These General Terms and Conditions together with all Supplements, Order Form(s), Exhibits and other addenda attached hereto from time to time constitute the Master Products and Services Agreement (“Agreement”) which is effective as of the last date of execution below (“Effective Date”) by and between ALLUS Online Corp., (“Company”), and Customer. Company and Customer are collectively referred to as the “Parties” or individually as a “Party”.
“AUP” means ALLUS Online ’s Acceptable Use Policies as published on the Company’s website from time to time, and which are incorporated into this Agreement by reference.
“Commencement Date” means the date upon which Company begins to provide an ordered Product or Service as more fully described in the relevant Supplement or Order Form.
“Company Network” means, collectively, the IP network, system capacity and related facilities (including, without limitation, routers, switches and communication channels) owned or controlled by Company to the extent it applies to the Product or Service.
“Order Form” refers to service order (“Service Order”), detailing the Products or Services, the Term, Customer charges, the estimated Commencement Date and any other relevant terms agreed upon by the Parties.
“Products or Services” means the products or services provided by Company (including, without limitation, Colocation, Bandwidth) to Customer.
“Supplement” means a fully executed supplement to these General Terms and Conditions each containing additional terms and conditions that govern the related Products or Services provided by Company.
“Term” means the period of time in which Company provides Products or Services to Customer pursuant to an Order Form.
“Termination for Cause” means the immediate suspension or termination of service to a Customer pursuant to either this Agreement, corresponding Supplements, or any outstanding Order Form resulting from any reported violation of the Company’s AUP, or for defaulting upon any obligation of payment arising pursuant to this Agreement or any other outstanding Order Form of the Customer’s.
“Grace Period” refers to a period of time in which the Company agrees to refrain from charging interest on a disputed invoice.
The Master Service Agreement consists of sections 1-16 of this Agreement, Acceptable Use Policy, Order Form and Supplements.
3.1. Installation Charge. If a non-recurring installation charge or setup fee (“Installation Charge”) is specified in an Order Form, Company will invoice Customer for and Customer will pay such Installation Charge, upon the effective date of the Order Form (“Order Form Effective Date”). The Installation Charge invoice should be paid by the Customer before the installation process begins.
3.2. Recurring Charge. If a recurring charge (“Recurring Charge”) (e.g. Monthly Charge, Quarterly Charge, Annual Charge, etc.) is specified in an Order Form, Company will invoice such Recurring Charge on the first date of each month in advance, and Customer will pay such Recurring Charge within ten (10) days from the date of the invoice, unless otherwise noted on the invoice itself. Company will begin to invoice the Recurring Charge on the Commencement Date. Invoices for partial months will be pro-rated. Multiple types of Recurring Charge may be set forth in the Order Form.
3.3. Additional Charges. If applicable, ALLUS Online will invoice Customer and Customer will pay invoices for any additional charges for Products or Services which are specified in an Order Form.
3.4. Applicable Taxes. ALLUS Online will invoice Customer and Customer will pay any and all applicable taxes (“Applicable Taxes”) as more fully described in Section 4, below, with respect to specific Customer charges.
3.5. Late Payments. All invoices must be paid in accordance with their terms without setoff or deduction, unless a dispute has been opened in writing with the company prior to the monthly renewal date. For Colocation Services grace period of (10) days will follow the Customer's recurring billing date. Late payments failing to provide a written dispute prior to the Customer's renewal date will be evaluated at the Company's discretion and will accrue interest on the unpaid sum as of at the lesser of (i) the highest legal rate of interest permitted in the State of or (ii) one and one-half percent (1.5%) per month.
3.6. Method of Payment.
The Customer will pay by pre-authorized payment to a Customer credit card, by wire transfer or by PayPal.
3.7. U.S. Dollars.
Unless otherwise specified in an Order Form, all payments must be made by Customer to Company in U.S. dollars.
3.8. Early Termination Charges. For Early Termination of the Agreement on Colocation Services, the Customer agrees to pay all the charges then due and owing and an “Early Termination Charge” to Company. The Early Termination Charge is a sum equal to the net present value of the remaining Recurring Charges under all terminated Order Forms for Colocation Hosting Services.
Notwithstanding the foregoing, Company may seek all other available remedies in law and in equity in the case of Customer’s default resulting from any reason. In the event that litigation is necessary to obtain payment, the Customer agrees that it shall also be liable to the Company for all costs associated with litigation, including the Company’s court costs and attorney’s fees incurred. The failure to timely pay Early Termination Charges for any Order Form shall lead to the immediate termination of service on all outstanding Order Forms, all of which shall be accelerated, and all obligations of payment shall become immediately due and owing pursuant to the terms and provisions of this Section 3.8.
3.9. Refund Policy
For Colocation Clients payment can only be refunded after the Agreement becomes ineffective. The refundable amount can not exceed the amount of excess funds on the balance of Customer on the date of refund.
