ARTICLE 1 - GENERAL
This MSA provides general terms, conditions and a framework within which Customer may from time to time use, access and/or purchase certain hosted infrastructure and related Internet delivery services (“Services”) from Packet for its use and/or for resale to its customers (“End User Customers”) as permitted by this MSA.
Customer may request Packet to provide a Service by requesting Services via the Packet website and/or API. Customer acknowledges and agrees that Customer is solely responsible for the accuracy of all requests for Services made through the Packet website or API and other information that it provides to Packet. All Services provided by Packet shall incorporate by reference, and shall be subject to, the terms and conditions of this MSA.
ARTICLE 2 - PAYMENT TERMS
Customer must establish and maintain a current online payment method (the “Payment Method”) on the Packet website prior to Packet providing any Services to Customer.
If requested by Customer, Packet may from time to time conduct a review of Customer’s credit rating and payment history and, in Packet’s sole discretion, Packet may extend credit to Customer in connection with the settling of Customer’s monthly service charges. In connection with any such request, Customer shall complete and submit Packet’s standard credit application. Packet may require Customer to pay a deposit before any extension of Credit. Packet shall refund any amount of deposit paid pursuant to this Section 2.2, less any amount for payments that Customer still owes to Packet, when Packet determines in good faith, based on Customer’s credit rating and payment history, that such deposit is no longer necessary to ensure payment, but in no event later than after the termination of all Services and termination of this MSA.
Packet will provide Customer with a monthly itemized invoice that includes all committed services and usage charges for the Services provided in the period covered by the invoice. All amounts are due to Packet upon receipt of the electronic invoice unless Packet has separately agreed to extend credit to Customer. Packet will charge the invoice amount upon provision of each invoice. Packet will notify Customer in the event that Packet is unable to charge any amount via the Payment Method, and Customer will promptly update the Payment Method or arrange for alternative form of payment. Invoice amounts not paid on or before the date that is fifteen (15) days following the corresponding invoice date (the “Due Date”) shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is lower.
To the extent that Customer disputes any portion of an invoice, Customer shall notify Packet in writing and provide detailed documentation supporting its dispute within fifteen (15) days of the invoice date or the Customer’s right to any billing adjustment shall be waived. In the event of a billing dispute, Customer shall pay all undisputed amounts. If the dispute is resolved against Customer, Customer shall pay such amounts due plus interest as set forth in Section 2.3 from the date the payment was originally due. A dispute may not be based upon a claim that all or a portion of the charges for the Services were incurred by unauthorized users.
ARTICLE 3 - TERM
The Term of this MSA shall begin on the date that Services are first requested by the Customer and shall continue during any time(s) Packet continues to provide Services to Customer unless terminated earlier as otherwise provided for in this MSA. Notwithstanding the foregoing, Packet reserves the right to increase rates for any Services provided thereunder upon at least thirty (30) days’ notice.
ARTICLE 4 - DEFAULT; SUSPENSION OF SERVICE
- 4.1.1 Customer is in default of this MSA if Customer (a) fails to cure any monetary breach within five (5) days of receiving notice of the breach from Packet; (b) fails to cure any non-monetary breach of any terms of this MSA within thirty (30) days of receiving notice of the breach from Packet; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Customer Default”).
- 4.1.2 In the event of a Customer Default, Packet may suspend Services to Customer until Customer remedies the Customer Default, or Packet may terminate this MSA and/or any or all of the Services being provided hereunder. Packet may at its sole option, but without any obligation, cure a non-monetary breach at Customer’s expense at any point and invoice Customer for the same. These remedies are in addition to and not a substitute for all other remedies contained in this MSA or available to Packet at law or in equity.
- 4.2.1 Packet is in default of this MSA if Packet fails to cure any non-monetary breach of any material term of this MSA within thirty (30) days of receiving written notice of the breach from Customer (“Packet Default”); provided, however, that Customer expressly acknowledges that Service related failure or degradation in performance is not subject to a claim of a Packet Default. Customer’s sole and exclusive remedy for any failure of Service is set forth in the applicable Service Schedule.
- 4.2.2 In the event of a Packet Default, Customer may terminate the Services and this MSA upon written notice to Packet. Any termination shall not relieve Customer of its obligations to pay all charges incurred hereunder prior to such termination.
- 4.2.2 In the event of a Packet Default, Customer may terminate the Services and this MSA upon written notice to Packet. Any termination shall not relieve Customer of its obligations to pay all charges incurred hereunder prior to such termination.
