Master Service Agreement (MSA)
THIS MASTER SERVICE AGREEMENT (this “MSA”) applies and relates to the Service Order Form, including the Service Level Agreement (the “SLA”). This document is the Master Service Agreement of Ace Data Centers, Inc., a Utah corporation (“ACEDC”) , and is made a part of ACEDCs standard Service Order Agreement (the “Service Contract”) that was entered into by and between ACEDC and the Customer identified therein. The Service Contract is incorporated by reference herein as if fully set forth in this MSA. Capitalized terms used by not defined in this MSA have the meanings ascribed to them in the Service Contract. ACEDC and the Customer identified in the SLA are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”.
1. GRANT OF LICENSE; TERM; PERMITTED USES; NO REAL PROPERTY INTEREST
Customer owns the computer and related communications equipment (collectively, “Equipment”) not provided by ACEDC.
(a) Grant of License. ACEDC hereby grants to Customer the right and non‑exclusive license (the “License”) to install and operate the equipment identified on the Schedule of Equipment in the specific cabinet space or spaces (the “Cabinet Space”) located in the Premises, as specified by ACEDC. The License is granted for the Term (defined below) and for the Permitted Uses set forth below. Notwithstanding the foregoing, ACEDC reserves the right to relocate, change or otherwise substitute replacement space in the Premises for the Cabinet Space at any time during the Term hereof; provided, however, that the replacement space is substantially similar in size and configuration to the original Cabinet Space. Customer may not assign the Service Contract, sub‑license the Cabinet Space or allow any other person or entity to use the Cabinet Space for any reason, without first obtaining the prior written consent of ACEDC, which can be denied in ACEDC’s sole discretion.
(b) Term. The Service Contract and the License shall each commence on the date set forth in the Service Contract and shall each automatically renew for successive terms equal to the initial term thereof unless cancelled by either Party in writing at least thirty (30) days before the expiration of the current term (the “Term”); provided, however, that the Term shall terminate prior to the scheduled date of termination if subject to Sections 10, 11 and/or 12 below.
(c) Permitted Uses. Customer has the right to use the Cabinet Space solely for the purpose of (i) installation of the Equipment in the Cabinet Space, (ii) maintaining the Equipment, (iii) operating the Equipment, and (iv) removing the Equipment (collectively, the “Permitted Uses”). Unless otherwise agreed by ACEDC in writing, Customer shall perform the Permitted Uses at its sole cost and expense. Customer shall not use or allow or permit the use of the Cabinet Space for any use or purpose other than a Permitted Use.
(d) No Grant of any Interest in Real Property. Customer represents, warrants, understands, acknowledges and agrees that (i) Customer does not have, has not been granted and will not own or hold any real property interest in or to the Cabinet Space, the Premises or the Building; (ii) Customer is a licensee, not a tenant or lessee of the Cabinet Space; and (iii) Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.
2. FEES REQUIRED TO BEGIN SERVICE
On the date of the execution of the Service Contract, Customer agrees to and shall pay to ACEDC the amount that is equal to the sum of (a) the cost to install the racks, cabinets, cages, custom space, electrical circuits, fiber optic connections, cable, panels and other items necessary for the Equipment to function in the Cabinet Space, and all of which costs wills be non‑recurring charges (“NRC”), plus (b) a prepayment equal to the number of months recurring fees determined by ACEDC as Monthly recurring Charges (“MRC”) (collectively, with the NRC, the “Fees Required to Begin Service”). The NRC shall be applied by ACEDC to pay the costs and expenses referenced in the Service Order Form. The NRC component of the Fees Required to Begin Service is not refundable to Customer, and shall be deemed to be earned by ACEDC upon receipt. The MRC component of the Fees Required to Begin Service shall be applied by ACEDC to prepayment of the MRC due from Customer for the first month or months of the Term. The MRC component of the Fees Required to Begin Service is not refundable to Customer, and shall be deemed to be earned by ACEDC upon receipt.
3. AGREEMENT TO PROVIDE SERVICES AND PAY FEES; SERVICE LEVEL AGREEMENT
Pursuant to the SLA, ACEDC has agreed to provide certain services (“Services”) to the Customer, and the Customer has agreed to pay certain fees (“Fees”) to ACEDC in consideration therefor. ACEDC shall have the right to increase the Fees: (a) after twelve (12) months of service in proportion to any increases in the Consumer Price Index (CPI) applicable to the geographic area where the Building is located, plus two percent (2%) and/or (b) any time in proportion to any actual increases in electricity costs applicable to the geographic area where the Building is located. Customer shall have the right to purchase any additional Services that are offered by ACEDC from time to time on terms and conditions to be agreed upon in writing by the Parties. A CEDC agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in the SLA as posted on ACEDC’s web site (http://www.acedatacenters.com/sla.php) and incorporated herein by reference.
