DNS Made Easy / Tiggee Terms and Conditions

DNS Made Easy / Tiggee Terms and Conditions

Part I:

DNS MADE EASY (“TIGGEE”) TERMS AND CONDITIONS
(TIGGEE/Enterprise Products)

Intended Use of the Service. Customer agrees to use the Services only for lawful purposes. Unauthorized transmission or storage of any information, data, or material in violation of any Federal or State law or regulation, including without limitation illicit transmission or use of copyrighted material, obscene material, material protected by trade secrets or materials designed to harass or interfere with others, is strictly prohibited. Customer shall at all times strictly comply with Tiiggee’s Acceptable Use Policy located on Host Made Easy's website at: www.hostmadeeasy.com. Tiggee reserves the right to amend its Acceptable Use Policy in its sole discretion from time to time. Customer shall strictly comply with the rules of any other network Customer accesses through the use of the Services. Tiggee undertakes no obligation to monitor the content of communications sent, posted, linked or otherwise conveyed by Customer but reserves the right to do so including, but not limited to, where directed to do so by law enforcement authorities. For the purposes of this Agreement, to the extent that an employee or third party uses the Services provided hereunder, such employee, agent or third party use shall be deemed Customer's use for the purposes of this Agreement.

IP Addresses. Internet Protocol numbers ("IP numbers") provided or assigned by Tiggee in connection with the Services at all times remain the property of Tiggee and are not portable, and Customer shall have no rights with respect thereto. Assignment of IP Numbers subject to ICANN guidelines and is not guaranteed, and Tiggee may modify such assignments at any time in its sole discretion. Customer shall provide an accurate host count at the time of the contract signing; such count shall be subject to verification by Tiggee America.

Invoice/Payment.

Tiggee may commence billing as of the Service activation date. Equipment and any one-time charges associated with installation of the Service, if any, will be included in the first months' invoice. Charges for fixed services or components, such as colocation, access costs and minimum commitments ("Fixed Charges"), shall be billed in advance each month. Payment is due within thirty (30) days of the invoice date. Charges for usage-based services ("Variable Charges") will be calculated in accordance with Section 4 below and billed in arrears. Payment for Variable Charges is due within ten (10) days of the date of the invoice.

Overdue accounts are subject to a finance charge of the lesser of 1.5 percent per month or the maximum allowed by law. Accounts shall be deemed in default if not timely paid. If Customer's payment is returned to Tiggee unpaid due to insufficient funds, Customer shall be subject to a returned check charge of $35. If Customer fails to pay invoices in full when due, Tiggee may terminate or suspend Services to Customer without any penalty or liability to Tiggee. Such termination or suspension shall not relieve Customer from its obligation to make payment under this Agreement. In the event that Tiggee suspends Services to Customer, an account reinstatement fee of $99 shall be required to reactivate each of such Services. Claims of fraudulent use of the Services or bad debt shall not operate to relieve Customer of its obligation to pay any charges when due

Customer hereby grants to Tiggee a lien on any Customer equipment located in Tiggee's facilities. In the event of termination for non-payment or other default, Tiggee may hold such equipment until Customer satisfies all outstanding balances due Tiggee. In the event that Customer fails to pay all amounts due within sixty (60) days of the effective date of termination, then Tiggee may retain or sell, in its sole discretion, any such equipment without liability to Customer.

Usage-based Dedicated Internet Access Burstable/Usage-based Billing

Usage/Burstable-based Billing. The minimum interface rate for burstable billing option is DS-3. For burstable billing, the Customer contracts for a selected Committed Access Rate and Tiggee provides Customer the capability to burst up to the physical capacity of the port. The amount of Burstable Bandwidth is derived from the 95th percentile calculation described below. The 95th percentile calculation is based on industry standard 'Base 10' method where 1 Kbyte equals 1,000 bits. The Committed Access Rate bandwidth will be invoiced as Fixed Charges in accordance with Section 3 above. The Burstable Bandwidth Charge described below will be invoiced to the Customer as a Variable Charge in accordance with Section 3 above and is in addition to the Flat Rate Billing for the selected Committed Access Rate. All billing options using an un-metered connection are capped at the amount of bandwidth per second.

