Terms & Conditions

Master Services Agreement

1. Legal

This Master Services Agreement (also called the MSA or THIS AGREEMENT) is executed between the Client and Phoenix NAP, LLC. (PNAP). This MSA, accompanied by our Privacy Policy (PP), Service Level Agreement (SLA), Contracting Party Addendum (CPA), PCI DSS Addendum, and Acceptable Use Policy (AUP)–governs the Core services that PNAP provides, and defines the terms of the basic agreement between Client and PNAP. Because PNAP offers many services, some of which require some auxiliary agreements, this document will provide the fundamental terms for Core services, and any additional services that Client would like to have us provide will be detailed in service-specific addendums. Examples of possible addendums include, but are not limited to, Colo Services, Cloud Services, and Managed Services.

2. Acceptance

Client accepts this MSA by clicking or checking an acceptance option provided on our web site, electronically signing an order form or addendum, or installing and using any of the provided services or products. By accepting these services Client is agreeing that:

  • Client accepts the MSA entirely as it relates to the services Client is requesting.
  • Client agrees that Client is bound by the MSA (as well as any future updates to the MSA that PNAP may make from time to time).
  • This MSA, the PP, SLA, CPA, and AUP are binding and enforceable obligations.

If Client does not agree with any of these statements, Client SHOULD NOT sign, click or check acceptance options, install, or use any services.

3. Fees, Billing, and Payment Terms

  1. Client agrees to pay all fees, costs, and charges as outlined in this agreement and the Client Service Order Form (SOF). PNAP will provide Client with the services listed on the SOF and RM and gives Client the right to use and occupy the Client services/Area for permitted purposes.
  2. Additional services and/or space in the facility are available, for a fee; these changes shall be recorded in a new SOF or a Change Order.
  3. PNAP will bill Client monthly by sending Client an invoice. Payment for License Fees, costs, and charges is due, in full and in advance the first day of the term month. Other fees and charges on the invoice must be paid within 30 (thirty) days of Clients receipt of the invoice.
  4. Client must dispute an error to PNAP, in writing, within 30 (thirty) days of the receipt of the invoice. Undisputed fees still must be paid on time.
  5. PNAP only accepts US Dollars for payment. Payment may be made via check or money order mailed to our address (at the end of this page), or may be made by any electronic method made available in the control panel.
  6. Delinquent payments can harm Client credit with us, and PNAP may require Client payment terms to be modified—possibly requiring a security deposit (initially or an increase to), automatic payments, or payments prior to provisioning.
  7. If a security deposit is required, PNAP stores the funds in our general account. PNAP does not pay interest on security deposits, and PNAP only draw on the funds if Client becomes past due in an obligation to us. Client will need to replenish the security deposit promptly if PNAP has to draw against it. PNAP will refund the security deposit to Client within 60 (sixty) days of the termination of our agreement with each other as long as Client’s account is paid in full.
  8. PNAP is required to collect taxes for some services and products; if taxes are due on a service PNAP will bill for them on the invoice.
  9. Occasionally, a utility provider might change the amounts that they charge us for power delivery, resulting an increased cost for power delivery that is passed on to Client.
  10. If Client orders something from us that requires a cost or expense to be incurred by us and Client pre-approved those expenses or those expenses are otherwise covered in this agreement, Client will be required to reimburse us for those expenses or costs.
  11. If PNAP or Client dispute any aspect of this agreement and litigation or dispute resolution is initiated, the prevailing party will be entitled to reasonable attorney’s fees and costs incurred by it in connection with the legal process. Collection fees incurred by us are included in this provision.
  12. Licensing fees may change from time to time and fee increases are effective on the (yearly) anniversary of the date PNAP started billing Client.
  13. An Early Termination Fee (ETF) equal to seventy-five percent (75%) of the remaining contractual balance shall be assessed to Client in the event Client chooses early termination.

4. Term and Termination

  1. This entire agreement is effective for the duration of the initial term listed on Client SOF and any subsequent terms.
  2. The Commencement Date listed on the SOF is the date that the term begins on. If services are not delivered to Client, for any reason, by the Commencement Date, the date of delivery of services becomes the new Commencement Date. A change may or may not result in lowering of License Fees.
  3. If Client orders several items on one SOF, those items may be delivered on different dates. In this instance the Commencement Date is the actual date of delivery of each specific item, which can result in multiple Commencement Dates on one SOF. Such changes may or may not result in adjustments to License Fees or other charges.
  4. This contract shall be in force for the initial term from the commencement date as provided in the Service Order Form (SOF) and any subsequent renewal term. Either party will have the right to terminate the contract by giving at least 30 days’ written notice to the other party to terminate the agreement at the end of the then current term.

5. Default Events and Remedies

  1. The following events by Client will cause a default:
    1. Failure to pay License Fees or other amounts due under this agreement.
    2. Failure to execute, acknowledge, and return an estoppel certificate confirming the details of any document requested in accordance with this agreement within ten (10) days of PNAP’s request.
    3. Client becomes insolvent, has a negative tangible net worth, admits in writing that Client is unable to pay Client’s debts when they are due, files a bankruptcy petition to take advantage of any insolvency statute, make assignment for the benefit of creditors, makes a fraudulent transfer, applies for or consent to the appointment of a receiver of itself or of the whole or any substantial part of its property, files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any individual state.
    4. A court enters an order, judgement, or decree adjudicating Client as bankrupt or appointing a receiver of Client’s whole or a substantial part of Client’s property Client’s consent, or approving a petition filed against Client seeking reorganization or arrangement of Client’s company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within 30 days of entry.
    5. Client’s use of Client Area or our facility threatens the availability, resiliency, and/or routine operations of the facility in PNAP’s reasonable discretion.
    6. Client fails to perform any material obligation under this license within ten (10) days of notification of nonperformance from us.
    7. Client becomes a “Repeat Infringer” of the DMCA (Digital Millennium Copyright Act), in our reasonable discretion.
  2. The following remedies are available to us in the occurrence of a default (or at any time thereafter without further notice or demand). These remedies can be exercised concurrently, alternatively, or in succession:
    1. Suspension of some or all of the services PNAP provides to Client.
    2. Termination of this agreement and Client’s right to possession of Client Area; exclusive possession is returned to PNAP.
    3. Release of any portion of Client Area with reasonable efforts to minimize damage to PNAP.
    4. Recover accrued and unpaid license fees and damages arising from Client’s breach of the license, as well as any applicable late charges and interest. The interest rate is 18% per year or the highest rate allowed by law, whichever is less.
    5. Placing and enforcing a lien on Client’s property.
    6. Recovering all reasonable attorneys’ fees and other expenses that PNAP incurs while enforcing this agreement, recovering a possession, and collecting amounts owed when PNAP is the prevailing party in any suit or proceeding.
    7. Performing any obligation that Client fails to pay or do on Client’s behalf and remove equipment installed by Client in violation of this agreement and recovering from Client any and all reasonable damages a breach causes us.
    8. Pursuing of any other remedies available by law or in equity.
  3. The following events by us will cause a default:
    1. Breach of any material term or condition of this agreement. Client must notify us in writing of any breach and PNAP has 30 days from receipt of notice to cure the breach.
    2. PNAP become the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed within 60 days of filing.
  4. The following remedies are available to Client in the event of a default caused by PNAP, provided that all amounts due in accordance with Client agreement are paid:
    1. Removal of equipment, materials, or other property owned by Client from the facility. Removal is required within ten business days of termination and Client must leave the Client Area in the same condition it was in on Client installation date (normal wear and tear excepted). Failure to remove said property within ten business days will result in PNAP moving Client property to storage and charging Client the actual cost of removal, storage, and restoration plus 10%; liquidation of the property after 30 days’ notice to Client and applying the proceeds to any amount Client owes to PNAP under this agreement. During the removal or notice period(s) Client will be charged for a pro-rated portion of the most recent license fees. Client grants PNAP a security interest that is perfected by our possession of the property and agree to execute and deliver to us any financing statements deemed necessary or appropriate by us. Client waives any statutory notices to vacate or quit Client Area upon expiration or termination of this agreement.
  5. Holding Over
    1. Client has no right to hold over after this agreement expires or terminates without our consent. If Client holds over after this agreement expires, Client become a month-to-month Client subject to all of the terms of this agreement, but the License Fees will be increased to 150% of Client’s most recent license fees for 90 days, and increased to 200% of the same on the 91st day, OR the fair market value of the Client Area on the date of expiration (computed using recently executed agreements for space and related services in the same or similar facility). This provision is not a waiver by PNAP of any right to re-entry, and acceptance of License Fees by PNAP (or any affirmation of tenancy) does not waive our right to terminate the agreement for a breach of any terms, covenants, or obligations of Clients.
  6. Survival
    1. Some of the rights and obligations of both Client and PNAP will survive the expiration of this agreement, including, but not limited to, provisions related to security deposits, taxes, dispute resolution and costs, remedies, and other general provisions.

General Provisions

    1. Governing Law, Lawsuits

This agreement is governed by the laws in 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 United Nations Convention on the International Sale of Goods is excluded in its entirety. The state or federal courts in Maricopa County, Arizona are the exclusive venue for any disputes arising from this agreement and neither party shall bring an action in any other venue. Client may not dispute personal jurisdiction or venue in these courts.

    1. Disclaimer of Warranties
      1. Client’s use of the site and services is at Client’s own discretion and risk.
      2. Site and services are provided as-is with no warranties or conditions, statutory or otherwise, of any kind, including, but not limited to, implied warranties of non-infringement, title, merchantability, and fitness for a particular purpose.
      3. PNAP does not warrant that the service will meet Client’s requirements or that the operation will be timely, uninterrupted, secure, or error-free or that any defects will be corrected.
      4. PNAP does not warrant or make any representations or conditions about the results of the use of the service in terms of accuracy, reliability, timeliness, completeness, or otherwise.
      5. Client assumes total responsibility for Client (and Client’s end-users’) use of the services.
    2. Disclaimer of Consequential Damages

EXCEPT AS REQUIRED BY LAW, PNAP WILL NOT BE LIABLE TO CLIENT 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 PNAP IS FOUND TO BE LIABLE TO CLIENT FOR ANY DAMAGE OR LOSS ARISING UNDER OR IN CONNECTION WITH THE SERVICES, PNAP’S TOTAL CUMULATIVE LIABILITY TO CLIENT WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO ITS LIABILITY.

    1. Maximum LiabilityIn consideration of all of the benefits to the Client and with exception to anything contrary in the addendums to this document and/or the SOF, SOW, or RM, Client agrees to the following:
      1. No personal liability or personal responsibility of any kind can be asserted or enforced against any individual member of PNAP with respect to any breaches of any terms in this agreement or any of its attachments.
      2. Recourse against PNAP by Client or Client’s successors is limited to the maximum aggregated liability which cannot exceed the total amount actually paid by Client to PNAP during the [up to] six months immediately preceding the month in which the claim arises.
      3. Client has no recourse against the assets of any person other than PNAP’s interest in the facility.
      4. PNAP will have no liability at all for claims, losses, actions, damages, suits, or proceedings resulting from our efforts to address or mitigate security breaches (including, but not limited to, eavesdropping), third party access to Client data or assigned computers, third party access or misuse of passwords provided to PNAP, the interception of sent or received traffic, relicense or exposure for other reasons of personally identifiable information or private data (including that of Client’s own Clients and of other users), denial of service attacks, viruses, worms and other third party interference, loss of data or access to data, actions of third parties, including without limitation agents or contractors of PNAP, actions of PNAP employees outside of the scope of their employment, mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or other failures of performance.
    2. Allocation of Liability

The Disclaimer of Warranties, Disclaimer of consequential damages, and limitations of liability in this and other provisions of this agreement and the allocation of risk are essential elements of the bargain between the parties and without this PNAP would not enter into the agreement. The pricing of the products and services reflects the allocation of risk and these limitations.

    1. Applicability

Limitations in this agreement apply to any and all claims and causes of action regardless of whether in contract, tort, strict liability, or other theory.

    1. Basis of the Bargain; Failure of Essential Purpose

Client acknowledges that PNAP has set its prices and enters into this agreement by relying on the limitations of liability and disclaimers of warranties and damages listed in this agreement, making this an essential basis for the bargain between Client and PNAP. Client and PNAP both agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this agreement will survive and apply even if they are found to have failed in their essential purpose.

