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EXHIBIT 10.5
FASTNET SERVER COLLOCATION AGREEMENT
The following agreement is by and between FASTNET Corporation ("FASTNET") of Two
Xxxxxxxx Place, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, XXX and
XXXXXXXXX.XXX, INC. 00 XXXX XXXXXXX XXX
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("Client" or "Customer") of (complete address, no XX Xxxxx xxxxxx)
XXXXX 000, XXXXX, X.X. 00000
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1. FASTNET DOES NOT WARRANT, EXERCISE ANY CONTROL OVER OR MAKE ANY
REPRESENTATIONS WHATSOEVER AS TO THE CONTENT, ACCURACY, NATURE, SUBJECT MATTER
OR CORRECTNESS OF ANY DATA PASSED THROUGH OR COMMUNICATED THROUGH FASTNET AND/OR
THROUGH THE INTERNET AS A DIRECT OR INDIRECT RESULT OF FASTNET'S SERVICES AND
USE OF ANY SUCH INFORMATION IS AT THE CUSTOMER'S OWN RISK. FASTNET MAKES NO
WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR ANY SERVICE IT MAY
PROVIDE INCLUDING WITHOUT LIMITATION, AVAILABILITY OF THE INTERNET AND/OR E-MAIL
AND/OR OTHER SERVICES. FASTNET ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER FURTHER AGREES THAT FASTNET WILL NOT
AND CANNOT BE HELD RESPONSIBLE FOR ANY INTERFERENCE AND/OR DAMAGE TO YOUR DATA,
COMPUTER SYSTEM, OR INFORMATION THAT YOU HAVE STORED ON YOUR COMPUTER SYSTEM,
REGARDLESS OF VALUE AND/OR WHETHER PUBLIC OR PRIVATE, DIRECTLY OR INDIRECTLY AS
A RESULT OF THE CUSTOMER'S VOLUNTARY USE OF FASTNET'S SERVICES. FASTNET'S
SERVICES MAY ONLY BE USED FOR LAWFUL PURPOSES AND MAY NOT BE USED IN VIOLATION
OF ANY STATE, FEDERAL OR LOCAL LAWS, RULES OR REGULATIONS.
2. CUSTOMER MUST BE FAMILIAR AT ALL TIMES WITH FASTNET'S ACCEPTABLE USE
POLICY. CUSTOMER is obligated to read, understand and comply with any and all
terms and conditions of the then-current FASTNET Acceptable Use Policy
(hereinafter "AUP"). FASTNET'S AUP is incorporated herein by reference in full
and as it may be amended in the future. The AUP is displayed at
xxxx://xxx.xxxx.xxx/xxx.xxxx and is effective upon public posting. CUSTOMER may
also not directly or indirectly, through the use of FASTNET services, knowingly
violate the rules and terms and conditions of any other networks and/or of any
other Internet Service Providers and/or Online Service Providers. Any violation
of any of the terms and conditions of the AUP by the CUSTOMER could result in
suspension or immediate termination of this Agreement and of any service by
FASTNET to CUSTOMER. Customer agrees to hold harmless and indemnify FASTNET from
any and all losses, damages and costs resulting from any third party allegation
or claim arising out of or related to the use of FASTNET services.
3. While FASTNET strives to provide uninterrupted service, it does not
make any representations regarding interruptions nor does it guarantee
uninterrupted service. FASTNET will not be responsible for any interruption in
service including, without limitation, interruptions due to reasonable
maintenance or repairs, reasonable needs of FASTNET, occasional failures or
downtime or force majeure (all circumstances beyond the control of FASTNET).
WHEREAS, FASTNET is an Internet bandwidth provider connected to the global
Internet. FASTNET offers storage and transfer services over the Internet through
access to its Collocation Local Area Networks;
WHEREAS, Client is (nature of the business) PERSONAL MEDICAL RECORDS
and seeks to utilize FASTNET's network for its own purposes;
WHEREAS, the parties acknowledge that the Internet is neither owned nor
controlled by any one entity; therefore, FASTNET can make no guarantee that any
given customer shall be able to access FASTNET's network at any given time.
