SystemMetrics Terms of Service Agreement
These Terms of Service constitute the agreement (“Agreement”) between SystemMetrics Corporation (“SYSTEMMETRICS”) and the user (“Customer”) of SYSTEMMETRICS’ enhanced Network and Hosted services and any related products or services ("Service"). By activating the Service, Customer acknowledges that they have read, understood, and agree, to the terms and conditions of this Agreement, and Customer represent they are of legal age and/or an authorized by business entity to enter this Agreement and become bound by its terms.
1. Authorized Use: Customer may use Services only for authorized and lawful purposes. All Services are offered by SYSTEMMETRICS subject to availability. SYSTEMMETRICS has the right to limit the manner in which any portion of its network and facilities (“Network”) is used to protect the technical integrity of the Network. SYSTEMMETRICS is not liable or responsible for content, errors in transmission or failure to establish connections.
3. Ordering and Cancellation or Modification of Orders:
a. Customer may request Services during the Term by (i) executing a Service Order, (ii) placing an online Order, or (iii) placing a phone Order. Each Order, which will only be effective when accepted by SYSTEMMETRICS will be governed by the terms and conditions of this Agreement
b. If Customer cancels a Service Order in writing and such cancellation request is received by SYSTEMMETRICS no later than five (5) days prior to the due date, Customer must pay all SYSTEMMETRICS out of pocket expenses, including any third party charges incurred by SYSTEMMETRICS to fulfill the order prior to cancellation. If Customer cancels a Service Order after such time, Customer must pay all SYSTEMMETRICS out of pocket expenses, including any third party charges incurred by SYSTEMMETRICS to fulfill the order prior to the cancellation and all recurring charges for one (1) billing month. If Customer requests a delay of installation of Service in writing and such delay request is received by SYSTEMMETRICS no later than five (5) days prior to the due date, Customer will not incur any additional charges. If Customer requests a delay of installation after such time, Customer must pay all recurring charges for the shorter of one billing month or the period from the original due date to the new Service Date. If Customer requests changes to a Service Order that require SYSTEMMETRICS to incur additional engineering expenses, Customer will be responsible for such expenses at the SYSTEMMETRICS’ then current rates.
4. Equipment, Installation and Interconnection:
a. Other than the facilities, termination equipment or other devices provided by Customer, and unless otherwise provided elsewhere in this Agreement or any attachments hereto, SYSTEMMETRICS will pay for, provide, install, maintain, operate, control and own any equipment, cable or facilities connected to the Network (“System Equipment”), which equipment at all times remains SYSTEMMETRICS’ personal property, regardless of where located or attached. SYSTEMMETRICS may change or replace the System Equipment so long as the basic technical parameters of the Service are not altered. Customer may not rearrange or move or disconnect the System Equipment, and is responsible for any damage to or loss of System Equipment caused by Customer’s negligence or willful misconduct or that of its end users.
b. SYSTEMMETRICS has no obligation to install, maintain or repair any equipment owned or provided by Customer, except as may be specifically provided herein. If Customer’s or an end user’s equipment is incompatible with Service, Customer is responsible for any special interface equipment or facilities necessary to ensure compatibility. If, in responding to a Customer-initiated service call, SYSTEMMETRICS reasonably determines that the cause of such service call is a failure, malfunction or inadequacy of Customer-provided equipment or software, Customer will pay SYSTEMMETRICS for such service call at SYSTEMMETRICS’ then prevailing rates.
5. Access: SYSTEMMETRICS may require access to Customer’s premises to install and maintain the Service and equipment necessary for the provision of Service. Customer must provide, or cause its end users to provide, reasonable access, space, power and environmental conditioning as applicable to the particular installation, and must use, and cause its end users to use, commercially reasonable efforts to obtain any necessary consents or rights of way from third parties.
6. Installation: Upon completing installation, SYSTEMMETRICS will notify Customer that Service has been installed, tested by SYSTEMMETRICS and is available for Customer’s use (“Service Date”). Unless Customer notifies SYSTEMMETRICS by fax or in writing by the close of business on the day following the Service Date that Service is not operational, the term of the Service Order will begin and billing will commence. If Customer so notifies SYSTEMMETRICS, SYSTEMMETRICS will work to correct any compliance issues. If SYSTEMMETRICS does not find a defect in service, SYSTEMMETRICS will notify Customer, and the Service Date will remain unchanged.
