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Nehvork Services Terms & Conditions North America (Ver.3 - 07116)
<br />Confidential
<br />INJURY CAUSED BY COGENT, OR FOR ANY OTHER LIABILITY WHICH MAY NOT
<br />BE EXCLUDED OR LEMITED UNDER APPLICABLE LAW.
<br />5.3. CUSTOMER RECOGNIZES THAT" 1HF INTERNET CONSISTS OF MULTIPLE
<br />PAR ICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT
<br />SUBJECT TO COGENT's CONTROL. CUSTOMER AGREES THAT COGENT SHALL
<br />NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES
<br />ARE':'TEAIPORARILY OR PMIANENTLY UNAVAILABLE DUE TO MALFUNCTION
<br />OF, OR CESSATION OF, IWERNET SERVICES BY NETWORK(S) OR INTERNEr
<br />SERVICE PROVIDERS NOT SUBJECT TO COGENT'S CONTROL, Oft FOR
<br />TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER
<br />INFORMATION CARRIED ON SUCH NETWORKS Olt INTERNIFF SERVICE
<br />PROVIDERS. COGENT SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES
<br />INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD
<br />PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES,
<br />WORMS, COMPUTER SABOTAGE, AND `DENIAL OF SERVICE' ATTACKS).
<br />COGENT IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER'S
<br />NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS CSA
<br />FAILS OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING,
<br />CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RESPONSIBLE FOR
<br />(A) THIRD PARTY CLAL\IS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF
<br />OR DAMAGE TO CUSTOMER'S RECORDS OR DATA OR THOSE OF ANY THIRD
<br />PARTY, OR (C) LOSS OR DAMAGE 'to CUSTOMER ASSOCIATED WITH THE
<br />INOPERABILITY OF CUSTOMER'S EQUIPNIENT OR APPLICATIONS WITH ANY
<br />COMPONENT OF THE SERVICES OR THE COGENT NETWORK. CUSTOMER
<br />AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY
<br />AGAINST COGENT, AND WAIVES ANY RIGHT TO RECOVER DAMAGES
<br />(DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES 13Y CLAIMING
<br />AGAINST OR THROUGH A "THIRD PARTY TO THIS CSA.
<br />5.4. NEITHER COGENT NOR ANYONE ELSE INVOLVED IN CREATING,
<br />PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING
<br />SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER,
<br />ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT,
<br />INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OU'F
<br />OF THE.. SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT
<br />MUTATION, LOST RFVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS
<br />OR SERVICES, EVEN W ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
<br />WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE,
<br />STRICT LIABILITY OR OTHERWISE).
<br />5.5. NO ACT[ON OR PROCEE➢ING AGAINST COG 'NT' M.AY BE CO\L\IENCED BY
<br />THE CUSTOMER MORE THAN ONE (1) YEAR AFTER TIM LAST DAY ON WHICH
<br />THE SERVICE WHICH IS. THE BASIS FOR THE ACTION IS RENDERED, AND
<br />CUSI-OAIER ACKNOWLEDGES THAT THIS LINUTATION CONSTITUTES AN
<br />EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF
<br />LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL T ME FOR
<br />SUCH A CLAIM,
<br />6, INDEMNITY,
<br />6.1. Customer will rodent fy, defend and hold haruilcss COGENT and its
<br />directors, officers, employees, alfiliales, and its agents and subcontractors
<br />from and against any claims, suits, actions, and proceedings from any and all
<br />Iltird parties, and for payment orally Losses, to the extent such Losses arise
<br />(a) as a result of vielatiolt of the AUP or any applicable law or regulation;
<br />(b) from any and all claims by any of CBSIonner's customers or other third
<br />Party end users in connection With a Service (including, Without limitation,
<br />any claims regarding content Iransmitted using a Service or violation o€data
<br />protec€ion legislation), regardless ofthe form of action, whether in contract,
<br />tort, Warranty, or strict liability; provided, however, that Customer Will have
<br />no obligation to indemnify and defend COGENT against claims For damages
<br />for bodily injury or death caused by COGENT's gross negligence or willful
<br />misconduct; or (c) From claims orcopyright infringement and all manner of
<br />intellectual property claims, defamation claims, claims of publication of
<br />obscene, indecenl, offensive, racist, unreasonably violent, threatening,
<br />intimidating or harassing material, and cfai€ns of infringement of data
<br />protection legislation, to the extent such Losses are based upolt (i) the content
<br />of any information transmitted by Customer or by any of Cusio€ner's
<br />customers or authorized end users, (ii) the use and/or publication ofany and
<br />C Cogent Communicalions, Inc. 2016
<br />all COMIDlnlicalions or information transmitted by Customer or by any of
<br />C €rStOnICT'S customers Of authorized end users, or (iii) the use of Service(s)
<br />by Customer in any planner inconsistent with [lie terms of this CSA,
<br />including without limitation tire AUP.