"Burstable Bandwidth" calculation. Tiggee polls the routers for Customer ingress and egress usage at five-minute intervals. The higher usage number for each poll is stack ranked. The top 5% of the usage number is discarded. The next highest measurement is the Burstable Bandwidth.

The "Burstable Bandwidth Charge" = (Burstable Bandwidth - Committed Access Rate) * (Burstable Bandwidth price per Megabit)

Term/Commitments/Rates.

Customer agrees to continue to purchase the Services for the complete term identified on the Customer Order Form ("Term"). Unless otherwise stated on the Order Form, the Term for Services shall commence on the service activiation date. This is the date that Tiggee notifies Customer in writing that the Service is operational. Customer has seventy-two (72) hours from its receipt of Tiggee 's notice to advise Tiggee, in writing, that the Service is not performing in accordance with Tiggee 's specifications. Such notice shall describe with specificity the deficiencies in the Service. If Customer fails to notify Tiggee within the timeframe referenced above, then the Service will be deemed accepted, and billing will commence, as of the date of Tiggee 's notice. For the avoidance doubt, Tiggee may commence billing for the Service even if the Service is not operational if the delay is solely due to Customer's failure to provide information, access, equipment or other services necessary to operate the Service.

This Agreement shall commence upon Tiggee’s execution of this Agreement and shall continue in full force and effect until the expiration or other termination of the last Order issued hereunder. Tiggee reserves the right to perform a credit check on or seek other reasonable assurances of payment from Customer, prior to the final approval of the Agreement or initiation of Services.

Tiggee reserves the right to pass through to Customer any additional fees or charges created by a change in regulation, new tax or similar surcharge or a change in the telephone or telecommunications fees with respect to services that Tiggee purchases from a third party to provide the Services. Such change in rates shall not give rise to any right of Customer termination.

Tiggee may, in its sole discretion, change rates and fees by notifying Customer sixty (60) calendar days in advance of the effective date, provided, however, that Customer may terminate this Agreement by providing Tiggee written notice of termination during the sixty (60) calendar days following the date of such notice. Such cancellation shall be without penalty only if it explicitly references the rate change.

Following completion of the Term, this Agreement will automatically renew for an additional 12 month period until such time as either Party provides advance written notice to the other of its intent to terminate the Agreement. Such notice shall be provided at least sixty (60) calendar days prior to the annual Agreement termination date.

If Customer cancels the Services before the end of the Term, such cancellation shall be deemed a breach of this Agreement for the purposes of Section 11 below. It is expressly understood and agreed by Customer that the charges for the Services purchased by Customer hereunder are based on the Customer's term commitment. The early termination fees set forth in Section 11 represent the Parties' good faith estimate of Tiggee’s damages in the event Customer terminates this Agreement prior to the end of the Term.

Service Level Agreements. Tiggee shall provide the Services in compliance with the Service Level Agreements ("SLAs") posted on Tiggee’s website (which you hereby acknowledge you have read and will in the future read), and Customer shall, upon written request, be entitled to service credits as set forth in such SLAs if Tiggee fails to provide Services in compliance with such SLAs.

Warranties and Liability.

EXCEPT AS MAY BE SET FORTH IN THE SLAS, CUSTOMER, EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK. TIGGEE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE GOODS, SERVICES OR SOFTWARE IT PROVIDES. TIGGEE ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

For those Services for which Tiggee offers a system of credits or rebates for service interruptions, regardless of cause, such credits or rebates shall be Customer's sole remedy therefore.

For direct, proven damages arising out of its performance or failure to perform hereunder, Tiggee's liability shall be limited to an amount equivalent to the charges actually paid by Customer under this Agreement for the Services during the period which such damages occur.

Notwithstanding the foregoing, neither Tiggee nor its affiliates, officers, directors, employees or agents shall be liable to Customer or to any third party for any indirect, consequential, incidental, exemplary, or punitive losses or damages, including, without limitation, lost profits or data, regardless of the cause thereof, even if Tiggee is advised of the possibility of such loss.

