This agreement ("Agreement") between Aeprio.com LLC, doing business as Epic Servers, LLC ("Epic Servers") and Customer governs the provision of Epic Servers’ collocation and related services (the "Services"). This Agreement is effective the instant Customer (a) signs up for Services through the Epic Servers’ website or (b) establishes an account with Epic Servers or uses the Services or any part thereof ("Effective Date"). Epic Servers may revise this Agreement from time to time by posting a new version on the Epic Servers website. Such revised terms will become effective thirty (30) days after the posted or revised date. Continued use of the Services after such date constitutes acceptance of the revisions to this Agreement. This agreement was last updated November 3, 2017.1. The Services
This Agreement and the Services provide Customer with a license to occupy space (cabinet, rack, or cage) as Epic Servers designates (the "Space"), and to interface with such cables, computers, or other equipment as Epic Servers designates, at Epic Servers’ facility at 1526 Viceroy Dr., Dallas, Texas (the "Facility"). This Agreement conveys only a license to occupy the Space and only during the term set forth in Customer's signup. Customer has no other rights to the Space or the Facility or to any cabinet, rack, cage, or other space therein, including without limitation any leasehold right or other real estate interest. Epic Servers does not ship any equipment or any other items to Customers.2. Charges
(a) All recurring charges shall be due and payable in advance, without offset, deduction or prior demand on or before the first (1st) day of the month for Service provided during that month, or for the predetermined period, whichever may apply. Invoices or notices of invoices for recurring charges are issued as a courtesy. All payments from You to Us must be made via the portal located at portal.epicservers.com. Clients with Opt-in pricing on their Order Form (as set forth on the Order Form) must enroll in Our ACH automatic withdrawal to pay the monthly Services by completing Our authorization form with Your ACH banking information.
(b) Non-recurring charges including technical support, excess bandwidth usage and overages or purchases of equipment or supplies, will be due and payable upon Customer's receipt of invoice or notice of invoice. Customer is responsible for monitoring transfer, bandwidth and power utilization, and other services provided under this Agreement, and maintaining awareness of the applicable charges due. All payments from You to Us must be made via the portal located at portal.epicservers.com
(c) Interruption of Services may include denial of: access, remote hands and tech support, internet connectivity, and/or power. Customers whose Services are interrupted for nonpayment will pay [in addition to paying all past due amounts] a $25.00 reconnect charge before Services are restored. If Customer fails to pay amounts invoiced by Epic Servers within thirty (30) days of the invoice date, all such unpaid amounts shall accrue interest from the invoice date at the lesser of one and one half percent (1½%) per month or the maximum rate allowed by law. Fees or charges for any fractional portion of a month shall be computed as one thirtieth (1/30) of the basic monthly payment multiplied by the appropriate number of days.
(d) Epic Servers does not issue refunds or accept returns.3. Acceptable Use
(a) Customer asserts that it has read Epic Servers’ Acceptable Use Policy ("AUP") posted at https://portal.epic.io/acceptable-use . Customer will adhere to the AUP and will not allow the Services or Epic Servers’ equipment to be used for activities prohibited by such policies. Epic Servers may revise the AUP from time to time by posting a new version thereof on the Epic Servers website, and Customer is responsible for awareness of such revisions.
(b) Customer is responsible for preventing AUP violations and other violations of the terms of this Section 3 and this Agreement by hackers and other third parties utilizing Customer’s equipment. Third party violations of the provisions of this Section 3 will be considered violations by Customer. Epic Servers is not responsible for protecting Customer from hackers or from other third parties.
(c) Epic Servers may monitor the Service and disclose information regarding use of the Services to satisfy laws, regulations, or governmental, legal, or law-enforcement requests, to operate the Service properly; or to protect itself and its customers. If required by law, Epic Servers may grant law enforcement agencies access to its equipment or Customer's equipment to monitor Customer's use of the Service.
(d) Notwithstanding any provision to the contrary elsewhere in this Agreement, Epic Servers may immediately and without notice terminate this Agreement, or suspend Service, in whole or in part, in the event of a violation or suspected violation of Epic Server’s AUP.4. Ownership of Software, Hardware, and IP Addresses
(a) All software, hardware and Internet Protocol ("IP") addresses provided by Epic Servers are licensed to Customer and remain Epic Servers’ sole and exclusive property.
