Master Agreement
 

Terms and Conditions for all Metrix IS customers and for all users of Metrix IS services. This Master Terms and Conditions Agreement (the “Master Agreement”) is applicable to customers and users (“You”) of Metrix IS and all other Metrix IS, LLC. affiliated entities (“Metrix IS”). Metrix IS mailing address is: PO Box 26516, Federal Way, WA, 98093 with physical address 1817 SW 323rd Street, Federal Way, WA, 98023.

This Master Agreement specifies general terms and conditions You accept and agree to abide by when accessing or using any service or website provided by Metrix IS. If You do not agree to be bound by the terms and conditions in this Master Agreement, do not use or access Metrix IS’s site or services. Metrix IS provides its services subject to Your compliance with the terms and conditions herein.

 

If You have a separate signed contract with Metrix IS for specific services, that contract will be controlling over and supersede any inconsistent language in this Master Agreement.

 

This Master Agreement may be modified or terminated by Metrix IS at any time, without prior notification to You unless a separate agreement exists between You and Metrix IS which requires advance notification or approval of such changes. You agree to abide by the terms & conditions in this Master Agreement and all subsequent modifications of this Master Agreement. Your continued use of the services provided by Metrix IS following Metrix IS’ posting of any changes to this Master Agreement will constitute Your acceptance of such changes or modifications. If You do not agree to any such changes, do not continue to use Metrix IS services. Failure to abide by these terms & conditions may, at Metrix IS’s option, result in the termination of any or all services Metrix IS is providing to You.

You consent to receive communications from Metrix IS by electronic mail. Metrix IS’ notification email address, which must be used in any official communication with Metrix IS, is info@metrixis.com. It is Your responsibility to ensure that Metrix IS has a valid email address for You on file. Metrix IS’ inability to contact You via email due to a missing, inaccurate, incomplete, or inaccessible email address will waive Metrix IS’ obligation to attempt to contact You.

If any part of this Master Agreement is found to be unenforceable or unlawful, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.

 

You may not enter into this Master Agreement (and thus may not use the services provided by Metrix IS) if You are less than 18 years old.

You acknowledge that Metrix IS may attempt to assist You by phone or email with a variety of technical issues but that You are solely responsible for Your equipment and internal network and for the cost of any consultants or vendors You engage to assist You with any issues You may have with regard to Your internet services from Metrix IS.

 

YOU ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO BACK UP ALL DATA AND CODE ON YOUR SERVERS AND WEBSITES. You agree that Metrix IS has no responsibility to cache or maintain email or Usenet news postings sent either to or from Your account. You agree that if You use an Metrix IS spam and/or virus filtering service that (a) You release Metrix IS from any obligation to cache or maintain such email, any responsibility for errors or omissions introduced when Metrix IS’s services alter or delete such email, and/or any obligation to deliver such email either to or from Your account, and (b) You understand that such services are not perfect and that the use of such services or software will reduce, but not eliminate, spam and/or virus infected email You may receive.

Metrix IS has the right, but not the obligation, to monitor any activity and content associated with its sites or services. Metrix IS may investigate any complaint or reported violation of its policies and take any action it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on a hosted web site.

 

Metrix IS also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials and regulatory agencies. In order to cooperate with governmental requests, to protect Metrix IS’s systems and customers, or to ensure the integrity and operation of Metrix IS’s business and systems, Metrix IS may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history and posted content. You hereby consent to such action by Metrix IS.

 

Metrix IS PROVIDES ITS SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. Metrix IS FURTHER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES AS PROVIDED. Metrix IS FURTHER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR.

 

 

 

If in connection with your allegedly illegal activities, law enforcement officials seize a server in an Metrix IS affiliated data center that your server is running on, you agree you are liable for all damages suffered by Metrix IS, it’s affiliates and other customers affected as a result of such seizure, and you agree that Metrix IS shall have no liability to you as a result of that seizure.

 

IN NO EVENT SHALL Metrix IS BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, OR INTENTIONALLY OR NEGLIGENTLY, THE USE OF Metrix IS’ SERVICES OR THIS AGREEMENT. Metrix IS’ LIABILITY TO ANY USER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.

