1.
General. This agreement (“Agreement”) is entered into by and between Real Effects Internet
Group, Inc. (REIG), a Florida corporation with an address at 1306 SE 5TH
CT, Dania, FL 33004 and the Customer (“Customer”).
2.
Services. “Service” or “Services” shall mean the services provided by REIG
to Customer hereunder as described more fully in the Service Order (“SO”)
executed by Customer and REIG, each of which is hereby incorporated into this
Agreement by this reference. REIG and Customer may enter into subsequent SOs,
which may modify some or all of the Services provided on a prior SO. The fees
and costs associated with the Services provided on any SO are subject to change
from time to time by REIG. Customer shall pay for any new Services included in
any new or revised SO at the rate(s) in effect at the time the SO is submitted.
Upon notice to Customer, REIG may modify or suspend Customer’s Service as
determined by REIG as necessary to comply with any law or regulation such as
any use contrary to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512.
3.
Service Activation.
3.1. Activation of Data
Transport and Internet Access Services. REIG will contact Customer to schedule a
date for an installation at the Customer Install address specified in the SO
(“Installation Date”). Customer shall agree to a firm date for installation and
agrees (1) to have Customer’s location or facility ready for installation; (2)
Provide an installation location and electrical power for Customer Premise
Equipment (“CPE”) as required in accordance with REIG’s instructions.
3.2. Activation of
Colocation Services. REIG will begin infrastructure, electrical power wiring, Network
cross-connect and other setup services described in the SO after it receives
and accepts: (1) this Agreement signed by an authorized representative of Customer;
(2) a completed and signed SO; and (3) payment of the deposit described in the
SO. REIG will provide Customer with the date and time for REIG assisted initial
installation of equipment at the REIG Colocation Data Center (“CDC”) (“Installation
Date”).
3.3. Customer Delayed
Activation. In the event, for any reason whatsoever, Customer fails to meet
customer obligations on or before the Installation Date and/or requests REIG to
change the Installation Date, Customer shall be solely responsible and shall
pay REIG (1) all costs incurred by REIG as a result of such delay and all
applicable fees, service charges, administrative fees and cancellation fees at REIG’s
then current rates; and (2) for all Services from the original agreed-upon
Installation Date, regardless of whether REIG actually provides such services.
These costs may include, but are not limited to, the Activation Setup Fee and
the recurring Service Monthly Fee of the contracted Services as set forth in
the applicable SO, regardless of whether Customer is fully installed or not.
4.
Billing & Payment. Customer agrees to pay the Activation and
monthly Services Fees as set forth in each SO (collectively, “Service Fees”)
4.1. Service Activation
Fees. Upon Customer's and REIG’s acceptance of this Agreement and the
SO, Customer shall pay REIG a deposit for the activation, installation
services, the first monthly Service fees, and equipment fees as indicated in
the SO ( “Activation Fee”). All service activation fees, installation fees, and
deposits are non refundable.
4.2. Monthly Service
Fees. Customer agrees to begin paying for monthly Services, as specified
in the SO, on the date that is the earlier of: (1) the Installation Date; (2)
the date that Customer places equipment in REIG’s premise for collocation; and
(3) the date on which a functioning telecommunication circuit is provided to
Customer’s location. However, if Customer is unable to use the Services commencing
on the Installation Date solely as a result of delays caused by REIG, then the
Installation Date shall be extended to the end of the delay caused by REIG and
Customer’s obligation to pay any Service fees shall be delayed until such time
as REIG is able to provide such Services; provided, however, REIG shall
not be liable to Customer for any such delay or failure other than the
abatement of Service Fees as specifically provided herein.
4.3. Payments and Due
Date.
All amounts due for Services shall be invoiced monthly (“Billing Period”),
unless an alternative period is agreed upon, in writing, by REIG and Customer.
Customer shall pay all fees and charges in advance before the first day of each
and every month of this Agreement (the “Due Date”). Customer shall pay all
amounts, without demand, to the offices of REIG, as specified in section 1 and
without any deduction, revision or set-off whatsoever. Charges for returned
and/or non-sufficient funds (“NSF”) checks will be made in the amount of $50 by
Customer to REIG, but in any event, shall not limit those remedies available
under Florida law for said returned or NSF checks.
