These Terms and Conditions apply to all Lecoser.com® co-location customers, dedicated server customers, encrypted mail customers, Blackberry Enterprise Server Customers, VOIP customers, Resellers of any Lecoser.com® products or services, other web hosting customers, and by extension, customers of dedicated servers or Web hosting customers in the third party, as well as all others transiting or using Lecoser.com® network or resources including but not limited to e-mail services and critical data storage. Co-Locating, contracting, enrolling, accepting or using any service or equipment provided by Lecoser.com®, constitutes acknowledgement and acceptance of these terms and conditions.
1.1. The following terms and conditions apply to the use of co-located equipment as well as services, software and equipment (hereafter referred to as services) provided by Lecoser.com® by the client (the client), a user of Lecoser.com® services, equipment and/or facility or as defined in the Data Center Service Agreement (the Data Center Service Agreement). The Data Center Service Agreement, if entered into by Lecoser.com® with the Client incorporates these Terms and Conditions therein and forms a part. The Data Center Service Agreement also includes:
1.2. Services are provided solely on the basis of, and are subject to, service, facility and equipment availability. Lecoser.com® is not required to provide universal service and will not provide a service to Any person or company who, in the opinion of Lecoser.com®, would compromise the technical, financial or operational integrity of Lecoser.com® or its facilities or network.
1.3 Lecoser.com® is authorized to act as the Client's agent in ordering access connection facilities or other services as required in connection with the provision of the Services ordered by the Client.
1.4. SERVICE AVAILABILITY GUARANTEE
Lecoser.com® is focused on providing highly complex information technology and telecommunication solutions to support mission-critical applications. Based on the nature of said applications and on the expected response from our Clients, Lecoser.com® believes that it is essential to commit to excellence in the provision of those services.
These terms and conditions establish the agreement for the levels of service to which Lecoser.com® commits visa a VI THE CLIENT, based on the level of contracted services.
The following topics are part of the present Service Level Agreement:
Quality of Service Parameters: This refers to all metrics that have been defined as tools to determine if the service complies with all agreed upon specifications, at the moment the contract was signed.
Credits and Penalties: This defines the compensation that Lecoser.com® is obligated to pay THE CLIENT in the event of failure in the compliance of the present Service Level Agreement.
Quality of Service Parameters:
1.5 Availability
This item describes the ratio of the sum of all the intervals of time when the service, or a specific component part of such service, was available, to the total amount of time within a certain time period.
The service or any of its component parts shall be considered available provided that a Service Interruption has not occurred. A Service Interruption is defined as a condition under which the service does not allow for any kind of operability. Service interruptions caused by the following reasons shall be excluded from this condition, and therefore will not be applicable to the calculation of service availability:
Programmed maintenance tasks.
Failure caused by operation errors or omissions on the part of THE CLIENT or its subcontractors.
Interruptions or failures associated with applications, hardware, or software components in general for which THE CLIENT or its subcontractors are responsible, and whose operation and support are not Lecoser.com® responsibility.
Lecoser.com® will not be responsible to THE CLIENT for direct or indirect losses, loss of profit and other damages and / or harm caused by the interruption or disconnection of services in the event of force majeure, fortuitous cases, governmental instructions and / or judicial order
The total time of non-availability will be calculated as the sum of the partial times corresponding to each incident. For each incident, the time of non-availability will correspond to the period of time elapsed between the moment the incident is recorded in the on-line live ticket claims system or by reporting the incident, toll free to (800) XXX_XXXX and the time that such incident is repaired and the provision of the service has resumed.
Lecoser.com® commits to providing the following Availability Indexes, associated with the services provided to THE CLIENT:
1.5.1 Availability of the Datacenter Infrastructure
The following concepts are grouped under this item:
Provision of alternate power for feeding the equipment, in accordance with specifications in the respective service contract.
Provision of controlled atmospheric conditions, apt for the normal functioning of the equipment. It is established that the following parameters must be maintained: environmental humidity at 45% to 50% and environmental temperature between 68°F to 76°F.
The proper functioning of all physical Security resources provided by Lecoser.com® to ensure the privacy of and inviolability of THE CLILENT´S data and applications: biometric readers, sensors and close circuit TV (CCTV), and permanent security guards.
The availability of Datacenter Infrastructure will not be inferior to 100% of the time, measured accumulatively each month.
1.5.2 Availability of the Datacenters internal data network (LAN):
This concept refers to the highly redundant, high-capacity data network that Lecoser.com® has laid out in the interior of the Data Center, and whose functionality is to provide connectivity from THE CLIENT'S equipment or from the equipment owned by Lecoser.com® to provide service to the Client, to the POP or point of entrance to the DATA CENTER of the national or international networks to which Lecoser.com® has access.