7. Charges, Billing and Payment:
a. Provision of Service is subject to SYSTEMMETRICS’ approval of Customer’s credit standing. SYSTEMMETRICS may require a deposit prior to the provision of Service or as a condition to the continued provision of Service, if Customer’s credit standing or payment record so indicates.
b. Billing for Services begins on the Service Date and will not be delayed due to Customer premises equipment or Customer’s readiness to accept or use Service. SYSTEMMETRICS bills in advance for Service, except for charges based on usage. Any installation charges or other non-recurring charges, which are non-refundable, will appear on the first monthly invoice.
c. Taxes, surcharges and governmental fees are not included in SYSTEMMETRICS’ charges and will be billed and paid by Customer as separate line items. Customer will pay any and all taxes, fees, surcharges or assessments unless and until Customer provides SYSTEMMETRICS with an exemption certificate.
d. All amounts billed are due by the next billing date. Any payment or portion thereof not made when due is subject to a late charge of 1.5% per month on the unpaid amount. Customer is in material breach of this Agreement if Customer fails to pay due amounts within sixty (60) days. If a material breach by Customer occurs, SYSTEMMETRICS may terminate this Agreement or any Service Order hereunder and Customer shall pay to SYSTEMMETRICS within thirty (30) days of such termination all monthly recurring charges associated with the terminated Service(s) for the balance of the term in such Service Order(s).
e. In the event that Customer’s account is past due two (2) or more times in any twelve (12) – month period, SYSTEMMETRICS may charge Customer a deposit equal to one (1) month of the recurring Service Fees that are billable at the time such deposit is charged (the “Deposit). The Deposit shall be held by SYSTEMMETRICS and returned or credited to Customer, without interest, upon termination of this Agreement if Customer so requests in writing at that time. In the event of breach of this Agreement by Customer, SYSTEMMETRICS shall, without limiting its remedies otherwise available, have the right to apply the Deposit to the damages suffered by SYSTEMMETRICS as a result of such breach.
8. Claims and Disputes: If Customer disputes any charges billed hereunder, Customer must submit a documented claim regarding the disputed amount within forty-five (45) calendar days of receipt of the bill on which the disputed charges appear. All claims regarding disputed charges not submitted to SYSTEMMETRICS within such time are deemed waived. Withheld disputed amounts determined in favor of SYSTEMMETRICS and paid disputed amounts determined in favor of Customer will bear interest at the rate of 1.5% per month from the date payment was due or made, as applicable, to the date payment was made or refunded, as applicable.
9. Service Level Agreement, Service Outages and Credits:
a. SYSTEMMETRICS warrants the availability of its network and hosted services shall be not less than 99.99% measured over any calendar month. (“Service Level Agreement” or “SLA”) In the unlikely event of a service outage, customers will receive up to 100 percent credit if service is unavailable. On outages of an hour or less, the customer receives a three-day, pro-rated monthly colocation, hosting, and, if applicable, port and permanent virtual circuits (“PVC”) charge credit. On outages over an hour, the customer receives an additional day credit for each hour the outage persists, up to 100 percent of the customer’s monthly colocation, port, or PVC fees. Upon verification of SYSTEMMETRICS exceeding such service downtime, SYSTEMMETRICS shall credit Customer’s account the requested amount for that calendar month. Outages will be counted as network unavailability only if SYSTEMMETRICS notifies the customer of the outage or if the customer opens a trouble ticket with SYSTEMMETRICS customer support within five days of the outage. If SYSTEMMETRICS’ failure to meet the Service Level Agreement set out in this Section is attributable to (i) any actions or inactions by or on behalf of Customer; (ii) failure or malfunction of Customer applications or equipment not provided and supported by SYSTEMMETRICS; (iii) failure or malfunction of carrier transport circuits; (iv) Scheduled Maintenance or (v) any Force Majeure Event, then such remedy shall not be available to Customer.
