Terms of Service

This agreement ("Agreement") between Colo4, LP, ("Colo4") and Customer governs the provision of Colo4’s collocation and related services (the "Services"). This Agreement is effective the instant Customer (a) signs up for Services through the Colo4 website or (b) establishes an account with Colo4 or uses the Services or any part thereof ("Effective Date"). Colo4 may revise this Agreement from time to time by posting a new version on the Colo4 website. Such revised terms will become effective thirty (30) days after the posted or revised date. Continued use of the Services after such date constitutes acceptance of the revisions to this Agreement. This Terms of Service is applicable only to single-server and dedicated server customers. All other customers are subject to our master service agreement.

1. The Services

This Agreement and the Services provide Customer with a license to occupy space (cabinet, rack, or cage) as Colo4 designates (the "Space"), and to interface with such cables, computers, or other equipment as Colo4 designates, at Colo4’s facility at 3000 Irving Blvd, Dallas, Texas (the "Facility"). This Agreement conveys only a license to occupy the Space and only during the term set forth in Customer's signup. Customer has no other rights to the Space or the Facility or to any cabinet, rack, cage, or other space therein, including without limitation any leasehold right or other real estate interest.

2. Charges

(a) All recurring charges shall be due and payable in advance, without offset, deduction or prior demand on or before the first (1st) day of the month for Service provided during that month, or for the predetermined period, whichever may apply. Invoices or notices of invoices for recurring charges are issued as a courtesy.

(b) Non-recurring charges including technical support, excess bandwidth usage and overages or purchases of equipment or supplies, will be due and payable upon Customer's receipt of invoice or notice of invoice. Customer is responsible for monitoring transfer, bandwidth and power utilization, and other services provided under this Agreement, and maintaining awareness of the applicable charges due.

(c) Credit card payments for recurring charges will be processed on the first business day of the month; payments for non-recurring charges will be processed within ten (10) days of issuance of invoice or notice of invoice. Customers paying by credit card are responsible for maintaining a valid credit card on file with Colo4. Colo4 may immediately interrupt Service in the event a charge is denied.

(d) Payments by check, wire transfer or any other payment method must be received on or before the due date or Colo4 may immediately interrupt Service. A returned check will constitute a material breach of this Agreement, and Customer will incur a $35.00 returned check fee, in addition to any other remedies available to Colo4.

Interruption of Services may include denial of access, remote hands and tech support, internet connectivity, and/or power. Customers whose Services are interrupted for nonpayment will pay [in addition to paying all past due amounts] a $25.00 reconnect charge before Services are restored. If Customer fails to pay amounts invoiced by Colo4 within thirty (30) days of the invoice date, all such unpaid amounts shall accrue interest from the invoice date at the lesser of one and one half percent (1½%) per month or the maximum rate allowed by law. Fees or charges for any fractional portion of a month shall be computed as one thirtieth (1/30) of the basic monthly payment multiplied by the appropriate number of days.

3. Acceptable Use

(a) Customer asserts that it has read Colo4’s Acceptable Use Policy ("AUP") posted at [http://www.Colo4.com/acceptable-use.html]. Customer will adhere to the AUP and will not allow the Services or Colo4 equipment to be used for activities prohibited by such policies. Colo4 may revise the AUP from time to time by posting a new version thereof on the Colo4 website, and Customer is responsible for awareness of such revisions.

(b) Customer is responsible for preventing AUP violations and other violations of the terms of this Section 3 and this Agreement by hackers and other third parties. Third party violations of the provisions of this Section 3 will be considered violations by Customer. Colo4 is not responsible for protecting Customer from hackers or from other third parties.

(c) Colo4 may monitor the Service and disclose information regarding use of the Services for any reason, including to satisfy laws, regulations, or governmental, legal, or law-enforcement requests, to operate the Service properly; or to protect itself and its customers. Colo4 may grant law enforcement agencies access to its equipment or Customer's equipment to monitor Customer's use of the Service.

(d) Notwithstanding any provision to the contrary elsewhere in this Agreement, Colo4 may immediately and without notice terminate this Agreement, or suspend Service, in whole or in part, in the event of a violation or suspected violation of Colo4’s AUP.

4. Ownership of Data, Software, Hardware, and IP Addresses

All software, hardware and Internet protocol ("IP") addresses provided by Colo4 are licensed to Customer and remain Colo4’ss sole and exclusive property.

5. Maintenance, Security, & Service Interruption

(a) Colo4 may interrupt Service to perform maintenance on Colo4 equipment. Colo4 will exercise reasonable efforts (i) to inform Customer before interrupting Service and (ii) to restore the system promptly.

(b) Customer is responsible for maintaining security, for maintaining patches and disaster recovery systems, and for maintaining backups. Colo4 will not be liable for loss of data or for breaches in system integrity, even if Customer's Service includes firewalls, backups, denial of service protections, or other mechanisms to protect data and system integrity. In the event that Colo4 suspects that security of any equipment has been breached, it may disable such equipment and the Service.