The availability of the Datacenter LAN will not be inferior to 100% of the time, measured accumulatively each month.
1.5.3 Availability of Internet Connection
Lecoser.com® Internet connectivity agreement includes service quality agreements with high availability indexes and is supported by redundant connections. In this way, Lecoser.com® assures its clients the availability of Internet connections at the technical level as well as at the commercial level.
The availability of Internet connection will not be inferior to 100% of the time, measured accumulatively each month.
1.6 Credits and Penalties
The present section defines the credits Lecoser.com® is obligated to grant THE CLIENT in the case the service rendered does not match the definitions provided by this Service Level Agreement.
1.7 Credits for Non-availability
Lecoser.com® will update the data related to real availability of the different service components on a monthly basis, as has been defined in item 1.1.
The measurements for the availability and reliability of service are based on a monthly average.
If the average for a certain month falls below the stipulated measurements, Lecoser.com® will credit the client's next monthly bill (or annual bill if client pays yearly) with the apportioned charges corresponding to one day of service charge for each hour or fraction of an hour of failure, up to a maximum of 30 calendar days.
1.8 General considerations upon granting credits for non-compliance
The credits defined in the present document are of a cumulative nature based on each service rendered within a month.
Credits will only be applied to those services (and consequently, the respective monthly fees) that present failures or anomalies in their functioning.
Lecoser.com® will credit a maximum monthly credit value for non-compliance of up to 100% of the monthly fee of the contracted products and services, even in the case that for a particular month the amount of the credit resulting from the application of the aforementioned criteria exceeds said value.
1.9 Rescission of Contract
THE CLIENT may rescind the service contract subscribed with Lecoser.com® without the latter being entitled to any indemnity, under any of the following conditions:
The sum of all credits for non-compliance has reached 100% of the total value of the contracted monthly fee for two subsequent months.
The sum of all credits for non-compliance has reached 50% of the total value of the contracted monthly fee for 4 subsequent months or any six months of the last year or fraction thereof.
2.1. The Client will make all necessary preparations required, as set out herein or in the Data Center Service Agreement, to permit installation, maintenance and operation of the Services and will provide Lecoser.com®, and its suppliers of communication services and equipment, reasonable access, of any type, to the Client's equipment, to perform any work required to provide the Services. The Client will have available, at least five days prior to the scheduled installation date, all equipment which the Client is required, as set out herein or in the Data Center Service Agreement, to provide. Impairment of Services due to unavailability or defective equipment and/or software provided by the Client will not relieve the Client of its obligation to pay for the Services.
2.2. If the Client cancels or delays a request for Service or a specific service after installation work has started, but before the Service is fully installed, the Client is liable for any and all installation charges, removal costs, site restoration costs and any applicable termination fee. Payment of these charges, costs and fees will be due on receipt of invoice.
2.3 All racks provided by Lecoser.com® are the property of Lecoser.com® and may not be moved, changed or modified without written approval of Lecoser.com® The Client may not change any locks on racks within the facility or modify, improve or enhance security of racks and cabinets without prior written approval of Lecoser.com® As a rule, for safety, security and fire issues, Lecoser.com® requires access to all racks, cabinets and enclosed spaces within Lecoser.com® facilities.
3.1. Lecoser.com® Reserves the right to update, upgrade or otherwise migrate the Client's existing Service(s), products or technologies to service(s), products or technologies which are of equivalent or better quality at no cost or additional charge to the Client, including the migration of services from third party service providers to Lecoser.com® or other third party service providers. The Client will be responsible for the costs necessary to upgrade the Client provided hardware, software and other technologies to access the updated, upgraded or migrated service. The sole recourse for the Client, if the Client is not willing to accept any such update, upgrade or migration is the right to terminate the Data Center Service Agreement by giving a 30 day prior written notice. The Client's written notice to terminate must be received by Lecoser.com® within 15 calendar days of the Client's receipt of written notice of Lecoser.com® intent to update, upgrade or migrate service. Lecoser.com® will waive the right to all Term Contract cancellation penalties for any termination invoked under the terms of this section 3.1.
3.2. Exceeding Contractual Limits: The Client's storage requirement and bandwidth utilization for fixed limit Services must remain within the parameters associated with the Client's account as set out in the Data Center Service Agreement. Lecoser.com® may monitor and enforce the parameters associated with the Client's account. The Client acknowledges that, for Internet service, enforcement may include a refusal to store incoming mail and/or not permit further download traffic on the Client's website.
