Master Services Agreement (MSA)
This Master Services Agreement (MSA) is executed between the Client and Phoenix NAP, LLC (PNAP). This MSA is accompanied by the following addenda:
- Privacy Shield-Compliant Policy (PP)
- Colo Service Addendum (CSA)
- Hardware as a Service Addendum (HaaS)
- Managed Service Addendum (MS)
- Service Level Agreement Addendum (SLA)
- Bare Metal Addendum (BMA)
- Security Service Addendum (SSA)
- Cloud Enterprise Addendum (CEM)
- Contracting Party Addendum (CPA)
- PCI DSS Addendum
- Acceptable Use Policy (AUP)
The MSA and these addenda govern services that PNAP provides, and define the terms of the basic MSA between Client and PNAP. PNAP offers many services, some of which require auxiliary agreements. These documents provide the fundamental terms for each respective service, and/or any additional services that Client would like PNAP to provide. Some addenda may not be applicable to all Client engagements but are included for reference for future services. Client may locate these addenda at https://www.phoenixnap.com/cs/legal for review.
Client accepts this MSA by clicking or checking an acceptance option provided on our web site, electronically signing an order form or addendum, or installing and using any of the provided services or products. By accepting these services Client is agreeing that:
- Client accepts the MSA entirely as it relates to the services Client is requesting.
- Client agrees that Client is bound by the MSA.
- This MSA, the SOW, PP, SLA, CPA, RM and AUP are binding and enforceable obligations.
If Client does not agree with any of these statements, Client SHOULD NOT sign, click or check acceptance options, install, or use any services.
3. Fees, Billing, and Payment Terms
- Client agrees to pay all undisputed fees, costs, and charges as outlined in this MSA and the Client Service Order Form (SOF) for services provided to Client during the term of this MSA. PNAP will provide Client with the services listed on the SOF and gives Client a license to use and occupy the Client services/Area for permitted purposes.
- Additional services and/or space in the facility are available, for a fee; these additions, if any, shall be recorded in a new SOF or a Change Order.
- PNAP will bill Client monthly by sending Client an invoice. Payment for non-recurring charges is due, in full and in advance of the Commencement Date. Other monthly recurring charges and fees on the invoice must be paid within 30 (thirty) days of Client's receipt of the invoice. For Bare Metal Cloud (BMC) services specifically, Client must pay the invoice within three (3) days from service provisioning. In the event Client does not make payment within the prescribed three (3) days, Client account for BMC services will be suspended. Failure to make payment within the subsequent three (3) days, will result in Client’s account for BMC services being deleted in its entirety.
- Client must dispute an error to PNAP, in writing, within 30 (thirty) days of the receipt of the invoice. Undisputed fees still must be paid on time.
- PNAP only accepts US Dollars for payment. Payment may be made via check or money order mailed to our address (at the end of this document), or may be made by any electronic method made available in the control panel.
- Delinquent payments can harm Client credit with PNAP, and PNAP may require Client payment terms to be modified—possibly requiring a security deposit (initially or an increase to), automatic payments, or payments prior to provisioning.
- If a security deposit is required, PNAP stores the funds in our general account. PNAP does not pay interest on security deposits, and PNAP only draw on the funds if Client becomes past due in an obligation to PNAP. Client will need to replenish the security deposit promptly if PNAP has to draw against it. PNAP will refund the security deposit to Client within 60 (sixty) days of the termination of the MSA with each other as long as Client's account is paid in full.
- Occasionally, a utility provider might change the amounts that they charge PNAP for power delivery, resulting an increased cost for power delivery that is passed on to Client. PNAP will use commercially reasonable efforts to inform Client of the increase in utility charges.
- PNAP may provide third party software solutions to Client. In the event a 3rd party software solution provider changes the amounts that they charge PNAP, resulting in increased cost for such software, PNAP will pass this increase cost on to Client.
- If Client orders something from PNAP that requires a cost or expense to be incurred by PNAP and Client pre-approved those expenses or those expenses are otherwise specified in this MSA, Client will be required to reimburse PNAP for those expenses or costs. PNAP will issue and invoice to Client in the subsequent billing cycle for any such reimbursement.
