MASTER SERVICES AGREEMENT

Between 365 Services LLC (dba 365 DataCenters, “365”), a Delaware LLC, and “Customer”:

  1. Term/Renewal 
    Agreement Term: Typically month-to-month, or as long as stated in the Service Order. Term commences on the Commencement Date (when Services are delivered to Customer) and automatically renews for additional Renewal Terms if no written notice of cancellation is received by 365 at least thirty days prior to Term Expiration Date. 
    Pricing is as stated in the Service Order.
  2. Service Orders 
    Customer may call or open a ticket to order Services. Service Orders (Initial Service Order, Service Change Order, or Renewal Order) will show recurring and non-recurring charges and applicable Term. Once accepted by 365 the Service Order is incorporated into this Agreement.
  3. Payments and Invoicing 
    Services are billed one month in advance; however bandwidth and other services based on usage are billed in arrears. All payments shall be made in US Dollars, or by credit card if qualified in advance by 365. 
    Tax: Customers responsible for all taxes assessed in connection with the Services. 
    Disputes: Customer has sixty days from any billing date to dispute charges and must do so in writing.
  4. Termination
    1. 365 may terminate the Agreement for cause for any of the following:
      • Customer fails to cure its breach or default under Section 3, above, within five business days after written notice from 365;
      • Customer violates the terms of 365’s AUP;
      • Customer fails to cure any other material breach or default of this Agreement within thirty calendar days after delivery of written notice from 365.
    2. For Cause by Customer: if 365 materially fails to provide Services. To terminate for such failure, Customer must give 365 written notice of the failure and provide 365 a reasonable opportunity to cure, which shall be a minimum of thirty calendar days from 365’s receipt of such notice. Upon termination of this Agreement under Section 4A or 4B, and upon receipt of a final notice from 365, Customer shall immediately pay any and all outstanding amounts, fees, and charges due to 365.
    3. Cancellation: Either party may cancel any Services with at least thirty days prior written notice to the other. In the event of cancellation by Customer, or termination by 365 for cause, Customer shall immediately pay to 365 all charges for Services provided through the effective date of cancellation. If Customer’s term is longer than month to month, the cancellation charge is as follows: (i) 100% of the monthly recurring charges (“MRC”) through the first anniversary of the then-current Service Term, plus (ii) 75% of the balance of the MRC for the remainder of such term.
    4. No Transfer of Address Spaces: Upon termination of this Agreement or any applicable Customer Order, if applicable Customer shall immediately relinquish any and all IP addresses or address blocks assigned to Customer by 365.
    5. Customer Property: Any hardware or other property of Customer not removed from the Facility upon termination of this Agreement is subject to a storage charge which must be paid prior to removal of the property by Customer.
  5. Equipment and Third-Party Software
    1. Managed Services. If the Services include a Managed Service, including but not limited to, Managed Server, Managed Firewall, or Managed Backup, all hardware and software (together with all appurtenant licenses, documentation, and media) provided by 365 as part of the delivery of the Managed Service to Customer are at all times the personal property of 365, and subject to the terms and conditions set forth in the manufacturer’s warranty or end-user license applicable to such software, with no warranty of any kind from 365. 365 shall provide Services to Customer as defined in the 365 Service Level Agreement (attached as Exhibit A) or a Service Supplement. . If ordered by Customer, 365 Cloud Storage Services are provided under the terms of the 365 Cloud Storage Rider and Cloud Storage-specific service levels attached here as Exhibit B. Upon termination of the Services, Customer will immediately cease all use of the Managed Service and within two business days shall return to 365any copies it has made of software, documentation or licenses owned by 365 that may have been used in conjunction with the Managed Service.
    2. Sold to Customer. If requested by Customer, 365 shall procure equipment or software on Customer’s behalf in connection with the Services. Customer acknowledges that: (a) 365 is not a manufacturer of any such equipment or software; and (b) 365 is not bound by or liable for any representation, warranty or promise made by the manufacturer. 365 shall not be liable for any liability for loss, damage, or injury to any party or property as a result of any defects, latent or otherwise, in any equipment or software. 365 retains title to purchased equipment until the equipment is paid for in full by Customer, including any shipping, installation or maintenance contract costs related to such equipment.
    3. Customer-owned/365-managed. Any equipment owned by Customer and for which Customer has contracted 365 to manage is and shall remain the property of Customer. 365 will provide Customer support in the maintenance and repair of the hardware only, unless otherwise specified in the Service Supplement. All repair and replacements of Customer hardware (or other Customer-owned components) shall be made at Customer’s expense and Customer shall immediately reimburse 365 for its expenses upon presentation of its invoice.
    4. On Loan, Lease, or Rental to Customer. Any property of 365 made available to Customer for its exclusive use (“365 Property”), including but not limited to access badges, keys, media converters, power distribution devices, networking devices, rails, and shelves, are at all times the property of 365. Customer agrees not to (a) disassemble, deface, or modify it in any way; (b) remove or attempt to obscure any labels or markings placed by 365 or the manufacturer; (c) reverse engineer it; or (d) place it in the possession or control of any third party. 365 may request the return of 365 Property at any time and for any reason. In such case, 365 may provide a functionally equivalent replacement. Any 365 Property not returned to 365 in the same condition that it was given, reasonably adjusted for normal wear, within five business days of the earlier of 365’s written request for its return or any termination of this Agreement shall be deemed lost hereunder.
  6. Acceptable Use Policy
    1. Customer Responsibility for Content. 365 does not monitor or exercise control over the content of the information transmitted or stored by Customer, and Customer assumes all responsibility for such information.
    2. AUP. The Services may only be used for lawful purposes. Sending bulk unsolicited email and violations of system or network security are prohibited. All use of the Service must comply with the current version of the 365 Acceptable Use Policy (“AUP”), located on the world-wide web at http://365datacenters.com/acceptable-use-policy/ and incorporated by reference herein. 365 reserves the right to amend the AUP from time to time.
  7. Warranties and Covenants
    365 warrants that the Services will conform to the applicable Service Supplements and Service Level Agreement in all material respects when used for the purposes stated in the Customer Order and for no other purposes.
    Warranty Disclaimer. Except for the covenants expressly stated in this Agreement, all Services are provided AS IS AND AS AVAILABLE. Any and all third party products are provided AS IS AND AS AVAILABLE.
  8. Limitation of Liability
    NEITHER PARTY, NOR ANY SUPPLIER OF ANY PARTY, SHALL BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF BUSINESS OR PROSPECTIVE BUSINESS OPPORTUNITIES, PROFITS, SAVINGS, INFORMATION, USE OR OTHER COMMERCIAL ECONOMIC LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 365 OR IT’S SUPPLIERS’ LIABILITY UNDER OR RELATED TO THIS AGREEMENT, THE SERVICES, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMEREXCEED THE AGGREGATE AMOUNT OF MONTHLY FEES ACTUALLY PAID TO 365 BY CUSTOMER HEREUNDER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING FIRST RISE TO A CLAIM. CUSTOMER’S SOLE REMEDY WITH RESPECT TO THE PROVISION OF SERVICES OR THE FAILURE TO PROVIDE SERVICES IS AS SET FORTH IN THIS AGREEMENT, THE GENERAL SERVICE LEVEL AGREEMENT AND THE APPLICABLE SERVICE SUPPLEMENT, OR ABSENT A GENERAL SERVICE LEVEL AGREEMENT, 365’S STANDARD SERVICE CREDIT POLICY.
  9. Proprietary Rights and Licenses
    Where software is provided by 365 as part of the Service, 365 hereby grants Customer a non-exclusive, non-transferable license to use the software, including any related documentation, solely to enable Customer to use the Services in accordance with all applicable licensing requirements. All rights with respect to the Software including, but not limited to, intellectual property or similar rights, belong exclusively to 365 and/or its suppliers. The license set forth in this Section 9 shall terminate immediately upon termination of the related Services.
  10. Confidential Information and Non-Disclosure 
    The parties agree to be bound by the Confidential Information and Non-Disclosure Agreement (“NDA”) located on the world-wide web at www.365datacenters.com and incorporated by reference here in. (please post 365 confidentiality document to our website with link here)
  11. Indemnification
    1. Each party shall indemnify, defend and hold the other party harmless from and against any and all costs, liabilities, losses, damages and expenses, including reasonable attorney’s fees, and amounts paid in settlement, resulting from or arising out of any claim, suit, action or proceeding (each a “Claim”) brought against the other party as a consequence of the indemnifying party’s infringement of any third party patent, copyright, trademark, trade secret, or breach of this Agreement. Notwithstanding the provisions of this Section 11, in no event shall either party’s indemnity responsibility to the other under this Agreement exceed the aggregate amount of the monthly fees actually paid to 365 by Customer hereunder during the three calendar month period immediately preceding the event giving rise to a Claim.
    2. Each party shall indemnify and hold the other harmless from and against bodily injury or damage to tangible property caused by the negligence or willful misconduct of the indemnifying party or its employees, agents or invitees in connection with this Agreement.
    3. Customer will indemnify and defend 365 from and against any third-party claims for damages arising from or related to the use or misuse of the Services as set forth in Section 6 of this Agreement.
  12. Insurance 
    Each party shall be responsible for assessing its own need for property, casualty and liability insurance and shall obtain such insurance covering its risks as it sees fit. Each party shall bear the risk of loss and damage with respect to its own equipment and shall not make any claims against the other, or assign any such claims to third parties, for any property loss or damage.
  13. Arbitration and Equitable Relief 
    Except for Customer’s non-payment, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, shall be settled by binding arbitration held in Oakland, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The interpretation and enforceability of this Section 13 shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitrator shall have authority to award relief under legal or equitable principles, including interim or preliminary relief, and to allocate responsibility for the costs of the arbitration and to award recovery of attorneys’ fees and expenses in such manner as is determined to be appropriate by the arbitrator. The arbitrator(s) shall not have authority to award punitive or exemplary damages of any kind. If any provision of this Agreement shall be deemed invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be enforced to the extent permitted by law.
  14. General
    1. Assignment. Customer shall not assign or transfer this Agreement in whole or in part without the prior written consent of 365, which shall not be unreasonably withheld.
    2. Marks and Names. Neither party may use the trade name, trademark or service mark of the other party without the prior written approval of the other party. Notwithstanding the foregoing, 365 may identify Customer and use Customer’s name and materials, web site, and sales presentations. Within sixty calendar days of the Term Commencement Date, 365 may issue a press release announcing this Agreement. Such press release is subject to the prior review and approval of Customer, which shall not be unreasonably withheld.
    3. Force Majeure. Neither party shall be responsible for performance of its obligations if delayed or hindered by war, riots, embargoes, strikes, natural disasters, or other occurrences beyond the party’s control. The foregoing is intended to apply only during the duration of the Force Majeure and for a reasonable recovery time thereafter. Each party shall notify the other party in writing in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty consecutive days, the adversely affected party may cancel this Agreement for the affected Services with no further liability other than charges prorated to the date of such occurrence. Should the occurrence continue for less than sixty days, the parties’ obligations hereunder shall continue without the possibility of cancellation of this Agreement.
    4. Governing Law. This Agreement shall be governed by the laws of the State of California.
    5. Benefit and Assignment. No assignment shall be effective or release the assigning party of its obligations hereunder unless such assignment is made in connection with a sale of all or substantially all of the assets of the assigning party to a person or entity that agrees to assume and become liable for all of the obligations of the assigning party under this Agreement, including any obligations effective or accrued prior to such assignment.
    6. Notices. Notices shall be deemed properly given and delivered (a) when delivered if in person, or (b) on the next business day when deposited prepaid in full with a commercial overnight courier and properly addressed as shown below. Except as otherwise provided, email is not an acceptable mode of delivery for any notice under this Agreement.

