREVOLTAGE’s premises.
j. Consent to Video Monitoring. You acknowledge, agree, and hereby consent under applicable privacy laws that PUREVOLTAGE may monitor the Facility by way of closed-circuit television or other monitoring device for the purposes of maintaining the safety and security of the Facility, any equipment in the Facility, and any persons using or present in the Facility from time to time.
a. During the Term (set out in the Service Order Form) of this Agreement, and subject to the terms and conditions of this Agreement, PUREVOLTAGE will provide to Customer the Co- location, Connectivity, and related Services. Services shall be performed in accordance with PUREVOLTAGE’s then applicable policies and specifications and, unless expressly stated otherwise, shall be provided at the Co-location Space and under the direction of Customer. Charges for the Services are as set forth in Section 4 are payable in accordance with Section 4.
b. Connectivity Services.
i. Right to Modify. PUREVOLTAGE reserves the right to modify its network and facilities used to provide the Connectivity Services for purposes including but not limited to accommodating evolving technology and increased network demand and providing enhanced services. PUREVOLTAGE shall use reasonable efforts to notify Customer of any planned changes to
PUREVOLTAGE’s network or facilities that may adversely affect the Services provided hereunder.
ii. PUREVOLTAGE-Provided Equipment. PUREVOLTAGE is acting only as a reseller and/or provider of any hardware, software, circuit, and equipment (collectively, the “PUREVOLTAGE-Provided Equipment”) offered under this Agreement that was manufactured by a third party. PUREVOLTAGE shall not be responsible for any changes in Service(s) that cause PUREVOLTAGE-
Provided Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service(s). Any malfunction or manufacturer’s defects of equipment either sold or provided by PUREVOLTAGE to Customer or purchased directly by Customer used in connection with the Service(s) will not be deemed a breach of
PUREVOLTAGE’s obligations under this Agreement. Any rights or remedies Customer may have regarding the performance or compliance of PUREVOLTAGE-Provided Equipment are limited to those rights extended to Customer by the manufacturer of such equipment. Customer is entitled to use any PUREVOLTAGE-Provided Equipment only in connection with Customer - permitted use of the Service(s). Customer shall not resell, transfer, export, or re-export any Customer- Provided Equipment, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
iii. Services Levels. See Service Order
iv. Service Level Agreement. See SLA- (Appendix A)
c. Support Services. Standard Support tickets will be answered within three business days (please submit a priority support ticket for urgent issues) Please open a standard support ticket by using out billing system located on our website, or emailing email@example.com the email address sending this email must be registered on our billing portal as the primary owner or as a sub user account which has permissions for support, otherwise our system may reject the email. Due to emailing issues at times, it is best to open tickets in our client area directly. Be sure that you log into your account in the client area so that you can open a support ticket.
Phone Support. Please use this as a last resort, create a support ticket via the ticketing system and have your ticket ID ready if or when calling the support line at +1 (855) 787-8658. If you don’t have a support ticket number our phone support staff will not be able to help. Be sure to include as much details as possible when contacting support so that our staff is able to help you the first time without requiring more details.
4. Fees & Billing
Customer will pay PUREVOLTAGE the fees listed in the Service Order Form for the provision of the Co-location Space and the Services, any increase in external power costs will be passed through. Customer may not exceed eighty percent (80%) sustained combined power usage on any power circuits (primary or primary plus redundant). Customer will be charged additional power usage fees.
Charges for Setup Fees and Build Out fees indicated in the Service Order Form shall be due and payable when billed Immediately. All other fees shall be payable in advance and shall be invoiced by PUREVOLTAGE on a monthly basis unless the Customer is on different than monthly terms.
All clients are billed in advance for services. Invoices are generated seven (7) days in advanced. If customer has a payment method that can be charged it will be charged the day this invoice is generated.
Payment is delinquent if not received by the due date. (by 5PM E.S.T. on due date)
Delinquent payments incur late fees, interest, and risk service suspension and or termination.
If late payments are a common occurrence PUREVOLTAGE may suspend services, the day after the invoice due date. Communication is key to preventing service suspension and or termination.