<br />7. ADDITIONAL PROVISIONS,
<br />7.1. Except as to payment obligations of Customer, neither Pally shall have
<br />any claim or right against the other Party for any failure of performance due to
<br />Force tvlajeure.
<br />7.2. Neither Party is the agent or legal represeRtalive of the other Party, and this
<br />CSA does not create a partnership, joint venture or fiduciary relationship
<br />between COGENT and Customer. Neither Party shall have any authority to
<br />agree for or bind the Other Party in any manner whatsoever. This CSA coltfens
<br />no rights, remed€cs, or claims of any kind upon ruty third party, inchtding,
<br />without limitation, Customer's subscribers or end -users.
<br />7.3. This CSA for Service is made pursuant to and shall be construed and
<br />enforced in accordance with the laws ofthe District ofColumbig without regard
<br />to its choice of(aw principles. Any action arising out ofor related to this CSA
<br />shall be Brought in the District or federal courts located in the District of
<br />Columbia, and Customer consents to the jurisdiction and venue of such
<br />courts.
<br />7.4. Notices, if required, must be sent in writing by e-mail, courier or first
<br />class mail (postage prepaid) to the appropriate contact point listed on the
<br />Order Form, and arc considered made when received at that address;
<br />provided, that termination notices to COGENT must be sent in accordance
<br />with Section 4.2 above. ]n the event of an emergency, COGENT may only
<br />be able to provide verbal notice first; such verbal notice will be followed Try
<br />Written notice. Customer is responsihle for accuracy of its information on
<br />(he Order form, including points of contact.
<br />7.5. Customer may not assign this CSA without COGENT's prior written
<br />consent, which consent shall not unreasonably be withheld. Any such
<br />assignment nrithout COGENT's prior written consent shall be void.
<br />7.6. Without limiting any other obligation which expressly survives the
<br />expiration or prior termination ofthe Fenn ofthe CSA, the expire€ion or prior
<br />termination of the term of the CSA shall relieve both Parties of any farther
<br />obligations hereunder, except with respect to the Sections 2, 3 4.3. 4.4 and 5
<br />through 7, which shall survive any expiration or termination of these Terns,
<br />7.7. If (but only iO required by COGENT's or Customer's agreestent with
<br />Customer's Landlord: (a) any cessation or interruption in COGENT's
<br />Service does not constitute a default or constructive eviction by Customer's
<br />Landlord, and (b) Customer agrees to Waive and release Landlord and its
<br />related parties from any liability in connection Willi any damages whatsoever
<br />incurred by Customer, including lost revenues, which arise, or are alleged to
<br />arise, out of any interruption of or defect in the COGENT Service,
<br />REGARDLESS OF WHETHER SUCH INTERRUPTION Olt DEFECT IS CAUSED
<br />BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE Olt
<br />WILLFUL MISCO, rDDCr) of A RELEASED PARTY.
<br />7.8. The COGENT Network is owned by COGENT, or its licensors, and is
<br />protected by copyright and other intellectual property laws. Customer agrees
<br />that title to and Ownership ofthe Services, in any forum, shall at all tiu3es and
<br />in any event be held exclusively by COGENT. Customer shall be entitled to
<br />only such rights with respect to the Services as are specifically granted
<br />herein.
<br />7.9. This CSA and such other written agreements, documents and
<br />insiru€rents as may be executed in connection herewith are tire rural, entire
<br />and complete agreement between Customer and COGENT and supersedeall
<br />prior and con(mi pora€reous negotiations and oral representations and
<br />agreements, all of Which are merged and integ€ated into this CSA. No
<br />lactase order or similar docunleut provided by Customer to COGENT shall
<br />be of any force and effect. Amendments to the CSA or any Service shalt be
<br />in writing and signed by both Parties.
<br />7.10, This CSA and any Addendum thereto may be executed in one or more
<br />counterparts all of which taken together shall constitute one and the Same
<br />instrunlen t.
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<br />Cogent Communications, Inc. 2450 N SI., NW, Washinphon, D.C., 20037 202.295A200 W�wAy&.g nico.com
<br />Customer:
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