The following terms and conditions (these "Terms") govern the provision by The New York NOC ("Company") of the services and/or products (referred collectively herein as "Services and Products") described on the Server Order Form, the Service Level Agreement and Service Exhibit attached hereto (collectively the "Service Descriptions”) and defined in any of the Company’s product support listing, to the customer ("Customer") identified on the Service descriptions.
The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this "Agreement."
By submitting the online order form, Customer hereby agrees to the following:
· Customer agrees to pay for hosting services rendered in advance of each monthly service term.
· Customer agrees to be bound by the service term selected on the online order form or via applicable promotional codes.
· Customer agrees to a no-refund policy in advance. Setup fees and monthly service fees are non-refundable.
· Customer agrees to make payment for servers on the anniversary billing date.
· Server rental charges will be incurred immediately at signup.
· Non-Payment of services shall result in a 4-day notice of disconnection. All payment failures must be cured within 4 days of notice. Customers failing to secure payment within 4 days of notice will incur service interruption and $50 reconnection fee. If customer fails to pay 10 days after payment due date, The New York NOC reserves the right to seize all equipment of Customer.
· Any payment not made when due will be subject to interest of two percent per month.
· The New York NOC is not responsible for data integrity on equipment reclaimed for non-payment.
· NY residents agree to pay all taxes applicable to your account.
· Customer agrees to adhere to the the Company Acceptable Use Policy.
· Customer agrees to adhere to the the Company Data Center Rules and Procedures.
· Customer agrees not to engage in activity that violates federal (United States), state (NY) or local (Nassau County) laws applicable to the service terms described herein.
· The New York NOC reserves the right to discontinue service to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Use Policy, Data Center Rules and Procedures, and Terms of Services.
· If payment by Paypal, customer must have a subscription running for entire length of term.
Additionally, in consideration for hosting services to be delivered, Customer agrees to be bound to the following terms:
1. Indemnification. Customer agrees to indemnify and hold harmless Company and the employees and agents of Company (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Services and Products, and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
2. Limitation on Company Liability. Company shall not be deemed to be in default of any provision of this Agreement or be liable for any failure of performance of the Services and Products to Customer resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. The exclusive remedy against Company for any damages whatsoever to Customer arising out of or related to this Agreement shall be the refund of the fees paid by Customer to Company with respect to the then current term of this Agreement. COMPANY SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE COMPANY’S SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD PARTIES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS COMPANY PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND PRODUCTS AND COMPANY SHALL HAVE NO LIABILITY THEREFORE.
3. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTACT OR ANY BREACH THEREOF IN EXCESS OF $250.00 SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
4. Notices. Unless otherwise specified herein, any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, registered or certified mail, to the address or facsimile number of Customer as set forth in the Service Descriptions or Company as set forth below. Such notices or other communications shall be deemed received (i) on the date delivered, if delivered personally, (ii) on the date that return confirmation is received, if sent by facsimile, (iii) on the business day (or, if international, on the second business day) after being sent by an internationally recognized overnight air courier or (iv) five days after being sent, if sent by first class registered mail, return receipt requested. Unless otherwise specified, the customer will be required to stay the length of the agreement as stated in the Service Table.
5. Termination. If Customer wishes to cancel his/her servers/service with Company before the end date of the agreement signed, Customer agrees to pay remaining balance for the remaining time he/she has left. Customer must submit cancellation notice on 30 days written notice.
5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.
6. Miscellaneous. Failure by either Company or Customer to enforce any of the provisions of this Agreement or any rights with respect hereto or the failure to exercise any option provided hereunder shall in no way be considered to be waiver of such provisions, rights or options, or to in any way affect the validity of this Agreement. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Customer is responsible for all use of the Co-location Space and Bandwidth Services by itself, its employees, agents, contractors, invitees and clients, whether such use is with or without the consent of Customer.