(c) In the event that Customer's use of Service causes a denial of service or in any other way injures the functioning of services Colo4 provides to other customers, Colo4 may interrupt Service or permanently disable it, even if such denial of service or injury occurred through no fault of Customer's.

(d) Colo4 will not be liable for service interruptions, including without limitation interruptions executed in order to investigate suspected AUP violations, whether or not such violations occurred.

6. Use of and Access to Space, Facility, and Equipment.

(a) Customer will place in the Space only such equipment as is approved by Colo4. Colo4’s provision of Service is typically provided Monday through Friday during the hours of 6am and 6pm. Colo4 may, in its reasonable discretion, restrict the time for any installation, removal, maintenance, or modification of Customer equipment and Customer will honor such restrictions. Customer will label all of its equipment with its name and contact information. Customer equipment will at all times be configured and run in compliance with its manufacturer specifications, including regarding power outlet, power consumption, and clearance requirements.

(b) Customer will not alter the Space or any cabinet, rack, cage, equipment, or fixture in the Facility, including without limitation Colo4 cabling and power supply, without prior written permission from Colo4. Customer will not access or tamper with any equipment in the Facility other than its own. Customer will keep its own Space clean and clear of debris.

(c) Customer will provide Colo4 with a list of all its principals, employees, agents, contractors, and other personnel ("Representatives") authorized to enter the Facility, and Colo4 will have no obligation to grant admittance to anyone not so designated. Colo4 may refuse access to the Facility to any Representative who violates Facility rules or, in Colo4’ss opinion, behaves inappropriately or who creates a hazard of any kind. Customer will not provide Facility keys or access codes to any Representative not designated to Colo4 in advance or to any Representative refused by Colo4. Representatives may be required to leave photo identification at Colo4’s front desk before entering the Facility.

(d) Customer warrants that it and Representatives will operate Customer's equipment and conduct any other operations in the Facility in a safe and workmanlike manner, in accordance with industry standards for such activities. Customer and its Representatives will remain in the Facility only so long as necessary to attend to Customer's equipment.

(e) Customer will notify Colo4 immediately of any emergency or other situation threatening injury to persons or property, including data. Customer recognizes that, in the event of an emergency, Colo4’s work will take precedence over any Customer operations. Without limiting the generality of the foregoing, in the event of emergency, Colo4 may remove or rearrange Customer equipment. Customer will cooperate fully with Colo4 during any emergency and will promptly assist Colo4 as requested.

(f) Customer accepts the Space and the Facility "as is." Customer recognizes Colo4’ss right to operate and maintain the Facility in such manner as it sees fit. Customer will honor all Colo4 rules and regulations for use of the Facility and Space.

(g) Customer understands that Colo4 may be required to file an annual report with the Dallas Central Appraisal District listing the name and address of each Customer who, pursuant to this Agreement, (i) is the owner of equipment or other personal property located in the Space or elsewhere in the Facility on January 1, and (ii) to whom Colo4 provides the Space on January 1 for the purpose of storing such equipment or other personal property. Customer agrees that any taxes imposed on such equipment or other property shall be Customer's sole responsibility, and that Colo4, as well as its directors, officers, partners, and employees, shall have no responsibility whatsoever for any such taxes.

7. Disclaimers and Warranties

(a) Colo4 will not be liable for any consequential, incidental, exemplary, punitive, or multiple damages, even if Colo4 was advised in advance of the possibility of such damages. Colo4’s maximum liability arising out of or related to this agreement will not exceed the total amount of fees billed to customer during the twelve (12) months preceding the claim.

(b) Colo4 will have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings resulting from: (i) other Colo4 customers or third parties accessing customer's data or assigned computers; (ii) security breaches; (iii) eavesdropping; (iv) denial of service attacks; (v) interception of traffic sent or received using the equipment or Service; (vi) customer's reliance on or use of the equipment or Service; (vii) mistakes, omissions, interruptions, deletions of files, errors, defects, delays in operation, or other failures of performance of the equipment or Service; (viii) the accuracy, completeness, and usefulness of the Service; (ix) loss of data or loss of access to data; or (x) loss of equipment or injury to equipment.

(c) Colo4 shall not insure or be responsible for any loss or damage to property of any kind owned or leased by Customer except to the extent such liability results from Colo4 gross negligence or willful misconduct. Any policy of insurance covering the property owned or leased by Customer against loss by physical damage shall provide that the underwriters have given their permission to waive their rights of subrogation against Colo4, its affiliates and their directors, officers, partners, and employees, as well as their subsidiaries, and their respective directors, officers, partners, and employees.

(d) Colo4’s limitations and exclusions of liability set forth in this section 7 and in this agreement apply equally to Colo4’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies.