    1. Indemnification by ClientClient agrees to indemnify, defend, and hold harmless PNAP and its parents, affiliates, licensors, and providers of third party services (as well as their directors, officers, employees, contractors, agents, successors, and assigns (the Parties) from and against any and all liability (including without limiting all attorneys’ fees and costs), incurred by the Parties in connection with actual or alleged claims arising from any of the following:
      1. Client’s use or misuse of the services or third party services.
      2. Client’s breach or alleged breach of this agreement.
      3. Client’s, or Client’s end-customers’, breach or alleged breach of the rights of any third party’s rights, including without limiting, actual or alleged infringement or misappropriation of a copyright, trade secret, patent, trademark, privacy, publication, or other proprietary right.
      4. Client violation or alleged violation of non-compliance by Client, or Client’s end customer, with any law, court order, rule, or regulation in any jurisdiction.
      5. Any counsel Client selects for defense or settlement of a claim must be approved in writing an advance by PNAP prior to the engagement of the counsel to represent indemnified parties.
      6. Client may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of PNAP or The Parties without the prior written consent of PNAP or the applicable Party. Client and Client’s counsel will cooperate as fully as Client is reasonably required to provide information reasonably requested by PNAP or the Parties in the defense or settlement of any related matter.
      7. Assertion of transfer of employment relationship claims made against PNAP under EU Directive 2001/23/EC or similar by one of Client’s employees or a contracted third party providing contractual services prior to the start date.
    2. DMCA

PNAP is an ISP (Internet Service Provider) under the DMCA (Digital Millennium Copyright Act). Clients are expected to comply with the DMCA. PNAP follows the notification and takedown procedures set forth in the U.S.C 17 Section 512 DMCA and may block access to, or terminate any or all services provided under this agreement for repeat infringers.

    1. SLA Credits

Any credits issued to Client’s account in accordance with the SLA may only be used as a credit toward future charges for services and may not be sold, converted to cash, or transferred. SLA credits expire on the termination or expiration of the agreement.

    1. Taxes
      1. Prices and fees referred to in this agreement are not inclusive of any tax, withholding, sales, use, value added, levies, import, custom duties, excise, or other tax equivalent required as a result of the supply of services. All taxes will be paid by Client.
      2. Client is not liable for PNAP’s income taxes, and PNAP is not liable for Client’s income taxes.
      3. PNAP is required to collect taxes on behalf of Client unless Client provides us with a valid tax exemption certificate from the appropriate authority.
      4. If withholding tax applies to any payments for services made in this agreement, Client may pay those taxes to the appropriate tax authority and provide PNAP with the official tax receipt, and notify PNAP that withholding tax is required, and Client will ensure that PNAP receives the full amount of the invoice.
      5. Client agrees that Client and PNAP will cooperate as much as possible to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties, if applicable, to the relevant tax authority to reduce the rate or tax or exempt the amount if applicable.
      6. Client will account for any tax withheld to the tax authorities on a timely basis.
    2. Arbitration
      1. Claims or controversies arising from this agreement or any breach will be settled by arbitration in Maricopa County, Arizona and will follow the rules of the American Arbitration Association. There will be one arbitrator and that person will be an independent third party that Client and PNAP both agree to. The decision is final and binding and is the exclusive remedy for all claims covered by the arbitration provision.
      2. Either Client or PNAP can bring an action in any court to compel arbitration.
      3. Client understands that a breach of the Limitation of Liability and the Maximum Liability sections or any of the terms and conditions of the AUP would cause irreparable injury to PNAP and PNAP will be entitled to seek temporary and preliminary injunctive relief without the necessity of proving actual damages or posting any bond or other security.
    3. Confidential Information; Non-Solicitation
      1. As a PNAP Client, Client has access to some confidential information, such as rates, plans, technology, quotations and other financial information relating to this agreement, internal documentation, and proprietary software, as well as other information. PNAP may, in turn, have access to similar confidential information about Client. Both Client and PNAP must keep all information confidential and only share information where this agreement allows or when Client is required to do so by law. Both parties will make every effort to keep this information confidential and promises to return all confidential information to the other party within 30 days of the expiration or termination of this agreement. Neither party may keep any copies of confidential information except as where required by law or for administrative record keeping.
      2. Information deemed confidential becomes non-confidential if the information was known (and documented) to the receiving party before it was given, it becomes known by disclosure from a direct or indirect source who does not have an obligation of confidentiality to the disclosing party, it becomes publicly known or ceases to be confidential (not by breach of this agreement by the receiving party), of it is independently developed without the use of confidential information from the disclosing party.
      3. Neither Client nor PNAP may hire, offer work to, or contract employees or contractors of the other party that become known to them through this relationship. This remains in effect during the entire term of Client agreement and for twelve months after the end date. A party in breach of this provision will compensate the other party liquidated damages of either 6 months’ compensation offered to the employee by the breaching party or paid or offered to the employee by the non-breaching party, whichever is greater.
      4. This remedy does not waive the right to seek any other remedies or injunctive relief permitted by this agreement.
    4. Force Majeure

Neither Client nor PNAP is liable for failure or delay in performance under this agreement due to causes beyond their reasonable control, including without limitation acts of war or terrorism, acts of god, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts, or failure of the Internet. The effected party should promptly notify the other party and use its best effort to correct any failure or delay under this provision.

    1. Changes to this Agreement

This agreement is subject to updates and modifications. Updates are always posted at https://phoenixnap.com/cs/legal and Client’s continued use of the services serves as Client acceptance of the updates and updates are in effect as soon as they are posted. Modifications of any terms must be approved in writing by PNAP.

    1. Use of Trade Names
      1. Neither Client nor PNAP will use the trade name or trademark of the other without prior written consent of the other party’s authorized representative.
      2. PNAP may disclose Client’s name to its employees, vendors, contractors, and service providers that have a reasonable need to know.
      3. PNAP may use Client name in a list of Client references or other similar marketing materials.
    2. Information Security
      1. Client (a Service Provider) represents and warrants that its collection, access, use, storage, disposal, and disclosure of its end-Customer Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
      2. If, in the course of its engagement with its end Customer, Client (a Service Provider) has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit or other payment cardholder information, Client shall at all times remain in compliance with 12.9 of the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Client’s sole cost and expense.
    3. Export Matters
      1. Client may not transfer or authorize the transfer of any services to a U.S. or U.N. embargoed country, anyone on the U.S. Treasury Department list of Specially Designated Nationals, U.S. Commerce Department’s Table of Denial Orders or Entity List of proliferation concern, or on the U.S. State Department’s Debarred Parties list.
      2. Client may not be located in, under the control of, or a national resident of any country on any of the lists mentioned in item 1.
      3. Client may not use PNAP’s services for development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction in any country mentioned in Country Groups D: 4 and D: 3 in Supplement No. 1 to the Part 740 of the U.S. Export Administration Regulations.
      4. Client may not transfer to our through PNAP services any data, materials, or other items controlled for export under the International Traffic in Arms Regulations (ITAR Data) or other applicable laws without PNAP’s agreement to the transfer, 10 days’ prior written notice of the ITAR Data transfer, and all necessary assistance necessary to help us obtain U.S. Government permission.
      5. Client is responsible for, and will reimburse PNAP for, all costs, expenses, or damages incurred in connection with Client transfer of ITAR Data.
    4. Legal Process
      1. PNAP reserves the right to comply with any and all warrants, court orders, subpoenas, summons, and other legal requirements.
      2. Client authorizes PNAP to consent to any access, search, seizure, or other governmental action that is valid by our reasonable opinion.
      3. PNAP will attempt to notify Client of any legal process within 48 hours of service. Failure of this notification will not restrict our rights under this section and does not constitute as a breach.
      4. PNAP reserves the right to restrict or terminate access by Client or any representative to the facility from and after the service of a search or seizure warrant and/or after receiving an order of a court or government agency.
      5. PNAP may shut down all or part of the facility, including and without limitation the Client Area, and to comply with an order of any city, county, state, provincial, federal, or other legitimate government official if PNAP reasonably determines that an emergency exists.
    5. Integration, Modifications, and Severability
      1. This agreement and its attachments and addendums are the entire agreement and supersedes any prior agreements, promises, representations, understanding, and negotiations between the parties.
      2. Any modifications, amendments, supplements, or waivers must be in writing and executed by authorized representatives of both Client and PNAP.
      3. If any provision in this agreement is declared invalid the remaining provisions of the agreement will remain in full force and effect. Client and PNAP will renegotiate the invalid provision in good faith and be bound by the mutually agreed upon replacement provision.
    6. No Waiver
      1. PNAP’s failure or delay in exercising any of its rights under this agreement does not create a waiver of or modification to those rights.
      2. PNAP’s waiver of any right under this agreement must be in writing.
    7. Assignment
      1. By Client:
        1. Client will not assign Client’s rights or delegate Client’s duties under this agreement (whole or part) without the prior written consent and discretion of PNAP. This includes the following:
          1. Partnerships and LLCs: By operation of law, voluntarily, or involuntarily withdrawing or changing a majority of partners or members or a transfer of a majority of ownership interests, aggregate or cumulative, or the dissolution of the partnership or LLC.
          2. Private Corporation: Dissolution, merger, consolidation, or other reorganization, sale or other transfer of more than a cumulative aggregate of 50% of the voting shares of Client’s net assets (other than to immediate family members by gift or death), or sale, mortgage, hypothecation, or pledge of more than a cumulative aggregate of 50% of Client net assets.
      2. By PNAP:
        1. PNAP may assign its rights and obligations of this agreement to one or more service providers for the provision of related facility services and will notify Client of any arrangement with a service provider and provide their contact information.
        2. PNAP may transfer all or any portion of its interest in the facility. In such an event the new owner (transferee) will assume the role and obligations of PNAP after the date of transfer and PNAP is automatically released from all liability accrued after the transfer date. Any attempts to assign or delegate in violation of this provision are null and void. This agreement binds and inures to the benefit of each party’s successors and assigns.
    8. NoticesWritten notices for termination must be delivered by hand, mailed by registered or certified mail (return receipt requested, postage prepaid), or sent by overnight courier with proof of delivery (FedEx, UPS, etc.) to:
Phoenix NAP, LLC
C/O Legal Department
2353 West University Drive
Tempe, Arizona 85281

Electronic notification may be sent to support@phoenixnap.com.

Delivery date is notification date.

    1. Estoppels

When necessary PNAP gives 10 days written notice and requires that Client execute, acknowledge, and deliver a statement in writing that may be relied upon by a prospective mortgagee, purchaser, or other similar encumbrance certifying all matters reasonably requested. If Client fails to execute and deliver the certificate, PNAP and the addressee of the certificate are entitled to rely on the information contained in the certificate that PNAP submitted to Client as true, correct, and complete and Client may not later deny, contradict, or take any position inconsistent with the information in the certificate.

    1. Counterparts

The agreement may be executed in two or more counterparts and each will be considered an original, but together constitute the same instrument.

    1. Relationship of Parties

This agreement does not establish a relationship or partnership, joint venture, employment, franchise, or other agency between Client and PNAP except as PNAP and lessee. Neither Client nor PNAP has the power to bind the other or incur obligations on the other’s behalf without the written consent of the other unless that power is specified in this agreement.

    1. Language

PNAP’s official language is English and it does not provide translations into any other language of any services, support, notices, designations, specifications, or communications.

    1. No Negative Construction

Both Client and PNAP agree that it has reviewed and had the opportunity to have legal counsel review this agreement and its attachments and addendums and that this agreement is intended not to be construed against either party as the drafting party.