To 365: 
365 DataCenters 
Attn: Contracts Administration 
1400-65th Street, Suite 230 
Emeryville, California 94608 
To Customer: 
Notice to the Customer shall be sent to the Administrative Contact set forth on the Service Order.

Exhibit A – Service Level Agreement (“SLA”)

365 strives for 100% overall service availability for Customer-purchased “Covered Services”.

  1. Definitions 
    “Covered Service” is any of the services purchased and fully paid for by Customer as follows: Power Service, Connectivity Service, Environmental Service, Managed Server, Managed Firewall, and Support Service. 365 Cloud Storage is provided under a separate 365 Cloud Storage Rider attached here as Exhibit B. 
    “Service Availability” is defined as Covered Services functioning as intended without any significant interruption. 
    “Service Credit” is a credit issued to a Customer’s account based upon the actual duration of an interruption of a Covered Service. A single Service Credit is equal to the prorated amount of one day’s service based on Customer’s billing during the service period in which the interruption occurs.
  2. Maintenance
    1. Announcements. 365 makes periodic email announcements with regard to maintenance activities and planned or possible service interruptions. Customer must be listed on 365’s Customer Access List (“CAL”) to receive these messages. This list will be 365’s sole requirement for communication of maintenance announcements, and it is Customer’s responsibility to ensure that its staff has joined this list to receive these announcements when made.
    2. Scheduled Maintenance. 365 will make its best efforts to announce scheduled maintenance activities that may result in likely, imminent, or certain interruptions of service not less than forty-eight hours in advance of the beginning of that activity. 365 may make announcements for maintenance activities it deems are unlikely to result in loss of service at any time, or not make any announcement whatsoever.
    3. Emergency Maintenance. Should 365 encounter circumstances that could be a threat to its equipment or the integrity of services to Customers, 365 may at any time perform emergency maintenance on its infrastructure that may affect the services of Customer. 365 will make an announcement of Emergency Maintenance as needed at the time the maintenance is required to be performed.
    4. Threat of Harm. 365 reserves the right, at its sole discretion and without prior notice, to restrict or disable service to or remove from service any Customer equipment that it determines may pose a threat to life or property (for example, in case of fire), or to the integrity of any of 365’s infrastructure, equipment, or services, including but not limited to any machine which has been compromised by an attacker or a virus or is being used to commit a violation of 365’s Acceptable Use Policy.
  3. Requesting Credit 
    Any claim for credit under this SLA shall be made with reference to a trouble ticket opened by Customer during the interruption, and submitted in writing and received by 365 within ten business days of the interruption occurring. Late claims will not be accepted.
  4. Schedule of Credits
    1. General Terms. Should 365 fail to meet the Service Avail-ability performance requirements in any given calendar month, then 365 will, as its sole obligation and Customer’s sole and exclusive remedy for failure to meet the performance requirement, issue Service Credits to the Customer’s account according to the following schedule, up to a maximum of 50% of the Customer’s normal monthly recurring billing for the affected services.
    2. Power Service. 365 will at all times provide Customer access to power on each purchased circuit up to 365’s stated maximum operating load for that circuit. If 365 fails to do so, Customer shall receive one full Service Credit for the affected circuit, for each hour or fraction during which power is not available on that circuit, to a maximum of 14 service credits in any billing month. Further, Customer shall have the right to terminate this Agreement for cause, without penalty and as further provided in Section 6 of this SLA, if: (a) the sum total duration of interruptions of power service exceeds twenty-four hours in any consecutive seven day period, or (b) the number of service interruptions for which Customer has received credit exceeds three during the ninety day period immediately prior to the most recent interruption.
    3. Connectivity Service. If Customer has purchased any connectivity/bandwidth product that includes redundancy, then the Customer shall receive credits at the rates scheduled below for the period during which a total loss of connectivity occurs:

      100%

      No credit

      Uptime of 99.9% to 99.99 uptime in a calendar month

      3 credits

      Uptime of 99% to 99.9% up-time in a calendar month

      7 credits

      Less than 99% uptime in a calendar month

      12 credits

    4. Customers using non-redundant bandwidth products will not receive credits for interruptions of service. Customers shall receive no credits for service for any unavailability, packet loss, or performance for speeds beyond the Customer’s committed information rate (“purchased capacity” or “CIR”) shown on the Customer Order; speeds in excess of the CIR are delivered as-is/as-available; physical port speeds higher than purchased capacity do not guarantee availability to the physical speed of the port. All unmetered services are assumed to have a CIR of one megabit per second. Customer may receive credit for an outage caused by a physical loss of a port delivered to Customer only when a redundant port has also been delivered to Customer and 365’s equipment has failed to deliver connectivity and purchased capacity on the redundant port. Convergence of network routing and switching protocols (for example, BGP, OSPF, and spanning tree, among others) is not instantaneous and takes time during which there is typically some loss of performance and reliability of packet flow; this time shall not be included in any computation of a qualifying outage.
    5. Environmental Service. 365 will make commercially reasonable efforts to ensure that the temperature and humidity of its facilities conform to ASHRAE TC 9.9 2011 Thermal Guidelines for Class A1 computing environments, and does not operate outside the ranges documented therein for more than thirty minutes for temperature or two hours for humidity and other conditions. If these limits are exceeded, Customer shall be entitled to one half of one Service Credit for each twenty-four hour period (or fraction) in which the event occurs. Computation of the Service Credit shall be based on the billing for Customer’s cabinet(s) or colocation floor space, but exclusive of any power, bandwidth, or other service billing. Customer shall have the right to terminate this Agreement for cause, without penalty and as further provided in Section 6 of this SLA, if: (a) the high temperature condition persists for more than twenty four consecutive hours, or (b) the number of high temperature events for which Customer has received credit exceeds three during the ninety days immediately prior to the most recent interruption.
    6. Managed Server or Managed Firewall. In the event of a hardware failure of a 365-owned and managed server or firewall, 365 will begin work to repair or replace the affected equipment within one hour, and restore service to Customer within one hour thereafter. Failure of 365 to meet these requirements shall result in a credit of one Service Credit, plus one additional Service Credit for each two hour period thereafter until service is restored. A managed server is deemed “restored” when access is returned to Customer, but does not include restoration of any Customer data, Customer-installed software, or configuration changes made by Customer that were on the server prior to the failure.
    7. Support Service. 365 will respond to all non-emergency Customer support requests within one business day of its receipt of the request by email or phone, and emergency requests made by telephone only within one hour. Email requests, which are to be used for non-emergency requests only, should be made to service-[site code]@365datacenters.com (or such other address that 365 may later designate). Email requests are deemed received when acknowledged by 365’s auto-responder. Telephone requests may be made to 510-652-7500 (choose option one for the Customer Support Center), or such other number as 365 may designate for the purpose, and are deemed received when made directly to a member of 365’s technical staff or at the time a voicemail is left in the mailbox designated for technical support. Customer is not eligible for a credit if 365 cannot reach the Customer at a contact telephone number or email address provided in Customer’s email or voicemail, or if Customer fails to provide such information correctly. The credit for 365’s failure to respond by the foregoing time is one-fourth of one service credit per support incident. Support return telephone calls will be made only to numbers in the United States and Canada.
  5. Exceptions
    1. Good Standing. The remedies provided under this SLA for an event resulting in interruption of service shall apply only while the Customer is in good standing and not in breach of any term of the Master Services Agreement or any attachments, and the Services provided hereunder have been fully paid for by Customer and its accounts are paid in full with no amounts past due.
    2. Exclusions. Service Credits will not be issued for any interruption of service that, as determined by 365 in its reasonable judgment, result from or are related to:
      • Circumstances beyond 365’s reasonable control, such as Force Majeure (see MSA).
      • Events occurring during any Scheduled or Emergency Maintenance period.
      • Events caused by equipment not provided and maintained by 365, unless the failure is caused by 365.
      • Events caused (directly or indirectly) by acts, errors, or omissions by Customer or Customer’s agents, contractors, or vendors, including negligence, willful misconduct, or breach of 365’s AUP or MSA.
      • Interruptions occurring as a result of Cus-tomer exceeding the Continuous Operating Load (see Colocation Supplement) of any circuit or panel, or exceeding Customer’s purchased capacity.
      • Intentional interruption or reductions in service by 365 for non-payment or other Customer default or breach.
      • Events arising from malicious, unlawful, or terrorist acts against Customer or 365.
      • Viruses, Trojan Horses, Spyware, or soft-ware defects.
      • For bandwidth products, any unavailability of bandwidth in excess of the Customer’s Committed Information Rate, or any reduction in service, rate limiting, packet loss, or increased latency arising from such use in excess of 365’s attempt to limit use in excess.
  6. Termination for Cause under SLA. 
    Should Customer elect to terminate its Services for 365’s non-performance as provided by this SLA, Customer shall have no obligation to provide 365 with an op-portunity to cure prior to such termination. Customer should notify 365 in writing of its intent to terminate within five business days of the event giving rise to Customer’s right to terminate, and Customer should specify an effective date of such termination not more than ninety calendar days from the date of such notice. Nothing shall in any way relieve Customer of its obligations to perform under the MSA (including this SLA and applicable supplements), including timely payment of fees for 365’s Services, through the effective date of such termination.
  7. Policies and Procedures. 
    All use of the Services must comply with the current version of the 365 Policies and Procedures, located on the world-wide web at http://365datacenters.com/policies-procedures and incorporated by reference herein. These Policies and Procedures govern Services at all of 365 facilities (and those of its Affiliates) (the “Facilities”), and Service Orders between 365 and its Customers. The Facilities are to be used by Customers solely for lawful purposes in accordance with these Policies and Procedures. 365 reserves the right to amend the Policies and Procedures from time to time.

Colocation Service Supplement

To the Master Service Agreement

This Colocation Service Supplement is entered into by and between 365 DataCenters (“365”) and  ___________________________ (“Customer”). This Colocation Service Supplement is applicable only where Customer orders 365 colocation services. In such an event, these terms and conditions are incorporated into and are in addition to the terms and conditions contained in the Master Services Agreement (“MSA”) executed by the parties.

I. Special Terms and Conditions

A. Definitions

“Customer Equipment” or “Equipment” means the Customer’s property brought into the Facility, including property described in a Service Order.

“Data Center” or “Facility” means the premises leased, owned and/or operated by 365 in which Services are provided to Customer.

“Equipment Space” or “Space” means the space in the Data Center dedicated to Customer (i.e. cabinet(s), and/or cage(s)) as specified in the Customer Order.

B. Use of Equipment Space

  1. License. During the Term of this Agreement, 365 grants to Customer the right and non-exclusive license (“License”) to use the Equipment Space allocated to Customer by 365 identified in the Customer Order, solely for the Permitted Uses specified herein, while Customer’s account is in good standing and Customer is not in breach of the Master Services Agreement (“MSA”) (including its supplements and other attachments) or any provision thereof. This License is revocable subject to changes in 365’s underlying lease if necessary in sole 365’s discretion. Customer acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space or the Data Center; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.
  2. Relocation and Substitution. 365 reserves the right to relocate, change or otherwise substitute replacement space in the Data Center or elsewhere for the Space for 365’s convenience at any time during the Term hereof, provided that the replacement space is substantially similar in size and configuration to the original Space. 365 shall give Customer not less than thirty (30) calendar days’ notice of any relocation requirement. Any relocation arising from a change in Customer’s services or Customer’s request shall be at Customer’s expense.
  3. Permitted Use. Customer shall use the Space solely for the purpose of (i) installation of the Equipment in the Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment (the “Permitted Uses”).

C. Equipment Installation.

  1. Approved Equipment. Prior to installing any Equipment not specifically detailed and agreed to in a Service Order, Customer should submit installation plans to 365 to obtain 365’s written consent. 365 will use reasonable efforts to respond to Customer’s proposed plans within two business days from receipt.
  2. Maintenance and Removal. Customer agrees to maintain its Equipment in proper operating condition and to remove all Customer Equipment immediately upon expiration or termination of this Agreement. The Customer is obligated to pay for Services through the date of the removal of its Equipment from 365’s Data Center. Customer is liable for all damage to the Space or any 365 property used by Customer, normal wear and tear excepted.
  3. Facility Materials. 365 retains ownership of all installation materials supplied by 365, including, but not limited to, all power and signal cabling, ladder racks, cages, cabinets, and racks, even if the installation costs paid by Customer included 365’s costs to purchase those materials.