(b) All data provided by Customer is and shall remain the sole and exclusive property of Customer. All data provided by Customer shall be deemed Confidential Information.5. Maintenance, Security, & Service Interruption
(a) Epic Servers may interrupt Service to perform maintenance on Epic Servers’ equipment. Epic Servers will exercise commercially reasonable efforts (i) to inform Customer before interrupting Service (ii) to restore the system promptly and (iii) to the extent practicable schedule any greyouts after hours or during the weekend hours.
(b) Customer is responsible for maintaining security, including firewall set-up and maintenance, for maintaining patches, and for maintaining backups. However, for Customers that are paying for Managed Services, Epic will perform these services.
(c) Epic Servers maintains physical security protocols including badge access, closed-circuit television security camera monitoring, and combination locks or key locks on racks. Customer agrees to identify individuals (employees or third-party vendors) who are authorized to access their space. Access badges are not transferable and a maximum of three visitors may enter with temporary badges. Customer is responsible for ensuring that their space is locked after use.
(d) Epic Servers will not be liable for loss of data or for breaches in system integrity, even if Customer's Service includes firewalls, backups, denial of service protections, or other mechanisms to protect data and system integrity. In the event that Epic Servers suspects that security of any equipment has been breached, it may disable such equipment and the Service.
(e) In the event that Customer's use of Service causes a denial of service or in any other way injures the functioning of services Epic Servers provides to other customers, Epic Servers may interrupt Service or permanently disable it, even if such denial of service or injury occurred through no fault of Customer's. In the event a Customer is targeted for a DDOS attack, Customer must remedy and take preventive measures including, but not limited to, implementing external third party DDOS protection at Customer’s expense.
(f) Epic Servers will not be liable for service interruptions, including without limitation interruptions executed in order to investigate suspected AUP violations, whether or not such violations occurred.6. Use of and Access to Space, Facility, and Equipment.
(a) Customer will place in the Space only such equipment as is approved by Epic Servers. Epic Servers’ provision of Service is typically provided Monday through Friday during the hours of 8 am and 5 pm. Epic Servers may, in its reasonable discretion, restrict the time for any installation, removal, maintenance, or modification of Customer equipment and Customer will honor such restrictions. Customer will label all of its equipment with its name and contact information. Customer equipment will at all times be configured and run in compliance with its manufacturer specifications, including regarding power outlet, power consumption, and clearance requirements.
(b) Customer will not alter the Space or any cabinet, rack, cage, equipment, or fixture in the Facility, including without limitation Epic Servers cabling and power supply, without prior written permission from Epic Servers. Customer will not access or tamper with any equipment in the Facility other than its own. Customer will keep its own Space clean and clear of debris.
(c) Customer will provide Epic Servers with a list of all its principals, employees, agents, contractors, and other personnel ("Representatives") authorized to enter the Facility, and Epic Servers will have no obligation to grant admittance to anyone not so designated. Epic Servers may refuse access to the Facility to any Representative who violates Facility rules or, in Epic Servers’ opinion, behaves inappropriately or who creates a hazard of any kind. Customer will not provide Facility keys or access codes to any Representative not designated to Epic Servers in advance or to any Representative refused by Epic Servers. Representatives may be required to leave photo identification at Epic Servers’ front desk before entering the Facility.
(d) Customer warrants that it and Representatives will operate Customer's equipment and conduct any other operations in the Facility in a safe and workmanlike manner, in accordance with industry standards for such activities. Customer and its Representatives will remain in the Facility only so long as necessary to attend to Customer's equipment.
(e) Customer will notify Epic Servers as soon as practicable of any emergency or other situation concerning the Facility or Services that threatens injury to persons or property, including data. Customer recognizes that, in the event of an emergency, Epic Servers’ work will take precedence over any Customer operations. Without limiting the generality of the foregoing, in the event of emergency, Epic Servers may remove or rearrange Customer equipment. Customer will cooperate fully with Epic Servers during any emergency and will promptly assist Epic Servers as requested.
(f) Customer accepts the Space and the Facility "as is." Customer recognizes Epic Servers’ right to operate and maintain the Facility in such manner as it sees fit. Customer will honor all Epic Servers rules and regulations for use of the Facility and Space.