- If PNAP or Client dispute any aspect of this MSA and litigation is initiated, the prevailing party will be entitled to reasonable attorney's fees and costs incurred by it in connection with the legal process. Collection fees incurred by PNAP are included in this provision.
- License fees may change from time to time and fee increases are effective after the end of each term on the (yearly) anniversary of the date PNAP started billing Client as provided on the SOW.
- An Early Termination Fee (ETF) equal to seventy-five percent (75%) of the remaining contractual balance shall be assessed to Client in the event Client chooses early termination.
4. Term and Termination
- This entire MSA is effective for the duration of the initial term listed on Client SOF and any subsequent renewal terms.
- The Commencement Date listed on the SOF is the date that the initial term begins. If services are not delivered to Client, for any reason, by the Commencement Date, the date of delivery of services becomes the new Commencement Date.
- If Client orders multiple services contained on one SOF, those items may be delivered on different dates. In this instance the Commencement Date is the actual date of delivery of each specific item, which can result in multiple Commencement Dates on one SOF. Such changes may or may not result in adjustments to License Fees or other charges. Upon mutual agreement, cessation of services provided under varied commencement dates shall be co-terminus.
- This MSA shall be in force for the initial term from the commencement date as provided in the Service Order Form (SOF) and any subsequent renewal term(s). Either party will have the right to terminate this MSA by giving at least thirty (30) days’ written notice to the other party to terminate the MSA at the end of the then current term.
5. Default Events and Remedies
- The following events by Client will cause a default:
- Failure to pay undisputed fees or other amounts due under this MSA.
- Client becomes insolvent, has a negative tangible net worth, admits in writing that Client is unable to pay Client's debts when they are due, files a bankruptcy petition to take advantage of any insolvency statute, make assignment for the benefit of creditors, makes a fraudulent transfer, applies for or consent to the appointment of a receiver of itself or of the whole or any substantial part of its property, files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any individual state.
- A court enters an order, judgement, or decree adjudicating Client as bankrupt or appointing a receiver of Client's whole or a substantial part of Client's property without Client's consent, or approving a petition filed against Client seeking reorganization or arrangement of Client's company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within thirty (30) days of entry.
- Client's use of client area or the PNAP facility threatens the availability, resiliency, and/or routine operations of the facility in PNAP's reasonable discretion.
- Client fails to perform any material obligation under this license within thirty (30) days of notification of nonperformance from PNAP.
- The following remedies are available to PNAP in the occurrence of a default (or at any time thereafter without further notice or demand). These remedies can be exercised concurrently, alternatively, or in succession:
- Suspension of some or all of the services PNAP provides to Client.
- Termination of this MSA and Client's right to possession of Client Area; exclusive possession is returned to PNAP.
- Recover accrued and unpaid license fees and damages arising from Client's breach of the license, as well as any applicable late charges and interest in the case of Clients’ failure to pay amounts due. The interest rate is eighteen percent (18%) per year or the highest rate allowed by law, whichever is less.
- Placing and enforcing a lien on Client's property located in the Client area.
- Recovering all reasonable attorneys' fees and other expenses that PNAP incurs while enforcing this MSA, recovering a possession, and collecting amounts owed when PNAP is the prevailing party in any suit or proceeding.
- Pursuing of any other remedies available by law or in equity.
- The following events by PNAP will cause a default:
- Breach of any material term or condition of this MSA. Client must notify PNAP in writing of any breach and PNAP has 30 days from receipt of notice to cure the breach.
- PNAP becomes insolvent, has a negative tangible net worth, admits in writing that PNAP is unable to pay its debts when they are due, files a bankruptcy petition to take advantage of any insolvency statute, make assignment for the benefit of creditors, makes a fraudulent transfer, applies for or consent to the appointment of a receiver of itself or of the whole or any substantial part of its property, files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any individual state.
- A court enters an order, judgement, or decree adjudicating PNAP as bankrupt or appointing a receiver of PNAP’s whole or a substantial part of PNAP’s property PNAP’s without consent, or approving a petition filed against PNAP seeking reorganization or arrangement of PNAP’s company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within thirty (30) days of entry
- The following remedies are available to Client in the event of a default by PNAP, provided that all amounts due in accordance with Client MSA are paid:
- Removal of equipment, materials, or other property owned by Client from the facility. Removal is required within ten business days of termination and Client must leave the Client Area in the same condition it was in on Client installation date (normal wear and tear excepted). Failure to remove said property within ten business days will result in PNAP moving Client property to storage and charging Client the actual cost of removal, storage. Client waives any statutory notices, if any, to vacate or quit Client Area upon expiration or termination of this MSA.
