This Agreement defines the terms and conditions between Internetnyc.com (a registered DBA of MC Networks, Inc.) and its affiliates (collectively, "MCNI") having a principal place of business address at 91 Elmwood Street, Plainview, NY  11803 and the Customer for the provision of colocation services and related products and services to the Customer.

1. Purpose of agreement

MCNI provides Internet connectivity services (the “Bandwidth”), space in its business premises to store and operate such Hardware (“Rack Space”) and together comprising a server colocation package (together, the “Services”). MCNI desires to provide Services to the Customer, and the Customer desires to receive and compensate MCNI for such Services.

2. Duration

The term of this agreement is for the Current Term and shall automatically renew each term thereafter unless either party notifies the other in writing at least one (1) Month prior to the end of the current term, of their intention not to renew this Agreement.

3. Service orders

Service Orders. The provisions of Services shall be initiated by this Agreement issued by the Customer describing the service plan and cost. Each Agreement will contain the prices, initial terms of Services and other information designated in the Service Order form. The Customer shall use the then current version of the Agreement as designated by MCNI. No Agreement shall be effective until accepted by MCNI. The terms of this Agreement shall control Services to the Customer. 

3.1 Termination. The Customer may terminate any Agreement by giving MCNI at least thirty (30) days written notice prior to the end of the Contract Term when the Customer desires Services to cease. If the Customer decided to terminate the Server Order before the contract term, all amounts due from the Customer remaining contract terms for the account to which the Agreement relates must be paid in order for the Customer to terminate an Agreement. MCNI may terminate any Agreement by giving at least thirty (30) days prior written notice of the date of termination of Services. 

3.2 IP Addresses. MCNI may designate for the Customer to use on a temporary basis, a number of Internet Protocol Addresses (“IP Addresses”) specified on the Agreement from the address space assigned to MCNI. The Customer acknowledges that the IP Addresses are the sole property of MCNI, and are temporarily designated for the Customer use as part of the Services, and are not transferable. MCNI reserves the right to change the IP Address designations at any time. MCNI shall use reasonable efforts to minimize inconvenience to the Customer resulting from such changes, and shall give the Customer reasonable notice of changes. The Customer agrees that it will have no right to use IP Addresses assigned to MCNI upon termination of this Agreement, and that any change in IP Addresses the Customer may need to make after termination of this Agreement shall be the sole responsibility of the Customer. 

3.3 Maintenance. From time to time, MCNI may conduct routine tests, maintenance, upgrade or repair on any part of the System, and MCNI shall give the Customer prior notice thereof. The Customer acknowledges that there may be instances where it is not practicable for MCNI to give advance notice of a disruption, for example, in the event of an emergency, and MCNI shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.

3.4 Control Rights. The Customer, and not MCNI, has the sole and exclusive control over the Data. The Customer acknowledges and MCNI agrees that in the provision of the Services hereunder MCNI is not provided, either directly or indirectly, with or access to the Data that would allow MCNI to exercise any control over the Data. MCNI accepts no responsibility for the Data passing through the System.

4. Server equipment and access to the facility

4.1 MCNI shall provide the Space, lighting, air conditioning and electrical power required for the accommodation and operation of the Server Equipment.

4.2 The Customer shall be responsible for the re-configuration and testing of the Server Equipment upon the installation of the Server Equipment into the Space. 

4.3 The Customer agrees to immediately remove or render non-infringing, at the Customer's sole expense, any Server Equipment alleged to infringe any patent, trademark, copyright, or any other intellectual property rights.

4.4 Overall responsibility for the Server Equipment maintenance and repair shall remain with the Customer. The Customer shall be responsible for contacting and coordinating with their maintenance contractors and supervise their performing corrective maintenance on the Server Equipment.

4.5 The Customer shall provide the Server Equipment and the Customer shall appoint authorized personnel to schedule delivery of the Server Equipment to the Facility and install the same after the Commencement Date.