II. Base Colocation Services

A. Equipment Cabinets and/or Racks

365 may provide equipment cabinets and/or racks as specified in each individual Customer Order for the Equipment Space. Customers providing their own cabinets must: (1) provide specifications for all cabinets and racks to be used prior to executing the Order Form; (2) furnish a copy of the cabinet key(s) to 365’s Data Center Operations staff; and (3) delivery the cabinets or racks to the Data Center not less than five business days prior to scheduled installation. All Customer-provided cabinets and racks must include “bolt down kits” so that they can be secured by 365’s staff to the Facility floor.

B. Access

  1. Access Schedule. 365 will provide physical access to the Data Center 24 hours a day, 7 days a week to Authorized Staff (as defined below) while the Customer’s account is in good standing and subject to the terms further stated herein, while Customer is not in breach of any term or provision of this Supplement and the MSA (including its supplements and attachments).
  2.  Authorized Staff. Customer’s access to the Data Center will be limited solely to the individuals identified and authorized by Customer and 365 to have access to the Data Center in accordance with this Agreement, as identified in a Keycard and Space Acceptance Form and 365’s “Access Policy” (defined below), both of which are incorporated herein by this reference (each such person being “Authorized Staff”). 365 shall grant to each Authorized Staff person an individual access badge and key(s) for that person’s use only.
  3. Access Badges and Keys. All access badges and keys issued to Authorized Staff by 365 are and shall at all times remain 365’s property, and must be surrendered to 365 upon demand. Customer may not make its own copies of any key for any reason.
  4. Access Policy. Customer will at all times ensure that its officers, employees, technicians, agents, representatives, subcontractors, and visitors agree to and shall at all times abide by and honor 365’s Facility Orientation Guide, Policies and Procedures (the “Access Policy”) with regard to the use of the Space and the Data Center as published by 365 (whether written or published on 365’s website) and incorporated herein by reference. Failure to abide by the Access Policy shall be deemed to be a breach of this Agreement by Customer.
  5. 365 Access. 365 retains the right to access the Space, without prior notice, at any time and from time to time to perform maintenance and repairs, inspect the Equipment, measure power draw, and to perform the Services and assure compliance with the terms of this Agreement.
  6. Revocation of Access. 365 may temporarily revoke or deny access to the Space or the Data Center as it deems necessary: (i) in case of emergency; (ii) if an Authorized Staff person or visitor is suspected of being under the influence of alcohol or any drug or represents a danger to themselves or any other person.
  7. Use of Space. Customer may not store or leave in plain view any cardboard boxes, paper, books, paper or plastic bags, or any other similar combustible material in the Space.
  8. Restriction for Breach. In the event of any breach of this Agreement by Customer, including non-payment of any amount when due, 365 may immediately and without prior notice restrict or deny access to Customer and Customer’s Authorized Staff and visitors. 365 will restore access to Authorized Staff within one business day of Customer’s cure of any breach hereunder. Customer may not remove any Equipment from the Space while its account is delinquent, and 365 reserves the right to restrict Customer from such removal until payment for all delinquent amounts has been deposited and cleared.

C. Environmentals

365 will provide and maintain the physical attributes of the Data Center including security, temperature, humidity, and fire protection, as detailed in its specifications for the Data Center.

D. Power

  1. Circuit Delivery and Load Management. 365 shall exclusively provide AC and/or DC power circuits for the Space as specified in the Customer Order. It shall be the Customer’s responsibility to monitor and manage the power draw on any circuit or fuse provided to the Customer. All circuits (primary and redundant) are rated to operate at a constant combined load maximum of eighty percent (80%) of the rated circuit maximum capacity/breaker size (which 80% value is hereby defined as the “Continuous Operating Load”). Unless otherwise indicated by the term “Continuous Operating Load”, all circuit capacities stated in any Customer Order Form or other correspondence are maximum capacities/breaker sizes. 365 shall not be liable for any outage, or damage to Customer’s Equipment, applications or data, should the Customer exceed a circuit’s Continuous Operating Load. If Customer exceeds the Continuous Operating Load, as determined solely by 365’s measurements, upon written notice by 365 (email or in writing) Customer has 24 hours to remove connected equipment or take other remedial actions to reduce the combined circuit load below this limit. If Customer cannot operate all of its required equipment without exceeding the Continuous Operating Load of a circuit or by moving equipment to other existing circuits provided for Customer’s use, Customer will be immediately charged for the additional circuits, at 365’s then-current rates; and any such upgrades may cause the Customer to be subject to other changes and possible relocation (at Customer expense).
  2. Standard Power Service. Unless indicated on a Service Order, pricing for power delivered hereunder shall be fixed per circuit delivered.
  3. High-Density Power Service. This paragraph applies only to Customers using High Density Power, as indicated on Customer’s Service Order. Customer may not exceed its Purchased Capacity (as specified in an Order Form) by more than 1% when measured as a two-hour average, or instantaneously by more than 2.5% at any time. If Customer exceeds its Purchased Capacity, or a group or individual circuit limit, 365 will notify (verbally by telephone or in person) Customer’s staff, who shall immediately remove Customer’s connected equipment or take other remedial actions to reduce total power use below the exceeded limit. Should Customer fail to reduce its power use immediately, or if 365 reasonably deems that the overage exceeds the Data Center’s operational limits or may cause damage to equipment or loss of service to Customer, 365, or 365’s Customers, 365 may take such immediate action (which may include disconnection of Customer’s equipment or power circuits) to reduce the load, and 365 shall not incur any liability, of any kind whatsoever (including but not limited to Customer’s loss of profits), for its actions. 365 bases its capacity recommendations on Customer’s listed equipment referenced on the Order Form or Schedule of Equipment, and power circuits shall be delivered in accordance with Customer’s specifications as documented therein. The total capacity of the power circuits delivered to Customer may by their nature exceed the Purchased Capacity, but this does not in any way commit, guarantee, or permit Customer’s use of any capacity in excess of the Purchased Capacity. 365 makes no representation that capacity in excess of the Purchased Capacity will be available to Customer at any time in future. Customer hereby further acknowledges that exceeding its Purchased Capacity, or exceeding 365’s established maximum operating load on any circuit or circuit group, may cause damage to 365’s power infrastructure and/or interruptions of service to Customer and other 365 customers.
  4. Adjustments. Pricing for all power is subject to adjustment based on changes in costs realized by 365 or otherwise anticipated by a rate change announced by the utility. Should a change in pricing become necessary (in 365’s sole discretion), 365 will provide notice to Customer in the billing period prior to making the adjustment, but in no case will the notice be less than thirty days prior to making the adjustment.
  5. Customer-Provided Electrical Equipment. All power strips, power cords, and other current-carrying equipment, fixtures, and cables of whatever kind used by Customer in the Space (“Distribution Equipment”) shall be UL listed/certified, in good condition, and of a type, construction, and capacity appropriate for their use on the circuit to which it is connected. Under no circumstances may Customer connect any Distribution Equipment that is intended for connection to a grounded circuit to any ungrounded circuit or Distribution Equipment, or in any way attempt to defeat the grounding or other electrical safety devices of the Distribution Equipment. Power strips, surge suppressors, and similar Distribution Equipment must have metal cases and not plastic; use of plastic-cased power distribution is subject to 365’s prior approval and may be refused in 365’s sole discretion. Power strips and similar distribution equipment may not be “daisy chained”.

E. 24-Hour Customer Support

365 provides support 24 hours a day, every day, by telephone or email. Telephone support requests must be made by calling 866-365-6246, menu option 4, or such other number that 365 may designate for the purpose in future. Under this Agreement, support is limited to the product features included in the Service, network availability, and hardware problems. If a support agent is not available to immediately answer Customer’s call, Customer shall leave a message including the contact name, contact telephone number with area code, and a brief description of the issue. Customers may also make support requests via email to datacenter-support@365datacenters.com or such other address as 365 may designate. 365 shall make its best efforts to respond to support requests made during 365’s normal business hours within thirty minutes of Customer’s voicemail, or within one business day of receipt of Customer’s email. Reporting of emergency issues, including suspected network outages or any interruption that may be covered by this Agreement or any Service Level Agreement incorporated herein, must be made by telephone only.

