MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT IS BETWEEN ONE CLOUD SERVICES LLC, A MICHIGAN LIMITED LIABILTY COMPANY DOING BUSINESS UNDER THE ASSUMED NAME LIBERTY CENTER ONE (“COMPANY”), AND THE PERSON, COMPANY OR OTHER ENTITY ENTERING INTO AN EXECUTED ORDER HEREUNDER (“CLIENT”). COMPANY AND CLIENT MAY BE REFERRED TO AS THE “PARTIES”, AND EACH A “PARTY”.

DEFINITIONS.

As used in this Agreement and the attachments hereto (collectively, the “Documents”), the following terms shall have the following meanings with such definitions to be applicable to both the singular and plural use of the terms.

“Affiliate” shall mean, with respect to a Party, any entity at any time Controlling, Controlled by, or under common Control with, such Party, but only as long as such entity meets these requirements.

“Change Order” shall mean a written request by either Party, in a form mutually agreed by the Parties, seeking a change to the Services, in accordance with the procedures in Section 4.

“Client Data” shall mean any and all data and information of any kind or nature submitted to Company by Client, or received by Company on behalf of Client, in connection with the Services. Client Data strictly excludes Company Property.

“Colocation Space” shall mean the physical space within the facility utilized to host Client’s hardware or equipment, as specified in an Executed Order.

“Company Property” shall mean all systems, software, hardware, networks, documentation, and infrastructure owned, leased, or licensed by Company to deliver the Services, excluding Client Data and Client-owned hardware.

“Confidential Information” shall mean, with respect to either Party, this Agreement, together with all confidential business or technical information or materials of such Party; provided, however, that Confidential Information shall not include information or materials that the Receiving Party can demonstrate: (i) was known to the Receiving Party prior to the Effective Date free of any obligation of nondisclosure; (ii) was generally known or available to the public prior to the date of disclosure to the Receiving Party or subsequently became generally known or available to the public through no fault of the Receiving Party; (iii) was lawfully received by the Receiving Party from a third party free of any obligation of nondisclosure; or (iv) is or was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party.

“Control” shall mean the direct or indirect ownership of 50% or more of the capital stock, or other ownership interest if not a corporation, of any entity or the possession, directly or indirectly, of the power to direct the management and policies of such entity by ownership of voting securities, by contract, or otherwise. “Controlling” shall mean having Control of any entity and “Controlled” shall mean being the subject of Control by another entity.

“Data Security Breach” shall mean a confirmed, unauthorized act or occurrence that bypasses or contravenes security policies, practices, or procedures and which could reasonably be expected to have a material impact on the Services.

“Disclosing Party” shall mean the Party disclosing Confidential Information to the other Party under this Agreement.

“Effective Date” shall mean the date on which both Parties have signed this Agreement below.

“Effective Date of Termination” shall mean the last day on which Company provides Services to Client, pursuant to an applicable Executed Order.

“Entity” means a corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the Parties hereto.

“Executed Order” means a written order, including by executed quote, service exhibit, purchase order, statement of work, email or by other written agreement as executed or agreed to by the Parties, for hardware, software, or other Services that references this Agreement and is executed by the Parties.

“Receiving Parties” shall mean the Party receiving Confidential Information from the other Party under this Agreement.

“Related Parties” shall mean, with respect to each Party, its Affiliates and the owners, directors, officers, managers, employees, agents, independent contractors and subcontractors of the respective Party and its Affiliates.

“Services” shall mean the Company’s services, functions, and responsibilities described in this Agreement or in any Executed Order to be performed by Company during the Term hereof. Services do not include any: (i) third-party software or internet bandwidth connectivity that is purchased by Client for its own internal use, or (ii) Client-managed applications, unless expressly stated otherwise in an Executed Order.

“Term” shall mean the period commencing on the applicable commencement date set forth in each Executed Order and continuing until the expiration or earlier termination of such Executed Order in accordance with the terms of this Agreement.

DEFINITIONS.

“Change Order” shall mean a written request by either Party, in a form mutually agreed by the Parties, seeking a change to the Services, in accordance with the procedures in Section 4.

“Colocation Space” shall mean the physical space within the facility utilized to host Client’s hardware or equipment, as specified in an Executed Order.

“Disclosing Party” shall mean the Party disclosing Confidential Information to the other Party under this Agreement.

“Effective Date” shall mean the date on which both Parties have signed this Agreement below.

“Effective Date of Termination” shall mean the last day on which Company provides Services to Client, pursuant to an applicable Executed Order.

“Entity” means a corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the Parties hereto.

“Receiving Parties” shall mean the Party receiving Confidential Information from the other Party under this Agreement.

