Terms & Conditions
COLO HOSTING TERMS AND CONDITIONS
These Terms and Conditions are acknowledged and agreed to on the date of Customer’s Order (“Effective Date”),
by and between BitFrontier Capital Holdings, Inc., a Florida corporation (“Host”) and you, the customer
(“Customer”), for Colo Hosting Services (“Host Services”) and is a part of the complete Customer Agreement
(“Agreement”) which includes these Terms and Conditions and Customer’s Order.
WHEREAS, Host provides Hosting Services in various colo hosting facilities specializing in liquid immersion.
WHEREAS, liquid immersion hosting is a cutting edge technology designed to extend the life of devices through
controlled temperature cooling mechanisms.
WHEREAS, Customer seeks to utilize Host’s Host Services for Customer’s equipment (“Equipment”);
WHEREAS, Host represents that it shall make every good faith effort to ensure that its Host Services are available
with as little service interruption as possible.
Now, therefore, in consideration of the premises and of the mutual promises herein contained, and by proceeding
with Customer’s Order, the parties agree as follows:
1. HOST SERVICE OBLIGATIONS
1.1 Upon acceptance by Host of an Order for Host Services, Customer will ship Customer’s Equipment to Host at a
Host Facility to be specified by Host for the purpose of Host Services in a location determined by Host (hereinafter
“Customer Space”) in one of Host’s colo hosting facilities (“Host Facility” or “Host Facilities”), effective as of the
Service Commencement Date. The location of the Customer Space within a Host Facility shall be determined by
Host, in its sole discretion provided, however, Customer’s reasonable preferences identified to Host may be
considered. Customer is responsible for all shipping charges to and from Host Facilities.
1.2 Host shall use commercially reasonable efforts install Customer’s Equipment as soon as reasonably practical
after receipt of Customer’s Equipment. This shall include inspecting and testing Customer’s Equipment prior to
installation. In the event Host determines that Customer’s Equipment is damaged, not functioning properly, or not
suitable for Hosting Services, Host shall notify Customer and return Customer’s Equipment, in which case the
Agreement shall be automatically terminated. The term of use of the Customer Space shall begin on the date of
completion of installation of Customer’s Equipment (“Service Commencement Date”). Host shall provide the
following Services in connection with the Customer Space:
(a) Physical space as determined by Host;
(b) Physical security for the Host Facility (security station and personnel, 24 hours/day, 365 days/year);
(c) Power to the Customer Space;
(d) Preparation of Customer’s Equipment for liquid immersion.
(e) Host Facility environmental controls (temperature and humidity); and
(f) Security alarms and fire alarm/suppression systems for the Host Facility.
1.3 Host shall provide cabling for services provided by Host (e.g., network services, network monitoring) and
maintenance on equipment and cabling owned by Host.
1.4 Host shall perform remote and ad hoc engineering and repair services as requested by Customer on an as-
needed basis. Remote and ad hoc engineering and repair services shall be billed at the rate agreed to by Customer
prior to such services being provided. In no case, does this rate include the cost of any materials or equipment
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supplied by Host. Remote and ad hoc engineering and repair services shall be provided to Customer’s Equipment
within the Customer Space only pursuant to the express instructions of Customer, and as such, Customer hereby
releases and shall hold Host, its employees and contractors harmless from and against all losses relating to Host’s
performance of such remote or ad hoc engineering and repair services. Customer agrees that all requests for
remote and/or ad hoc engineering and repair services will be billed to Customer at the rates specified, excluding
any service request that is the result of the Host. The response time for remote and ad hoc engineering and repair
services will be based upon available resources at time of Customer request. There shall be no warranty for repairs.
1.5 Definitions. Urgent, Non-Urgent, Service & Business Requests. For purposes of the Agreement, a customer
request for remote and/or ad hoc engineering or repair support shall be deemed Urgent in any case where a
component, application or critical feature of the Customer Equipment or Customer Space is considered down or
non-operational, to such a degree that no work can be performed. For purposes of the Agreement, a request for
remote and/or ad hoc engineering or repair support shall be deemed Non-Urgent when the Customer’s Equipment
or Customer Space is performing in an abnormal or inconsistent manner, that does not otherwise prevent work on
the system. A Service Request shall include any request made by the Customer to the Host that relates to or
concerns routine maintenance or service on the Customer Equipment or Customer Space, which is not otherwise
considered Urgent or Non-Urgent.