(g) Customer understands that Epic Servers may be required to file an annual report with the Dallas Central Appraisal District listing the name and address of each Customer who, pursuant to this Agreement, (i) is the owner of equipment or other personal property located in the Space or elsewhere in the Facility on January 1, and (ii) to whom Epic Servers provides the Space on January 1 for the purpose of storing such equipment or other personal property. Customer agrees that any taxes imposed on such equipment or other property shall be Customer's sole responsibility, and that Epic Servers, as well as its directors, officers, partners, and employees, shall have no responsibility whatsoever for any such taxes.7. Disclaimers and Warranties
(a) Epic Servers will not be liable for any consequential, incidental, exemplary, punitive, or multiple damages, even if Epic Servers was advised in advance of the possibility of such damages. Epic Servers’ maximum liability arising out of or related to this agreement will not exceed the total amount of fees billed to customer during the twelve (12) months preceding the claim.
(b) Epic Servers will have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings resulting from: (i) other Epic Servers customers or third parties accessing customer's data or assigned computers; (ii) security breaches; (iii) eavesdropping; (iv) denial of service attacks; (v) interception of traffic sent or received using the equipment or Service; (vi) customer's reliance on or use of the equipment or Service; (vii) mistakes, omissions, interruptions, deletions of files, errors, defects, delays in operation, or other failures of performance of the equipment or Service; (viii) the accuracy, completeness, and usefulness of the Service; (ix) loss of data or loss of access to data; or (x) loss of equipment or injury to equipment.
(c) Epic Servers shall not insure or be responsible for any loss or damage to property of any kind owned or leased by Customer except to the extent such liability results from Epic Servers’ gross negligence or willful misconduct. Any policy of insurance covering the property owned or leased by Customer against loss by physical damage shall provide that the underwriters have given their permission to waive their rights of subrogation against Epic Servers, its affiliates and their directors, officers, partners, and employees, as well as their subsidiaries, and their respective directors, officers, partners, and employees.
(d) Epic Servers’ limitations and exclusions of liability set forth in this section 7 and in this agreement apply equally to Epic Servers’ officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies.8. Indemnity & Third Party Claims
(a) Customer will defend and indemnify Epic Servers, its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies from any third party claim arising out of or related to: (i) alleged Customer conduct that would breach this Agreement, including without limitation alleged infringement of third party intellectual property or privacy rights; (ii) Customer's use, misuse, or failure to use the Service; and (iii) any action taken by Epic Servers as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys' fees.
(b) Upon Epic Servers’ request, Customer will immediately notify any third party that Epic Servers is not responsible for (i) any content or materials posted on any Customer website or otherwise disseminated through Customer's use of the Service or (ii) any use or abuse of the Service whatsoever by Customer or any third party.9. Term and Termination and Removal of Equipment
(a) This Agreement will continue from the Effective Date through that period affirmed at signup subject to the following terms and conditions: (i) Unless stated otherwise on Your Order Form, all services are provided on a twelve (12) month term. (ii) Services that are prepaid for a predetermined period renew for successive periods equal to the predetermined period (upon Epic Servers receipt of advanced payment).
(b) Upon the expiration of the initial term stated in Your Order Form or the initial twelve (12) month term if no term was stated, services may be terminated by Customer upon thirty (30) days’ notice. Notice of termination must be submitted via Epic Servers’ portal.
(c) Customer will be allowed to remove equipment from the Facility if and only if Customer has paid all amounts due under this Agreement. Customer hereby grants Epic Servers a security interest in any and all equipment, computer programs, and other property (collectively, the "Property") Customer places in the Space or elsewhere in the Facility, to secure Customer's payment and performance of its obligations under this Agreement. Customer recognizes that such security interest is perfected by Epic Servers’ possession of the Property.
(d) Within ten (10) days following the termination (or the effective date of expiration) of this Agreement, Customer will remove all of its equipment from the Facility and any other Customer property in the Facility and return the Space to Epic Servers in the same condition as it was prior to Customer's installation of its equipment. Should Customer or any permitted assignee, sub lessee or licensee of Customer fail to vacate the Space or any part thereof within such ten (10) day period after the expiration or sooner termination of this Agreement (or cannot remove such property because of payments due to Epic Servers), such failure to vacate, unless otherwise agreed to by Epic Servers in writing, shall automatically increase the fees payable under this Agreement to 150% of the amount payable immediately prior to such breach. Customer shall also be liable to Epic Servers for all damages that Epic Servers suffers because of any holding over by Customer and Customer shall indemnify Epic Servers from and against all claims made by any other customer or prospective customer against Epic Servers resulting from delay by Epic Servers in delivering possession of the Space.