PERFORMANCE OF SERVICES.
1. Executed Orders. The Parties shall negotiate and execute one or more Service Order(s), Order Form(s), Statement(s) of Work and/or Service Exhibit(s) (an “Executed Order”) under this Agreement containing terms and conditions agreed to by the Parties. The Parties agree that this Agreement applies to, is incorporated into, and governs each Executed Order. In the event of a conflict between the terms of this Agreement and Executed Order, the terms of this Agreement shall control unless the Executed Order explicitly states the intent to override a specific section of this Agreement.
2. Specifications and Requirements. Company shall perform the Services in accordance with the terms and conditions as set forth herein and in the applicable Executed Orders, provided, however, that Company shall have the sole discretion and authority to determine the manner in which any such Services are to be provided, except to the extent otherwise set forth in an applicable Executed Order. Company reserves the right to modify its underlying infrastructure, software, systems, or data center locations at any time, provided such modifications do not materially degrade the overall performance or security of the Services.
3. Communications. All communications, both written and verbal, in connection with this Agreement or the Services shall be communicated in the English language, unless otherwise agreed upon in a signed writing by the Parties.
4. Nature of Relationship. The Parties’ relationship is non-exclusive. Client may obtain similar services from any of Client’s Related Parties or any other party, and Company may perform any service for any of Company’s Related Parties of any other party without any restriction hereunder.
5. Performance by Company’s Affiliates and Subcontractors. Client agrees, acknowledges, and understands that actual performance of the Services may be made by Affiliates of Company and that Company has the right from time to time to subcontract certain of the Services to third-party providers. For purposes of this Agreement, performance of the Services by any Affiliate of Company or by any third-party provider engaged by Company shall be deemed performance by Company itself. Client shall cooperate with Company’s Affiliates and third-party providers to the same extent required for cooperation with Company.
6. Receipt of Services by Client’s Affiliates. To the extent set forth in an applicable Executed Order, Company shall provide applicable Services to an identified Affiliate of Client. Client shall remain liable, jointly and severally with its Affiliate, for the performance and obligations of any Affiliate receiving Services hereunder, including but not limited to, the full and prompt payment of any amounts due by Affiliate to Company. In the event of any dispute, controversy, overdue payment or outstanding obligation due hereunder, Company may enforce such obligation or bring such claim against Client, the applicable Affiliate, or both, in Company’s sole discretion.
SERVICE LEVEL AGREEMENT. Company has established a written Service Level Agreement (“SLA”) located at the Company website www.libertycenterone.com. Company reserves the right to modify this SLA at any time upon providing thirty (30) days’ advance written notice to the Client. If within 60 days of receipt of such SLA change notice (“Notice Period”), Client determines, in Client’s reasonable discretion, that the proposed change has a material effect on Client’s business or operations, Client will provide written notice to Company within the Notice Period, sufficiently detailing such material impact. Upon Company’s receipt of such notice, the Parties will negotiate, in good faith, an appropriate SLA accommodation. To be effective, any agreed upon SLA accommodation shall be in writing and signed by an authorized representative of each Party. If the Parties cannot agree upon a mutually acceptable SLA accommodation, within 90 days of Company’s receipt of Client’s written SLA notice, then Client may, upon 90 days’ advanced written notice to Company, cancel the Service component(s) for which Company is amending the SLA.
TERM. The Term for each Executed Order shall commence on the effective billing date for Services as described in the Executed Order. Executed Orders shall be subject to termination in accordance with Section 6.
CHANGE ORDER.
1. Change Orders. Either Party may request changes to the Services by submitting to the other Party a completed Change Order during the Term of this Agreement. No Change Order will be binding on the Parties unless and until agreed upon in writing and signed by each Party’s authorized representative. Company is under no obligation to perform any changes or additional services until a final Change Order is fully executed. Notwithstanding the foregoing, Client may request routine pre-defined resource scaling (such as adding disk space and/or memory) through the Company’s designated ticketing system without a Change Order at the then-current rates, subject to the Company’s available infrastructure capacity.
2. Pending Change Orders. Except to the extent changed by the Change Order, the scope of Services and Service Fees, as provided herein and in the then-current Executed Order, shall remain in full force and effect. Client shall continue to pay all original Service Fees during the pendency of any Change Order negotiations.
3. Operational and Emergency Adjustments. Notwithstanding anything to the contrary in this Section, routine security patches, emergency maintenance, and operational adjustments that do not materially degrade the overall performance or security of the Services shall be performed at Company’s sole discretion and do not require a Change Order or Client consent.
SERVICE FEES.
1. Service Fees. Client shall pay for the Services invoiced under this Agreement in accordance with the “Service Fees” set forth in each applicable Executed Order.
2. Taxes. Client shall be solely responsible for the payment of all applicable taxes, including but not limited to sales, use, excise, value-added, goods and services, and any other taxes or governmental charges imposed on or arising from the Services provided under this Agreement, as required by the laws of any applicable federal, state, local, or foreign jurisdiction in which Client operates or receives the Services. Company shall have no obligation to determine Client’s tax obligations in any jurisdiction. Notwithstanding the foregoing, Client shall not be responsible for paying any taxes upon the real, personal, or intangible property of Company, or upon the net income or profits of Company.
3. Invoicing Address. Invoices to Client shall be sent to the address set forth on the Executed Order or otherwise specified via electronic mail or standard mailing address.
4. Due Date. Except as set forth in an applicable Executed Order, Client shall pay undisputed invoice amounts for non-recurring fees and Services that are billed in arrears within ten (10) days of the date of invoice. For all other fees and Services that are not billed in arrears, Client shall pay undisputed invoice amounts within thirty (30) days of the date of invoice. Client may only dispute an invoice amount in accordance with Section 5.8 below. It is the intention of the Parties that all Service Fees and other amounts payable by Client under this Agreement shall be, and continue to be, payable throughout the term hereof. The Company reserves the right to terminate or suspend Services if payment is past due pursuant to the terms of Section 5.5 below.
5. Late Payments. Client’s payment for Services shall be deemed late when Client fails to remit payment, which is not being disputed in accordance with Section 5.8 below, by the applicable due date of invoice. Any late payment shall bear interest at the rate of one and one-half percent (1½%) per month (or fraction thereof) or the maximum rate allowed under law, whichever is lower, or fraction thereof, from the due date until paid in full. Disputed amounts, if the dispute is resolved in favor of Company, shall bear interest from the due date until paid. Notwithstanding any other provision under this Agreement, any undisputed invoice, or undisputed portion thereof, not paid within: (a) thirty (30) days may result in a suspension of Client’s: (i) physical access to the data center, and/or (ii) right to request additional, enhanced or upgraded Services or resources; or (b) sixty (60) days may result in an interruption of Services. Such suspension or interruption shall not relieve Client from its obligation to pay the undisputed amounts due and owing. Company also reserves the right to assert appropriate liens in accordance with Section 12.4 below, or to require Client to post a bond or provide a security deposit to secure payment. Client agrees to reimburse Company its reasonable expenses, including attorney and other fees, incurred in collecting any amounts due and owing to Company.
6. Expenses. Client shall reimburse Company for reasonable, actual, documented expenses incurred by Company associated with the Services and identified in an applicable Executed Order.
7. Audit Rights. During the Term, Client will have the right, during normal business hours and upon at least ten (10) business days’ prior written notice (which may be in the form of an email to an authorized representative of Company), to cause a third-party professional auditing firm, subject to customary confidentiality obligations, to inspect and audit Company’s records to the extent necessary to confirm the accuracy of the Service Fees charged to Client by Company. Any such audit will be conducted at Client’s expense. Company will promptly credit to Client any amounts shown by any such audit to be owing. Such audits will be conducted no more than once in any period of twelve (12) consecutive months. Client’s chosen auditing firm must not be a direct competitor of Company and must execute a non-disclosure agreement directly with Company prior to any inspection. Under no circumstances shall Client or its auditors have physical or logical access to Company’s core infrastructure, underlying software, or data belonging to other clients of Company.