3.3. Investigations: Lecoser.com® has no obligation to monitor content on the Services. Lecoser.com® has the right to monitor content and service levels electronically from time to time and to disclose any information necessary to: satisfy any law, regulation or other governmental request of competent jurisdiction (Republic of Panama) or to assist Lecoser.com® in the pursuit of any claim against the Client; operate the Services properly; or protect Lecoser.com®., its Clients and service providers. Lecoser.com® reserves the right to refuse to post, transmit, or to remove any information or materials, in whole or in part, that Lecoser.com® determines is unacceptable, undesirable or in violation of the Data Center Service Agreement or these Terms and Conditions.
4.1. In addition to Lecoser.com® right to terminate or suspend Services as provided elsewhere in these Terms and Conditions, Lecoser.com®. may at any time discontinue any or all Services, cancel a request for Services and
terminate its obligations under the Data Center Service Agreement without incurring liability upon:
4.2 A termination of the Data Center Service Agreement for any reason will not
affect or prejudice any rights or obligations which have accrued or arisen under the Data Center Service Agreement prior to the time of termination which rights and obligations will survive the termination of the Data Center Service Agreement. In particular, and without limitation to the above, the Client will remain liable to Lecoser.com® for the payment of all sums of money payable to Lecoser.com® under the Data Center Service Agreement up to the date of termination and for the performance of all the obligations that require Lecoser.com® to do or perform certain matters after the termination of the Data Center Service Agreement.
4.3. Remedies notwithstanding any other term of the Data Center Service Agreement or these Terms and Conditions, if Lecoser.com® terminates the Data Center Service Agreement as a result of a breach by the Client of any of the terms of the Data Center Service Agreement or these Terms and Conditions or if the Client terminates the Data Center Service Agreement pursuant to section 6 after it has breached the Data Center Service Agreement or these Terms and Conditions, Lecoser.com® is entitled, in addition to its right to terminate the Data Center Service Agreement, any additional remedies available to it at law for the losses it has suffered as a result of the breach.
5.4. Occasionally, unintentional abuse is misclassified as intentional.
If the Client believes its activity is misclassified, it may appeal to Lecoser.com® senior management. The Client's sole remedy and Lecoser.com® sole liability in respect of any misclassification of activity will be credit for service fees for the duration the misclassification applied to the Client's account.
5.5. Client Assets Located in Lecoser.com® Facilities: Lecoser.com® is entitled to deny the removal of any of the Client's equipment from a Lecoser.com® facility if the Client has outstanding invoices totaling more than ten dollars. If on termination the Client does not settle all outstanding invoices within 90 days Lecoser.com® shall seize and sell the delinquent Client's assets located in Lecoser.com® facility. Should the sale and divestiture of Client assets exceed all amounts owing to Lecoser.com®, Lecoser.com® will send a check in excess amount to the Clients last known mailing address within 30 days of the sale.
6.1 The rates and charges for the Services will be as set out in the
Data Center Service Agreement as amended from time to time in accordance with these Terms and Conditions. Lecoser.com® is not required to refund or credit charges for unused Services except as noted on the Data Center Service Agreement.
6.2. The Client may request, subject to any restrictions set out in the Data Center Service Agreement with respect to a contract for a specified term (a Term Contract), which term is set out in the Data Center Service Agreement, to change to a different Lecoser.com® pricing plan. The Client must submit in writing a request to change the plan to Lecoser.com®. Any such pricing plan change takes effect at the start of the next billing cycle, following Lecoser.com® confirmed receipt and acceptance of the change request.
6.3. The Client will pay all fees and other charges incurred in respect to the Client's account, including charges for any purchases made through the Services and any surcharges incurred while using any supplemental services or features of the Services for which a surcharge is applicable. Unless otherwise expressly noted, all taxes are extra. The Client will pay all applicable taxes, and any access charges relating to the use of the Services, whether such charges are billed by the service provider to Lecoser.com® or directly to the Client.
6.4. Payment Terms: Lecoser.com® will render invoices monthly. The invoice will be sent fifteen (15) days in advance of the due date. The Client may pay its Lecoser.com® account pursuant to the payment options set out in Schedule A. No interest will be charged if the invoice is paid within 15 days of the invoice due date. Any amounts remaining outstanding on or after 15 days after invoice due date are overdue and will be charged interest at the rate of 1.5% per month compounded monthly (19.56% per annum) from the date of the invoice. In addition, at Lecoser.com® discretion, Lecoser.com® may choose to suspend the client's service when an invoice is overdue 15 days. The suspension will continue until the overdue invoice is paid. Acceptance of late or partial payments will not waive any of Lecoser.com® rights to collect the full amount of charges due for the Services, plus interest.
6.5. Disputes arising from an invoice must be made by the Client in writing and received by Lecoser.com® within 60 days from the invoice date. No claim may be made by the Client in respect to an invoice after such period.
6.6. Dishonored payments of Insufficient funds: The Client will reimburse Lecoser.com® for all costs associated with collecting delinquent or dishonored payments in addition to a $50 administration fee.
