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Global Master Services Agreement Package
Global Master Services Agreement (Global MSA)
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THIS GLOBAL MASTER SERVICES AGREEMENT is by and between Phoenix NAP, LLC (“Phoenix NAP”) and the individual or entity (“Customer”) for certain computer infrastructure, computer hardware, software components, and related services provided by Phoenix NAP as ordered or accepted pursuant to the Terms of Service (“Services”). This Agreement comprises the Terms of Service for several Phoenix NAP offerings, some of which may or may not be applicable to Customer upon execution. The Customers use of and access to these Services is governed by the Master Service Agreement which includes the Terms of Service for each respective offering, Service Level Agreement (“SLA”), Privacy Agreement (“PA”), Acceptable Use Policy (“AUP”) and relevant addendums (which may include without limitation the international contracting party addendum that is attached below) (“MSA”).
BY CLICKING OR CHECKING THE ACCEPTANCE BOX PROVIDED WITH THIS MSA, ELECTRONICALLY SIGNING, OR INSTALLING OR UTILIZING PRODUCTS, AND OR SERVICES, THE CUSTOMER AGREES TO THE FOLLOWING:
3. TERMS OF SERVICE: FACILITY LICENSED COLLOCATION
Subject to the terms and conditions of this Agreement, including but not limited to Customer's timely payment to Phoenix NAP of all fees specified in this Agreement, Phoenix NAP will License to Customer the Customer Area to use and occupy on an exclusive basis for the purposes set forth herein and will provide to Customer the Related Data Center Services as described in the Service Order Form and in accordance with the terms and conditions of this Agreement.
In consideration of the fees and charges specified in the Agreement and subject to the terms and conditions hereof, Phoenix NAP hereby licenses to Customer the Customer Area for the installation, operation, and maintenance of the Customer Equipment. Customer has or shall be given the opportunity to inspect the Customer Area and the Data Center and accept them in their “as-is where-is” condition.
Customer shall be responsible for procuring all items and performing all tasks, responsibilities, and services not expressly delegated to Phoenix NAP in this Agreement. Without limiting the generality of the foregoing, it is the Customer’s responsibility to (a) install, rack, stack and otherwise deploy the Customer Equipment into the Customer Area in a manner consistent with this Agreement; (b) label all Customer Equipment, cables, and other elements within the Customer Area in a clear and easily identifiable manner; (c) obtain, document, and pay for any rights which may be needed to provision the Related Data Center Services (and/or related equipment) at premises owned, leased, occupied, or otherwise used by Customer, including without limitation, all rights of entry, roof rights, cable access rights, riser rights, and other building access rights and (d) timely provide the following documents for Phoenix NAP’s review and approval prior to the installation of Customer’s Equipment: (i) Network Diagram (if requested by Phoenix NAP); (ii) IP Address/Space Justification; (if requested by Phoenix NAP)(iii) Equipment List; (iv) Escalation Procedures, (v) Billing and Key Contacts List; (vi) Access List and (vii) such other documents as Phoenix NAP may reasonably request. Except as specifically provided in this Agreement, Customer assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance, and management of the Customer Area. Customer, at Customer’s sole cost and expense, shall keep and maintain the Customer Area in substantially the same condition as it was furnished to Customer on the Installation Date (including, but not limited to, all non-structural interior portions, systems, and equipment; interior surfaces of exterior walls; partitions and ceilings; in good order, condition and repair, reasonable wear and tear excepted. Customer shall keep the Customer Area in a neat and sanitary condition and will not commit or allow any nuisance or waste in, on, or about the Customer Area or the Data Center. Customer’s repairs shall be at least equal in quality and workmanship to the original work, performed by Phoenix NAP, or other authorized contractor and Customer shall make the repairs in accordance with all applicable Laws. By accepting these Terms of Service for Collocation, Customer waives the benefit of any Commercial Landlord and Tenant Law permitting Customer to make repairs at Phoenix NAP’s expense. In the event Customer fails to timely perform any of the Responsibilities in connection with its use of the Customer Area, in addition to any other rights or remedies available to Phoenix NAP under this Agreement and under Law, Phoenix NAP shall have the right but not the obligation to perform such Responsibilities on Customer’s behalf and recover from Customer, upon demand, all amounts expended by Phoenix NAP in such performance, plus ten percent (10%) of all such amounts for handling, supervision, and overhead expenses.
C. BEST EFFORT SUPPORT
Customer may, from time to time, request performance of certain services with respect to the Customer Equipment located in the Customer Area that are performed with “eyes,” “ears”, and “fingers,” but without the involvement of any installation of new equipment or any troubleshooting, diagnostics, systems access or login, testing or heavy physical labor (collectively, “Remote Assistance Services”). Examples of Remote Assistance Services include the following:
D. MIGRATION; MANAGED BACK UP SERVICES
In the event Phoenix NAP needs to obtain access to and/or perform operations on client systems, or devices, inadvertent consequences may result in client data loss, and/or system disruption. Client is therefore required to maintain sufficient, independently redundant backups for the recovery and reconfiguration of client systems and devices. Phoenix NAP hereby disclaims, and client hereby acknowledges and agrees not to hold Phoenix NAP liable for any damages which may result from data loss occurring during data migration, and or managed back up services.
Customer is required to provide clear, specific, and detailed instructions with respect to the Remote Assistance Services requested. Neither Phoenix NAP nor the applicable Service Provider, or any of their respective personnel are required to act on directions that they reasonably believe are unclear or incomplete. The personnel of Phoenix NAP or of the applicable Service Provider are not expected or required to make judgments or exercise discretion with respect to requested Remote Assistance Services, nor to make recommendations as to courses of action to follow. If personnel of Phoenix NAP or of the applicable Service Provider either do not understand an instruction, or believe it to be incorrect or inadvisable, such personnel may elect in their sole discretion not to proceed with such task until their concerns have been resolved; provided that such personnel explain such concerns to Customer. In addition to the limitations on liability set forth in the Agreement, neither Phoenix NAP nor the applicable Service Provider, nor any of their respective personnel or agents will have any liability for any damages arising out of their actions in response to or failure to act on any Customer request for Remote Assistance Services unless such damages are the direct result of such parties’ gross negligence or intentional misconduct.
F. REQUEST PROCEDURE
Each Customer request for Remote Assistance Services will require a separate initiation by Customer to Phoenix NAP, initially by telephone, followed by an e-mail or other written method. If such request is received during regular business hours, Phoenix NAP will use reasonable efforts to respond to Customer’s request for Remote Assistance Services within one hour of receipt of the written request. If any such request is received outside of regular business hours for Phoenix NAP will use reasonable efforts to respond to Customer’s request for Remote Assistance Services within three (3) hours of receipt of the written request. Customer’s requests shall be sent to email@example.com or to such other address as may be designated by Phoenix NAP by notice to Customer. Notwithstanding the foregoing, the parties acknowledge and agree that Phoenix NAP shall have the right to respond to requests for Remote Assistance Services in the manner and within the timeframe that Phoenix NAP deems reasonable and appropriate, in its sole but professional discretion. Additionally, the parties acknowledge and agree that the Remote Assistance Services provided by Phoenix NAP, are intended to be incidental to the Related Data Center Services and shall not unreasonably interfere with Phoenix NAP’s business operations.
G. MAINTENANCE OF DATA CENTER
Phoenix NAP will use commercially reasonable efforts to cause the Data Center Facility to be maintained in efficient working order and in accordance with its written maintenance standards. Phoenix NAP will have sole responsibility for negotiating, executing and administering the contracts related to the operation, maintenance and repair of the Data Center. Should any condition exist that may impair the integrity of the Data Center, Phoenix NAP will initiate and co-ordinate planned maintenance, which may include disconnection of all or any part of the Data Center. Phoenix NAP will, to the extent reasonably practicable, give Customer seven (7) business days’ notice in writing (or such shorter period as may be reasonably necessary), prior to initiating a planned maintenance operation, of the timing, scope and costs of such planned maintenance operation. Phoenix NAP will use all reasonable efforts to conduct planned maintenance outages, if any, of the Data Center during the hours of 01:00 and 06:00 local time on Sunday. Customer is responsible for providing Phoenix NAP with up to date and current contact information, including email contact for technical issues and all notifications.
H. CONDITIONED POWER
Phoenix NAP shall deliver to Customer the amount of Conditioned Power set forth in of the Service Order Form for this Agreement. Customer shall (a) comply with the applicable electrical code, and (b) utilize the manufacturer’s specifications to determine the proper power allocation for each item of equipment it deploys in the Data Center. Customer may only connect and configure their equipment to their assigned power circuits such that the total electrical load on any circuit is less than 80% of the breakered circuit capacity. Customer may replace such standard power strips only with UL listed equipment which is approved in advance by Phoenix NAP. Phoenix NAP reserves the right to decline to provide Conditioned Power to the Customer Area in any manner which Phoenix NAP, in its reasonable discretion, deems to be unsafe, unreasonable, illegal, or otherwise inconsistent with the electrical design of the Data Center. Customer may choose, as defined in the Service Order, to receive their power in a “2N” or “A+B” configuration, where the “B” circuit is only intended for added redundancy and not increased primary load. It is the Customer’s responsibility to connect and configure their equipment to the power circuits such that the total electrical load across both the Primary circuit and the redundant circuit is less than 80% of the breaker circuit capacity of either individual circuit. If at any time the Customer installs equipment in such a way that causes the electrical load to be over 80% of the breaker circuit capacity of either individual circuit, Phoenix NAP will consider both circuits to be Primary or A-side circuits, and will charge the Customer for the resulting increase in density and power used. The resulting charge will be prorated and will appear on a subsequent invoice received by Customer.
Customer, at its cost and expense, may request that Phoenix NAP, complete cross connection(s) to or from third-parties within the Data Center (or which serve the Data Center), provided that Customer (a) provides to Phoenix NAP (i) a completed Cross Connect Request Form (available from the Phoenix NAP’s operations center), (ii) a description of the type of cable and size of Cross-Connection(s), (iii) the destination within the Customer Area of such Cross-Connection(s), (iv) the carrier providing such Cross-Connection(s) and (v) the applicable tracking or order number, and (b) agrees to pay Phoenix NAP the fee for such Cross-Connection(s) as set forth on the Cross Connect Request Form. All points of interconnection, conduit and/or cable routes and other details shall be determined by Phoenix NAP in its sole discretion and shall belong to Phoenix NAP during and after the Term hereof. The responsibilities of Phoenix NAP shall be to run and terminate a physical cable and test the cable to confirm continuity of the physical layout thereof. Customer shall be responsible for the circuit underlying such cross-connection, including the initial turn-up, integration, logical function and use thereof. Customer expressly recognizes that other than completing the Cross-Connection, Phoenix NAP does not have any responsibility whatsoever for the nature, performance, quality, integration, protocol, timeliness, utility or other features of circuit(s) provided by a third-party carrier or provider, which shall be governed solely by Customer’s agreement(s) with such carrier or provider.
J. IP BANDWIDTH
If IP Bandwidth services are to be provided by Phoenix NAP hereunder to Customer, the following terms and conditions shall apply:
K. SUB-LICENSED COLLOCATION
With the prior written consent of Phoenix NAP, not to be unreasonably withheld, Customer may physically collocate the equipment of a third-party (each, a “Collocation User”) at the Customer Area and utilize the Customer Area for the benefit of these Collocation Users provided that Customer (i) registers in advance with Phoenix NAP the name, contact information and specific services utilized by such Collocation User, (ii) ensures the compliance by such Collocation User with this Agreement (including without limitation the Terms and Conditions and the Rules and Regulations), (iii) remains responsible and liable for the acts, omissions and other conduct of such Collocation User, and Phoenix NAP will not permit Customer to provide any Related Data Center Services to a Collocation User which has been terminated or refused service directly by Phoenix NAP. In consideration for the foregoing, upon expiration or termination of this Agreement for any reason (including failure by Customer to timely pay amounts due hereunder) or upon the request of any Collocation User or other Customer of Customer, Phoenix NAP retains the right (but not obligation) to contract directly with that party for the provision of any Related Data Center Services. Customer specifically consents to the use by Phoenix NAP of the Collocation User information which Customer registers with Phoenix NAP for this purpose. Under no circumstances shall Phoenix NAP be obligated to discontinue services to a Collocation User which desires the continuation of such services.