4. PAYMENT OF FEES; DUE DATE; LATE CHARGES; DEFAULT INTEREST
On or before the first (1st) day of each month during the Term (each, a “Due Date”), Customer agrees to and shall pay the Fees to ACEDC, in advance, for the Services to be rendered by ACEDC to Customer during said month, without offset, deduction or credit of any kind and in good and drawable funds in U.S. dollars. If Customer for any reason fails to pay the Fees to ACEDC by the Due Date of any month during the Term, Customer will be assessed an administrative charge in an amount equal to five percent (5%) of the overdue Fees (“Late Charges”). In addition ACEDC may charge interest on all past‑due balances at either one and one‑half percent (1.5%) per month or the maximum rate of interest allowed under applicable law (“Default Interest”) until paid in full. Customer agrees to and shall pay to ACEDC all costs of collection of the Fees, Default Interest and Late Charges, plus ACEDCs attorneys’ fees, costs, expenses and court costs and fees paid or incurred in connection therewith. Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of the Service Contract. If Customer requests that ACEDC provide Services not specifically set forth herein and ACEDC agrees to provide such Services, Customer agrees to pay ACEDCs standard fee for such Services at the time such Service is rendered or such charge as the Parties may mutually agree upon prior to the delivery of the Services. ACEDC may suspend any or all Services to Customer if payment for any Service is overdue. A reinstatement fee equal to Seventy‑Five Dollars and No/100 ($75.00) or five percent (5%) of the outstanding balance, whichever is greater) will be assessed for suspended Services and must be collected by ACEC with the overdue Fees for the account to be reinstated. Fees not disputed within sixty (60) days after the Due Date thereof will be conclusively deemed to be accurate.
5. RULES AND REGULATIONS
Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Cabinet Space, Bandwidth usage, IP address allocations, the Premises and the Building from time to time published by ACEDC (whether written or published on ACEDCs web site).
ACEDC and Customer, for itself, their respective officers, employees, agents and representatives agree that they will not divulge any confidential or proprietary information received from the other Party, except as may be required by applicable law.
Customer agrees to and shall maintain in force and effect during the Terms of Service (the “TOS”) Policy attached hereto as Exhibit “B-1”, a policy or policies of commercial general liability insurance, with a company licensed to do business within the state where the Building is located, insuring Customer against all hazards and risks customarily insured against by persons locating equipment such as the Equipment in space in buildings such as the Cabinet Space in the Building. The policy or policies shall be written on a per‑occurrence basis with blanket contractual liability coverage, with respect to the use of the Cabinet Space in the Premises and the operation of Customers business therein, with a combined single‑limit coverage of not less than One Million Dollars ($1,000,000) and aggregate umbrella coverage of not less than an additional One Million Dollars ($1,000,000). Customer shall maintain property insurance (inclusive of coverage for data, media and electronic data processing perils) written on a “Special Form” basis at full replacement cost value. Customers policy or policies shall contain provisions providing that such insurance shall be primary insurance insofar as Customer is concerned, with any other insurance maintained by ACEDC being excess and non‑contributing with the insurance of Customer required hereunder. Each of Customer’s policies shall name Ace Data Centers, Inc as “additional insureds (together with any additional person or entity that ACEDC designates in writing). All such policies shall provide that Customers insurer waives all rights of subrogation against ACEDC Customer shall obtain all such policies with carriers having an A.M. Best Rating of A‑ or better. In addition, Customer shall procure and maintain workers compensation insurance complying with the law of the state where the Building is located, whether or not said coverage is required by applicable law, and employer’s liability insurance with limits of not less than One Million Dollars ($1,000,000). Each such policy shall provide that it cannot be canceled or modified unless ACEDC is given thirty (30) calendar days advance written notice of such cancellation or modification. The insurance requirements set forth herein are independent of Customers indemnification and other obligations hereunder and shall not be construed or interpreted in any way to restrict, limit or modify Customers indemnification or any other obligations hereunder, or to limit Customers liability in any way.