b. SYSTEMMETRICS will issue credit allowances for service outages as set forth below upon Customer’s written request, which credit will appear on the next invoice following processing. A service outage begins when Customer reports the outage to the appropriate SYSTEMMETRICS number(s) to open a trouble ticket, and ends when the affected circuit is fully operational, as evidenced by the closing of the trouble ticket. No credits will be given for outages that are (a) caused by Customer or an end user; (b) due to failure of power or equipment provided by Customer or 3rd parties; (c) due to failure or malfunction of carrier transport circuits; (d) during any period in which SYSTEMMETRICS is not given access to the Service premises; (e) part of a planned outage for maintenance; or (f) due to a force majeure event. The total of all credits provided under the (SLA) are limited to the monthly recurring charges for the affected Internet Access or Combined Services for the affected month of service. SYSTEMMETRICS will credit Customer's account if SYSTEMMETRICS fails to meet the SLA during any given calendar month. The customer must provide information supporting the claim of a SLA violation such as PING and/or trace route output taken at the time of theoccurrence, which demonstrates the problem(s) being reported.
At Customer's request, SYSTEMMETRICS will calculate Customer's "Network Unavailability" in a calendar month. "Network Unavailability" consists of minutes that the SYSTEMMETRICS Network was not available to Customer, but will not include unavailability continuing for an hour or less which Customer fails to report to SYSTEMMETRICS within five days, or any unavailability resulting from:
(a) SYSTEMMETRICS network maintenance,
(b) Any Customer-ordered telephone company circuits,
(c) Carrier transport circuits,
(d) Customer's applications, equipment, or facilities,
(e) Acts or omissions of Customer, or any use or user of the service authorized by Customer, or
(f) Reasons of Force Majeure (as defined in the Service Agreement).
· For each cumulative hour of Network Unavailability or fraction thereof in any calendar month, Customer's account shall be credited for the pro-rated charges for the SYSTEMMETRICS Monthly Access Fee for the service with respect to which this Guarantee has not been met.
· Only customers who are provisioned on the SYSTEMMETRICS IP Backbone may make claims.
· The monthly access charge that will be the subject of the credit will be the monthly charge for the port.
· This availability guarantee does not apply in the event of fire, explosion, lightning, power surges or failures, strikes or labor disputes, water, acts of god, the elements, war, civil disobedience, acts of civil or military authorities, fuel or energy shortages, acts or omissions of suppliers or other causes beyond SYSTEMMETRICS control, whether or not similar to the foregoing.
· Customer must notify SYSTEMMETRICS immediately of a Network Outage or Service Outage either by e-mail (support@systemmetrics.com) or by phone (808 791-7070). SYSTEMMETRICS Support will investigate the reported outage and assign a Trouble Ticket number. Credit requests can be sent via an email addressed to support@systemmetrics.com or via U.S. Postal Service to SYSTEMMETRICS CORPORATION, 900 Fort Street Mall, Suite 250, Honolulu, Hawaii96813. SYSTEMMETRICS will acknowledge all requests.
· SYSTEMMETRICS will inform customer via e-mail or U.S. Postal Service within ten (10) business days whether the request is approved or denied. Credits will appear on the bill for the applicable service no later than two (2) billing cycles after credit approval.
· All claims are subject to review and verification by SYSTEMMETRICS.
· SYSTEMMETRICS will take all measures it deems appropriate to Investigate reported outages. Determination of credits due pursuant to this SLA will be made solely by SYSTEMMETRICS.
Total credits under this SLA are limited to the monthly recurring charge for the affected service or Combined Service for the month in which the service does not meet the guarantees. Credits are exclusive of any applicable taxes charged to the customer or collected by SYSTEMMETRICS.
10. Governmental Authorization, Regulatory Changes: This Agreement is subject to all applicable federal, state and local laws, rules and regulations, and each party must comply with all applicable federal, state and local laws, rules, regulations and orders in performing its obligations hereunder. To the extent any provision of this Agreement conflicts with any such applicable law, rule or regulation, such law, rule or regulation will supersede the conflicting provision. SYSTEMMETRICS may discontinue, limit or impose additional requirements to the provision of Service, upon fifteen (15) days written notice, as required to meet regulatory requirements or when such requirements have a material, adverse impact on the economic feasibility of SYSTEMMETRICS providing Service, as determined in SYSTEMMETRICS’ reasonable business judgment.