4. FEES AND BILLING
Customer will timely pay all License Fees, costs and other charges due as set forth in this Agreement and on the Service Order Form as such Order Form may be amended from time to time by the mutual agreement of the parties. Customer shall have the exclusive right to use the Customer Area for the purposes permitted, and Phoenix NAP shall provide to Customer the quantity and type of services specified on the Service Order Form, at the License Fees listed on the Service Order Form. Phoenix NAP may provide additional space in the Data Center and/or may provide additional Related Data Center Services to Customer at prices upon which Phoenix NAP and Customer agree, as reflected in a Change Order. Notwithstanding the foregoing, Phoenix NAP reserves the right to pass along to Customer the actual, pro-rata increase in the cost of electricity, which increase will be applicable immediately and will be billed on a pass-through basis.
Metered Usage Power is provided to Phoenix NAP from Utility providers. Accordingly, utility providers may, from time to time, increase the amounts charged to Phoenix NAP for delivery of power used in data center operations. In the event such an increase occurs, Phoenix NAP is hereby authorized to pass through the increased cost for delivery of such power to Customer. This increase may be in addition to other Metered Power costs reflected in the Service Order Form.
Customer shall be solely responsible, and at Phoenix NAP’s request will reimburse Phoenix NAP, for all costs and expenses reasonably incurred by Phoenix NAP in connection with this Agreement and the provision of the Related Data Center Services hereunder (the “Expenses”), provided such Expenses were expressly pre-approved by Customer (such approval not to be unreasonably withheld, delayed or conditioned) or are otherwise expressly authorized herein. Phoenix NAP reserves the right to assign the provisioning of related data center services to qualified third parties (“Service providers”).
D. BILLING AND PAYMENT TERMS
Unless otherwise expressly provided in the Service Order Form, (i) License Fees (as defined in the Service Order Form) are due and payable in advance on the first day of each month of the Term and (ii) any applicable charges in addition to License Fees (including without limitation, Expenses) are due and payable within thirty (30) days of receipt from Phoenix NAP of an invoice reasonably describing the amount of such charges. In the event of a disputed invoice, Customer agrees to (i) notify Phoenix NAP in writing of such disputed amount within thirty (30) days of Customer’s receipt of the subject invoice, (ii) pay all undisputed amounts in a timely fashion, (iii) make authorized personnel of Customer available to resolve the dispute and (iv) pay all disputed amounts that Customer is required to pay pursuant to a proper court order or award from any mutually submitted arbitration within ten (10) days from the date of such agreement or determination, including any interest specified in such court order or award . All amounts not timely and appropriately disputed shall be deemed final and not subject to further dispute. All payments will be made in U.S. dollars at Phoenix NAP’s address set forth in this Agreement or at such other address, or to such other bank account, as Phoenix NAP may from time to time indicate by providing written notice to Customer. Any annual escalation in License Fees and/or other charges shall be effective upon each anniversary of the Billing Commencement Date.
E. DELINQUENT PAYMENTS; FINANCIAL CONDITION
If Customer becomes delinquent in its payment obligations or other credit or financial requirements established by Phoenix NAP, or, if in the reasonable judgment of Phoenix NAP, Customer’s credit becomes impaired, Phoenix NAP may, upon prior written notice to Customer, modify Customer’s payment terms to require full payment before the provision of Related Data Center Services (or may use other means of securing Customer's payment obligations hereunder, including the establishment of, or increase to, the Security Deposit set forth in Section F: Security Deposit below. Customer agrees to provide Phoenix NAP with such financial information as is reasonably necessary for Phoenix NAP to undertake such credit review analysis. Failure by Customer to timely respond to Phoenix NAP’s request for evidence of credit worthiness shall allow Phoenix NAP to modify the payment terms to require full payment before the provision of Related Data Center Services, immediately upon written notice or terminate all services.
F. SECURITY DEPOSIT
If Customer places a Security Deposit with Phoenix NAP pursuant to this Agreement, then the Security Deposit shall (a) be retained by Phoenix NAP for the benefit of Customer in Phoenix Nap’s general account (i.e., not in a segregated account), (b) not bear interest for the account of Customer, (c) be available to Phoenix NAP to draw upon should any obligation of Customer to Phoenix NAP become past due (d) be promptly replaced by Customer in the event of such a draw event and (e) shall be refunded by Phoenix NAP no later than sixty (60) days following termination of this Agreement, assuming that Customer has paid all obligations to Phoenix NAP.
All payments required by this Agreement are exclusive of all federal, state, municipal or other governmental excise, sales, privilege, transaction, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future (including, without limitation, rental or other taxes assessed against the License Fees payable to Phoenix NAP hereunder), all of which Customer will solely be responsible for and will pay in full, except for taxes based on Phoenix NAP’s net income. In the event Phoenix NAP is required to pay any such taxes, Phoenix NAP shall provide Customer with tax receipts or other evidence of payment and Customer shall promptly reimburse Phoenix NAP for such payment.
H. DISPUTE RESOLUTION COSTS
In the event that either party institutes litigation or any other dispute resolution process to resolve any dispute arising under this Agreement (including in the case of Phoenix NAP, to collect sums owed by Customer), the prevailing party shall be entitled to its reasonable attorneys’ fees’ and costs incurred by it in connection with the litigation or other dispute resolution process.
5. REPRESENTATIONS WARRANTIES; COVENANTS.
A. BY CUSTOMER
B. BY PHOENIX NAP; DISCLAIMER OF WARRANTIES
4) DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SUBSECTIONS (1) AND (2) ABOVE, ALL SERVICES PERFORMED AND SPACE MADE AVAILABLE BY PHOENIX NAP TO CUSTOMER HEREUNDER ARE PERFORMED, PROVIDED AND MADE AVAILABLE ON AN "AS IS" BASIS WITH NO WARRANTIES OF ANY KIND, AND CUSTOMER'S USE THEREOF IS AT CUSTOMER’S SOLE AND EXCLUSIVE RISK. PHOENIX NAP DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TENANTABILITY, HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PHOENIX NAP DOES NOT WARRANT THAT THE DATA CENTER SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Both Phoenix NAP and Customer represent that they have dealt with no other broker than as set forth in the Service Order Form in connection with the negotiation, execution and delivery of this Agreement (the “Broker”). If any person other than the Broker shall assert a claim to a finder’s fee, brokerage commission or other compensation on account of alleged employment as finder or broker or performance of services as a finder or broker in connection with this transaction, the party through whom the finder or broker is claiming shall indemnify and hold the other party harmless from and against any such claim and all costs, expenses, and liabilities incurred in connection with such claim or any action or proceeding brought thereon, including but not limited to attorneys' fees and court costs in defending such claim.
A. BY CUSTOMER
Customer will keep in force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage; (ii) employer's liability insurance in an amount not less than $1 million per occurrence; and (iii) workers' compensation insurance in an amount not less than that required by Law. Customer shall insure the Customer Equipment. Customer also agrees that it and its agents (including contractors and subcontractors) will maintain other insurance at levels no less than those required by Law and customary in Customer's and its agents' industries. Prior to accessing the Customer Area and at such times thereafter as Phoenix NAP may reasonably request, Customer will furnish Phoenix NAP with certificates of insurance which evidence the minimum levels of insurance set forth herein, name Phoenix NAP as an additional insured, and include a waiver of subrogation by the insurer with respect to Phoenix NAP and its affiliates, members, managers, shareholders, officers, directors and employees. Failure by Customer to timely provide Phoenix NAP with such certificate shall entitle Phoenix NAP to prohibit Customer’s access to the Customer Area until such certificate has been furnished to Phoenix NAP. As requested by Phoenix NAP, any underlying property owner or Mortgagee shall also be named as an additional insured. All such policies of insurance shall provide that the same shall not terminate or be canceled, nor the coverage modified, nor the limits changed without first giving thirty (30) days prior written notice to Phoenix NAP. No such cancellation, modification or change shall affect Customer’s obligation to maintain the insurance coverage required hereby. All liability insurance policies shall be written on an “occurrence” policy form.
Customer, as a material part of the consideration to Phoenix NAP, hereby assumes all risk of damage to property or injury to persons, in, upon, or about the Customer Area from any event caused by Customer, its agents or employees, and Customer hereby waives all claims in respect thereof against Phoenix NAP, unless caused by negligence or willful action of Phoenix NAP, its agents or employees. Phoenix NAP shall not be liable for loss of or damage to any property, or for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of any building or from the pipes, appliances or plumbing works therein, or from the roof, street or subsurface, or from any other place resulting from dampness or any other cause whatsoever. Customer shall give immediate notice to Phoenix NAP of any fire, accident or defect discovered with the Customer Area or the Data Center. Customer acknowledges that it can protect itself against any or all of the foregoing risks by procuring appropriate insurance. B. BY PHOENIX NAP Phoenix NAP will keep in force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage; and (ii) employer’s liability insurance in an amount required by Law.
7. TERM AND TERMINATION
B. EVENTS OF DEFAULT; REMEDIES
The following are events of default:
Upon the occurrence of an event of default, Phoenix NAP, at any time thereafter without further notice or demand, may exercise any one or more of the following remedies alternatively, concurrently or in succession:
D. BY CUSTOMER
Customer may terminate this Agreement (i) in the event Phoenix NAP breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof; or (ii) in the event Phoenix NAP becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors or the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors which is not dismissed within sixty (60) days of filing.
1) Effect of Termination
Upon the effective date of any expiration or termination of this Agreement (and without limiting any of either party’s remedies set forth elsewhere herein), and provided Customer has paid to Phoenix NAP all sums required hereunder, Customer shall have the right and obligation to remove from the Data Center all Customer Equipment, Customer Materials and any of its other property within the Data Center. All such Customer Equipment, Customer Materials and other property shall be removed by Customer within ten (10) business days of such expiration or termination and the Customer shall return the Customer Area to Phoenix NAP in the same condition as it was on the Installation Date, normal wear and tear excepted. If Customer does not remove such property within such ten (10) business day period of time, Phoenix NAP shall have the option, without limiting any other available rights or remedies, to (i) move any and all such property to secure storage and restore the Customer Area and charge Customer for the actual cost plus ten percent (10%) of such removal, storage and restoration, and/or (ii) after providing Customer with an additional thirty (30) days advance written notice, liquidate the property in any reasonable manner and apply the proceeds to any amount owing from Customer to Phoenix NAP under this Agreement. During the 10 business day removal period, Customer will be charged pro rata based on the most recent license fees. Customer hereby grants Phoenix NAP a security interest in the unencumbered Customer Equipment, Customer Materials and all of its other property within the Data Center to secure Customer’s payment and performance of its obligations under this Agreement. Customer acknowledges that such security interest is perfected by Phoenix NAP’s possession of such property, and further agrees to execute and deliver to Phoenix NAP financing statement(s) as deemed necessary or appropriate by Phoenix NAP. Customer hereby waives any statutory notices to vacate or quit the Customer Area upon expiration or termination of this Agreement.
2) Holding Over
Customer shall have no right to hold over after the expiration or termination of this Agreement without Phoenix NAP’s consent. If Customer holds over after the expiration of this Agreement, Customer shall become a Customer from month to month only, upon all of the terms of this Agreement except that the amount of the License Fees shall be increased to an amount equal to the greater of (a) One hundred and Fifty Percent (150%) of the License Fees in effect immediately prior to the expiration for the first 90 days after the expiration of this Agreement and Two Hundred Percent (200%) thereafter or (b) the then fair market value of the Customer Area (which for this purpose shall be computed using recently executed agreements for space and related data center services in the same or a similar data center). The provisions of this Section shall not constitute a waiver by Phoenix NAP of any right of re-entry; nor shall receipt of any License Fees or any other act in apparent affirmation of the tenancy operate as a waiver of the right to terminate this Agreement for a breach of any of the terms, covenants, or obligations herein on Customer’s part to be performed.
