Colocation Master Services Agreement

COLOCATION SUPPLEMENTAL TERMS

These Colocation Supplemental Terms supplement, and collectively form an integral part of, Hostway’s online Master Services Agreement (“MSA”), as amended from time to time, posted online at http://hostway.com/legal/msa.html. If there is an inconsistency or conflict between the documents between the Parties, these Colocation Supplemental Terms will take precedence. All capitalized terms that are not defined herein will take on the same definition as in the MSA.

1.        INTERPRETATION

1.1      Definitions

“Access Card” means the electronic device that determines elevator access to the office floor of Hostway’s premises as well as door entrance into the Equipment Space.

“Colocation Services” means, as specified in the applicable Order Form, (a) license to the Equipment Space for the purpose of colocating the Equipment, and (b) maintenance of the Equipment Space and the relevant Hostway Systems servicing the Equipment Space in good condition and repair.

“Equipment” means the physical equipment listed in the Order Form that Client desires to collocate in the Equipment Space.

“Equipment Space” means the space within Hostway’s data center used to colocate the Equipment.

“Key” means the key for lockdown of the Equipment Space within which the Equipment is located.

“SLA” or “Service Level Agreement” means the terms governing the availability or uptime of Hostway Systems and the standards for Hostway’s technical support, as applicable, as posted online at https://hostway.com/about/colocation-sla/.

“Termination Fees” means the money amount equal to the average monthly payment of Service Fees within the 6 consecutive calendar months immediately prior to such termination multiplied by the lesser of (a) the number of calendar months remaining in the Minimum Term, or (b) 12 calendar months.

2.         COLOCATION SERVICES

2.1      Services.  In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with the Colocation Supplemental Terms, the MSA, and the Order Form, Hostway will provide to Client the Colocation Services described in the Order Form.  In furtherance of providing Colocation Services to Client, Hostway hereby grants to Client a limited, revocable, non-transferable, license to use the Equipment Space and Hostway Systems in connection with the purposes permitted in these Colocation Supplemental Terms and the Order Form.  Notwithstanding the terms of the MSA, the Colocation Services include limited physical access to the Hostway Systems by allowing Client to access to certain Hostway’s facilities and the Equipment Space, but only to the extent described herein these Colocation Supplemental Terms.

2.2      Order Forms.   Client will furnish to Hostway in the Order Form, and keep current, a list of all Equipment occupying the Equipment Space.  Hostway reserves the right to verify the installation of any Equipment listed in the Order Form at any time, with or without notice to Client.  Client may not add or remove Equipment without the prior written consent of Hostway.  Hostway reserves the right to relocate the Equipment within the Equipment Space, within Hostway’s data center, or to move the Equipment to another Hostway premises.  Equipment moved or relocated at Hostway’s request will be at Hostway’s expense.  Every reasonable effort will be made to minimize Equipment downtime and service interruption if the Equipment is moved or relocated.  Hostway will notify Client in the event of such movement or relocation.

2.3      Unescorted and Escorted Co-Location

(a)       Unescorted Co-Location

This section applies to Client only if the order form states that customer has arranged for unescorted co-location.

Client must pay to Hostway a deposit of twenty-five United States dollars (US$25.00) for an Access Card and such deposit must be paid in full in advance.  Client must also pay to Hostway a deposit of twenty-five United States dollars (US$25.00) for the Key.  Hostway will refund the deposits for the Access Card and Key if Client no longer requires access to the Equipment Space and Client returns the Access Card and Key to Hostway.  Only one Access Card and Key will be available per Client.

Client must designate a “contact person” (defined by the name, company name, address, phone number, and signature of the person listed as the contact person) and inform Hostway in writing of such designation.  Client will be fully and solely responsible for the Access Card and Key.  If Client determines the Access Card and/or Key to be lost or stolen, Client must contact Hostway immediately and, in any event, no later than twenty-four (24) hours from the time the Access Card and/or Key is determined to be lost or stolen.  Client will subsequently forfeit the original deposits for the Access Card and/or Key and Client must pay additional deposits for a new Access Card and/or Key.

Client understands and agrees that the Access Card is logged for security purposes and that such information may be used against Client in any legal or other proceeding by Hostway.  Client further understands and agrees that any part of Hostway’s premises (including, but not limited to, the Equipment Space) may be monitored by video surveillance and that such footage may be used against Client in any legal or other proceeding by Hostway.

(b)  Escorted Co-Location

This section applies to Client only if the order form states that client has arranged for escorted co-location.

Hostway may allow Client to access the Equipment Space and/or Equipment ONLY IF: (i) Client gives Hostway at least twenty-four (24) hours’ notice, and (ii) Client is escorted by an authorized representative of Hostway.  Client is strictly prohibited, at all times, from accessing the Equipment Space and/or Equipment without such Hostway escort.