III. Customer’s Covenants

A. EPO. Customer hereby acknowledges and agrees that the “EPO” (emergency power off) buttons in the Data Center are for use by 365 staff only and are not to be operated by Customer, Customer’s Authorized Staff, or visitors, for any reason, even in an emergency, unless authorized and directed by 365’s staff to do so. The EPO is not a fire alarm.

B. Clean, Safe Space. When leaving a facility, Customer shall ensure that its Space is left locked and in an orderly and safe condition. Under no circumstances may any cardboard, paper, or other combustible materials be left in the Space.

C. Photography. Photography or videography of any kind in the Facility is expressly prohibited without 365’s prior written permission.

D. Contacts. Customer shall at all times maintain at least two (2) current technical contacts whose name and contact information are made known to 365. Customer shall notify 365 of any change in contact or contact information within one (1) business day of the change occurring. Customer shall ensure that at least one (1) of its contacts shall at all times be able to be present on site at the Data Center within four (4) hours (any time of day or day of the year) of any notice or emergency requiring presence for performance under this Agreement.

IV. Service Options

A. 365 Managed Bandwidth

365 may provide network connectivity, DNS, and IP addresses that connect Customers to the Internet. The following service options are available if the Customer has purchased 365 Managed Bandwidth:

  1. Bandwidth Service Billing. 365-provided Ethernet connections are metered services consisting of both a fixed base monthly charge and a variable monthly charge based on bandwidth utilization in excess of the base bandwidth specified in the Order (the “Committed Information Rate”, aka “CIR”). The variable monthly charge is calculated from cumulative traffic samples from the Customer connection: 365 collects inbound and outbound bandwidth samples in five-minute intervals. A month’s collected samples are sorted in descending order for both inbound and outbound, and the top five (5) percent by count of samples for the month of samples are discarded. The highest remaining samples for both inbound and outbound are the 95th Percentile Usage levels for the month. If the 95th Percentile Usage is at or below the Committed Information Rate, there will be no variable charge component for bandwidth. If the 95th Percentile Usage exceeds the Committed Information Rate, the excess shall be billed at the undiscounted billing rate for the CIR tier, or other rate identified specifically on the Order Form as the “Bursting Charge”. Under no circumstances, however, may the Customer’s 95th Percentile Usage either (a) exceed 200% of the Committed Information Rate in any billing period or (b) exceed 150% of the Committed Information Rate in any two consecutive billing periods; and in such cases 365 may, in its sole discretion, assess a Capacity Planning Charge of 50% of the undiscounted rate per megabit per second for the entire 95th Percentile Usage. Customer may, however, avoid the Capacity Planning Charge by executing an Order Form for an increased Committed Information Rate that meets or exceeds its 95th Percentile Usage for the most recent billing period. The Capacity Planning Charge may not be removed or discounted by any Order Form. Any bandwidth use, instantaneous or 95th percentile, is not guaranteed in excess of the CIR; 365 reserves the right to use policing and rate-limiting to prevent any use of bandwidth in excess of the CIR at its sole discretion.
  2. IP Address Space. 365 may assign IP addresses as requested by Customer and provided that Customer meets 365’s utilization criteria, and in accordance with industry requirements for utilization and management, subject to availability and at 365’s then-current rates. If Customer does not maintain utilization of at least eighty percent (80%) of the assigned address space (exclusive of reserved addresses) throughout the term of this Agreement, 365 may, upon ten (10) business days prior notice, require Customer to renumber into a smaller address space. Upon termination of this Agreement, Customer agrees to immediately cease all use of and return 365-assigned IP addresses to 365. Customer may not make routing announcements for 365-assigned IP addresses without 365’s prior written permission. It is Customer’s sole responsibility to ensure that 365-assigned IP addresses it uses are kept free from blocking lists and blacklists; should an address be blocked or blacklisted while in Customer’s possession and not removed by Customer within thirty (30) days, Customer hereby agrees to bear 365’s costs in removal from such list. Any use by Customer of 365’s IP address space after the effective date of termination hereof, including route announcements made for any purpose, shall be an uncurable breach hereunder.
  3. Domain Name Service and Domain Names. 365 can provide primary and secondary Domain Name Service for domains requested by Customer, at 365’s then-current rates. During the term of this Agreement, Customer will be responsible for the payment of all fees for domains for which 365 provides service. Upon termination of this Agreement, Customer is solely responsible for the continued timely payment of such fees to the registrar when due. In accordance with registrar policy, any failure by the Customer to pay such fees when due may result in the loss of use of the domain name.

B. Access to Other Internet Service Providers

365 provides managed cross-connects for connection to third party Telecommunications Carriers located within the Data Center. Customer is subject to a monthly cross-connect fee from 365 to physically access such providers. All contractual and service agreements, including but not limited to, pricing, service level agreements, service monitoring and troubleshooting, are between the Customer and its selected service provider. Customer is solely responsible for its costs and all costs incurred from any third party for completing the connection, regardless of cause, even if caused by 365’s error or omission. Any testing or diagnostic assistance provided by 365 in resolving problems with these third-party connections not found to be fault of 365 shall be billed to Customer at 365’s then-current rates, and Customer hereby agrees to pay such amounts when billed.

C. Tape Rotation

365 does not provide rotation/exchange of Customer-owned tapes or other media as a regular or scheduled event under its Remote Hands Service.

D. Licensed Software and Hardware

During the term of this Agreement, 365 may from time to time provide Customer access to software or hardware that was created by and/or is owned by 365 (“Licensed Assets”). 365 grants Customer a non-exclusive royalty-free license to use the Licensed Assets throughout the term of this Agreement and while all applicable non-recurring and recurring fees have been fully paid therefore. Customer may not transfer this license to any third party, nor may Customer remove the Licensed Assets from the Facility, without 365’s prior written permission. The Licensed Assets shall at all times remain the exclusive property of 365, and nothing herein grants Customer any copyright, trademark, intellectual property, or ownership rights of any kind unless an explicit assignment of such rights is made in writing by 365. Any modifications made by Customer or 365 to the Licensed Assets for Customer’s use hereunder shall also be considered 365’s intellectual property and shall be deemed an indivisible part of the Licensed Assets. Upon termination of this Agreement, all licenses granted to Customer hereunder shall immediately terminate, and Customer must immediately cease use of and return all Licensed Assets to 365.

E. Receipt of Deliveries and Storage

  1. Addressing and Delivery Time. Customer may have equipment or other packages containing property intended for Customer’s use in a Facility delivered to a Facility. All such deliveries must be addressed to the Customer’s legal business name in care of 365 DataCenters at the specific Facility address. Customer shall also notify 365 in advance of any deliveries being made to a Facility, and all deliveries must take place during normal business hours (deliveries made outside of normal business hours or on 365 holidays will be subject to availability of 365’s staff and charged at then-current rates for an off-hours call out). 365 reserves the right to refuse any delivery not made in accordance with the foregoing, or for any other reason 365 may have in its sole discretion, and Customer hereby releases 365 from any liability or costs, of whatever kind, arising from such refusal.
  2. Handling Charges. Deliveries meeting any of the following criteria will be subject to a handling charge: (1) more than six packages/cartons/containers; (2) packages in excess of one hundred fifty (150) pounds; (3) length and girth combined of any package in excess of 400 inches; or (4) any package exceeding 72 inches in length.
  3. Inspection and Damage. 365 will not inspect or evaluate deliveries for completeness or damage. 365’s signature on any receipt, bill of lading, or similar document shall be construed only to mean that the carrier made the delivery, in whatever condition, and shall under no circumstances be considered any representation on the part of 365 that the delivery is complete and/or undamaged.
  4. Claiming Deliveries. Customer must claim (and remove from 365’s receiving room or storage) all deliveries within five (5) business days of receipt by 365. Any deliveries not claimed by Customer within the foregoing period shall be subject to a storage charge at 365’s then-current rates for the space used.
  5. Waiver of Damages. Customer hereby agrees to indemnify, defend, and hold harmless 365 and its employees, contractors, and agents from any loss or liability, of whatever kind, arising directly or indirectly from 365’s receipt or handling of Customer’s delivery, without limitation.