  1. PriorityConflicts or discrepancies between any portions of this agreement are governed by the following order of precedence:
    1. Order of Service Order Form
    2. Statement of Work (SOW)
    3. Responsibility Matrix (RM)
    4. This MSA
    5. The contracting Party Addendum (CPA), other than the terms of this MSA
    6. Acceptable Use Policy, Privacy Agreement, Service Level Agreement

 

v.3; 04122016

Cloud and Enterprise Services Addendum

  1. INTRODUCTIONPNAP’s Cloud and Enterprise Services are services designed to allow Clients scalable access to resources and services which may be managed or unmanaged to support application hosting, data storage, protection, and recovery as well as internet connectivity. Certain services are provisioned utilizing a comprehensive Statement of Work (“SOW”) and a Responsibility Matrix (“RM”) delineating the specific services to be performed, and the responsibilities of PNAP and Client.
  2. AGREEMENTThis Cloud and Enterprise Services Service (CES) Addendum (“CES Addendum”) sets forth the specific terms and conditions under which PNAP (“PNAP”) shall supply Cloud and Enterprise Services to Client. The Core Service Agreement entered into between PNAP and Client fully incorporates the terms herein and provides that this CES Addendum, and Client’s execution of the Master Services Agreement constitutes acceptance of the terms and conditions stated herein. Capitalized terms used but not defined herein shall have the meanings set forth in the Master Services Agreement. The Initial Term length for this Service is set forth on the applicable Service Order Form (“SOF”), executed by PNAP and Client, making reference to these Services. As referred to herein, “Agreement” means this Cloud and Enterprise Services Addendum, together with the MSA and all policies and addenda that are incorporated herein by reference, including the Statement of Work (SOW), Responsibility Matrix (“RM”), Acceptable Use Policy (“AUP”), and Privacy Policy (“PP”). This Agreement sets forth the terms and conditions that apply to the Cloud and Enterprise Services Addendum.GeneralPNAP Cloud and Enterprise Services is a set of services designed to lessen the burden of managing everything from core infrastructure to daily administrative tasks. PNAP’s infrastructure services are distinct from other dedicated hosting in that PNAP provides capacity, incident, and maintenance support for all management infrastructure. Client may maintain administrative access depending on the engagement. The Client Statement of Work and corresponding Responsibility Matrix delineates duties, however PNAP is responsible for setting up and configuring hardware, installing and configuring software, technical support, patch management, system maintenance, monitoring and updates. PNAP may (depending on the engagement) provide backups, load balancing, and disaster recovery, as well as security processes including vulnerability scans, intrusion detection (ID) and DDoS (distributed denial of service) prevention and mitigation on an as needed, best effort support basis.Service LevelsAs a general rule all PNAP CES offerings are designed to be 99.99% available, at a minimum, and offer credit back to Clients whenever our service becomes unavailable outside of an established maintenance window. A service outage, unless described differently in the SOW, is any loss of connectivity to the hosted application or system for more than 15 minutes. Our 100% uptime guarantee does not include management systems, portals, and reporting or billing services. The uptime guarantee includes access to virtual machines process and stored data. It is the Client’s responsibility to request the credit from their assigned PNAP Account Executive for any service outage experienced. In some cases advanced service levels are available to the Client per the specific design and architecture specification in the SOW. PNAP will work in concert with Client on specific requirements not outlined in the implementation SOW or this addendum to ensure value is derived from this engagement.Service DeliveryFor the purpose of this section alone “Service Delivery” shall be defined as ability of PNAP to fulfill an initial order for Service based on PNAP’s SOF. Once Service has progressed past installation phase and has been delivered to Client as a working Service this section shall no longer apply. The Service Delivery is dependent on available space, power, hardware and available network connectivity within a given data center. PNAP reserves the right to limit the service delivery to a new Client or expansion of existing Clients based on availability of space, power, hardware, or network connectivity. PNAP also reserves the right to limit Service Delivery in the event that necessary service components including, but not limited to, electrical power, cooling capacity, cabling, rack space, switching/routing/network infrastructure, application software, etc. are either unavailable, unattainable at a reasonable cost to PNAP, or put other Client’s environments at risk of disruption.
  3. SERVICE DESCRIPTIONSFor all storage services, PNAP defines a terabyte (TB) as 1024 gigabytes (GB).Any of the following options may be added, individually, to Client Service for an additional fee:Managed Private CloudManaged Private Cloud (MPC) is a dedicated, built to order, infrastructure offering where PNAP’s SOW governs delivery, management, and administrative responsibilities. MPC hardware is owned by PNAP and leased to the Client on a schedule identified in the SOF. At a minimum, PNAP is responsible for managing all systems “beneath the hypervisor”, meaning that PNAP will maintain all components required host operating systems and data. PNAP is not responsible, unless identified in a SOW, for managing Client’s operating systems, applications, data, backups, or disaster recovery.Virtual Private Data CenterVirtual Private Data Center (VPDC) is a multi-tenant, shared infrastructure offering where a PNAP SOW would only govern delivery, management, and administrative responsibilities in unique cases. VPDC hardware is owned by PNAP and Clients are granted access to a specific amount of computing resources. PNAP is responsible for managing all systems “beneath the hypervisor”, meaning that PNAP will maintain all components required host operating systems and data. PNAP is not responsible, unless identified in a SOW, for managing Client’s operating systems, applications, data, backups, or disaster recovery.Data Security CloudData Security Cloud (DSC) is a multi-tenant, shared infrastructure offering where a PNAP SOW would only govern delivery, management, and administrative responsibilities in unique cases. DSC hardware is owned by PNAP and Clients are granted access to a specific amount of computing resources. PNAP is responsible for managing all systems “beneath the hypervisor”, meaning that PNAP will maintain all components required host operating systems and data. PNAP is not responsible, unless identified in a SOW, for managing Client’s operating systems, applications, data, backups, or disaster recovery.Backup and Replication ServicesBackup and Replication Services are a multi-tenant, shared data protection offering that provides software, hardware, and connectivity to protect VMs hosted within, and external to, PNAP’s demarcation point. PNAP will manage all hardware and software related to maintaining the service’s availability. In some cases, PNAP will also configure, schedule, and monitor for backups, replication, and completion to ensure success. Client is responsible for communicating requested backup and replication schedule, retry windows, retention periods, and job type during the sales engagement process. Clients may also request changes to any configured setting during the contract period. PNAP will govern all non-default Backup and Replication Service specifics through a SOW. Default backups schedule is one full backup followed by nightly reverse-incremental held for two weeks.Disaster Recovery ServicesThe Disaster Recovery Service is virtual machine protection offering that facilitates the recovery of “protected” operating systems and data. PNAP will manage all hardware and software related to maintaining the service’s availability. Through a SOW PNAP will configure and manage the protection mechanisms to ensure Client’s virtual machines are replicating between sites. Generally, Client is responsible for initiating recovery events and executing specific configuration (IP address, DNS, etc…) changes necessary to run application in failed over state. PNAP will provide technical assistance and support fail over attempts as defined in the SOW.
  4. DISCLAIMERSNo Product WarrantyPNAP makes no express or implied warranties of product merchantability or fitness for any particular purpose. While all services are designed to be resilient, it is up to the Client to plan for disasters and it is always recommended to keep an off-site backup of critical data in event of critical failure or disaster.Notice of LossPNAP is not liable for any loss or corruption of data. Clients are always encouraged to retain a copy of data. In the event of loss or destruction of or damage to Client data, PNAP will provide notification to Client via e-mail to an address provided by the Client. Client must ensure that the e-mail address is valid.
  5. SOFTWAREPNAP will provide all software licensing necessary to delivery managed resources to include, but not limited to; VMWare VSPP, Windows SPLA, Veeam Cloud Connect, and Zerto. Any software installable or key to be delivered to the Client will be defined in a subsequent SOW.
  6. RIGHT TO AUDITAt times, PNAP may require access to environments, hosted or not, to ensure licensing practices and agreements are being followed. This requirement is to protect both PNAP and the Client from unintentionally breaching 3rd party licensing requirements. PNAP may request auditing access to portals, management infrastructure, monitoring systems, and reporting to verify configurations, licensing counts, and adherence to practices set forth in the SOW. Clients have 10 business days to provide access from the date a request is delivered to the Client’s Program Manager.
  7. MAINTENANCE AND SERVICE MODIFICATIONSTechnical ReviewsPNAP engineers will review and approve all architectures and proposed changes for technical accuracy and risk to ensure environment stability. Client may request via email a technical review as part of their monthly support allocation to address any technical subjects.Program ReviewsAt the request of either Program Manager, a Program Review (PR) can be scheduled to review SOW performance, areas for improvement, and to address any outstanding programmatic items.Service RequestsPNAP 24×7 NOC and Infrastructure Engineers will respond to all non-emergency service requests according to the below schedule;
      • 1st Response within 30 minutes

    All requests will be acknowledged by the NOC staff within 30 minutes as verification the issue has been received and is being reviewed. Level 1-2 troubleshooting will commence during this time.

      • 2nd Response within 2 business hours

    This will be a notification of suggested resolution or escalation. NOC staff will attempt to satisfy the request with available resources, if no resolution is found within 120 minutes the problem will be escalated to the appropriate engineering team for further attention.

      • 3rd Response (Engineering) within 8 business hours

    Business hours are Sunday through Friday 00:00AM-5:00PM MST

    If non-business hour support is requested, Client must indicate that in the service request and the appropriate escalations will be made. Emergency Service Requests are escalated immediately if the below requirements are met, and will be acted upon ASAP;

    • Emergency Service Request – A request to rectify a deficiency in the operations of an environment or inability to access the contracted service.

    Technical Support

    PNAP’s NOC will provide 24×7 technical support to Client. This support shall include troubleshooting, how-to requests, and fulfill limited operational requests. The NOC will escalate any request that cannot be fulfilled to engineering teams if not able to fulfill request.

    Engineering & Operations Improvement Recommendations

    PNAP will periodically supply a recommendations report to Client with suggested upgrades, changes to architecture, operational suggestions, and capacity expansion requirements. These are suggestions only and may require additional support hours, monetary funds, or changes to the SOW to implement. These recommendations will be justified and formally delivered to Client’s Program Manager for consideration. Additionally, PNAP will not be held responsible adverse outcomes from Client not adopting suggested changes.

    Program & Engineering Support

    PNAP will provide overall design and engineering support to Client. Systems engineering services shall include system design activities, trade-off studies, performance analyses, requirements decomposition, concept of operation, and operations training. In addition, PNAP will support Design Reviews and Technical Interchange Meetings as requested by the Client’s Program Manager.

  8. CHARGESThe subsections of this section define the recurring and non-recurring charges and fees pursuant to this schedule.MONTHLY RECURRING FEESThe Initial Monthly Recurring Charges are the initial monthly fees charged for this Schedule. This fee may be modified by mutual agreement of Client and Provider based on changes to the initial configurations, covered devices, or other similar environment variables.NON-RECURRING SERVICE FEESThe non-recurring services and fees associated with this Schedule include but are not limited to any Out-of-Scope fees and/or the fees for any associated labor and other services provided under a Statement of Work or for the migration/installation/implementation of Client’s production environment from its current state to Provider’s Cloud/Hosting environment or for other purposes agreed to by Provider and Client, including, but not limited to, those defined in a Statement of Work as one time or non-recurring fees or services whether created at the time of or subsequent to the execution of this agreement.Initial Setup FeesThe initial setup fees and charges for this Schedule are the one-time non-recurring fees associated with the initial setup of Client’s services. This fee may be modified by mutual agreement of Client and Provider based on changes to the initial configurations, scope, covered devices or other similar environment variables. Initial Setup Fees do not include the charges for Data Migration. Data Migration Fees will be specified and covered under a separate Statement of Work or Project.The initial setup and other non-recurring fees for setup services provided under this schedule are as follows:
    Non-Recurring ServiceNon-Recurring Charge
    Initial Setup$ “Amount = 1 non-recurring fees”
    Second NR service, if any$”second NR fee”
    Total Non-Recurring Fees$
  9. UNSUPPORTED SERVICESPNAP will not support, as part of the Services provided under this Addendum, any of the following:
    1. Custom programming for any application
    2. Installation of operating systems, databases, or applications not specifically identified in a SOW.
    3. Creation of firewall rules, IDS alerts, Client alarms, or logging, not otherwise contracted under the Security Services offering.
    4. Application configuration or any item not defined as supported under this agreement or a SOW.
    5. Other services/features of a given application as identified by PNAP as unsupportable during or after such application’s installation.
    6. Any workstation, server, or other device located outside of a PNAP Data Center and/or not specifically covered under this Schedule or a SOW.
    7. Maintain any other copy of Client’s data for the purposes of Client restoration or recovery, not otherwise contracted under the Security Services offering.
  10. UNSUPPORTED APPLICATIONS AND HARDWAREApplications and Hardware that are considered “End of Life” or “End of Support” (EOL/EOS) are otherwise not supported by the application developer/vendor are out-of-scope under this Addendum, unless specifically identified in a SOW. All EOL/EOS application and hardware supported by a SOW can only be supported as “best-effort” and support cannot be guaranteed.
  11. ONSITE SERVICESOnsite services must be executed through remote access and specifically identified in SOW. PNAP must be granted appropriate remote access, appropriate permissions to complete the services, and a physically onsite POC to provide local support.
  12. IN-SCOPE SERVICESAll items defined as “In-Scope Services” are included in the SOF and SOW unless otherwise noted. All prices are in U.S. dollars and exclude any applicable duties and taxes.
  13. OUT-OF-SCOPE SERVICESOut-of-Scope services may be provided at Client’s request and on a per occurrence basis at PNAP’s prevailing labor rates. Unless otherwise defined in the SOW, PNAP’s labor rate is $150/hour. PNAP will provide the Client with an out-of-scope warning and estimate level of efforts (in full hours) that must be accepted in writing before out-of-scope work can begin. All out-of-scope work will be considered best-effort and PNAP will not be held responsible for any issues that arise.
  14. CLIENT PROGRAM MANGERS & POINT OF CONTACTSAs part of the initial setup and during the onboarding process Client will be required to provide the name of its elected internal Point of Contact (POC) and a Program Manager (PM) as well as backups for each. The Client POC’s individually and together serve as a focal point for all information concerning its service activities. Client Program Managers are the only representatives of the Client who can request service additions, modifications, deletions, or out-of-scope work.
  15. SERVICE ADDITIONS, DELETIONS, OR MODIFICATIONSIn order to add or delete services from this Schedule, PNAP shall accept either written or electronic authorizations from the Client’s Program Manager. Program Managers must submit the request to their Sales or Account Executive for processing.
  16. EXCLUSIONSServices under this Schedule do not include services for problems arising out of: (a) any attempted or actual modification, alteration, or addition of software or hardware undertaken by persons other than PNAP or PNAP’s authorized representatives unless previously approved in writing by PNAP.Client, by affixing his/her/their signature hereto, acknowledges that (he/she/they) has\\have read the above “Exclusions” and fully understands these terms.
  17. CLIENT RESPONSIBILITIESClient shall document and promptly report all errors or malfunctions of a system covered under this agreement to PNAP. PNAP shall provide all necessary spare parts and/or other hardware to maintain equipment owned by it necessary to the fulfillment of any service under this Schedule.Client shall not use anything whether tangible or intangible which is appurtenant to and/or provided by this agreement for any unlawful purpose or for any purpose which is prohibited by PNAP’s Network Abuse Policy and/or Acceptable Use Policy as is posted on its website.
  18. STATEMENT OF WORK; RESPONSIBILITY MATRIXA Statement of Work (“SOW”) and Responsibility Matrix (“RM”) may be used to specify the specific duties, scope, locations, deliverables, standards, activities, and general requirements for any Cloud or Enterprise Service offered by PNAP to a Client.v.2; 02202018