8. Invoice Disputes. If Client in good faith determines that any portion of a Company invoice is inaccurate, Client may dispute such portion of the invoice; provided, however, that Client remits to Company full payment of the undisputed portion of the invoice by the applicable due date. If Client does not report a billing dispute within thirty (30) days following the invoice date or fails to timely pay the undisputed amount of the invoice, Client shall have waived its right to dispute that invoice. Company and Client agree to use their respective commercially reasonable efforts to resolve any billing dispute within fifteen (15) days after Company receives written notice of the dispute from Client. To be valid, any dispute notice submitted by Client must be in writing (which may be in the form of an email to an authorized representative of Company), include a detailed written explanation of the specific billing discrepancy and include supporting documentation. Any disputed amounts subsequently resolved in favor of Client shall be credited to Client’s account on the next invoice following resolution of the dispute. Any disputed amount determined to be payable to Company shall be due within ten (10) days of the resolution of the dispute, together with the late payment interest amount described in Section 5.5 above if the payment is not made on or before the original due date.
TERMINATION.
1. For Cause. In the event either Party breaches any material term of this Agreement or fails to perform any of its material obligations under an Executed Order, including paying any amount due under an Executed Order, and the defaulting Party fails to substantially cure such default within sixty (60) days after receiving written notice from the non-defaulting Party specifying the nature of the default, then the non-defaulting Party may, by giving written notice to the other Party, terminate the applicable Executed Order as of the date specified in such notice of termination. If Client is the defaulting Party, Company may, upon written notice to Client, terminate this Agreement and/or any or all outstanding Executed Orders as of the date specified in such notice of termination. For clarity, Company may elect to terminate an Executed Order due to a breach of a material term thereof, without terminating this Agreement or any other separate active Executed Orders. Notwithstanding the foregoing, Client shall pay Company for Services already performed prior to the date of termination in addition to applicable Early Termination Fees described in Section 6.3 below.
2. For Insolvency. Subject to the provisions of Title XI, United States Code, if either Party becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement and all outstanding Executed Orders as of the date specified in such notice of termination. Notwithstanding the foregoing, Client shall pay Company for Services already performed prior to the date of termination.
3. Early Termination. Either Party may terminate an Executed Order with a Term of 12-months or more without cause by providing the other with ninety (90) days’ written notice. If Client discontinues Services with 12-months or more remaining in the Term for any reason other than Company’s breach of this Agreement, Client will pay Company an Early Termination Fee. The Early Termination Fee is calculated as one month of Service Fees under the applicable cancelled Executed Order(s) (described in Section 5 hereof) multiplied by the number of months remaining in the Term. In addition, Client is responsible for all other charges accrued on the account up to termination including, but not limited to, outstanding recurring monthly service charges, and incidental labor and merchandise charges as requested by Client, and any applicable taxes. For termination following execution hereof, but prior to initiation of the Term, the Early Termination Fee will be those reasonable costs incurred by Company through the date of termination, including any installation or equipment charges. Client is solely responsible for the payment or remedy of any termination, cancellation or other charges imposed by any telecommunications carrier or other third party associated with Client’s service. Termination of this Agreement by Company for cause or by right shall not release Client from any obligation under this Agreement or otherwise. Client shall continue to be responsible for all its obligations under this Agreement, including those obligations that may arise as a result of any breach of this Agreement. This provision will survive expiration or termination of this Agreement. The termination or expiration of an Executed Order shall not automatically affect the validity or effectiveness of this Agreement or any other active Executed Order, and this Agreement shall continue to govern all remaining active Services.
4. Client Breach. Without limiting the foregoing, Company may suspend or terminate service under this Agreement if it is necessary or desirable, in Company’s sole judgment to: (a) prevent degradation of service to its network or to those networks connected to it, (b) comply with any law, regulation or court order, in the event of any violation of Company’s Acceptable Use Policy (located at www.libertycenterone.com) or the Colocation Space Additional Terms and Conditions (Exhibit A) and Colocation Space Operating Restrictions (Exhibit B), or (c) address any behavior that Company deems necessary to protect Company from unnecessary liability, cost or expense. Client shall be given written notice of any breach (which notice can be given via email to an authorized representative of Client) and provided 10 days to cure said breach prior to Company taking any action to restrict Services; provided, however, that no prior notice or cure period shall be required if Company suspends Services pursuant to subsections (a), (b), or (c) of this Section 6.4 if Company determines, in its sole discretion, that immediate action is necessary to protect its network, comply with law, or mitigate an active security or liability threat. Company will not be liable or responsible to Client or third parties for any loss, cost, expense or liability occasioned by or as a result, in whole or in part, of any such suspension or termination.
5. Data Retrieval and De-installation. Upon expiration or termination of an Executed Order, Client shall immediately pay all outstanding balances and, within ten (10) days, retrieve all Client Data and remove all Client-owned hardware from the Colocation Space (subject to Company’s rights granted in Section 12.4 below). If Client fails to remove its hardware or Client Data within such period for any reason whatsoever, including but not limited to the Company exercising its rights under Section 12.4 below, Company may, at Client’s expense: (a) charge Client daily storage fees at Company’s standard ambient rates, (b) ship to Client (at Client’s sole risk), dispose of, or otherwise handle or repurpose Client’s hardware, and/or (c) permanently delete all Client Data remaining at Company’s facilities without liability.
LIMITATION OF LIABILITY AND NATURE OF AVAILABLE DAMAGES.
1. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO AMOUNTS CLIENT IS OBLIGATED TO PAY UNDER AN EXECUTED ORDER IN ACCORDANCE WITH SECTION 5 OR AS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ITS RELATED PARTIES, IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE RELATED PARTIES, BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT IN AN AMOUNT EXCEEDING THE FEES INVOICED BY COMPANY TO CLIENT DURING THE PRECEDING SIX MONTHS UNDER THE EXECUTED ORDER PURSUANT TO WHICH SUCH CLAIM AROSE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.
2. NATURE OF AVAILABLE DAMAGES. EXCEPT AS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ITS RESPECTIVE RELATED PARTIES, IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE RELATED PARTIES BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, INDIRECT, SPECIAL, LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES EXPRESSLY AGREE THAT LOST DATA, DATA CORRUPTION, AND THE COST OF DATA RECOVERY SHALL BE DEEMED INDIRECT AND CONSEQUENTIAL DAMAGES EXCLUDED UNDER THIS SECTION 7.2, AND EACH PARTY SHALL BE SOLELY RESPONSIBLE FOR ITS OWN DATA BACKUPS, RETENTION, AND INFRASTRUCTURE SECURITY, AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS, ALTERATION, OR CORRUPTION OF THE OTHER PARTY’S DATA.
3. TIME FOR BRINGING ACTION. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR REASONABLY RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, MAY BE BROUGHT BY CLIENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.
INDEMNITY.
1. Indemnity by Client. Client shall defend, at its own expense, and indemnify and hold Company and Company’s Related Parties harmless from and against any claim arising from: (a) a violation by Client or one or more of its Related Parties of Federal, state, or other laws or regulations; (b) work-related injury or death caused by Client or its Related Parties; (c) tangible personal or real property damage caused by Client or its Related Parties (except to the extent caused by Company and/or its Related Parties); (d) any claims brought by third parties against Company for infringement that is alleged to be related to intellectual property other than claims for which Company provides indemnification under Section 8.2 below; (e) any breach of this Agreement by Client or any violation by Client and/or any of its Related Parties of Company’s Acceptable Use Policy; and (f) any claims described in Section 4 of the Colocation Space Additional Terms and Conditions. Client shall be responsible for any costs and expenses incurred by Company in connection with the enforcement of this Section 8.1, including, but not limited to, reasonable attorneys’ fees.