 

You agree that the location for any litigation arising out of this Master Agreement or Your use of Metrix IS services will be in King County, Washington and You agree to waive all rights to request or enforce a change of such location (venue). You agree that the prevailing party in any litigation brought under this Master Agreement will be entitled to receive its reasonable attorney’s fees and court costs from the other party.

 

You agree not to knowingly transmit, or knowingly permit to be transmitted via any system You control or should control, to or across any site or service operated by Metrix IS, any content consisting of unsolicited commercial email or excessive amounts of commercial Usenet postings (“spam”), or any material designed to discover and/or breach the security systems of Metrix IS or any third party (“hacking”), or any content known to contain a software virus or Trojan horse (“infected material”), or any content otherwise illegal to possess or transmit under the laws or regulations of the State of Washington or the United States of America (“illegal content”). You agree not to fraudulently forge email headers, Usenet headers, IP packet information, or engage in any other activity designed to hide the point of origin of any content You transmit to or through the Metrix IS system (“spoofing”). Standard network techniques such as network address translation or e-mail proxies are not considered “spoofing.” You agree not to knowingly attempt to cancel, supersede or otherwise interfere with email or Usenet posts other than those You originate (“cancel bots”). You agree not to use any third party site or service to promote an Metrix IS service in an abusive manner (“hostile redirection”). You agree not to place or store material on Metrix IS services that infringe a third party’s copyright or trademark rights, and/or are comprised in whole or in part of illegally obtained trade secrets.

 

Metrix IS reserves the right to terminate Your service immediately and without notification if You or any system under Your control engages in the transmission of spam, hacking, transmission of infected material, transmission or possession of illegal content, spoofing, use of cancel bots, hostile redirection, acts of illegal storage, or any other violation of Metrix IS Network Abuse Policies.

 

You acknowledge Metrix IS right to take all available legal and technical steps, including remotely scanning Your ports, to prevent fraudulent or counterfeit e-mail from entering, utilizing or remaining within the Metrix IS system. You grant Metrix IS power of attorney to take all legal and technical steps to prevent the transmission of any and all email to or through any Metrix IS equipment or server that Metrix IS determines, in Metrix IS’ sole discretion, to be undesirable in any way and for any reason, including, without limitation, blacklisting, unsubscribing, opting out, and/or initiating legal actions against the senders of such email.

 

Per the Digital Millennium Copyright Act, Metrix IS’s designated agent for notification of infringements is Gregory Taylor. Mr. Taylor can be contacted through a Copyright Infringement notice or via (greg@metrixis.com). As such, Metrix IS will, upon notice of copyright infringement by the copyright holder, block outside access to any allegedly infringing materials. If the user in question gives counter-notice, Metrix IS will forward such counter-notice back to the copyright holder. If the copyright holder does not file a legal action against the user in question within 14 days, Metrix IS will re-instate access to the alleged infringing materials.

 

You acknowledge that the internet is an inherently insecure environment and that any computer or other equipment You attach to the internet or to any network attached to the internet may become the target of computer hackers. You are solely responsible for keeping Your machines secure and free of viruses or other harmful programs that can directly or indirectly interfere with the operations of Metrix IS’s sites and services, and that of third parties connected to Metrix IS’s networks. You are solely responsible for guarding against and repairing Your computers and other systems from any infection by malicious code or unauthorized use.

You understand and agree that the internet contains unedited materials, some of which are sexually explicit or may be offensive. You access such materials at Your own risk. Metrix IS has no control over and accepts no liability or responsibility whatsoever for such materials.

 

Metrix IS’s websites contain links to other external websites that may be useful to You. Metrix IS is not responsible for the privacy practices or the content of these external websites.

Metrix IS will not be held liable for any charges or incidental fees that You may incur through the normal use of Your service. This includes long distance charges incurred by calling a long distance phone number to receive customer support or to connect to Metrix IS sites or services. You agree to be solely responsible for these fees.

You agree not to resell (or provide free of charge) any Metrix IS site or service to any third party without first entering into a Reseller Agreement with Metrix IS.