ARTICLE 5 – TAXES AND IMPOSITIONS
All charges for the Services are exclusive of any Taxes and Impositions (as defined below). Except for taxes based on Packet’s net income or for taxes which Customer possesses an exemption certificate, Customer shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, or other taxes, duties, fees, charges or surcharges (including regulatory fees), however designated, imposed or based upon the sale or use of the Services (collectively “Taxes”). Customer shall also be responsible for payment of a proportionate share of any property taxes, franchise fees, rights of way fees or charges, license or permit fees incident to the provision of the Services (collectively, “Impositions”). Impositions may be itemized on an invoice and any un-itemized Impositions may be aggregated in the form of a “Cost Recovery Charge”. If Customer is entitled to an exemption from any Taxes, Customer is responsible for presenting Packet with a valid exemption certificate (in a form reasonably acceptable to Packet). Packet will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by Packet to Customer following Packet’s receipt of such exemption certificate. Customer shall indemnify, defend and hold Packet harmless from payment and reporting of all such Taxes, including costs, expenses, and penalties incurred by Packet in settling, defending or appealing any claims or actions brought against Packet related to, or arising from, Customer’s non-payment of Taxes or Impositions. Customer acknowledges that Packet has no ability to determine whether the communications traffic carried by the Services is jurisdictionally interstate or intrastate. Customer represents and warrants that the communications traffic to be carried by the Services shall be jurisdictionally interstate, pursuant to Federal Communications Commission’s mixed-use “10% Rule” (47 CFR 36.154), unless Customer provides Packet written notice otherwise.
ARTICLE 6 – LICENSE GRANT
Subject to this the other terms and conditions of this MSA, Packet herby grants Customer a nonexclusive, revocable, non-transferable and non-sub-licensable right and license to use the Services set forth in an Order during the applicable Service Term. Customer shall adhere to Packet’s current Acceptable Use Policy (“AUP”) and all subsequent versions, incorporated by this reference and set forth at https://www.packet.net/about/terms/aup. If Customer, or an End use Customer, violates any of the foregoing prohibitions, Packet may immediately suspend the Services and/or terminate this MSA and any Services without liability or further obligation to Customer.
ARTICLE 7 – INTELLECTUAL PROPERTY RIGHTS
As between the parties, Packet retains all right, title and interest in and to the Services and the Packet Technology and all modifications, alterations, derivative works and enhancements and all intellectual property rights contained within. Packet grants no license, right or intellectual property right in any Packet trademark, trade name or service mark pursuant to this MSA.
As between the parties, Customer owns all data, imagery, information and other content (“Customer Content”) transmitted by or on behalf of Customer in connection with the Services and Customer has sole responsibility for Customer Content and its intellectual property ownership and right to use. Customer grants to Packet the non-exclusive right and license to (a) receive, retrieve, process, use and transmit any Customer Content necessary or reasonably desirable to perform the Services; and (b) use, copy, manipulate and store any Customer Content that will be archived, stored or otherwise transmitted in connection with the Services.
ARTICLE 8 - LIMITATION OF LIABILITY
Packet shall not be liable for loss or damage occasioned by a Force Majeure Event nor, to the extent allowed by law, for injury to or death of any person and for damage to or loss of any property arising out of or attributable to its operations and performance under this MSA. Packet’s total liability for any and all causes and claims whether based in contract, warranty, negligence or otherwise shall be limited to the lesser of (i) the actual direct damages sustained by Customer; or (ii) an amount equivalent to the total recurring revenue received by Packet from Customer over the preceding three (3) months for the Service affected. No cause of action under any theory which accrued more than one (1) year prior to the filing of a complaint alleging such cause of action may be asserted by either Party against the other Party.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH BELOW IN ARTICLE 9 AND EXCEPT FOR CLAIMS ARISING FROM A PARTY’S INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF, OR IN CONNECTION WITH, THIS MSA, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, INCURRED OR SUFFERED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, PACKET MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE SERVICE, LOCAL ACCESS OR ANY OTHER MATTER, AND ANY SUCH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
Packet shall not be liable to Customer or its End User Customers for any claims or damages resulting from or caused by (a) unauthorized access to transmission facilities or premise equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method; (b) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (c) claims against Customer by any other party (except for third-party claims indemnified under Article 9); (d) any act or omission of any other party, including End User Customers; or (e) equipment or services furnished by a third party, including End User Customers. Packet is not responsible for the content of any information transmitted or received through the Services. Customer shall be solely responsible for all of the security and confidentiality of information it transmits using a Service. Customer shall be solely responsible for all Customer support, pricing and service plans, billing and collections with respect to its End Users Customers, including obtaining all necessary legal or regulatory approvals to provide or terminate the provision of the services to its End User Customers. Packet exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Customer equipment, and use of any such Service is at Customer's own
ARTICLE 9 - INDEMNIFICATION
Each Party shall indemnify, defend and hold harmless (“Indemnifying Party”) the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from all damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this MSA except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that Packet is not obligated to indemnify Customer, and Customer shall defend and indemnify Packet hereunder, for any claims by any third party, including End User Customers, arising from services provided by Customer that incorporate any of the Services including but not limited to (a) violation of any applicable law by End User Customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of End User Customers; (c) termination or suspension of Services of Customer or End User Customers, due to a Customer Default; or (d) claims by a third party, including without limitation End User Customers, arising out of or related to the use or misuse of any Service.
The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.
ARTICLE 10 - SERVICE LEVEL MATTERS
Packet warrants that it will use commercially reasonable efforts to perform the Services substantially in accordance with the service levels (“Service Levels”) set forth in the applicable service level agreement (“SLA”) available at https://www.packet.net/about/terms/sla. Subject to any limitations set forth herein and in the SLA, Packet may change Service Levels in its sole discretion. In the event Packet does not meet a Service Level during the period specified in the SLA, as Customer’s sole and exclusive remedy, and Packet’s sole liability for not meeting a Service Level, Packet shall provide the service level credits in the manner specified in the SLA (“Service Level Credits”). Customer will forfeit any unused Service Level Credits which may exist as of termination or expiration of this MSA or any Services.
Packet will process Service Level Credits for Service events as set forth in the SLA. If an event has occurred which qualifies for a Service Level Credit and such event is not covered by a pro-active Service Level Credit, Customer must open a ticket with Packet providing the details pertaining to the event within ten (10) days of the occurrence. Otherwise, Customer forfeits any right to claim that a Service Level Credit is due. For the purpose of calculating whether a Service Level Credit may be due, and the duration of an event, Packet will calculate time periods beginning from the earlier of (a) the time stamp of the alert in Packet’s monitoring systems; or (b) the time stamp of the Customer-submitted ticket and continuing until Packet has resolved the event. Unless otherwise noted, the performance objective (“Performance Objective”) will be based on the full calendar month of Service since the last renewal period in which the SLA event occurs.
The maximum Service Level Credits that may be earned for any calendar month shall not exceed 100% of the portion of the committed recurring revenue of the affected Services. Any excess Service Level Credits are forfeited and shall not be carried over to future months.
Service Levels and Service Level Credits apply only to Customer and not to any End User Customers or to any other party. Customer is not entitled to any Service Level Credit if Customer (a) has not paid all amounts due hereunder by the respective Due Date, (b) is in breach of this MSA or the AUP, or (c) has failed to provide Packet appropriate access to enable Packet to provide Services. In addition, Packet shall have no liability to provide the Services in accordance with any applicable Service Level or to provide any Service Level Credits if the failure to so provide the Services in accordance with the Service Level is due, in whole or in part, to any of the following:
- Planned Maintenance.
- Packet Internal Maintenance. Repairs, upgrades and modifications to shared core infrastructure scheduled for off-peak hours in the applicable region if Packet provides notice at least 24 hours in advance;
- Customer Maintenance. Repairs, upgrades, scheduled or Customer-requested service interruptions or modifications to a Customer Service, scheduled in advance or in connection with a previously-agreed upon routine schedule.
- Extraordinary Events. Service interruption resulting from denial of service attack (“DOS”), virus attacks, hacking attempts or any other circumstances.
- Activation Date. Events occurring before the Service Activation Date.
- Other Exclusions.
- False Failures. Erroneously reported outage or issue, failures reported as a result of outages or errors of a Packet measurement system or failures resulting from Service monitoring or testing performed to simulate a failure;
- External Network Conditions. Matters caused by general network conditions outside the reasonable control of Packet, including but not limited to DNS issues outside the direct control of Packet or buffering associated with general conditions outside of Packet’s network.
- Non-Impacting Failure. Matters caused by a failure of a Service or feature that does not result in downtime of a guaranteed Service (by way of example only: reporting, dashboard, API access or statistics generation). This includes outages or downtime associated with Customer’s designated non-production (staging, testing or development) Service that is unrelated to hardware or network failures).
- Expected Performance. Matters caused by usage patterns or traffic that exceeds the reasonable performance parameters of Customer’s Service.
- Customer Acts. Matters caused by Customer acts (or acts of others engaged or authorized by Customer), including without limitation, any negligence or willful misconduct.
Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Packet makes no representation or warranty, express or implied, as to any third party hardware, software, products or services included with the Services. To the maximum extent permitted under the applicable agreements, Packet assigns to Customer during the Term all assignable warranties and indemnities granted to Packet by such third parties to the extent applicable to Customer’s receipt or use of the Services during the Term.
ARTICLE 11 - CONFIDENTIALITY
“Confidential Information” shall mean all information, including this MSA, regarding the telecommunications needs of Customer and the Services that Packet offers under this MSA which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary. Notwithstanding the foregoing, all written or oral pricing and contract proposals exchanged between the Parties shall be deemed Confidential Information, whether or not so designated. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request. Information that (i) is independently developed by the Receiving Party, (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other than by breach of this MSA, shall not be considered Confidential Information. A Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information in confidence from the time of disclosure until three (3) years following its disclosure. During that period, the Receiving Party: (a) shall use such Confidential Information only for the purposes of performing its obligations under this MSA; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure of such Confidential Information to employees that have a need to know for such purposes; (d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in this MSA or as required by law; and (e) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Notwithstanding anything in this Article 10 to the contrary, the fact that Customer is a customer of Packet shall not be deemed Confidential Information and Packet may disclose the same without liability therefor.
ARTICLE 12 - FORCE MAJEURE
Neither Party shall be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to, acts of third parties not under the direction or actual control of the Party delayed or unable to perform, acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar catastrophe, any law, order, regulation, direction, action or request of the government, or any department, agency, commission, court, or bureau of a government, or any civil or military authority, national emergency, insurrection, riot, war, strike, lockout, or work stoppage (each, a “Force Majeure Event”). The Party claiming relief under this Article 12 shall notify the other Party of the occurrence or existence of the Force Majeure Event and of the termination of such event.
ARTICLE 13 - MISCELLANEOUS PROVISIONS
This MSA is subject to all applicable federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Telecommunications Act of 1996, the Rules and Regulations of the Federal Communications Commission (“FCC”), Packet’s applicable tariffs, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body. Either Party may terminate its obligations under this MSA without liability if ordered to do so by the final order or ruling of a court or other governmental agency or if such order or ruling would make it impossible for either Party to carry out its obligations under this MSA.
This MSA shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the State of New York. Any and all claims arising out of or relating to this MSA shall be brought in a state or federal court of competent jurisdiction in New York, New York. Customer consents to the personal and subject matter jurisdiction of the state and/or federal courts located in New York, New York and waives (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.
In the event that suit is brought or an attorney is retained by either party to enforce the terms of this MSA or to collect any money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred in connection therewith.
This MSA does not create a partnership, joint venture or agency relationship between the Packet and Customer. Neither Party shall have any authority to bind the other Party to any agreement, understanding or other instrument, in any manner whatsoever.
Except as expressly permitted by Packet and implemented via the Packet website and/or API, Customer shall not transfer or assign, voluntarily or by operation of law, its rights or obligations under this MSA without the prior written consent of Packet. Packet may assign this MSA upon written notice to Customer. This MSA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
Packet may amend this MSA from time-to-time. Packet will notify Customer by email or by posting a notice on the Packet website before the changes are effective. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to this MSA. Continued use of any Service(s) after any such changes shall constitute Customer’s consent to such changes.
Notices delivered to Packet under or pursuant to this MSA shall be in writing and delivered by certified mail, return receipt requested, or by nationally recognized courier to Packet Host, Inc., Attn: Legal Department, 30 Vesey Street, 9th Floor, New York, NY 10007. Notices delivered to Customer under or pursuant to this MSA shall be delivered via electronic mail to the Customer email address on file with Packet.
The representations, warranties, covenants and agreements of the Parties set forth herein are not intended for, nor shall they be for the benefit of or enforceable by, any third party or person not a Party hereto, including without limitation, End User Customers.
Articles 2, 5, 8, 9, 11 and 13 shall survive any termination of this MSA.
This MSA constitutes the entire understanding between the Parties relating to the rights, duties and obligations granted and assumed herein. Any prior agreements, promises, negotiations or representations regarding the subject matter hereof are of no force or effect. No alteration or variation of the terms of any provision shall be valid unless made in writing and signed by a duly authorized representative of Packet and the Customer. In the event that any one or more of the provisions of this MSA shall for any reason be held to be invalid or unenforceable, the remaining provisions of this MSA shall be unimpaired, and shall remain in effect and be binding upon the Parties. The Services provided by Packet are subject to the condition that they will not be used for any unlawful purposes. No course of dealing between the Parties and no failure to exercise any right hereunder shall be construed as a waiver of any provision hereof.