F. Other Additional Services

365 will provide other additional services, support, and/or equipment as set forth in the Statement of Work.

The Parties hereto agree as provided herein, and this Colocation Supplement is hereby incorporated into the Master Services Agreement and made a part thereof.

Signed and Agreed by Customer

____________________________________________________ 
Full Legal Name

____________________________________________________ 
By

____________________________________________________ 
Name

____________________________________________________ 
Title

____________________________________________________ 
Date

365 DataCenters

_____________________________________________________ 
By

_____________________________________________________ 
Name

_____________________________________________________ 
Title

_____________________________________________________ 
Date

Master Services Agreement

This Master Services Agreement (“MSA” or “Agreement”) is between 365 Services LLC (dba 365 Data Centers, “365”), a Delaware limited liability company, and “Customer” named below:

___________________________________________

Customer

____________________________________________ 
Address

____________________________________________ 
City, State, Zip

1. Term/Renewal

Agreement Term: The Initial Term and pricing shall be stated in the Service Order. The Commencement Date for the Initial Term is when Services are delivered to Customer, as stated in the Service Order. Upon expiration of the Initial Term or any Renewal Term and provided Customer is not then in default, unless a written notice of cancellation is given by either party at least thirty days prior to the end of the then-current Term, each Service will renew automatically for an additional Term of twelve months (“Renewal Term”).

Customer acknowledges that in the event the Initial Term or a Renewal Term is greater than twelve months, price escalators shall be applied to the rates described in the Service Orders as follows: rates for power and colocation space described in any Service Order shall be automatically increased by five percent upon each twelve month anniversary of this Agreement during the Term, or the Renewal Term, as applicable, and such increased rates shall apply to any future or incremental Services purchased during the Term or the Renewal Term, as applicable.

2. Service Orders

Customer may call or open a ticket to order Services. Service Orders (Initial Service Order, Service Change Order, or Renewal Order) will show recurring and non-recurring charges and applicable Term. Once accepted by 365 the Service Order is incorporated into this Agreement.

3. Payments and Invoicing

Services are billed one month in advance; however bandwidth and other services based on usage are billed in arrears. All payments shall be made in US Dollars, or by credit card if qualified in advance by 365. All Customer service fees shown as “Monthly Recurring Charges” on the Service Order shall be payable by Customer in full on a monthly basis by the first calendar day of every month during the Term whether or not Customer fully utilizes its allotted electrical capacity and notwithstanding any removal or non-operation of any or all of Customer’s Property or infrastructure.

Invoices will be sent electronically and payment is due Net-30 from receipt. Payments are late when not received by the fifth calendar day after the due date, and will be assessed a late charge of 1.5% per month of the accrued unpaid balance or $25.00, whichever is greater. If Customer fails to pay past due amounts within five business days following 365’s written notice, 365 may immediately restrict access, suspend or limit Services or terminate this Agreement for cause.

Tax: Customer is responsible for all taxes assessed in connection with the Services.

Disputes: Customer has sixty days from any billing date to dispute charges and must do so in writing.

4. Termination

A. 365 may terminate the Agreement for cause for any of the following: (i) Customer fails to cure its breach or default under Section 3, above, within five business days after written notice from 365; (ii) Customer violates the terms of 365’s AUP (see Section 6 below); (iii) Customer fails to cure any other material breach or default of this Agreement within thirty calendar days after delivery of written notice from 365.

B. For Cause by Customer: if 365 materially fails to provide Services. To terminate for such failure, Customer must give 365 written notice of the failure and provide 365 a reasonable opportunity to cure, which shall be a minimum of thirty calendar days from 365’s receipt of such notice. Upon termination of this Agreement under Section 4A or 4B, and upon receipt of a final notice from 365, Customer shall immediately pay any and all outstanding amounts, fees, and charges due to 365.

C. Cancellation: Either party may cancel any Services with at least thirty days prior written notice to the other. In the event of cancellation by Customer, or termination by 365 for cause, Customer shall immediately pay to 365 all charges for Services provided through the effective date of cancellation. If Customer’s term is longer than month to month, the cancellation charge is as follows: (i) 100% of the monthly recurring charges (“MRC”) through the first anniversary of the then-current Service Term, plus (ii) 75% of the balance of the MRC for the remainder of such term.

D. No Transfer of Address Spaces: Upon termination of this Agreement or any applicable Customer Order, if applicable Customer shall immediately relinquish any and all IP addresses or address blocks assigned to Customer by 365.

E. Customer Property: Any hardware or other property of Customer not removed from the Facility upon termination of this Agreement is subject to a storage charge which must be paid prior to removal of the property by Customer.

5. Equipment and Third-Party Software

A. Managed Services. If the Services include a Managed Service, including but not limited to, Cloud Services, Managed Server, Managed Firewall, Managed Backup, or Single Server, all hardware and software (together with all appurtenant licenses, documentation, and media) provided by 365 as part of the delivery of the Managed Service to Customer are at all times the personal property of 365, and subject to the terms and conditions set forth in the manufacturer’s warranty or end-user license applicable to such software, with no warranty of any kind from 365. 365 shall provide Services to Customer as defined in the 365 Service Level Agreement (attached as Exhibit A) or an applicable Service Supplement. Upon termination of the Services, Customer will immediately cease all use of the Managed Service and within two business days shall return to 365 any copies it has made of software, documentation or licenses owned by 365 that may have been used in conjunction with the Managed Service.

B. Sold to Customer. If requested by Customer, 365 shall procure equipment or software on Customer’s behalf in connection with the Services. Customer acknowledges that: (a) 365 is not a manufacturer of any such equipment or software; and (b) 365 is not bound by or liable for any representation, warranty or promise made by the manufacturer. 365 shall not be liable for any liability for loss, damage, or injury to any party or property as a result of any defects, latent or otherwise, in any equipment or software. 365 retains title to purchased equipment until the equipment is paid for in full by Customer, including any shipping, installation or maintenance contract costs related to such equipment.

C. Customer-owned/365-managed. Any equipment owned by Customer and for which Customer has contracted 365 to manage is and shall remain the property of Customer. 365 will provide Customer support in the maintenance and repair of the hardware only, unless otherwise specified in the Service Supplement. All repair and replacements of Customer hardware (or other Customer-owned components) shall be made at Customer’s expense and Customer shall immediately reimburse 365 for its expenses upon presentation of its invoice.

D. On Loan, Lease, or Rental to Customer. Any property of 365 made available to Customer for its exclusive use (“365 Property”), including but not limited to access badges, keys, media converters, power distribution devices, networking devices, rails, and shelves, are at all times the property of 365. Customer agrees not to (a) disassemble, deface, or modify it in any way; (b) remove or attempt to obscure any labels or markings placed by 365 or the manufacturer; (c) reverse engineer it; or (d) place it in the possession or control of any third party. 365 may request the return of 365 Property at any time and for any reason. In such case, 365 may provide a functionally equivalent replacement. Any 365 Property not returned to 365 in the same condition that it was given, reasonably adjusted for normal wear, within five business days of the earlier of 365’s written request for its return or any termination of this Agreement shall be deemed lost hereunder.

6. Acceptable Use Policy

A. Customer Responsibility for Content. 365 does not monitor or exercise control over the content of the information transmitted or stored by Customer, and Customer assumes all responsibility for such information.

B. AUP. The Services may only be used for lawful purposes. Sending bulk unsolicited email and violations of system or network security are prohibited. All use of the Service must comply with the current version of the 365 Acceptable Use Policy (“AUP”), located on the world-wide web at http://365datacenters.com/acceptable-use-policy/ and incorporated by reference herein. 365 reserves the right to amend the AUP from time to time.

