Colo Services Addendum

  1. Representations, Warranties, and Covenants
    1. Client represents, warrants, or covenants that:
      1. Client will to comply with all laws, and with the rules and regulations of PhoenixNAP, LLC (PNAP).
      2. Client will not to disturb or interfere with any other tenant or occupant of the facility.
      3. Client must own or maintain the legal right/authority to any of the Client equipment covered by this agreement.
      4. Client will not use any of the Client's equipment, or the equipment, facilities, or services provided to Client under this agreement, to infringe, mis-appropriate, or violate in any manner the intellectual property rights of any person or entity.
      5. Client will use Client's equipment in the Client Area in compliance with the manufacturers' environmental and other specifications.
      6. Client will not use the facility or services for dangerous activities or life-critical applications or services that could, if they fail, result in death, personal injury, catastrophic damage, or mass destruction.
      7. Client is solely responsible for any data maintenance, integrity, retention, security, and backup of Client content and Client's compliance with any laws, rules, or regulations in any region or country that applies in regard to security, privacy, legality, and safe handling of Client and Client's end-customers' data.
    2. PNAP represents, warrants, or covenants that:
      1. PNAP has the legal right and authority to grant Client license to use the Client Area for purposes described in this agreement.
      2. PNAP will continue to maintain the legal right and authority to grant the same license for the purposes described in this agreement.
      3. PNAP will comply with any and all federal, state, local, and international laws PNAP is required to be bound by while providing Client with the service(s).
      4. PNAP will comply with any applicable and agreed upon SLA while providing Client the service(s).
      5. PNAP will maintain reasonable and appropriate physical security to protect Client content.
      6. PNAP will not allow, or authorize any third party to do anything that subjects Client or any applicable party (lender, etc.) to claims, liens, or encumbrances in accordance with statute, law, or express or implied contract.
      7. PNAP maintains ownership of the PNAP website and the services including and without limitation our intellectual property, the look and feel, software, interface, content, logos, brands, and marks.
      8. PNAP retains ownership of all items it installs in the Client Area with the exception of equipment owned by Client.
    3. Disclaimer:
    4. EXCEPTING THE REPRESENTATIONS, WARRANTIES, AND COVENANTS LISTED ABOVE, PNAP PERFORMS SERVICES AND PROVIDES SPACE TO CLIENT ON AN "AS-IS" BASIS. CLIENT'S USE OF THE SERVICES IS AT CLIENT'S OWN RISK. PNAP MAKES NO GUARANTEES ABOUT WARRANTIES INCLUDING, BUT NOT LIMITED TO, TENANTABILITY, HABITABILITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM THE COURSE OF DEALING, USE, OR TRADE PRACTICE. PNAP DOES NOT WARRANT THAT THE FACILITY SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERPTED, ERROR-FREE, OR COMPLETELY SECURE.