- Return of any un-used fees prepaid by Client and not used by PNAP, including but not limited to, a pro-rata portion of the most recently paid License Fees, costs, and charges for the remaining days of the term month.
- Recovering all reasonable attorneys' fees and other expenses that Client incurs while enforcing this MSA when Client is the prevailing party in any suit or proceeding.
- Recovering from PNAP any and all reasonable direct damages a breach causes Client.
- Pursuing of any other remedies available by law or in equity.
- Holding Over
- Client has no right to hold over after this MSA expires or terminates without our consent. If Client holds over after this MSA expires, Client become a month-to-month Client subject to all of the terms of this MSA, but the License Fees will be increased to one hundred fifty percent (150%) of Client's most recent license fees for ninety (90) days, and increased to two hundred percent (200%) of the same on the ninety first (91st) day, OR the fair market value of the Client Area on the date of expiration (computed using recently executed MSAs for space and related services in the same or similar facility). This provision is not a waiver by PNAP of any right to re-entry, and acceptance of License Fees by PNAP (or any affirmation of tenancy) does not waive our right to terminate the MSA for a breach of any terms, covenants, or obligations of Clients. So long as Client removes its equipment, materials, and other property from the Client Area within ten (10) business days of expiration or termination, Client shall not be deemed to be holding over under this provision.
- Some of the rights and obligations of both Client and PNAP will survive the expiration of this MSA, including, but not limited to, provisions related to security deposits (Section 3(G)), taxes (Section K of General Provisions), dispute resolution and costs (Sections A, H, & L of General Provisions), remedies (Section 5), confidentiality (Section M of General Provisions), and other general provisions.
- By Client.
Client will keep in force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage; (ii) employer's liability insurance in an amount not less than $1 million per occurrence; and (iii) workers' compensation insurance in an amount not less than that required by Law. Client shall insure the Client Equipment. Client also agrees that it and its agents (including contractors and subcontractors) will maintain other insurance at levels no less than those required by Law and customary in Client's and its agents' industries. PNAP may reasonably request, Client will furnish PNAP with certificates of insurance which evidence the minimum levels of insurance set forth herein, name PNAP as an additional insured, and include a waiver of subrogation by the insurer with respect to PNAP and its affiliates, members, managers, shareholders, officers, directors and employees. All liability insurance policies shall be written on an “occurrence” policy form. Client, as a material part of the consideration to PNAP, hereby assumes all risk of damage to property or injury to persons, in, upon, or about the Client Area from any cause, and Client hereby waives all claims in respect thereof against PNAP, unless caused by gross negligence or willful action of PNAP, its agents or employees. PNAP shall not be liable for loss of or damage to any property by theft or otherwise, or for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water or rain which may leak from any part of any building or from the pipes, appliances or plumbing works therein, or from the roof, street or subsurface, or from any other place resulting from dampness or any other cause whatsoever. Client shall give immediate notice to PNAP of any fire, accident or defect discovered with the Client Area or the Data Center. Client acknowledges that it can protect itself against any or all of the foregoing risks by procuring appropriate insurance.
- By PNAP.
Operator will keep in force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage; cyber security and/or cyber liability insurance in an amount not less than $10 million per occurrence and (iii) employer’s liability insurance in an amount required by Law. PNAP will furnish Client with certificates of insurance which evidence the minimum levels of insurance set forth herein upon request
- Governing Law, Lawsuits
This MSA is governed by the laws in the state of Arizona, Maricopa County, exclusive of any Arizona choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The state or federal courts in Maricopa County, Arizona are the exclusive venue for any disputes arising from this MSA and neither party shall bring an action in any other venue. Client may not dispute personal jurisdiction or venue in these courts.
- Disclaimer of Warranties
- Client's use of the site and services is at Client's own discretion and risk.
- Site and services are provided "as-is" with no warranties or conditions, statutory or otherwise, of any kind, including, but not limited to, implied warranties of title, merchantability, and fitness for a particular purpose.