1.6 Host shall perform such janitorial services, environmental systems maintenance, power maintenance and other
maintenance actions as Host deems necessary or desirable with respect to the Host Facility in which the Customer
Space is located. Host will from time to time monitor and maintain its network, Host Provided Equipment and Host
Facilities (“Facilities Maintenance”). Customer acknowledges and agrees that the performance of Host Facilities
Maintenance and Customer Maintenance may cause the network to be temporarily inaccessible and the Services
temporarily unavailable to Customer. Host will use commercially reasonable efforts to conduct such Maintenance in
a manner and at such times so as to avoid or minimize the inaccessibility of the network and/or unavailability of the
2. CUSTOMER OBLIGATIONS
2.1 Customer shall use the Customer Space only for placement and maintenance of Customer’s Equipment.
2.2 Customer shall provide all end-user equipment.
3. TERM & RIGHT OF TERMINATION
3.1 Initial Term. The term of the Agreement shall be from the Effective Date, which term shall renew automatically
until the termination or expiration of the last service (“Agreement Term”). Each Service shall have an initial term of
Service for twelve (12) months, commencing on the Service Commencement Date (“Initial Term”). Subsequent
terms of the Agreement automatically renew on a monthly basis (“Renewal Term”) unless Customer provides Host
with written notice of non-renewal at least thirty (30) days before the end of the Initial Term.
3.2 Host reserves the right to modify its rates or the Agreement during any renewal period, provided it first notifies
Customer at least thirty (30) days in advance of the effective date of such rate or Agreement change.
3.3 When service(s) are offered, and agreed to on a monthly basis, a term begins on the first day of the month and
ends on the last day of the month. On the date that Host activates Service, the Customer shall be charged a pro-
rated fee from activation date until the first day of the following month, and thereafter charged on a monthly basis.
3.4 Termination. If Customer elects to terminate a service prior to the end of a monthly term, Customer will be
obligated to pay the full month’s charges for that service, including, without limitation, unbilled charges, plus any
termination fee(s), if applicable, all of which will immediately become due and payable.
3.6 Termination by Host. Host may terminate Customer’s rights to any or all Services if Customer fails to pay any
undisputed sum for Services when such payment is due and such failure remains uncured ten (10) days after
written notice is given by Host.
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3.7 Holdover Customer. If Customer continues to use any Service after early termination of the Initial Term for such
space, then Customer shall remain subject to the terms and conditions of the Agreement and the recurring monthly
charge and usage charges during such hold-over period shall increase to one hundred fifty percent (150%) of
service and usage charges under the Initial Term.
4. FEES AND PAYMENT TERMS.
4.1 Host will invoice Customer for all Services on a monthly basis, with fixed recurring charges invoiced in advance
and all other charges invoiced in arrears. Customer will pay each invoice in full within thirty (30) days of the invoice
date. Host may change the prices for the Services prior to any Renewal Term by notifying Customer of such price
changes at least thirty (30) days prior to the start of any Renewal Term.
4.2 Upon request, Customer shall provide Host with information reasonably requested by Host to determine credit
worthiness and credit qualifications. A security deposit equivalent to two months of fees may be required to
accompany each Order. The security deposit shall be applied to the last two months of Services with any short fall
or overage adjustment applied to the last month of Services.
4.3 Any payment not received by Host when due will accrue interest at a rate of one and one half percent (1 ½%)
per month compounded daily, or the highest rate allowed by applicable law, whichever is lower.
5. ACCESS TO CUSTOMER SPACE
5.1 No Access. Customer shall have no right to access Customer Space or the Host Facility.
6. SERVICE LEVELS
6.1 Power. Except in the event of Facilities Maintenance Host shall utilize commercially reasonable efforts to supply
power to Customer’s Equipment.
