This Cloud Server Agreement herein referred to as “Agreement”, by and between Northwest Nexus, Inc. dba NuOz Corporation with its place of business at 15801 NE 85th St. Redmond, WA 98052, hereinafter referred to as “NuOz”, and Subscriber and/or User herein referred to as “Customer”. Services Provided. Subject to the terms and conditions in this Agreement, NuOz will provide Customer with the following services and space and Cloud Server Equipment.
- Cloud Server Equipment. Cloud Server equipment shall mean Server(s), router(s), switche(s), firewall(s), etc. as described on the agreed quote and/or sales order. NuOz will provide the space and equipment required for the server at NuOz’s Co-location Premises. Customer agrees that all of the Cloud Server equipment will reside in the NuOz NOC (Network Operating Center) Facility and that NuOz retains all ownership unless otherwise specified on related quote and/or sales order to all rack equipment hereby incorporated into this Agreement by reference.
- Bandwidth. NuOz shall be responsible for providing the access to the Internet as specified on the quote and/or sales order form.
- Access. NuOz shall provide Customer with 24x7x365 access to the Server via the Internet. Access to the Co-location facilities will be escorted access only. Customer must call NuOz to schedule escorted access.
- Power Consumption: NuOz shall provide power as referenced on the quote and/or service order. NuOz shall raise its rate should there be a rate increase from the Westin building.
- Obligation. NuOz is providing the co-location services specified in this Agreement solely for Customer’s use and is not under any obligation to monitor or police such use.
- Laws, Rules, and Regulations. Customer will be the primary operator and will obey and adhere to all applicable laws, rules, regulations, and guidelines concerning use of NuOz services in all circumstances.
- Purpose. Customer service(s) shall not be used for any purpose other than that stipulated in this agreement.
- Use. NuOz may disconnect Customer service(s) with or without notice for misuse, fraud, or tampering with the connections of other equipment provided and/or installed by NuOz. Any replacements, or repairs, shall be paid by Customer.
- Customer shall notify NuOz promptly of any problem in its service(s) and, if necessary provide NuOz reasonable assistance in correcting any such problem.
- Customer will be solely responsible for its use of the NuOz services, including, without limitation, any use by employees, agents, subsidiaries, customers, or other authorized or unauthorized uses, and further will defend, indemnify, and hold harmless NuOz from any claim incurred or arising as a result of any breach of the foregoing.
- Fees and Costs. Subject to the terms and conditions in this Agreement along with a separate agreed to quote and/or sales order. The agreed to price on quote and/or sales order will outline the amount of space, power allotment, bandwidth utilization.
- Term. The term is indicated on the service order. After expiration of the term, the agreement shall operate on a month-to-month basis at then month-to-month rates. This agreement may be renewed for the same term upon Customer’s request and approval by NuOz.
- Termination for Convenience. Customer may terminate the Agreement upon thirty (30) days advance written notice. If Customer terminates the Agreement during the term, Customer shall remain responsible for all payment of fees and costs throughout the entire term.
- Termination for Cause. NuOz may immediately terminate the Term upon the occurrence of any of the following events:
- Nonpayment of any amounts due under this Agreement;
- Breach of any other agreement between Customer and NuOz that is not corrected within thirty (30) business days’ written notice is ground for termination of this Agreement.
- Any assignment by the other party to the benefit of creditors or bankruptcy filing by or against the other party, and;
- The cessation of the other party as a going concern or failure to conduct its operations in the ordinary course of business.
- Responsibility. Customer specifically agree that NuOz shall not be responsible for unauthorized access to or alteration of your transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through or using the Service. Customer specifically agree that NuOz is not responsible or liable for any act or omission of any third party including but not limited to any threatening, defamatory, obscene, offensive, or illegal content or conduct of any other party or any infringement of another’s rights, including intellectual property rights. Customer specifically agrees that NuOz is not responsible for any content sent using and/or included in the Service by Customer or any third party.
- Obligations at End of Term. Upon termination or expiration of the Term, Customer will be entitled to remove hardware and software specifically belonging to the Customer upon payment of the entire unpaid balance due to NuOz, which unpaid balance will be due immediately.
- Modification. The Business Terms of this Agreement, by Addendum, may be modified at any time upon written mutual consent of the parties.
