Master Services Agreement

The Master Services Agreement is between FiberConX (“we,” “us” or “our”) and the customer who orders FiberConX products and services (“you,” “your” or “Customer”).

This Master Services Agreement governs your purchase and use of all Services offered by FiberConX, as may be further described in this Agreement or any Order. This Agreement applies to you and your employees, agents, contractors, or other users who obtain Services from FiberConX (each such person or entity being a “User”). You must register with FiberConX and accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.

This Agreement is the complete and exclusive agreement between you and FiberConX regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.

Your use of FiberConX Services is governed by this Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, and the terms of your Order. When we use the term “Agreement” in any of the Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, or an Order, we are referring to all of them collectively. If there is any inconsistency or conflict between the provisions of any these documents, then the documents will be given precedence in the following order: (a) the Master Services Agreement, (b) the Acceptable Use Policy, (c) the Services Level Agreement, and (d) the terms of your Order.

GENERAL TERMS

1 Definitions
2 Obligations, Rights and Responsibilities
3 Term and Payment for Services
4 Modification
5 Limitation of Liability and Indemnity
6 Governing Law
7 Miscellaneous Provisions

1 Definitions

“Acceptable Use Policy” means FiberConX’s Acceptable Use Policy found here as of the date you sign or submit your Order.

“ACH” means Automated Clearing House.

“Business Day” means 8:00 a.m. – 8:00 p.m. Eastern Standard Time (EST), Monday through Friday, excluding federal public holidays in the United States and Canada for Services provided in North America, and 8:00 a.m. – 5:00 p.m. Greenwich Mean Time (GMT) Monday through Friday for Services provided in the United Kingdom.

“Cancellation Date” is defined based on the Cancellation Request, product line and contract term. Accordingly, for:

(a) Managed Hosting Services – the Cancellation Date would be 14 days from the date the Cancellation Request was submitted to FiberConX;
(b) Dedicated Hosting (ServerBeach) Services – for month-to-month Agreements, the Cancellation Date would be one day after the Cancellation Request was submitted to FiberConX;
(c) Dedicated Hosting (ServerBeach) Services – for non-monthly Agreements, the Cancellation Date would be 14 days from the date the Cancellation Request was submitted to FiberConX; and
(c) Colocation and Network Services – the Cancellation Date would be 30 days from the date the Cancellation Request was submitted to FiberConX.

“Cancellation Request” means a written based service cancellation request submitted via support ticket. To schedule your account for cancellation, please email support with the subject set to “Cancellation Request”. This will ensure that your account is processed for cancellation.

“Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation: (a) for you, all information transmitted to or from, or stored on, FiberConX’s systems, (b) for FiberConX, unpublished prices and other terms of service, audit and security reports, product development plans, datacenter designs (including without limitation non-graphic information you may observe on a tour of a datacenter), server configuration designs, and other proprietary information or technology, and (c) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either party on its own, without reference to the other’s Confidential Information, or that becomes available to either party other than through breach of the Agreement or applicable law, will not be considered “Confidential Information” of the other party.

“EFT” means Electronic Fund Transfer.

“Order” means either: (a) the online order that you submit to FiberConX via the FiberConX Website, or (b) any other written order (either in electronic or paper form) provided to you by FiberConX for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.

“FiberConX Website” means FiberConX’s websites located at www.FiberConX.com and www.FiberConX.net.

“Services” means those FiberConX products or services described in the Order.

“Service Level Agreement” means FiberConX’s Service Level Agreement located at www.fiberconx.com/ as of the date you sign or submit the Order.

“Third Party Products” means third party software or products that FiberConX may provide to you under this Agreement.

“Third Party Vendors” means certain reseller and other relationships that FiberConX has established with certain commercial vendors.

2 Obligations, Rights and Responsibilities

2.1 FiberConX Obligations.

For all Orders accepted by FiberConX and subject to this Master Service Agreement, FiberConX agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with FiberConX’s Service Level Agreement.

2.2 Your Obligations.

You agree to do each of the following:

(a) pay when due the fees for the Services and applicable charges;
(b) use reasonable security precautions in light of your use of the Services;
(c) cooperate with FiberConX’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement;
(d) keep your billing contact, information, and other account information up to date;
(e) immediately notify FiberConX of any unauthorized use of your account or any other breach of the security of the Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law or the Acceptable Use Policy, then FiberConX’s reasonable determination will control;
(f) pay all federal, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes assessed with respect to the Services; and
(g) provide FiberConX with accurate factual information to help FiberConX determine if any tax is due with respect to the provision of the Services, and if FiberConX is required by law to collect taxes on the provision of the Services, then you must pay FiberConX the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.

2.3 Acceptable Use Policy.

By agreeing to the terms and conditions of this Agreement, you agree to FiberConX’s Acceptable Use Policy, which is expressly incorporated herein by reference.

2.4 Intellectual Property Rights.

You warrant, represent, and covenant to FiberConX that:

(a) you are at least 18 years of age if an individual;
(b) you possess the legal right and ability to enter into this Agreement;
(c) you and your Users will use the Services only for lawful purposes and in accordance with this Agreement, FiberConX’s Acceptable Use Policy, and all applicable FiberConX policies and guidelines, as contained in this Agreement posted on the FiberConX Website; and
(d) you and your Users have obtained all license or other rights necessary to install or use any software or products in conjunction with your use of the Services.

2.5 IP Numbers.

FiberConX will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. FiberConX may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses.

2.6 Third Party Products.

For your convenience, FiberConX may provide you access to Third Party Products through certain Third Party Vendors. Neither FiberConX nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and FiberConX will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.