The rights and obligations of the parties in this Agreement that would by their nature or context be intended to survive the expiration or termination of this Agreement shall so survive, including without limitation the following provisions of this Agreement: Sections F: Security Deposit, G: Taxes, H: Dispute Resolution Costs; Section C (2) (c); Section 7. C: Remedies; Section E.4: Customer subparagraphs a, b, and c; and Section 12: GENERAL PROVISIONS.
E. ALTERATIONS; NO LIENS
If, and to the extent, that the Service Order Form allows for or designates that work to the Customer Area be completed by Customer, then the following provisions of this Section E shall apply:
1) Customer’s Work
Upon the Commencement Date, Phoenix NAP shall permit Customer to enter the Customer Area so that Customer, at Customer’s sole cost and expense, may do such work as is explicitly described and permitted by the Service Order Form ("Customer’s Work"). Such permission is conditioned upon (a) Customer and its agents, contractors, employees and invitees not interfering with work and operations conducted by Phoenix NAP, its other customers, and its designees and agents in the Data Center, if any, and shall be subject to all the terms of this Agreement, (b) Customer furnishing Phoenix NAP with evidence of such insurance as required of Customer under this Agreement and (c) Customer’s assuming full responsibility for any damages it causes. Phoenix NAP shall have the right to further condition, manage or revoke such rights to complete work if Customer fails to comply with the terms and conditions contained in this Section. Customer acknowledges and agrees that Phoenix NAP is not liable in any way for any injury, loss, or damage which may occur to Customer, its agents, contractors, employees, or invitees or work and installations made in the Customer Area, all of the same being at Customer’s sole risk.
2) Alterations and Approval
Before commencement any of Customer’s Work, Customer shall deliver to Phoenix NAP, and Customer’s designated contractors, plans and specifications (the “Design Plans”) showing Customer’s Work, for Phoenix NAP’s approval and consent, which shall not be unreasonably withheld or delayed, except that Phoenix NAP reserves the right to withhold consent in Phoenix NAP’s sole discretion for Customer’s Work affecting the structure, roof, safety, efficiency, or security of the Data Center, the Data Center systems (“Systems”) and equipment (“Equipment”) which affect the Customer Area and other space in the Data Center, or the appearance of the Customer Area from any common or public areas. The Design Plans shall comply with the Data Center Facility Rules and Regulations and any applicable building standards or operational manual. At the time Customer submits the Design Plans to Phoenix NAP, Customer shall provide Phoenix NAP with notice of whether Customer’s Work will involve or affect any Hazardous Materials, whether such materials are customary and usual based on standard industry practices, and all other reasonable details relating thereto. Phoenix NAP will promptly review the Design Plans and any changes thereto, making reasonable efforts to complete Phoenix NAP’s review within five (5) business days after Phoenix NAP’s receipt of the initial Design Plans, and will give Customer notice of Phoenix NAP’s reasonable objections thereto, if any. Within five (5) business days after receipt by Customer of Phoenix NAP’s objections to the Design Plans (including omissions there from) Customer shall revise and resubmit the Design Plans for Phoenix NAP’s review. The final Design Plans approved by Customer and Phoenix NAP are the “Final Plans”. Any part of Customer's Work, including signs, but not including movable furniture, Customer equipment, Customer Materials and trade fixtures, shall, at Phoenix NAP's option, at the termination or expiration of this License or of Customer's right to possession, become a part of the realty and belong to Phoenix NAP. Neither review nor approval by Phoenix NAP of any item submitted by Customer shall constitute a representation or warranty by Phoenix NAP that any such item is complete or suitable for its intended purpose or in compliance with Law, it being expressly agreed by Customer that Phoenix NAP assumes no responsibility or liability therefore.
3) Approval Conditions
Phoenix NAP reserves the right to impose reasonable requirements as a condition of such consent under Section 7E (2.) or otherwise in connection with Customer’s Work, including requirements that Customer: (a) use an authorized licensed contractor and/or submit for Phoenix NAP's authorization and information the names, addresses and background information concerning the engineers, contractors, subcontractors and suppliers Customer proposes to use, (b) obtain and post permits, (c) provide a payment bond, in an amount and form reasonably satisfactory to Phoenix NAP, covering Customer's Work and/or such other guaranties of creditworthiness as Phoenix NAP may reasonably request, (d) submit conditional and final lien waivers in compliance with Arizona law for all architects, engineers, contractors, subcontractors, and suppliers performing Customer's Work, (e) permit Phoenix NAP or its representatives, upon reasonable notice, to inspect Customer’s Work at reasonable times, (f) use a contractor specified by Phoenix NAP for all work affecting the Data Center fire detection system; and (g) comply with such other reasonable requirements as Phoenix NAP may impose concerning insurance coverage and the manner and times in which Customer’s Work shall be done.
Customer shall pay all costs for Customer’s Work when due. Customer shall keep the Data Center and the Customer Area free from any mechanic's, material men’s, architect's, engineer's or similar liens or encumbrances, and any claims therefore, in connection with any of Customer’s Work. Customer shall remove any claim, lien, or encumbrance of record relating to, caused by or resulting from Customer’s Work, by bond or otherwise within 10 days after notice from Phoenix NAP or any lien holder. If Customer fails to do so, Phoenix NAP may pay the amount (or any portion thereof) or take such other action as Phoenix NAP deems necessary to remove such claim, lien, or encumbrance, without being responsible for investigating the validity thereof. The amount so paid and costs incurred by Phoenix NAP shall be deemed additional fees under this License payable within 30 days after demand, without limitation as to other remedies available to Phoenix NAP. Nothing contained in this License shall authorize Customer to do any act which subjects Phoenix NAP's title to, or any lender's interest in, the Data Center or the Customer Area or any part of it to any such claims, liens, or encumbrances, whether claimed pursuant to statute or other law or express or implied contract.
8. CASUALTY; CONDEMNATION
Except as hereafter provided, if the Customer Area is wholly or partially destroyed or damaged by fire or other casualty, Phoenix NAP shall restore the Customer Area with reasonable diligence; provided, however, that Phoenix NAP shall have no obligation to restore improvements not originally provided by Phoenix NAP or to replace any of Customer’s fixtures, furnishings, equipment, or personal property and Customer shall be responsible for re-fixturing the Customer Area and reinstalling its equipment. Phoenix NAP need not commence repairs until a substantial portion of the insurance proceeds are available and shall not be required to expend more than the actual insurance proceeds received. Proceeds of insurance payable with respect to a fire or other casualty shall be received and held by Phoenix NAP. In the event the Customer Area is destroyed or damaged by any fire or casualty not covered by the insurance maintained by Phoenix NAP or to the extent of not less than 25% of the replacement cost thereof, or if the fire or casualty occurs within the last year of the Term, then Phoenix NAP or Customer shall have the option to terminate this License by giving notice to the other party within 60 days after the occurrence of such damage or destruction, in which case Phoenix NAP shall retain all insurance proceeds with respect to the Customer Area as its own property. If neither Phoenix NAP nor Customer elects to terminate this License as provided above, this License shall continue in full force and effect, but any License Fees shall be equitably abated as determined in Phoenix NAP's reasonable discretion until the restoration is substantially complete. The provisions of this Agreement shall govern when this Agreement is terminable as a result of a fire or casualty and no other rule or statute on the subject applies. Notwithstanding anything herein to the contrary, in the event a Mortgagee requires that any insurance proceeds be applied to such indebtedness, then Phoenix NAP shall have the right to terminate this License by delivering written notice to Customer within 15 days after such requirement is made by any such holder, whereupon the Agreement shall end on the date of such notice as if the date of such notice were the date originally fixed in this Agreement for the expiration of the Term. The provisions of this Section are Customer’s sole and exclusive rights and remedies in the event of a casualty. To the extent permitted by applicable laws, Customer hereby waives the provisions of Arizona Revised Statutes § 33-343 (Commercial Landlord/Tenant) and any other applicable existing or future law governing the destruction or injury of a building by the elements or a similar cause permitting an abatement of License Fees or termination of a License agreement in the event of damage or destruction under any circumstances other than as provided in this Section or elsewhere in this Agreement.
If the whole or any material part of the Customer Area or Data Center shall be taken (including, but not limited to a temporary taking for a period of one hundred twenty (120) days or more) by power of eminent domain or condemned by any competent authority for any public or quasi-public use or purpose, if any adjacent property or street shall be so taken or condemned or shall be reconfigured or vacated by such authority in such manner as to require the use, reconstruction or remodeling of any part of the Customer Area or Data Center; or if Phoenix NAP shall grant a deed or other instrument in lieu of such taking by eminent domain or condemnation; then either party shall have the option to terminate this Agreement upon forty-five (45) days’ notice, provided such notice is given no later than one hundred eighty (180) days after the date of such taking, condemnation, reconfiguration, vacation, deed or other instrument. Phoenix NAP shall be entitled to receive the entire award or payment in connection therewith, except that Customer shall have the right to file any separate claim available to Customer for any taking of Customer’s personal property and fixtures which belong to Customer and are removable by Customer upon expiration of the Term and for moving expenses (so long as such claim does not diminish the award available to Phoenix NAP or any Mortgagee and such claim is payable separately to Customer). All License Fees
9. TERMS OF SERVICE; DEDICATED HOSTING
A. PHOENIX NAP OBLIGATIONS
1) Provisions of Services
Contingent upon Phoenix NAP’s acceptance of an Order and subject to the terms of the MSA, Phoenix NAP agrees to use reasonable commercial efforts to provide the Services subject to the terms of the Service Level Agreements. Phoenix NAP retains the right to reject the request for Services by any individual or entity in its sole discretion. Customer agrees to pay all charges in advance for the service selected by the Customer in the Customer Order Information form that is incorporated in these terms and conditions by reference including all monthly fees, additional product charges, and optional charges incurred by the Customer. Payment may be made by check, PayPal, Wire, or credit card. If Customer elects to utilize our Auto Charge feature, Customer agrees to allow Phoenix NAP to charge the Customer’s credit card in advance each month. Customer hereby authorizes us to automatically charge any amounts the Customer owes to Phoenix NAP to any credit card provided by the Customer. Customer also agree that at any time after the 1st of the month, Phoenix NAP may prorate the next invoice to reflect a full month’s charges plus a sufficient number of days to have all subsequent billing periods start on the first of the month. The Third Party Services are provided by the relevant Third Parties and Phoenix NAP is not responsible for the provision of Third Party Services.
Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this MSA.
The Collection of Personally Identifiable Information (“PII”) is governed by the Privacy Agreement.
C. USE OF AND ACCESS TO THE SERVICES
1) Ordering and Modification of Services
Customer may order Services and all upgrades to such Services through the Customer Portal or as otherwise designated by Phoenix NAP. Phoenix NAP may accept such Orders in its discretion and shall give notice to Customer of acceptance of such Order through the Customer Portal. For downgrades or cancellation of Services, Phoenix NAP requires a written cancellation notice by cancellation ticket through firstname.lastname@example.org in accordance with the procedures in the Customer Portal and through the Customer Portal a minimum of 24 hours prior to 00:00:01 CST (GMT-7) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required 24 hours written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 24 hour period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
2) Rights to Use Services
Subject to the terms and conditions of this MSA (including the Term), Phoenix NAP grants Customer a non-exclusive, nontransferable, non-sublicense able (except to the extent required to exercise rights under Section 3(b) (ii.), revocable right in the Services solely to: (i) use and access the Services for internal purposes; and (ii) use the Services to create, offer and provide the Customer Offerings.
3) Customer Obligations
4) Special Terms for Third Party Services
To the extent Customer orders Third Party Services under TPS Agreements, Phoenix NAP is not responsible for such Third Party Services and the provider of the Third Party Service is solely responsible for providing such Third Party Services. However, the Customer also agrees that the following terms of the TOS apply to such Third Party Services: Section 9.E: Term and Section 12: GENERAL PROVISIONS.