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

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

    1. Client will perform, or authorize an agent, employee, or contractor to perform, the work designated as "Client's Work" and explicitly described in the SOF.
    2. Client will pay for any work designated as Client's Work Client self and on time, and keep the facility and the Client Area free from liens, encumbrances, or claims for the alterations performed. If a lien is placed on the Client Area, Client has 10 (ten) days from notice of lien to remove it or take acceptable action to resolve it. If Client fails to resolve [the lien/encumbrance/claim], PNAP may settle the claim for Client, without any investigation of validity, and invoice the costs PNAP incurs to Client as fees, due and payable in accordance with previously stated terms.
    3. Client may not interfere with work or operations conducted by PNAP, its employees or agents, or other Clients in the facility.
    4. Client will provide PNAP with proof of insurance in accordance with all of the requirements of the Insurance section above before beginning any work.
    5. Client will assume all responsibility for damages caused by the designated work.
    6. Client assumes all risk for any injury, loss, or damage occurring during the course of the Client's work.
    7. Design plans will be submitted to PNAP for the designated work for approval. PNAP will not unreasonably withhold the approval, but may withhold consent for plans that affect the structure, roof, safety, efficiency, or security of the facility, its systems and equipment, the Client Area or other spaces in the facility, or the appearance of the Client Area from common or public areas. Design plans must adhere to the rules and regulations and any applicable building standards or operational manual. Plans should include notification of any hazardous materials that may be used during the course of the work and an explanation of the necessity of the materials and any other relevant information. PNAP will make every effort to review the submitted plans within 5 (five) business days and will provide notice of approval, or of any reasonable objections, at which time Client can revise and resubmit the plans if necessary. When the plans are approved by Client and PNAP they become Final Plans.
    8. When this agreement terminates, any and all improvements or modifications to the real estate become a fixture of PNAP real property and belong to PNAP. Client may remove any moveable furniture, hardware, materials, and trade fixtures.
    9. PNAP does not warranty any work done to the Client Area by Client, Client's agent(s), or Client's employee(s) and assumes no responsibility or liability even when final plans are approved by PNAP.
    10. PNAP may make requirements pertaining to work to be completed in the Client Area, including, but not limited to, the requirement that Client:
      1. Use a licensed contractor.
      2. Submit names, addresses, and background information about engineers, contractors, subcontractors, and/or suppliers.
      3. Obtain and post permits.
      4. Provide a payment bond in a reasonable amount to PNAP or another form of guarantee of creditworthiness.
      5. Submit conditional and final lien waivers in compliance with Arizona law for all architects, engineers, contractors, subcontractors, and suppliers.
      6. Allow PNAP to inspect Client's work at reasonable times and with reasonable notice.
      7. Use a contractor that PNAP chooses for any and all work that effects the fire detection system.
      8. Comply with reasonable requirements for insurance coverage.
      9. Complete the work in a reasonable amount of time.
  5. Casualty and Condemnation
    1. Casualty
      1. In the event that the Client Area is damaged or destroyed by fire or other casualty, PNAP will restore the Client Area to the commencement date condition. PNAP is not obligated to repair or replace any of Client's fixtures, furnishings, equipment, or personal property.
      2. PNAP need not begin repairs until a substantial portion of the insurance proceeds are available and need not spend more than the actual insurance proceeds received.
      3. Insurance proceeds will be received and held by PNAP.
      4. In the event of damage or destruction by casualty not covered by PNAP-maintained insurance, or not less than 25% of the replacement cost, or if the casualty occurs in the last year of the term, Client or PNAP may have the option to terminate this agreement. The terminating party must give notice to the other party within 60 days of the damage or destruction and PNAP will retain any and all insurance proceeds for the Client's Area as its own property.
      5. If neither party terminates, the agreement remains in full effect, but fees may be lessened or removed until the restoration is complete.
      6. Should a mortgagee require that insurance proceeds be applied to indebtedness, PNAP has the right to terminate this agreement by providing Client with written notice within 15 days after the requirement is made by the holder, the date of the notice becoming the new expiration date.
      7. Client waives statutes ยง33-343 (Commercial Landlord/Tenant) and any other applicable law governing the destruction or injury of a building by the elements or similar cause permitting an abatement of fees or termination of this agreement in the event of damage or destruction except as outlined in this section or elsewhere in this agreement.
    2. Condemnation
      1. Should the Client Area or facility be taken by power of eminent domain or condemned by a competent authority for a public or quasi-public use or purpose, or if an adjacent property or street is taken, condemned, will be reconfigured or vacated in such a manner that requires reconstruction or remodeling of the Client Area or facility or if PNAP grants a deed or other instrument in lieu of taking by eminent domain or condemnation, either party has the option to terminate this agreement.
      2. The terminating party will provide the other party with 45 days written notice. Notice must be given within 180 days of the date of taking, condemnation, reconfiguration, vacation, deed, or other instrument.
      3. PNAP is entitled to receive the whole of any award or payment made in connection with such an event.
      4. Client has the right to file any separate claim available to Client for any taking of Client personal property or fixtures that belong to Client and are removable by Client at the expiration of the term, and for moving expenses, as long as the claim does not diminish the award available to PNAP or any mortgagee and the claim is payable separately to Client.

 

v.1; 10282015