Indemnification. Customer will defend, indemnify and hold Tiggee harmless from and against any and all liabilities, causes of action, lawsuits, penalties, claims or demands ("Claims") brought by third parties and resulting from or arising out of Customer's use of the Services.

Third Party Vendors. To the extent that Tiggee is acting as a reseller with respect to hardware and software offered under this Agreement ("Equipment"), Tiggee will provide Customer with the same warranties and support services that Tiggee receives from its vendors. Malfunctioning equipment will be repaired or replaced, at Tiggee’s option.

10.

Notice. Notice to Tiggee shall be deemed given to Tiggee upon actual delivery when delivered to Tiggee at PO Box 2044, Centreville VA, 20122, United States, or such other address as may be select by Tiggee from time to time.

11.

Termination/Breach.

Tiggee may suspend Services or, in its sole discretion, terminate this Agreement immediately without liability to Customer if: (i) Customer is in default of its payment obligations hereunder and has failed to remedy such default within seven (7) days of the date of Tiggee's written notice thereof; or (ii) Customer is in violation of Tiggee’s Acceptable Use Policy and fails to remedy its non-compliance within seventy-two (72) hours of Tiggee's written notice thereof. No such termination or suspension shall relieve Customer of its obligations to make any payments when due.

In addition to Tiggee's rights set forth in Section 11(a), either Party may terminate this Agreement in the event that the other Party has committed a material breach of its obligations under this Agreement and has failed to remedy such breach within thirty (30) days of its receipt of the non-breaching Party's written notice thereof.

In the event that (i) Tiggee terminates this Agreement for cause as set forth in this Section 11 or elsewhere in the Agreement, or (ii) Customer terminates this Agreement prior to the end of the Term without cause, then Customer shall be liable to pay to Tiggee the following early termination fees:


i)	an amount equal to two-thirds (2/3) of the aggregated monthly payments which Customer would have paid over the remainder of the Term, and,
ii)	all fees to third-party telecommunications providers that Tiggee committed to pay in connection with Customer's commitment under this Agreement for the duration of the Agreement.

12.

Force Majeure. Tiggee shall not be liable if its failure to perform under the Agreement is caused by damages, losses or other factors beyond Tiggee's control, including without limitation, failure or impairment of essential facilities, governmental action, war, civil disturbance, weather, general material shortages, labor strikes or walkouts, acts of God or other similar events.

13.

No Waiver. Tiggee's failure to enforce any right hereunder shall not be deemed a waiver of such right or any other right hereunder.

14.

Assignment. Customer may not assign its rights or obligations under this Agreement without the express written consent of Tiggee. Tiggee may assign or notate all or part of its rights, benefits (including, without limitation, the benefits of this clause), interest, obligations and liabilities in connection with the Agreement to any party.

15.

Modification. Except as may be stated otherwise herein, this Agreement may only be modified by an instrument in writing duly executed by authorized representatives of each of the Parties, making specific reference to this Agreement. No custom, industry standard or course of dealing between the Parties shall in any way serve to vary or alter the terms and conditions of this Agreement.

16.

Relationship of the Parties/No Joint Venture. The Parties declare and agree that each Party is engaged in a business that is independent from that of the other party and that nothing contained herein shall be construed to imply a partnership, joint venture, principal and agent or employer and employee relationship between the Parties hereto.

17.

Governing Law/Choice of Venue. This Agreement and the rights of the Parties hereunder shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia, excluding its laws relating to conflicts of laws. The Parties agree that any appropriate state or district court located in Fairfax County, VA, shall have exclusive jurisdiction over any case or controversy arising hereunder and shall be the proper forum in which to adjudicate such case or controversy.

18.

Survival. The obligations of this Agreement that by their nature should survive the expiration or termination, including but not limited to Sections 7, 8, 10 and 11 of this Agreement, shall survive.

19.

Severability. If any portion of this Agreement shall be deemed invalid or unenforceable, such invalidity or non-enforceability shall not invalidate or render unenforceable any other portion of this Agreement.

20.