D. DEDICATED SERVERS
Phoenix NAP will provide its standard server configuration or Phoenix NAP will build a server to the Customer’s specifications as specified by the Customer in the applicable Service Order. In either case, Phoenix NAP will charge the Customer a monthly lease fee based on Phoenix NAP’ cost of the components of the server as quoted to the Customer at the time of the Customer’s order. Customer does not own this server. Phoenix NAP is not responsible for any down time or damages resulting from server maintenance or the lack thereof. Phoenix NAP does not guarantee 24x7 maintenance and repair. Phoenix NAP is not responsible for monitoring the condition of the server, or automatically performing preventive maintenance of any kind. Customer is responsible for notifying Phoenix NAP of any server problems and must authorize Phoenix NAP to perform the required maintenance and repair.
1) Server Upgrades
At the Customer’s request Phoenix NAP may or may not provide the Customer with a quote to upgrade the Customer’s server. Upgraded servers, including the upgraded components, remain the property of Phoenix NAP.
2) Server Downgrades
At the Customer’s request Phoenix NAP may allow the Customer with contracted services to downgrade the number Customer’s services. Downgraded services including servers, components, and hardware remain the property of Phoenix NAP.
3) Maintenance and Monitoring
This service will include 24x7 monitoring of the server and response to problems, and all parts and labor to restore the server to operating standards. Phoenix NAP will exert its best efforts to resolve any problems as quickly as possible, however Phoenix NAP cannot guarantee that a problem can be resolved within a specific period of time. Whether or not the Customer uses Phoenix NAP’ monitoring or repair service, the Customer is required to maintain a current back-up copy of the Customer’s server in case it becomes necessary for Phoenix NAP or the Customer to restore the Customer’s server. Phoenix NAP does not back-up the Customer’s server.
4) Server Impounding
Customer agrees that Phoenix NAP has the right to hold the Customer possessed server(s) (including all software and contents) until Phoenix NAP is paid in full for all outstanding amounts the Customer owes.
Except as where provided the term shall commence on the Billing Commencement Date and is automatically renewed each Anniversary Billing Date until terminated as provided below:
1) Termination for Convenience
Dedicated Server Customer may terminate the MSA for convenience at any time through the Customer Portal. If Customer terminates this MSA for convenience, Customer shall pay Phoenix NAP all amounts that would be due within 10 days after such termination. Phoenix NAP may terminate the MSA for convenience upon providing Customer with notice of non-renewal at least 10 days prior to the expiration of the Initial Term or any Renewal Term.
2) Termination for Breach
Phoenix NAP may terminate the MSA immediately upon notice provided through the Customer Portal if: (i) Phoenix NAP discovers that the information Customer provided to Phoenix NAP about Customer’s proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the MSA, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the MSA, install or accept Services on behalf of the person represented to be the Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 10 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this MSA and fails to remedy any violation within 10 days of Phoenix NAP’s written notice; (v) Customer or Customer End User violates the AUP; (vi) Customer’s account has been suspended for 10 days or more; (vii) Customer has multiple violations of the MSA; or (viii) Customer fails to comply with any other provision of this MSA and does not remedy the failure within 10 days of Phoenix NAP notice to Customer describing the failure. Phoenix NAP will give Customer written notice of termination under this paragraph unless Phoenix NAP determines, in Phoenix NAP’s reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect Phoenix NAP or its other customers from operational, security, or other risks. A breach of the Flow-Through Provision shall be deemed to be a breach of the MSA.
3) Access to Customer Content
The deletion of Customer Content is automatic upon termination or expiration of the MSA. Consequently, unless Phoenix NAP determines otherwise, Customer will not have access to Customer Content, and Phoenix NAP may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this MSA.
4) Effect of Termination
Upon expiration or termination of the MSA, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by Phoenix NAP and any other materials provided to Customer by Phoenix NAP in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. Phoenix NAP will have no obligation to provide any transition services or access to data except as expressly stated in Section9. E. 3): Access to Customer Content.
F. DATABASE OWNERSHIP
Both parties own their own databases and nothing in this agreement is intended to transfer that ownership. Phoenix NAP reserves the right to transfer its database in the event of a change in Phoenix NAP ownership. Any unauthorized attempt to gain access to Phoenix NAP’ database or systems by the Customer, or anyone directly or indirectly associated or related to the Customer, however remotely, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, Phoenix NAP may immediately terminate this Agreement, and the Customer will immediately return to Phoenix NAP all copies of any information obtained by this access.
All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. The monthly amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of SLA Credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a onetime pro-rata charge on the next Anniversary Billing Date.
2) Service Fees/One Time Fees
For fees for additional services such as bandwidth use overages, backup overages and VMware use (including archive storage), payment shall be due on the next Anniversary Billing Date. One time fees, such as setup fees, bandwidth, storage, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by Phoenix NAP through the Customer Portal.
3) Payment Methods
The payment shall be made by the credit card maintained on file with Phoenix NAP, automatic file transfer or such other method as approved by Phoenix NAP. For methods such as credit card, the payment of fees shall be automatic on the due date.
Phoenix NAP and the Customer both agree to pay any and all taxes that are imposed on Phoenix NAP or the Customer’s respective business. If Phoenix NAP is required to pay taxes for the Customer, the Customer will immediately reimburse Phoenix NAP for those taxes and any fines, penalties and interest.
5) Additional Fees
The Customer’s failure to pay any fees on the due date shall result in incurring a late fee of $20. If Phoenix NAP has suspended the Customer’s access to the Services over the Public Network as provided in Section 9. H: Suspension, the Customer shall incur a $50 reconnection fee. Such fees shall be due upon receipt, and Phoenix NAP will not reconnect any Services to the Customer until full payment of such fees.
6) Refunds & Disputes
All fees paid for Services to Phoenix NAP are non-refundable. If the Customer believes that the bills are in error, the Customer’s sole and exclusive remedy is to seek SLA credits through the Customer Portal by opening an accounting ticket to give notice to Phoenix NAP within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to Phoenix NAP and any such chargeback will result in an additional payment to Phoenix NAP of up to $500 which is a reasonable estimate of Phoenix NAP’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Phoenix NAP in enforcing collection of fees.
Phoenix NAP may suspend provision of Services to Customer without liability if: (i) Phoenix NAP reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer does not cooperate with Phoenix NAP’s investigation of any suspected violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (iii) Phoenix NAP reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer’s consent or in violation of the MSA; (iv) Phoenix NAP reasonably believes that suspension of the Services is necessary to protect Phoenix NAP’s network or other Phoenix NAP customers; (v) a payment for the Services is overdue by more than 5 days including the Anniversary Billing Date (and in addition, Phoenix NAP may, in Phoenix NAP’s sole discretion, continue to make the Services available through the Public Network and may suspend such access to the Private Network if the fees are not paid within 10 days of the due date); (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other Phoenix NAP customer, (vii) Phoenix NAP reasonably believes that the use of the Services by Customer may subject Phoenix NAP, its Affiliates, or any Third Party to liability; or (viii) suspension is required by law, statute, regulation, rule or court order. Phoenix NAP will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless Phoenix NAP determines, in Phoenix NAP’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Phoenix NAP or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of the Flow-Through Provision shall be treated the same as a violation of the MSA for this provision. If Phoenix NAP suspends the Customer’s right to access or use any portion or all of the Service:
10. TERMS OF SERVICE; HARDWARE AS A SERVICE; HAAS
A. HAAS AGREEMENT
This Hardware as a Service Agreement (“Haas”) is by and between Phoenix NAP and Customer for the use of certain computer hardware equipment located, managed, and supported exclusively in a Phoenix NAP facility.
The Term of the Haas agreement shall be determined upon execution of a valid Service Order Form (“SOF”) and shall be for a length of 12, 24 or 36 months respectively. At the expiration of the initial Term, the agreement is subject to automatic renewal for an additional Term. Customer shall be provided the option to take full and exclusive possession of the hardware or will be provided an option to continue use of the hardware on a monthly basis with no Buyout provision.
C. CUSTOMER BUY OUT
Customer is provided the option to buy the hardware at the expiration of the Term. Customer shall elect on the applicable Service Order Form to either to purchase the specified hardware at the end of the agreed Term or to continue use on a monthly basis. The Buyout price is one dollar ($1.00) for each specified piece of hardware.
D. MONTHLY PAYMENT
Customer is responsible for paying the monthly fee as specified in the Service Order. Customer may incur a Setup fee equivalent to one monthly payment of the Hardware as a Service Agreement. Interest on past due balances will be 15%.
E. INSTALLATION AND USE OF EQUIPMENT
As selected by Customer, Phoenix NAP will provide adequate facilities and electricity in one of its managed facilities. Customer will maintain possession of equipment in a licensed space which may be removed from a Phoenix NAP facility only upon Buy Out. All alterations, upgrades, and modifications to Equipment shall be performed by Phoenix NAP.
F. MAINTENANCE, REPAIRS AND BEST EFFORT SUPPORT
The monthly service payment includes all costs for hardware, software, operating systems, and all labor needed to maintain all hardware, software, operating systems on the Equipment Schedule(s) located in the Service Order Form. Phoenix NAP shall provide Best Effort Support Customer is responsible for the following:
G. HARDWARE REPLACEMENT
If Customer experiences a problem with the operations of the computer hardware, Customer shall open a ticket with Phoenix NAP Support at email@example.com. The ticket shall provide details of the problem, and any necessary information required by support to correct the problem.
H. SYSTEM BACKUPS
Customer is responsible for carrying out routine backups for their content to a remote location. Phoenix NAP is not responsible and waives all liability for lost data due to system or hardware failure.
I. GUARANTEED RESPONSE TIME
Phoenix NAP guarantees that any request for service will be acknowledged within four hours.
J. OWNERSHIP AND INSPECTION
The computer hardware shall at all times remain in the possession of Customer, subject to Buyout. It is the intention and understanding of both Phoenix NAP and Customer that the Equipment shall be and at all times remain separately identifiable personal property.
K. SECURITY INTEREST
Phoenix NAP maintains a security interest in the computer hardware. In the event of a default by Customer, Phoenix NAP retains the right to repossess all computer equipment provided to Customer, irrespective of Order or Service Order(s). Customer agrees to surrender all computer hardware and related devices to Phoenix NAP upon notice of default.
Customer shall be in default if:
11. TERMS OF SERVICE; SECURED CLOUD
A. PHOENIX NAP OBLIGATIONS
1) Provisions of Service
Contingent upon Phoenix NAP’s acceptance of an Order and subject to the terms of the MSA, Phoenix NAP agrees to use reasonable commercial efforts to provide the Services subject to the terms of the Service Level Agreements. Phoenix NAP retains the right to reject the request for Services by any individual or entity in its sole discretion. Customer agrees to pay all charges in advance for the service selected by the Customer in the Customer Order Information form that is incorporated in these terms and conditions by reference including all monthly fees, additional product charges, and optional charges incurred by the Customer. Payment may be made by check, PayPal, Wire, or credit card. If Customer elects to utilize our Auto Charge feature, Customer agrees to allow Phoenix NAP to charge the Customer’s credit card in advance each month. Customer hereby authorizes us to automatically charge any amounts the Customer owes to Phoenix NAP to any credit card provided by the Customer. Customer also agree that at any time after the 1st of the month, Phoenix NAP may prorate the next invoice to reflect a full month’s charges plus a sufficient number of days to have all subsequent billing periods start on the first of the month.
The Collection of Personally Identifiable Information (“PII”) is governed by the Privacy Agreement.