11. Indemnification: Each party (“Indemnitor”) must indemnify, defend and hold harmless the other party (“Indemnitee”) from all losses or damages arising from or related to personal injury or property damage caused by the negligence or willful misconduct of Indemnitor. Customer must indemnify, defend and hold harmless SYSTEMMETRICS from all losses or damages arising from Customer’s breach of this Agreement, violation of any third party intellectual property right, all claims of any kind by Customer’s end users, or any act or omission of Customer in connection with any Service provided hereunder.
12. Limitation of Liability: SYSTEMMETRICS is not liable for any indirect, incidental, consequential, special or punitive damages (including without limitation, lost profits or revenue) arising out of or related to the provision of Services hereunder, including any claims made by or through third parties. SYSTEMMETRICS’ liability to Customer may not exceed one month’s calculation of monthly charges for the applicable Services. SYSTEMMETRICS has no liability whatsoever for the content of information passing through its network.
13. Term: This Agreement is effective for a period stated on the executed service order(s). Thereafter, this Agreement automatically renews for successive three (3)-month terms unless terminated by either party upon no less than thirty (30) days written notice prior to the end of the renewal term. SYSTEMMETRICS reserves the right to increase pricing after the initial term. Upon expiration of this Agreement, Services not previously terminated by Customer will remain in effect for the term specified in the applicable Service Order for each affected Service, and the terms and conditions of this Agreement will continue to apply to such Services. Upon termination of this Agreement, all rights of Customer to order new Services cease and Supplier has no further obligations to furnish new Services to Customer.
14. Termination by SYSTEMMETRICS:
a. SYSTEMMETRICS may terminate this Agreement or any Service Order hereunder, or suspend Services, with prior written notice, upon (a) Customer’s breach of any provision of this Agreement or any law, rule or regulation governing the Services; (b) any insolvency, bankruptcy assignment for the benefit of creditors, appointment of trustee or receiver or similar event with respect to Customer; or (c) any governmental prohibition or required alteration of the Services. SYSTEMMETRICS may terminate or suspend Services without notice if: (a) necessary to protect SYSTEMMETRICS’ network, operations, or customers’ use thereof; (b) SYSTEMMETRICS has reasonable evidence of Customer’s fraudulent or illegal use of Services; (c) required by legal or regulatory authority; or (d) Customer’s failure to pay any amounts as provided herein.
b. Any termination or suspension of services shall not relieve Customer of any liability incurred prior to such termination or suspension, or for payment of unaffected Services. All terms and conditions of this Agreement shall continue to apply to any Services not so terminated, regardless of the termination of this Agreement. If the Service provided under any Service Order hereunder has been terminated or suspended by SYSTEMMETRICS in accordance with sections 14(a), and Customer wants to restore such Service, Customer first must pay all past due charges, a non-recurring charge, reconnection charge and a deposit equal to 2 months’ recurring charges.
15. Termination Liability: If Customer terminates this Agreement or any Service Order(s) hereunder prior to the end of the term of such Service Order(s) for any reason other than SYSTEMMETRICS’ material breach of this Agreement that remains uncured after written notice and a reasonable cure period, Customer shall pay to SYSTEMMETRICS within thirty (30) days of such termination all monthly recurring charges associated with the terminated Service(s) for the balance of the term in such Service Order(s).
16. Assignment: Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably conditioned, withheld or delayed, except that SYSTEMMETRICS may assign its rights and/or obligations hereunder (a) to any parent, affiliate or subsidiary of SYSTEMMETRICS, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c) for purposes of financing.
17. Entire Agreement: This Agreement, together with the Service Order(s), any attachments and all applicable tariffs incorporated herein by this reference, sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements, promises, representations, understandings and negotiations between the parties. In the event of a conflict, the Service Order shall prevail over this Agreement and any applicable tariff shall prevail over both. Any modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
18. Force Majeure: Neither party is liable for any failure of performance if such failure is due to any cause or causes beyond such party’s reasonable control, including without limitation, acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, labor difficulties and supplier failures. Customer’s invocation of this clause shall not relieve Customer of its obligation to pay for any Services actually received. In the event such failure continues for 60 days, the other party may terminate the affected portion of the Services.