- PNAP does not warrant that the service will meet Client's specific business requirements, or that the operation of the services(s) will be timely, uninterrupted, without risk, secure, or error-free or that any defects will be corrected to standards of Client.
- PNAP does not warrant or make any representations or conditions about the results of the use of the service in terms of accuracy, reliability, timeliness, completeness, or otherwise.
- Client assumes total responsibility for Client (and Client's end-users') use of the services.
- Disclaimer of Consequential Damages
EXCEPT AS REQUIRED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF EITHER PARTY IS FOUND TO BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGE OR LOSS ARISING UNDER THIS MSA OR IN CONNECTION WITH THE SERVICES, TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO ITS LIABILITY.
- Maximum Liability
In consideration of each party’s performance under this MSA and with exception to anything contrary in the addendums to this document and/or the SOF, SOW, or RM, Client agrees to the following:
- Recourse against either party’s successors is limited to the maximum aggregated liability which cannot exceed the total amount actually paid by Client to PNAP during the six (6) months immediately preceding the month in which the claim arises.
- Except in cases if willful misconduct or gross negligence, PNAP will have no liability at all for claims, losses, actions, damages, suits, or proceedings resulting from our efforts to address or mitigate the following: security breaches (including, but not limited to, eavesdropping), third party access to Client data or assigned computers, third party access or misuse of passwords provided to PNAP, the interception of sent or received traffic, relicense or exposure for other reasons of personally identifiable information or private data (including that of Client's own Clients and of other users), denial of service attacks, viruses, worms and other third party interference, loss of data or access to data, actions of third parties, including without limitation agents or contractors of PNAP, actions of PNAP employees outside of the scope of their employment, mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or other failures of performance.
- Allocation of Liability
The Disclaimer of Warranties (Section B of the General Provisions), Disclaimer of consequential damages (Section C of the General Provisions), and limitations of liability (Section D of the General Provisions) in this and other provisions of this MSA and the allocation of risk are essential elements of the bargain between the parties and without this PNAP the parties would not enter into the MSA. The pricing of the products and services reflects the allocation of risk and these limitations.
Limitations in this MSA apply to any and all claims and causes of action regardless of whether in contract, tort, strict liability, or other theory.
- Basis of the Bargain; Failure of Essential Purpose
Each party acknowledges that PNAP has set its prices and each party enters into this MSA by relying on the limitations of liability and disclaimers of warranties and damages (Sections B-D of the General Provisions) listed in this MSA, making this an essential basis for the bargain between Client and PNAP. Client and PNAP both agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this MSA will survive and apply even if they are found to have failed in their essential purpose.
1. Client agrees to indemnify, defend, and hold harmless PNAP and its parents, affiliates, licensors, and providers of third party services through PNAP (as well as their directors, officers, employees, contractors, agents, successors, and assigns (collectively “thePNAP Parties”) from and against any and all liability (including without limiting all attorneys' fees and costs), incurred by the Parties in connection with actual or alleged claims arising from any of the following:
- Client's use or misuse of the services or third party services; including software.
- Client's breach of this MSA.
- Client's, or Client's end-customers', breach or alleged breach of the rights of any third party's rights in connection with their use of the services under this MSA, including without limiting, actual or alleged infringement or misappropriation of a copyright, trade secret, patent, trademark, privacy, publication, or other proprietary right.
- Violation of non-compliance by Client, or Client's end customer, with any law, court order, rule, or regulation in any jurisdiction.
- Any counsel Client selects for defense or settlement of a claim must be approved in writing, in advance, by PNAP prior to the engagement of the counsel to representthe PNAP Parties which approval shall not be unreasonably denied, delayed or conditioned.
- Client may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of PNAP or The PNAP Parties without the prior written consent of PNAP or the applicable PNAP Party. Client and Client's counsel will cooperate as fully as Client is reasonably required to provide information reasonably requested by PNAP or the PNAP Parties in the defense or settlement of any related matter.
- Assertion of transfer of employment relationship claims made against PNAP under EU Directive 2001/23/EC or similar by one of Client's employees or a contracted third party providing contractual services prior to the start date.