7. Warranties and Covenants

A. 365 warrants that the Services will conform to the applicable Service Supplements and Service Level Agreement in all material respects when used for the purposes stated in the Customer Order and for no other purposes.

Warranty Disclaimer. Except for the covenants expressly stated in this Agreement, all Services are provided AS IS AND AS AVAILABLE. Any and all third party products are provided AS IS AND AS AVAILABLE.

8. Limitation of Liability

A. NEITHER PARTY, NOR ANY SUPPLIER OF ANY PARTY, SHALL BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF BUSINESS OR PROSPECTIVE BUSINESS OPPORTUNITIES, PROFITS, SAVINGS, INFORMATION, USE OR OTHER COMMERCIAL ECONOMIC LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 365 OR IT’S SUPPLIERS’ LIABILITY UNDER OR RELATED TO THIS AGREEMENT, THE SERVICES, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER EXCEED THE AGGREGATE AMOUNT OF MONTHLY FEES ACTUALLY PAID TO 365 BY CUSTOMER HEREUNDER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING FIRST RISE TO A CLAIM. CUSTOMER’S SOLE REMEDY WITH RESPECT TO THE PROVISION OF SERVICES OR THE FAILURE TO PROVIDE SERVICES IS AS SET FORTH IN THIS AGREEMENT, THE GENERAL SERVICE LEVEL AGREEMENT AND THE APPLICABLE SERVICE SUPPLEMENT, OR ABSENT A GENERAL SERVICE LEVEL AGREEMENT, 365’S STANDARD SERVICE CREDIT POLICY.

9. Proprietary Rights and Licenses

A. Where software is provided by 365 as part of the Service, 365 hereby grants Customer a non-exclusive, non-transferable license to use the software, including any related documentation, solely to enable Customer to use the Services in accordance with all applicable licensing requirements. All rights with respect to the Software including, but not limited to, intellectual property or similar rights, belong exclusively to 365 and/or its suppliers. The license set forth in this Section 9 shall terminate immediately upon termination of the related Services.

10. Confidential Information and Non-Disclosure

The parties agree to be bound by the Confidential Information and Non-Disclosure Agreement (“NDA”) located on the world-wide web at www.365datacenters.com and incorporated by reference herein.

11. Indemnification

A. Each party shall indemnify, defend and hold the other party harmless from and against any and all costs, liabilities, losses, damages and expenses, including reasonable attorney’s fees, and amounts paid in settlement, resulting from or arising out of any claim, suit, action or proceeding (each a “Claim”) brought against the other party as a consequence of the indemnifying party’s infringement of any third party patent, copyright, trademark, trade secret, or breach of this Agreement. Notwithstanding the provisions of this Section 11, in no event shall either party’s indemnity responsibility to the other under this Agreement exceed the aggregate amount of the monthly fees actually paid to 365 by Customer hereunder during the three calendar month period immediately preceding the event giving rise to a Claim.

B. Each party shall indemnify and hold the other harmless from and against bodily injury or damage to tangible property caused by the negligence or willful misconduct of the indemnifying party or its employees, agents or invitees in connection with this Agreement.

C. Customer will indemnify and defend 365 from and against any third-party claims for damages arising from or related to the use or misuse of the Services as set forth in Section 6 of this Agreement.

12. Insurance

Each party shall be responsible for assessing its own need for property, casualty and liability insurance and shall obtain such insurance covering its risks as it sees fit. Each party shall bear the risk of loss and damage with respect to its own equipment and shall not make any claims against the other, or assign any such claims to third parties, for any property loss or damage.

13. Arbitration and Equitable Relief

Except for Customer’s non-payment, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, shall be settled by binding arbitration held in Oakland, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The interpretation and enforceability of this Section 13 shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitrator shall have authority to award relief under legal or equitable principles, including interim or preliminary relief, and to allocate responsibility for the costs of the arbitration and to award recovery of attorneys’ fees and expenses in such manner as is determined to be appropriate by the arbitrator. The arbitrator(s) shall not have authority to award punitive or exemplary damages of any kind. If any provision of this Agreement shall be deemed invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be enforced to the extent permitted by law. 

14. General

A. Assignment. Customer shall not assign or transfer this Agreement in whole or in part without the prior written consent of 365, which shall not be unreasonably withheld.

B. Marks and Names. Neither party may use the trade name, trademark or service mark of the other party without the prior written approval of the other party. Notwithstanding the foregoing, 365 may identify Customer and use Customer’s name and materials, web site, and sales presentations. Within sixty calendar days of the Term Commencement Date, 365 may issue a press release announcing this Agreement. Such press release is subject to the prior review and approval of Customer, which shall not be unreasonably withheld.

C. Force Majeure. Neither party shall be responsible for performance of its obligations if delayed or hindered by war, riots, embargoes, strikes, natural disasters, or other occurrences beyond the party’s control. The foregoing is intended to apply only during the duration of the Force Majeure and for a reasonable recovery time thereafter. Each party shall notify the other party in writing in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty consecutive days, the adversely affected party may cancel this Agreement for the affected Services with no further liability other than charges prorated to the date of such occurrence. Should the occurrence continue for less than sixty days, the parties’ obligations hereunder shall continue without the possibility of cancellation of this Agreement.

D. Governing Law. This Agreement shall be governed by the laws of the State of California.

E. Benefit and Assignment. No assignment shall be effective or release the assigning party of its obligations hereunder unless such assignment is made in connection with a sale of all or substantially all of the assets of the assigning party to a person or entity that agrees to assume and become liable for all of the obligations of the assigning party under this Agreement, including any obligations effective or accrued prior to such assignment.

F. Notices. Notices shall be deemed properly given and delivered (a) when delivered if in person, or (b) on the next business day when deposited prepaid in full with a commercial overnight courier and properly addressed as shown below. Except as otherwise provided, email is not an acceptable mode of delivery for any notice under this Agreement.

To 365: 
365 DataCenters 
Attn: Contracts Administration 
1400-65th Street, Suite 230 
Emeryville, California 94608

To Customer: 
Notice to the Customer shall be sent to the Administrative Contact set forth on the Service Order. 

SIGNED AND AGREED BY CUSTOMER

By:__________________________________________

(Authorized Customer Signature)

Name and Title:

_____________________________________________

Date: ________________________________________

365 SERVICES LLC

By: _____________________________________________

Name and Title:

________________________________________________

Date: ___________________________________________

Exhibit A – Service Level Agreement (“SLA”)

365 strives for 100% overall service availability for Customer-purchased “Covered Services”.

1. Definitions

“Covered Service” is any of the services purchased and fully paid for by Customer as follows: Power Service, Connectivity Service, Environmental Service, Managed Server, Managed Firewall, and Support Service. 365 Cloud Storage is provided under a separate 365 Cloud Storage Rider attached here as Exhibit B.

“Service Availability” is defined as Covered Services functioning as intended without any significant interruption.

“Service Credit” is a credit issued to a Customer’s account based upon the actual duration of an interruption of a Covered Service. A single Service Credit is equal to the prorated amount of one day’s service based on Customer’s billing during the service period in which the interruption occurs.

2. Maintenance

A. Announcements. 365 makes periodic email announcements with regard to maintenance activities and planned or possible service interruptions. Customer must be listed on 365’s Customer Access List (“CAL”) to receive these messages. This list will be 365’s sole requirement for communication of maintenance announcements, and it is Customer’s responsibility to ensure that its staff has joined this list to receive these announcements when made.

B. Scheduled Maintenance. 365 will make its best efforts to announce scheduled maintenance activities that may result in likely, imminent, or certain interruptions of service not less than forty-eight hours in advance of the beginning of that activity. 365 may make announcements for maintenance activities it deems are unlikely to result in loss of service at any time, or not make any announcement whatsoever.

C. Emergency Maintenance. Should 365 encounter circumstances that could be a threat to its equipment or the integrity of services to Customers, 365 may at any time perform emergency maintenance on its infrastructure that may affect the services of Customer. 365 will make an announcement of Emergency Maintenance as needed at the time the maintenance is required to be performed.