No Third Party Beneficiaries. No provision of this Agreement is intended, nor shall any be interpreted, to provide any person not a party to this Agreement with any remedy, claim, liability, reimbursement or cause of action or create any other third-party beneficiary rights.

21.

Entire Agreement. This Agreement, including any attachments or exhibits hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof. Except as otherwise stated herein, this Agreement supercedes all oral or written communications and understandings between the Parties with respect to the subject matter of this Agreement.

Part II:

TIGGEE TERMS AND CONDITIONS
(Wholesale Products)

SECTION 1. DEFINITIONS

Colocation Space: The location(s) within a Tiggee Data Center where Customer-owned equipment is collocated with Tiggee equipment pursuant to an accepted Customer Order.

Committed Data Rate: Where applicable, the minimum data rate committed by Customer and set forth in the Customer Order (expressed in Megabits per second (Mbps)).

Connection Notice: Written notice from Tiggee that the Service ordered by Customer has been installed by Tiggee and has been tested and is functioning properly.

Customer: The person or entity identified as the "Customer" on any Customer Order.

Customer Order or Order Form: A request for Tiggee Service submitted by Customer in the form designated by Tiggee from time to time.

Customer Premises: The location or locations occupied by Customer or its end users to which Service is delivered.

CPE: Customer-provided telecommunications equipment, whether located at the Customer Premises or in the Colocation Space, used in connection with the Service(s).

Data Center: Buildings or facilities owned or leased by Tiggee for the purpose of, among others, locating and collocating communications equipment.

Excused Outage: Any outage, unavailability, delay or other degradation of Service related to, associated with, or caused by scheduled maintenance events, Customer actions or inactions, Customer provided power or equipment, any third party, including, without limitation, Customer's end users, third party network providers, traffic exchange points controlled by third parties, or any power, equipment or services provided by third parties, or an event of force majeure as defined herein .

Facilities: Property owned or leased by Tiggee and used to deliver Service, including terminal and other equipment, wires, lines, ports, routers, switches, channel service units, data service units, cabinets, racks, private rooms and the like.

Local Loop: The connection between Customer Premises and the Tiggee backbone network.

Minimum Term: Binding commitment by Customer to take and pay for Services for an initial minimum term of 12 months (or as otherwise provided in the Order Form) commencing on the RFS Date.

Off-Net: Traffic that originates from or terminates to any location that is not on the Tiggee network.

On-Net: Traffic that originates from and terminates to a location that is on the Tiggee network.

Port Speed: This is the physical access data rate of the interface (or port).

Revenue Commitment: As applicable, a commitment by Customer to order and pay for a minimum volume of Services during an agreed term, as set forth in a Customer Order

Ready for Service (RFS) Date: The RFS Date is the first to occur of:

(A)

The date upon which Customer acknowledges in writing that the Service has been installed and is functioning properly; or

(B)

The date which is seventy two (72) hours after delivery of the Connection Notice for the Service (or, if two or more Services are designated as "bundled" in any Customer Order, seventy two (72) hours after delivery of the Connection Notice for all Services in the bundle); or

(C)

The date Customer begins using the Service.

Service(s): Any of Tiggee’s Services, as defined in the Service Descriptions attached hereto.

Service Description(s): The definition (specifications, branding, quality level, pricing) and additional terms and conditions specific to a particular Service.

SECTION 2. PROVISION OF SERVICE

2.1

Customer Order(s)

2.1.1

To order any Service, Customer may submit a Customer Order. Unless otherwise agreed, Customer is not obligated to submit Customer Orders.

2.1.2

Upon written acceptance by Tiggee, Tiggee will endeavor to provide each Service by the requested RFS Date, but all dates are targets. Unless expressly agreed in writing by Tiggee in the acceptance notice, Tiggee accepts no liability for failure to meet any requested RFS Date. Tiggee will issue a written acceptance, signed by a duly authorized representative of Tiggee. In the event that Tiggee provides an RFS Date that exceeds the Customer's requested RFS Date by more than one hundred twenty (120) days, Customer cancel the Order, without penalty, by written notice within three (3) days of its receipt of Tiggee’s acceptance notification. If Customer cancels an Order after said three (3) day period, it shall be liable to reimburse Tiggee for any and all costs incurred as a result of Tiggee’s reliance on the Customer Order.