6.7. Deposit Lecoser.com® will require a deposit from the Client to establish or maintain the Services. The said deposit cannot be used by the Client to pay any invoice or delay any payment. Lecoser.com® may require an increase to the deposit at any time to reflect estimated monthly charges based on actual usage or Lecoser.com® assessment of the Client's ability to pay. Lecoser.com® may, without notice, apply any deposit towards payment of charges due. Ninety days following any termination, any remaining deposit or other credit balance in excess of $10 will be returned by check to the Client's last known mailing address.
6.8. Suspension or Cancellation for Non-Payment: Lecoser.com® may suspend or cancel a Client's Services if the Client has any invoice outstanding 30 days or more. Any Client having any account that is unpaid for three consecutive billing cycles (as described below) may, at Lecoser.com® option, have its files archived or purged and it's services cancelled or suspended. While suspended, the Client's account will continue to accrue monthly or periodic charges for Services subject to the Data Service Agreement. Upon payment of all accrued charges a service reconnection charge equal to the then current set-up fee will be assessed to remove an account from suspension.
6.9. Billing Cycle The Lecoser.com® billing cycle begins on the first day of each month unless noted otherwise in the Data Center Service Agreement. Charges for a new account are prorated based on the number of days remaining after the commencement of Services in the initial month of service at a daily rate equal to the monthly charge divided by 30 days. Charges in a month in which an account is terminated are not pro-rated and will not be refunded except as noted in the Data Center Service Agreement. All Bandwidth Services will be billed in arrears at the end of the monthly billing cycle.
6.10. All installation and equipment charges will be billed at the time that Service is committed for. Installation and equipment charges, registration and set-up fees are non-refundable.
6.11. The Client is entitled upon request to receive copies of its historical account or billing information for the previous 12 billing cycles subject to payment of an administration fee.
6.12. With respect to Services to be billed on a periodic basis, the initial term of the Data Center Service Agreement will commence on the date the first of those Services commences and will automatically renew for successive periods equal in length to the initial term set out in the Data Center Service Agreement until terminated as set forth below. The Client may terminate the Data Center Service Agreement and the use of all or any of the Services at the end of the then current term by providing at least 30 days notice prior to the end of that term. The following cancellation charges, where applicable, will be due and payable immediately:
(a) for month-to-month service, the monthly charge for the month in which that Service will terminate;
(b) for service under a Term Contract, charges for the remainder of the term or in the case of a renewal period until contract termination.
7.1. Authority Lecoser.com® will only recognize and act on the instructions of those individuals whose names appear on the Data Center Service Agreement or any list of contact names submitted by the Client in writing, as the person(s) authorized to accept, modify or terminate the Services or the Data Center Service Agreement. Only those individuals identified to Lecoser.com® by the Client and whose photo identification is on file with Lecoser.com® may access the Clients equipment located in Lecoser.com® facilities.
7.2. Software License Agreement: The Client will comply with the terms of the Software License Agreement attached to the Data Center Service Agreement and any software license accompanying software provided by Lecoser.com® In the event another software license accompanies specific software provided by Lecoser.com®, that license shall apply to the specific software it accompanies.
7.3. No Proprietary Right: The Client posses no proprietary right or interest in, or any right to use of, any specific type of facility, service, equipment, address, number, process or code associated with any Service except as expressed in the Data Service Agreement. All equipment and software provided by Lecoser.com® is the sole property of Lecoser.com®. The Client's right is limited to the use the equipment and/or software as provided for in the Data Center Service Agreement and/or the Software Licenses.
7.4. Client Information: For purposes of identification, billing and marketing, the Client will provide Lecoser.com®, from time to time, with accurate, complete, and updated information including Client's legal name, address, telephone number(s), email addresses and applicable payment data. The Client will notify Lecoser.com® within 30 days of any such changes to this information.
7.5. Web Site Content: The Client is solely responsible for all content available on or through the Client's web site(s) and will protect Lecoser.com® against any losses it suffers (including legal fees) as a result of the content of the Client's site(s) or those belonging to its Clients.
7.6. Domain Name: The Client is responsible for ensuring that the use of any domain name selected by it, does not conflict with the rights of any other person. Lecoser.com® cannot guarantee, set aside or in any other way reserve domain names on behalf of the Client. Lecoser.com® will use reasonable commercial efforts to obtain a requested domain name but will not be held responsible for nor be liable to the Client for an inability to secure or otherwise obtain a requested domain name. Lecoser.com® will not be liable to the Client or any other person arising from actual or threatened termination of the right to use a domain name.