6.2 Temperature Guarantee. Host shall utilize commercially reasonable efforts to ensure the temperature of
Customer’s Equipment will not exceed Customer Equipment specifications (“Temperature Guarantee”).
7. MUTUAL REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
7.1 Each party represents, warrants and covenants that:
(a) it has and will maintain the legal right to use, operate and locate its equipment in the Host Facility;
(b) the performance of its obligations hereunder will not violate any applicable laws;
(c) neither the execution of the Agreement nor the performance of its obligations hereunder will constitute a
breach by it of any agreements to which it is a party or by which it is bound;
(d) all equipment, materials and other tangible items placed by it at Host Facility will be installed, operated,
used and maintained in compliance with all applicable Laws;
(e) liquid immersion of Customer’s Equipment may void Customer’s warranty.
7.2 Indemnity. Customer agrees to indemnify, defend and hold harmless the Host from any and all Losses arising
from or relating to (i) any claim by any of the Customer Parties; and (ii) any claim by a customer or end-user of
Customer, relating to, or arising out of, Customer’s or any of its customers’ services or the Services provided under
the Agreement (including claims arising from or relating to interruptions, suspensions, failures, defects, delays,
damage to Customer’s equipment, impairments or inadequacies in any of the aforementioned Services).
7.3 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, THE
SERVICES (INCLUDING ALL MATERIALS SUPPLIED AND USED THEREWITH) ARE PROVIDED “AS IS”
“WHERE IS”, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. HOST DOES NOT MAKE,
AND HEREBY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED,
WHETHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT
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LIMITED TO, WARRANTIES OF MERCHANTABILITY, HABITABILITY, MARKETABILITY, PROFITABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, NONINFRINGEMENT, TITLE, OR ARISING FROM A
COURSE OF DEALING, OR TRADE PRACTICE.
7.4 Consequential Damages Waiver. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF
TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE
OR EQUIPMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
7.5 Limitation of Liability and Assumption of Risk. Customer acknowledges and agrees that liquid immersion
technology puts Customer’s Equipment at inherent risk of damage. No bailment is created under the Agreement.
Customer assumes the risk of damage to Customer’s Equipment, except where caused by the gross negligence or
intentional misconduct of Host.
8. MUTUAL CONFIDENTIALITY
8.1 Disclosure and Use. Each party agrees that it will not use in any way, nor disclose to any third party, the other
party’s Confidential Information, and will take reasonable precautions to protect the confidentiality of such
information, as stringently as it takes to protect its own Confidential Information, but in no case will the degree of
care be less than reasonable care. Nothing herein shall preclude disclosure by a party to that party’s attorneys,
accountants and employees who have a bona fide need to know the other party’s Confidential Information in
connection with the receiving party’s performance under the Agreement. Each party agrees to only make copies of
the other’s Confidential Information for purposes consistent with the Agreement, and each party shall maintain on
any such copies a proprietary legend or notice as contained on the original or as the disclosing party may request.
8.2 Exclusions from Confidentiality Obligations. Notwithstanding the confidentiality obligations required herein,
neither party’s confidentiality obligations hereunder shall apply to information which:
(a) is already known to the receiving party (other than the terms of the Agreement);
(b) becomes publicly available without fault of the receiving party;
(c) is rightfully obtained by the receiving party from a third party without restriction as to disclosure;
(d) is approved for release by written authorization of the party having the rights in such Confidential
(e) is developed independently by the receiving party without use of the disclosing party’s Confidential
(f) is required to be disclosed by Law.
9. MUTUAL INSURANCE REQUIREMENTS.
9.1 Host agrees to maintain property and casualty insurance (all risks) covering Host’s Facilities. Customer shall
maintain property and casualty insurance (all risks) covering Customer’s Equipment. Customer agrees that it will
insure and be solely responsible for insuring for damage to Customer’s Equipment.
10. ARBITRATION, REMEDIES AND DAMAGES, AND LIMIT ON WARRANTIES.
10.1 If Host fails to meet an above defined Service Level Guarantee during the Term of the Agreement, as
Customer’s sole and exclusive remedy, Customer shall be entitled to receive Service Level Credits described in the
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10.2 In no event shall Customer’s total amount of Service Level Credits in any given month exceed the total
Monthly Charges for that month. Customer’s remedies are limited to Service Level Credits as described above and
termination rights described in Section 3 of the Agreement.