4.4. Default. In the event
Customer fails to make any payment on or before its Due Date, Customer shall be
in material default of this Agreement. If payment is not received within 10
days after due date, REIG will notify Customer of past due status and allow
Customer 3 additional days to bring account current. If after additional 3-day
grace period Customer’s account is still in default, REIG shall be entitled to
any one, or all of the following remedies: (i) REIG may immediately suspend all
Services to Customer; (ii) all amounts due under this Agreement and any SO
shall become accelerated and become immediately due and payable; and/or (iii) REIG
may terminate this Agreement.
4.5. Late Payment. In addition to the
remedies available to REIG under Section 4.4 for a payment default, all amounts
that remain unpaid five (5) days after the Due Date shall be subject to a
thirty five dollar ($45) late payment fee and accrue interest at a rate of one
and onehalf percent (1.5%) per month, or the highest rate allowed by applicable
law, whichever is lower.
4.6. Taxes and Regulatory
Fees.
Amounts due under this Agreement or any applicable SO are exclusive of all
applicable Federal, State and Local sales, use, excise, and communication services
taxes or any other taxes or regulatory fees and surcharges which may be levied
or assessed upon any equipment or Services. Customer shall be solely
responsible for payment of any and all such taxes and regulatory fees. Any
calculation errors in assessment and/or tax rate changes requiring adjusted tax
computations by REIG as necessary to accurately and properly collect taxes does
not relieve Customer of its responsibility to remit tax payments fully when
billed. Any failure to pay such taxes or regulatory fees or surcharges shall
constitute a material default under this Agreement and REIG shall have the remedies
available under Section 4.4 of this Agreement. If Customer provides appropriate
state or federal tax exemption certificate, reflecting the Company/Organization
Name on the SO, then REIG will remove those exempt taxes from amounts due.
Customer is required to provide copies of any renewals of tax exemption
certificates, at time of renewal, for REIG records.
4.7. Customer Billing
Disputes. Customer shall have the right to reasonably dispute any of the
charges contained in an invoice for a period of thirty (30) days after the date
of the invoice (the “Reconciliation Date”), provided that: (i) REIG receives
payment in full for all charges(both disputed and undisputed) on or before the
Due Date of such payment, (ii) Customer presents a written statement of the
purported billing discrepancies to REIG in reasonable detail on or before the
Reconciliation Date, and (iii) Customer negotiates in good faith with REIG for
the purpose of resolving such dispute. In the event such dispute is mutually
agreed upon and resolved in favor of Customer, Customer will receive a credit
for the disputed charges. REIG shall not be obligated to consider any Customer
notice of any billing discrepancies which are received by REIG after the
Reconciliation Date.
4.8. Credit Review.
Customer's execution of this Agreement signifies Customer's acceptance of REIG's
initial and continuing credit approval procedures and policies. REIG reserves
the right to withhold initiation or full implementation of any or all Services
under this Agreement pending REIG's initial satisfactory credit review and
approval thereof which may be conditioned upon terms specified by REIG, including,
but not limited to, security for payments due hereunder in the form of a cash
deposit or other means. REIG reserves the right to modify its requirements, if
any, with respect to any security or other assurance provided by Customer for
payments due hereunder in light of Customer's actual purchase volume when
compared to projected purchase volumes upon which any security or assurance requirement
was based or if REIG determines, in its sole judgment, that Customer lacks, or
may in the future lack, the financial resources to meet its obligations to REIG.
By executing this Agreement in the space provided below, Customer hereby
authorizes REIG to conduct an investigation and credit check on Customer with
any one or more of the major credit reporting agencies. Customer shall
reasonably cooperate with REIG to obtain credit information. Acceptance of this
Agreement by REIG can be subject to a satisfactory completion of a credit
review.
5.
Terms
5.1. Effective Date and
Initial Term. The term of this Agreement shall commence on the Effective Date
and shall continue in force and effect for the Term Commitment specified on the
SO, or if no term, for a period of thirty days (“Initial Term”).
5.2. Renewal. At the conclusion of
the Initial Term, this Agreement shall automatically renew for successive one
year terms at the same prices in effect during the Initial Term until either
party gives at least 60 days advance written notice to the other (prior to the
end of the then current term) of termination of this Agreement.
5.3. Effect of Termination. The effect of
termination and the rights and remedies of the parties upon such termination is
described in Section 13.5 of this Agreement.
6.
Colocation.
In the event Customer utilizes REIG’s collocation services, this Section 6
shall be applicable.
6.1. Identification of
Space. Customer shall be entitled to the use of racks, cabinets or cages
as described in the SO (hereafter “Space”) in the REIG Colocation Data Center
(“CDC”), or other Data Center as specified in the SO, under the terms and
conditions of this Agreement and the SO.