2.1.3

The Customer Order shall refer to this Agreement and shall be governed by these Terms and Conditions and the Service Description applicable thereto.

2.1.4

These Terms and Conditions shall not be deemed to have been amended by any pre-printed term or condition that accompanies any Customer Order and any such pre-printed term or condition shall be null and void. Any provisions in a Customer Order purporting to amend the terms and conditions of this Agreement shall be null and void unless separately agreed, in writing, by the Parties.

2.1.5

Each accepted Order shall constitute a separate contract, existing independently from this Agreement or any other Order and any default in relation to any one Order shall not automatically entitle either Party to invoke default procedures, as defined elsewhere herein, as to the entire Agreement, unless such default also constitutes a material breach of this Agreement. An Order shall be effective from the date of acceptance by Tiggee through the Term stated therein, unless sooner terminated as may be otherwise permitted

2.2

Credit Approval and Deposits. Any acceptance by Tiggee of a Customer Order is subject to credit approval by Tiggee. Customer will complete a credit application, in the form provided by Tiggee from time to time. Prior to implementation of any Customer Order, Customer shall be required to make a deposit equal to one month of estimated fees for the Service ordered ("Deposit"). In the event that Customer's monthly charges exceed the estimated Deposit amount, Customer shall make additional deposits, if requested by Tiggee, within five (5) business days of Tiggee’s written request. Tiggee as security for payment shall hold the Deposit. When Service to Customer is terminated, the Deposit will be credited to Customer's account for payment of the last month's recurring fees for Service and any remaining balance will be refunded. Any balance due Tiggee after application of the Deposit shall be invoiced to Customer and due and payable in accordance with the payment terms set forth herein.

2.3

Customer Premises. Where applicable to the Services to be provided by Tiggee hereunder, Customer shall permit Tiggee access to the Customer Premises to the extent reasonably determined by Tiggee for the installation, inspection, and scheduled or emergency maintenance of the Service. Tiggee shall notify Customer not less than two (2) business days prior to any scheduled maintenance that will require access to the Customer Premises. Customer will be responsible for providing and maintaining, at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the Facilities on the Customer Premises. In the event Customer fails to do so, Customer shall reimburse Tiggee for the actual and reasonable cost of repairing or replacing any Facilities damaged or destroyed as a result of Customer's failure. Customer will provide a safe place to work and comply with all laws and regulations regarding the working conditions on the Customer Premises.

2.4

Tiggee Facilities. Tiggee will provide and maintain the Facilities in good working order. Customer shall not, and shall not permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Facilities, without the prior written consent of Tiggee. The Facilities shall not be used for any purpose other than that for which Tiggee provides them and title to the Facilities shall remain with Tiggee. Customer shall not take any action that causes the imposition of any lien or encumbrance on the Facilities. Tiggee shall not be liable to Customer or any other person for interruption of Service, or for any other loss, cost or damage caused or related to improper use or maintenance of the Facilities by Customer or third parties provided access to the Facilities by Customer, and Customer shall reimburse Tiggee for any damages incurred as a result thereof. Tiggee shall be entitled to remove the Facilities from the Customer Premises upon (i) the expiration or other termination of the Order to which the Facilities relate; or (ii) for repair, replacement or otherwise as Tiggee may determine is necessary or desirable, provided, that, Tiggee will use reasonable efforts to minimize disruptions to the Service caused thereby.

2.5

CPE. Tiggee may install CPE upon installation of Service, but Tiggee shall not be responsible for the operation or maintenance thereof. Tiggee undertakes no obligations and accepts no liability for the configuration, management, performance or any other issue relating to CPE used in connection with the Service.

2.6

Tiggee’s Service Responsibilities Generally: Tiggee shall be responsible for the Service only up to the relevant demarcation point, as may be identified on the applicable Service Order, (or otherwise determined by the nature of the Services provided) and shall not be responsible for providing any connectivity on the other side of the demarcation point.