Colo Services Addendum

    1. Representations, Warranties, and Covenants
        1. Client represents, warrants, or covenants that:
          1. Client will to comply with all laws, and with the rules and regulations of PhoenixNAP, LLC (PNAP).
          2. Client will not to disturb or interfere with any other tenant or occupant of the facility.
          3. Client must own or maintain the legal right/authority to any of the Client equipment covered by this agreement.
          4. Client will not use any of the Client’s equipment, or the equipment, facilities, or services provided to Client under this agreement, to infringe, mis-appropriate, or violate in any manner the intellectual property rights of any person or entity.
          5. Client will use Client’s equipment in the Client Area in compliance with the manufacturers’ environmental and other specifications.
          6. Client will not use the facility or services for dangerous activities or life-critical applications or services that could, if they fail, result in death, personal injury, catastrophic damage, or mass destruction.
          7. Client is solely responsible for any data maintenance, integrity, retention, security, and backup of Client content and Client’s compliance with any laws, rules, or regulations in any region or country that applies in regard to security, privacy, legality, and safe handling of Client and Client’s end-customers’ data.
        2. PNAP represents, warrants, or covenants that:
          1. PNAP has the legal right and authority to grant Client license to use the Client Area for purposes described in this agreement.
          2. PNAP will continue to maintain the legal right and authority to grant the same license for the purposes described in this agreement.
          3. PNAP will comply with any and all federal, state, local, and international laws PNAP is required to be bound by while providing Client with the service(s).
          4. PNAP will comply with any applicable and agreed upon SLA while providing Client the service(s).
          5. PNAP will maintain reasonable and appropriate physical security to protect Client content.
          6. PNAP will not allow, or authorize any third party to do anything that subjects Client or any applicable party (lender, etc.) to claims, liens, or encumbrances in accordance with statute, law, or express or implied contract.
          7. PNAP maintains ownership of the PNAP website and the services including and without limitation our intellectual property, the look and feel, software, interface, content, logos, brands, and marks.
          8. PNAP retains ownership of all items it installs in the Client Area with the exception of equipment owned by Client.
        3. Disclaimer:

      EXCEPTING THE REPRESENTATIONS, WARRANTIES, AND COVENANTS LISTED ABOVE, PNAP PERFORMS SERVICES AND PROVIDES SPACE TO CLIENT ON AN “AS-IS” BASIS. CLIENT’S USE OF THE SERVICES IS AT CLIENT’S OWN RISK. PNAP MAKES NO GUARANTEES ABOUT WARRANTIES INCLUDING, BUT NOT LIMITED TO, TENANTABILITY, HABITABILITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM THE COURSE OF DEALING, USE, OR TRADE PRACTICE. PNAP DOES NOT WARRANT THAT THE FACILITY SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERPTED, ERROR-FREE, OR COMPLETELY SECURE.

      Both parties represent, warrant, or covenant that they haven’t dealt with a broker or referrer that is not recorded on the SOF. Should a person or entity other than that broker/referrer claim a finder’s fee, brokerage commission, or other compensation for acting in that capacity, the party the claimant claims to have brokered for holds the other party harmless, and/or indemnifies them against any claims and costs, expenses, and liabilities in connection with that claim–including, but not limited to, attorney’s fees and court costs for defense of the claim.

    2. Insurance
      1. Our insurance:
        1. PNAP carries comprehensive general liability insurance not less than $1 million per occurrence for bodily injury and property damage.
        2. B. PNAP carries employer’s liability insurance in the amount PNAP is required by law to carry.
      2. Client insurance, policy requirements, and assurances:
        1. Client will carry comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage.
        2. Client will carry employer’s liability insurance in an amount not less than $1 million per occurrence.
        3. Client will carry worker’s compensation insurance in an amount not less than Client is required to carry by law.
        4. Client will insure Client’s equipment.
        5. Client’s agents, contractors, and/or subcontractors will maintain insurance at levels no less than they are required to carry by law (as applicable to their industry or the industry of its agents.
        6. Client will ensure that Client insurance policies note that PNAP is to be notified 30 (thirty) days before any changes, cancellations, or limit adjustments are made. (Cancellation or modification does not change Client obligation to maintain the coverage in accordance with this section.)
        7. Client will ensure that all policies are written on a “per-occurrence” policy form.
        8. Client assures that Client assumes all risk of damage to property or injury to persons in, upon, or about the Client Area from any event caused by Client, Client’s agents, or Client’s employees and waive all claims of such against PNAP (unless PNAP, its agents, or its employees cause the claim by negligence or willful action). Appropriate insurance procured by Client will mitigate these risks.
        9. Client assumes all risk and that PNAP is not liable for loss or damage to Client, Client’s agents, or Client’s employees’ property damaged by or for any injury caused by fire, explosion, falling plaster, steam, gas, electricity, water or rain leaking from any part of the building or pipes, appliances, plumbing, roof, street, subsurface, or any other source of dampness by any cause unless caused by negligence or willful action of PNAP, its agents, or its employees. Appropriate insurance procured by Client will mitigate these risks.
        10. Client will report any fire or accident that occurs, or defect discovered in, the Client Area or the facility to PhoenixNAP immediately.
    3. Alterations to Client Area

Client SOF may allow for Client to complete some work in Client Area, or to designate someone to do that work. These provisions govern that work, if specified:

    1. Client will perform, or authorize an agent, employee, or contractor to perform, the work designated as “Client’s Work” and explicitly described in the SOF.
    2. Client will pay for any work designated as Client’s Work Client self and on time, and keep the facility and the Client Area free from liens, encumbrances, or claims for the alterations performed. If a lien is placed on the Client Area, Client has 10 (ten) days from notice of lien to remove it or take acceptable action to resolve it. If Client fails to resolve [the lien/encumbrance/claim], PNAP may settle the claim for Client, without any investigation of validity, and invoice the costs PNAP incurs to Client as fees, due and payable in accordance with previously stated terms.
    3. Client may not interfere with work or operations conducted by PNAP, its employees or agents, or other Clients in the facility.
    4. Client will provide PNAP with proof of insurance in accordance with all of the requirements of the Insurance section above before beginning any work.
    5. Client will assume all responsibility for damages caused by the designated work.
    6. Client assumes all risk for any injury, loss, or damage occurring during the course of the Client’s work.
    7. Design plans will be submitted to PNAP for the designated work for approval. PNAP will not unreasonably withhold the approval, but may withhold consent for plans that affect the structure, roof, safety, efficiency, or security of the facility, its systems and equipment, the Client Area or other spaces in the facility, or the appearance of the Client Area from common or public areas. Design plans must adhere to the rules and regulations and any applicable building standards or operational manual. Plans should include notification of any hazardous materials that may be used during the course of the work and an explanation of the necessity of the materials and any other relevant information. PNAP will make every effort to review the submitted plans within 5 (five) business days and will provide notice of approval, or of any reasonable objections, at which time Client can revise and resubmit the plans if necessary. When the plans are approved by Client and PNAP they become Final Plans.
    8. When this agreement terminates, any and all improvements or modifications to the real estate become a fixture of PNAP real property and belong to PNAP. Client may remove any moveable furniture, hardware, materials, and trade fixtures.
    9. PNAP does not warranty any work done to the Client Area by Client, Client’s agent(s), or Client’s employee(s) and assumes no responsibility or liability even when final plans are approved by PNAP.
    10. PNAP may make requirements pertaining to work to be completed in the Client Area, including, but not limited to, the requirement that Client:
      1. Use a licensed contractor.
      2. Submit names, addresses, and background information about engineers, contractors, subcontractors, and/or suppliers.
      3. Obtain and post permits.
      4. Provide a payment bond in a reasonable amount to PNAP or another form of guarantee of creditworthiness.
      5. Submit conditional and final lien waivers in compliance with Arizona law for all architects, engineers, contractors, subcontractors, and suppliers.
      6. Allow PNAP to inspect Client’s work at reasonable times and with reasonable notice.
      7. Use a contractor that PNAP chooses for any and all work that effects the fire detection system.
      8. Comply with reasonable requirements for insurance coverage.
      9. Complete the work in a reasonable amount of time.
  1. Casualty and Condemnation
    1. Casualty
      1. In the event that the Client Area is damaged or destroyed by fire or other casualty, PNAP will restore the Client Area to the commencement date condition. PNAP is not obligated to repair or replace any of Client’s fixtures, furnishings, equipment, or personal property.
      2. PNAP need not begin repairs until a substantial portion of the insurance proceeds are available and need not spend more than the actual insurance proceeds received.
      3. Insurance proceeds will be received and held by PNAP.
      4. In the event of damage or destruction by casualty not covered by PNAP-maintained insurance, or not less than 25% of the replacement cost, or if the casualty occurs in the last year of the term, Client or PNAP may have the option to terminate this agreement. The terminating party must give notice to the other party within 60 days of the damage or destruction and PNAP will retain any and all insurance proceeds for the Client’s Area as its own property.
      5. If neither party terminates, the agreement remains in full effect, but fees may be lessened or removed until the restoration is complete.
      6. Should a mortgagee require that insurance proceeds be applied to indebtedness, PNAP has the right to terminate this agreement by providing Client with written notice within 15 days after the requirement is made by the holder, the date of the notice becoming the new expiration date.
      7. Client waives statutes §33-343 (Commercial Landlord/Tenant) and any other applicable law governing the destruction or injury of a building by the elements or similar cause permitting an abatement of fees or termination of this agreement in the event of damage or destruction except as outlined in this section or elsewhere in this agreement.
    2. Condemnation
      1. Should the Client Area or facility be taken by power of eminent domain or condemned by a competent authority for a public or quasi-public use or purpose, or if an adjacent property or street is taken, condemned, will be reconfigured or vacated in such a manner that requires reconstruction or remodeling of the Client Area or facility or if PNAP grants a deed or other instrument in lieu of taking by eminent domain or condemnation, either party has the option to terminate this agreement.
      2. The terminating party will provide the other party with 45 days written notice. Notice must be given within 180 days of the date of taking, condemnation, reconfiguration, vacation, deed, or other instrument.
      3. PNAP is entitled to receive the whole of any award or payment made in connection with such an event.
      4. Client has the right to file any separate claim available to Client for any taking of Client personal property or fixtures that belong to Client and are removable by Client at the expiration of the term, and for moving expenses, as long as the claim does not diminish the award available to PNAP or any mortgagee and the claim is payable separately to Client.