6.2. Installation. REIG grants the
Customer the right to install and operate its equipment as described in the SO.
The Space is provided on an “AS-IS” basis and Customer may use the Space only
for the purposes of maintaining and operating equipment to support local access
communications facilities and links to REIG and to third parties that have been
approved by REIG in writing. Customer will install equipment in the Space only
after obtaining prior written authorization from REIG.
6.3. Equipment Delivery. Customer authorizes REIG
and REIG agrees, to accept delivery of and/or provide storage (based upon availability)
for Customer’s equipment at the CDC; provided, however, that Customer
agrees to abide by REIG’s Equipment Delivery Storage Procedures, a copy of
which shall be made available for Customer’s review at the CDC, and Customer
hereby releases REIG from any and all liability for any direct, indirect,
incidental, economic, special, punitive or consequential damages arising from REIG’s
acceptance and/or storage of Customer’s equipment.
6.4. Access. REIG will provide
Customer with 24 hour per day, 7 day per week secured access to the Space for
the authorized personnel listed in the SO. Customer may add or remove personnel
from the authorized list by providing not less than 1 business days’ written notice
of any such personnel change to REIG. Only those individuals listed on the SO
will be granted access to the CDC. REIG may suspend the right of any authorized
personnel or other persons to visit the REIG premises and/or the CDC at any
time in its reasonable discretion.
6.5. Security. REIG does not
guarantee security of Customer equipment, the CDC or the Network. REIG requires
that Customer and each of its employees comply with all Data Center Security
Procedures, as modified from time to time. REIG will assist Customer in
securing its equipment, and provide security breach detection and
identification, but expressly disclaims any liability for its inability,
failure or mistake in providing such assistance to Customer.
6.6. Relocation of
equipment. REIG shall be entitled, upon reasonable written notice to Customer
and upon Customer’s acknowledgement, to change the Space allocated for
Customer’s equipment, or to change the location of the CDC to a different
location. REIG shall bear all costs of such changes and relocation, including
re-cabling, third party cancellation charges and moving. In the event of such relocation,
the parties shall work together in good faith to minimize any disruptions of Customer’s
operations and use of the Services as arising from the change or relocation;
such good faith efforts shall include negotiation of a plan and schedule for
relocating the CDC, if applicable. REIG shall keep Customer informed of the
timing of any planned relocation. All relocated facilities, space, connections,
conduits, and/or cables shall be provided in accordance with the terms and
conditions set forth in this Agreement. In the event REIG provides notice of
its intent to change the Space or location of the CDC to a different geographic
location, and Customer does not find the change satisfactory for its purposes,
Customer shall have the right to terminate the agreement.
6.7. Removal of Customer
Equipment. Customer will provide REIG with written notification at least
two (2) days before Customer wishes to remove any equipment. Before authorizing
the removal of any equipment, REIG will confirm that Customer’s account is not
in default as described in section 4.4 of this Agreement. If Customer’s account
is in default, Customer must pay REIG all amounts due under this Agreement or
any SO and all amounts to become due in connection with any such equipment that
Customer intends to remove from the CDC. Once REIG authorizes removal of
Customer’s equipment, Customer will remove such equipment and will be solely
responsible for relocating any such equipment, and for any damages caused by or
in connection with the removal of such equipment.
7.
Data Transport and Internet Access Service
REIG
exercises no control over and specifically disclaims any responsibility for,
the content, accuracy or quality of information passing or obtained through REIG’s
REIG computers, network hubs and points of presence (“REIG Network”). Use of
any information obtained via the REIG Network is strictly at Customer’s own
risk. None of the underlying services for internet access, web hosting and VoIP
are being provided by REIG. Customer acknowledges and agrees that REIG is
acquiring each of those services from a third party for resale and is not the
originator of those services. Under no circumstances shall REIG be liable to Customer
or any other person or entity for any loss, injury or damage of whatever kind
or nature, resulting from or arising out of any mistakes, errors, omissions, delays
or interruptions in the receipt, transmission or storage of any messages,
signals or information arising out of or in connection with the Services or use
of any underlying service provider’s network or services.
7.1. Service Level
Agreement. REIG shall provide the Services in accordance with the REIG
Service Level Agreement (“SLA”) for each of the applicable Services as amended
from time to time, the current version of which is set forth at www.realeffects.net/sla, which SLA is incorporated
into this Agreement by this reference. Any amendments to the SLA shall be
effective upon posting at REIG’S web site. The SLA sets forth Customer’s sole
remedies for any claim relating to the Services or the REIG Network, including
any failure to meet any service levels as set forth in the SLA.