If You purchase services from Metrix IS in one to three month increments, no pro-ration of Your prepaid fees will be made in the event of cancellation or termination of service. If You purchase services from Metrix IS in an increment longer than three months, in the event of termination or cancellation, and absent a contrary provision in Your service contract, You will be responsible for 100% of the balance of the remaining payments under Your service contract as of the date of Your cancellation or termination. If You purchase services from Metrix IS which included a rebate or a discount for length of contract and Your service is cancelled or terminated prior to the end of that period, the discount will be revoked and You will be billed for and will be responsible for immediately paying the difference. Metrix IS reserves the right to reduce any refund by offsetting expenses Metrix IS may have incurred as a result of damages You or Your equipment may have caused. All equipment owned by Metrix IS must be promptly returned to Metrix IS when Your service ends.

 

All termination or cancellation notices from You must be sent to info@metrixis.com or in writing to Metrix IS’ mailing address listed in this contract, and please check Your next billing to be sure Your cancellation notice was received and processed.

 

You agree to pay when due for the valid charges for Metrix IS services and agree that such timely payment is an essential condition for Metrix IS services. Faxed copies of signatures shall be as legally binding as original signatures. Any over billing errors must be reported to Metrix IS within 90 days of the error, and adjustments or refunds for errors over 90 days will not be made. Metrix IS reserves the right to bill You for any item that has not been billed to You and should have been.

 

For all payments received more than 15 days after the Billing Date Metrix IS reserves the right to assess a late fee equal to 1.5% of the amount due.

 

You agree to pay for any expenses incurred by Metrix IS with a third party vendor because of erroneous personal information You have provided to Metrix IS.

 

If an Metrix IS technician is dispatched at Your request to Your physical location, You will be billed for the visit at Metrix IS’s standard rate; however, if Metrix IS determines that the problem was not due to matters You are responsible for, then Metrix IS will normally waive the charges. If a technician from a circuit service partner of Metrix IS is dispatched to Your business location, You will be billed for the visit at the same amount, if any, that Metrix IS is billed by the 3rd party service partner for the service call. You will be credited back for some or all of the service call charges if the service partner agrees the problem was not Your responsibility and credits Metrix IS back.

You agree not to make an offer of employment to any Metrix IS employee or affiliate. You agree not to offer any Metrix IS employee or affiliate a commission, gratuity or any other emolument for or in connection with the performance of that person’s duties.

 

Except as otherwise set forth in Your Internet Service Agreement or Order, Your Metrix IS services are exclusive of all other telecommunications services (the “Telco”) which may be required to establish connection for You to Metrix IS, and all such costs and the associated terms and conditions required by the Telco to perform such services shall be directly between You and any Telco provider.

 

There is a Regulatory Cost Recovery Charge for some of the services offered by Metrix IS. When applicable, this charge helps defray the costs of various regulatory, vendor and governmental charges in connection with providing the Services. These charges may include various state or local taxes, TSF fees, governmental internet access fees, network telephone service fees, and other third party charges and fees, but does not include federal Universal Service Fund charges when applicable. For Service locations in Washington State the recovery charge is 12%; for Service locations outside of Washington State the recovery charge is 5%.

 

You specifically waive Your right to sue or ability to assign Your rights for any losses. If You and Metrix IS enter into a separate service agreement that provides for a different termination process, that process will explicitly acknowledge and supersede this clause.

 

If Metrix IS’ direct out-of-pocket circuit costs for Customer increase more than 50%, Metrix IS may request price renegotiation, and if not mutually agreeable then Metrix IS may give a 30-day notice to cancel Your service.

Metrix IS provides internet services on the basis of reasonable availability. It may, without notice, disconnect all or part of its network from external internet connections for maintenance, equipment replacement, or for network security. You agree that Metrix IS’s failure to maintain uninterrupted or continuous connection to the internet at any rate of transmission including total service outage is not cause for termination of any service agreement You may have entered into with Metrix IS, nor is it cause for reimbursement of any damages or harm that may be caused by such interruptions. You agree that You understand that the nature of the internet and the TCP/IP network protocol used by internet services defines no specific quality of service, and that packets transmitted to or from Metrix IS and/or to or from the internet may be lost in transmission, misrouted by Metrix IS equipment or the equipment of third parties, or delayed by network latency.

 

Time is of the essence with regard to all terms and conditions in this Master Agreement.

Because of credit and other constraints, You may not transfer or assign any contract with Metrix IS without the prior written consent of Metrix IS.