SECTION 3. BILLING AND PAYMENT

3.1

Commencement of Billing. Tiggee will issue Customer a written Connection Notice upon completion of installation and testing of the Service. Upon receipt of the Connection Notice, Customer shall have a period of three (3) days to confirm, in writing, that the Service has been installed and is properly functioning or to identify specific issues with functionality based on the specifications for the Service. Unless Customer delivers written notice to Tiggee within said three (3) day period, the Service shall be deemed accepted by the Customer and charges shall be due and payable as of the date of the Connection Notice. No failure on Customer's part to (i) procure services from other carriers needed to operate the Service; or (ii) provide Tiggee with information necessary to permit it to procure such third party services; or (iii) take any other action necessary to permit it to accept delivery of the Service, shall relieve Customer of its obligation to pay for the Services from the date of the Connection Notice. For the avoidance of doubt, Tiggee may issue a Connection Notice and commence billing notwithstanding Customer's failure or refusal to take any action required hereunder.

3.2

Charges and Invoices. The Customer Order will set forth the applicable one-time, non-recurring charges ("NRC") and monthly recurring charges ("MRC") for the Service, along with the Deposit requirements. MRCs may either be fixed or variable, depending on the Service. NRCs may include installation of cabling, electronics, or other materials, depending on the Service. Charges are invoiced and due as follows:

NRCs, if any, are due within five (5) days of Tiggee’s written acceptance of the Customer Order. Tiggee shall be entitled to suspend implementation of the Customer Order if payment for NRCs is not received when due and Customer shall be liable for any costs incurred by Tiggee as a result of such suspension or any resulting delay in the RFS Date;
Fixed MRCs are payable monthly in advance and shall be due prior to the first day of the Service month to which they relate. Invoices for fixed MRCs are generally sent by the XXX of the month prior to the Service month. Invoices for fixed MRCs not received by the first of the month shall be deemed past due.
Variable MRCs are payable monthly in arrears and shall be due upon receipt. Invoices for variable MRCs that are not paid within fourteen (14) days of the invoice date shall be deemed past due.

Billing for partial months is prorated based on a calendar month. Past due amounts bear interest at a rate of 1.5% per month (or the highest rate allowed by law, whichever is less) beginning from the date first due until paid in full.

3.3

Taxes and Fees. All charges for Service are net of applicable taxes. Except for taxes based on Tiggee’s net income, Customer will be responsible for all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges, however designated, imposed on, incident to, or based upon the provision, sale or use of the Service.

3.4

Regulatory and Legal Changes. In the event of any change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivery of Service, Tiggee and Customer will negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the Parties are unable to reach agreement respecting new rates within thirty (30) days after Tiggee’s delivery of written notice requesting renegotiation, then (a) Tiggee may pass such increased costs through to Customer, and (b) Customer may terminate the affected Customer Order without termination liability by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.

3.5

Disputed Invoices. If Customer in good faith disputes any portion of a Tiggee invoice, Customer must pay the full amount of the invoice and submit a written claim, including the basis of the dispute, prior to the issuance of the next regular invoice for those Services. Customer waives the right to dispute any charges not properly noticed to Tiggee in accordance with this Section 3.5. The Parties will work together in good faith to resolve any such dispute within a period of thirty (30) days from the date on which Tiggee receives Customer's notice of the dispute. In the absence of manifest error, Tiggee’s records shall prevail.

3.6

Revenue Commitment. In the event that Customer makes a Revenue Commitment in any Customer Order, then Customer will be billed for and be responsible to pay the greater of (a) the recurring charges for Service ordered and delivered, or (b) the amount of the Revenue Commitment.

3.7

Termination Charges. In the event that Customer terminates any Order prior to the end of the Minimum Term, or if Tiggee terminates any Order due to a breach by Customer of the terms of this Agreement, then Customer shall pay Tiggee, as liquidated damages and not as a penalty, a termination charge equal to the greater of:


(i)	any third party cancellation/termination charges and other Tiggee out of pocket expenses related to the installation and/or termination of Service, including, without limitation, the costs of restoring colocation premises and removing CPE; or

(ii)	the percentage of the MRCs for the terminated Service calculated from the effective date of termination as (1) 100% of the MRCs that would have been incurred for the Service for months 1-12 of the Term, plus (2) 50% of the MRCs that would have been incurred for the Service for months 13 through the end of the Term.

3.8

Fraudulent Use of Services. Customer is responsible for all charges arising out of its use of the Service(s), even if incurred as the result of fraudulent or unauthorized use of Service.

SECTION 4. Term and Termination

4.1

Term. This Agreement shall commence on the Effective Date and continue for an initial period of three (3) years. Thereafter, this Agreement shall renew automatically for successive periods of (1) year unless terminated upon not less than ninety (90) days prior written notice from one Party to the other Party. Termination of this Agreement shall not operate to terminate any Customer Order accepted prior to the effective date of such termination. With respect to any such Order, the terms and conditions of this Agreement shall survive its termination and shall continue to govern the relationship of the Parties until the expiration of each such Order.

4.2

Termination by Tiggee. Tiggee may terminate this Agreement, or any Customer Order, immediately without liability if:


(i)	Customer fails to pay any undisputed charges for Services when due and has not remedied such failure within five (5) days of the date of Tiggee’s written demand therefore; or
(ii)	Customer violates any law, rule, regulation or policy of any government authority related to the Service or makes a material misrepresentation to Tiggee in connection with the ordering or delivery of Service; or
(iii)	Customer breaches any of its obligations hereunder and fails to remedy such breach within thirty (30) days of Tiggee’s written notice thereof; or
(iv)	(iv) Customer files for bankruptcy, for reorganization, becomes insolvent, or otherwise fails to pay its debts as they come due, or, if in Tiggee’s reasonable commercial opinion, any of the foregoing is likely to occur; or
(v)	Customer's Service is delivered by Tiggee within a third party colocation facility and Tiggee’s rights to provide Service therein is terminated or if a court or other government authority prohibits Tiggee from furnishing Service;

4.3

Termination by Customer. Customer shall be entitled to terminate an Order without further liability to Tiggee if:


(i)	Tiggee has failed to deliver the Service to which the Order relates in accordance with the Service Levels over a period of three (3) consecutive months: or
(ii)	Tiggee is in breach of any of its material obligations hereunder and shall have failed to remedy such breach within a reasonable period after receipt of Customer's written notice thereof.

4.4

Suspension. Tiggee may, in its sole discretion, elect to suspend Services in the event of any occurrence under 4.2 for which it is entitled to terminate this Agreement or a Customer Order. In the event that Tiggee elects to suspend performance in lieu of terminating the Service, the affected Service shall be restored to Customer as soon as reasonably practical after the events leading to the suspension are rectified. Tiggee’s decision to suspend Services shall in no way affect its rights to invoke the remedies of Section 4.2 at a later date.

4.5

Effect of Termination or Suspension. Upon Tiggee’s termination of an Order or suspension of Service, Tiggee may, in addition to all other remedies that may be available to Tiggee at law or in equity, assess and collect from Customer any applicable termination charge.

SECTION 5. LIABILITIES

5.1

Service Interruptions and Delivery. Where in relation to any Service the applicable Service Description provides for a system of rebates or credits against charges for interruptions or delays in delivery, such rebates or credits shall be the exclusive remedy of Customer in respect of such failure.

5.2

No Indirect Damages. Neither Party shall be liable to the other, whether in contract, tort (including negligence) or otherwise for indirect or consequential damages, including lost profits, special damages, or loss of data, under any circumstances whatsoever.

5.3

Limit of Liability. A Party's liability for any other claim under this Agreement, whether in contract, tort (including negligence) or otherwise shall be limited to direct, proven damages and shall not exceed (i) the amount paid by Customer to Tiggee for the Service(s) to which the damages relate during the twelve month period immediately preceding the occurrence that led to or caused the damages, or (ii) ten percent (10%) of the value of the Order to which the damages relate, whichever is less.

5.4

Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE SERVICE DESCRIPTION, TIGGEE MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE SERVICE(S), EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.