v.1; 10282015

Hardware as a Service Addendum

  1. HaaS Lease AgreementThis Hardware as a Service Lease Agreement (“Haas”) is by and between phoenixNAP and Client for the Lease or Lease to Own of certain computer hardware equipment located, managed, and supported exclusively in a phoenixNAP facility.
  2. TermThe 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. Client 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.
  3. Client BuyoutUpon execution of the Service Order Form, Client is provided the option to buy the hardware at the expiration of the Term when the Lease to Own option is specified on the Service Order Form. Client 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. Each SOF including leased Hardware shall constitute a separate lease to own agreement and shall be binding, when executed by the Parties hereto, upon the Parties, their successors, legal representatives and permitted assigns. The terms and conditions contained herein and in such SOF or Order Forms shall govern the lease to purchase and use of the Hardware.
  4. Monthly PaymentClient is responsible for paying the monthly fee as specified in the Service Order. Client may incur a Setup fee equivalent to one monthly payment of the Hardware as a Service Agreement. Interest on past due balances will be 10% per month.
  5. NO PREPAYMENT PENALTYIf Client elects a Lease to Own arrangement, there is no applicable prepayment penalty. Lessee may purchase the applicable Hardware prior to the expiration of the term provided on the HOF at any time prior to expiration of the agreed Lease to Own Term by paying all monthly rental amounts in advance. Upon receipt of all funds owed, Lessor shall deliver all right, title, and interest in the applicable Hardware subject to sale.
  6. Installation and Use of EquipmentAs selected by Client, phoenixNAP will provide adequate facilities and electricity in one of its managed facilities. Client will maintain possession of equipment in a licensed space which may be removed from a phoenixNAP facility only upon Buyout. All alterations, upgrades, and modifications to Equipment shall be performed by phoenixNAP.
  7. Maintenance, Repairs and Best Effort SupportThe 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. phoenixNAP shall provide Best Effort Support Client is responsible for the following:
    1. All Equipment must be used by Client for the lawful purpose.
    2. No critical business data may be stored on computer hardware without sufficient backup by Client.
    3. PhoenixNAP shall determine when software updates are appropriate. If Client performs or allows anyone other than phoenixNAP to perform any maintenance on any of the hardware, phoenixNAP is not responsible for the consequences of such actions and Client may be charged for all labor related to correcting the repairs of such actions.
  8. Hardware ReplacementIf Client experiences a problem with the operations of the computer hardware, Client shall open a ticket with phoenixNAP Support at support@phoenixnap.com. The ticket shall provide details of the problem, and any necessary information required by support to correct the problem.
    1. PhoenixNAP will respond to request for service within four hours. phoenixNAP will repair or replace the troubled hardware, as needed.
    2. Equipment service repair by a Client supplied third party or repair made necessary by improper use of the equipment will be repaired at the Client’s expense.
    3. PhoenixNAP shall use its sole discretion to determine the necessity of a hardware upgrade, and the increase in monthly fees owed by Client, if applicable.
  9. System BackupsClient is responsible for carrying out routine backups for their content to a remote location. PhoenixNAP is not responsible and waives all liability for lost data due to system or hardware failure.
  10. Guaranteed Response TimePhoenixNAP guarantees that any request for service will be acknowledged within four hours.
  11. Ownership and InspectionThe computer hardware shall at all times remain in the possession of Client, subject to Buyout. It is the intention and understanding of both phoenixNAP and Client that the Equipment shall be and at all times remain separately identifiable personal property.
    1. Client shall keep the Equipment free and clear of all liens and encumbrances.
    2. PhoenixNAP or its agents shall have free access to the Equipment at all reasonable times for the purpose of inspection and for any other purpose contemplated in This Agreement.
    3. Client shall immediately notify PhoenixNAP of all details concerning any damage or loss arising out of the improper manufacture, functioning or operation of the Equipment.
  12. Security InterestPhoenixNAP maintains a security interest in the computer hardware. In the event of a default by Client, phoenixNAP retains the right to repossess all computer equipment provided to Client, irrespective of Order or Service Order(s). Client agrees to surrender all computer hardware and related devices to phoenixNAP upon notice of default.
  13. DefaultClient shall be in default if:
    1. Client fails to pay any installment of Monthly Payment.
    2. Client attempts to sell, trade, and/or exchange the Equipment with a third party.
    3. Client fails to observe any of the other obligations under this agreement.
    4. Client ceases doing business.

    If the Client is in default of this agreement, Consultant may take a variety of actions, including but not limited to terminating the agreement, and recovering the equipment.

  14. TERMINATIONAt the termination of the Lease, Lessee shall, at its expense, return the Hardware to Lessor (at the location designated by Lessor within the continental United States) in the same operating order, repair, condition and appearance as on the Installation Date, reasonable wear and tear only excepted with all engineering changes prescribed by the manufacturer prior thereto incorporated therein, and Lessee shall arrange and pay for such repairs (if any) as are necessary for the manufacturer to accept the Hardware under contract maintenance at its then standard rates.At the termination of the Lease to Own, Lessee shall purchase for the amount contained herein all applicable equipment detailed in the relevant HOF. Upon Buyout, Lessee shall own all right, title and interest in the purchased hardware. Lessor shall expeditiously provide all documentation for conveyance of hardware to Lessee, and deliver hardware to Lessee at a place of Lessor’s choosing.Lessee shall comply with all governmental laws, regulations and requirements, and all insurance requirements, if any, with respect to the use, maintenance and operation of the Hardware.
  15. MISCELLANEOUS CHARGESExcept as otherwise specifically provided in this Agreement, it is understood and agreed that this is a closed end lease, and that, as between Lessor and Lessee, Lessor shall be responsible for all costs and expenses of every nature whatsoever arising out of or in connection with or related to this Agreement or the Hardware.
  16. WARRANTIES
    1. Lessor shall, at the request and expense of Lessee, enforce for the benefit of Lessee any rights which Lessor shall be entitled to enforce against the manufacturer in respect of the Hardware.
    2. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE HARDWARE, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO PATENT INFRINGEMENT OR THE LIKE. LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS, OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER, NOR SHALL THERE BE ANY ABATEMENT OF RENTAL, ARISING OUT OF OR IN CONNECTION WITH (i) THE DEFICIENCY OR INADEQUACY OF THE HARDWARE FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR DISCLOSED TO LESSOR, (ii) ANY DEFICIENCY OR DEFECT IN THE HARDWARE, (iii) THE USE OR PERFORMANCE OF THE HARDWARE, (iv) ANY INTERRUPTION OR LOSS OF SERVICE OR USE OF THE HARDWARE, OR (v) ANY LOSS OF BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT RESULTING FROM ANY OF THE FOREGOING. LESSEE WILL DEFEND, INDEMNIFY AND HOLD LESSOR HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, POSSESSION OR OPERATION OF THE HARDWARE.
  17. DEFINITIONS
    1. The “Installation Date” means the date on which the Hardware is installed at Lessee’s site.
    2. The “Commencement Date” means, as to the Hardware designated on any HOF where the Installation Date for such Hardware falls on the first day of the month, that date, and in any other case, the first day of the month following the month in which such Installation Date falls.
    3. “Lease” means the contractual arrangement calling for the lessee to pay the lessor for use of certain hardware.
    4. “Lease to Own” means the contractual arrangement where lessee rents tangible computer hardware from lessor with the inclusion of the right, but not the obligation, to purchase the item leased at a predefined price and time.

 

V.2, 12102015

Managed Services Addendum

  1. AGREEMENT

    This Managed Services Addendum, referred to as a Technical Addendum, sets forth the Phoenix NAP Managed Services offering for management and monitoring of client infrastructures and environments (the “Services”). Phoenix NAP LLC agrees to provide the Services referenced in this agreement through its internal support department. This Agreement (as defined below) between Client and Phoenix NAP sets forth the Service description and obligations governing Phoenix NAP provisioning or delivering Services to Client and Client’s use of those Services. Managed Services are provided by Phoenix NAP pursuant to the Master Service Agreement (“MSA”), which are incorporated herein by reference, in addition to these terms and conditions. Please review the MSA set forth at https://phoenixnap.com/cs/legal/. This Agreement consists of the terms and conditions set forth herein, the MSA, and any other applicable terms and conditions for other Phoenix NAP Services ordered or used by Client which are fully incorporated herein (collectively, the “Agreement”). In the event of a conflict between the Terms and conditions and a Custom Statement of Work (“SOW”) the SOW shall control.

    2. THE SERVICE

    The Service described herein and other optional custom services are intended to detail the specific support services, activities and deliverables provided to Client by Phoenix NAP through this Managed Services offering. Phoenix NAP will provide the Services described below and/or any additional Custom selected services detailed on the Service Order Form (“SOF”) or Statement of Work (“SOW”) for which Phoenix NAP has been paid the appropriate fee.

    Three (3) managed services packages are available:

    • Basic
    • Advanced
    • Custom
    1. Basic Package Features
      • Includes all server and network management capabilities provided in the Technical Scope
      • Availability Monitoring for up to five custom services per managed server or VM
      • Ability to choose one of six (6) pre-defined patching windows
      • Server performance statistics provided weekly via email
      • One (1)-hour First Meaningful Response SLA
    2. Advanced Package Features
      • Availability Monitoring for unlimited custom services per managed server or VM
      • Ability to set a custom patching window for the account, with the exception of off limits hours dictated by NOC Services as 7:00 a.m. to 12:00 p.m., MST
      • Includes up to one (1)-hour of custom work per month; Custom work is defined as non-automated, customer requested work
      • Server and Network performance statistics provided weekly via an automated email
      • Proactive troubleshooting and attempted resolution in addition to standard customer escalation
      • 30 minute First Meaningful Response SLA
    3. Custom Package Features
      • Includes all server and network management capabilities provided in the Technical Scope and additional capabilities and responsibilities defined in a customer-specific SOW
      • Availability Monitoring for unlimited custom services per managed server or VM
      • Ability to set a customer patching window per-application or service group as defined by pre-sales engineering in the SOW, with the exception of off-limits hours dictated by NOC Services as 7:00 a.m. to 12:00 p.m., MST.
      • Includes up to three (3) hours of Custom Work per month; Custom Work is defined as non-automated, customer-requested work
      • Pro-active troubleshooting and attempted resolution in addition to standard customer escalation
      • 30-minute First Meaningful Response SLA

    3. TECHNICAL SCOPE

    1. Monitoring Services
      • Monitor managed devices, various performance metrics, application services and availability via ICMP pings, host agents and SNMP trap collection.
      • 24x7x365 device monitoring
      • CPU, Memory, Disk, System load
      • System Uptime
      • Basic Up/Down ICMP pings
      • Port monitoring
    2. Managed Servers
      • Windows (2008/2012), Linux (CentOS, Ubuntu, Debian), ESXi
      • Hardware and operating system issues:
        • How-to questions
        • Password resets
        • System/Network up/down issues
        • Rack and Stack requests
        • HDD diagnostics utilizing SMART diagnostic tools
        • RAID diagnostics using vendor defined RAID tools
        • Front-end and back-end port configurations
        • Update and/or repair file system issues
      • Control Panel issues (cPanel/Plesk):
        • Control Panel configuration updates
      • LAMP stack:
        • OS-level issues, web-application stack issues, HTTP response analysis and/or debugging
        • Caching/load balancing issues
        • Apache set up and configuration issues
        • Vhost configuration issues
      • Network connectivity issues:
        • Speed/duplex synchronization
        • VLAN set up
        • Front-end/Back-end port configuration
        • Frontend IP addressing
        • Frontend OSPF
      • Server/network latency issues:
        • Traceroute analysis
        • ICMP packet analysis
        • DOS/attack vector mitigation via packet filtering
      • Remote Hands Support
    3. Managed Firewall
      • User creation and permission management
      • Connection configuration (assign public IPs)
      • Private network configuration
      • Object creation
      • Basic NAT set up and configuration
      • Basic security policy set up
      • Critical firmware updates
      • Maintain current, and three (3) previous, device configurations
    4. Managed Switch
      • User creation and management
      • SSH management connection set up
      • Management connection configuration
      • Basic network management:
        • Add/remove IPs
        • Add/remove VLANs/VEs
        • Add/remove static routes
      • Port related issues (errors, bouncing, protection)
      • Critical firmware updates
      • Maintain current, and three (3) previous, device configurations
    5. Patch Management
      • Operating System critical and/or critical security patches
      • Operating systems (Windows 2008/2012, CentOS, Ubuntu, ESXi)
      • Applications (Apache/IIS, cPanel/Plesk, PHP, MySQL, Java, Tomcat)
      • Patch identification and download
      • Patch deployment in client production environment during pre-defined maintenance window
      • Client notification upon completion
      • Rollback using commercially reasonable efforts when necessary
    6. Domain Name Services and SSL Certificate Management
      • Domain name registration and management served from Phoenix NAP DNS servers
      • External name resolution issues
      • External reverse lookup resolution issues
      • SSL registration and management
      • Domain and SSL renewals

    4. SERVICE LEVEL AGREEMENT

    Phoenix NAP managed services offering is provided in accordance with the Service Level Agreement (“SLA”) contained in the MSA. Please refer to the response time guarantee for credit information.