2.4      SLA.  Hostway will provide the Colocation Services in accordance with the applicable SLA standards, and exceptions, as referenced in the Order Form and posted online at http://www.hostway.com/colocation/sla.html (or such other URL as Hostway may dictate from time to time).  The SLA is incorporated herein by reference and states Hostway’s sole obligation, and Client’s exclusive remedy, for any unavailability of the Hostway Systems.

3.        CLIENT RESPONSIBILITIES

3.1  Access to Hostway Premises.  Client is fully and solely responsible for any and all persons holding the Access Card and/or Key.  Any access by a third party to the Equipment Space, lockdown cages, and/or other areas of Hostway’s premises without proper authorization from Hostway is strictly prohibited, a material breach of the MSA and these Colocation Supplemental Terms, and cause for termination of the entirety of the MSA, the Order Form, and the Client Account by Hostway.  Client must not make any construction changes or material alterations to the interior or exterior portions of the Equipment Space or other part of Hostway’s premises (including, but not limited to, walls or partitions, ceilings, lighting, HVAC, plumbing, or any electrical distribution or power supplies for Equipment.  Hostway reserves the right to pursue legal or other action against Client for any and all damages, trespasses, alterations, or constructions to any portion of the Equipment Space or other parts of Hostway’s premises (including, but not limited to, any area not directly related to the assigned lockdown cages).  Hostway will not be responsible, and Client will in no way hold Hostway liable, for any injury or damage caused to persons or Equipment while in the Equipment Space.  Client will be solely liable for any and all compensation owing to Hostway for any and all damages caused to the Equipment Space directly resulting from Client or Client’s systems, including, but not limited to, the activation of the fire suppression system.

3.2  Compensation for Damages.  In addition to the rights and remedies provided in the MSA, Client will be liable for all compensation owing to Hostway for any damages caused to Hostway’s data center, any equipment or property not wholly owned by Client, the Hostway Systems, or to any other Hostway customer or end user resulting from Client’s breach of Client’s responsibilities described above, any of Client’s Equipment, or Client’s use of or access to the Equipment Space, including, without limitation, or the activation of the fire suppression system.

4.        RESALE OF SERVICES

Client may resell the Colocation Services, provided that Client obligates any purchaser of the resold Colocation Services to the same terms of the MSA and these Colocation Supplemental Terms, and incorporate into such resale all of Hostway’s rights as indicated therein.

5.    SERVICE FEES, BILLING, & PAYMENT

The following terms are in addition to and modify the Billing Terms of the MSA, and are applicable specifically to Colocation Clients:

5.1      Service Fees.  Client will pay to Hostway all Service Fees specified in the Order Form, and (b) any additional Service Fees chargeable hereunder for Hostway Services not specified in an Order Form but rendered to Client by Hostway as requested by Client or as reasonably expected of Hostway or as necessary given the circumstances.  Client acknowledges that Service Fees will accrue and be payable to Hostway by Client upon Hostway making the Colocation Services available to Client (setting up, implementing, delivering, or providing access to the Equipment Space) regardless of whether Client uses the Equipment Space or any Colocation Services.

5.2      Billing.  Except as otherwise specified in the Order Form, notwithstanding the terms of the MSA, the Billing Cycle for each Order Form will commence upon the date that Hostway makes the Colocation Services available to Client (“Billing Start Date”).  The Billing Cycle will recur monthly on the anniversary of the Billing Start Date until the relevant Order Form or entire Client Account is terminated in accordance with the Colocation Supplemental Terms.  The Service Fees will be due in advance at the beginning of each Billing Cycle with adjustments in arrears for Service Fees based on usage, if applicable.  Unless expressly agreed to by Hostway in writing, Hostway does not provide invoices and that Client is solely responsibility for viewing information pertaining to the Billing Cycle and Due Date through the Client Portal and ensuring payment of Service Fees before the Due Date.

5.3      Past Due Amounts.  In addition to the rights and remedies available to Hostway under the MSA, Hostway may suspend the Client Account without further notice.  Hostway may suspend the Client Account or terminate the Order Form, in whole or in part, upon written notice to Client if Service Fees (a) remain unpaid in full for over 60 calendar days, or (b) are not timely paid by the due date for 3 or more months in a given 6-month period.  Reactivation of a Client Account is subject to a reactivation fee of $19.95, and Hostway may charge Client a $99.95 reconnection fee plus additional fees at Hostway’s then current rates depending on the scope of work involved to reconnect Client’s Equipment to the Hostway System.

5.4      Termination Fees.  If Client terminates an Order Form during the lesser of (a) the Minimum Term, or (b) the first 12 calendar months from the Effective Date, then Client will pay to Hostway the Termination Fees as liquidated damages (intended for Hostway to cover its upfront costs) and not as a penalty.  Client will also be responsible for paying to Hostway any and all other applicable money amounts owed under the Order Form up to the date of termination.