7.7. Internet Protocol Address: The Client acknowledges that Lecoser.com® is the owner of the Internet Protocol (IP) static address(s) assigned to a domain name(s) and web site(s) hosted in Lecoser.com® facilities, which Lecoser.com® will supply. Lecoser.com® reserves the right to change the addresses at any time upon 30 days notice to the Client. Upon termination, all IP addresses assigned by Lecoser.com® to the Client, will revert to Lecoser.com®. The Client will have no further right to such address(s). The Client will co-operate with Lecoser.com® in effecting any such change or transfer of IP addresses.
7.8 Compliance with Law: The Client will use the Services only as permitted by applicable laws, regulations, rules, decisions and orders of applicable governmental and regulatory authorities. The Client will comply with the rules and regulations applicable to any network that is accessed through the Services. The Client will not use the Services to carry out any activity or solicit performance of any activity that is prohibited by law or regulation or facilitates or immediately threatens the violation of any law (including intellectual property law or regulation) or violates the Data Service Agreement, or these Terms and Conditions, which is subject to change from time to time, as posted on the Lecoser.com® website. Including but not limited to the foregoing, the Client will not:
7.9. Liability for Improper Use Violation of the terms of Section 7.8 by the Client may result in any of the following:
7.11. Indemnification The Client will indemnify and hold Lecoser.com® harmless from and against all loss, liability or damages of any type and expense, including but not limited to reasonable legal fees, arising from any and all claims by any third party, including users and service providers, in connection with the improper use of the Services (and related equipment) by the Client or the Client's failure to comply with its obligations under the Data Center Service Agreement. This indemnity will survive termination of the Data Service Agreement.
7.12. System Requirements: The Client will be responsible for maintaining all its hardware, software and other Client-supplied property in proper working order and at a level sufficient to meet the Lecoser.com® system requirements as notified to the Client by Lecoser.com® from time to time. The Client acknowledges that the Lecoser.com® system requirements will change over time and such changes may require the Client to purchase additional equipment, software or other property or services. All of the Client's equipment entering Lecoser.com® facilities must be inspected and accepted by Lecoser.com® before it may be connected to Lecoser.com® power, IP or telecommunications carriers.
7.13. Equipment: Lecoser.com® is acting only as a reseller or licensor of any hardware, software and equipment (collectively, the Equipment) offered in the Data Service Agreement that was manufactured by a third party. Lecoser.com® shall not be responsible for any changes in Services(s) that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Equipment sold, licensed or provided by Lecoser.com® to the Client or purchased directly by the Client used in connection with the Service(s) will not be deemed a breach of Lecoser.com® obligations under this Agreement. Any rights or remedies the Client may have regarding the ownership, licensing, performance or compliance of Equipment are limited to those rights extended to the Client by the manufacturer of such Equipment. The Client is entitled to use any Equipment supplied by Lecoser.com® only in connection with the permitted use of the Services. The Client shall ensure the protection and keep confidential all intellectual property provided to the Client by Lecoser.com® either directly or on-line (downloaded). The Client either directly or through any Equipment shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. The Client shall not resell, transfer, export or re-export any Equipment, or any technical data derived there from, in violation of any applicable laws of the Republic of Panama or foreign law.
In the event Lecoser.com® provides Equipment to the Client free of charge, upon the termination of this Data Center Service Agreement for any reason, the Client may: (a) purchase the Equipment at the rate of 75% of its original retail value; or (b) return, at the Client's cost, the Equipment to Lecoser.com® in the same condition as furnished to you, excepting normal wear and tear.
If the Client does not purchase or return the Equipment within ten (10) business days of the termination of the Data Center Service Agreement, Lecoser.com® will invoice the Client, and the Client agrees to pay for the Equipment at the rate of 75% of its original retail value.
8.1 For the purpose of restoring the Services, in the event of an interruption, the Client acknowledges that Lecoser.com® may require access, of any type, including but not limited to electronic or physical access, to the Client's equipment. The Client will provide such access immediately upon Lecoser.com® request, at no charge to Lecoser.com®. If the Client fails to do so, the Client will have no remedy or entitlement to credit for any continuing or subsequent failure of Lecoser.com® to meet any service guarantee.
8.2. Lecoser.com® may, upon reasonable notice (based on the totality of the circumstances, but not less than 24 hours), make such inspections, tests, installations, repairs and adjustments as it deems necessary for the operation of Lecoser.com® network, the Client's or Lecoser.com® network equipment or connecting facilities and for verifying the Client's compliance with this Data Center Service Agreement or these terms and conditions. The Client will make available to Lecoser.com®, without charge, such facilities, equipment and records (including providing access, as defined in section 8.1, to the Client's premises and equipment.) as are reasonably necessary in the circumstances.
8.3 Identification Required: Upon request, Client's agents or employees will show valid identification prior to entering the Lecoser.com® premises.