    5. DISCLAIMERS

    The Phoenix NAP managed services offering is provided to Clients of Phoenix NAP. Clients are responsible for providing all necessary credentials for accessing Client environments. Client represents that all Client owned or leased hardware and software are in good working order. Phoenix NAP will not conduct a health test on the Client environment prior to executing the Services as described herein. In the event Phoenix NAP determines that the client environment was not in good working order prior or during delivering the Service, additional charges may apply. Client changes and all respective requests relating to this offering shall be submitted to Phoenix NAP via the standard support ticket process as described in the MSA at support@phoenixnap.com.

    6. LIMITATION OF LIABILITY

    IN NO EVENT WILL PHOENIX NAP BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE MASTER SERVICES AGREEMENT, MANAGED SERVICES OR ANY THIRD-PARTY SOFTWARE. PHOENIX NAP SHALL NOT HAVE ANY LIABILITY FOR ANY PROGRAMS OR DATA USED WITH THE THIRD-PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROGRAMS OR DATA OF ANY KIND OR THE COSTS OF RECOVERING SUCH DATA. THE TOTAL CUMULATIVE LIABILITY OF PHOENIX NAP IN CONNECTION WITH THIS AGREEMENT AND ANY SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF TOTAL FEES PAID FOR THE SERVICES BY CLIENT DURING THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. CLIENT ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PHOENIX NAP WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THIS PARAGRAPH SHALL BE INTERPRETED IN THE BROADEST SENSE TO LIMIT THE LIABILITY OF PHOENIX NAP.

    v.1; 01262016

Service Level Agreements

  1. The following PhoenixNAP Service Level Agreement (“SLA”) is a policy governing the use of the PNAP Colocation, Bare Metal Servers, Hardware as a Service (“HaaS”), Disaster Recovery as a Service (“DRaaS”), and Cloud Enterprise Services (“CES”) under the terms of the Master Service Agreement (the “MSA”) between PNAP, LLC., and Clients of PNAP . Each respective SLA applies to a distinct offering provided by PNAP. 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.
    1. FACILITY LICENSED COLLOCATION
      1. 100% Infrastructure UptimePNAP 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 Client area. Infrastructure downtime exists when a particular piece of system critical equipment is shut down due to power, heat, or humidity issues.
      2. MonitoringClient must monitor services and events as agreed upon by Client and PNAP. If Client identifies a failure event they are required to provide an e-mail to PNAP at support@phoenixnap.com regarding the failure. Upon receipt of the email, PhoenixNAP will begin responding to event within 15 minutes using response plan provided by Client.
      3. Power
          1. Primary Circuit vs. Primary and Secondary CircuitClient understands they are given the option to purchase power from divergent systems (Primary/Secondary Power) and it is PNAP’s strong suggestion that all Clients requiring mission critical uptime take advantage of this option. Due to the increase in redundancy recognized by utilizing Primary and Secondary circuits, Client will receive a significantly increased payment schedule in the event of an outage on both circuits. Client 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 PNAP’s SLA. PNAP will provide an outlet for both the Primary and Secondary Power drops. It is the Client’s sole responsibility to utilize redundant power supplies and/or an automatic transfer switch (ATS) to failover in the event of an outage. PNAP is not responsible for Client equipment that does not perform as desired during a transition.
          2. Primary Power Quantity AvailabilityClient 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.
          3. Credit Schedule for PowerThe table below sets forth the Client’s sole and exclusive remedy for failures to meet Facility Service Level Objectives for the related datacenter colocation services referenced therein (Service Level Failure).

        Credit Schedule for Power

        Power Failure Time
        Cumulative Unavailability

        (Hours:Minutes:Seconds)1

        Service Level Credit Schedule for Failure of Primary Circuit in a Single Power Configuration2

        Service Level Credit Schedule for Concurrent Failure of Both Primary and Secondary Circuits in a Dual Power Configuration3

        00:00:01 – 00:10:00

        1%

        25%

        00:10:01 – 01:30:00

        5%

        35%

        01:30:01–  08:00:00

        10%

        50%

        08:00:01 – 16:00:00

        20%

        75%

        16:00:01 – 24:00:00

        30%

        100%

        24:00:01 – 32:00:00

        40%

        100%

        32:00:01 – 48:00:00

        50%

        100%

        48:00:01 or greater

        100%

        100%

        1. Time accumulation begins as per section 1.E: Service Level Credits.
        2. Service Level Credit is provided as a percentage of Total Monthly Recurring Charge for Datacenter Colocation Services.
        3. Service Level Credit is provided as a percentage of Total Monthly Recurring Charge for Datacenter Colocation Services.
      4. Temperature and Humidity
        1. TemperaturePNAP’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. Client is obligated to monitor temperature for variations that would result in credit and request temperature to be measured by on-site staff.
        2. HumidityPNAP’s service level objective is to maintain an ambient humidity of 45 percent plus or minus 15 percent (45% ± 15%) at all times. Client is obligated to monitor humidity for variations that would result in credit and request measurement by on-site staff.
        3. Credit Schedule for Temperature and Humidity SLAThe table below sets forth the Client’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):

          Credit Schedule for Temperature and Humidity SLA

          Service Level Objective

          Service Level Failure

          Service Level Credit

          Temperature

          A Service Level Failure occurs when the ambient air temperature average falls outside of the range defined in 4.A. above and continues to be outside of that range for four (4) consecutive hours after the initial temperature reading outside of that range.

          The Service Level Credit shall equal 5% of the total monthly recurring charges for Datacenter colocation services of the affected Client Area–each temperature failure consisting of a consecutive four (4) hour Service Level Failure.

          Temperature:
          Critical Failure

          A service critical level failure occurs if the ambient air temperature average, as measured at the nearest supply grill is eighty-seven degrees Fahrenheit (87° F)or higher.

          The Service Level Credit shall equal 10% of the total monthly recurring charges for datacenter colocation services of the affected Client area each four (4) hour period of critical temperature failure. Client receives an initial Service Level Credit immediately upon the first occurrence of the critical temperature failure and receives further Service Level Credits for each subsequent consecutive four (4) hour period during which critical temperature failure continues.

          Humidity

          A Service Level Failure occurs  when the ambient air relative humidity average as measured across all measurement points is outside the range of forty-five percent (45%), (plus or minus) fifteen percent (15%) relative humidity six (6) hours after  the primary humidity reading fell outside of forty-five percent (45%), plus or minus fifteen percent (15%) relative humidity range.

          The Service Level Credit will equal the total monthly recurring charges for datacenter colocation services of the Client area multiplied by five percent (5%) for each humidity failure. For purposes of clarification Client receives a Service Level Credit after each consecutive six (6) hour period during which a humidity failure continues.

          Humidity:
          Critical Failure

          A Service Level Failure occurs when the ambient air relative humidity average as measured across all measurement points is over sixty-one  percent (61%) 6 hours after the primary humidity reading was over sixty-one percent (61%) and critical humidity failure causes water to condense in the Client area.

          The Service Level Credit will equal the total monthly recurring charges for datacenter colocation services of the Client area multiplied by ten percent (10%) for each critical humidity failure. For purposes of clarification Client receives a Service Level Credit after each six (6) hour period during which a critical humidity failure continues.

      5. Service Level CreditsA Service Level Failure period begins upon receipt of an email by PNAP from Client of a detailed report of an incident and ends when the affected service is operational. Client will provide the report via email and trouble ticket. An applicable Service Level Credit Allowance will appear on Client’s invoice following processing. Service Level Credits will not have any cash value at the end of the Client’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:
        1. That is caused by the action or failure to act by the Client,
        2. That is due to failure of equipment provided by Client,
        3. That occurs during any period in which PNAP is not given access to the services premises; or
        4. That which is part of a planned service interruption for maintenance in accordance with PNAP’s MSA, or results from implementation of Client order.

        The maximum total credit for all failures of PNAP to meet its Facility Service Level Agreement is limited to the total monthly recurring charge for datacenter colocation services by Client for the month in which the failure occurs.

    2. BARE METAL SERVERS
      1. Deployment
        1. Server Deployment Guarantee.In most cases PNAP is able to deploy Client’s new server within 4 hours, provided Client’s order does not contain any special instructions, require MSSQL installation, or need an on-board RAID configuration. For all orders, regardless of configuration, PNAP guarantees a server deployment of 24 hours, beginning once Client’s order has been paid for and verified.
        2. CompensationIf PNAP misses their goal, PNAP will give Client a 10% credit of service cost toward Client’s first month’s hosting service fees. All Client have to do is notify us within 7 days that PNAP missed the goal and that Client wishes to claim this credit.
      2. Network Up-Time
        1. 100% Network Uptime Guarantee.PNAP guarantees that the network will be available 100% of the time during the billing cycle (excluding scheduled maintenance).
        2. Network Downtime Definition.Network Downtime occurs when Client’s server cannot transmit or receive data to/from the Internet due to the failure of network equipment managed and owned by PNAP.
        3. Network Definition.PNAP’s Network consists of all of PNAP’s infrastructure hardware including routers, switches, and cabling but does not include the services or software running on the server or the server’s hardware.
        4. Compensation.As compensation for a downtime event, PNAP will credit Client’s account 5% for every 30 minute segment of downtime, up to the total monthly cost.Clients are not entitled to a credit if the downtime is caused by:
          1. Actions of the Client or others authorized by Client to use the Service under the Agreement;
          2. The failure of Third Party Service to PNAP’s network;
          3. Application, software, or operating system failure,
          4. The result of network maintenance activity,
          5. Denial of Service attack, hacker activity, or other malicious event or code targeted against PNAP or a Bare Metal Client. Failure of any Network or Internet Infrastructure not owned or managed by PNAP.
        5. ReportingClient should report downtime incidents to us via email to serversupport@phoenixnap.com or submission through PNAP’s 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 PNAP receives the email “ticket” and ends when PNAP has, at its sole discretion, resolved the issue.
        6. Account StatusIf Client is currently behind in payments on Client’s accounts, of has been behind 3 or more times in the preceding 12 months, Client doesn’t qualify for an SLA credit for Downtime. Valid SLA claims can’t be credited if Client has outstanding abuse issues, but once Client’s abuse issues are resolved PNAP will gladly credit all valid claims. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms and Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms and Conditions.
        7. 20 Minute Support Response Guarantee.PNAP guarantees that one of PNAP’s talented professionals will respond to Client’s support tickets or inquiry within 20 minutes of submission. This applies to support tickets emailed to serversupport@phoenixnap.com or submitted through the portal at https://portal.phoenixnap.com.
      3. Replacement4 Hour Hardware Replacement Guarantee.We hate it when things aren’t working. If hardware belonging to us and located within PNAP’s datacenter fails, PNAP will replace it within 4 hours of notification of failure. To report a failure, send an email to serversupport@phoenixnap.com or submit a ticket through the portal at https://portal.phoenixnap.com.
      4. Compensation.If PNAP doesn’t replace the hardware within 4 hours PNAP will credit Client for one day of Client’s monthly recurring hosting charges. We’ll give Client 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 Client’s monthly recurring payment if necessary. Client does have to send us an official request for the credit within 7 days of the hardware replacement. Send an email to serversupport@phoenixnap.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 and Client is not entitled to any further SLA credits.
    3. CLOUD ENTERPRISE SERVICES
      1. Service CommitmentPNAP will use commercially reasonable efforts to make Cloud Enterprise Services available with a Monthly Uptime Percentage of 100%. In the event PNAP does not meet the Monthly Uptime Percentage commitment, Client will be eligible to receive a Service Credit as described below.
      2. Service CreditsIf the Monthly Uptime Percentage for a Client drops below 100% during a Service Month, that Client is eligible to receive one (1) Service Credit for every fifteen (15) minute period that Cloud Services 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 Client will only be eligible for Service Credits related to the unavailability of:
        1. The PhoenixNAP Client Portal, or
        2. The infrastructure and network connectivity.