4.1. Bandwidth Services. ALLUS Online will provide to the Customer the Internet Connectivity, IP Addresses and Internet Traffic services (collectively, the “Bandwidth Services”), as specified in the Service Order Form. The Customer agrees to use bandwidth as described in the AUP. For Colocation Services bandwidth is provided on either a “per Gigabyte” or a “per Mbps” rate. If bandwidth is provided on “per Gigabyte” rate Customer agrees that number of gigabytes indicated in the Service Order Form is the sum of the incoming and outgoing data transfer for a period of 1 month. Customer agrees that the number of Gigabytes agreed upon in the Service Order Form is the minimum amount of bandwidth that will be charged to Customer each month at the rate agreed upon in the Service Order Form. If Customer exceeds number of Gigabytes per month for the Service ordered by Customer in the Service Order Form, Customer agrees to pay the additional per Gigabyte charge agreed upon in the Service Order Form for excess bandwidth usage. If bandwidth is provided on “per Mbps” rate, it is calculated according to 95-percentile rule. Customer agrees that the number of Megabits per second agreed upon in the Service Order Form is the minimum amount of bandwidth that will be charged to Customer each month at the rate agreed upon in the Service Order Form. If Customer exceeds number of Megabits per second for the Service ordered by Customer in the Service Order Form in any month, Customer agrees to pay the additional per Mbps charge agreed upon in the Service Order Form for excess bandwidth usage.
4.2. IP Adresses.
Any IP Addresses allocated to the Customer by ALLUS Online must be maintained by the Customer in an efficient manner as deemed by ARIN and utilized at 80% within 30 days of assignment by ALLUS Online to the Customer. Failure to comply with this Section may result in the revocation of IP Addresses by ALLUS Online after five days notice to the Customer. ALLUS Online shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to the Customer by ALLUS Online , and ALLUS Online reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. The Customer can obtain up to 4 IP addresses for free. All IP requests must be fully justified.
4.3. Services Downgrades and Upgrades. For Collocation Services downgrades and upgrades may take effect in 72 hours since the account modification. Colocation Services downgrades can take effect upon expiration of the initial Term of the Service Order Form only. Client has an option at any time during the Term of the Service stipulated in Service Order Form to submit to the Company a request for an upgrade, which will result in termination of then current Service Order Form (Agreement) without incurring Early Termination Charges. The upgrade will require a new Service Order Form with the Commencement Date of the Service being the date when the upgrade took effect.
4.4. Backup Copies. The customer using Colocation Services is solely responsible for the backup of the data stored on and served by his servers, however ALLUS Online may provide paid backup services to clients using Colocation Services.
5.1. “Applicable Taxes” means taxes and fees imposed on Company by governmental authorities in connection with the Products or Services including, but not limited to, any sales, use, gross receipts, federal excise, privilege, property, public right-of-way, telecommunications franchise, privilege, property, occupational and similar taxes and surcharges based upon the gross revenues received from or by Customer or assets of Company made available to Customer. Notwithstanding the foregoing, Applicable Taxes do not include, any fee or tax which Customer otherwise pays directly to a state or local jurisdiction with respect to the gross revenues received from or by Customer or assets of Company made available to Customer; and any income, estate, transfer or corporate franchise tax levied on or assessed against Company.
5.2. Notwithstanding the foregoing, Customer may provide Company with a certificate evidencing Customer’s exemption from payment of or liability for any Applicable Taxes.
6.1. This Agreement commences on the Effective Date, and continues through the latest expiration of all Order Form Term(s) subject to this Agreement, unless earlier terminated as provided herein.
6.2. The Term for each Order Form begins on the Commencement Date of the related Product or Service and remains in effect until the expiration of the initial period so specified. Upon expiration of the initial term, each Order Form will automatically renew for additional period agreed upon in the Order Form unless one Party provides the other written notice that it is terminating such Order Form not less than sixty (60) days’ prior to the requested termination date. Notwithstanding the foregoing, Customer acknowledges and agrees that Company may terminate a Product or Service providing 30 day prior notice during or after the initial Term if underlying equipment leases or third party commitments expire.
The following events are “Events of Default”, the occurrence of which gives the non-defaulting Party the right to terminate the Agreement or affected Order Form(s) by written notice following the expiration of any stated cure periods and pursue its remedies under the Agreement:
a) Customer fails to fully pay any of the payments (including Early Termination Charges) required hereunder, or pursuant to any other outstanding Order Forms that the Customer may have with the Company, within five (5) days after receipt of written notice of such failure.
b) The breach of any material term or condition of this Agreement (including Order Forms) or Company’s Acceptable Use Policy and such breach remains uncured thirty (30) days after delivery to the breaching Party of written notice of such breach;
If Customer is in default, as set forth above, then, after expiration of the cure period, Company may, in addition to any other remedies that it may have under this Agreement or by law, suspend, disconnect and/or repossess any Products or Services, provided, however, that Customer will remain responsible to perform its obligations hereunder.