10.3 Arbitration. Any controversy or claim arising out of or relating to the Agreement, and any other disputes
between the parties hereto, shall be settled by arbitration in accordance with the commercial arbitration rules of the
American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be
entered in any court having jurisdiction thereof. Any arbitration proceedings shall be held at the offices of the
American Arbitration Association in Fresno, California. It is expressly agreed that the arbitrator shall be empowered
and permitted to grant preliminary and permanent equitable relief in addition to awarding damages.
11. MISCELLANEOUS PROVISIONS
12.1 Modification. The Agreement may be modified only by a written instrument signed by an amendment to be
executed by the parties.
12.2 Relocation of Customer Equipment or Customer Space. If it is necessary or desirable, for Host’s efficient use
of the Host Facility, to relocate the Customer Equipment or Customer Space to another area in the Host Facility, the
Parties will cooperate in good faith with each other to facilitate such relocation. Host shall be solely responsible for
the costs incurred by Host in connection with any such relocation. Relocation made by Host at the request of
Customer, will be at the sole expense of Customer. Host will use commercially reasonable efforts to minimize and
avoid any interruption in Services during such relocation.
12.3 Force Majeure. Host shall not be responsible for any failure to perform its obligations under the Agreement if
such failure is caused by war, labor strike, terrorist act, fire, flood, earthquake, natural disaster, act of Government,
or other events beyond the Host’s reasonable control.
12.4 Mailbox Rule. Any notice required to be given hereunder shall be in writing and shall be deemed to have been
delivered when deposited in the United States mail (registered or certified mail), return receipt requested with
adequate postage affixed, or delivered to a national overnight courier service and addressed to the persons set
12.5 Assignment. Neither party may assign the Agreement or resell the Services, or sublicense or sublease the
Services without the written consent of the other, which shall not be unreasonably withheld. Failure of the non-
assigning party to object to an assignment within ten (10) days after receipt of such notice shall be deemed tacit
approval of the assignment. Notwithstanding, either party may freely assign or transfer its rights or obligations under
the Agreement if such transfer occurs by operation of law under a bona fide merger, divestiture, consolidation, or
reorganization, or to any purchaser of all or substantially all of the assets of the business of the assigning party,
provided the assignee is bound by this agreement, is financially able to complete its obligations, and is not a direct
competitor of the non-assigning party. Notwithstanding, should either party assign the Agreement to an entity not
reasonably acceptable to the other, the objecting party may terminate the Agreement after thirty (30) days written
notice. This Agreement shall apply to, bind, and inure to the benefit of, any permitted transferees, assignees or
successors, all of whom shall execute counterparts of the Agreement, and Customer shall remain liable for the
payment of all charges due under each Order or otherwise due or to become due under the Agreement.
12.6 Entire Understanding. This Agreement constitutes the entire understanding and agreement of the Parties
related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, agreements and understandings related to such matters. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the
12.7 Publication. Neither party shall issue any publication relating to the Agreement, except as may be required by
Law. Notwithstanding, either party may publicly refer to the other Party both orally and in writing, as a
Customer/Service provider of the other.
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12.8 Attorneys’ Fees. If either Party retains an attorney to enforce the terms of the Agreement or to collect money
due hereunder, the prevailing party shall be entitled to recover reasonable attorneys’ fees, court costs and other
related expenses incurred in connection therewith.
12.9 Independent Contractors. Host and Customer are independent contractors; the Agreement will not establish
any relationship of partnership or agency. Customer has no rights as a tenant or otherwise under any real property
or landlord/tenant laws.
12.10 Savings Clause. If any provision of the Agreement is adjudged by a court or arbitrator to be invalid, illegal or
unenforceable, the same will not affect the validity, legality, or enforceability of any other provision of the
Agreement. All terms and conditions of the Agreement will be deemed enforceable to the fullest extent permissible
under applicable law.