5.5      Records.  Hostway will maintain records of the Enterprise Services rendered to Client and the billing thereof.  If there is an inconsistency between Hostway’s records and Client’s records pertaining to the Enterprise Services and Service Fees, then the Parties will use commercially reasonable efforts to reconcile the dispute within 30 calendar days.  If at the end of such period the inconsistency remains unresolved, Hostway’s records will be deemed the controlling records, in which case Client may seek an independent and neutral third party to audit Hostway’s records and make a determination as to the accurate records or the correct amount.  Client will bear the costs of the audit unless the audit discloses an error on the part of Hostway of more than 5%, in which case Hostway will be responsible for the difference and will reimburse the costs of the audit.

6.        LIEN ON PERSONAL PROPERTY

Client acknowledges and agrees that Hostway retains a lien on all of Client’s personal property (including, but not limited to, the Equipment) in Hostway’s possession to secure any and all payment amounts that Client may owe to Hostway under the Colocation Supplemental Terms and/or the Order Form.

7.        RISK OF USE

Client expressly agrees that use of the Equipment Space and Colocation Services is at Client’s own risk.  Hostway does not make any warranty as to the results that may be obtained from the use of the Colocation Services or as to the accuracy, reliability, or content of any information serviced or merchandise contained in or provided through the Colocation Services, unless otherwise expressly stated in the Colocation Supplemental Terms.  Client understands and acknowledges that all information or data submitted in, on, and through Client’s Equipment may be publicly accessible.  Client is solely responsible for protecting its important and private information.  Client’s obligations under this risk of use provision hereof will survive the expiry or termination of the Colocation Supplemental Terms for any reason.

8.        LIMITATION OF LIABILITY

8.1      Scope. Without limiting any of Hostway’s rights under the MSA, under no circumstances will either Party be liable to the other Party for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to the MSA (including the Colocation Supplemental Terms) or the Colocation Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if such Party has been advised of the possibility of such damages.

8.2      Amount.  Notwithstanding the terms of the MSA, except for either Party’s gross negligence or willful misconduct, neither Party’s aggregate liability to the other Party arising out of or relating to the MSA or the Colocation Services will exceed the aggregate amount of Service Fees paid hereunder during the 6 calendar months immediately preceding the event giving rise to the liability.

8.3      Limitation Period.  No Claim relating to the MSA or the Colocation Services by a Party against the other Party will be effective after 1 calendar year (12 calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.

9.         TERMINATION

9.1      Post Termination.  Upon expiration or termination of the Client Account and the MSA and the Colocation Supplemental Terms in its entirety for any reason:

9.1.1      No Further Activity.  Except for any provision hereof contemplated by the MSA or Colocation Supplemental Terms to survive the termination of the Client Account (including payment of Service Fees), the Parties will cease all activities related in any way to the MSA and Colocation Supplemental Terms, including any resale, distribution, provision or use of the Colocation Services.

9.1.2      Service Fees.  Client will pay to Hostway all amounts due hereunder, including all Service Fees accrued prior to the effective date of termination.

9.1.3      Removal of Equipment.  Client will remove all Equipment within 30 days from the termination date.  Hostway reserves the right to move any Equipment that remains in the Equipment Space after 30 days and charge Client storage fees at Hostway’s sole discretion.  After an additional 90 days, if the Equipment remains unclaimed, it will be deemed abandoned and Hostway will dispose of it upon written notice to Client.

9.2      Survival Clauses.  The provisions of the MSA and these Enterprise Supplemental Terms which by their nature continue beyond the termination of the Client Account will survive such termination, including the provisions relating to post-termination, Intellectual Property, representations and warranties, limitation of liability, disclaimer, indemnification, Confidential Information, and governing law and jurisdiction.

10.      ASSIGNMENT

Notwithstanding the terms of the MSA, neither Party may assign or otherwise transfer its respective rights or obligations under the MSA or the Colocation Supplemental Terms without the prior written consent of the other Party, except that either Party may assign or otherwise transfer the MSA and the Colocation Supplemental Terms and such Party’s rights and obligations hereunder to (a) any of its Affiliates, or (b) to any third party who succeeds to all or substantially all of such Party’s business, stock or assets.  Any assignment or transfer in violation of this Section will not have any effect against the other Party.  The MSA and the Colocation Supplemental Terms will be binding and have effect upon the Parties and their respective successors and permitted assigns.  Nothing herein, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with the MSA or the Colocation Supplemental Terms.  Notwithstanding the foregoing, Client acknowledges that Hostway may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of Hostway’s Affiliates, which will not be deemed an assignment of the MSA and the Colocation Supplemental Terms.

11.      COMPLETE AGREEMENT

These Colocation Supplemental Terms are a part of and supplement the terms of the MSA, which includes all Order Forms and SOWs executed by the Parties, and all written amendments to the Colocation Supplemental Terms or MSA made in accordance with the terms herein, and collectively they constitute the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.  If there is an inconsistency or conflict between the documents between the Parties, then the order of precedence in which the documents will govern in each instance, and only to the extent of the conflict, is (1) these Colocation Supplemental Terms, (2) the MSA.