9.1.The Data Center Service Agreement is binding upon and will enure to the benefit of the parties and their respective successors, administrators, personal representatives and permitted assigns.
9.2. Neither the Data Center Service Agreement nor any right there under may be assigned, transferred or otherwise disposed of in whole or in part by the Client without the prior written consent of Lecoser.com®, which consent will not be unreasonably withheld. Without restricting the generality of the foregoing, the Client will be deemed to have assigned, transferred or disposed of the Data Center Service Agreement upon a change in the direct or indirect control of the Client, including a sale of all or a substantial part of its assets. In such a case, the Client must notify Lecoser.com® and provide it with the relevant new Client information including, but not limited to, the name and address of the new controlling party.
9.3. Lecoser.com® is entitled at any time without notice to the Client
10.1. The Client warrants that all information transmitted by it to Lecoser.com® is true and correct. The Client warrants that it has been authorized to transmit such information to Lecoser.com® and that Lecoser.com® is authorized to receive and hold such information. Lecoser.com® warrants that the information will only be used for the purposes of providing the Services, managing the Client file and administration of functions such as, but not limited to, credit assessment, billing and collection. Furthermore, the information contained in the Lecoser.com® Client file is restricted to the internal use of Lecoser.com® employees except where expressly noted in the Data Center Service Agreement or as required to ensure the efficient supply of services to the Client, to interact with a service provider interconnecting with Lecoser.com® facilities on behalf of the Client, to support accounts receivable collection agents employed by Lecoser.com® or as required by any legal representative duly authorized to obtain access to any such confidential information.
10.2. Lecoser.com® and the Client may disclose to each other confidential information, including but not limited to, pricing, invoices, billing or marketing materials either directly, by verbal or written communication, or indirectly, by permitting employees of one party to observe various operations or processes conducted by the other. Any information, including invoicing information that reveals or otherwise permits the calculation of Lecoser.com® pricing is confidential. The sharing of confidential information is made on the basis of the confidential relationship established between the parties and each party agrees to take reasonable precautions to protect from disclosure confidential information of the other party which it has received.
10.3. This Section 10 will survive termination of this Agreement.
11.1. It is hereby understood and agreed upon that the amounts payable to Lecoser.com®, under the Data Center Service Agreement are based upon the value of the Services, products and Equipment, as well as the scope of liability set forth in the Data Center Service Agreement and these Terms and Conditions. The services, products and equipment are unrelated to the value of the property or business of the Client or third parties, including but not limited to Clients of the Client.
11.2.Except as specifically provided for in the Data Center Service Agreement, Lecoser.com® makes no express or implied warranty or condition, whether of merchantability, fitness for a particular purpose, or otherwise, with respect to any service, product or equipment provided to the Client by Lecoser.com®. Neither Lecoser.com® nor any of its underlying service providers, information providers, licensors, employees, or agents warrants that all services will be uninterrupted or error free; nor does Lecoser.com® or any of its underlying service providers, information providers, licensors, employees, or agents make any warranty as to the results to be obtained from use of their services, products or equipment. EXCEPT AS SPECIFICALLY PROVIDED IN THE DATA CENTER SERVICE AGREEMENT, ALL SERVICES, PRODUCTS AND EQUIPMENT ARE DISTRIBUTED PURSUANT TO THEDATA CENTER SERVICE AGREEMENT ON AN AS IS, AS AVAILABLE BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHETHER PURSUANT TO STATUTE OR OTHERWISE. THIS CLAUSE MAY ONLY BE AMENDED, CHANGED OR REPLACED BASED ON A SEPARATELY EXECUTED SERVICE LEVEL AGREEMENT. THE SERVICE LEVEL AGREEMENT MUST SPECIFICALLY OUTLINE THE SERVICE(S) REQUIRED OF LECOSER.COM® AND CLIENT'S REQUIRED COMPENSATION, SHOULD LECOSER.COM® FAIL TO MEET IT'S CONTRACTED RESPONSIBILITIES.
11.3. LECOSER.COM® IS NOT RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES, INCLUDING THOSE WHOM LECOSER.COM® MAY CONTRACT ON THE CLIENT'S BEHALF OR PROVIDE PORTIONS OF THE SERVICES.
11.4. IF LECOSER.COM® SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO FAILURE OF SERVICES, PRODUCTS OR EQUIPMENT IN ANY RESPECT UNDER ANY LEGAL PRINCIPLE OR DOCTRINE OF ANY KIND, IT WILL NOT BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES AND IN ANY EVENT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE DATA CENTER SERVICE AGREEMENT, ITS LIABILITY FOR DIRECT AND ANY OTHER DAMAGES WILL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES FOR THE SERVICES, PRODUCTS AND/OR EQUIPMENT IN QUESTION FOR THE BILLING MONTH DURING WHICH THE FAILURE OCCURRED.