If account remains overdue for more than thirty (30) days, PUREVOLTAGE will transfer the account to a collection’s agency. Any equipment will be sold to cover costs remaining amount sent to collections. If customer fails to make payments or terminates early, they are subject to pay PUREVOLTAGE in full the remaining amount left on their contracted terms.
All payments shall be made in U.S. dollars.
Customer may request a billing plan change at any time during the month when adding more equipment and requiring more space, power, or Bandwidth. Power upgrades will be for the remainder of their contracted terms. Upgrades may require additional time to get setup.
If Customer’s payment is returned to PUREVOLTAGE unpaid due to insufficient funds, Customer
shall be subject to a returned check charge of $200. If Customer fails to pay any
overdue invoice in full within seven (7) days of PUREVOLTAGE’s written demand for payment, PUREVOLTAGE may terminate or suspend Services to Customer with PUREVOLTAGE not having any liability to Customer as a result of such termination or suspension. Such termination or suspension shall not relieve Customer from any of its obligations under this Agreement. In the event that PUREVOLTAGE suspends Services to Customer, an account reinstatement fee of $250 shall be required to reactivate each of such Services. Any failure of payments, charge backs, disputes, check bounce from Customer will require Customer to make future payments via Wire Transfer to PUREVOLTAGE. Charge backs are subject to an additional $500 admin fee plus the amount owing, additionally service will be suspended and or terminated with any additional remaining term added to the amount owing. This, if not paid, will be sent to collections.
If Customer in good faith disputes any portion of an PUREVOLTAGE invoice, Customer must pay the full amount of the invoice and submit a written claim, including the basis of the dispute within fifteen (15) days of the receipt of the invoice for those Services. Customer waives the right to dispute any charges not properly noticed to PUREVOLTAGE in accordance with this Section. The Parties shall work together in good faith to resolve any such dispute within thirty
(30) days from the date on which PUREVOLTAGE receives Customer’s notice of the dispute. Customer acknowledges that any partial payment from Customer to PUREVOLTAGE is intended as a partial payment toward total amounts due, and that acceptance by PUREVOLTAGE of any such partial payment is not considered “Payment In Full” and does not relieve Customer from its obligation to pay all outstanding amounts due from Customer to PUREVOLTAGE.
If in its reasonable judgment PUREVOLTAGE determines that Customer is not creditworthy or financially secure, PUREVOLTAGE may require full payment in advance or other assurances to secure Customer’s payment obligations hereunder.
PUREVOLTAGE may invoice and Customer shall pay all taxes, fees or assessments and other charges imposed on or required to be collected by PUREVOLTAGE by any governmental agency that may result from this Agreement, or any of the activities contemplated hereunder. Customer shall also be responsible for paying all taxes, fees or assessments and other charges imposed on Customer by any governmental agency that may result from this Agreement, or any of the activities contemplated hereunder.
Prices quoted do not always include any applicable taxes, or other fees mandated by state, local, federal government, or other entities, including but not limited to FCC surcharges.
5. Term, Renewal and Termination
This Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with Section 5(b) hereof, shall continue for the minimum term set forth in the Service Order Form (the “Term”). Any services that are not canceled ninety (90) days prior to the anniversary date shall renew as in accordance with the original contract term or “renewal term” The foregoing notwithstanding, in no event shall Customer’s right to occupy the Co-
location Space extend beyond the Term or the underlying lease or other superior interest in the Premises.
This Agreement may be terminated in any of the following ways. Either party may terminate this Agreement on written notice to the other party (“Termination Notice”) in the event : (1) of the insolvency of the other party or the institution of voluntary or involuntary proceedings in bankruptcy or under any other insolvency law, or an arrangement with creditors, or a corporate reorganization, receivership or dissolution of the other party; or (2) that the other party has breached any obligation under this Agreement, or any of its representations or warranties under this Agreement are inaccurate in any material respect, and such breach or inaccuracy is not cured within thirty (30) days after written notice thereof. (ii) PUREVOLTAGE may discontinue performance hereunder or terminate this Agreement on written notice to Customer in the event: (1) that Customer is in default or late of its payment obligations hereunder on two or more occasions in any six month period; (2) that Customer is in breach of its obligations under any agreement entered into with PUREVOLTAGE for the provision of telecommunications or other services and such breach would entitle PUREVOLTAGE to terminate such agreement;(3) of a termination of PUREVOLTAGE’s lease for the Premises; or (4) that Customer is in breach of Sections 1(c), 2(d), 2(f), 2(g) hereof. PUREVOLTAGE may also terminate this Agreement for convenience upon sixty (60) days’ prior written notice to Customer. The remainder of the contract term is still payable under any circumstances.