5. Service interuptions

MCNI shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

6. Customer content and responsibilities

The Customer is solely responsible for the content of any postings, data or transmissions using the Services (the “Content”), or any other use of the Services by the Customer or by any person entity the Customer permits to access the Services (a “User”). The Customer represents and warrants that neither it nor any User will use the services for unlawful purposes (including, without limitation, infringement of copyright or trademark, misappropriation of trade secrets, wire fraud, invasion of privacy, illegal pornography, obscenity, defamation, and illegal use, transportation or sale of tobacco, controlled substances and firearms), or to interfere with, or disrupt, other network users, network services, or network equipment. Disruptions include, without limitation, distribution of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly
impersonating another user, falsifying one’s network identity for improper or illegal purposes, sending unsolicited mass e-mailings, propagation of computer viruses, using the network to make unauthorized entry to any other machine accessible location, via the network, and distributing of tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools).  MCNI may suspend or terminate the Services immediately, without prior notice to the Customer, if MCNI believes, in good faith, that the Customer or a User is utilizing the Services for any such illegal or disruptive purpose. The Customer shall defend, indemnify, and hold harmless MCNI from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including attorneys’ fees and litigation expenses) arising out of or relating to any and all claims by any person relating to use of the Services, including, but not limited to, use of the Services without consent of the Customer.

7. Pricing and payment terms

Payment Terms. The full amount of the Initial Fee as reflected in the Agreement, which includes any set-up fees and charges for the first payment term of Services, are due and payable to MC Networks, Inc. upon the acceptance of the Agreement. Thereafter, the Customer will pay in advance charges for each payment term. The recurring billing date shall be established by the date that the server release notification is e-mailed or faxed to the Customer and shall recur based on the Payment Term specified on the Agreement. Accounts that pay by check will be sent an invoice at least fifteen (15) days prior to the recurring billing date and payment is due on or before the recurring billing date. MCNI will impose a $25.00 charge for any check that is returned for any reason by a financial institution. MCNI reserves the right to charge the Customer any sales, use, excise, and gross receipts, or any other tax or fees now or imposed, directly or indirectly, by any governmental authority or agency with respect to the Services. 

7.1 Pricing Disputes. The Customer must notify MCNI in writing of any disputed charges within 7 days of the date of the billing for such charges. If the Customer does not notify MCNI within that time period, the Customer has waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to MCNI. 

7.2 Collection. All accounts more than 30 days past due will be charged interest from the due date of the lesser of (i) 2% per month on the past due amount; or (ii) the highest legal rate of interest. MCNI may also suspend, interrupt, or terminate Services on any account that is past due by more than thirty (30) calendar days, by disabling telnet/SSH/ftp access and/or disabling the connection to the server. In the event of disconnection, the Customer must pay MCNI a reconnection fee of $50.00 as a condition of reactivation of the Services, in addition to full payment of the balance due on the account. Reactivation of services will only be performed during MCNI regular business hours (Monday through Friday, 10:00 a.m. – 6:00 p.m. EST Time). MCNI may send all accounts that have not been paid in full to a collection agency. The Customer is responsible for paying all costs of collection, including, but not limited to, reasonable attorney’s fee and, where lawful, collection agency fees. All accounting issues should be addressed to MCNI at billing@internetnyc.com 

7.3 Price Increases. MCNI offers a price-freeze guarantee to its Customers. MCNI will not increase the cost of services for the Customer as indicated on the Agreement as long as The Customer’s account is with MCNI and provided the Customer’s account does not become delinquent.

8. Maintenance and support

8.1 Ordering Maintenance and Support Services. MCNI shall provide the Customer with maintenance and support services for the Hardware or Software, if such services are specified in the Agreement. 

8.2 Exclusions. Maintenance and support services shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than MCNI or its authorized representatives; or (b) programs or hardware supplied by the Customer.

8.3 The Customer’s Duties. The Customer shall appoint at least 1 representative that will be from time to time, allowed into Facility. Visitations are limited to 6 hours per month, Monday to Friday.  Advanced notice must be given for visitation on Saturday and Sunday. The Customer must register with the duty officer in charge of any visitation.

8.4 Passwords. Each MCNI’s Customer is responsible for the equipment security of his or her passwords.  Generally, secure passwords are between 6 and 8 characters long, contain letters of mixed case and non- letter characters, and cannot be found in whole or part, in normal or reverse order, in any dictionary of words or names in any language. The Customer is responsible for changing his or her password regularly.

9. Term and termination

9.1 Term. The term of this Agreement shall commence on the Effective Date and continue until terminated in accordance with this Agreement. The term of an Agreement shall be as indicated therein. The term of an Agreement shall automatically renew unless either party provides the other with written notice of termination at least thirty (30) days prior to the renewal date as established by the Contract Term reflected in the Agreement.