FASTNET represents that it shall make every good faith effort to ensure that its
network is available as widely as possible and with as little service
interruption as possible;
NOW THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows;
1. FASTNET will provide the customer with operational space for their
system(s) as agreed to herein; any expenses incurred on this
accommodation will be at the expense of the customer.
2. FASTNET will notify customer when the collocation space is ready for
occupancy. The customer must install operational servers and connect to
FASTNET's Local Area Network 60 days upon receipt of said notice.
BILLING WILL BEGIN ON THE DATE OF NOTICE.
3. FASTNET will provide the customer with a (type and speed of connection)
EXPANDABLE 128K - 256K ETHERNET PVC to FASTNET's link to the Internet
backbone for each of the customer's systems.
4. FASTNET will notify the customer prior to any planned network outages
including, but not limited, to relocation and maintenance of FASTNET
networking devices.
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5. FASTNET will notify the customer as soon as possible of any unscheduled
outages such as power or network failures and natural disasters.
6. FASTNET will designate a demarcation point and each party will be
responsible for maintenance and operation of all equipment on its side
of demarcation.
7. The customer is solely responsible for design, engineering, testing,
performance, monitoring, maintenance, and repair of their equipment
placed in the collocation space or area. FASTNET may be able to assist
the customer with scheduled on-site "hands and eyes" at the rate of
$95.00 per hour on weekdays between 8:OOAM and 5:OOPM, and $190.00 per
hour during all other times. Response time to collocation "hands and
eyes" is not guaranteed and will be provided on a 'best effort' basis
only.
8. The customer will provide FASTNET with administrative (root on Unix
platforms and administrator on Windows 95 and/or Windows NT platforms)
passwords for all collocation systems, for the purpose of proper
shutdown for planned outages, and for the stopping of erroneous or run
away processes that are degrading network performance. Failing that,
FASTNET will take drastic steps such as power or network removal if we
suspect collocation equipment problems. FASTNET will attempt to contact
the customer prior to any customer system modifications in an effort to
avoid disruptions.
9. FASTNET will ensure that any administrative passwords provided by the
customer will be used only for the purposes described and will be
secured with the same care as FASTNET's own passwords.
10. The customer equipment shall not interfere or impair any service
offered by FASTNET. If FASTNET determines that the customer's equipment
is in violation of this, the customer will be notified and has 24 hours
to take corrective action. If within 24 hours the customer fails to
take corrective action or if the violation poses any immediate threat
to FASTNET's network, property or service, FASTNET reserves the right
to take corrective action to include disconnecting electrical power or
removing Network connectivity. FASTNET shall have no liability for any
damages arising from such action.
11. The customer shall identify and label all equipment to include a list
of emergency contacts with telephone numbers.
12. FASTNET will provide the customer with 24-hour unlimited and immediate
access to their equipment through our Collocation facility entrance
after proper verification of electronic security (passcard). The
customer shall comply with FASTNET's policies and practices to fire,
safety, and security. The customer, employees, and contractors of the
customer must display an identification badge at all times while on
premise of the collocation facility.
13. The collocation facility cannot be used to house people or be used as
an office or as a network operations center.
14. The customer may not provide or make available space within the
collocation space to any third party.
15. The customer may not cross-connect any network element to any other
cage, rack or customer within the Collocation space without the
expressed written consent of FASTNET. (FASTNET will provide such
cross-connect services for a fee)
16. Payment for monthly recurring services is due 30 days after the invoice
date, which may be in advance of services, or "on receipt" of invoice
if marked as such. Initial start-up services are billed upon acceptance
of this agreement and are due "on-receipt". Accounts that are
delinquent over 30 days are subject to 1.5% per month interest on the
unpaid balance. Accounts delinquent over 60 days are subject to
suspension, lockout or termination and any credit terms extended will
be revoked making all invoices due and payable in advance of service.