8. Indemnity & Third Party Claims

(a) Customer will defend and indemnify Colo4, its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies from any third party claim arising out of or related to: (i) alleged Customer conduct that would breach this Agreement, including without limitation alleged infringement of third party intellectual property or privacy rights; (ii) Customer's use, misuse, or failure to use the Service; and (iii) any action taken by Colo4 as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys' fees.

(b) Upon Colo4’s request, Customer will immediately notify any third party that Colo4 is not responsible for (i) any content or materials posted on any Customer website or otherwise disseminated through Customer's use of the Service or (ii) any use or abuse of the Service whatsoever by Customer or any third party.

9. Term and Termination and Removal of Equipment

(a) This Agreement will continue from the Effective Date through that period affirmed at signup subject to the following terms and conditions:

(i) All services are provided on a twelve (12) month term.

(ii) Services that are prepaid for a predetermined period renew for successive periods equal to the predetermined period (upon Colo4’s receipt of advanced payment).

(b) Upon the expiration of the the initial twelve (12) month term, services may be terminated by Customer upon thirty (30) days’ notice. Notice of termination must be submitted via Colo4’s support system.

(c) Customer will be allowed to remove equipment from the Facility if and only if Customer has paid all amounts due under this Agreement. Customer hereby grants Colo4 a security interest in any and all equipment, computer programs, and other property (collectively, the "Property") Customer places in the Space or elsewhere in the Facility, to secure Customer's payment and performance of its obligations under this Agreement. Customer recognizes that such security interest is perfected by Colo4’s possession of the Property.

(d) Within ten (10) days following the termination (or the effective date of expiration) of this Agreement, Customer will remove all of its equipment from the Facility and any other Customer property in the Facility and return the Space to Colo4 in the same condition as it was prior to Customer's installation of its equipment. Should Customer or any permitted assignee, sub lessee or licensee of Customer fail to vacate the Space or any part thereof within such ten (10) day period after the expiration or sooner termination of this Agreement (or cannot remove such property because of payments due to Colo4), such failure to vacate, unless otherwise agreed to by Colo4 in writing, shall automatically increase the fees payable under this Agreement to 150% of the amount payable immediately prior to such breach. Customer shall also be liable to Colo4 for all damages that Colo4 suffers because of any holding over by Customer and Customer shall indemnify Colo4 from and against all claims made by any other customer or prospective customer against Colo4 resulting from delay by Colo4 in delivering possession of the Space.

(e) Notwithstanding anything herein to the contrary, Colo4 may move any and all such property to storage. If Customer does not pay all amounts due to Colo4 and remove such property from the Facility or storage within thirty (30) days of Colo4’s request, Colo4 may liquidate the property in any reasonable manner. Customer will defend and indemnify Colo4 (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from any third party claim arising out of or related to storage, disposal, sale, donation, or destruction of, or damage to, the equipment or any data stored therein or connected therewith, or any other Colo4 action taken in furtherance of its rights pursuant to this Section 10. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys' fees.

10. Service Level Agreement

100% Network Guarantee: Colo4 offers a 100% uptime guarantee on all network related services (i.e. bandwidth, routers, switches, and cabling). The 100% uptime guarantee is applicable to all network services delivered to customers via HSRP and dual network drops. Customer-generated outages created by failed equipment, exploited servers, misconfigurations or traffic in excess of the maximum allowed by contract are not subject to the SLA. Service credits are based directly on all equipment and/or services affected by a network outage. Services or hardware not related to the network outage will not qualify for a service credit. Customer credits are equal to one day's usage for every hour of outage, not to exceed one month's recurring charges.

11. General Provisions

(a) Customer shall not, and has no power, authority or right, to create, and shall not permit, any lien or encumbrance, including, without limitation, tax liens and mechanics' liens, on the Equipment, Space or Facility. In no event shall Colo4 subordinate or be required to subordinate its interest in the Facility to any person.

(b) This Agreement constitutes the entire Agreement between Colo4 and Customer pertaining to the subject matter and geographic locations set forth in this Agreement, and supersedes any prior Agreements, whether written or oral.

(c) 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 is reasonable control, including acts 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.

(d) Colo4 and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Colo4 and Customer. Neither Colo4 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 in this Agreement.

(e) Colo4 and Customer warrant that their respective undertakings will be performed in a professional and workmanlike manner in accordance with this Agreement. COLO4 MAKES NO OTHER WARRANTY UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

(f) This Agreement shall be governed by and construed under the substantive laws of the State of Texas. Jurisdiction and venue for purposes of any litigation in connection herewith shall be in the Dallas County, Dallas, Texas. In the event of litigation hereunder, the prevailing party shall be entitled to an award of reasonable attorney's fees and court costs at all trial and appellate court levels.

(g) All written communications to Customer will be deemed delivered if sent to the contact information provided to Colo4 at the time of signup, unless Customer provides some alternate contact information in writing. All written communications to Colo4 and all charges will be mailed to 4347 W. Northwest Hwy. Suite 120-295, Dallas, TX 75220, unless Colo4 posts alternate contact information at its website.