1) Use of and Access to the Services
a) Ordering and Modification of Services
Customer may order Services and all upgrades to such Services through the Customer Portal or as otherwise designated by Phoenix NAP. Phoenix NAP may accept such Orders in its discretion and shall give notice to Customer of acceptance or rejection of such Order through the Customer Portal. For downgrades or cancellation of Services, Phoenix NAP requires a written cancellation notice by cancellation ticket through firstname.lastname@example.org in accordance with the procedures in the Customer Portal and through the Customer Portal a minimum of 24 hours prior to 00:00:01 CST (GMT-7) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required 24 hours written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 24 hour period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
b) Rights to Use Services
Subject to the terms and conditions of this MSA (including the Term), Phoenix NAP grants Customer a non-exclusive, nontransferable, non-sublicense able, revocable right in the Services solely to: (i) use and access the Services for internal purposes; and (ii) use the Services to create, offer and provide the Customer Offerings.
C. CUSTOMER OBLIGATIONS
D. GENERAL PROVISIONS; CUSTOMER RESPONSIBILITIES
1) Customer Content
Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Content. For example, Customer is solely responsible for:
2) Other Security and Backup
Customer is responsible for properly configuring and using the Service Offerings and taking Customer own steps to maintain appropriate security, protection and backup of Customer Content, which may include the use of encryption technology to protect Customer Content from unauthorized access and routine archiving Customer Content.
3) End User Violations
Customer will be deemed to have taken any action that Customer permit, assist or facilitate any person or entity to take related to this Agreement, Customer Content or use of the Service Offerings. Customer is responsible for End Users’ use of Customer Content and the Service Offerings. Customer will ensure that all End Users comply with Customer obligations under this Agreement and that the terms of Customer agreement with each End User are consistent with this Agreement. If Customer becomes aware of any violation of Customer obligations under this Agreement by an End User, Customer will immediately terminate such End User’s access to Customer Content and the Service Offerings.
4) End User Support
Customer is responsible for providing customer service (if any) to End Users under Customer account. Phoenix NAP do not provide any support or services to End Users under Customer account unless Phoenix NAP has a separate agreement with Customer or an End User obligating us to provide support or services to End Users under Customer account.
E. FEES AND PAYMENT
1) Service Fees
Phoenix NAP calculates and bills fees charged periodically based on our agreement with the customer. Customer will pay Phoenix NAP the applicable fees and charges for use of the Service Offerings as described on the Phoenix NAP Service Order using one of the payment methods Phoenix NAP supports. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when ordered. Prices may vary based on current rates for a particular service and feature. Phoenix NAP may increase or add new fees and charges for any existing Services by giving Customer at least 10 days’ advance notice.
F. CHANGES AND MODIFICATIONS
1) To the Service Offerings
Phoenix NAP may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. Phoenix NAP will not notify Customer of any material change to or discontinuation of the Service Offerings.
2) To the APIs
Phoenix NAP may change, discontinue or deprecate any APIs for the Services from time to time but it will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation; except if doing so could result in the following:
3) To the Service Level Agreements
We may change, discontinue, or add Service Level Agreements from time to time.
1) Phoenix NAP may deactivate Customer or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to Customer if Phoenix NAP determines:
H. TERM; TERMINATION
The term of this Agreement will commence on the Billing Commencement Date and will remain in effect until terminated by Customer or Phoenix NAP in accordance with this MSA.
2) Termination; Termination for Convenience
Customer may terminate this Agreement for any reason by: a) Providing Phoenix NAP written notice and Closing Customer account for all Services for which Phoenix NAP provide an account closing mechanism. Phoenix NAP may terminate this Agreement for any reason by providing Customer 10 days advance notice.
3) Termination for Cause
a) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
b) By Phoenix NAP. Phoenix NAP may also terminate this Agreement immediately upon notice to Customer
4) Effect of Termination
a) Generally Upon any termination of this Agreement:
5) Post-Termination Assistance
Unless Phoenix NAP terminates Customer Phoenix NAPs use of the Service Offerings pursuant to Section F: Changes and Modifications, during the 30 days following termination:
a) Phoenix NAP may erase any of Customer Content as a result of the termination; Phoenix NAP reserves the right to erase data at its sole discretion
b) If Customer Content has not been erased, Customer may retrieve Customer Content from the Services only if Customer has paid any charges for any post-termination Phoenix NAP use of the Service Offerings and all other amounts due; and
c) If Customer content has been saved, Phoenix NAP will provide Customer with the same post-termination data retrieval assistance that Phoenix NAP generally make available to all Customers. Any additional post-termination assistance from Phoenix NAP is subject to the discretion of Phoenix NAP and the mutual agreement by Customer and Phoenix NAP.
I. TEMPORARY SUSPENSION
Phoenix NAP may suspend Customer or any End User’s right to access or use any portion or all of the Service Offerings upon notice to Customer if Phoenix NAP determine:
1) Customer or an End User’s use of the Service Offerings
2) Customer, or any End User is, in breach of this Agreement, including if Customer is delinquent on payment obligations for more than 15 days; or
3) Customer has ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of Customer assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
4) Customer has received a valid notice of a DMCA complaint and has not taken remedial action to resolve the complaint within the 24 hour period as described in our DMCA policy.
J. EFFECT OF SUSPENSION
If Phoenix NAP suspends Customer right to access or use any portion or all of the Service Offerings:
1) Customer remains responsible for all fees and charges Customer have incurred through the date of suspension;
2) Customer remains responsible for any applicable fees and charges for any Service Offerings to which Customer continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
3) Customer will not be entitled to any service credits under the Service Level Agreements for any period of suspension; and
4) We will not erase any of Customer Content as a result of Customer suspension, except as specified elsewhere in this Agreement.
5) Our right to suspend Customer or any End User’s right to access or use the Service Offerings is in addition to our right to terminate this Agreement pursuant to Section H.
12. GENERAL PROVISIONS
The following General Provisions apply to this MSA irrespective of the Services Ordered by Customer.
A. GOVERNING LAW; LAWSUITS
The MSA is governed by the laws of the State of Arizona, Maricopa County exclusive of any Arizona choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The application to the MSA of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the MSA shall be in the state or federal courts in Maricopa County, Arizona, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
B. DISCLAIMER OF WARRANTIES
EXCEPT AS REQUIRED BY LAW CUSTOMER’S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY PHOENIX NAP “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. PHOENIX NAP; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR IT’S AND CUSTOMER END USERS’ USE OF THE SERVICES.
C. DISCLAIMER OF CONSEQUENTIAL DAMAGES
EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL PHOENIX NAP BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF PHOENIX NAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. LIMITATION OF LIABILITY
EXCEPT AS REQUIRED BY LAW PHOENIX NAP WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, PHOENIX NAP IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, PHOENIX NAP'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO PHOENIX NAP’S LIABILITY.
E. MAXIMUM LIABILITY
IN CONSIDERATION OF THE BENEFITS ACCRUING TO CUSTOMER UNDER THIS AGREEMENT AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TRANSACTION DOCUMENTS, IT IS EXPRESSLY UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES TO THIS AGREEMENT THAT: (a) NO PERSONAL LIABILITY OR PERSONAL RESPONSIBILITY OF ANY SORT WITH RESPECT TO ANY ACTUAL OR ALLEGED BREACH OR BREACHES BY OR ON THE PART OF PHOENIX NAP OF ANY REPRESENTATION, WARRANTY, COVENANT, UNDERTAKING OR AGREEMENT CONTAINED IN ANY OF THE TRANSACTION DOCUMENTS OR ANY MATTER RELATING TO CUSTOMER’S USE OR OCCUPANCY OF THE CUSTOMER AREA (COLLECTIVELY, THE “PHOENIX NAP UNDERTAKINGS”) OR ANY ALLEGED BREACH THEREOF IS ASSUMED BY, OR SHALL AT ANY TIME BE ASSERTED OR ENFORCEABLE AGAINST, ANY MEMBER OF THE PHOENIX NAP GROUP OTHER THAN PHOENIX NAP; (b) THE RECOURSE OF CUSTOMER OR ITS SUCCESSORS OR ASSIGNS AGAINST PHOENIX NAP SHALL BE LIMITED TO, AND PHOENIX NAP’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH ANY CLAIM BY CUSTOMER RELATING TO THE PHOENIX NAP UNDERTAKINGS SHALL NOT EXCEED, THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO PHOENIX NAP DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM FIRST AROSE (OR THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO PHOENIX NAP IF SUCH PAYMENTS HAVE BEEN MADE FOR LESS THAN TWELVE (12) MONTHS WHEN THE CLAIM FIRST AROSE); AND (c) CUSTOMER SHALL HAVE NO RECOURSE AGAINST ANY ASSETS OF ANY PERSON OTHER THAN PHOENIX NAP’S INTEREST IN THE DATA CENTER.
WITHOUT LIMITING THE FOREGOING, AND EXCEPT TO THE EXTENT PROVIDED IN SUBPART (b) OF THE PRECEDING SENTENCE, PHOENIX NAP WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY EFFORTS OF PHOENIX NAP TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO PHOENIX NAP, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED; (ii) RELICENSE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION AGENTS OR CONTRACTORS OF PHOENIX NAP; (vi) ACTIONS OF PHOENIX NAP EMPLOYEES OUTSIDE THE SCOPE OF THEIR EMPLOYMENT; OR (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE.
F. ALLOCATION OF LIABILITY
THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH PHOENIX NAP WOULD NOT HAVE ENTERED INTO THIS MSA. PHOENIX NAP’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS. G. APPLICABILITY THE LIMITATIONS SET FORTH IN THIS SECTION (M) WILL APPLY TO ANY AND ALL CLAIMS AND CAUSES OF ACTION WHATSOEVER, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY. H. BASIS OF THE BARGAIN; FAILURE OF ESSENTIAL PURPOSE Customer acknowledges that Phoenix NAP has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
I. INDEMNIFICATION BY CUSTOMER
Customer hereby agrees to indemnify, defend and hold harmless Phoenix NAP and its parents, Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the “Phoenix NAP Parties”) (Phoenix NAP and each of the Phoenix NAP Parties an “Indemnified Party”), from and against any and all liability (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged claim (“Claim”) arising out of: (a) Customer’s use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any breach or alleged breach by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party's copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by Phoenix NAP prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Phoenix NAP or any Phoenix NAP Party without the prior written consent of Phoenix NAP and/or the applicable Phoenix NAP Party(s). Customer and Customer’s counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Phoenix NAP or the Phoenix NAP Parties in the defense or settlement of any such matter.
The Customer agrees that Phoenix NAP is an Internet Service Provider ("ISP") under the Digital Millennium Copyright Act (DMCA) and understand that Phoenix NAP is required under the DMCA to remove and/or have the Customer remove any material that another party claims is infringing once Phoenix NAP has received, in its sole judgment, a proper notification. The Customer also agrees that if the Customer does not comply with a request from Phoenix NAP to remove material under the DMCA or for any other reason, Phoenix NAP may at its discretion block access any or all services provided under this Agreement until such time as Phoenix NAP is certain that the material is removed. Phoenix NAP may, at its sole discretion, determine who is a “repeat infringer” and may terminate this Agreement and its Addendums without notice to the Customer if Phoenix NAP believes the Customer to be a repeat infringer.
K. SLA CREDITS
SLA Credits, if issued to Customer’s account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the MSA.
All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Any sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for Services made under this MSA, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide Phoenix NAP with an official receipt for any such taxes withheld and must notify Phoenix NAP prior to payment that withholding tax is required to be paid and Customer shall pay to Phoenix NAP any additional amount to ensure that Phoenix NAP receives the full amount of the invoice. If Phoenix NAP has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides Phoenix NAP with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
Any controversy or claim arising from the Services or related to this MSA or breach thereof shall be settled by arbitration in Maricopa County Arizona in accordance with the commercial arbitration rules of the American Arbitration Association. The number of arbitrators shall be one, and such arbitrator shall be an independent third party mutually agreeable to the Parties. The venue and jurisdiction requirements set forth below apply to any arbitration proceedings. Arbitration shall be final and binding upon the parties and shall be the exclusive remedy for all claims covered by this arbitration provision. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this MSA, to enforce an arbitration award or to obtain temporary injunctive relief pending a judgment based on the arbitration award. Notwithstanding the provisions of this Section M, Customer acknowledges that Customer’s breach of Sections 12. D: Limitation of Liability and 12. E: Maximum Liability or violation of any terms and conditions of the AUP would cause irreparable injury to Phoenix NAP and agrees that in the event of any such breach, Phoenix NAP shall be entitled to seek temporary and preliminary injunctive relief, to the extent allowed under the rules of the American Arbitration Association, without the necessity of proving actual damages or posting any bond or other security.