FASTNET reserves the right to terminate this agreement in its entirety
if the customer fails to pay invoices within these terms. Customer
agrees to pay FASTNET its reasonable attorney or collection fees
incurred in enforcing its rights under theses Terms and Conditions. If
Customer cancels any term agreement early, for any reason, Customer
must give FASTNET 60 days advance notice and further agrees to pay
FASTNET 60% of each month's charges remaining in the term commitment.
(Term commitment buy-out) Customer will not be allowed to remove
equipment from the collocation space unless all unpaid balances are
paid.
THE CUSTOMER GUARANTEES THAT ALL OF THEIR SYSTEMS INVOLVED IN THE COLLOCATION
AGREEMENT WILL NOT BE USED DIRECTLY OR INDIRECTLY IN/WITH/FOR ILLEGAL
ACTIVITIES. THE CUSTOMER ALSO GUARANTEES THAT ALL OF THEIR SYSTEMS INVOLVED IN
THE COLLOCATION AGREEMENT WILL NOT BE USED DIRECTLY OR INDIRECTLY IN/WITH/FOR
INCLUDING BUT NOT LIMITED TO ADULT, PORNOGRAPHIC, AND/OR HATE GROUPS'
ACTIVITIES. THE CUSTOMER ALSO AGREES TO FULLY COMPLY WITH FASTNET'S ACCEPTABLE
USE POLICY SHOWN AT xxxx://xxx.xxxx.xxx/xxx.xxxx.
THE CUSTOMER AGREES THAT FASTNET WILL NOT BE HELD RESPONSIBLE FOR LOSS OF OR
DAMAGE TO THEIR EQUIPMENT DUE TO, BUT NOT LIMITED, TO NATURAL DISASTER, FIRE,
AND THEFT. THE CUSTOMER ALSO ACKNOWLEDGES THAT ALL OF THEIR SYSTEMS INVOLVED IN
THE COLLOCATION AGREEMENT ARE COVERED UNDER THE CUSTOMER'S INSURANCE POLICY.
THE CUSTOMER FURTHER AGREES THAT FASTNET WILL NOT BE HELD RESPONSIBLE FOR LOSS
OF BUSINESS DUE TO THE USE OF THESE SERVICES PROVIDED BY FASTNET.
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TERMS
The terms of this agreement will be between 10/16/00 AND Until Cancelled by
IDMEDICAL
THIS AGREEMENT AND ANY AUTHORIZED ADDENDUMS OR ATTACHMENTS IS/ARE THE SOLE
AGREEMENT BETWEEN FASTNET AND CUSTOMER AND SUPERSEDES ANY AND ALL PRIOR
UNDERSTANDINGS, WRITINGS, PROPOSALS, REPRESENTATIONS OR COMMUNICATION, ORAL OR
WRITTEN OF EITHER PARTY.
THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA AND THE EXCLUSIVE FORUM FOR ANY DISPUTES UNDER
THIS AGREEMENT SHALL BE THE NORTHAMPTON COUNTY COURT OF COMMON PLEAS AND/OR THE
FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
I HAVE READ, UNDERSTAND AND AGREE TO THE ABOVE TERMS AND CONDITIONS,
AND I FURTHER AGREE TO ABIDE BY THE FASTNET ACCEPTABLE USE POLICY. USE OF
FASTNET'S NETWORK CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
For Customer: XXXXXXXXX.XXX, INC. ADDRESS: 00 Xxxx Xxxxxxx Xxx
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Printed Name: Xxxxxx X. Xxxxx
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Signature: /s/ Xxxxxx X. Xxxxx Date: 10-17-00
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By FASTNET:
Printed Name: Xxxx Xxxxxxxxxx
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Signature: /s/ Xxxx Xxxxxxxxxx Date: 10-17-00
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