        Whichever Service was least available during the Service month, PNAP will apply any Service Credits only against future payments otherwise due from Client; provided that:

        1. PNAP may issue the Service Credit to the Client account for the Service Month in which the Unavailability occurred,
        2. Client is current with all payment obligations set forth in the Agreement, and
        3. Client’s total calculated usage fees for the Eligible Credit Period are greater than or equal to $100.

        Service Credits shall not entitle Client to any refund or other payment from PNAP. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Service Credits are Client’s sole and exclusive remedy for any unavailability or non-performance of Services.

      3. Credit request and Payment ProceduresTo receive a Service Credit, Client must submit a request by sending an e-mail message to cloudsupport@phoenixnap.com. To be eligible, the credit request must:
        1. Include SLA Service Credit Claim in the subject of the e-mail message;
        2. Include, in the body of the e-mail, Client’s Organization name, or Client ID the dates, times, and length of each Unavailability Period that Client claim to have experienced;
        3. Include any documentation that corroborates Client’s claimed Unavailability; and
        4. Be received by PNAP within thirty (30) calendar days of the last day reported in the Unavailability claim.

        If the Monthly Uptime Percentage of such request is confirmed by PNAP and is less than 100% for the Service Month, then PNAP will issue the Service Credit to Client within one Service Month following the month in which the request is confirmed. Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. PNAP’s data and records will be the sole factor for validating claims due to Unavailability.

      4. ExclusionsThe Service Commitment does not apply to any unavailability, suspension or termination of Cloud Services, or any other performance issues:
        1. That result from Service Suspensions described in the following sections of the Agreement: Term and Termination, and Default Events and Remedies;
        2. Caused by factors outside of the reasonable control of PNAP, including any force majeure event or Internet access or related problems beyond the PNAP Network Demarcation Point;
        3. That result from any actions or inactions of Client or any third party;
        4. That result from Client equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within PNAP’s direct control);
        5. That result from failures of individual functions, features, infrastructure, and network connectivity Unavailability; or
        6. Arising from PNAP’s suspension and termination of Client’s right to use Cloud Services in accordance with the Agreement (collectively, the ” Cloud Enterprise SLA Exclusions”).

        If availability is impacted by factors other than those explicitly listed in this agreement, PNAP may issue a Service Credit considering such factors in our sole discretion.

      5. DISCLAIMERIf PNAP misses the SLA goal because of problems with Client’s behavior or the performance or failure of Client’s equipment, facilities, or applications, PNAP can’t give Client credit. Additionally, extenuating circumstances beyond PNAP’s 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 Client’s Web site could cause some hang-ups that PNAP cannot be liable for.
    4. NETWORK
      1. 100% Network Uptime Guarantee.PNAP guarantees that the network will be available 100% of the time during the billing cycle (excluding scheduled maintenance and promotional bundles which include bandwidth). Clients are not entitled to a credit if the downtime is caused by:
        1. Actions of the Client or others authorized by Client to use the Service under the Agreement;
        2. The failure of Third Party Service to PNAP’ network;
        3. Application, software, or operating system failure,
        4. The result of network maintenance activity,
        5. Denial of Service attack, hacker activity, or other malicious event or code targeted against PNAP or a PNAP Client, or
        6. Failure of any Network or Internet Infrastructure not owned or managed by PNAP.
      2. REPORTING REQUIREDClient should report downtime incidents to us via email to support@phoenixnap.com or submission through PNAP’s portal at https://portal.phoenixnap.com within three (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 PNAP receives the email “ticket” and verifies an outage, and ends when PNAP has, at its sole discretion, resolved the issue.
      3. EXCLUSIONSIf Client are currently behind in payments for Client’s accounts, of have been behind 3 or more times in the preceding 12 months, Clients don’t qualify for an SLA credit for Downtime. Valid SLA claims can’t be credited if Client has outstanding abuse issues, but once Client’s abuse issues are resolved PNAP will gladly credit all valid claims. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms and Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms and Conditions and are therefore not entitled to SLA credits.
      4. SUPPORT20 Minute Support Response Guarantee. PNAP guarantees that one of PNAP’s talented professionals will respond to Client’s support tickets or inquiry within 20 minutes of submission. This applies to support tickets emailed to support@phoenixnap.com.
    5. HARDWARE AS A SERVICE
      1. REPLACEMENT4 Hour Hardware Replacement Guarantee. If hardware belonging to us and located within PNAP’s datacenter fails PNAP will replace it within 4 hours of determination and Client notification of failure. To report a failure, send an email to support@phoenixnap.com or submit a ticket through the portal at https://portal.phoenixnap.com.
      2. COMPENSATIONIf PNAP doesn’t replace the hardware within 4 hours PNAP will credit Client for one day of Client’s monthly recurring hosting charges. We’ll give Client 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 Client’s monthly recurring payment if necessary. Client must send us an official request for the credit within 7 days of the hardware replacement. Send an email to support@phoenixnap.comor submit a ticket through the portal at https://portal.phoenixnap.com to claim the credit.
      3. DISCLAIMERThe 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.
    6. DISASTER RECOVERY AS A SERVICE
      1. Service Availability
        1. Cloud Infrastructure Downtime Definition.Cloud Infrastructure Downtime occurs when Client’s server cannot transmit or receive data to/from the Internet due to the failure of infrastructure equipment managed and owned by PNAP.
        2. Infrastructure Equipment Definition.Consists of all of PNAP’s on-premises cloud infrastructure hardware including routers, switches, and cabling and includes the individual services or software running on the virtual machines (“VMs”); excluding client portals. On Premises cloud infrastructure extends only to the PNAP demark which is PNAP’s network termination point. (L2 or VPN)
        3. Service Level Agreement (“SLA”) Event.Each of the following will be considered an SLA Event for the Disaster Recovery as a Service as provided in Exhibit A:
          1. Any Network outage that renders replication services unavailable for more than twenty (20) consecutive minutes.
          2. The data store(s) associated with Client’s DRaaS storage is unavailable for more than three (3) consecutive minutes.
          3. Client’s failed-over virtual machines for a class of service become inaccessible for more than five (5) consecutive minutes due to physical host server failures.
          4. Recovery Point Objective (“RPO”) of more than 1 hour.
          5. Recovery Time Objective (“RTO”) of more than 4 consecutive hours. Any built-in service functions for failover testing, planned migration, or live failover and recovery result in virtual machine replicas not powering on in less than 4 consecutive hours from the time a request is acknowledged and approved by PhoenixNAP. RTO is defined by PNAP as the restoration and successful boot of the Client’s Virtual or Physical servers.
      2. Service Credits
        1. An “SLA Credit” is an amount equal to 10% of the monthly Service Offering recurring or metered (as applicable) subscription charges invoiced by PhoenixNAP for the affected class of service in the calendar month for which the SLA Credit is due. If the Availability of a class of service that Client purchases is less than the associated Availability Commitment in a given calendar month, then Client may request one (1) SLA Credit, and one (1) additional SLA Credit for each additional 300 minutes the class of service was Unavailable, up to a total of three (3) SLA Credits in a given calendar month.
        2. A “Chronic SLA Credit” is an amount equal to 100% of the monthly Service Offering recurring or metered (as applicable) subscription charges invoiced by PNAP, for the affected class of service, in the calendar month in which the SLA Credit is due. Any Chronic SLA Credit is in lieu of any SLA Credits that might be otherwise due. If Client is eligible to receive an SLA Credit or a Chronic SLA Credit in three (3) consecutive calendar months and all the credits are related to the same SLA Event type, then Client may request a Repetitive SLA Credit.
        3. A “Repetitive SLA Credit” is an amount equal 100% of the largest monthly Service Offering recurring or metered (as applicable) subscription charges invoiced by PNAP for the affected class of service, in one of the calendar months in which the SLA Event occurred. If an SLA Credit or a Chronic SLA Credit was already received in the Repetitive SLA Credit period, then the amount of the Service Credit that Client may request will be the difference between the aggregate amount of Service Credits received and the Repetitive SLA Credit.
        4. As compensation for a downtime event, PNAP will credit Client’s account in one monthly billing cycle in the following manner for downtime occurring to only each respective class of service being provided through the DRaaS offering.
        5. Clients are not entitled to a credit if the downtime is caused by:
          1. Actions of the Client or others authorized by Client to use the Service under the Agreement;
          2. The failure of Third Party Service to PNAP’s network;
          3. The result of network maintenance activity;
          4. Denial of Service attack, hacker activity, or other malicious event or code targeted against PNAP or a Bare Metal Client. Failure of any Network or Internet Infrastructure not owned or managed by PNAP;
          5. Bugs in code, hardware, or services for which there is no commercially reasonable, known fix (even if there is a known workaround).
      3. Client Responsibilities
        1. Client will ensure new VM’s are placed into appropriate protection groups or requesting inclusion via a support request to PNAP.
        2. Client will notify PNAP of any changes in their on-premises infrastructure that may impact replication.
        3. Client will notify PNAP of any virtualization or network maintenances that may impact replication.
        4. Client will coordinate with PNAP to conduct failover tests. Client will provide PNAP with at least two weeks’ notice for testing. Two failover tests are included per year.
      4. ReportingClient should report downtime incidents and failover requests to us via email to serversupport@phoenixnap.com or submission through our portal at https://portal.phoenixnap.com immediately 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 PNAP receives the email “ticket” and ends when PNAP has, at its sole discretion, resolved the issue. PNAP shall initiate support and failover activation response within twenty (20) minutes from receiving instruction from the client to initiate the failover. Client should utilize the “Failover Hotline” to contact PNAP at 888-261-1312 or initiate a ticket.
      5. Account StatusIf Client is currently behind in payments for Client’s accounts, of has been behind 3 or more times in the preceding 12 months, Client does not qualify for an SLA credit for Downtime. Valid SLA claims can’t be credited if Client has outstanding abuse issues, but once Client’s abuse issues are resolved PNAP will gladly credit all valid claims. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms & Conditions. Clients 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. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms & Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms & Conditions .
      6. Application of Service CreditsWhichever Service was least available during the Service month, PNAP will apply any Service Credits only against future payments otherwise due from Client; provided that:
        1. PNAP may issue the Service Credit to the Client account for the Service Month in which the Unavailability occurred,
        2. Client is current with all payment obligations set forth in the Agreement, and
        3. Client’s total calculated usage fees for the Eligible Credit Period are greater than or equal to $100.
        4. Service Credits shall not entitle Client to any refund or other payment from PNAP. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Service Credits are Client’s sole and exclusive remedy for any unavailability or non-performance of Services.
      7. Credit request and Payment ProceduresTo receive a Service Credit, Client must submit a request by sending an e-mail message to cloudsupport@phoenixnap.com. To be eligible, the credit request must:
        1. Include SLA Service Credit Claim in the subject of the e-mail message;
        2. Include, in the body of the e-mail, Client’s Organization name or Client ID, the dates, times, and length of each Unavailability Period that Client claims to have experienced;
        3. Include any documentation that corroborates Client’s claimed Unavailability; and
        4. Be received by PNAP within thirty (30) calendar days of the last day reported in the Unavailability claim.

        If the Monthly Uptime Percentage of such request is confirmed by PNAP and is less than 100% for the Service Month, then PNAP will issue the Service Credit to Client within one Service Month following the month in which the request is confirmed. Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. PNAP’s data and records will be the sole factor for validating claims due to Unavailability.

      8. General ExclusionsThe Service Commitment does not apply to any unavailability, suspension or termination of Cloud Services, or any other performance issues that result from Service Suspensions described in the following sections of the Agreement:
        1. Term and Termination or Default Events and Remedies;
        2. Caused by factors outside of the reasonable control of PNAP, including any force majeure event or Internet access or related problems beyond the PNAP Network Demarcation Point;
        3. That result from any actions or inactions of Client or any third party;
        4. That result from Client equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within PNAP’s direct control);
        5. If availability is impacted by factors other than those explicitly listed in this agreement, PNAP may issue a Service Credit considering such factors in our sole discretion.
      9. Network ExclusionsThe Service Commitment does not apply to unavailability caused by the following Network related instances:
        1. Client bandwidth provider experiences throughput or latency issues that cause disruptions in replication.
        2. Client makes changes to core routing infrastructure (ACL, IP changes, new equipment) which cause a break in the replication chain.
        3. Client bandwidth does not support the change rate of replicated VMs.
        4. External access to applications:
          1. Responsible for DNS Failover or global load-balancing.
          2. Client change in network configuration that is not applied to DRaaS on premises cloud infrastructure.
          3. Compatible Private IP scheme
      10. Software and Hardware ExclusionsThe Service Commitment does not apply to unavailability caused by the following Software and Hardware related instances:
        1. Client upgrades host to outside of the compatibility of Zerto.
        2. Client adds or re-builds a host and does not install the agent or inform PNAP to install agent.
        3. Client experiences issues with their Zerto Virtual Manager due to environment changes (Network, improper vMotions, Power Off, HA event).
        4. RPO Replication of 3rd party software/services not contracted through PNAP or one of its partners (SQL Mirror, Master/Slave, AD replication).
        5. RTO Replication of 3rd party service not contracted through PNAP or one of its partners (SQL Mirror, Master/Slave, AD replication).
        6. In-guest shares in a VM (iSCSI, CIFS, NFS).