N. CONFIDENTIAL INFORMATION; NON-SOLICITATION
1) Confidential Information
Each party acknowledges that it will have access to certain confidential information and materials of the other party ("Confidential Information"). Confidential Information will include, but not be limited to, information regarding each party's business, plans, Customers, technology, products, proprietary software, and Customer information. Phoenix NAP specifically designates as Confidential Information its prices, rates, quotations and other financial information relating to this Agreement; and its written security procedures, maintenance manuals and other operational documents and procedures. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by Law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Within thirty (30) days after expiration or termination of this Agreement for any reason, each party will return all Confidential Information of the other party in its possession, custody or control at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal, accounting, or administrative record keeping requirement.
Information will not be deemed Confidential Information hereunder if the receiving party can establish by reasonably competent evidence that such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without any use of or reliance upon the Confidential Information of the disclosing party.
3) Non-solicitation of Personnel
Neither party shall solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of a third party, any of the personnel of the other party or its affiliates during the Term and for twelve (12) months thereafter. For purposes of this paragraph, “personnel” includes any individual or company that a party employs or has employed or retained as an employee or independent contractor and which the other party learns about as a result of its performance under this Agreement. Without limiting any other available remedy, a party in breach of this provision shall pay compensation to the other party in the form of liquidated damages equal to the greater of six month’s compensation either offered to the personnel by the breaching party or paid or offered to the personnel by the non-breaching party.
Notwithstanding anything to the contrary in this Agreement, in the event of any breach of Section 12.I: Indemnification by Customer, the non-breaching party will be entitled to seek injunctive relief; provided that no specification of a particular legal or equitable remedy shall be construed as a waiver, prohibition or limitation of any other remedy permitted by this Agreement.
O. FORCE MAJEURE
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 its reasonable control, including acts of war or terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts or failure of the Internet, provided that the affected party: (a) gives the other party prompt notice of such cause, and (b) uses its best reasonable efforts to correct promptly such failure or delay in performance.
P. CHANGES TO THE MSA
As noted in the recitals, Phoenix NAP may modify the terms and conditions of this MSA as provided below. Phoenix NAP will notify its Customers through the Customer Portal of any such modifications and all modifications shall be effective upon their posting on the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such modifications on a frequent basis If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the MSA must be approved in writing by Phoenix NAP.
Q. CERTAIN EMPLOYMENT ISSUES
If Customer’s employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against Phoenix NAP under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify Phoenix NAP from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with Phoenix NAP’s standard generally-applicable policy.
1) Licensed Customer Area
Customer and Phoenix NAP hereby mutually acknowledge and agree that Phoenix NAP, by this Agreement, grants, conveys and demises to Customer a license to use and occupy on an quasi exclusive basis (for the purposes set forth herein) the Customer Area only and that this Agreement otherwise does not and shall not be deemed to grant, demise, transfer or otherwise convey to Customer any right, title, or interest whatsoever in or to any portion of the Data Center. Customer hereby acknowledges and agrees that Phoenix NAP shall own all items installed by Phoenix NAP in the Customer Area, with the exception of the Customer Equipment.
2) The Website
Customer hereby acknowledges and agrees that Phoenix NAP (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by Phoenix NAP, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and Phoenix NAP, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Phoenix NAP or its licensors.
3) Hardware as a Service
Computer hardware provided by Phoenix NAP via its Hardware as a Service agreement is owned by Customer subject to monthly service payments and the Customer provisions contained herein.
S. INHERENTLY DANGEROUS APPLICATIONS
Customer acknowledges and agrees that the Related Data Center Services are not intended, nor provided by Phoenix NAP, for use in connection with, and Customer will not use them for, any inherently dangerous activities or life-critical applications or services, the failure of which could result in death, personal injury, catastrophic damage or mass destruction.
Phoenix NAP agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup of the Customer Content. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
For the safe operation of the Facility, Phoenix NAP, in its reasonable discretion, may temporarily suspend condition or restrict the right of one or more Customers, Collocation Users, Customer Representative(s) or Customer’s invitees to visit the Data Center. Under no circumstances shall Phoenix NAP be obligated to provide access to a Customer, Representative or other individual who, in the reasonable judgment of Phoenix NAP, represents a threat to the orderly operation of the Data Center or Phoenix NAP’s provision of Related Data Center Services to Customer or generally.
V. USE OF TRADE NAMES
Neither party may use the trade name or trademark of the other party hereto without the prior written consent of an authorized representative of the other party in each instance. Notwithstanding the foregoing, Phoenix NAP may disclose the name of Customer to any of its employees, vendors, contractors and service providers that have a reasonable need to know such information to assist Phoenix NAP in providing the Related Data Center Services and may also include the name of Customer in a list of Customer references or other similar marketing materials.
W. GOVERNMENT REGULATIONS
Neither party will export, re-export, transfer, or make available, whether directly or indirectly, any regulated item, data or information to anyone outside the U.S. in connection with this Agreement without first complying with Law, including all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction such party operates or does business.
X. EXPORT MATTERS
If Customer chooses to use these Services, Customer does choose so on its own initiative and is responsible for compliance with applicable laws. Customer agrees to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer’s use of these Services and to not, in violation of any laws, transfer, or authorize the transfer, of any Services (a) into any U.S. and/or U.N. embargoed countries or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. By using these Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations. Customer assumes responsibility for compliance with laws and regulations applicable to export, re-export or import of products, technology or technical data provided hereunder and for obtaining required export and import authorizations. Customer will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations (“ITAR Data”) or other applicable laws unless Phoenix NAP has agreed to the transfer and (i) Customer has provided Phoenix NAP not less than 10 days’ prior written notice that ITAR Data will be transferred to or through the Services, (ii) Customer has received prior written authorization from the U.S. Government to transfer the ITAR Data to Phoenix NAP, and (iii) Customer agrees to provide Phoenix NAP with all necessary assistance to enable Phoenix NAP to obtain such U.S. Government permission. Customer is responsible, and will reimburse Phoenix NAP, for all costs, expenses or damages incurred by Phoenix NAP in connection with Customer transfer of ITAR Data.
Y. LEGAL PROCESS
Phoenix NAP reserves the right to comply with any and all warrants, court orders, subpoenas, summons, and other legal requirements. With respect to the Customer Area and Customer Equipment, Customer authorizes Phoenix NAP to consent to any access, search, seizure, or other governmental action which in the reasonable opinion of Phoenix NAP is valid. Phoenix NAP shall use its best reasonable efforts to notify Customer of any such legal process within forty eight (48) hours of service, but failure to notify Customer shall not restrict Phoenix NAP’s rights under this Section 12.Y and shall not constitute a material breach hereunder. Phoenix NAP reserves the right to restrict or terminate access by Customer or any Representative to the Data Center from and after the service of a search or seizure warrant and/or after receiving an order of a court or government agency. If Phoenix NAP in its reasonable discretion determines that an emergency exists, Phoenix NAP shall be entitled to shut down all or part of the Data Center, including without limitation, the Customer Area, and (if applicable) to comply with an order of any City, County, State Provincial, or Federal or other legitimate government official .
Z. INTEGRATION, MODIFICATIONS AND SEVERABILITY
This Agreement, together with the Attachments hereto, sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements, promises, representations, understandings and negotiations between the parties with respect to said subject matter. Any modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be invalid, then to the greatest extent possible, the remaining provisions of this Agreement shall remain in full force and effect.
AA. NO WAIVER
Phoenix NAP’s failure to exercise or delay in exercising any of its rights under this MSA will not constitute a waiver, forfeiture, or modification of such rights. Phoenix NAP’s waiver of any right under this MSA will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. Phoenix NAP’s waiver of any right under this MSA must be in writing.
1) By Customer
Customer shall not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Phoenix NAP in Phoenix NAP’s sole and absolute discretion. The term "assignment" includes the following, whether accomplished directly or indirectly: (a) if Customer is a partnership or limited liability company, the withdrawal or change, voluntarily, involuntarily or by operation of law, of a majority of the partners or members, or a transfer of a majority of ownership interests, in the aggregate on a cumulative basis, or the dissolution of the partnership or limited liability company; and (b) if Customer is a private corporation (i.e., whose stock is not publicly held and traded through an exchange or over the counter), the: (i) dissolution, merger, consolidation or other reorganization of Customer; (ii) sale or other transfer of more than a cumulative aggregate of 50% of the voting shares of Customer (other than to immediate family members by reason of gift or death); or (iii) sale, mortgage, hypothecation or pledge of more than a cumulative aggregate of 50% of Customer’s net assets.
2) By Phoenix NAP
Customer acknowledges and agrees that Phoenix NAP may assign to one or more Service Providers its rights and obligations with respect to the provision of and/or otherwise contract with one or more Service Providers for the provision of the Related Data Center Services that are to be provided hereunder; provided, however, that Phoenix NAP shall provide notice to Customer of any such arrangement with any such Service Provider (and shall provide contact information for each such Service Provider). Customer further acknowledges that Phoenix NAP has the right to transfer all or any portion of its interest in the Data Center (including, without limitation, pursuant to a license or sale of all or any portion of the property of which the Data Center is a part) or in this Agreement, and Customer agrees that in the event of any such transfer to a transferee that agrees to assume the obligations of Phoenix NAP hereunder to be performed after the date of such transfer, Phoenix NAP shall automatically be released from all liability under this Agreement not accrued as of the date of the transfer and Customer agrees to look solely to such transferee for the performance of Customer’s obligations hereunder after the date of transfer and to attorn to such transferee.
Any attempted assignment or delegation in violation of this provision shall be null and void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
CC. NOTICES; ESTOPPELS
Any notice or communication required or permitted to be given hereunder related to Customer support issues (a) shall be made via email and sent to email@example.com. Any notice or communication required or permitted to be given hereunder related to Customer contracts, including but not limited to termination (b) shall be delivered by hand, mailed by registered or certified mail, return receipt requested, postage prepaid, or sent by recognized overnight courier maintaining proof of delivery (e.g., FedEx or UPS), (c) shall be sent to:
All notices shall be deemed to have been given as of the date it is actually delivered. All applicable Electronic notices shall be sent to firstname.lastname@example.org
At any time and from time to time, within ten (10) days after written notice from Phoenix NAP, Customer shall execute, acknowledge and deliver to Customer a statement in writing (which may be relied upon by any prospective purchaser or mortgagee or other like encumbrance) certifying all matters reasonably requested by Phoenix NAP or any current or prospective purchaser, holder of any security document, ground Phoenix NAP or master Phoenix NAP. If Customer fails timely to execute and deliver such certificate as provided above, then Phoenix NAP and the addressee of such certificate shall be entitled to rely upon the information contained in the certificate submitted to Customer as true, correct and complete, and Customer shall be estopped from later denying, contradicting or taking any position inconsistent with the information contained in such certificate.
DD. SUBORDINATION; ATTORNMENT
This License is and will be subject and subordinate at all times to any and all Security Documents which may now exist or hereafter be executed which constitute a lien upon or affect the Data Center or any portion thereof, or Phoenix NAP’s interest and estate in any of said items. Notwithstanding the foregoing, Phoenix NAP reserves the right to subordinate any such Security Documents to this license. In the event of any termination or transfer of Phoenix NAP’s estate or interest in the Data Center or the Customer Area by reason of any termination or foreclosure of any such Security Documents (and notwithstanding any subordination of such Security Document to this license that may or may not have occurred), at the election of Phoenix NAP’s successor in interest, Customer agrees to attorn to and become the lessee of such successor. Customer covenants and agrees to execute and deliver, within ten (10) days of notice thereof, any additional documents evidencing the priority or subordination of this License and Customer’s agreement to attorn with respect to any such Security Document.