2. PNAP agrees to indemnify, defend, and hold harmless Client and its affiliates and their respective directors, officers, employees, contractors, agents, successors, and assigns, and end customers (collectively “the Client Parties”)) from and against any and all liability (including without limiting all attorneys' fees and costs), incurred by the Client Parties in connection with third-party claims to the extent such claims arise from any of the following:
- PNAP's breach of this MSA.
- PNAP’s or any of PNAP’s employees, agents, or contractors, breach of the rights of any third party's rights, including without limiting, actual or alleged infringement or misappropriation of a copyright, trade secret, patent, trademark, privacy, publication, or other proprietary right in connection with the provision of services under this MSA.
- Violation or non-compliance by PNAP, or any of PNAP’s employees, agents, or contractors, with any law, court order, rule, or regulation in any jurisdiction.
- Any counsel PNAP selects for defense or settlement of a claim must be approved in writing in advance by Client prior to the engagement of the counsel to represent the Client Parties, which approval shall not be unreasonably denied, delayed or conditioned.
PNAP may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of Client or the Client Parties without the prior written consent of Client or the applicable Client Party. PNAP and PNAP's counsel will cooperate as fully as PNAP is reasonably required to provide information reasonably requested by Client or the Client Parties in the defense or settlement of any related matter.
- HIPAA Compliance
Client is responsible for informing PNAP in writing if (i) Client is a Covered Entity or Business Associate (both as defined in the Health Insurance Portability Act of 1996 (“HIPAA”)); and Client Data includes Protected Health Information (“PHI”) as defined in HIPAA. If Client notifies PNAP that it is a Covered Entity or Business Associate and that Client Data includes PHI, and PNAP determined that, based on such notification, it is considered a Business Associate, then the parties will execute PNAP’s Business Associate MSA. If Client does not so notify PNAP, PNAP will have no obligation to provide the contracted services in compliance with HIPAA.
PNAP is an ISP (Internet Service Provider) under the DMCA (Digital Millennium Copyright Act). Clients are expected to comply with the DMCA. PNAP follows the notification and takedown procedures set forth in the U.S.C 17 Section 512 DMCA and may block access to, or terminate any or all services provided under this MSA for repeat infringers.
- GDPR Compliance
PNAP needs to gather and use certain information about individuals. This information can include customers, suppliers, business contacts, employees and other people the organization has a relationship with or may need to contact. PNAP’s General Data Protection Regulation (GDPR) – Compliant Data protection Policy describes how this personal data must be collected, handled and stored to meet the company’s data protection standards – and to comply with the law.
This data protection policy ensures PNAP:
- Complies with data protection law and follows good practice
- Protects the rights of staff, customers, and partners
- Is transparent about how it stores and processes individuals personal data
- Protects itself from the risk of a data breach
Information Collection and Tracking
- When You Visit Our Website
You can visit our website (www.phoenixnap.com) without giving away your personal information. PNAP uses Google Analytics and Cookies in order to improve our service, user experience and analyze how our website is used. Aside from the approximate location (IP address), the information collected by Google Analytics is mostly anonymous traffic data including browser information, device information, language. We do not collect additional information, such as your age, gender, interests, bank details or clickstream. The collected information is used to provide an overview of how people are accessing and using the PNAP website. It is not used for any additional purpose, such as to profile those who access our website.
- When You Contact Us
While you can use our website without giving out your personal information, once you contact us via the PNAP website, PNAP collects information about you. The information you fill in (personal information such as your name, email address, organization) will be processed and stored so that it is possible for us to contact and respond to your request, and/or allow you access to our services.
If you apply for a job with PNAP, we will collect, process and store the information you have sent us for recruitment-related purposes, such as contacting you. Additionally, PNAP may keep your data for a period of time for the purpose of considering you for a different opportunity.
- Social Media Plug-Ins
Our website features two plug-ins for easy sharing and following our social media pages: Facebook, operated by Facebook Inc., 1601 S. California Ave, Palo Alto, CA 94304, USA; and LinkedIn, operated by LinkedIn, 2029 Sterling Court Mountain View, CA 94043 United States. Being on our website does not automatically result in sharing data on these social media networks. These plugins remain inactive (idle) until clicked upon. Once clicked upon, you will be taken to the said social media networks with their own specific privacy policies you are recommended to consult.