2. Indemnity by Company. Company shall defend, at its own expense, and indemnify and hold Client and its Related Parties harmless from and against any claim arising from the Services or any claim that Company’s software used to provide the Services infringe upon any United States patent, copyright, United States trademark, or other proprietary right of a third party; provided, however, that Company shall not be obligated to indemnify Client (and/or any of Client’s Related Parties), if such claim is caused by or arises out of: (a) any intellectual property or materials provided by Client; (b) any designs, or directions provided by Client; (c) any software provided by an OEM or other third party; (d) Client’s or any of Client’s Related Parties’ use of the Services or software other than in accordance with applicable documentation or instructions supplied by Company; (e) any combination, alteration, modification or revision of the Services or software not expressly authorized in writing by Company; (f) Client’s or any of Client’s Related Parties’ failure to use or implement corrections or enhancements to the Services or software made available free of charge to Client by Company; (g) a violation by Client or any of Client’s Related Parties of Federal, state, or other laws or regulations; (h) work-related injury or death caused by Client or any of Client’s Related Parties; or (i) tangible personal or real property damage caused by Client or any of Client’s Related Parties. Company shall be responsible for any costs and expenses incurred by Client in connection with the enforcement of this Section 8.2, including, but not limited to, reasonable attorneys’ fees.
3. Indemnity Procedures. The indemnification obligations set forth in Sections 8.1 and 8.2 are subject to the following conditions:
  1. the indemnitee Party shall promptly notify the indemnifying Party in writing of the claim of which it has notice, provided that the failure or delay to so notify the indemnifying Party shall not relieve the indemnifying Party from any liability that it may have to the indemnitee Party hereunder so long as the failure or delay shall not have prejudiced the defense of such claim and then only to the extent that the indemnifying Party actually is prejudiced;
  2. the indemnitee Party allows the indemnifying Party to have sole control of the defense of the claim and any settlement negotiations arising out of that claim provided, however, the indemnifying Party may not, without the indemnitee Party’s prior written consent (such consent not to be unreasonably withheld, conditional or delayed), settle or compromise any claim in a manner that: (a) does not unconditionally release the indemnitee Party and its directors, officers, employees or agents or (b) requires the indemnitee Party or any of its directors, officers, employees or agents to contribute to any settlement of the claim; and
  3. the indemnitee Party shall, at the indemnifying Party’s reasonable request and expense, cooperate with the indemnifying Party. The indemnitee Party may participate in the defense and retain counsel of its own choice and expense.
DISPUTE RESOLUTION.
1. Equitable Relief. Either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by one Party of the provisions contained in Section 11 (Confidentiality) and/or Section 15.16(v) (Non-Solicitation of Related Parties) would cause irreparable harm to the other Party not adequately compensable by monetary damages. Thus, in addition to other relief, the Parties agree that temporary and permanent injunctive relief is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms. The prevailing Party in an action for injunctive relief under this Section shall be entitled to recover its costs of enforcement, including reasonable attorneys’ fees.
2. Party Representatives. Except for certain emergency judicial relief authorized in accordance with applicable law, or any claims by Company regarding Client’s failure to pay undisputed past due Service Fees and/or other undisputed amounts under Section 5, which may be brought at any time, the Parties agree that upon receipt of a written notice from either Party of the existence of a dispute between them, the Parties shall submit the dispute for informal resolution to their designated senior management who are not legal personnel. Any dispute remaining unresolved after a period of thirty (30) days after the receipt of such written notice of a dispute by the other Party may be submitted to any court having competent jurisdiction in accordance with Section 9.4.
3. Choice of Law. The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of the state of Michigan.
4. Venue and Jurisdiction. The Parties hereby irrevocably consent to venue and the personal jurisdiction (to the fullest extent permitted by applicable law) of the state and federal courts located in Oakland County, Michigan.
REPRESENTATIONS and WARRANTIES.
1. By Company.
  1. Authority and Validity. Company represents and warrants that: (a) it is an Entity existing and in good standing under applicable state law; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement; and (d) the entering into and performance of this Agreement will not violate any judgment, order, law, or regulation applicable to Company, or any provision of Company’s organizational documents.
  2. Services. Company represents and warrants that: (a) each of its employees or other personnel providing Services hereunder shall have commercially reasonable training, skill and background; (b) Company shall perform all Services hereunder in a professional and workmanlike manner consistent with industry standards and practices applicable to businesses rendering services of a similar nature to the Services; and (c) it shall comply with all applicable Federal, state and local laws and regulations applicable to the performance of the Services.
  3. Exception with Respect to Reliance on Data and Information Supplied by Client. Company will perform the Services set forth in this Agreement on the basis of data, information, and instructions furnished by Client. Company shall be entitled to rely upon any such data, information, or instructions provided by Client. If any error results from incorrect data, information, or instructions supplied by Client, Company shall not be liable for any damages or delays arising therefrom and Client shall be responsible for discovering and reporting such error and supplying the data, information, or instructions necessary to correct such error. Client is ultimately responsible for the adequacy and accuracy of all Client Data provided to Company by Client.
2. By Client. Client represents and warrants that: (a) Client is an Entity validly existing and in good standing under the laws applicable to it; (b) Client has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (c) no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement; (d) the entering into and performance of this Agreement will not violate any judgment, order, law, or regulation applicable to Client, or any provision of Client’s Articles of Incorporation, by-laws or similar document; and (e) there are no actions, suits, or proceedings pending, or to the knowledge of Client, threatened, before any court or administrative agency, arbitrator or governmental body which will, if determined adversely to Client, materially adversely affect its ability to perform its obligations under this Agreement or any related agreement to which it is a party.
3. Disclaimer of Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF COMPANY AND CLIENT, RESPECTIVELY, SET FORTH IN SECTIONS 10.1 AND 10.2 OF THIS AGREEMENT, COMPANY AND CLIENT, HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ENTIRELY FREE FROM ERROR OR DEFECT. COMPANY FURTHER DISCLAIMS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CLIENT ACKNOWLEDGES AND AGREES THAT CLOUD AND COLOCATION SPACE SERVICES ARE SUBJECT TO INHERENT INFRASTRUCTURE RISKS, NETWORK LATENCY, FIBER CUTS, AND THIRD-PARTY CONNECTIVITY FAILURES BEYOND COMPANY’S REASONABLE CONTROL.
CONFIDENTIALITY.
1. Nondisclosure of Confidential Information. All Confidential Information supplied by a Disclosing Party to the Receiving Party shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein, as may reasonably be required to perform the Services or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any third party any of the Disclosing Party’s Confidential Information. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its Related Parties who have a need to know it for the purposes of this Agreement and who have executed a written non-disclosure agreement containing terms substantially similar to this Section 11 regarding such Confidential Information. Each Party shall be responsible for any unauthorized use or disclosure of any of the other Party’s Confidential Information received by it and its Related Parties.
2. Required Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided, however, that in such event, to the extent permitted by applicable law, the Receiving Party shall promptly notify the Disclosing Party (to the extent legally permissible) and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense.
3. Explicitly-Included Information. Without limiting the generality of Confidential Information, Company’s information, including computer programs and software, documentation, methodologies, training aids and manuals, and procedures, belonging exclusively to Company shall be treated as Confidential Information and Client shall not disclose, sell, assign, lease, or otherwise make available any such information to any third party or entity, other than its employees who require such information to perform their duties, and shall remain the property of Company, eligible for reuse/resale.
4. Degree of Care. Each Party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event less than reasonable due diligence and reasonable care shall be exercised.
5. Survival. The obligations of each Party under this Section 11 shall survive the expiration or termination of this Agreement for a period of three (3) years; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations of this Section 11 shall survive indefinitely or for such longer period as such information retains its status as a trade secret. Upon the expiration or termination of this Agreement, or upon the written request of the Disclosing Party, the Receiving Party shall promptly return or certifiably destroy all Confidential Information of the Disclosing Party in its possession or control, including all copies, summaries, and derivative works thereof, and shall confirm such return or destruction in writing within fifteen (15) days of such request. Notwithstanding the foregoing, Company shall not be required to destroy or return Confidential Information that has been created pursuant to automatic, routine IT archiving, data backup, or disaster recovery procedures, provided that such retained copies are kept confidential in accordance with this Section 11 and deleted in the ordinary course of Company’s data retention cycles.
PROPRIETARY RIGHTS.
