Master Services Agreement
Client accepts this MSA by clicking or checking an acceptance option provided on our web site, electronically signing an order form or addendum, or installing and using any of the provided services or products. By accepting these services Client is agreeing that:
- Client accepts the MSA entirely as it relates to the services Client is requesting.
- Client agrees that Client is bound by the MSA (as well as any future updates to the MSA that PNAP may make from time to time).
- This MSA, the PP, SLA, CPA, and AUP are binding and enforceable obligations.
If Client does not agree with any of these statements, Client SHOULD NOT sign, click or check acceptance options, install, or use any services.
3. Fees, Billing, and Payment Terms
- Client agrees to pay all fees, costs, and charges as outlined in this agreement and the Client Service Order Form (SOF). PNAP will provide Client with the services listed on the SOF and RM and gives Client the right to use and occupy the Client services/Area for permitted purposes.
- Additional services and/or space in the facility are available, for a fee; these changes shall be recorded in a new SOF or a Change Order.
- PNAP will bill Client monthly by sending Client an invoice. Payment for License Fees, costs, and charges is due, in full and in advance the first day of the term month. Other fees and charges on the invoice must be paid within 30 (thirty) days of Clients receipt of the invoice.
- 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 page), or may be made by any electronic method made available in the control panel.
- Delinquent payments can harm Client credit with us, and PNAP may require Client payment terms to be modified—possibly requiring a security deposit (initially or an increase to), automatic payments, or payments prior to provisioning.
- If a security deposit is required, PNAP stores the funds in our general account. PNAP does not pay interest on security deposits, and PNAP only draw on the funds if Client becomes past due in an obligation to us. Client will need to replenish the security deposit promptly if PNAP has to draw against it. PNAP will refund the security deposit to Client within 60 (sixty) days of the termination of our agreement with each other as long as Client's account is paid in full.
- PNAP is required to collect taxes for some services and products; if taxes are due on a service PNAP will bill for them on the invoice.
- Occasionally, a utility provider might change the amounts that they charge us for power delivery, resulting an increased cost for power delivery that is passed on to Client.
- If Client orders something from us that requires a cost or expense to be incurred by us and Client pre-approved those expenses or those expenses are otherwise covered in this agreement, Client will be required to reimburse us for those expenses or costs.
- If PNAP or Client dispute any aspect of this agreement and litigation or dispute resolution is initiated, the prevailing party will be entitled to reasonable attorney's fees and costs incurred by it in connection with the legal process. Collection fees incurred by us are included in this provision.
- Licensing fees may change from time to time and fee increases are effective on the (yearly) anniversary of the date PNAP started billing Client.
- An Early Termination Fee (ETF) equal to fifty percent (50%) of the remaining contractual balance shall be assessed to Client in the event Client chooses early termination.
4. Term and Termination
- This entire agreement is effective for the duration of the initial term listed on Client SOF and any subsequent terms.
- The Commencement Date listed on the SOF is the date that the term begins on. If services are not delivered to Client, for any reason, by the Commencement Date, the date of delivery of services becomes the new Commencement Date. A change may or may not result in lowering of License Fees.
- If Client orders several items on one SOF, those items may be delivered on different dates. In this instance the Commencement Date is the actual date of delivery of each specific item, which can result in multiple Commencement Dates on one SOF. Such changes may or may not result in adjustments to License Fees or other charges.
5. Default Events and Remedies
- The following events by Client will cause a default:
- Failure to pay License Fees or other amounts due under this agreement.
- Failure to execute, acknowledge, and return an estoppel certificate confirming the details of any document requested in accordance with this agreement within ten (10) days of PNAP's request.
- 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 Client's consent, or approving a petition filed against Client seeking reorganization or arrangement of Client's company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within 30 days of entry.
- Client's use of Client Area or our facility threatens the availability, resiliency, and/or routine operations of the facility in PNAP's reasonable discretion.
- Client fails to perform any material obligation under this license within ten (10) days of notification of nonperformance from us.
- Client becomes a "Repeat Infringer" of the DMCA (Digital Millennium Copyright Act), in our reasonable discretion.
- The following remedies are available to us in the occurrence of a default (or at any time thereafter without further notice or demand). These remedies can be exercised concurrently, alternatively, or in succession:
- Suspension of some or all of the services PNAP provides to Client.
- Termination of this agreement and Client's right to possession of Client Area; exclusive possession is returned to PNAP.
- Release of any portion of Client Area with reasonable efforts to minimize damage 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. The interest rate is 18% per year or the highest rate allowed by law, whichever is less.
- Placing and enforcing a lien on Client's property.
- Recovering all reasonable attorneys' fees and other expenses that PNAP incurs while enforcing this agreement, recovering a possession, and collecting amounts owed when PNAP is the prevailing party in any suit or proceeding.
- Performing any obligation that Client fails to pay or do on Client's behalf and remove equipment installed by Client in violation of this agreement and recovering from Client any and all reasonable damages a breach causes us.
- Pursuing of any other remedies available by law or in equity.
- The following events by us will cause a default:
- Breach of any material term or condition of this agreement. Client must notify us in writing of any breach and PNAP has 30 days from receipt of notice to cure the breach.
- PNAP become the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed within 60 days of filing.
- The following remedies are available to Client in the event of a default caused by PNAP, provided that all amounts due in accordance with Client agreement are paid:
- Removal of equipment, materials, or other property owned by Client from the facility. Removal is required within ten business days of termination and Client must leave the Client Area in the same condition it was in on Client installation date (normal wear and tear excepted). Failure to remove said property within ten business days will result in PNAP moving Client property to storage and charging Client the actual cost of removal, storage, and restoration plus 10%; liquidation of the property after 30 days' notice to Client and applying the proceeds to any amount Client owes to PNAP under this agreement. During the removal or notice period(s) Client will be charged for a pro-rated portion of the most recent license fees. Client grants PNAP a security interest that is perfected by our possession of the property and agree to execute and deliver to us any financing statements deemed necessary or appropriate by us. Client waives any statutory notices to vacate or quit Client Area upon expiration or termination of this agreement.
- Holding Over
- Client has no right to hold over after this agreement expires or terminates without our consent. If Client holds over after this agreement expires, Client become a month-to-month Client subject to all of the terms of this agreement, but the License Fees will be increased to 150% of Client's most recent license fees for 90 days, and increased to 200% of the same on the 91st day, OR the fair market value of the Client Area on the date of expiration (computed using recently executed agreements for space and related services in the same or similar facility). This provision is not a waiver by PNAP of any right to re-entry, and acceptance of License Fees by PNAP (or any affirmation of tenancy) does not waive our right to terminate the agreement for a breach of any terms, covenants, or obligations of Clients.
- Some of the rights and obligations of both Client and PNAP will survive the expiration of this agreement, including, but not limited to, provisions related to security deposits, taxes, dispute resolution and costs, remedies, and other general provisions.
- Governing Law, Lawsuits
This agreement is governed by the laws in the state of Arizona, Maricopa County, exclusive of any Arizona choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The United Nations Convention on the International Sale of Goods is excluded in its entirety. The state or federal courts in Maricopa County, Arizona are the exclusive venue for any disputes arising from this agreement and neither party shall bring an action in any other venue. Client may not dispute personal jurisdiction or venue in these courts.
- 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 non-infringement, title, merchantability, and fitness for a particular purpose.
- PNAP does not warrant that the service will meet Client's requirements or that the operation will be timely, uninterrupted, secure, or error-free or that any defects will be corrected.
- 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, PNAP WILL NOT BE LIABLE TO CLIENT FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF PNAP IS FOUND TO BE LIABLE TO CLIENT FOR ANY DAMAGE OR LOSS ARISING UNDER OR IN CONNECTION WITH THE SERVICES, PNAP'S TOTAL CUMULATIVE LIABILITY TO CLIENT WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO ITS LIABILITY.
- Maximum Liability
In consideration of all of the benefits to the Client and with exception to anything contrary in the addendums to this document and/or the SOF, SOW, or RM, Client agrees to the following:
- No personal liability or personal responsibility of any kind can be asserted or enforced against any individual member of PNAP with respect to any breaches of any terms in this agreement or any of its attachments.
- Recourse against PNAP by Client or Client's successors is limited to the maximum aggregated liability which cannot exceed the total amount actually paid by Client to PNAP during the [up to] six months immediately preceding the month in which the claim arises.
- Client has no recourse against the assets of any person other than PNAP's interest in the facility.
- PNAP will have no liability at all for claims, losses, actions, damages, suits, or proceedings resulting from our efforts to address or mitigate security breaches (including, but not limited to, eavesdropping), third party access to Client data or assigned computers, third party access or misuse of passwords provided to PNAP, the interception of sent or received traffic, relicense or exposure for other reasons of personally identifiable information or private data (including that of Client's own Clients and of other users), denial of service attacks, viruses, worms and other third party interference, loss of data or access to data, actions of third parties, including without limitation agents or contractors of PNAP, actions of PNAP employees outside of the scope of their employment, mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or other failures of performance.
- Allocation of Liability
The Disclaimer of Warranties, Disclaimer of consequential damages, and limitations of liability in this and other provisions of this agreement and the allocation of risk are essential elements of the bargain between the parties and without this PNAP would not enter into the agreement. The pricing of the products and services reflects the allocation of risk and these limitations.
Limitations in this agreement apply to any and all claims and causes of action regardless of whether in contract, tort, strict liability, or other theory.
- Basis of the Bargain; Failure of Essential Purpose
Client acknowledges that PNAP has set its prices and enters into this agreement by relying on the limitations of liability and disclaimers of warranties and damages listed in this agreement, making this an essential basis for the bargain between Client and PNAP. Client and PNAP both agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this agreement will survive and apply even if they are found to have failed in their essential purpose.
- Indemnification by Client
Client agrees to indemnify, defend, and hold harmless PNAP and its parents, affiliates, licensors, and providers of third party services (as well as their directors, officers, employees, contractors, agents, successors, and assigns (the Parties) from and against any and all liability (including without limiting all attorneys' fees and costs), incurred by the Parties in connection with actual or alleged claims arising from any of the following:
- Client's use or misuse of the services or third party services.
- Client's breach or alleged breach of this agreement.
- Client's, or Client's end-customers', breach or alleged breach of the rights of any third party's rights, including without limiting, actual or alleged infringement or misappropriation of a copyright, trade secret, patent, trademark, privacy, publication, or other proprietary right.
- Client violation or alleged violation of non-compliance by Client, or Client's end customer, with any law, court order, rule, or regulation in any jurisdiction.
- Any counsel Client selects for defense or settlement of a claim must be approved in writing an advance by PNAP prior to the engagement of the counsel to represent indemnified parties.
- Client may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of PNAP or The Parties without the prior written consent of PNAP or the applicable Party. Client and Client's counsel will cooperate as fully as Client is reasonably required to provide information reasonably requested by PNAP or the Parties in the defense or settlement of any related matter.
- 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.
PNAP is an ISP (Internet Service Provider) under the DMCA (Digital Millennium Copyright Act). Clients are expected to comply with the DMCA. PNAP follows the notification and takedown procedures set forth in the U.S.C 17 Section 512 DMCA and may block access to, or terminate any or all services provided under this agreement for repeat infringers.
- SLA Credits
Any credits issued to Client's account in accordance with the SLA may only be used as a credit toward future charges for services and may not be sold, converted to cash, or transferred. SLA credits expire on the termination or expiration of the agreement.
- Prices and fees referred to in this agreement are not inclusive of any tax, withholding, sales, use, value added, levies, import, custom duties, excise, or other tax equivalent required as a result of the supply of services. All taxes will be paid by Client.
- 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 us with a valid tax exemption certificate from the appropriate authority.
- If withholding tax applies to any payments for services made in this agreement, Client may pay those taxes to the appropriate tax authority and provide PNAP with the official tax receipt, and notify PNAP that withholding tax is required, and Client will ensure that PNAP receives the full amount of the invoice.
- 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.
- Claims or controversies arising from this agreement or any breach will be settled by arbitration in Maricopa County, Arizona and will follow the rules of the American Arbitration Association. There will be one arbitrator and that person will be an independent third party that Client and PNAP both agree to. The decision is final and binding and is the exclusive remedy for all claims covered by the arbitration provision.
- Either Client or PNAP can bring an action in any court to compel arbitration.
- Client understands that a breach of the Limitation of Liability and the Maximum Liability sections or any of the terms and conditions of the AUP would cause irreparable injury to PNAP and PNAP will be entitled to seek temporary and preliminary injunctive relief without the necessity of proving actual damages or posting any bond or other security.
- Confidential Information; Non-Solicitation
- As a PNAP Client, Client has access to some confidential information, such as rates, plans, technology, quotations and other financial information relating to this agreement, internal documentation, and proprietary software, as well as other information. PNAP may, in turn, have access to similar confidential information about Client. Both Client and PNAP must keep all information confidential and only share information where this agreement allows or when Client is required to do so by law. Both parties will make every effort to keep this information confidential and promises to return all confidential information to the other party within 30 days of the expiration or termination of this agreement. Neither party may keep any copies of confidential information except as where required by law or for administrative record keeping.
- Information deemed confidential becomes non-confidential if the information was known (and documented) to the receiving party before it was given, it becomes known by disclosure from a direct or indirect source who does not have an obligation of confidentiality to the disclosing party, it becomes publicly known or ceases to be confidential (not by breach of this agreement by the receiving party), of it is independently developed without the use of confidential information from the disclosing party.
- Neither Client nor PNAP may hire, offer work to, or contract employees or contractors of the other party that become known to them through this relationship. This remains in effect during the entire term of Client agreement and for twelve months after the end date. A party in breach of this provision will compensate the other party liquidated damages of either 6 months' compensation offered to the employee by the breaching party or paid or offered to the employee by the non-breaching party, whichever is greater.
- This remedy does not waive the right to seek any other remedies or injunctive relief permitted by this agreement.
- Force Majeure
Neither Client nor PNAP is liable for failure or delay in performance under this agreement due to causes beyond their reasonable control, including without limitation acts of war or terrorism, acts of god, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts, or failure of the Internet. The effected party should promptly notify the other party and use its best effort to correct any failure or delay under this provision.
- Changes to this Agreement
This agreement is subject to updates and modifications. Updates are always posted at https://phoenixnap.com/cs/legal and Client's continued use of the services serves as Client acceptance of the updates and updates are in effect as soon as they are posted. Modifications of any terms must be approved in writing by PNAP.
- Use of Trade Names
- Neither Client nor PNAP will use the trade name or trademark of the other without prior written consent of the other party's authorized representative.
- PNAP may disclose Client's name to its employees, vendors, contractors, and service providers that have a reasonable need to know.
- PNAP may use Client name in a list of Client references or other similar marketing materials.
- Information Security
- Client (a Service Provider) represents and warrants that its collection, access, use, storage, disposal, and disclosure of its end-Customer Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
- 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.
- Export Matters
- 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 item 1.
- 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 to our through PNAP services any data, materials, or other items controlled for export under the International Traffic in Arms Regulations (ITAR Data) or other applicable laws without PNAP's agreement to the transfer, 10 days' prior written notice of the ITAR Data transfer, and all necessary assistance necessary to help us obtain U.S. Government permission.
- Client is responsible for, and will reimburse PNAP for, all costs, expenses, or damages incurred in connection with Client transfer of ITAR Data.
- Legal Process
- 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 will attempt to notify Client of any legal process within 48 hours of service. Failure of this notification will not restrict our rights under this section and does not constitute as a breach.
- 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.
- Integration, Modifications, and Severability
- This agreement and its attachments and addendums are the entire agreement and supersedes any prior agreements, 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 agreement is declared invalid the remaining provisions of the agreement will remain in full force and effect. Client and PNAP will renegotiate the invalid provision in good faith and be bound by the mutually agreed upon replacement provision.
- No Waiver
- PNAP's failure or delay in exercising any of its rights under this agreement does not create a waiver of or modification to those rights.
- PNAP's waiver of any right under this agreement must be in writing.
- By Client:
- Client will not assign Client's rights or delegate Client's duties under this agreement (whole or part) without the prior written consent and discretion of PNAP. This includes the following:
- 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 agreement to one or more service providers for the provision of related facility services and will notify Client of any arrangement with a service provider and provide their contact information.
- PNAP may transfer all or any portion of its interest in the facility. In such an event the new owner (transferee) will assume the role and obligations of PNAP after the date of transfer and PNAP is automatically released from all liability accrued after the transfer date.
Any attempts to assign or delegate in violation of this provision are null and void. This agreement binds and inures to the benefit of each party's successors and assigns.
Written notices for termination must be delivered by hand, mailed by registered or certified mail (return receipt requested, postage prepaid), or sent by overnight courier with proof of delivery (FedEx, UPS, etc.) to:
| Phoenix NAP, LLC
| C/O Legal Department
| 2353 West University Drive
| Tempe, Arizona 85281
Electronic notification may be sent to firstname.lastname@example.org.
Delivery date is notification date.
When necessary PNAP gives 10 days written notice and requires that Client execute, acknowledge, and deliver a statement in writing that may be relied upon by a prospective mortgagee, purchaser, or other similar encumbrance certifying all matters reasonably requested. If Client fails to execute and deliver the certificate, PNAP and the addressee of the certificate are entitled to rely on the information contained in the certificate that PNAP submitted to Client as true, correct, and complete and Client may not later deny, contradict, or take any position inconsistent with the information in the certificate.
The agreement 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 agreement does not establish a relationship or partnership, joint venture, employment, franchise, or other agency between Client and PNAP except as PNAP and lessee. Neither Client nor PNAP has the power to bind the other or incur obligations on the other's behalf without the written consent of the other unless that power is specified in this agreement.
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.
No Negative Construction
Both Client and PNAP agree that it has reviewed and had the opportunity to have legal counsel review this agreement and its attachments and addendums and that this agreement is intended not to be construed against either party as the drafting party.
Conflicts or discrepancies between any portions of this agreement 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 Agreement, Service Level Agreement