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 same instrument.
FF. RELATIONSHIP OF PARTIES
Nothing contained in this Agreement shall be deemed to establish any relationship of partnership, joint venture, employment, franchise or other agency or relationship between Phoenix NAP and Customer other than that of Phoenix NAP and lessee. Neither Phoenix NAP nor Customer 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 herein.
The official language of the MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.
HH. NO NEGATIVE CONSTRUCTION
Each party acknowledges and agrees that it has reviewed, and has had an opportunity to have reviewed by legal counsel, this Agreement (including all Attachments hereto), and it is the parties’ intent that this Agreement not be construed against either party as the drafting party.
II. INVALID OR UNENFORCEABLE PROVISIONS
If any provision of this Agreement or its Addendums is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Customer and Phoenix NAP agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.
JJ. ENTIRE AGREEMENT; MODIFICATIONS
This Agreement and any Addendums and/or attachments and/or service orders hereto set forth the entire Agreement and understanding between the parties and merge all prior discussion between them. The terms and conditions of this Agreement are posted at http://www.phoenixnap.com/global.msa.php Phoenix NAP reserves the right to change these terms and conditions by posting such changes at http://www.phoenixnap.com Continued use of Service by Customer following such changes constitutes acceptance by Customer of the current terms and conditions.
KK. PRIORITY The following order of precedence will govern any conflict or discrepancy between any portions of this Agreement:
Acceptable Use Policy (AUP)
All Customers of Phoenix NAP, LLC (“Phoenix NAP”) agree to abide by the following policies. Phoenix NAP reserves the right to change and update these policies as it sees necessary. Any complaints about a Customer's violation of the AUP should be sent to email@example.com.
Most Service Providers have specific guidelines pertaining to general use of the Internet. As the Internet expands, it is increasingly common for an Internet Service Provider, such as Phoenix NAP, to be blocked from use of another organization's systems due to violations of that system's AUP. Because Phoenix NAP runs multi-user systems, Customer actions can have a severe impact on other Customers' ability to use the system(s). This is unfair to all Phoenix NAP users. To this end, Phoenix NAP has developed these Acceptable Use Policies. They are intended to inform Customer of what Phoenix NAP considers acceptable conduct in relation to the Internet, and of what actions we may take, with or without notice, in the event that Phoenix NAP becomes aware of inappropriate use of its service. This AUP will be used to help Phoenix NAP’S system administrators’ deal with complaints from users of Phoenix NAP or other Internet-connected systems, and to determine when action should be taken. It is expected that Customer will follow the policies set forth herein. These policies are drawn from applicable law and generally accepted standards of Internet conduct, and are intended to ensure protection of Phoenix NAP’S technical resources, its ability to continue to provide high quality service to Customer, and to protect Phoenix NAP’S reputation as a service provider. Access to Phoenix NAP’s Service is Provided Subject to the Following:
Customer is responsible for all use of Customer’s account(s) and confidentiality of password(s), including choosing safe passwords and ensuring file protections are set correctly. Phoenix NAP will suspend or change access to Customer’s account(s) immediately upon notification by Customer that Customer’s password has been lost, stolen or otherwise compromised. Phoenix NAP is not liable for any usage and or charges prior to Phoenix NAP making the necessary account alteration. Electronic mail on this system is as private as Phoenix NAP can make it. Customer is reminded that no computer network can ever be considered completely safe from intrusion. E-mail may pass through many computer systems, and should not be considered a secure means of communication unless encrypted – and even encrypted information is only as secure as the encryption method utilized.
3. NON-TRANSFERABILITY OF ACCOUNT
The right to use Phoenix NAP’S services is not transferable. Use of Phoenix NAP’S accounts is expressly limited to the Customer whose name appears on the contract
4. UNACCEPTABLE CONDUCT
The following types of conduct are grounds for immediate suspension of service pending investigation by Phoenix NAP and may result in termination of any and all accounts held by the individual, corporation, or Web site associated with these violations. Customer will also be held responsible for the actions of Customer’s business relationships (Referrers, Associates, etc.) that impact Phoenix NAP. Customer’s cooperation is necessary to ensure that those involved in these relationships comply with Phoenix NAP’S AUP and those of Phoenix NAP’S providers. If they violate any of the following policies, Phoenix NAP expects Customer to make certain that they immediately cease the non-compliant action or that Customer discontinues Customer’s association with them. Continuing violations by Customer’s business relationships may result in Phoenix NAP at its discretion having to terminate Phoenix NAP’S agreement with Customer.
5. NETWORK UNFRIENDLY OR ILLEGAL ACTIVITY
6. EXPORT CONTROL VIOLATIONS
Exporting encryption software over the Internet or otherwise, to points outside the United States is prohibited.
7. VIOLATION OF PHOENIX NAP POLICY
8. COMPLIANCE WITH RULES OF OTHER NETWORKS
Any access to other networks connected to Phoenix NAP’S Internet service must comply with the rules for that network as well as with Phoenix NAP’S rules.
Phoenix NAP reserves the right without Customer’s permission to monitor any and all communications through or with its facilities as well as all Customers’ sites for compliance with this AUP and Phoenix NAP’S Terms and Conditions. Customer agrees that Phoenix NAP is not considered a secure communications medium for the purposes of the Electronic Communications Privacy Act, and that no expectation of privacy is afforded. It may become necessary for Phoenix NAP’S employees to examine system accounting logs and other records to determine if privacy violations or other network unfriendly activities have occurred.
10. COOPERATION WITH AUTHORITIES
Phoenix NAP reserves the right to cooperate with law enforcement and other authorities in investigating claims of illegal activity including, but not limited to, illegal transfer or availability of copyrighted material, trademarks, child pornography, postings or E-mail containing threats of violence or other illegal activity. Customer’s use of the service is at Customer sole risk. Phoenix NAP is not responsible for files and data residing on Customer’s account. Customer agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Phoenix NAP's hardware.
11. CONFIDENTIALITY OF PERSONAL SUBSCRIBER INFORMATION
Phoenix NAP will not release any Customer or customer personal information, to any third party except upon presentation of a valid court order or other request to which Phoenix NAP is legally required to respond. Customer agrees that Phoenix NAP’S judgment as to the validity of any court order, subpoena, or request shall be considered proper and final.
12. PHOENIX NAP’S RIGHT TO MODIFY THESE ACCEPTABLE USE POLICIES
Phoenix NAP may modify these Acceptable Use Policies on its Web site http://www.phoenixnap.com/docs/html/aup.html in any way, at any time. It is Customer’s responsibility to review the AUP on the Web site on a regular basis to ensure compliance with the latest version of this AUP. Customer’s use of Phoenix NAP’S services after such changes have been posted shall constitute Customer’s acceptance of the modifications to these policies.
Privacy Agreement (PA)
PRIVACY AGREEMENT (PA) Phoenix NAP considers user privacy paramount, and Phoenix NAP utilizes great care in keeping the information of the users of the Site (including Customers) (“Users” or “Customer”) private and secure. Phoenix NAP adheres to the U.S.-Swiss Safe Harbor Framework as well as the Safe Harbor Principles as agreed to and set forth by the United States Department of Commerce and the European Union (“EU”), http://export.gov/safeharbor/. To demonstrate our firm commitment to privacy, the following agreement has been created to explain our policies and procedures in relation to all data collected. In this Privacy Agreement (“PA”) we describe the information that we collect; how we use, disclose, and share Customer information; and how we protect Customer information. Capitalized terms not defined in the PA are defined in the Terms of Service. This PA does not apply to Third Party Services which are governed by their own privacy policies.
1. TYPES OF DATA COLLECTED
Phoenix NAP collects data related to our users through the following methods:
Depending upon the method of collection and use, the data collected may include information about the User from forms, registrations and transactions (such as name, title, address, company, phone number and e-mail address), financial/transaction information (such as credit card, and payment information), information about use of Site (such as electronic communications protocols, web pages visited, and cookies) and User preferences and privileges.
2. WHAT DATA WE COLLECT AND HOW WE ARE ALLOWED USE IT
Phoenix NAP collects data from Customers for the following purposes:
3. CUSTOMER PORTAL, CUSTOMER CUSTOMIZATION, PREFERENCES AND OPT-OUT
New Customers are automatically registered for access at https://phoenixnap.com/portal The Customer Portal allows Customers the ability to create users, add/delete users, add/delete user privileges and opt in (or out) of Services and mailing lists. The Customer Portal provides the Customers with control over their preferences for electronic information delivery but not Phoenix Naps collection and storage of information. Phoenix NAP has also provided the Customer’s master user the ability to manage the Customer’s Account Information. We maintain the data and allow the Customer’s master user to update it at any time. To change this information, Customer must be a current Customer and login with a user ID and password and follow the prompts to "update my profile" on the Customer Portal. We continue to expand the profile of Services and information that Customer may access and update. Please note that some email communications are not subject to general opt-out. These include communications related to download; communications about sales transactions; information about software updates, patches and fixes; disclosures to comply with legal requirements; and network upgrades or other related maintenance for Service.
Phoenix NAP is concerned with the security of the data we have collected and utilizes commercially reasonable measures to prevent unauthorized access to that information. These measures include policies, procedures, employee training, physical access and technical elements relating to data access controls. In addition, Phoenix NAP uses standard security protocols and mechanisms to facilitate the exchange and the transmission of sensitive data, such as credit card details. Phoenix NAP does not process PII in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by the individual. In the event that PII is acquired, or is reasonably believed to have been acquired, by an unauthorized person and applicable law requires notification, Phoenix NAP will notify the affected individual of the breach by email or ticket on the Customer Portal or, if Phoenix NAP is unable to contact the individual by email or ticket on the Customer Portal, then by regular mail. Notice will be given promptly, consistent with the legitimate needs of law enforcement and any measures necessary for Phoenix NAP or law enforcement to determine the scope of the breach and to ensure or restore the integrity of the data system. Phoenix NAP may delay notification if Phoenix NAP or a law enforcement agency determines that the notification will impede a criminal investigation, and in such case, notification will not be provided unless and until Phoenix NAP or the agency determines that notification will not compromise the investigation.
6. POLICY UPDATES
If we are going to use Customer PII in a manner different than provided in this Privacy Agreement, we will notify Customer via email. In addition, if we make any material changes in our privacy practices that do not affect the PII already stored in our database, we will notify Customer by email or post a prominent notice on the Customer Portal notifying users of the change. In some cases, when we post the notice, we will also email users who have opted to receive communications from us, notifying them of the changes in our privacy practices. We may update this policy from time to time to describe how new site features affect our use of Customer PII and to let Customer know of new control and preference features that we provide.
7. CONTACT INFORMATION AND INSPECTION RIGHTS
Service Level Agreement (SLA)
The following Phoenix NAP Service Level Agreement ("SLA") is a policy governing the use of the Phoenix NAP Dedicated Hosting, and Secured Cloud Services under the terms of the Global Master Service Agreement (the "MSA") between Phoenix NAP, LLC. and Customers of Phoenix NAP Services. Each respective SLA applies to offering and each Customer account using a respective Phoenix NAP offering. Unless otherwise provided herein, this SLA is subject to the terms of the MSA and capitalized terms will have the meaning specified in the Agreement. We reserve the right to change the terms of this SLA in accordance with the MSA.
“Service Month” is defined as commencing on the first day of a calendar month at 00:00:00 Mountain Standard Time ("MST") through the last day in that calendar month ending at 23:59:59 MST.
"Monthly Uptime Percentage" is calculated by subtracting from 100%, the percentage of fifteen (15) minute periods during the Service Month in which Secured Cloud is Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any of the Exclusions provided herein.
"Network Downtime” Network Downtime occurs when Customer server cannot transmit or receive data to/from the Internet due to the failure of network equipment managed and owned by Phoenix NAP.