        Commitment does not apply if failover is intended to correct virus related issue, where no previous check point is clean.

      Exhibit A

        1. RECOVERY POINT OBJECTIVE (RPO)SLA Credit Schedule:

      Time

      3/5 Min

      Hours One – Four

      Hours Five – Eight

      Hour 24

      Discount

      10%

      10%

      10%

      70%

      Total  Cumulative Discount Percentage

      10%

      20%

      30%

      100%

      Credit

      1

      2

      3

      Chronix(4)

      All within one monthly billing cycle on only that service

        1. RECOVERY TIME OBJECTIVE (RTO)

      Time

      Hours One – Four

      Hours Five – Eight

      Hours Nine – 12

      Hours 13 – 16

      Hour 24

      Discount

      10%

      10%

      10%

      10%

      70%

      Total Cumulative Discount  Percentage

      10%

      20%

      30%

      40%

      100%

      Credit

      1

      2

      3

      4

      Chronix(5)

      All within one monthly billing cycle on only that service

    1. OBJECT STORAGE SERVICE

    This Phoenix NAP Service Level Agreement (“SLA”) is a policy governing the use of Phoenix NAP Object Storage Service (“OSS”) under the terms of the Phoenix NAP Master Service Agreement (the “PNAP MSA”) between Phoenix NAP, LLC and clients of Phoenix NAP services. This SLA applies separately to each account using Phoenix NAP Object Storage. Unless otherwise provided herein, this SLA is subject to the terms of the PNAP MSA and capitalized terms will have the meaning specified in the PNAP MSA. We reserve the right to change the terms of this SLA in accordance with the PNAP MSA.

      1. Service Availability:
        1. Availability of the network to the OSS: 99.9%
        2. Availability of the HTTP endpoints to execute Read / Write functions: 99.9%
        3. Availability of Data Rest or underlying storage systems: 99.9%

    If the Availability of a class of service that you purchase is less than the associated Availability Commitment, then you may request Service Credits for that affected class of service in accordance with the PNAP MSA procedures. Availability in a given month is calculated according to the following formula:

    “Availability” = ((total minutes in a calendar month – total minutes Unavailable) / total minutes in a calendar month) x 100

    1. The following will be considered an SLA Event for the Object Storage service:
      A more than five (5) percent Error Rate for more than ten (10) consecutive minutes – where “Error Rate” means the number of valid requests that result in a response with HTTP Status 500 and Code “Internal Error” divided by the total number of valid requests during each five-minute period.
    2. Reporting
      Client should report downtime incidents and failover requests to us via email to support@phoenixnap.com or submission through our portal at https://portal.phoenixnap.com immediately 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 PNAP receives the email “ticket” and ends when PNAP has, at its sole discretion, resolved the issue. PNAP shall initiate support and failover activation response within twenty (20) minutes from receiving instruction from the client to initiate the failover. Client should utilize the “Failover Hotline” to contact PNAP at 1-855-330-1509 or initiate a ticket.
    3. Exclusions
      The Service Commitment does not apply to any unavailability, suspension or termination of Phoenix NAP, or any other Phoenix NAP performance issues:

      1. That result from a suspension described in Section 5 of the PNAP MSA;
      2. Caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Phoenix NAP;
      3. That result from any actions or inactions of you or any third party;
      4. That result from Client equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control);
      5. Arising from our suspension and termination of Client’s right to use Phoenix NAP Object Storage or any other service offering in accordance with the PNAP MSA (collectively, the “PNAP MSA SLA Exclusions”). If availability is impacted by factors other than those used in our calculation of the Error Rate, then we may issue a Service Credit considering such factors at our discretion.
    4. Account Status
      If Client is currently behind in payments for Client’s accounts, of has been behind 3 or more times in the preceding 12 months, Client does not qualify for an SLA credit for Downtime. Valid SLA claims can’t be credited if Client has outstanding abuse issues, but once Client’s abuse issues are resolved PNAP will gladly credit all valid claims. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms & Conditions. Clients 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. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms & Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms & Conditions.
    5. Application of Service Credits
      Whichever Service was least available during the Service month, PNAP will apply any Service Credits only against future payments otherwise due from Client; provided that:

      1. PNAP may issue the Service Credit to the Client account for the Service Month in which the Unavailability occurred,
      2. Client is current with all payment obligations set forth in the Agreement, and
      3. Client’s total calculated usage fees for the Eligible Credit Period are greater than or equal to $100.
      4. Service Credits shall not entitle Client to any refund or other payment from PNAP. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Service Credits are Client’s sole and exclusive remedy for any unavailability or non-performance of Services.
        1. Credit request and Payment Procedures

      To receive a Service Credit, Client must submit a request by sending an e-mail message to

    support@phoenixnap.com

      1. . To be eligible, the credit request must:
        1. Include SLA Service Credit Claim in the subject of the e-mail message;
        2. Include, in the body of the e-mail, Client’s Organization name or Client ID, the dates, times, and length of each Unavailability Period that Client claims to have experienced;
        3. Include any documentation that corroborates Client’s claimed Unavailability; and
        4. Be received by PNAP within thirty (30) calendar days of the last day reported in the Unavailability claim.

    If the Monthly Uptime Percentage of such request is confirmed by PNAP and is less than 100% for the Service Month, then PNAP will issue the Service Credit to Client within one Service Month following the month in which the request is confirmed. Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. PNAP’s data and records will be the sole factor for validating claims due to Unavailability.

    © 2016, PhoenixNAP, LLC. All rights Reserved. V.2, 12222015

Acceptable Use Policy

  1. All Clients of Phoenix NAP, LLC (PNAP) agree to abide by the following acceptable use policies. PNAP may change these policies at any time and updates will be posted at https://phoenixnap.com/cs/legal. Client is responsible for reviewing the AUP frequently to ensure compliance with the latest version of this AUP. Client’s continued use after changes are posted constitute Client’s acceptance of the modifications posted. Complaints about any Client’s violation of these AUPs should be sent to abuse@phoenixnap.com.

    Introduction

    These Acceptable Use Policies demonstrate what PNAP considers to be acceptable conduct when using its service and actions that PNAP may take, with or without notice, when the service is misused. These AUPs are drawn from applicable law and generally accepted Internet conduct standards and are used to ensure the protection of PNAP’s technical resources, ability to continue providing high quality service to Clients, and its reputation. Clients are expected to conform to the following AUPs:

    1. Security
      1. Client’s use of the service is at Client’s own risk.
      2. Client takes full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on PNAP’s infrastructure.
      3. Client is responsible for all use of its own account(s) and keeping all passwords safe and confidential, and setting file protections correctly.
      4. If a password is lost, stolen, or otherwise compromised, PNAP will suspend access or change Client account access immediately following notification by Client.
      5. PNAP is not responsible for any usage or charges prior to the notification and account alteration.
      6. PNAP makes email as safe as it possibly can, but no computer network can ever be considered completely safe from intrusion. Knowing this and that all email may pass through many computer networks it should not be considered a secure communication unless encrypted, and even then it is only as secure as the encryption method used.
    2. Non-Transferability of AccountThe right to use PNAP’s accounts is expressly limited to the Client whose name appears on the SOF and is not transferrable.
    3. Unacceptable ConductThe following types of conduct by Client are grounds for immediate suspension of service pending investigation by PNAP and may result in termination without refund for any and all accounts held by the Client (individual, corporation, or Website) found to be in violation. Client’s business relationships (referrers, associates, etc.) impacting PNAP are also Client’s responsibility, and client will make sure that they immediately cease non-compliant actions or Client discontinues its association with them. Continuing violations by Client’s business relationships may result in PNAP, at its discretion, having to terminate the Client relationship without refund.The following behaviors are unacceptable conduct:
      1. Spamming or Harassment: Posting a single article or substantially similar articles to an excessive number of newsgroups (i.e., more than 20) or continued posting of articles which are off-topic according to the newsgroup charter, or which provoke complaints from the regular readers of the newsgroup for being inappropriate). Sending unsolicited mass E-mailings (i.e., to more than 25 users) that provoke complaints from the recipients.
      2. Engaging in either (A.) from a provider other than Phoenix NAP to draw attention to a Web site housed within Phoenix NAP’S networks or covered by Phoenix NAP’S agreement with Client.
      3. Engaging in abuse or harassment of other individuals on the Internet after being asked to stop by those individuals and/or by Phoenix NAP.
      4. Email bombing, i.e., sending large volumes of unsolicited E-mail to individuals or to individual business accounts. Likewise, the sending of UBE (unsolicited bulk email) from another service provider advertising a web site, email address or utilizing any resource hosted on Phoenix NAP’s servers, is prohibited.
      5. Impersonating another user or otherwise falsifying one’s user name in E-mail, Usenet postings, on Internet Relay Chat (IRC), or with any other Internet service. (This does not preclude the use of nicknames in IRC or the use of anonymous retailer services.)
      6. Intellectual property right infringement: Using any means to transmit, publish, submit, copy, reproduce, steal, infringe on or distribute any information, software or other material that is protected by copyright, trademark, patent, trade secret, or other proprietary or intellectual property rights of any third party, including, but not limited to, the unauthorized use and/or copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software, unless you own or control the rights thereto or have received all necessary consents to do the same.
    4. Network Unfriendly or Illegal Activity
      1. Attempts, whether successful or not, to gain access to any other system or users’ private data without express consent of the user.
      2. Attempts to interfere with the regular workings of Phoenix NAP’S systems or network connections or which adversely affect the ability of other people or systems to use Phoenix NAP’S services or the Internet.
      3. Any unauthorized attempts by a Client to gain access to any account not belonging to that Client on any of Phoenix NAP’S systems.
      4. Any activity, which violates any local, state, U.S., or international law or regulation.
      5. Repeated submissions of transactions to Phoenix NAP utilizing the same or similar IPs with varying identification information.
    5. Export Control ViolationsExporting encryption software, over the Internet or otherwise, to locations outside of the U.S. is prohibited.
    6. Violation of PNAP Policy
      1. Any attempt to bypass or remove Phoenix NAP’S name, logo, or customer support link from any page from Phoenix NAP’S servers.
      2. The posting or display of any image or wording related to any Web site running, participating, or advertising acts allowing the subscriber to bet or gamble on an uncertain outcome, or to play a game of chance for stakes.
      3. Any attempt to display, sell, or transfer materials that violate or infringe any copyright, trademark, right of publicity, patent, statutory, common law or proprietary rights of others, or contain anything obscene, libelous, or threatening.
      4. Reproduction, storage, advertising, or transmission of any software, program, product, or service in violation of any local, state, U.S., or international law or regulation is prohibited. Phoenix NAP makes every attempt in such cases to work with both U.S. and foreign law enforcement agencies to provide information about the providers and purchasers of such material. This includes the posting or display of any image or wording instructing users how to make or perform devices or situations that may violate any state, federal, or international law.
      5. Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database, located at www.spamhaus.org/rokso.
    7. Compliance with Rules of Other NetworksAny access to other networks connected to PNAP’s Internet service must comply with the rules for that network as well as with PNAP’s rules.
    8. Monitoring/PrivacyPNAP reserves the right to monitor any and all communications through or with its facilities, as well as all Client’s sites, for compliance with this AUP and PNAP’s Terms and Conditions. PNAP is not a secure communication medium for purposes of the Electronic Communications Privacy Act, and no expectation of privacy is afforded. PNAP employees may be required to examine system accounting logs and other records to determine if privacy violations or other network unfriendly activities have occurred.
    9. Cooperation with AuthoritiesPNAP cooperates with law enforcement and other authorities investigating claims of illegal activity, including without limit illegal transfer or availability of copyrighted material, trademarks, child pornography, postings, or email containing threats of violence, or other illegal activity.
    10. Confidentiality of Personal Subscriber InformationPNAP will not release any Client or customer PII to any third party except upon presentation of a valid court order or other request PNAP is legally required to respond to. Client agrees that PNAP’s judgement of the validity of any court order, subpoena, or request shall be considered proper and final.

    v.2; 01152016