7.2. Monitoring. REIG reserves the
right to monitor customer’s bandwidth usage and to utilize technology to limit
Customer’s bandwidth usage to those amounts included in the SO.
7.3. Internet Protocol. Any Internet
Protocol Numbers (“IP”) assigned to Customer by REIG in connection with the
Services shall be used only in connection with the Services. In the event
Customer discontinues use of the Services for any reason, or this Agreement terminates
for any reason, Customer’s right to use the IP shall terminate. REIG reserves
the right to change the IP upon reasonable advance notice to Customer. Customer
acknowledges and agrees that all IP addresses shall remain the sole and
exclusive property of REIG.
7.4. Local and Long
Distance Carriers. Customer may make arrangements with third party carriers for
data communications and telecommunication services. Customer is responsible for
ordering all local and long-distance lines from such third party carriers and ordering
any and all necessary cross-connects from REIG. Customer shall be responsible
for the cross-connect service fees in effect at the time Customer submits its
SO. The carriers’ installed circuits must be in the Customer’s name and billed
directly to Customer. Customer will be solely responsible for such circuits and
for all payments due to the carriers.
7.5. Other Networks
Approval and Usage. Services include the ability to transmit data beyond REIG’s
Network, through other networks, public and private. Customer’s use of or
presence on other networks may require approval of the respective network
authorities and may be subject to any acceptable usage policies established by
those network operators. Customer will not hold REIG responsible for, and REIG
expressly disclaims all liability for, Customer’s violation of such policies.
Customer understands that REIG does not own or control other networks outside
of its Network, and REIG is not responsible or liable for performance (or
non-performance) of those networks or the interconnection points between the Service
and other networks that are operated by third parties.
8.
Acceptable Use Guidelines.
8.1. Acceptable Use
Policy. Customer agrees that use of the Services shall at all times be
in compliance with REIG’s Acceptable Use Policy (“AUP”) as amended from time to
time. The Current version of REIG’s AUP is set forth at www.realeffects.net/aup, which AUP is incorporated
into this Agreement by this reference. Any amendments to the AUP shall be
effective upon posting at REIG’s site on the World Wide Web.
8.2. Suspension or
termination of services. REIG shall have the right to immediately suspend
Services and/or terminate this Agreement in the event Customer violates any
provision of the AUP. Customer agrees to indemnify and hold harmless REIG and
each of its shareholders, directors, officers, employees, agents and affiliates
from and against any losses, damages, costs or expenses, including reasonable attorneys’
fees and expenses (collectively “Claims”) arising out of or relating to
Customer’s use of the REIG Network or the Services in any way, including any
Claim which, if true, would constitute a violation of the AUP
8.3. Law Enforcement
Notification. If REIG is informed by any third party, including, without
limitation, any government authorities, of Customers’ inappropriate or illegal
use of REIG’s facilities (including but not limited to the Network) or other
networks accessed through REIG, or REIG otherwise learns of such use or has
reason to believe such use may be occurring, then Customer will cooperate in
any resulting investigation by REIG or any such third party. If Customer fails
to cooperate with any such investigation or fails to immediately rectify any
illegal use, REIG may immediately suspend Customer’s Service without further
notice to Customer.
9.
Insurance.
9.1. Customer will keep
in full force and effect during the term of this Agreement: (i) comprehensive
general liability insurance in an amount not less than one million dollars
($1,000,000.00) per occurrence and not less than two million dollars
($2,000,000.00) in the aggregate for bodily injury and property damage; (ii)
employer's liability insurance in an amount not less than one million dollars ($1,000,000.00)
per occurrence; (iii) workers' compensation insurance in an amount not less
than that required by applicable law; (iv) extended risk insurance covering all
of customer’s equipment and other personal property (including data and media)
to cover the replacement cost of same, including but not limited to, electronic
data processing property perils written on a “Special Form” basis at full
replacement cost value ; and (v) coverage for the contractual liability of
Customer to indemnify REIG. Customer shall place the Policies required herein with
a carrier having an AM Best rating of A-VIII or better. Customer also expressly
agrees that it will be solely responsible for ensuring that its agents
(including contractors and subcontractors) maintain additional insurance at
levels no less than those required by applicable law and customary in
Customer’s and its agents’ industries. Prior to installation of any Customer
Equipment in the CDC or otherwise, Customer will furnish REIG with certificates
of insurance which evidence the minimum levels of insurance set forth above, name
REIG as additional insured, require notification of REIG in writing of the
effective date of such coverage and provide that all insurance policies provide
REIG with thirty (30) days advanced written notice of cancellation or
termination.