Metrix IS will invoice You for any governmental taxes or fees it believes are applicable to Your services. If You fail to pay any such taxes/fees that are properly billed to You, You are solely responsible for payment of any such taxes/fees and penalties or interest.

 

Additional Terms and Conditions for Co-location Services

 

1. Customer will use Metrix IS approved equipment unless otherwise agreed by Metrix IS. Metrix IS provides no guarantees or warrantees for hardware and software products beyond that offered by the manufacturer. Metrix IS is not responsible for insuring, troubleshooting, diagnosing or repairing Customer provided/managed equipment unless this or another Agreement provides for managed monitoring services. You agree to provide adequate insurance to protect Your equipment from all events or persons which may damage such equipment. You are responsible for parties that You allow access to Your equipment or Metrix IS provided equipment. In no case shall Metrix IS be liable for consequential or special damages suffered by Customer due to damage, loss or failure of Customer equipment for any reason.
    

2. Metrix IS may assist in network security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so. The internet is not a secure network. Confidential or sensitive information should not be transmitted over the internet without encryption. Metrix IS is not responsible for loss or theft of information transmitted over the internet.
    

3. Customer shall be assigned one key and/or key card to allow access to its equipment in the collocation facility. A $45 deposit will be charged for each additional key or card issued to Customer and/or its employees or agents, and this deposit will be refunded upon return of the assigned key and/or card to Metrix IS. There will be a $45 charge for each key or card not returned. Customer is responsible for promptly notifying Metrix IS if any key or card is reassigned, providing Metrix IS with the new key/cardholder’s name, contact information and a signed Data Center Access Agreement.
    

4. The Service may not be used in violation of any generally accepted internet or community standards or any laws or regulations of applicable governmental units. Actions such as misuse of copyrighted or protected materials, use of the Service for defamatory, threatening or obscene purposes, and the mass distribution of any unsolicited message to users of the internet is prohibited. Customer agrees to not violate Metrix IS’s Abuse Policy posted at www.metrixis.com/abuse-policy. Any such violations may be grounds for termination of the Service and the collection of applicable damages suffered by Metrix IS.
    

5. Any IP number assigned to Customer will only be used for the agreed Service. Upon IP address reassignment or expiration, service cancellation, or termination of this Agreement, Customer shall relinquish to Metrix IS any IP addresses or address blocks previously assigned to Customer by Metrix IS. Metrix IS reserves the right to reclaim from Customer any assigned IP addresses that are not used by Customer within 120 days of their assignment. All Classless Inter-Domain Routing (“CIDR”) network numbers that may be required for the Service shall be provided solely by Metrix IS. When the Service ends, all CIDR numbers must be relinquished to Metrix IS for reallocation to other customers and will not be available for continued use by the departing Customer.
    

6. Failures of Service by the local exchange or the interexchange carrier, or other third party, or by strikes, labor disturbances, Acts of God, or any event or force of nature which prevents commencement of the Service or continuation of the Service shall give both Metrix IS and the Customer the right to terminate this Agreement without penalty, provided 10 days written notice is first given and the problem is not cured.
    

7. In the event of an extended loss of electrical power at Metrix IS’s data center due to an Act of God, Metrix IS may pass on a portion of the cost of the fuel to run its electrical generators during such an electrical outage to its data center customers as an emergency fuel surcharge. The emergency fuel surcharge may be reasonably allocated by Metrix IS to colocation customers based upon their percentage of data center usage. Power outages totaling less than two hours in any month will incur no emergency fuel surcharge.

8. Metrix IS reserves the right to contact Customer via e-mail, telephone or any other means, for all product offerings, Service changes, billing alterations, newsletters, questions and any other pertinent information, needs or offerings. Metrix IS does not sell or provide Customers information to third parties other than as required of it by law or legal process. See Metrix IS’s Privacy Policy.
    

The language of this Master Agreement is protected by a federal copyright, and the trademark Metrix IS is protected by both state and federal trademark registrations. Unauthorized duplication of language in this Master Agreement and unauthorized use of Metrix IS’s trademark is a violation of federal laws.

The Metrix IS Privacy Policy at www.metrixis.com/privacy-policy is part of this Master Agreement.