1. Client Data. As between the Parties, Client shall remain the sole and exclusive owner of all Client Data and other Confidential Information (as herein above defined) including passwords provided to Client. Following the provision of the applicable Services, Client shall be and remain responsible for changing any password provided to or provided by Company. Upon any termination or expiration of this Agreement, or earlier upon Client’s request, Company shall promptly, and at Client’s expense, provide to Client copies of Client Data in its possession or control, on media designated by Client, in the format on which it resides on the Company systems; provided, however, that Company’s obligation to return or provide copies of Client Data is strictly conditioned upon Client having paid all outstanding, undisputed invoices and fees due under this Agreement. Company will have no right to use the Client Data after the termination or expiration of this Agreement.
2. Use of Client Data. Subject to Company’s obligation in accordance with applicable law, Client Data shall not be: (i) used by Company other than in connection with providing the Services; (ii) disclosed, sold, assigned, leased, or otherwise provided to third parties by Company or its Related Parties, except to the extent required to perform the Services in accordance with the terms hereof; or (iii) commercially exploited by or on behalf of Company. Company shall not obscure or remove any notices or labels identifying the Client Data as Client’s property.
3. Company Knowhow. Client acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, methodologies, and similar related materials or processes, or any modifications thereof, provided by Company (the “Knowhow”), except with respect to Client’s use of the same during the Term as part of Client’s access and use of the Services. Any intellectual property developed by Company in the course of performance of this Agreement shall be the proprietary property of Company and shall be owned exclusively by Company, and Client shall receive a royalty-free, nonexclusive, irrevocable right and license to use such proprietary software during the term of this Agreement. Company shall retain sole and exclusive ownership of all proprietary materials developed by Company, but grants to Client a limited, non-exclusive, non-transferable, royalty-free license to use during the Term any such materials developed specifically for and at the request of Client and specifically noted as a deliverable in the applicable Executed Orders. Company shall own all scripts, methods, and processes developed for Client except to the extent the applicable Executed Order specifically identifies such script, process, or method to be specifically paid for by Client and owned by Client.
4. Client Equipment. Company acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, and similar related materials or processes, or any modifications thereof, provided by Client, except with respect to Company’s use of the same in providing the Services during the Term. Client shall, at Client’s sole cost, take whatever action is necessary for Company to be provided with nonexclusive rights and/or licenses to use software provided by Client for use by Company in providing the Services. To secure the prompt payment of all amounts due hereunder, Client hereby grants to Company a first-priority possessory lien and security interest in all Client-owned hardware, servers, and physical equipment located within the Company’s or its data center provider’s facilities. The security interest hereby granted shall be governed by the Uniform Commercial Code as adopted in Michigan. Client authorizes Company to file a Uniform Commercial Code Financing Statement in the appropriate office of the State of Michigan. Company reserves the right to deny Client physical access to the facility and to refuse the release of such hardware until all outstanding balances are paid in full.
5. Third Party Equipment. As part of the Services, Company may resell to Client certain third-party products, including hardware and software (collectively, the “Third Party Equipment”). Such Third-Party Equipment is non-refundable, even upon termination of the Agreement. Client acknowledges and agrees that Company is reselling such Third-Party Equipment and therefore neither provide any warranty related to nor assume any liability for such Third-Party Equipment. To the extent permitted by the Third-Party Equipment manufacturer, Company will pass through to Client the manufacturer’s warranties related to the Third-Party Equipment. Client’s subscription, purchase, enabling or use of Third-Party Equipment shall be deemed a confirmation of consent to the terms and conditions set out by the third-party supplier in relation hereto. Company shall not be liable for any claims or damages resulting from or caused by any unauthorized use of Third-Party Equipment by Client, including but not limited to Microsoft Software. A copy of the Microsoft End User License Terms has been attached hereto (Exhibit C) for Client’s benefit.
BUSINESS CONTINUITY.
1. Disaster Recovery. Except as set forth in an Executed Order, Client is responsible for all backup, nonstandard data protection, hotsite, disaster recovery and other similar services designed to protect Client’s systems, software or data.
2. Force Majeure. Notwithstanding any provision contained in this Agreement, neither Party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; utility provider blackouts, rolling brownouts, power grid failures, or utility capacity shortfalls; upstream telecommunications, fiber optic, or internet provider failures; third-party software exploits, zero-day vulnerabilities (defined as a software or hardware flaw exploited before an industry-recognized workaround is publicly available), or distributed denial of services (DDoS) attacks that exceed industry-standard mitigated capabilities on the capacity of standard commercial mitigation tools; federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not (each, a “Force Majeure Event”). This clause shall not apply to the payment of any sums due under this Agreement by either Party to the other.
3. Extended Interruption. If a Force Majeure Event completely prevents the delivery of the Services for a continuous period exceeding thirty (30) days, either Party may terminate the affected Executed Order immediately upon written notice to the other Party, without liability or penalty. Upon such termination, Client shall promptly pay Company for all Services rendered up to the date of the Force Majeure Event commenced.
SECURITY AND PRIVACY.
1. Transmission of Data. The expense and risk of loss associated with transportation and transmission of data and media between Company and Client shall be borne by Client. Client shall be responsible for submitting Client Data to Company and Company shall be responsible for transmitting the processed Client Data to Client.
2. Security Procedures. Company agrees that it shall establish and perform security procedures with respect to Client Data provided to Company by Client under the terms of this Agreement in accordance with accepted industry practices or processes, practices and procedures, which shall be no less comprehensive than those set forth in the security policies developed and enhanced by Company from time to time to maintain currency with technology security practices.
3. Additional Requirements under Applicable Law. If required by applicable law, Company shall implement additional procedures or other requirements, and the Parties agree that they will negotiate an equitable adjustment to the applicable Executed Order to compensate Company for additional costs it may incur thereby. Company further agrees that, if otherwise reasonably requested by Client or otherwise recommended by a third party auditor (but not required by law), that Company implement additional procedures or other security measures or requirements, then Company will implement, at Client’s cost and expense, and will assist Client and its third party contractors, as necessary, to implement, such additional procedures or other requirements, provided that such requests are reasonable, as determined by Company.
4. Physical and Logical Security.
  1. At Company Site. Company shall use commercially reasonable efforts to restrict logical access to equipment and/or media on Company’s site containing Client Data to authorized individuals as required in the applicable Executed Order. Company shall perform commercially reasonable measures to limit physical access to Client Data in its custody or control, which may include use of electronic access control, CCTV, and intrusion detection systems; implementing visitor entry control procedures; securing offices, rooms, and facilities; protecting against external and environmental threats; and controlling all access points including delivery and loading areas.
  2. At Client Site. Except as stated in an Executed Order, Client shall be responsible for using commercially reasonable efforts to restrict physical and logical access to equipment and/or media on Client’s site.
5. Software and Virus Protection. Each Party shall regularly review and update, as necessary, all software, firmware, firewalls and hardware used on such Party’s systems in accordance with industry practice. Each Party shall notify the other Party promptly in the event of becoming aware of the actual or potential transmission of any identified computer virus by such Party to the other Party. Each Party shall install and maintain commercially reasonable anti-virus software on its systems and update such anti-virus software on a regular basis in accordance with relevant industry practice.