9.2. Customer agrees that
Customer and its agents and representatives shall not pursue any claims against
REIG for any liability REIG may have under or relating to this Agreement unless
and until Customer or Customer’s employee or representatives, as applicable,
first makes claims against Customer’s insurance provider(s) and such insurance
provider(s) finally resolve(s) such claims. Any inability by Customer to
furnish the proof the insurance required under this Section 9. or failure to
obtain such insurance shall be a material breach of this Agreement. Customer
and all parties claiming under, by and through Customer hereby waive any and
all rights to recover against REIG or other tenants, customers or occupants of
the CDC or against the officers, directors, shareholders, partners, members, employees,
agents, customers or invitees for any loss or damage to such waiving party from
any cause covered by any insurance required to be carried by any such party hereunder
to the extent insured. REIG, its agents and employees make no representation
that the limits of liability specified to be carried by Customer pursuant to
this Section 9 are adequate to protect Customer. If Customer believes that any
of such insurance coverage is inadequate, Customer will obtain, at Customer's
sole expense, such additional insurance coverage as Customer deems adequate.
10.
Defense of third party claims and Indemnification.
10.1.
Indemnity. Customer agrees to indemnify REIG, its directors, officers,
employees, affiliates and customers (collectively, the “Covered Entities”) from
and against any and all claims, actions, demands, costs and expenses,
including, without limitation, attorneys’ fees, costs and expenses
(collectively, the “Covered Claims”), brought against REIG and/or any of the
Covered Entities alleging: (a) with respect to the Customer’s business:
(i)infringement or misappropriation of any intellectual property rights; (ii)
defamation, libel, slander, obscenity, pornography, or violation of the rights
of privacy or publicity; or (iii) spamming, or any other offensive, harassing
or illegal conduct or violation of the AUP or Anti-Spam Policy; (b) any damage
or destruction to the CDC, the Network, REIG premises, REIG Equipment or to any
other REIG customer which damage is caused by or otherwise results from acts or
omissions by Customer, Customer Representative(s) or Customer's designees; (c)
any personal injury or property damage to any Customer employee, Customer Representative
or other Customer designee arising out of such individual’s activities related
to the Services, unless such injury or property damage is caused solely by REIG’s
gross negligence or willful misconduct; (d) any other damage arising from the
Customer Equipment or Customer’s business; (e) the breach of any term,
condition or representation of Customer set forth in this Agreement; and (f)
any breach or violation of any law, rule, ordinance applicable to Customer’s
business.
10.2. Notification. Customer will
provide REIG with prompt written notice of each Covered Claim of which Customer
becomes aware, and, at REIG’s sole option, REIG may elect to participate in the
defense and settlement of any Covered Claim, provided that such participation shall
not relieve Customer of any of its obligations under this Section 10.
11. Limitations of
Liability and Warranty.
11.1. Warranties. EXCEPT
AS EXPRESSLY SET FORTH IN SECTION 7.1 AND THE SLA, REIG PROVIDES THE SERVICES
AND EQUIPMENT “AS IS”; MAKES NO EXPRESS WARRANTIES OF ANY KIND WITH RESPECT TO
THE SERVICES OR EQUIPMENT; AND DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO
THE SERVICES AND EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF
TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. REIG
shall not be liable for any failure or delay in performance due to
circumstances beyond its reasonable control, which shall include, without
limitation, acts of God, earthquakes, labor disputes, changes in law,
regulation or government policy, riots, war, fire, epidemics, acts or omissions
of vendors or suppliers, equipment failures, transportation difficulties, or
any other such occurrences. Customer may terminate this Agreement if any such
event of Force Majeure continues for a continuous period of 10 days.
11.2. NEITHER PARTY SHALL
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES FOR LOSS OF DATA
RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS.
Notwithstanding anything to the contrary stated in this Agreement, Customer’s
sole remedies for any claims relating to the Services or the REIG Network are
set forth in the SLA
11.3. Personal Injury. Each Customer
Representative and any other persons visiting REIG facilities does so at his or
her own risk and REIG shall not be liable for any harm to such persons
resulting from any cause other than REIG's gross negligence or willful
misconduct resulting in personal injury to such persons during such a visit.