12.11 No Waiver. The failure by either party to enforce any rights hereunder shall not constitute a waiver of such
right(s) or of any other or further rights hereunder. The waiver of any breach or default of the Agreement will not
constitute a waiver of any subsequent breach or default.
12.12 Third Party Beneficiaries. There shall be no third party beneficiaries to the Agreement.
12.13 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State
of California, except its conflicts of law principles.
(a) “Ad hoc engineering services” means any technical support considered to be above and beyond remote
support, which usually includes technical support from a consultative or operational perspective.
(b) “Agreement” means the general terms and conditions herein and includes any Addendum, Product
Description, Order, Specification, Statement of Work, Scope of Work, the Rules and Regulations, and all
other items expressly incorporated herein.
(c) “Confidential Information” means information which (i) derives actual or potential economic value from not
being generally known to, and not available through proper means, by other persons who could obtain
economic value from receipt or use of such information, (ii) is the subject of reasonable efforts by its owner
to maintain its confidentiality or secrecy, or (iii) is by its nature confidential, trade secrets or otherwise
proprietary to its owner. Confidential information includes the terms and conditions of the Agreement,
software source and object code, inventions, know-how, data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, configurations, plans, processes, financial and business plans,
names of actual or potential customers or suppliers, Host Facility configuration, and Technology.
(d) “Customer Space” means the portion of the Host Faciltiy and associated power in which Host licensed
Customer under an Order. The location of the Customer Space shall be determined by Host in its sole
discretion, provided however, that Customer’s reasonable preferences be considered.
(e) “Host Facility” means any of the buildings and facilities owned or leased by Host from which Services are
(f) “Host Provided Equipment” means any hardware, software and other tangible equipment leased,
subleased, licensed or sublicensed by Host to Customer.
(g) “Facilities” means any and all devices generally used by Host to deliver Services to its customers, but
excluding Host Provided Equipment and Customer Equipment.
(h) “Facilities Maintenance” means the times Host monitors and maintains its network, Host Provided
Equipment or Facilities.
(i) “Initial Term” as to any Order, means the period of time specified in an Order for which Host will provide the
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(j) “Losses” means claims, demands, actions, suits, proceedings, and all damages, judgments, liabilities,
losses, and expenses (including, but not limited to, reasonable attorneys’ fees).
(k) “Order” means Customer’s order for Services that has been accepted by Host. The Order includes backup
detail, including without limitation, any Addendum to the Agreement, Specifications and Statements of
Work, and shall set forth the Services, the prices to be charged for Services.
(l) “Party” or “Parties” means representatives, agents, employees, officers, directors or contractors, or
(m) “Product Description” means the written description of a Service.
(n) “Professional Services” means professional engineering or computer design, software development,
support or other consulting service provided, pursuant to a Statement of Work or Scope of Work.
(o) “Remote service” means general Customer directed actions such as power cycling equipment, basic power
or data cabling support, and simple keystroke commands to reboot or configure equipment.
(p) “Renewal Term” for an Order means successive periods of one year.
(q) “Representatives” means the individuals identified who are authorized to interact with Host.
(r) “Rules and Regulations” refers to the Host’s policies, if any, as posted at Host’s website.
(s) “Services” means all offerings of services and goods, including licenses of the Customer Space.
(t) “Service Commencement Date” means the date of successful operation of Customer’s Equipment.
(u) “Specifications” means the detailed description of Services, other than Professional Services, attached to
(v) “Statement of Work,” “Scope of Work” or “Work” means the detailed description of Professional Services
attached to any Order.
(w) “Technology” means proprietary technology developed or created by Customer, including Customer’s
operations, design, content, hardware designs, algorithms, software (in source and object forms), user
interface designs, architecture, class libraries, and documentation (both printed and electronic), know-how,
trade secrets and any related intellectual property rights throughout the world, and any derivative works,
improvements, enhancements or extensions thereof.
(x) “Term” as to any Order, means the Initial Term and all Renewal Terms for that specific Order.
By proceeding with Customer’s Order Customer is acknowledging these Terms and Conditions and agrees to be
bound by the Agreement as of the Effective Date.