8.1. Company warrants that any Products and Services to be provided to Customer will be at a professional level of quality conforming to generally accepted industry standards and in compliance in all material respects with all applicable laws and regulations. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement and all Order Forms, (iii) it will comply with all applicable federal, state and local laws, statutes, rules and regulations in connection with the provision and use of the Products and Services and (vi) this Agreement and all Order Forms, when executed, are the legal, valid and binding obligation of such Party.
8.3. Customer acknowledges that ALLUS Online has no ability to determine whether the communications traffic carried by the Products or Services utilizing the Company Network is jurisdictionally interstate or intrastate. Customer represents and warrants that the communications traffic to be carried by the Company Network shall be jurisdictionally interstate, pursuant to the Federal Communications Commission's mixed-use "10% Rule"(47 CFR 36.154, 4 FCC Rcd. 1352), unless Customer provides ALLUS Online written notice otherwise. In other case, Customer will pay all relevant FCC and State Public Utilities Commission taxes and fees.
9.1. THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER FORM (EXCLUDING EARLY TERMINATION CHARGES (AS DEFINED IN THE RELATED SUPPLEMENT)) IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY COMPANY, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.
9.2. ALLUS Online Corp. agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Customer for (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to Company’s gross negligence or willful misconduct or (ii) infringement or misappropriation by Company of any intellectual property rights under this Agreement.
9.3. Customer agrees to indemnify, defend and hold ALLUS Online Corp. , its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Company for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer of any intellectual property rights under this Agreement, or (iii) Customer’s or its customer’s use of the Products or Services, including without limitation, defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortuous or illegal conduct.
10.1. Confidentiality. Each Party agrees that the terms of this Agreement and all information furnished to it by the other Party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”). Each Party will treat the Proprietary Information and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. Information will not be deemed Proprietary Information if it (i) becomes publicly available other than through the actions of the Receiving Party; (ii) is independently developed by the Receiving Party; or (iii) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party is required by a governmental or judicial law, order, rule, regulation or permit to disclose Proprietary Information, it must give prompt written notice to the Disclosing Party of the requirements of such disclosure and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice shall not be a breach hereof.
10.2. Publicity. Neither Party may issue any advertising or other publicity material using the other Party’s name or marks or describing in any way the terms of this Agreement without first receiving the other Party’s written consent as to form and content, which consent may not be unreasonably withheld, conditioned, or delayed.
Neither Party will assign or transfer its rights or obligations under this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement upon notice and without the other Party’s consent to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with the assigning Party or (ii) into which it is merged or consolidated or which purchases all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Neither party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of “Force Majeure,” which is defined as any cause beyond the reasonable control of the party claiming relief, including without limitation the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by Company to construct and operate its facilities or network.
All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with an overnight delivery service for next day delivery, or (iii) three (3) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth on the signature page hereof. In addition, Company may send Customer notices, including notices for default or termination, to Customer’s email address or facsimile as contained on Company’s customer contact list. Such email or facsimile notification is deemed delivered on the day sent unless returned to sender.
14.1. Governing Law; Venue. This Agreement will be interpreted and construed in accordance with the internal laws of the State of New York without giving effect to its principles of conflicts of laws. The parties hereby agree that proper venue for any action governing or construing the terms and provisions of this Agreement shall lie in the Court of Common Pleas of Cook County, Illinois.
14.2. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
14.3. No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns.
14.4. Relationship of the Parties. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may not be deemed to constitute a partnership, joint venture or agency agreement between them.
14.5. Remedies Not Exclusive. Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.
14.6. Headings; Severability. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected.
14.7. No Implied Waiver. No failure to exercise and no delay in exercising, on the part of either Party, any right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.
14.8. Execution and Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14.9. Order of Precedence. If any conflict or contradiction exists between these General Terms and Conditions and a Supplement, the terms of a Supplement will control. If any conflict or contradiction exists between a Supplement and the terms of an Order Form, the terms of the Order Form will control. If any conflict or contradiction exists between these General Terms and Conditions and the terms of an Order Form, the terms of the Order Form will control.
This Agreement, including all Supplements, Order Forms, Exhibits and addenda attached hereto is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written. This Agreement may be amended only by a written instrument executed by the Parties.
ALLUS Online Corp. may vary these rules and regulations from time to time in its sole discretion, and the Customer will comply with all other reasonable security requirements that ALLUS Online may impose from time to time, provided that the Customer has been given 10 days notice.
We reserve the right to refuse service to anyone at any time for any reason.