11.4. Damage to Customer
Business. In no event will REIG be liable to Customer, any Customer
Representative, or any third party for any claims arising out of or related to
Customer’s business, Customer’s customers or clients, Customer Representative’s
activities at REIG or otherwise, or for any lost revenue, lost profits,
replacement goods, loss of technology, rights or services, incidental,
punitive, indirect or consequential damages, loss of data, or interruption or
loss of use of Service or of any Customer’s business, even if advised of the possibility
of such damages, whether under theory of contract, tort (including negligence),
strict liability or otherwise.
11.5. Damage to Customer
Equipment. REIG assumes no liability for any damage to, or loss of, any
Customer’s equipment resulting from any cause other than REIG's gross
negligence or willful misconduct. To the extent REIG is liable for any damage
to, or loss of, the Customer’s equipment for any reason, such liability will be
limited solely to the then-current value of the Customer’s equipment and further
subject to the limitations set forth in this Section 11.
11.6. Maximum Liability. Notwithstanding
anything to the contrary in this Agreement, REIG's maximum aggregate liability
to Customer related to or in connection with this Agreement will be limited to
the total amount paid by Customer to REIG hereunder for the Twelve (12) month
period prior to the event or events giving rise to such liability.
12. Confidential
Information.
Each party acknowledges that it will have access to certain confidential
information of the other party concerning the other party's business, plans,
customers, technology, and products, including the terms and conditions of this
Agreement (“Confidential Information”). Confidential Information will include,
but not be limited to, each party's proprietary software and customer
information. Each party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly permitted by
this Agreement, nor disclose to any third party (except as required by law or
to that party’s attorneys, accountants and other advisors as reasonably
necessary), any of the other party's Confidential Information and will take
reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information hereunder if such
information: (i) is known to the receiving party prior to receipt from the
disclosing party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (ii) becomes known
(independently of disclosure by the disclosing party) to the receiving party
directly or indirectly from a source other than one having an obligation of
confidentiality to the disclosing party; (iii) becomes publicly known or
otherwise ceases to be secret or confidential, except through a breach of this
Agreement by the receiving party; (iv) is independently developed by the
receiving party; or (v) is required to be released by law or regulation,
provided that the receiving party provide prompt written notice to the
disclosing party of such impending release, and the releasing party cooperate
fully with the disclosing party to minimize such release.
13. Termination of
Agreement and Services.
13.1. For Nonpayment or
Bankruptcy. REIG reserves the right to disable, suspend or terminate all
Services and this Agreement if Customer fails to deliver any payment on or
before its Due Date as provided in Section 4.3. To re-enable Service, REIG may
require a reconnection fee. REIG may also terminate this Agreement if Customer
becomes the subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation, or an assignment
for the benefit of creditors or becomes the subject of an involuntary petition
in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
13.2. For Unacceptable Use
REIG
may immediately terminate this Agreement, without notice, for violation of REIG’s
Acceptable Use Policy (“AUP”) by Customer as stated in Section 8.
13.3. For Cause. Except as
otherwise provided in this Agreement, REIG may terminate this Agreement if the
Customer breaches any other term or condition of this Agreement and fails to
cure such breach within thirty (30) days after written notice of the same,
except in the case of failure to pay fees which failure is subject to Sections
4.4 and 13.1
13.4. Liability Following
Termination. In the event this Agreement is terminated as provided in this
Section 13, all amounts due under this Agreement, including any SO, shall be
accelerated and become immediately due and payable. The expiration or
termination of this Agreement will not (i) extinguish claims or liability
(including, without limitation, for payments due) arising prior to such
expiration or termination, or (ii) extinguish claims or liabilities arising
after such expiration or termination if such claims or liabilities specifically
survive any expiration or termination as set forth herein.
13.5. Effect of
Termination. Upon the effective date of expiration or termination of this
Agreement: (a) REIG will immediately cease providing the Services; (b) any and
all payment obligations of Customer under this Agreement will become due
immediately,; (c) within ten (10) days after such expiration or termination,
each party will return all Confidential Information of the other party in its
possession at the time of expiration or termination and will not make or retain
any copies of such Confidential Information except as required to comply with
any applicable legal or accounting record keeping requirement; and (d) Customer
will remove from REIG’s premises all Customer equipment and any of its other
property on REIG premises within ten (10) days of REIG’s request (and only
after Customer receives authorization from REIG as provided in Section 6.7) and
return the Space to REIG in the same condition as it was prior to Customer’s
installation. If Customer does not remove such property (or cannot remove such
property because of payments due to REIG) within such ten (10) day period, then
REIG may move any and all such property to storage and charge Customer for the
cost of such removal and storage, without being liable for related damages. If
Customer does not pay all amounts due to REIG and removes such property from REIG’s
premises or storage within thirty (30) days of such REIG request, REIG may
liquidate the property in any reasonable manner, without being liable for
related damages. Customer will have no right to remain in possession of all or
any part of the Space after the expiration or earlier termination of the Term.