(e) Notwithstanding anything herein to the contrary, Epic Servers may move any and all such property to storage. If Customer does not pay all amounts due to Epic Servers and remove such property from the Facility or storage within thirty (30) days of Epic Servers’ request, Epic Servers may liquidate the property in any reasonable manner. Customer will defend and indemnify Epic Servers (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from any third party claim arising out of or related to storage, disposal, sale, donation, or destruction of, or damage to, the equipment or any data stored therein or connected therewith, or any other Epic Servers action taken in furtherance of its rights pursuant to this Section 9. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys' fees.10. Service Level Agreement
100% Network Guarantee: Epic Servers offers a 100% uptime guarantee on all network related services (i.e. bandwidth, routers, switches, and cabling). The 100% uptime guarantee is applicable to all network services delivered to customers via HSRP and dual network drops. Customer-generated outages created by failed equipment, exploited servers, misconfigurations or traffic in excess of the maximum allowed by contract are not subject to the Service Level Agreement. Service credits are based directly on all equipment and/or services affected by a network outage. Services or hardware not related to the network outage will not qualify for a service credit. Customer credits are equal to one day's usage for every hour of outage, not to exceed one month's recurring charges.11. Response Time Service Level Agreement
If Epic Servers fails to respond to a Severity 1 event request from Customer within fifteen (15) minutes, Epic Servers will credit Customer five percent (5%) of the total monthly recurring base fee paid by Customer for each separate request that does not meet this SLA. Customer credits are not to exceed one month’s recurring charges. A “Severity 1” event occurs when Customer’s environment is completely unavailable to Customer. Prior to the issuance of such credit, Company will verify that the event rises to the level of a Severity 1 event. All credits under this Response Time SLA must be requested by Customer within three (3) days of Epic Servers’ failure to respond to a Severity 1 event within the fifteen (15) minute response time.12. General Provisions
(a) Customer shall not, and has no power, authority or right, to create, and shall not permit, any lien or encumbrance, including, without limitation, tax liens and mechanics' liens, on Epic Servers' Equipment, Space or Facility. In no event shall Epic Servers subordinate or be required to subordinate its interest in the Facility to any person.
(b) This Agreement constitutes the entire Agreement between Epic Servers and Customer pertaining to the subject matter and geographic locations set forth in this Agreement, and supersedes any prior Agreements, whether written or oral. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.
(c) Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement, due to any cause beyond is reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
(d) Epic Servers and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Epic Servers and Customer. Neither Epic Servers nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided in this Agreement.
(e) Epic Servers and Customer warrant that their respective undertakings will be performed in a professional and workmanlike manner in accordance with this Agreement. EPIC SERVERS MAKES NO OTHER WARRANTY UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN THE UPTIME GUARANTEE IN SECTION 10 ABOVE..
(f) This Agreement shall be governed by and construed under the substantive laws of the State of Texas. Jurisdiction and venue for purposes of any litigation in connection herewith shall be in the Dallas County, Dallas, Texas. In the event of litigation hereunder, the prevailing party shall be entitled to an award of reasonable attorney's fees and court costs at all trial and appellate court levels.
(g) Mediation. If a dispute arises out of or relates to this Agreement, or its breach, and the parties have not been successful in resolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through mediation. If no agreement can be reached as to mediator, then the parties shall request that the American Arbitration Association (“AAA”) select a mediator. Each party shall bear its own expenses and an equal share of the mediator’s fees. The parties agree to attend mediation prior to filing any lawsuit arising out of or related to this Agreement, or its breach.
(h) Severability. If any provision of this Agreement is held by a court to be invalid or unenforceable, the remaining provisions will remain in full force and effect. Any invalid or unenforceable provision shall be modified, if possible, by the court so as best to accomplish the objectives of the original provision to the fullest extent permitted by law. If such construction is not possible, then the invalid or unenforceable provision shall be severed from this Agreement, and the remaining provisions of this Agreement shall remain in effect.
(i) No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
(j) Waiver. No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of that right.
(k) All written communications to Customer will be deemed delivered if sent to the contact information provided to Epic Servers at the time of signup, unless Customer provides some alternate contact information in writing. All written communications to Epic Servers and all charges will be mailed to 1526 Viceroy Dr., Dallas, TX 75235, unless Epic Servers posts alternate contact information at its website.