- Information Security
When PNAP collects information about you, we also make sure that your information is protected from unauthorized access, loss, manipulation, falsification, destruction or unauthorized disclosure. This is done through appropriate technical measures.
- Data Sharing
We might share your personal information with the following third parties for the purposes of providing you with the best service possible:
- other companies within the Group
- occasionally we may receive a request to disclose information about you with law enforcement, regulators and supervisory authorities where we are legally required to do so.
All our entities in the group are required to take appropriate security measures to protect your personal information in line with our policies. We do not allow our third-party service providers to use your personal data for their own purposes. We only permit them to process your personal data for specified purposes and in accordance with our instructions.
Where We Might Send Your Data (Geographically)
We process data within the EEA and countries deemed by the European Union as having adequate safeguards for protecting personal data. These countries are recognized by the EU as having suitable safeguards for the rights and freedoms of individuals and recourse processes by which data subjects can exercise their rights.
We will only consider transferring your data outside of the EU if the following conditions are met.
Access to Information
- Made with your explicit informed consent
- Necessary for the performance of an agreement between you and us
- Necessary for important reasons of public interest
- Necessary for the establishment, exercise or defense of legal claims
- Necessary to protect your vital interests or those of other persons, where you are physically or legally incapable of giving consent
You have the right to request access to the information we have on you. You can do this by contacting PNAP at DPO@phoenixnap.com. We will make sure to provide you with a copy of the data we process about you. In order to comply with your request, we may ask you to verify your identity. We will fulfil your request by sending your copy electronically, unless the request expressly specifies a different method. For any subsequent access request, we may charge you with an administrative fee.
Information Correction and Deletion
If you believe that the information we have about you is incorrect, you are welcome to contact us so we can update it and keep your data accurate. Any data that is no longer needed for the purposes specified in Information Collection and Use or for any Regulatory Reporting purposes will be deleted. If you have any queries about the personal data that PNAP stores, you can simply contact us at DPO@phoenixnap.com.
To Sum up
The full GDPR – Compliant Data Protection Policy can be found at the following URL: https://phoenixnap.com/gdpr
You can contact PNAP at any time to:
- Request access to information that PNAP has about you
- Correct any information that PNAP has about you
- Delete information that PNAP has about you
If you have any additional questions about PNAP’s collection and storage of data, please contact us at:
Any credits issued to Client's account in accordance with the SLA may only be used as a credit toward future charges for services and may not be sold, converted to cash, or transferred. SLA credits expire on the termination or expiration of the MSA.
Confidential Information; Non-Solicitation
- Prices and fees referred to in this MSA are not inclusive of any tax, withholding, sales, use, value added, levies, import, custom duties, excise, or other tax equivalent required as a result of the supply of services. All taxes will be paid by Client.
- Client is not liable for PNAP's income taxes, and PNAP is not liable for Client's income taxes.
- PNAP is required to collect taxes on behalf of Client unless Client provides PNAP with a valid tax exemption certificate from the appropriate authority.
- If withholding tax applies to any payments for services made in this MSA, Client may pay those taxes to the appropriate tax authority and provide PNAP with the official tax receipt, and notify PNAP that withholding tax is required, and Client will ensure that PNAP receives the full amount of the invoice.
- Client agrees that Client and PNAP will cooperate as much as possible to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties, if applicable, to the relevant tax authority to reduce the rate or tax or exempt the amount if applicable.
- Client will account for any tax withheld to the tax authorities on a timely basis.
- Each party acknowledges that it will have access to certain confidential information and materials of the other party (“Confidential Information”). Confidential Information will include, but is not limited to, information regarding each party’s business, plans, technology, products, proprietary software, and customer information. PNAP specifically designates as Confidential Information its internal documentation, prices, rates, quotations, and other financial information relating to this MSA. Client specifically designates as its Confidential Information all data and content stored or transmitted by Client, or accessed by PNAP, in connection with its use of PNAP’s services under this MSA. Both Client and PNAP must keep all Confidential Information confidential and only share Confidential Information where this MSA allows or when required to do so by law. Both parties will make every reasonable effort to keep this Confidential Information confidential and promise to return all Confidential Information to the other party within thirty (30) days of the expiration or termination of this MSA. Neither party may keep any copies of Confidential Information except as where required by law or for administrative record keeping.
- Information will not be deemed Confidential Information hereunder if the receiving party can establish by reasonably competent evidence that such information was: a) known to the receiving party before it was disclosed by the disclosing party, b) becomes known by disclosure from a direct or indirect source who does not have an obligation of confidentiality to the disclosing party, c) becomes publicly known or ceases to be confidential (not by breach of this MSA by the receiving party), of it is independently developed without the use of Confidential Information from the disclosing party.
- The obligations and restrictions set forth herein regarding Confidential Information shall survive during the term of this MSA and for three (3) years after its termination or expiration.
- Neither Client nor PNAP may hire, offer work to, or contract employees or contractors of the other party that become known to them through this relationship have worked directly with the party in connection with the provision of services under this MSA. This remains in effect during the entire term of Client MSA.
- This remedy does not waive the right to seek any other remedies or injunctive relief permitted by this MSA.
Neither Client nor PNAP is liable for failure or delay in performance under this MSA due to causes beyond their reasonable control, including without limitation acts of war or terrorism, acts of god, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts, or failure of the Internet. The effected party should promptly notify the other party in writing and use its best effort to correct any failure or delay under this provision.
Changes to this MSA
This MSA is subject to updates and modifications. Updates are always posted at https://phoenixnap.com/cs/legal and Client's continued use of the services serves as Client acceptance of the updates and updates are in effect as soon as they are posted. Modifications of any terms must be approved in writing by PNAP. Modifications to PNAP’s policies regarding Acceptable Use, Privacy, and Security may be updated, with all updates being effective upon written notice to Client and posting in location available to Client.
Use of Trade Names
- Neither Client nor PNAP will use the trade name, trademark, logos, or symbols of the other without prior written consent of the other party's authorized representative.
- PNAP may disclose Client's name to its employees, vendors, contractors, and service providers that have a reasonable need to know for purposes of providing services under this MSA.
- Unless otherwise prohibited, PNAP may use Client name in a list of Client references or other similar marketing materials.
- Client represents and warrants that its collection, access, use, storage, disposal, and disclosure of its end-Customer Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
- If, in the course of its engagement with its end Customer, Client (a Service Provider) has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit or other payment cardholder information, Client shall at all times remain in compliance with 12.9 of the Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Client's sole cost and expense.
- Client may not transfer or authorize the transfer of any services to a U.S. or U.N. embargoed country, anyone on the U.S. Treasury Department list of Specially Designated Nationals, U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or on the U.S. State Department's Debarred Parties list.
- Client may not be located in, under the control of, or a national resident of any country on any of the lists mentioned in Section R(a) of these General Provisions.
- Client may not use PNAP's services for development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction in any country mentioned in Country Groups D: 4 and D: 3 in Supplement No. 1 to the Part 740 of the U.S. Export Administration Regulations.
- Client may not transfer through PNAP services any data, materials, or other items controlled for export under the International Traffic in Arms Regulations (ITAR Data) or other applicable laws without PNAP's MSA to the transfer, ten (10) business days' prior written notice of the ITAR Data transfer, and all necessary assistance necessary to help us obtain U.S. Government permission.
- Client is responsible for, and will reimburse PNAP for, all costs, expenses, or damages incurred in connection with Client transfer of ITAR Data without PNAP’s agreement.
Integration, Modifications, and Severability
- PNAP reserves the right to comply with any and all warrants, court orders, subpoenas, summons, and other legal requirements.
- Client authorizes PNAP to consent to any access, search, seizure, or other governmental action that is valid by our reasonable opinion.
- PNAP shall use its best reasonable efforts to notify Client of any legal process within forty eight (48) hours of service. Failure of this notification will not restrict our rights under this Section S and does not constitute as a breach.
- PNAP reserves the right to restrict or terminate access by Client or any representative to the facility from and after the service of a search or seizure warrant and/or after receiving an order of a court or government agency.
- PNAP may shut down all or part of the facility, including and without limitation the Client Area, and to comply with an order of any city, county, state, provincial, federal, or other legitimate government official if PNAP reasonably determines that an emergency exists.
- This MSA and its attachments and addendums are the entire MSA and supersedes any prior MSAs, promises, representations, understanding, and negotiations between the parties.
- Any modifications, amendments, supplements, or waivers must be in writing and executed by authorized representatives of both Client and PNAP.
- If any provision in this MSA is declared invalid the remaining provisions of the MSA will remain in full force and effect. Client and PNAP will renegotiate the invalid provision in good faith and be bound by the mutually agreed upon replacement provision.
- Either party’s failure or delay in exercising any of its rights under this MSA does not create a waiver of or modification to those rights.
- Either party’s waiver of any right under this MSA must be in writing.
- By Client:
- Client will not assign Client's rights or delegate Client's duties under this MSA (whole or part) without the prior written consent of PNAP such consent not to be unreasonably withheld This includes the following:
- Partnerships and LLCs: By operation of law, voluntarily, or involuntarily withdrawing or changing a majority of partners or members or a transfer of a majority of ownership interests, aggregate or cumulative, or the dissolution of the partnership or LLC.
- Private Corporation: Dissolution, merger, consolidation, or other reorganization, sale or other transfer of more than a cumulative aggregate of 50% of the voting shares of Client's net assets (other than to immediate family members by gift or death), or sale, mortgage, hypothecation, or pledge of more than a cumulative aggregate of 50% of Client net assets.
- By PNAP:
- PNAP may assign its rights and obligations of this MSA to one or more service providers for the provision of related facility services and will notify Client of any arrangement with a service provider and provide their contact information.
- PNAP may transfer all or any portion of its interest in the facility. In such an event the new owner (transferee) will assume the role and obligations of PNAP after the date of transfer and PNAP is automatically released from all liability accrued after the transfer date. Any attempts to assign or delegate in violation of this provision are null and void. This MSA binds and inures to the benefit of each party's successors and assigns.
Written notices must be delivered by hand, mailed by registered or certified mail (return receipt requested, postage prepaid), or sent by overnight courier with proof of delivery (FedEx, UPS, etc.) to:
| Phoenix NAP, LLC
| C/O Legal Department
| 2353 West University Drive
| Tempe, Arizona 85281
Electronic notification may be sent to firstname.lastname@example.org.
Delivery date is notification date.
When necessary, PNAP shall request Client execute, acknowledge, and deliver a statement in writing that may be relied upon by a prospective mortgagee, purchaser, or other similar encumbrance certifying all matters reasonably requested. PNAP and the addressee of the certificate are entitled to rely on the information contained in the certificate that PNAP submitted to Client as true, correct, and complete and Client may not later deny, contradict, or take any position inconsistent with the information in the certificate.
The MSA may be executed in two or more counterparts and each will be considered an original, but together constitute the same instrument.
Relationship of Parties
This MSA does not establish a relationship or partnership, joint venture, employment, franchise, or other agency between Client and PNAP except as PNAP and lessee. Neither Client nor PNAP has the power to bind the other or incur obligations on the other's behalf without the written consent of the other unless that power is specified in this MSA.
PNAP's official language is English and it does not provide translations into any other language of any services, support, notices, designations, specifications, or communications. All references to days throughout this MSA shall mean calendar days unless specified otherwise.
No Negative Construction
Both Client and PNAP agree that it has reviewed and had the opportunity to have legal counsel review this MSA and its attachments and addendums and that this MSA is intended not to be construed against either party as the drafting party.
Representation of Authority
Any individual signing this MSA on behalf of an entity represents and warrants that he or she has full authority to do so. The signatories to this MSA respectively warrant that they are fully authorized to enter into this MSA on behalf of their respective entity or individual; that entities which are corporations, partnerships or limited liability companies are duly organized, validly existing and in good standing; and that the making, execution and performance of this MSA have been duly approved by the entities governing bodies and do not violate any provision of the entity’s respective articles of incorporation, charters, by-laws, or partnership MSAs.
Conflicts or discrepancies between any portions of this MSA are governed by the following order of precedence:
- Order of Service Order Form
- Statement of Work (SOW)
- Responsibility Matrix (RM)
- This MSA
- The contracting Party Addendum (CPA), other than the terms of this MSA
- Acceptable Use Policy, Privacy MSA, Service Level MSA
v.5; 01302020; ©phoenixNAP, LLC