D. Threat of Harm. 365 reserves the right, at its sole discretion and without prior notice, to restrict or disable service to or remove from service any Customer equipment that it determines may pose a threat to life or property (for example, in case of fire), or to the integrity of any of 365’s infrastructure, equipment, or services, including but not limited to any machine which has been compromised by an attacker or a virus or is being used to commit a violation of 365’s Acceptable Use Policy.

3. Requesting Credit

Any claim for credit under this SLA shall be made with reference to a trouble ticket opened by Customer during the interruption, and submitted in writing and received by 365 within ten business days of the interruption occurring. Late claims will not be accepted.

4. Schedule of Credits

A. General Terms. Should 365 fail to meet the Service Availability performance requirements in any given calendar month, then 365 will, as its sole obligation and Customer’s sole and exclusive remedy for failure to meet the performance requirement, issue Service Credits to the Customer’s account according to the following schedule, up to a maximum of 50% of the Customer’s normal monthly recurring billing for the affected services.

B. Power Service. 365 will at all times provide Customer access to power on each purchased circuit up to 365’s stated maximum operating load for that circuit. If 365 fails to do so, Customer shall receive one full Service Credit for the affected circuit, for each hour or fraction during which power is not available on that circuit, to a maximum of 15 service credits in any billing month. Further, Customer shall have the right to terminate this Agreement for cause, without penalty and as further provided in Section 6 of this SLA, if: (a) the sum total duration of interruptions of power service exceeds twenty-four hours in any consecutive seven day period, or (b) the number of service interruptions for which Customer has received credit exceeds three during the ninety day period immediately prior to the most recent interruption.

C. Connectivity Service. If Customer has purchased any connectivity/bandwidth product that includes redundancy, then the Customer shall receive credits at the rates scheduled below for the period during which a total loss of connectivity occurs:

100%

No credit

Uptime of 99.9% to 99.99 uptime in a calendar month

3 credits

Uptime of 99% to 99.9% uptime in a calendar month

7 credits

Less than 99% uptime in a calendar month

12 credits

Customers using non-redundant bandwidth products will not receive credits for interruptions of service. Customers shall receive no credits for service for any unavailability, packet loss, or performance for speeds beyond the Customer’s committed information rate (“purchased capacity” or “CIR”) shown on the Customer Order; speeds in excess of the CIR are delivered as-is/as-available; physical port speeds higher than purchased capacity do not guarantee availability to the physical speed of the port. All unmetered services are assumed to have a CIR of one megabit per second. Customer may receive credit for an outage caused by a physical loss of a port delivered to Customer only when a redundant port has also been delivered to Customer and 365’s equipment has failed to deliver connectivity and purchased capacity on the redundant port. Convergence of network routing and switching protocols (for example, BGP, OSPF, and spanning tree, among others) is not instantaneous and takes time during which there is typically some loss of performance and reliability of packet flow; this time shall not be included in any computation of a qualifying outage.

D. Environmental Service. 365 will make commercially reasonable efforts to ensure that the temperature and humidity of its facilities conform to ASHRAE TC 9.9 2011 Thermal Guidelines for Class A1 computing environments, and does not operate outside the ranges documented therein for more than thirty minutes for temperature or two hours for humidity and other conditions. If these limits are exceeded, Customer shall be entitled to one half of one Service Credit for each twenty-four hour period (or fraction) in which the event occurs. Computation of the Service Credit shall be based on the billing for Customer’s cabinet(s) or colocation floor space, but exclusive of any power, bandwidth, or other service billing. Customer shall have the right to terminate this Agreement for cause, without penalty and as further provided in Section 6 of this SLA, if: (a) the high temperature condition persists for more than twenty four consecutive hours, or (b) the number of high temperature events for which Customer has received credit exceeds three during the ninety days immediately prior to the most recent interruption.

E. Managed Server or Managed Firewall. In the event of a hardware failure of a 365-owned and managed server or firewall, 365 will begin work to repair or replace the affected equipment within one hour, and restore service to Customer within one hour thereafter. Failure of 365 to meet these requirements shall result in a credit of one Service Credit, plus one additional Service Credit for each two hour period thereafter until service is restored. A managed server is deemed “restored” when access is returned to Customer, but does not include restoration of any Customer data, Customer-installed software, or configuration changes made by Customer that were on the server prior to the failure.

F. Support Service. 365 will respond to all non-emergency Customer support requests within one business day of its receipt of the request by email or phone, and emergency requests made by telephone only within one hour. Email requests, which are to be used for non-emergency requests only, should be made to service-[site code]@365datacenters.com (or such other address that 365 may later designate). Email requests are deemed received when acknowledged by 365’s auto-responder. Telephone requests may be made to 510-652-7500 (choose option one for the Customer Support Center), or such other number as 365 may designate for the purpose, and are deemed received when made directly to a member of 365’s technical staff or at the time a voicemail is left in the mailbox designated for technical support. Customer is not eligible for a credit if 365 cannot reach the Customer at a contact telephone number or email address provided in Customer’s email or voicemail, or if Customer fails to provide such information correctly. The credit for 365’s failure to respond by the foregoing time is one-fourth of one service credit per support incident. Support return telephone calls will be made only to numbers in the United States and Canada.

G. Remote Hands. 365 Remote Hands Service provides assistance to customers performing emergency, planned and routine maintenance. Terms and conditions of the Remote Hands Services can be found at http://365datacenters.com/services/remote-hands-services/ hands and are incorporated by reference herein.

5. Exceptions

A. Good Standing. The remedies provided under this SLA for an event resulting in interruption of service shall apply only while the Customer is in good standing and not in breach of any term of the Master Services Agreement or any attachments, and the Services provided hereunder have been fully paid for by Customer and its accounts are paid in full with no amounts past due.

B. Exclusions. Service Credits will not be issued for any interruption of service that, as determined by 365 in its reasonable judgment, result from or are related to:

i. Circumstances beyond 365’s reasonable control, such as Force Majeure (see MSA).

ii. Events occurring during any Scheduled or Emergency Maintenance period.

iii. Events caused by equipment not provided and maintained by 365, unless the failure is caused by 365.

iv. Events caused (directly or indirectly) by acts, errors, or omissions by Customer or Customer’s agents, contractors, or vendors, including negligence, willful misconduct, or breach of 365’s AUP or MSA.

v. Interruptions occurring as a result of Customer exceeding the Continuous Operating Load (see Colocation Supplement) of any circuit or panel, or exceeding Customer’s purchased capacity.

vi. Intentional interruption or reductions in service by 365 for non-payment or other Customer default or breach.

vii. Events arising from malicious, unlawful, or terrorist acts against Customer or 365.

viii. Viruses, Trojan Horses, Spyware, or software defects.

ix. For bandwidth products, any unavailability of bandwidth in excess of the Customer’s Committed Information Rate, or any reduction in service, rate limiting, packet loss, or increased latency arising from such use in excess of 365’s attempt to limit use in excess.

6. Termination for Cause under SLA.

Should Customer elect to terminate its Services for 365’s non-performance as provided by this SLA, Customer shall have no obligation to provide 365 with an opportunity to cure prior to such termination. Customer should notify 365 in writing of its intent to terminate within five business days of the event giving rise to Customer’s right to terminate, and Customer should specify an effective date of such termination not more than ninety calendar days from the date of such notice. Nothing shall in any way relieve Customer of its obligations to perform under the MSA (including this SLA and applicable supplements), including timely payment of fees for 365’s Services, through the effective date of such termination.

7. Policies and Procedures.

All use of the Services must comply with the current version of the 365 Policies and Procedures, located on the world-wide web at http://365datacenters.com/policies-procedures/ and incorporated by reference herein. These Policies and Procedures govern Services at all of 365 facilities (and those of its Affiliates) (the “Facilities”), and Service Orders between 365 and its Customers. The Facilities are to be used by Customers solely for lawful purposes in accordance with these Policies and Procedures. 365 reserves the right to amend the Policies and Procedures from time to time.

Cloud Terms and Conditions

Confidentiality Agreement