- Definitions. Definitions are as follows.
Building means the commercial office building located at 2001 6th Avenue, Seattle, Washington 98121.
Business Hours means 9:00 AM to 5:00 PM, Monday through Friday.
Emergency means any event that precipitates Customer’s need to contact NuOz outside of normal business hours.
Emergency Number means the phone number NuOz furnishes for Emergencies, which number may change provided NuOz makes reasonable attempts to notify Customer of such change.
Facility means NuOz premises within the Building.
MMR means the “Meet Me Room” on the 19th floor of the Building.
Rack means the anchored vertical column in which the Customer’s computer servers, routers, UPS, rectifiers and/or similar electronic or electrical devices are attached and arrayed.
Remote Hands means tasks to be performed at the Customer’s instruction twenty-four (24) hours per day, three hundred sixty-five (365) days per year.
General Terms and Conditions.
Payment Terms. Monthly recurring payments are due on the start date of each subsequent month. In the event any monthly payment due has not been made within ten (10) calendar days of its due date, a late charge of Seventy-Five Dollars ($75.00) per month will be assessed and must accompany the delinquent payment. If any payment is not made within thirty (30) calendar days of its due date, then NuOz, in its sole discretion and without limiting other remedies, may elect to suspend its performance and Services under this Agreement and to charge one and one-half percent (1.5%) per month retroactive to the due date for such payment and continuing until the date of payment. NuOz will attempt to notify Customer, via mail, of such suspension of the Services fifteen (15) days prior to said suspension. NuOz’s notice under this Section 2 is deemed to be effective on delivery of such letter to the United States Postal Service. Such suspension of the Services may, at NuOz’s sole option, include, without limitation, preventing Customer’s access to Customer’s equipment, access to NuOz’s premises, and use of Customer’s equipment. In the event of suspension of the Services, Customer will pay re-establishment fees to re-establish the Services.
Disclaimer of Warranties. NUOZ MAKES NO WARRANTIES AT ALL AND SPECIFICALLY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NUOZ ALSO MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES. THE SERVICES WILL BE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NUOZ DISCLAIMS ALL IMPLIED WARRANTIES, OBLIGATIONS, AND LIABILITIES ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR (C) IMPLIED WARRANTY OF NONINFRINGEMENT.
Exclusions. Customer will remain solely responsible for anything not developed or supplied by NuOz and NuOz will have no responsibility whatsoever for mistakes, errors, bugs, defects, or any acts of omission or commission by Customer’s agents or employees.
LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), REPRESENTATION, STRICT LIABILITY, OR PRODUCT LIABILITY OF CUSTOMER) FOR COVER OR FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS, DATA, USE OF EQUIPMENT, OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF EITHER PARTY OR ITS EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S OBLIGATION FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE MONTHLY AVERAGE OF THE FEES ACTUALLY PAID BY CUSTOMER TO NUOZ, UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT NUOZ MAY HAVE WITH CUSTOMER, IN THE THREE (3) MONTHS BEFORE SUCH CLAIM IS ASSERTED.
Release and Waiver of Tort Liabilities. CUSTOMER WAIVES AND RELEASES NUOZ FROM ANY AND ALL CLAIMS IN TORT AND/OR STRICT LIABILITY RELATING TO THIS AGREEMENT, INCLUDING CLAIMS FOR LOSS OF OR DAMAGE RESULTING FROM LACK OF SERVICE OR FROM ANY EQUIPMENT WITH WHICH THE SERVICE IS USED AND ANY AND ALL CLAIMS FOR CONTRIBUTION OR INDEMNIFICATION. THIS WAIVER AND RELEASE DOES NOT AFFECT OR IMPAIR, AND SEMPHORE EXPRESSLY RETAINS, WHATEVER RIGHTS IN TORT AND STRICT LIABILITY NUOZ MAY HAVE AGAINST THE CUSTOMER.
Indemnification. Customer will defend, indemnify, and hold harmless NuOz from any and all claims, damages, costs, and expenses (including attorneys’ fees) relating to this Agreement or arising from (a) Customer’s use of the Services; (b) the content, storage, or use of information by Customer, and; (c) any loss of data; (d) lack of professionalism or other misconduct by Customer’s employees or agents.
Insurance. In the event that Customer has property of any type or kind in NuOz’s facilities, Customer will insure its hardware, software, and peripheral equipment or other equipment of any type against any and all perils or loss. Customer acknowledges that NuOz does not insure any of Customer’s property.
Confidentiality and Non-solicitation
Confidentiality. NuOz and Customer jointly acknowledge that, during the course of dealing with one another, one or both parties may have access to and will become aware of Confidential Information. The parties will not:
Use the Confidential Information of the other party and will take all reasonable steps necessary to maintain and protect such Confidential Information; Disclose Confidential Information, without first obtaining the other party’s prior written consent, to anyone other than an agent, employee, or independent contractor having need for such disclosure in order to allow such agent, employee, or independent contractor to accomplish the purpose of this Agreement; and Use Confidential Information for any purpose other than to effectuate the purposes of this Agreement.
Solicitation of Employees. Unless expressly authorized in writing by the other party, during the Term and a period of one (1) year thereafter, each party will not knowingly employ or retain the services of, nor solicit for employment or to provide services, any person who is or was employed by the other party during the Term.
Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than the payment of amounts owed) if such delay or failure arises by any reason beyond its reasonable control. Without limiting the generality of the foregoing, NuOz is not and cannot be held responsible by Customer for the operations of NuOz’s leased premises, Internet carriers, any and all utility providers or the functionality of the Internet as a whole. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
Assignment. Customer will not assign all or any part of this Agreement or any of its rights under this Agreement to the Services without the prior written consent of NuOz, provided that Customer may assign all of its right, title, and interest in and to this Agreement, upon thirty (30) days’ prior written notice to NuOz, to a successor to Customer by way of merger, consolidation, or other corporate reorganization, or a sale of substantially all of Customer’s assets, where such successor agrees in writing to be bound by all the provisions of this Agreement. No assignment, with or without NuOz’s consent, will relieve Customer from its obligations under this Agreement. Subject to the foregoing restriction on assignment, this Agreement will be fully binding on, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
Non-waiver. No waiver by either Party of any provision of this Agreement, in any one or more instances, will be deemed to be or construed as a waiver of the same or any other provision on any future occasion. The failure of either Party to insist on or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely on any such provisions, rights, or remedies in that or any other instance; rather, the same will be and remain in full force and effect.
Unenforceable Provision. The invalidity or unenforceability of any provision of this Agreement will not affect the other provisions hereof. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder will have full force and effect, and the invalid provision will be modified or partially enforced to the maximum extent permitted by law to effectuate the purpose of this Agreement.
Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement.
Court Venue and Jurisdiction. Customer will not commence or prosecute any action, suit, proceeding, or claim arising under or by reason of this Agreement other than in the state or federal courts located in King County, Washington. Customer irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement. The prevailing party in any legal proceeding between the Customer and NuOz shall be entitled to recover from the other party it’s reasonable attorney’s fees and expenses incurred.
Jury Waiver. Customer hereby waives any right to trial by jury of any claim arising out of this Agreement and any related document, whether now or hereafter arising and whether sounding in contract, tort, or otherwise, and hereby consents and agrees that any such claim may, at NuOz’s election, be decided by trial without a jury and that NuOz may file an original counterpart or copy of this Section 6.7 with any court as written evidence of the waiver and agreement contained herein.
No Third-Party Beneficiaries. This Agreement is for the benefit of, and will be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party (including, but not limited to, any employee of any party). No action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.
Independent Contractors. Each Party is an independent contractor and not a partner, franchisee, or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership, franchise, or agency between the Parties or as imposing any partnership, franchise, or agency obligation or liability on either Party. Neither party will have any right or authority to create any obligation or make any representation or warranty on behalf of the other party.
Counterparts. This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts will collectively constitute one agreement, but in making proof of this Agreement it will not be necessary to produce or account for more than one such counterpart.
Customer Identification. Customer consents to NuOz’s identification of Customer as a customer of NuOz in NuOz’s promotional and marketing materials.
Headings. The headings of sections, paragraphs, and subparagraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect, or be of any weight in the interpretation or construction of the provisions of such sections, paragraphs, or subparagraphs.
Time of Essence Time is of the essence of this Agreement.