2.7 Additional Requirements for Using Microsoft Software.

If Microsoft software is provided to you as part of the Services, then additional restrictions may apply, including but not limited to limits on the number of authenticated users of the Microsoft Windows Server Operating Systems under Microsoft Corporation’s licensing terms.

2.8 Security.

FiberConX is not responsible for any security breaches affecting servers or accounts under your sole control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify FiberConX immediately, and FiberConX will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.

3 Term and Payment for Services

3.1 Term.

This Agreement will be for the “Initial Term” as further described in the Order. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide FiberConX the Cancellation Request as provided in this Agreement.

3.2 Termination.

This Agreement may be terminated in one of the following ways:

(a) by you without cause and for convenience by providing the Cancellation Request;
(b) by FiberConX without cause by providing you with a written notice at least 30 days prior to the termination date.
(c) by FiberConX in the event you do not pay any undisputed fees due hereunder within or after 10 days of the due date;
(d) by you or FiberConX, if a party commits a material breach of or fails to perform any obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the terminating party specifying such breach or failure; or
(e) as otherwise provided in this Agreement or the Acceptable Use Policy.

3.3 Termination Liability.

If you terminate this Agreement before the end of the Initial Term other than for FiberConX’s material breach, then you will be required to pay:

(a) actual amounts that have been invoiced for the Services provided to the date the Agreement is terminated as determined by the Cancellation Date, and
(b) for non-monthly Agreements, the difference between the monthly rate for the Services listed on the Order at the time of the Order, and the rate the Services were discounted to based on the Term pricing grid including any and all promotions. For the discount calculation, your liability will be limited to the period from the commencement of the Initial Term to the Cancellation Date.

3.4 Payment.

(a) All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
(b) For recurring billing, Services are billed one month in advance and payments are due 30 days of the date of invoice.
(c) for non-recurring fees (such as fees for initial set-up, backup overages, bandwidth overages, paid for support request and any other non-recurring service) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at FiberConX’s option; provided that FiberConX may wait to charge your credit card until the total aggregate fees due are at a minimum billable amount. Unless otherwise agreed in the Order or modified via request, your billing cycle will be monthly, beginning on the date that FiberConX first makes the Services available to you.
(d) Unless you have made other arrangements, FiberConX will charge your credit card and/ or ACH or EFT on the due date. If you pay by credit card or ACH or EFT, then FiberConX will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.
(e) Charges that are not disputed within 60 days of the date charged are conclusively deemed accurate.
(f) You also will be responsible for any costs FiberConX incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney’s fees, court costs, or collection agency fees.
(g) You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
(h) Non Sufficient Funds Fees (NSF) – FiberConX has the right to charge you NSF fees if your payment method is check (cheque) and it was returned by the bank due insufficient funds. The fees are Thirty (USD$ 30), Thirty (CAD$ 30) and fifteen (GBP £ 15) in the United States, Canada and the United Kingdom respectively.
(i) If you pay by credit card or ACH or EFT, then FiberConX will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account. You agree that you will notify FiberConX of any changes to your account, your billing address, or any information that FiberConX may reasonably require in order to process your payments in a timely manner.
(j) Payment for invoices that are not formally and rightfully deemed as disputed may be subject to interest at a rate of one and one-half percent (1.5%) per month accruing from date the invoice was due.

3.5 Refund and Disputes.

Except where expressly provided in this Agreement, all payments to FiberConX are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to FiberConX within 60 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.

3.6 Data Retention / Server Reclaim Policy.

FiberConX makes no guarantees about retaining any data stored on FiberConX’s systems or servers following expiration or termination of this Agreement. FiberConX will typically delete such data (a) seven days following termination of any FiberConX Managed Hosting Services by either you or FiberConX or (b) on your next billing date following termination of any FiberConX Dedicated Hosting (ServerBeach) Services by either you or FiberConX. You will not have access to your data stored on FiberConX’s systems or servers during a suspension or following a termination.

4 Modification

FiberConX may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the FiberConX Website. Your continued use of the Services following FiberConX’s posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to FiberConX within 30 days of the posting of any modifications of this Agreement by FiberConX.

5 Limitation of Liability and Indemnity

5.1 Monitoring User Activity.

Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. FiberConX exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through FiberConX’s host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will FiberConX, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.

5.2 Interruption of Service.

Except as set expressly provided in FiberConX’s Service Level Agreement, FiberConX will not be liable for any temporary delay, outages, or interruptions of the Services. Further, FiberConX is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). FiberConX cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.

5.3 Warranty Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY FiberConX OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER FiberConX, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. FiberConX, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5.4 Limitation of Liability.

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR FiberConX’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, FiberConX’S LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO FiberConX UNDER THIS AGREEMENT DURING THE THIRTY CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM IS FILED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY FiberConX UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.

5.5 Customer Indemnity.

You agree to indemnify, defend, and hold harmless FiberConX, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by FiberConX arising out of any breach of this Agreement by you, your Users, or your customers.

5.6 FiberConX Indemnity.

FiberConX agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Services as provided by FiberConX infringe any third party’s intellectual property rights.

6 Governing Law

6.1 Services Rendered in Canada.

With respect to Services rendered by FiberConX in Canada, this Agreement will be governed by, and construed in accordance with, the laws of Canada and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the Province of Ontario; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

6.2 Services Rendered in the United States.

With respect to Services rendered by FiberConX in the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the state of Washington and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the state of Washington; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

6.3 Services Rendered in the United Kingdom.

With respect to Services rendered by FiberConX in the United Kingdom, this Agreement will be governed by, and construed in accordance with, the laws of England and Wales and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in England; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

7 Miscellaneous Provisions

You and FiberConX are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and FiberConX. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of FiberConX, and any attempted assignment or delegation without such consent will be void. FiberConX and you agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.