“Network Definition” Our Network consists of all of our infrastructure hardware including routers, switches, and cabling but does not include the services or software running on the server or the server's hardware.
"Unavailable" means that the Secured Cloud infrastructure and network connectivity, up to Phoenix NAP Network Demarcation Point, are inaccessible by Customer for the entire fifteen (15) minute period. • "Phoenix NAP Network Demarcation Point" extends from the Secured Cloud infrastructure to the datacenter located router that provides the outside interface of each of Phoenix NAP's WAN connections to its backbone providers.
The "Eligible Credit Period" is a single month and refers to the monthly Service Month in which the Monthly Uptime Percentage was not 100%.
A "Service Credit" is equal to 5% of the incurred usage fees for the month, calculated as set forth herein that Phoenix NAP may credit back to Customer.
2. TERMS OF SERVICE LEVEL AGREEMENT – EACH APPLIES EXCLUSIVELY TO THEIR RESPECTIVE OFFERING
A. FACILITY LICENSED COLLOCATION
1) 100% Infrastructure Uptime
Phoenix NAP guarantees that datacenter HVAC and power will be functioning 100% of the time in a given month, excluding scheduled maintenance. Power includes all distribution infrastructures up to and including the outlet in the Customer area. Infrastructure downtime exists when a particular piece of system critical equipment is shut down due to power, heat, or humidity issues.
Customer is obligated to monitor services and events as agreed upon by Customer and Phoenix NAP. If Customer identifies a failure event they are required to provide an e-mail to Phoenix NAP at firstname.lastname@example.org regarding the failure. Upon receipt of the email, Phoenix NAP will begin responding to event within 15 minutes using response plan provided by Customer.
a) Primary Circuit vs. Primary and Secondary Circuit
Customer understands they are given the option to purchase power from divergent systems (Primary/Secondary Power) and it is Phoenix NAP’s strong suggestion that all Customers requiring mission critical uptime take advantage of this option. Due to the increase in redundancy recognized by utilizing Primary and Secondary circuits, Customer will receive a significantly increased payment schedule in the event of an outage on both circuits. Customer understands that by utilizing a pair of circuits as Primary/Secondary, the total amperage of both circuits cannot exceed 40% of their combined total load. For example, if both primary and secondary circuits have an amperage rating of 20 amps each—totaling 40 amps—then the amperage load combined across both circuits cannot exceed 16 amps (40% of 40 amps) combined. Exceeding this total will negate Phoenix NAP’s SLA. Phoenix NAP will provide an outlet for both the Primary and Secondary Power drops. It is the Customer’s sole responsibility to utilize redundant power supplies and/or an automatic transfer switch (ATS) to failover in the event of an outage. Phoenix NAP is not responsible for Customer equipment that does not perform as desired during a transition.
b) Primary Power Quantity Availability
Customer will be provided with up to 80% of breakered circuit (as mandated by 2008 NEC Section 210-19a) in a Primary power scenario or 40% of the total breakered circuit in the case of Primary/Secondary power.
4)Credit Schedule for Power
The table below sets forth the Customer’s sole and exclusive remedy for failures to meet Facility Service Level Objectives for the related datacenter colocation services referenced therein (Service Level Failure).
Temperature and Humidity
Temperature Phoenix NAP’s service level objective is to maintain an ambient temperature of 72 degrees Fahrenheit plus or minus 5 degrees (72° F ± 5° F), measured at the nearest supply grill, at all times. Customer is obligated to monitor temperature for variations that would result in credit and request temperature to be measured by on-site staff.
Phoenix NAP’s service level objective is to maintain an ambient humidity of 45 percent plus or minus 15 percent (45% ± 15%) at all times. Customer is obligated to monitor humidity for variations that would result in credit and request measurement by on-site staff.
Credit Schedule for Temperature and Humidity SLA
The table below sets forth the Customer’s sole and exclusive remedy for failures to meet the Facility Service Level Objectives for the related datacenter colocation services referenced therein (Service Level Failure).
6) Service Level Credits
A Service Level Failure period begins upon receipt of an email by Phoenix NAP from Customer of a detailed report of an incident and ends when the affected service is operational. Customer will provide the report via email and trouble ticket. An applicable Service Level Credit Allowance will appear on Customer’s invoice following processing. Service Level Credits will not have any cash value at the end of the Customer’s term or otherwise. Service Level Credits will be calculated as a credit to the Monthly Recurring Charges for datacenter colocation services related to the specific datacenter and suite that experienced the Service Level Failure.
No Service Level Credits will be given for network services which are provided as part of a bundled package, or due to a service interruption:
The maximum total credit for all failures of Phoenix NAP to meet its Facility Service Level Agreement is limited to the total monthly recurring charge for datacenter colocation services by Customer for the month in which the failure occurs.
B. Dedicated Hosting
Server Deployment Guarantee. In most cases Phoenix NAP is able to deploy Customer’s new server within 4 hours, provided Customer’s order does not contain any special instructions, require MSSQL installation, or need an on-board RAID configuration. For all orders, regardless of configuration, we guarantee a server deployment of 24 hours, beginning once Customer’s order has been paid for and verified.
If we miss our goal, we'll give Customer a 10% credit of service cost toward Customer’s first month's hosting service fees. All Customer have to do is notify us within 7 days that we missed our goal and that Customer wish to claim this credit.
2) Network Up-Time
a. 20 Minute Support Response Guarantee.
Secured Servers guarantees that one of our talented professionals will respond to your support tickets or inquiry within 20 minutes of submission. This applies to support tickets emailed to email@example.com or submitted through the portal at https://portal.securedservers.com/.
a. 4 Hour Hardware Replacement Guarantee.
We hate it when things aren't working. If hardware belonging to us and located within our datacenter fails we'll replace it within 4 hours of notification of failure. To report a failure, send an email to firstname.lastname@example.org or submit a ticket through the portal at https://portal.securedservers.com/.
If we don't replace the hardware within 4 hours we will credit you for one day of your monthly recurring hosting charges. We'll give you that same 1 day credit for every four hour block of time beyond the initial 4 hour guarantee until the replacement is complete, up to a total of 100% of your monthly recurring payment if necessary. You do have to send us an official request for the credit within 7 days of the hardware replacement. Send an email to email@example.com or submit a ticket through the portal at https://portal.securedservers.com/ to claim the credit.
The 4 hour hardware replacement guarantee only applies to the replacement of the failed hardware. It takes some time, though, to re-load the operating system and applications and apply any applicable data restorations and backups if necessary, and the time to do that does not count toward the hardware outage. Once the hardware is installed, the hardware failure incident timer is stopped.
C. SECURED CLOUD
1) Service Commitment
Phoenix NAP will use commercially reasonable efforts to make Secured Cloud available with a Monthly Uptime Percentage of 100%. In the event Phoenix NAP does not meet the Monthly Uptime Percentage commitment, Customer will be eligible to receive a Service Credit as described below.
2) Service Credits
If the Monthly Uptime Percentage for a customer drops below 100% during a Service Month, that Customer is eligible to receive one (1) Service Credit for every fifteen (15) minute period that Secured Cloud was Unavailable up to a maximum amount equal to fifty (50) percent of the usage fees calculated during the Eligible Credit Period or one full month, whichever is lesser. For the purposes of determining Service Credits Customer will only be eligible for Service Credits related to the unavailability of
Whichever Service was least available during the Service month, Phoenix NAP will apply any Service Credits only against future Secured Cloud payments otherwise due from Customer; provided that:
Service Credits shall not entitle Customer to any refund or other payment from Phoenix NAP. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Service Credits are Customer's sole and exclusive remedy for any unavailability or non-performance of Secured Cloud.
If the Monthly Uptime Percentage of such request is confirmed by Phoenix NAP and is less than 100% for the Service Month, then Phoenix NAP will issue the Service Credit to Customer within one Service Month following the month in which the request is confirmed. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit. Phoenix NAP's data and records will be the sole factor for validating claims due to Unavailability.
The Service Commitment does not apply to any unavailability, suspension or termination of Secured Cloud, or any other performance issues:
Of course, some things are beyond our control. If we miss our goal because of problems with Customer’s behavior or the performance or failure of Customer’s equipment, facilities, or applications, we can't give Customer credit. Additionally, extenuating circumstances beyond our reasonable control such as (without limitation) acts of any governmental body, acts of terrorism, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Customer’s Web site could cause some hang-ups that we cannot be liable for.
100% Network Uptime Guarantee. Phoenix NAP guarantees that the network will be available 100% of the time during the billing cycle (excluding scheduled maintenance and promotional bundles which include bandwidth). Customers are not entitled to a credit if the downtime is caused by
5. REPORTING REQUIRED
Customer should report downtime incidents to us via email to firstname.lastname@example.org or submission through our portal at https://portal.phoenixnap.com within 3 days of the event's commencement. Only one event per report, please. Please include the service type, IP Address, and a full description of the service interruption including logs (if applicable). Downtime officially begins at the time Phoenix NAP receives the email "ticket" and verifies an outage, and ends when Phoenix NAP has, at its sole discretion, resolved the issue.
If Customer are currently behind in payments for Customer’s accounts, of have been behind 3 or more times in the preceding 12 months, Customers don't qualify for an SLA credit for Downtime. Valid SLA claims can't be credited if Customer has outstanding abuse issues, but once Customer’s abuse issues are resolved we'll gladly credit all valid claims. Making false or repetitive claims will cost Customer $50 per incident and may place Customer in violation of account Acceptable Use Policy and Terms & Conditions. Of course, customers engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms & Conditions and are therefore not entitled to SLA credits.
20 Minute Support Response Guarantee. Phoenix NAP guarantees that one of our talented professionals will respond to Customer’s support tickets or inquiry within 20 minutes of submission. This applies to support tickets emailed to email@example.com
4 Hour Hardware Replacement Guarantee. We hate it when things aren't working. If hardware belonging to us and located within our datacenter fails we'll replace it within 4 hours of determination and Customer notification of failure. To report a failure, send an email to firstname.lastname@example.org or submit a ticket through the portal at https://portal.securedservers.com .
If we don't replace the hardware within 4 hours we will credit Customer for one day of Customer’s monthly recurring hosting charges. We'll give Customer that same 1 day credit for every four hour block of time beyond the initial 4 hour guarantee until the replacement is complete, up to a total of 100% of Customer’s monthly recurring payment if necessary. Customer must send us an official request for the credit within 7 days of the hardware replacement. Send an email to email@example.com or submit a ticket through the portal at https://portal.phoenixnap.com to claim the credit.
The 4 hour hardware replacement guarantee only applies to the replacement of the failed hardware. It takes some time, though, to re-load the operating system and applications and apply any applicable data restorations and backups if necessary, and the time to do that does not count toward the hardware outage. Once the hardware is installed, the hardware failure incident timer is stopped.
1. Time accumulation begins as per section 5. (return)
2. Service Level Credit is provided as a percentage of Total Monthly Recurring Charge for Datacenter Colocation Services. (return)
3. Service Level Credit is provided as a percentage of Total Monthly Recurring Charge for Datacenter Colocation Services. (return)
Contracting Party Addendum
(APPLIES TO ANY NON U.S. BASED CUSTOMER)
This Contracting Party Addendum (“CP Addendum”) is entered into by and between Phoenix NAP, LLC, an Arizona limited liability company, Phoenix NAP EU B.V. a company incorporated in The Netherlands, Amsterdam Registration number 58235787 and Customer. All capitalized terms used in this CP Addendum that are not defined in this CP Addendum shall have the meanings provided for such terms in the MSA.
Phoenix NAP, LLC and Customer are parties to the MSA; Customer has provided Phoenix NAP with a non-U.S. billing address to order products and services under the MSA (“Non U.S. based Customer” as further defined below.);
The parties now intend to amend the MSA as provided in this CP Addendum;
NOW THEREFORE, in consideration of the mutual promises contained in this CP Addendum, the parties agree as follows:
©2014, Phoenix NAP, LLC. v.2; 02212014