If Customer remains in possession of all or any part of the Space after the
expiration or earlier termination of the Term, with the express written consent
of REIG: (a) such right will be deemed to be a periodic license from
month-to-month only; (b) such license will not constitute a renewal or
extension of this Agreement for any further term; and (c ) such license may be
terminated by REIG upon the earlier of 15 days' prior written notice or the
earliest date permitted by law. In such event, Monthly Service Fees will be increased
to an amount equal to the greater of two times the monthly Service fees payable
during the last month of the Term, and any other sums due under this Agreement
will be payable in the amount and at the times specified in this Agreement. In
addition to the payment of the increased monthly Service fees as set forth
herein and all additional Service fees, Customer shall be liable to REIG for all
costs, claims, losses or liabilities (including attorney’s fees) which REIG may
incur as a result of Customer’s failure to surrender possession of the Space to
REIG upon the expiration or earlier termination of this Agreement. In no way
shall the increased monthly Service fee set forth herein or any other monetary or
non-monetary requirements set forth in this Agreement be construed to
constitute liquidated damages for REIG’s loss resulting from Customer’s
holdover. Any month-to-month license created hereby will be subject to every
other term, condition, and covenant contained in this Agreement.
13.6. Survival. The following
provisions will survive any expiration or termination of the Agreement:
Sections 4.3, 4.6, 6 (until all Customer Equipment is removed from the CDC and
then only Sections 6.3, 6.4 & 6.5). The following provisions will survive
any expiration or termination of the Agreement for a period of three (3) years:
9, 10, 11, 12, 13.4, and 14.
14. Miscellaneous
Provisions.
14.1. Notices. Any notice or
communication required or permitted to be given hereunder may be delivered
personally, deposited with an overnight courier, sent by confirmed facsimile,
or mailed by registered or certified mail, return receipt requested, postage
prepaid, in each case to the address of the receiving party first indicated
below, or at such other address as either party may provide to the other by written
notice. Such notice will be deemed to have been given as of the date it is
delivered, or five (5) days after mailed or sent, whichever is earlier.
14.2. Force Majeure. Except for the
obligation to pay money, neither party will be liable for any failure or delay
in its performance under this Agreement due to any cause beyond its reasonable
control, including act of war, acts of God, earthquake, flood, embargo, riot,
sabotage, labor shortage or dispute, governmental act or failure of the
Internet, provided that the delayed party: (a) gives the other party prompt notice
of such cause, and (b) uses its reasonable commercial efforts to correct
promptly such failure or delay in performance.
14.3. No Lease. This Agreement is
a services agreement and is not intended to and will not constitute a lease of
any real or personal property. In particular, Customer acknowledges and agrees
that Customer has not been granted any real property interest in the Space, CDC
or other REIG premises, and Customer has no rights as a tenant or otherwise
under any real property or landlord/tenant laws, regulations, or ordinances.
Any right to Collocate in the CDC granted to Customer under this Agreement
shall constitute a license, revocable in accordance with this Agreement.
14.4. Resale. Customer may
resell the Service after receiving REIG’s prior written approval as to the
nature and scope of such resale. Should Customer resell any portion of the
Service to any other party, Customer assumes all liabilities arising out of or
related to such third party sites and communications and will indemnify and
hold REIG harmless from such liabilities and/or the resale of said services.
Customer agrees to enter into written agreements with any and all parties to
which it resells any portion of the Services with terms and conditions at least
as restrictive and protective of REIG’s rights, as the terms and conditions of
this Agreement
14.5. Marketing. Customer agrees
that REIG may briefly describe Customer’s name and business in REIG's marketing
materials and web site, and may refer to Customer by trade name and trademark.