6. Data Security Breaches. Company shall, within twenty-four (24) hours of discovery, notify Client of any Data Security Breach or any other unauthorized access, disclosure, acquisition, or use of the Client Data provided to it by Client or Client’s clients. As soon as possible thereafter, Company shall provide Client full details of the unauthorized access, disclosure, acquisition, and/or use. Company will cooperate with Client in a commercially reasonable manner to investigate the incident and will exert commercially reasonable efforts to (a) terminate the unauthorized access, disclosure, acquisition, and/or use and (b) prevent the reoccurrence thereof. Company shall provide reasonable assistance to Client to regain possession of and terminate any unauthorized access, disclosure, acquisition, and/or use of the Client Data. Company shall reasonably cooperate with Client in the conduct of any investigation of or litigation involving third parties related to said incident. Company shall assist and cooperate with Client concerning any disclosures to affected parties, government or regulatory bodies, and other remedial measures as reasonably requested by Client or as required under any applicable privacy or data protection law. Subject to Section 7.1 and Section 7.2 above, the extent the Data Security Breach was caused by Company’s negligence or fault, Company shall discharge the responsibilities caused by its negligence or fault at Company’s cost and expense.
MISCELLANEOUS.
1. Entire Agreement. This Agreement and its Exhibits, together with the Executed Orders entered into hereunder and Company’s Acceptable Use Policy and Service Level Agreement located at www.libertycenterone.com and incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings, whether written or oral, between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing referencing this Agreement and executed by the Parties or their permitted assignees. Notwithstanding anything to the contrary, any additional purchase orders provided by Client hereunder shall have no cause and effect other than for the price and quantity set forth therein.
2. References. In this Agreement, “include” and “including” shall mean respectively, “includes, without limitation” and “including, without limitation.”
3. Interpretation. In the event of a conflict between this Agreement and the terms of any amendment or Executed Order, the terms shall be controlling in this order: (a) amendment(s) in reverse chronological order, but solely with respect to the subject matter of such amendments, (b) this Agreement and (c) each Executed Order, provided, however, that an Executed Order shall control to the extent the Parties explicitly reference this Section of the Agreement by title (i.e. “Interpretation” or “Section 15.3”) in such Executed Order that the Executed Order shall control over this Agreement in such instance.
4. Assignment. Except as otherwise set forth by the applicable OEM terms or end user license agreements, neither Party may assign this Agreement or any rights, obligations, or benefits under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that either Party may freely assign this Agreement without the prior written consent of the other Party (a) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets, stock, or securities, or (b) to any Entity which is a successor to all or substantially all of the assets or the business of the applicable Party, provided that in the case of an assignment by Client, the assignee is not a direct competitor of Company. Any assignment in contravention of this Section 15.4 shall be void. This Agreement shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns. No third party shall be considered a beneficiary of this Agreement or entitled to any rights under this Agreement.
5. Relationship of Parties. The Parties intend to create an independent contractor relationship, and nothing contained in this Agreement shall be construed to make either Client or Company joint venturers, principals, partners, agents, or employees of the other. No officer, director, employee, agent, affiliate, or contractor retained by Company to perform work on Client’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Client. Neither Party shall have any right, power or authority, express or implied, to bind the other. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state, and local personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies, or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees.
6. Notices. Except as otherwise specified in the Agreement, all notices, requests, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; (b), U.S. express mail, or other, similar overnight courier service to the address of the other Party first written above; or (c) electronic mail to Company at info@libertycenterone.com and Client email address of record. Client is reminded that no computer network can ever be considered completely safe from intrusion. E-mail may pass through many computer systems, and should not be considered a secure means of communication unless encrypted – and even encrypted information is only as secure as the encryption method utilized. Notices shall be deemed given on the day actually received by the Party to whom the notice is addressed. Notices to Client shall be given to Client at the most recent address available to Company.
  Notices to Company shall be given as follows:
  One Cloud Services LLC,
  4815 Delemere Ave
  Royal Oak, MI 48073 Attn: Legal Department
7. Publicity. Neither Party shall be entitled to use the other Party’s name and/or tradename(s) in promotional or marketing materials, or on any listing of its Clients, partners, vendors, and/or business affiliations, including but not limited to press releases or other public statements regarding the relationship between the Parties or this Agreement without the prior written consent of the other Party. Any such publicity shall not negatively impact or reflect upon such other Party or reveal any proprietary information of such other Party.
8. Section Headings. Section headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement nor be construed as part of this Agreement.
9. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original document, but all such counterparts together shall constitute one binding agreement.
10. Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the Party waiving its rights.
11. Severability. If any provision of this Agreement is held for any reason by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect and the provision found to be contrary to law shall be deemed modified to the most limited extent required in order to cause such provision to be in accordance with applicable law while most fully carrying out the intent of the applicable provision as set forth herein.
12. Survival. Any Section of this Agreement shall survive to the extent required for the performance of such provision in accordance with the terms hereof.
13. No Third Party Beneficiaries. Each Party intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of, any person or entity other than the Client and Company.
14. Construction. Company and Client each acknowledge that the limitations and exclusions contained in this Agreement have been the subject of active and complete negotiation between the Parties and represent the Parties’ agreement based upon the level of risk to Client and Company associated with their respective obligations under this Agreement and the payments to be made to Company and the charges to be incurred by Company pursuant to this Agreement. The Parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against either Party by reason of the extent to which either Party or its professional advisors participated in the preparation of this document. For the avoidance of doubt, Client agrees that the terms set forth in this Agreement constitute reasonable terms applicable to each Executed Order entered into by the Parties.
15. Insurance. Each Party shall maintain a “Commercial General Liability Insurance” policy with limits of not less than $1,000,000 each occurrence, $2,000,000 general aggregate covering injuries or damage to any person or property which results from their operations or activities under this Agreement. Prior to accessing the facilities and at such times thereafter as Company may reasonably request, Client will furnish Company with certificates of insurance which evidence the minimum levels of insurance set forth herein. Failure by Client to timely provide Company with such certificate shall entitle Company to prohibit Client’s access to the facilities until such certificate has been furnished to Company. Client shall maintain property/casualty insurance with limits not less than the replacement value of any Client equipment or assets in the facilities, or under the control, of Company, covering damage to any such equipment or assets. Company shall also maintain a “Professional Liability” insurance policy to cover its errors and omissions with limits of not less than $1,000,000 each occurrence/claim, $2,000,000 in the aggregate. If Company will be conducting any of its activities onsite at a Client location, Company shall also maintain the following coverage: (A) “Workers’ Compensation Insurance” to fully comply with all applicable laws of the state(s) where such work or services is to be performed; (B) “Employer’s Liability Insurance” with a limit of not less than $1,000,000 each accident; and (C) “Automobile Liability Insurance” covering all owned, non-owned and hired automobiles with a combined single limit of not less than $1,000,000 each accident. Insurance procured by Company shall be with an insurer with an AM Best rating of at least A- IX or AM Best equivalent in foreign jurisdictions.
16. Non-Solicitation of Related Parties. During the Term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement or the last applicable Executed Order, whichever is later (the “Restricted Period“), neither Party shall, directly or indirectly, solicit, recruit, induce, or encourage any Related Party of the other Party who was directly involved in the performance or receipt of the Services under this Agreement to terminate their employment or engagement with such other Party, or to accept employment or an engagement with the soliciting Party or any of its Related Parties. Notwithstanding the foregoing, the restrictions of this Section 15.16 shall not apply to: (a) general solicitations of employment not specifically targeted at the other Party’s personnel, including advertisements, job postings, or recruitment campaigns directed at the general public or a broad industry audience; (b) any individual who, without any direct or indirect solicitation, encouragement, or inducement by the hiring Party, independently and voluntarily initiates contact with the hiring Party seeking employment or engagement; or (c) any individual whose employment or engagement with the other Party has been terminated for at least ninety (90) days prior to any such solicitation or hiring.