19. Governing Law: This Agreement is governed by and subject to the laws of the State of Hawaii, excluding its principles of conflicts of law.
20. Headings: The headings herein are for convenience only and are not intended to have any substantive significance in interpreting this Agreement.
21. Relationship of Parties: The parties are independent contractors, and nothing herein creates or implies an agency relationship or a joint venture or partnership between the parties.
22. Jurisdictional Reports: Upon SYSTEMMETRICS’ request, Customer will provide SYSTEMMETRICS with reports of its estimated or actual percentage of interstate and intrastate use of SYSTEMMETRICS’ Services.
23. Litigation: If either party commences litigation under this Agreement, the prevailing party is entitled to reimbursement of its costs and attorneys’ fees from the other party.
24. Non-Exclusivity: This Agreement is non-exclusive. Nothing herein prevents either party from entering into similar arrangements with other entities.
25. Notices: Whenever written notice is required to be provided by this Agreement, SYSTEMMETRICS must provide such notice to Customer’s billing address, and Customer must provide such notice to SYSTEMMETRICS at 900 Fort Street Mall, Suite 250, HI 96813, Attn: Account Management. A notice is deemed given when delivered.
26. No Waiver: Either party’s failure to enforce any provision or term of this Agreement shall not be construed as a future or continuing waiver of such provision or term of this Agreement.
27. Public Releases, Use of Name: Neither party may issue a news release, public announcement, advertisement or other form of publicity concerning the existence of the Agreement or the Services provided hereunder without the prior written consent of the other party. Customer may not use SYSTEMMETRICS’ name, logo or service mark in marketing services to end users.
28. Representations and Warranties: Each party represents and warrants that it is fully authorized to enter into this Agreement. SYSTEMMETRICS represents and warrants to Customer that any Services provided hereunder will be performed in a professional manner by qualified and trained personnel. UNLESS SPECIFICALLY STATED HEREIN OR IN ANY SERVICE ORDER, SYSTEMMETRICS MAKES NO WARRANTIES, REPRESENTATIONS OR AGREEMENTS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
29. Severability: If any provision hereunder is declared or held invalid, illegal or unenforceable, this Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of this Agreement shall remain in full force and effect so long as the Agreement remains consistent with the parties’ original intent.
30. Survival: The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the party in whose favor they operate.
31. Definitions
Associated Entity: Each individual, company, partnership or other entity of any type which employs, contracts with, or is otherwise associated or affiliated with any of Customer’s Authorized Persons or Accompanying Persons.
Authorized Person: Each person who is included in a list of Authorized Persons given to SYSTEMMETRICS by Customer in accordance with the Policies.
Customer’s Equipment: All network and/or computer equipment (including wiring and Customer Cross-Connects between such equipment and Customer’s POD Equipment) that is located in the Licensed Space, regardless of whether such equipment is owned, leased, licensed or otherwise obtained for use by Customer, Customer’s Authorized Persons, Accompanying Persons, or Associated Entitles (but this does not include Cross-Connects or POD Equipment that is provide by SYSTEMMETRICS an that is located in Customer’s Licensed Space.
Order: Any Sales Order, Online Order or Phone Orders between Customer and SYSTEMMETRICS. A change order that amends an Order is not itself considered to be an Order under this Agreement, but is instead considered to be an amendment of an existing Order under this Agreement.
Services: All services, goods and other offerings of any kind set forth in an Order to be provided by SYSTEMMETRICS to Customer pursuant to this Agreement.
Service Order: All written service orders executed by Customer and SYSTEMMETRICS that provide that such service order are governed by, and incorporated by reference into, this Agreement (as well as any amendment to such Order reflected in a change order agreed to by the parties in accordance with the terms of the applicable change order, the Order and this Agreement).
Service Term: Each Service in an Order will have a Service Term, which for each Service will be the length of time from the agreed to effective date for the Service Term until the last day SYSTEMMETRICS is required to provide such Service pursuant to the terms and conditions set forth in this Agreement or as otherwise agreed to by the parties in the applicable Order.
Term: The term of this Agreement as determined in accordance with Section 13 of this Agreement.