FOR AVOIDANCE OF DOUBT, LECOSER.COM® WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF ANTICIPATED OR ACTUAL REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED COST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE DATA CENTER SERVICE AGREEMENT OR THE PROVISION OF SERVICES, EVEN IF LECOSER.COM® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
11.5. The provisions of this section 11 will apply if loss, damage or injury, irrespective of cause or origin, results, directly or indirectly, to person or property from performance or nonperformance of obligations imposed on Lecoser.com®, its employees or agents by the Data Center Service Agreement or from the negligence, active or otherwise, of Lecoser.com®, its agents employees, directors, officer, affiliates and subsidiaries.
11.6. Lecoser.com® will have no liability whatsoever to the Client or any third person arising from the failure, for any reason, to activate any Services on the activation date requested by the Client.
11.7. Lecoser.com® will not be liable for and Lecoser.com® will be indemnified and held harmless by the Client against, all claims, demands, losses or liabilities, including but not limited to, fees and expenses of counsel, arising out of any of the following:
11.8. Without in any way impacting on the construction or interpretation of any other term of the Data Center Service Agreement, the existence of any claim, demand, loss or liability described in section 10.7 will be deemed to be a material violation of the Data Center Service Agreement.
11.9. THE CLIENT ASSUMES TOTAL RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICE AND AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Lecoser.com® COMMUNICATIONS LTD., ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVANTS, SUBSIDIARIES, AFFILIATES AND THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE FROM ANY LOSS, DAMAGE, OR COST (INCLUDING LAWYERS FEES)
RESULTING FROM THE VIOLATION OF THESE TERMS AND CONDITIONS.
11.10. Section 10 will apply in the event of a breach of these Terms and Conditions or a breach of the Data Center Service Agreement, by either Lecoser.com® or the Client. Section 10 will survive termination of the Data Center Service Agreement and/or these Terms and Conditions.
12.1. Any notice, request, demand, consent or other communication provided or permitted under the Data Center Service Agreement will be in writing and will be deemed to be sufficiently given if personally delivered, sent by fax, sent by e-mail or sent by Private Courier (DHL, FEDEX, ETC.) to the party for which it is intended at its address set forth in the Data Center Service Agreement. Any notice so given will be deemed to have been received on the date on which it was delivered in person, sent by fax (with transmission confirmation), or sent electronically, or Private Courier (DHL, FEDEX, ETC.)
13.1. These Terms and Conditions and the Data Center Service Agreement with attachments thereto, including the rates, charges or other fees associated with the Services are subject to change from time to time, except as noted in specific Term Contracts, as provided for in writing by Lecoser.com®. Upon notification of any such change, the Client becomes liable for all new rates, charges or fees and is deemed to have accepted all changes, unless the Client terminates the DATA SERVICE AGREEMENT by notice to Lecoser.com® sent within 15 days from the Client's receipt of such notification. If the change in these Terms and Conditions, rates or charges is ordered or necessitated by any regulatory authority, these changes are binding on the parties and do not give rise to the opting out provision of this section. Further, any adverse affect by any regulatory authority on Third Party Providers will not give rise to the opting out provision of this section. If the Client chooses to terminate, the termination Clause of Section 6 will not apply.
14.1. The Data Center Service Agreement, including these Terms and Conditions and any attachments to the Data Center Service Agreement and these Terms and Conditions, any modifications made by Lecoser.com® as permitted hereunder and any enrolment and other order forms executed by Lecoser.com® and the Client in connection with the Client Agreement constitute the entire agreement between the parties pertaining to the subject matter of the Data Center Service Agreement. There are no warranties, conditions, or representations (including any that may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to in the Data Center Service Agreement. No reliance is placed on any warranty, representation, opinion, advice or assertion of fact made either prior to, contemporaneous with, or after entering into the Data Center Service Agreement, or any amendment or supplement thereto, by any party to the Data Center Service Agreement or its directors, officers, employees or agents, to any other party to the Data Center Service Agreement or its directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of the Data Center Service Agreement, and none of the parties to the Data Center Service Agreement have been induced to enter into the Data Service Agreement or any amendment or supplement by reason of any such warranty, representation, opinion, advice or assertion of fact. Accordingly, there will be no liability, either in tort or in contract, assessed in relation to any such warranty, representation, opinion, advice or assertion of fact, except to the extent contemplated above. ONLY THESE TERMS AND CONDITIONS AND THE DATA CENTER SERVICE AGREEMENT WILL APPLY REGARDLESS OF THE TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER SUBMITTED BY THE CLIENT, AND THE TERMS OF THE CLIENT'S PURCHASE ORDER WILL BE VOID.