6. Representations and Warranties
a. Customer Warranties.
Customer represents and warrants to PUREVOLTAGE: (i) that it owns or has the legal right and authority and will continue to own or maintain the legal right and authority during the Term, to place and use the Customer Equipment in the Co-location Space.
(ii) that Customer’s services, products, materials, and the Customer Equipment (collectively, “Customer’s Business”) do not and will not operate in any manner that would violate any applicable law or regulation or the PUREVOLTAGE Rules and Regulations.
b. Disclaimers by PUREVOLTAGE. THE CO-LOCATION SPACE AND THE SERVICES ARE PROVIDED “AS IS” AND PUREVOLTAGE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PUREVOLTAGE DOES NOT WARRANT THAT THE CO-LOCATION SPACE AND/OR THE SERVICES WILL BE AVAILABLE UNINTERRUPTED, ERROR-FREE OR IN A COMPLETELY SECURE BASIS. IT IS INTENDED THAT THE FEES AND CHARGES PAYABLE BY CUSTOMER HEREUNDER SHALL BE A NET RETURN TO PUREVOLTAGE, FREE OF EXPENSE, CHARGE, OFFSET, DIMINUTION OR OTHER DEDUCTION WHATSOEVER ON ACCOUNT OF THE PREMISES OR THE CO-LOCATION SPACE (EXCEPTING FEDERAL AND STATE INCOME TAXES OF GENERAL APPLICATION AND THOSE EXPENSES WHICH THIS AGREEMENT EXPRESSLY MAKES THE RESPONSIBILITY OF PUREVOLTAGE). CUSTOMER HEREBY WAIVES ALL RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE TO MAKE REPAIRS TO THE CO-LOCATION SPACE OR THE PREMISES AT PUREVOLTAGE’S OR
PUREVOLTAGE’S LESSOR’S EXPENSE.
7. Limitation of Liability
a. PUREVOLTAGE Liability.
Customer agrees, to the extent not prohibited by law, that none of PUREVOLTAGE shall be liable for any claim involving, concerning or related to the loss or destruction of Customer data, or any portion thereof or for any damage either to person or property sustained by Customer, or by other persons due to the Premises or Co-location Space or any part thereof becoming out of repair, or due to the happening of any accident or event in or about the Premises or Co-location Space, or due to the act or neglect of any occupant of the Premises, or of any other person, including, but not limited to damage caused by gas, electricity, power outage, snow, frost, steam, sewage, sewer gas or odors, fire, water or the bursting or leaking of pipes, faucets, sprinklers and plumbing fixtures.
(Collectively, “excluded liability”), unless such excluded liability arose as the result of
PUREVOLTAGE’s intentional misconduct or gross negligence.
IN NO EVENT WILL PUREVOLTAGE BE LIABLE TO CUSTOMER, ANY EMPLOYEE, AGENT OR CONTRACTOR OF CUSTOMER, OR ANY THIRD PARTY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING IN RELATION TO THE CO-LOCATION SPACE, THE EQUIPMENT, THE SERVICES, INCLUDING WITHOUT LIMITATION THE SERVICES SET FORTH IN THE SERVICE ORDER FORM AND SCHEDULE(S), CUSTOMER’S BUSINESS OR OTHERWISE, WHICH CLAIMS INVOLVE INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PUREVOLTAGE’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO PUREVOLTAGE PURSUANT TO THIS AGREEMENT FOR THE THREE (3) MONTH PERIOD PRECEDING THE CLAIM.
Customer shall indemnify, defend and hold harmless PUREVOLTAGE (including its affiliates, officers, directors, employees or agents) (as defined in Section 6(a) hereof) from and against any and all claims, demands, actions, damages, liability, judgments, expenses and costs (including but not limited to reasonable attorneys’ fees) arising from (i) Customer’s use of the Co-location Space, the Customer Equipment, the PUREVOLTAGE-Provided Equipment or the Services, (ii) Customer’s Business, (iii) claims relating to a breach of the PUREVOLTAGE Rules and Regulations, including but not limited to, (a) infringement or misappropriation of intellectual property rights, defamation, libel, slander, obscenity, pornography, or violation of rights of privacy or publicity, or (b) spamming, or any other offensive, harassing or illegal conduct, (iv) any breach by Customer of any warranty, covenant or obligation hereunder, (v) any injury to or death of any person or damage to any property occurring upon the, Co- location Space, the Premises, and/or the building or the land of which the Premises are a part, arising out of (or in connection with), or claimed to arise out of (or in connection with) Customer’s use of the Co-location Space, the Customer Equipment, the PUREVOLTAGE- Provided Equipment or the Services, or (vi) any action or inaction on the part of Customer that causes PUREVOLTAGE to be in breach of any agreement with the PUREVOLTAGE lessor, or
(vii) the violation of any law or regulation by Customer.
9. Casualty or Eminent Domain
In the event of any taking by eminent domain or damage by fire or other casualty to the Premises and/or the Co-location Space (“Event”), Customer shall be bound by any action taken by PUREVOLTAGE and the owner of the Premises (if other than PUREVOLTAGE) in relation to the Event. Customer shall have no claim against PUREVOLTAGE in relation to an Event, including but not limited to a claim for relocation expenses, the value of any unexpired term, or loss of business from full or partial interruption or interference due to the operation of this provision. Without limiting the foregoing, Customer acknowledges that PUREVOLTAGE shall have the right to terminate this Agreement on the happening of an Event, without any liability to Customer.
Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, confidential, and which constitutes the exclusive property and trade secrets of the other party ("Confidential Information"). Except as provided in PUREVOLTAGE’s Acceptable Use Policy, each party agrees to maintain the confidentiality of the Confidential Information, to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either party’s use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is
rightfully in Receiving Party’s possession, as evidenced by Receiving Party’s records; (c) is disclosed to the Receiving Party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by the Receiving Party without any breach of this Agreement; or (e) is the subject of a written permission to disclose provided by the Disclosing Party. Notwithstanding any other provision of
11. General Provisions
a. No Third-Party Beneficiary.
It is the explicit intention of the parties hereto, that no person or entity other than the parties and their respective successors and assigns is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties.
b. Relationship of the Parties.
Customer and PUREVOLTAGE are, and shall remain, independent contractors. Neither party will have the authority to make any representations, claims or warranties of any kind on behalf of the other party or on behalf of such party’s licensors or suppliers.
c. Force Majeure.
Subject to the next following sentence, neither party shall be deemed in default of this Agreement to the extent that performance of its obligations (other than an obligation to pay for services rendered by the other party) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, strikes, unavailability of material, facilities, telecommunications services or supplies or any other cause beyond the reasonable control of such party (“Force Majeure”). In the event of such a Force Majeure, the party shall give the other party prompt written notice within ten (10) days of the Force Majeure. In addition, the time for performance or cure shall
be extended for a period equal to the duration of the Force Majeure but not in excess of three
This Agreement and the rights and obligations hereunder shall not be assigned or otherwise transferred by Customer without the prior written consent of PUREVOLTAGE. A transfer or assignment of this Agreement shall include a sale of all or substantially all of the assets of Customer or a change in control of Customer. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
All notices hereunder shall be delivered personally, made by certified or registered mail, return receipt requested, or sent by telecopy or facsimile transmission, answer back requested, and shall be sent to the parties at the following addresses (or at such other address for a party as shall be specified by like notice, provided that notices of a change of address shall be effective only upon receipt thereof).
Notices to PUREVOLTAGE:
PureVoltage Hosting Inc.
7 Teleport Drive Suite 1011
Staten Island, New York 10311
Attention: Legal Department Telephone: 855-787-8658
Such notice will be effective, (i) if sent by telecopy or facsimile on the date of transmission unless transmitted after normal business hours, in which case on the following date: (ii) if mailed, 14 days after the date of posting; or (iii) as of the date delivered, if personally delivered. Notices if mailed must also contact us using our ticketing system as well about the mail so that we know and look out for it. Otherwise, it may go into storage and not be seen.
Any waiver of any right or default hereunder shall be effective only if given in writing and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion.
No determination by a court of competent jurisdiction that any term or provision of this Agreement is invalid or otherwise unenforceable shall operate to invalidate or render unenforceable any other term or provision of this Agreement and all remaining provisions shall be enforced in accordance with their terms.
h. Governing Law.
This Agreement will be governed by and construed under, and the legal relations between the parties hereto will be determined in accordance with, the laws of the State of New York, without giving effect to such state’s conflict of law principles.
i. Customer Data.
Customer is responsible for its content residing on PUREVOLTAGE servers, and except as otherwise agreed with PUREVOLTAGE, for the backup thereof.
j. IP Address Ownership.
PUREVOLTAGE shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by PUREVOLTAGE and PUREVOLTAGE reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
k. Intellectual Property.
Customer represents and warrants that Customer’s use of the Services shall not infringe the intellectual property or other proprietary rights of PUREVOLTAGE or any third party. Customer further acknowledges that all right, title, and interest in any and all technology, including the software that is part of or provided with the Services and any
trademarks or service marks of PUREVOLTAGE (collectively, “PUREVOLTAGE Intellectual
Property”) is vested in PUREVOLTAGE and/or in PUREVOLTAGE’s licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in 2021 PureVoltage Hosting. All Rights Reserved. www.purevoltage.com
or to the PUREVOLTAGE Intellectual Property. Customer may not copy, modify, or translate the PUREVOLTAGE Intellectual Property or related documentation, or decompile, disassemble, or reverse engineer the PUREVOLTAGE Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute the PUREVOLTAGE Intellectual Property in any manner without the prior written consent of PUREVOLTAGE; provided, however, that nothing in this sentence would preclude Customer from using the PUREVOLTAGE Intellectual Property as incorporated in the Services. This paragraph shall not operate to extinguish, restrict, vary, waive, or affect in any manner whatsoever any right, title, or interest which Customer may now have or hereafter acquires in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title, or interest in the third-party software to Customer.
l. No Photographs.
Customer may not photograph, or electronically or otherwise reproduce any
part of the interior of the Premises, without PUREVOLTAGE’s prior written permission.
m. Entire Agreement; Amendments; Headings.
This Agreement, including the Service Order Form and Schedule(s) hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior or contemporaneous, written, or oral negotiations, agreements, negotiations, correspondence, and understandings between the parties respecting the subject matter of this Agreement. This Agreement may be modified only by an instrument in writing duly executed by both parties. The Section headings in this Agreement are inserted for convenience of reference only and shall not be used in interpreting this Agreement.
The rights and obligations of the parties in this Agreement that would by their nature or context be intended to survive the expiration or termination of this Agreement shall so survive. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.
SCHEDULE 1 – ACCESS TO THE PREMISES
1. Escorted Access:
Customer’s Approved Personnel maximum of three people (Unless otherwise notified and approved) may access the Co-location Space, accompanied at all times by a PUREVOLTAGE escort, for the purpose of installing, operating, maintaining, repairing or removing the Customer Equipment in accordance with the terms and conditions of the Agreement on reasonable advance notice to PUREVOLTAGE. Reasonable advance notice means a minimum of
(i) twenty-four (24) hours for routine maintenance; (ii) four (4) hours in the case of emergencies; and (iii) three (3) days for installation of Customer Equipment. Approved Personnel shall at all times while on the Premises comply with PUREVOLTAGE’s and
PUREVOLTAGE’s lessor’s security and safety procedures as amended from time to time.