9.2 Termination Upon Default. MCNI may immediately terminate this Agreement and any or all Agreements, within its sole discretion, if the Customer fails to pay (and MCNI has not actually received) any amounts due within thirty (30) days after the due date. For other breaches of this Agreement, either party may terminate this Agreement, and Agreement, as applicable, if the breaching party fails to correct the default within thirty (30) days after the written notice.

9.3 Effect of Termination. Notwithstanding termination of this Agreement, MCNI shall be entitled to full contract payment of all amounts that may be due from the Customer.

10. Confidential information

Confidential Information shall mean all information identified by a party (“Disclosing Party”) to the other party (“Receiving Party), which, if in writing labeled as confidential, or if disclosed orally, is reduced to writing within fifteen (15) days, and labeled as confidential. Confidential Information shall remain the sole property of the Disclosing Party. Except for the specific rights granted by this Agreement, the Receiving Party shall not use any Confidential Information of Disclosing Party for its own benefit or for the benefit of others. Receiving Party shall not disclose Confidential Information to any third party without written consent of Disclosing Party (except to consultants who are bound by a written agreement with Receiving Party to maintain confidentiality).  Confidential Information shall exclude information (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of an obligation of confidentiality; (iii) independently developed by Receiving Party without access to Confidential Information; (iv) known to Receiving Party at the time of disclosure; or (v) produced in compliance with a court order. Receiving Party shall give reasonable notice to Disclosing Party that Confidential Information is being sought by a third person, so as to afford the opportunity to limit or prevent such disclosure. Receiving Party agrees to cease using all Confidential Information, and to promptly return such Confidential Information to Disclosing Party upon request. Notwithstanding the foregoing, the Customer consents to MCNI’s disclosure of account information to credit reporting agencies, credit bureaus, private credit reporting associations, or to other providers of communications services.

11. Limitation and liability

MCNI’s liability (including, for purposed of this paragraph only, and of its employees, agents, or representatives), to the Customer (either directly or as a third party defendant in any action or proceeding) for any claim arising out of or relating to this Agreement or Agreement or the provision of any Services under Agreement (including, without limitation, maintenance and support) shall be limited to the amount of fees paid by the Customer to MCNI under this Agreement within one year preceding the date the Customer contends its claim arose. In no event shall MCNI be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory of liability. This limitation will apply even if MCNI has been advised of, or is aware of, the possibility of such damages. 

12. Disclaimer and warrantees

MCNI specifically disclaims all implied warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by MCNI, or information on MCNI‘s company web site, shall be for informational purposes only and whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guaranty of performance, or contractual obligations.

13. Miscellanious

13.1 Independent Contractor. The relationship of MCNI and the Customer under this Agreement is that of independent contractors and not partners, joint ventures, or co-owners as participants. Neither party has authority to contract or bind the other. 

13.2 Notices. Any notice hereunder shall be in writing and shall be given by registered or express mail, or reliable courier (such as FedEX) addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. Either party may change its address for notice by means of notice to the other party given in accordance with this Section.

13.3 Assignment. The Customer may not assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be void and a default of this Agreement. 

13.4 Advertising. MCNI may include the Customer’s name in directories of MCNI service subscribers for the purpose of promoting the use of the Services by the Customer. MCNI will not use the Customer’s name or other identifying information in any other advertising or promotional materials, without the prior written consent of the Customer, which may not be unreasonably withheld.

13.5 Indemnification. The Customer shall defend, indemnify, and hold harmless MCNI from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including reasonable attorneys’ fees and litigation expenses) arising out of or relating to any breach of this Agreement or Agreement by the Customer. The Customer and MCNI will promptly notify each other upon receipt of any third party claim or
legal action arising out of or relating to this Agreement or Agreement.

13.6 Entire Agreement and Waiver. This Agreement and the Agreement constitute the entire agreement between MCNI and the Customer with respect to the subject matter hereof. All prior agreements, representations, and statements with respect to such subject matter are superseded. Any failure of either party to exercise or enforce its rights under this Agreement or Agreement shall not act as a waiver of subsequent breaches. During the term of this Agreement and for a period of one (1) year thereafter, the Customer shall not solicit or hire the services of any employee or subcontractor of MCNI without the prior written consent of MCNI.

13.7 Release of Information. MCNI reserves the right to release the contact information of the Customer involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. MCNI will also fully cooperate with law enforcement authorities in investigating suspected violations of Local, State and Federal laws.