Tri-Lakes Net Colocation Agreement

WHEREVER:
  1. The Company or Individual is hereinafter known as a "Client".
  2. Tri-lakes Internet, Inc. is hereinafter known as the "Company".
  3. The Client desires to contract colocation services from the Company.
  4. The Client has read, understands and agrees to uphold the Company's.
    1. Colocation Agreement
    2. Acceptable Use Policy
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
Service Availability Commitment Scope
Company's Service Availability Commitment is to provide 99.9% network availability in any calendar year, with exception of regular scheduled maintenance.
Scheduled Maintenance Scope
Scheduled Maintenance shall mean both (1) any maintenance in the Company data center at which Client's Server is located (a) of which Client is notified 48 hours in advance, and (b) that is performed during a standard maintenance window on Tuesdays and Thursdays from 12 AM to 6 AM local time of the Company data center at which Client's Server is located and (2) any maintenance of Client's Server (a) of which Client is notified 48 hours in advance, and (b) that is performed during a standard maintenance window on Tuesdays and Thursdays from 12 AM to 6 AM local time of the Company data center. Notice of Scheduled Maintenance will be provided to Client's designated point of contact by a method elected by Company (telephone, email, fax or pager).
Service Availability Commitment Process
If Client opens a trouble ticket with Company Technical Support within 5 days of Client's failure to access Client's Server and Company determines in its reasonable commercial judgment that the Server is unavailable due to an outage caused solely by the items of the service managed exclusively by Company that outage will be used to calculate Network unavailability for the remedies provided below. The Network shall be deemed to be unavailable if it is not responding to Company's monitoring software. Company's records and data shall be the basis for all service availability calculations and determinations. Scheduled maintenance shall not be deemed to be unavailability. Unavailability of Client's Server due to Client's web content or application programming, acts of Client or its agents, network unavailability outside of the Company Network or events of Force Majeure shall not be deemed unavailability for the purpose of this Commitment. Account must be in good standing in order to receive this credit.
Service Availability Commitment Remedy
If Company determines in its reasonable commercial judgment that Client's Network was unavailable for twenty-four or more consecutive hours during a calendar month, Company, upon Client's request, will credit Client's account for such month the pro-rated charges for one day's service for that server. Credits will not apply to overage charges or to charges for services other than the Bandwidth Charge for the server for which this Commitment was not met. Client's account shall not be credited more than once per month under this Service Availability Commitment.
Server Install Guarantee
Server Install Guarantee Scope: Company's Server Install Guarantee is to have installation of Client's environment completed within 2 business days. Environment shall not include client's hardware, software, operating system, applications systems, remote access programs, network connectivity or any other customer server or network responsibility. Install guarantee does not include any aspect of configuring, installing, monitoring or maintaining customer environment. Install guarantee only applies to, space, bandwidth, power, KVM, switch port access and IP address allocation.
Server Install Guarantee Process: These dates shall be counted from the date Company has received all of the following from Client: 1) signed Service Agreement, 2) completed Client Information Form, 3) completed Configuration Form, 4) signed contract for services and (if requested by Company) completed credit application. The service is deemed to be installed when Company is prepared to provide to Client functional network connection. The Server Install Guarantee is not available if installation delay is attributable to Client equipment, acts or omissions of Client, its employees or agents, Client not passing Company's credit check, or reasons of Force Majeure (as defined in the applicable service agreement).
Server Install Guarantee Remedy: Upon receiving from written notice from Client within (10) business days from date of guaranteed installation, Company has (2) two business days to complete the installation guarantee process. If Company determines in its reasonable commercial judgment that Company has failed to meet this Server Install Guarantee, Client's account shall be credited 50% of Company's standard Install Fee with respect to this Guarantee. Account must be in good standing in order to receive this credit.
Intellectual Property Rights
With respect to elements of the Service that Company provides to Client, Company hereby grants Client a non-exclusive, non-transferable license to use those elements of the Services solely during the term of the Agreement and in connection with Client's use of the Services in compliance with Client's contract with Company. All rights with respect to the Services, including, but not limited to, intellectual property or similar rights with respect thereto, belong exclusively to Company or the applicable licensor, whichever is applicable, whether or not they are embedded in the Services. Client acknowledges and agrees that title to the software or engineering provided hereunder does not pass to Client under this Agreement and shall at all times remain with Company or the applicable licensor. Client shall not cause or permit the reverse engineering, disassembly or decompilation of any software or engineering provided as a part of the Services. Client shall use the software in object code form only. Client shall not be obligated to make any royalty or other payments with respect to the Services other than as provided in the Agreement.
Internet Connectivity
Client shall not attempt to circumvent or alter the processes or procedures to measure time, bandwidth utilization, or other methods to document "use" of Company's Services.
Abusable Resources
Upon notification of the existence of an abusable open resource, including, but not limited to, an open newsserver, an unsecured mail relay or a smurf amplifier, Client shall immediately take all necessary steps to avoid any further abuse of such resource and report the situation to support@tri-lakes.net . Company may immediately suspend the affected Services, the Service Order, or terminate the Agreement for any abuse of an open resource that occurs after Client has been notified pursuant to the foregoing sentence.
Internet Data Center Rules
  1. General Conduct -All the Company's Clients and their representatives, employees, contractors, agents, invitees, and users of Clients' facilities and all the Company contractors, vendors, invitees, or agents, hereinafter known as ("Visitors") are subject to these Rules and Regulations in connection with their use of or access to the Company and/or Services.
  2. Install - All equipment installation activities must be pre-approved by the Company. Any one installing any type of equipment into a Data Center must first check in with a member of the Company's Data Center Operations staff and provide the necessary information about the equipment and the installation prior to commencing any installation activities. A Visitor is not authorized to and shall not approach, handle, use, inspect or examine in any way any equipment, cabinets, Suite Space, or floor space, other than their own.
  3. Access - A Visitor's access to or use of the Data Center and the building in which it is located shall at all times comply with the rules and regulations promulgated by the owner of such building from time to time, a copy of which may be obtained from the Company. A Visitor is not authorized to and shall not disclose the identity of any of the Company's clients. The Data Center shall be kept neat and orderly at all times. Visitors shall remove all of its trash and debris upon departure from the Data Center. The Company shall have the right to remove and discard any trash and debris left in the Data Center in violation of the foregoing, and to charge the Visitor for such trash removal. At conclusion of any work taking place in an Data Center, the Visitor shall ensure all cables are routed and dressed neatly in cabinets/racks and all doors are closed and locked and the equipment or area is left in a closed, orderly, and secure manner.
  4. Equipment and polices - Dollies and carts are available from the Company and all use of dollies and carts must be pre-authorized by the Company. Any and all equipment, including Client Equipment, operated within a Data Center must be configured and operate at all times in compliance with the applicable manufacturer's specifications, including, without limitation, any specifications as to power consumption and/or clearance requirements. A Client or Visitor shall display no sign, advertisement, notice or object in or on the exterior of the Data Center walls, doors, ceilings, or racks without the Company's prior approval. No Visitor shall at any time bring into or keep upon the Data Center premises any hazardous, inflammable, combustible, explosive, or otherwise dangerous fluid, chemical or substance at any time. No acids, vapors or other materials shall be discharged or permitted to be discharged into the waste lines, vents or flues of the Data Center. Client may not bring or use any of the following in a Data Center tobacco products, explosives, weapons, chemicals, illegal drugs, electro-magnetic devices, radioactive materials, photographic or recording equipment of any kind (other than tape back-up equipment for use with the Client Equipment). Weapons are not allowed in the Data Center at any time. Food and drink and alcoholic beverages may be allowed in the office areas of a Data Center with the Company's prior permission, but never in the machine room. The Company reserves the right to inspect all objects to be brought into or taken out of the Data Center and to exclude from the Data Center all objects which violate any of these Rules and Regulations. The Company may require any person entering or leaving the Data Center with any package to document the contents of the package.
  5. Documentation - All connections to and from Client Equipment must be clearly labeled. Clients may use the Company's labeling code or choose to use their own code. All Client labeling codes must be provided to the Company for purposes of configuration control. Periodically, the Company will conduct routine, non-emergency scheduled maintenance of its Data Center and Services. The Company shall notify Clients a minimum of forty-eight (48) hours in advance of said maintenance. Client agrees to cooperate with the Company during the scheduled maintenance so that the Company minimizes Client impact. Product specific SLAs addressing maintenance periods will govern over this general rule, to the extent they differ. The Company may require emergency maintenance windows on rare occasions and will provide as much notification as practicable. Visitors may not misuse or abuse any the Company property or equipment. Visitors may not verbally or physically harass, threaten, intimidate, or abuse any individual within the Data Center or while on the Company property, including without limitation, employees, agents, or invitees of the Company or other Visitors. Abusive and threatening or offensive behavior by any Visitor will not be tolerated. Visitors may not engage or assist in any activity that violates the law or aids in criminal activity while in the Data Center or on the Company property or in connection with the Services. The Company may refuse entry to, or require the immediate departure of, any individual who (i) is disorderly, (ii) fails to comply with these Rules and Regulations, or (iii) fails to comply with any of the Company's other procedures and requirements after being advised of them.
Access control
Only those individuals specifically identified by an authorized employee of the Client may access the Data Center ("Permitted Individuals"). Client will notify the Company in writing of any change in Client's Permitted Individual's list, or in the identify of who can and cannot provide the Company with such a list. Client's Permitted Individuals shall stay in the vicinity of their own equipment when in the Company facility. All Visitors who do not have badges are required to sign the access log located in the NOC upon entry and exit and to show proper identification. "Tailgating" is prohibited. Tailgating is the act of following a badged individual into the Data Center without swiping the badge for access. Visitors shall not access the building roof, electrical or communications closets, the Data Center ceiling or floor, without prior consent from the Company.
Acceptable Use
The following is only a partial list of the policies and procedures outlined in the Companies Acceptable Use Policy (AUP). A complete document is available here.
  1. The following activities are forbidden on the Company network. Any of these violations will result in your Co-located server being removed and your account being cancelled with NO Refunds of any kind.
  2. Spamming -- Unsolicited, commercial mass e-mailing (known as "spamming") is a strongly disfavored practice among Internet users and service providers. It is particularly harmful not only because of its negative impact on consumer attitudes toward us, but also because it can overload our equipment and disrupt service to our clients.
  3. Copyright Violation -- Violation of copyrights held by individuals and corporations or other entities can result in civil and criminal liability for the infringer, and can involve the ISP in litigation and possible loss of reputation. Distribution and/or Transmission of Obscene or Indecent Speech or Materials -- Violation of indecency and obscenity laws can result in criminal penalties.
  4. Distribution and/or Transmission of Illegal Software, Information, or Files -- Sites that exist to transport, offer, or distributeillegal software orinformation ("warez" sites) are not allowed.
  5. Defamation -- Defamatory speech distributed over the Internet can result in civil liability for the defamer and litigation against the ISP whose facilities were used to distribute the defamatory material.
  6. Illegal/Unauthorized Access to Other Computers or Networks -- The illegal or unauthorized accessing (often known as "hacking") of computers or networks carries potential civil and criminal penalties under both federal laws and the laws of most states.
  7. Distribution of Internet Viruses, Worms, Trojan Horses and Other Destructive Activities -- Distribution of Internet viruses, worms, Trojan horses and other destructive activities, such as hacking, can result in serious civil and or criminal liability under federal and state law.
  8. Export Control Violations -- The law limits the ability of persons to export encryption software, over the Internet or otherwise, to points outside the United States.
Other Activities -- whether lawful or unlawful, that we determine to be harmful to our clients, operations or reputation, including any activities that restrict or inhibit any other user from using and enjoying the service or the Internet.
Payment and Terms
Client shall pay the Company for its Services in accordance to the Tri-lakes Internet, Inc. Service Agreement ­ Terms and Conditions. Client agrees to pay bandwidth overages at a 20% surcharge as dictated by our 95th percentile billing. Client agrees to pay for additional rack space, rack shelving, additional power strips, and any other item client may need in order to provide services to their rack/cabinet.
Confidential Information
Any computer programs, notes, sketches, drawings and reports that the Company develops for or relating to this Agreement remain the property with respect to copyright of the Company unless agreed by both parties in writing prior to development. Any Inventions that the Company develops or uses remain the exclusive property of the Company unless agreed by both parties in writing prior to conception. "Inventions" includes any and all inventions, improvements, discoveries, and technical developments that the Company conceives or reduces to practice. The Client agrees during the term of this Agreement and thereafter to hold in confidence the Company's Confidential Information. "Confidential Information" includes, but is not limited to, technical and business information relating to the Company's services, inventions, or products, research and development, employee skills and salaries, finances, customers, marketing and future business plans. The Company agrees during the term of this Agreement and thereafter to hold in confidence the Client's Confidential Information. "Confidential Information" includes, but is not limited to, technical and business information relating to the Client's services, inventions, or products, research and development, employee skills and salaries, finances, customers, marketing and future business plans.
Liability Indemnification
While Company shall make every effort to provide high-quality, prompt Services, the Company does not warrant the results of the Services performed hereunder, and there are no warranties, expressed or implied, including, but not limited to, any warranties of merchantability or fitness for particular purpose.
In no event shall the Company be liable to the Client for any direct, indirect, special or consequential damages or lost profit arising out of or related to this Agreement or the performance or breach thereof, even if the Company has been advised of the possibility thereof. The Company's liability to the Client, if any shall in no event exceed the total amount paid to the Company by the Client. In no event shall the Company be liable to the Client for any damages resulting from or related to any failure or delay of Company in the performance of the Services under this Agreement. The Company is not responsible for any loss, damage, or theft beyond its control of any equipment in its possession related to the performance of services outlined in the Agreement.
Survival of Obligations
The restrictions and obligations of this Agreement shall survive any expiration, termination, or cancellation of this Agreement, and shall continue to bind Client, and Client's successors, personal representatives, heirs and assigns.
Attorneys' Fees and Costs
If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary expenses, in addition to any other relief to which that party may be entitled. This provision is applicable to the entire Agreement.
Compliance With Laws
The parties agree that they will comply with all applicable laws and regulations of government bodies or agencies in their respective performance of their obligations under this Agreement.
Governing Law and Construction
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict of law principals. This Agreement's final form resulted from review and negotiations among the parties, and no part of this Agreement shall be construed against any party on the basis of authorship.
Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes any previous oral or written communications, representations, undertakings or agreements with respect thereto. The terms of this Agreement may be modified only in writing, signed by authorized representatives of both parties. The Agreement is non-assignable by either party.

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