All goodwill associated with Customer’s trade name and trademarks will inure
solely to Customer. Customer may display the REIG logo, or any other REIG
trademark or service mark or logo, on Customer’s web sites or marketing
literature only after obtaining REIG’s written permission, on a case-by-case
basis, and provided that Customer abides by the REIG trademark guidelines and
such other guidelines as REIG may provide Customer. All goodwill associated
with REIG’s trade name, trademarks, slogans and logos will inure solely to REIG.
14.6. Government
Regulations. Customer will not export, re-export, transfer, or make
available, whether directly or indirectly, any regulated item or information to
anyone outside the U.S. in connection with this Agreement without first
complying with all export control laws and regulations which may be imposed by
the U.S. Government and any country or organization of nations within whose
jurisdiction Customer operates or does business. Customer represents and
warrants that customer (i) is not located in a country subject to United States
embargoes, or listed on the United States Treasury Department’s list of
specially designated nationals, or listed on the United States Commerce
Department’s denied persons list or entities list and (ii) if an individual, is
at least 18 years of age
14.7. Assignment. REIG reserves the
right and Customer grants the right for REIG to assign the rights and
responsibilities of this Agreement to a third party. Customer may not assign
its rights or delegate its duties under this Agreement either in whole or in
part without the prior written consent of REIG in each instance.
Notwithstanding the foregoing, Customer upon notice to REIG, may assign all of
its rights and delegate all of its duties under these terms and conditions and
any applicable Contract to (a) a subsidiary, affiliate or parent company; (b) any
entity that Customer controls, is controlled by, or is under common control
with; or (c) any entity which succeeds to all or substantially all of the
party’s assets, whether by merger, sale or otherwise, provided such entity is
not a competitor to REIG; has a net worth at least equal to Customer at the
time of the requested assignment; and agrees in writing to assume all duties,
obligations and responsibilities of Customer under all applicable Contracts and
these terms and conditions and to otherwise be bound as provided for herein.
Any attempted assignment or delegation without such consent will be void. This
Agreement will bind and inure to the benefit of each party's successors and
permitted assigns. Each request by Customer for a proposed assignment shall be
accompanied by a nonrefundable fee payable to REIG in the amount of Seven
Hundred Fifty Dollars ($750.00) to cover REIG’s administrative, legal and other
costs and expenses incurred in processing each of Customer’s requests.
14.8. Relationship of
Parties. REIG and Customer are independent contractors and this Agreement
will not establish any relationship of partnership, joint venture, employment,
franchise or agency between REIG and Customer. Neither REIG nor Customer will
have the power to bind the other or incur obligations on the other’s behalf
without the other’s prior written consent, except as otherwise expressly provided
herein.
14.9. Choice of Law and
Attorney’s Fees. This Agreement will be governed by and construed pursuant to the
laws of the State of Florida. Jurisdiction and venue for purposes of any
litigation in connection herewith shall be in the appropriate court located in
Palm Beach County, Florida. All costs incurred by REIG in collecting any amounts
and damages owing by Customer pursuant to the provisions of this Agreement or
to enforce any provision of this Agreement, including reasonable attorneys'
fees from the date any such matter is turned over to an attorney, whether or
not one or more actions are commenced by REIG, will also be recoverable by REIG
from Customer.
14.10. Waiver. The waiver by REIG
of any term, condition, or provision contained in this Agreement will not be
deemed to be a waiver of any subsequent breach of the same or any other term,
condition, or provision contained in this Agreement, nor will any custom or
practice that may grow up between the parties in the administration of the
terms of this Agreement be construed to waive or lessen the right of REIG to
insist upon the performance by Customer in strict accordance with the terms of
this Agreement.
15. Entire Agreement.
This Agreement, together with the all applicable SOs and REIG policies and
documents referred to and incorporated into this Agreement represent the
complete agreement and understanding of the parties with respect to the subject
matter herein, and supersede all previous and contemporaneous agreements,
representations or understanding, written or oral related to the subject matter
herein and shall prevail notwithstanding any variance with terms and conditions
of any order submitted. This Agreement may be modified only through a written
instrument signed by both parties. Both parties represent and warrant that they
have full corporate power and authority to execute and deliver this Agreement
and to perform their obligations under this Agreement and that the person whose
signature appears below is duly authorized to enter into this Agreement on
behalf of the respective party. Should any terms of this Agreement be declared
void or unenforceable by any arbitrator or court of competent jurisdiction,
such terms will be amended to achieve as nearly as possible the same economic
effect as the original terms and the remainder of this Agreement will remain in
full force and effect. Customer's recordation of this Agreement or any
memorandum or short form of it will be void and a default under this Agreement