Exhibit A – Colocation Space Additional Terms and Conditions
Exhibit B – Colocation Space Operating Restrictions
Exhibit C – MS EULT file into PDF format

Exhibit A

Colocation Space Additional Terms and Conditions

This Addendum is attached to and made part of the One Cloud Services Master Services Agreement (the “Agreement”) and the terms hereof are incorporated therein by reference and are applicable when Client orders Colocation Space Services. This Addendum shall become effective on the date of the original Agreement between the Parties. Capitalized terms that are not defined herein shall have the meaning set forth in the Agreement.

Rights and Obligations: The Client is responsible for all necessary preparations for installation of equipment and provision of services that are not expressly the responsibility of the Company as stated on the Executed Order. The Company requires access to all areas within the Company’s facilities, including the Client’s physical environment (including individual locked racks and cages) during normal business hours and during non-business hours or at any time as may be required by the Company without notice to perform its Services to the Client. The Client will not permit any use of Services or equipment provided by the Company that is illegal or unlawful, or that will harass other users, infringe on other user’s rights or constitute abuse of said equipment or services. It is the Client’s sole responsibility to deal with, and Client will take all steps necessary or desirable to prevent any repercussions, loss or liability to The Company or any breach of this Agreement. Client and its employees, Affiliates and guests will adhere to the Colocation Space Operating Restrictions in Exhibit B. All users as authorized by Client will be required to agree to the terms of the Colocation Space Operating Restrictions.
Service Term. The Service Term begins when the Company has provided Client access to the data room and when the Client’s environment has been successfully tested for power and, when applicable, Internet connectivity regardless of the state or suitability of any Client premises or Third-Party Equipment or services. The Service Term will end by the length of the term indicated on the Executed Order. The Company will not activate equipment or begin providing Internet-related services without payment in full of all installation charges as specified on the Executed Order. Unless specified on the Executed Order, all installation fees are payable prior to installation
Service Changes. Client may upgrade Services at any time (e.g. add power circuits or racks, increase the Committed Data Rate or order additional IP addresses or any other Services that the parties may agree to). Except for routine, pre-defined resource scaling requested through Company’s designated ticketing system as set forth in Section 4.1 of the Agreement, the Company must approve any service changes in writing at least thirty (30) days in advance of the desired change. Commencing on the anniversary date of the commencement of the initial Service Term (as defined in Section 2 of this Exhibit) and continuing on each anniversary date and any extension thereof, the Monthly Recurring Cost (MRC) may increase at a rate not to exceed the rate of annual change in the Consumer Price Index as reported by the U.S. Bureau of Labor Statistics. Company will provide Client notice 30 days in advance in the event that a change to the MRC is made for the next 12-month billing period.
Equipment and Software: Client will not attempt to connect or use equipment, services or software deemed unsuitable for the data room environment by the Company (e.g. laser printers, lead batteries, power tools, etc.). The Company is not responsible for any installation, maintenance, compatibility, or performance of any equipment, service or software unless expressly stated and described in this Agreement. Client agrees to indemnify the Company, its members, managers, affiliates, directors, officers, employees, agents and contractors against and holds them harmless from any loss, cost, damage, expense or liability related to or arising from, in whole or in part, any use of Third-Party Equipment, service or software. If the Client connects any third-party software, service or equipment to or uses same in conjunction with the Company’s network or service that impairs the Company’s network, equipment or service, the Client will be and remain liable for payment of charges hereunder and may be required by the Company to remove or eliminate any such software, service or equipment. The Client is solely responsible for the payment of and will pay any licensing, royalty, maintenance or other third-party fees required to utilize the Company’s services, equipment or software. The Client is responsible for the loss of or damage to its equipment, service and/or software. As such, the Client will carry adequate insurance to compensate it for the loss of or damage to such equipment, service and/or software and the reinstallation of same.
Use of Facilities. Client will have the use of the data room(s) at the Company’s facility, 24 hours per day, 7 days per week. Client shall designate an individual who will approve all requests for data center access by employees, vendors, guest or Affiliates. The Company will not allow data center access without such authorization. All individuals with approved access to the data center shall observe the Company’s Operating Restrictions. Client will be responsible for the actions of its employees, guests, vendors or Affiliates. Client is responsible for notifying the Company immediately if anyone issued access to the data center should have their access terminated. De-activated cards not returned to the Company are subject to a $25 fee. Notwithstanding the foregoing, the Company reserves the right to immediately deny facility access to any individual who violates the Company’s Operating Restrictions, poses a physical security threat, or is suspected of tampering with infrastructure or equipment belonging to the Company or other clients.
Termination of Service. The Company may suspend or terminate service: (i) in the event of Client Breach (as defined in section 6.4 of the Agreement) or Client’s violation of the Colocation Space Operating Restrictions (Exhibit B) or the Client Access Policies (libertycenterone.com access policies link), or (ii) to address any behavior that the Company, in its sole judgment, deems to be illegal or to protect the Company from possible liability, cost or expense. Subject to the immediate emergency suspension rights reserved by Company in Section 6.4 of the Agreement, Client shall be given written notice of any breach and provided 10 days to cure said breach prior to the Company taking any action restricting services identified in the Executed Order. The Company is permitted to revise or amend the Operating Restrictions, from time to time, and will provide Client with 30 days written notice prior to the effective date of the revision and any such revision or amendment will be automatically incorporated herein as revised or amended. The Company will not be liable or responsible to Client or third parties for any loss, cost, expense or liability occasioned by or as a result, in whole or in part, of any such suspension or termination.