15.1. No party will be liable under the Data Center Service Agreement for failure to carry out its provisions to the extent that such failure is caused by sabotage, vandalism, accidents, fire, flood, acts of God, civil commotion, riots, strikes, lock-outs, insurrections, wars or any other civil or public disturbances, acts or restraints of any governmental authority, civil or military, including the orders and judgments of courts, or priorities granted at the request or for the benefit, directly or indirectly, of any governmental authority or any other cause beyond its control and which was not reasonably foreseeable as at the date of the Data Center Service Agreement (Force Majeure). Lecoser.com® or the Client, as the case may be, will promptly inform the other of the existence of any condition of Force Majeure and will consult together to attempt to find a mutually acceptable solution to any impediments to the fulfillment of their respective obligations under the Data Service Agreement.
15.2. If a condition of Force Majeure prevents a party from carrying out the material provisions of the Data Center Service Agreement and the condition continues for a period longer than 60 days, the other party may terminate the Data Center Service Agreement by written notice specifying the default and giving a termination date that is no less than 30 days after the date of notice.
16.1. Lecoser.com® and the Client confirm that they wish to have the Data Service Agreement, these Terms and Conditions and any attachments written in English only.
17.1. Time is of the essence of the Data Center Service Agreement. Words used in the singular number only will include the plural and vice versa, and words used in one gender will include the other genders.
18.1. These Terms and Conditions and the Data Center Service Agreement shall be construed and enforced in accordance with and governed by the laws of the Republic of Panama. The Client agrees that the jurisdiction for resolution of any dispute arising under these Terms and Conditions shall be the Republic of Panama and the Client hereby consents and submits to the jurisdiction of the courts of the Republic of Panama.
18.2 The Client represents and warrants that it has full power and authority to execute and deliver the Data Center Service Agreement and to perform its obligations there under. If an individual, the Client warrants that he or she (a) is not a minor, and (b) will use the Services in the course of carrying on a business.
18.3. Lecoser.com® decision not to enforce a particular provision of this Agreement at any time does not waive its right to enforce that provision at some other time unless expressly waived in writing by Lecoser.com®
18.4. If any provision of the Data Center Service Agreement or attachments or these Terms and Conditions is determined by a final non-appealable order of a court of competent jurisdiction to be invalid, Lecoser.com® will be entitled, within 60 days after such determination to terminate the Data Center Service Agreement on notice to the Client. If no such notice is given by Lecoser.com®, the invalid provision will be deemed to be void and the remaining provisions of the Data Center Service Agreement will remain in full force.
PAYMENT OPTIONS
Payment Methods
(1) Credit Card
The Client may select the pre-authorized credit card payment method. The Client may use the following credit cards: VISA, Master Card and American Express. The Client will not dispute with the credit card company any amounts due to it in connection with the Services provided hereunder without first bringing the matter to the attention of Lecoser.com® If the Client's credit card has expired, Lecoser.com® may either request updated credit card information, bill directly with an administration fee of $50.00 to cover a portion of the administrative costs involved or assume that the card has been renewed and adjust all applicable credit card information accordingly. (This payment method is not available for Dedicated Server Hosting services.)
(2) Wire Transfer (SWIFT)
The Client may select the wire transfer payment method. Payments for monthly fees and all other charges will be processed by Lecoser.com® on the first calendar day of the month. Please contact our offices for our SWIFT wire transfer instructions.
SOFTWARE LICENCE AGREEMENT
This is a legal agreement (this Agreement) between the Client (the Client) and Lecoser.com® (Lecoser.com®).
1. Grant
Lecoser.com® hereby grants to the Client a non-exclusive license (the License) to use software provided by Lecoser.com® in connection with the services to be provided to the Client by Lecoser.com® (the Services)
All such software and related documentation (collectively, the Software) is provided to the Client on the following terms:
The Client may:
The Client may not:
2. Software
The License does not grant to the Client any right to any enhancement or update.
3. Title
Title, ownership rights, and intellectual property rights in and to the Software will remain in Lecoser.com® and/or its suppliers. The Software is protected by copyright law and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software are the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives the Client no rights to such content.
4. Limited Warranty
Lecoser.com® warrants that for a period of 90 days from the date of acquisition of the License by the Client, the Software, if operated as directed, will substantially achieve the functionality described in the documentation accompanying it. Lecoser.com® does not warrant, however, that the Client's use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations, and the Client must determine that the Software is free from defects in material and workmanship and will so remain for 90 days from the date the Client acquired the License to the Software. If the Client has paid a specific license fee for the Software, Lecoser.com® sole liability for any breach of this warranty will be in the sole discretion of Lecoser.com®: