SERVICE AGREEMENT
CalPOP.COM, Inc.
1. CALPOP is in the business of providing direct connectivity to the Internet, and has its primary facility at 600 W. 7th Street, Third Floor, Los Angeles, CA 90017 (herein 'Data Center'), to provide and rent a variety of equipment, hardware, and software services and support for its clients.
2. Client desires to connect certain equipment or computer devices 'Server' or 'Equipment') leased or owned by Client to the Data Center for the purposes of obtaining Internet access and services from CALPOP for the term as selected via the online shopping cart. The Items purchased via the online shopping cart are a comprehensive list what is to be provided to Client, and supersedes all other agreements except written contracts signed by both parties. The deployment date shall be the date that packets begin flowing to the client's server(s), ("Service Start Date"), or 30 days after the date of this agreement, whichever occurs first.
3. CALPOP shall lease equipment providing basic services ('Internet Services') to Client, which shall include bandwidth and a direct connection of the Equipment to the Internet switch or router via Ethernet or other type of connection, as well as redundant power supply. All equipment and servers and any other property provided by CALPOP shall remain the sole property of CALPOP unless release of the equipment is agreed to in writing by an officer or director of Calpop.com, Inc.
4. The base fee for Services as well as one-time setup fees and any other upgrades as picked by client andas selected via the online shopping cart, are payable in advance of the start of service as required herein, and are charged monthly, or yearly, thereafter depending on the terms of the agreement as selected via the online shopping cart. CalPOP will automatically charge the monthly or yearly and/or other fees to the Client’s credit card, paypal account, or checking account each term. IP's will be given according to the policy of ARIN.NET. 1 IP is included for free. IP's can be leased for $1 per IP/month.
5. Client is and understands and agrees that:
a. The fee for technical support services shall be $75 per hour. Connectivity related technical support is free and available 24/7.
b. Client may be required to make an additional deposit to cover anticipated excessive bandwidth usage if the MRTG/CACTI bandwidth graph shows bandwidth usage in excess of the bandwidth commitment rate as selected via the online shopping cart. Excessive usage shall be any bandwidth usage over the Subscription Rate. Excessive usage shall be billed at the rate of $75 per Mbps. Failure to deposit payment for excessive bandwidth usage at the Subscription Rate may result in suspension of account until such payment is made. CALPOP shall, of course, make reasonable attempts to notify client of such excessive usage.
c. If Client so requests custom technical support or CALPOP must provide custom technical support or custom administration for Client at a later date. Client shall pay to CALPOP $75 per hour for the total hours of Custom Support or Custom Administrative Services needed and/or requested by client. Administration regarding connectivity or simple network admin like replacing a stick of ram is FREE!!
d. All fees shall be due from Client in advance and shall be received by CALPOP prior to the ('Due Date') for the preceding period of service. Not receiving an invoice from CALPOP prior to Due Date is not grounds for delay of payment. This document and/or the online billing website will suffice as an invoice for the term of this agreement. If payment is not received by the Due Date, CALPOP may impose a late fee of $25/server and if payment is not received within seven (7) days AFTER the Due Date, CALPOP, may at its sole discretion, disconnect services to Client's Server or Equipment without prior notice and without any liability to CALPOP. CalPOP shall be authorized to automatically charge the Client's credit, debit card, paypal account, and/or be allowed to issue automatic 'e-checks' if the Client provides the account information.
e. In the event that Client pays the monthly or yearly charges after the disconnect event, and CALPOP agrees to reconnect service to the Client, there shall be a minimum re-connection of $25 per server.
f. After the disconnection event for any reason, Client is still required to pay storage fees equal to the rate in paragraph 4 - the normal monthly rate. CALPOP does not store Client equipment in Data Center free of charge. Client is encouraged to settle outstanding fees due CALPOP and remove equipment promptly. CALPOP shall have a
g. CALPOP shall not be required to refund any fees to Client charged pursuant to this Agreement, except by mutual written agreement.
h. Client can cancel this agreement at the end of the term of the agreement by sending an email to billing@calpop.comat least 30 days prior to the end of the term. If the agreement is not canceled at the end of the term, it shall be renewed for another term month or year, or whatever the term of the agreement is as ordered via the online shopping cart. No refunds of any kind are due in the event of cancelation.
i. Client is aware that Client is required to make a reasonable effort to estimate the monthly bandwidth usage and prepay such amount for the first month of this contract. Subsequent months shall be billed and based upon the monthly bandwidth usage of the prior 30 days and shall be payable by the Due Date of each subsequent month for the term of this agreement.
6. Client is and understands and agrees that:
a) CALPOP obtains its electrical power from the local public utility company, the Los Angeles Department of Water and Power, the ('DWP'). CalPOP cannot guarantee the performance of the DWP. CALPOP is not responsible for the failure of the DWP to perform, or any consequences resulting from such failure.
b) CALPOP shall reserve the right to change bandwidth providers without notice.
c) Availability of Internet access to CALPOP is not entirely under the control of CALPOP.
d) While CALPOP's goal is to provide uninterrupted service to Client, there will be times that the connectivity to the Internet may be disrupted, in which case Internet access will not be available to CALPOP and to Client's Equipment at the Data Center. CALPOP is not responsible for the failure of internet connectivity, or any consequences resulting from such failure.
e) Equipment may shut down or malfunction at any time due to a variety of reasons, including but not limited to: power surges from the Public Utility, Equipment malfunctions, software problems, Internet problems, and other reasons beyond CALPOP’s reasonable control. CALPOP is not responsible for interruption of service related to these events, or any consequences resulting from such interruptions.
f) CALPOP may have regular or periodic disruption of services due to scheduled and unscheduled maintenance of the equipment in the Data Center. CALPOP will attempt to notify Client of the dates and times of any scheduled maintenance disruptions via email or phone.
g) CALPOP only agrees to this contract only because of the understanding that the Client agrees to maintain full and up to date backups (replication) of all data and information stored in CALPOP facilities in a location offsite and not controlled or maintained in any way by CALPOP. This procedure is standard practice in the IT industry and failure to adhere to it would place the client’s data in extreme and unnecessary jeopardy. CALPOP does not have any access to Client data at any time and is not responsible for such data or making any backups of such data.
7. CALPOP is not responsible for lost business, financial or otherwise, resulting from any of the services that it offers. Such guarantees are not included in this agreement and would require separate written agreement, with additional consideration to enforce such guarantees. Should CALPOP be found liable the maximum client can recover in any action for any reason is equal to the recurring charge for one month of service.
8. CALPOP does not carry insurance for Client’s equipment or data of any kind, Client should carry its own insurance or provide its own remedy for losses 'Losses') due to
a) discontinuation of Internet connectivity for any reason whatsoever,
b) damage to the Equipment or Client's office due to any reason, including without limitation, fire, theft, water leakage, earthquake and all acts of God, and
c) loss of income to Client, damage to Client's software, or losses due to any other possible incident (together 'Losses'). In any case, Client shall hold CALPOP, its employees, agents and assigns harmless against all Losses to Client.
9. Client shall indemnify, defend and hold CALPOP, its employees, officers, agents and assigns against all claims, losses and cause of action by anyone due to connectivity of Client's Server and Equipment to the Internet through the facilities of CALPOP at the Data Center ('Indemnification'). This Indemnification shall include all causes of action, including without limitation, claims, suits, judgments, collection activity, and harassment.
10. CALPOP shall have the right to discontinue service to the Client at any time, without refund , and s all also be entitled to actual damages, if the Client causes any of the following to occur:
a) Violation of the terms of service herein stated, and/or as periodically changed if notice has been given to Client.
b) False statements for personal gain at the expense of CALPOP.
c) Failure to follow instructions of CALPOP's staff or management which results in an increased hazard to persons or equipment
d) Attempt to remove equipment from the Data Center while a fee is outstanding.
e) Violation of any rule of the building owner.
f) Violation of any law or government regulation law or issuance of any judicial action or governmental order to interrupt the Server or Equipment operation.
g) Unannounced excessive bandwidth usage for which a deposit has not or is not provided.
h) SPAM originating or relaying from, or advertising sites, on Client Server. SPAM disconnections may result in a termination fee as outlined outlined in paragraph 5. CalPOP may disconnect and/or terminate service to Client if Client gets listed on SpamHaus or Spews or other serious black list and may refuse service to Clients listed on the Spamhaus ROKSO list of 'registry of known spam organizations.'
i) Running an IRC Server, eggdrop server, botnet server, or selling 'shell' hosting accounts.
j) Mismanaged server by the Client that results in, or could potentially result in, any form of harm or interruption of services provided by CALPOP.
k) Denial of Service attacks incoming or outgoing from the Client's server.
l) Violation of CALPOP security procedures as posted or instructed by CALPOP's staff or management
m) Other types of abuse not specifically mentioned here but which could potentially result in, any form of harm or interruption of services provided by CALPOP or that may harm other networks. CalPOP reserves the right to refuse service to anyone for any reason.
11. Parties both agree that any dispute arising between the parties shall be submitted to confidential arbitration in a location chosen by the company. Arbitration under this agreement shall be conducted under the rules of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. to the fullest extent permitted by applicable law, no arbitration under this agreement shall be joined to an arbitration involving any other party subject to this agreement, whether through class action proceedings or otherwise. Billing disputes must be sent to billing@calpop.com within three (3) months of the date of the charge. No claim may be brought by the Client for any dispute arising from this Agreement more than three (3) months from the date of the occurrence which gives rise to the dispute.
12. This Agreement shall be the only agreement between the parties. All prior written and verbal representations and communications between the parties related to the services as as selected via the online shopping cart shall be null and void. Amendments to this agreement shall be in writing, executed by Client and CalPOP. If, Client is a person, he or she, shall personally guarantee this Agreement. If Client is a legal entity such as a corporation, partnership, limited liability company, etc., and CALPOP has not specifically approved the credit of such entity in writing, the Guarantor herein below shall fully and personally guarantee the performance of this Agreement. Client agrees to supply a copy of current Identification, either current driver's license, state issued ID card, or current passport for the purpose of CalPOP performing a onetime identity verification. A onetime identity verification is performed in order to confirm your mailing address and to establish credit for unpaid services. Client certifies that Client is the sole owner of all equipment not provided by CALPOP which Client brings into the data center.
13. Unless terminated by providing thirty (30) days notice by sending email to billing@calpop.com, the term of this contract shall extend for one additional period as as selected via the online shopping cart. If no period is stated, this is a month-to-month contract.
14. In the event of litigation or a dispute between Client and CALPOP, the non-prevailing party shall reimburse the prevailing party for all reasonable, arbitration costs, attorney fees and any other legal fees or costs resulting from the dispute, whether or not the dispute is resolved through arbitration or court.
15. If any provision of this Contract is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Contract shall remain in full force and effect.
16. This agreement shall be interpreted under the laws of the State of California. Any litigation under this agreement shall be resolved in the trial courts of Los Angeles County, State of California.
17. Any rights Clients may have under this agreement are not transferable or assignable.
LAST CHANGED ON 3/31/2011