Exhibit B

Colocation Space Operating Restrictions

This Addendum is attached to and made part of the One Cloud Services Master Services Agreement (the “Agreement”) and the terms hereof are incorporated therein by reference and are applicable only when Client orders Colocation Space Services. This Addendum shall become effective on the date of the original Agreement between the Parties. Capitalized terms that are not defined herein shall have the meaning set forth in the Agreement.

No smoking, lighting of matches, use of lighters or any flame whatsoever is permitted anywhere inside the Company’s premises.
No drugs, alcohol or firearms are permitted on the Company’s premises.
Clients shall only access racks or cages containing their own equipment.
No Client or visitor shall touch or attempt to access in any way any equipment or devices that do not belong to them. This includes all infrastructure and utility equipment in the Data Rooms, the electrical room, closets, security systems, etc.
Data Rooms are open for Client to gain physical access to Client equipment only. It is not to be used as office space, meeting space or for personal reasons. No unescorted visitors are allowed in the Data Rooms. Every person entering the Data Rooms must read and agree to adhere to the Operating Restrictions.
No liquids or foods of any kind are allowed in the Data Rooms. This includes water.
No paper, cardboard, Styrofoam, or any other material that can create dust particles is allowed in the Data Rooms.
All packing material must be removed from computer equipment/components in the staging area(s) specified by Company management before equipment can be moved into the Data Rooms.
All boxes must be crushed and folded before putting them into the dumpster.
No materials, parts, or components of any kind may be stored in the Data Rooms.
ID must be worn above the waist and visible at all times.
Do not leave propped open unattended at any time. Please ensure that doors are closed at all times.
No cleaning supplies are allowed in the Data Rooms without written approval from Company management.
No hazardous or corrosive materials are allowed in the Data Rooms.
Client agrees not to use more than the power specified in Client’s Executed Order. Client must not install any power generating (e.g. battery) equipment to the power supply. Should Client overload a circuit and trip a breaker, Company will charge a $300 reconnect fee and reserves the right to inspect the equipment prior to reconnection
Only HEPA filter vacuums may be used inside the Data Rooms and require written permission from Company management prior to use.
No construction of any kind shall be performed inside the Data Rooms without written permission and specified scheduling from Company management.
Client agrees not to run cross-connects without written permission from Company.
Client will communicate any problems to the Company operations staff as soon as the problem is detected. Client will report any suspicious activity to Company operations staff.
In the event of an emergency, clients will notify Company operations staff immediately.
Data Rooms are protected by an FM-200 chemical agent fire suppression system. The fire/smoke detection sensors are extremely sensitive and will trigger when sensing any smoke, debris or even dust. For this reason, no sawing, cutting or cardboard is allowed in the data center. In the event smoke is detected by the fire control system:
1. An initial alarm will sound indicating that smoke has been detected. This is distinguished by a series of long tones.
2. A second alarm of short tones will sound indicating that the FM-200 system is about to release the agent within 30 seconds. In the event of a fire, exit the building immediately.
3. If there is a false alarm and the second alarm sounds, you can deactivate the FM-200 system by pushing and holding the Yellow button adjacent to the main data room entrance. You must keep the Yellow button depressed until the Fire Department or an authorized individual arrives to manually stop the FM-200 agent from discharging. The Fire Department is dispatched immediately at the initial alarm stage.
4. If you see a fire but the system does not activate, you can manually activate the system by using red fire alarm box.
Note: If you activate the FM-200 system for any reason other than a fire you will be held accountable for any damage and costs incurred.

Signing this form, accepting an identification card and submitting to a fingerprint for the biometric device, indicates your agreement to the Operating Restrictions as they may exist at the time of your use.

Any violation of these Restrictions will result in an investigation and possible eviction as per agreement between the Client and the Company.

I have read, understand and agree to adhere to the Colocation Space Operating Restrictions

Signature: ______________

Printed Name: ______________

Client Name: ______________

Date: ______________

Driver’s license/ID number (state): ______________

END USER LICENSE TERMS

TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE

This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by One Cloud Services, LLC (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.

DEFINITIONS.
“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.

“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.

“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.

“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.

“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.
OWNERSHIP OF PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution Software”). You may use, copy and/or install the Redistribution Software only in accordance with the terns of your agreement with Customer and this document and/or your agreement with Customer.

COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
PRODUCT SUPPORT. Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
NOT FAULT TOLERANT. The Products are not fault- tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
INFORMATION DISCLOSURE. You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.

MASTER SERVICES AGREEMENT

END USER LICENSE TERMS

TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE

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