Customer and ACEDC and their respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliates and subsidiaries (each, as an “Indemnifying Party”) , each hereby agree to and shall indemnify, defend, protect and hold the other Party and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliates and subsidiaries (each, as an “Indemnified Party”) free and harmless from and against all Claims (defined below) for damages (including, but not limited to, attorneys fees, costs and expenses), injury and death arising out of or relating directly or indirectly to the failure or alleged failure by any Indemnifying Party to comply with this MSA and the License granted hereunder and Customers use of the Cabinet Space, excepting there from Claims arising out of or relating to the gross negligence or intentional misconduct of the Indemnified Party. For purposes of this MSA, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys fees and costs). Such indemnification obligation extends to and includes (a) Claims for injury to any person (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage or destruction of the Cabinet Space or the Premises), but specifically excluding (b) Claims for economic and consequential loss or damage, and any resulting incidental or punitive damages of any kind whatsoever. The provisions of this Section 8 shall survive the expiration or earlier termination of this MSA. Any Indemnified Party seeking indemnification hereunder shall give the Indemnifying Party prompt written notice of any Claim asserted or threatened against such Indemnified Party on the basis of which such Indemnified Party intends to seek indemnification, but the obligations of the Indemnifying Party shall not be conditioned upon receipt of such notice except to the extent that the Indemnifying Party is actually prejudiced by a failure to give notice). The Indemnifying Party shall promptly assume the defense of any Indemnified Party, with counsel reasonably satisfactory to such Indemnified Party, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing, any Indemnified Party shall be entitled, at its expense, to employ counsel separate from the counsel for the Indemnifying Party in such action, proceeding or investigation. An Indemnified Party shall not agree to a settlement of a Claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. No Indemnifying Party may agree to the settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.
9. DISCLAIMER OF WARRANTY
Upon the execution and delivery of the SLA, Customer accepts the Cabinet Space on an “as is”, “where‑is” basis. Except as otherwise specified in the SLA or this MSA, ACEDC makes no representations or warranties, express or implied, as to the condition of the Cabinet Space, the Premises or the Building and specifically disclaims, any and all express or implied representations or warranties including, without limitation, any warranties of merchantability or fitness for a particular purpose.
10. EVENT OF DEFAULT BY CUSTOMER
The occurrence of any one or more of the following shall constitute an “Event of Default” by Customer under the Service Contract: (a) on or after the twentieth (20th) calendar day of each month during the Term, Customer for any reason fails to pay to ACEDC any Fees or any other amount due hereunder, or (b) on or after the twentieth (20th) day after the date when due, Customer fails to pay to any other person or entity to whom Customer is required by this SLA to make payment of any amount required by the SLA to be paid by Customer; or Customer fails to perform any obligation or covenant set forth in the SLA and the same is not cured within ten (10) business days following receipt of written notice thereof.
11. ACEDCS REMEDY UPON DEFAULT; TERMINATION
In addition to all rights and remedies granted to ACEDC in the SLA (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default, ACEDC shall have the right (a) to cease providing the Services to Customer without notice to Customer, (b) to remove the Equipment from the Cabinet Space without prior notice to Customer, provided that ACEDC returns the Equipment to Customer as soon as shipment is provided by Customer/cost of shipment is paid by Customer, and (c) upon not less than three (3) business days written notice to Customer, to terminate the SLA, all at Customers cost and expense. In the event ACEDC terminates the SLA, the same shall terminate, expire and (except as otherwise provided in the Service Contract) have no further force or effect on the date set forth in ACEDCs notice of termination. Upon such termination, Customer agrees to and shall promptly (i) pay ACEDC all Fees and other amounts due and owing for Services provided through and including the effective date of termination, (ii) if not already removed by ACEDC, Customer shall remove its Equipment from and shall vacate the Cabinet Space and the Premises, and (iii) Customer shall repair any damage caused to the Cabinet Space, the Premises or the Building as a consequence of any removal of the Equipment. Customer’s obligations under this Section 11 shall survive the termination or expiration of the SLA.
Termination Fee. In the event this MSA is terminated by Customer for any reason other than default by ACE DC prior to the end of the then‑current Term, Customer shall pay to ACE DC an amount equal to the remainder of the fees due for the remainder of the Term (e.g., if Customer terminates this MSA two (2)months into an annual term for any reason other than default by ACEDC, Customer shall pay to ACEDC a termination fee equal to the balance for the remaining ten (10) months of the term).
12. EVENT OF DEFAULT BY ACEDC
The failure by ACEDC to perform any obligation or covenant set forth in the SLA, if the same is not cured within ten (10) business days following receipt of written notice thereof from Customer, shall constitute an “Event of Default” by ACEDC. Upon the occurrence of such an Event of Default, Customer may terminate the SLA upon not less than five (5) business days’ written notice to ACEDC.
13. ATTORNEYS’ FEES
If any legal or administrative action or proceeding is brought by either Party against the other Party to enforce or interpret any term or provision of this MSA, the prevailing Party in said action or proceeding shall be entitled to recover from the Party not prevailing its reasonable attorneys fees and costs incurred in connection with the prosecution or defense of such action or proceeding. The foregoing includes, without limitation, attorneys fees and costs of investigation incurred in appellate and remand proceedings, and all costs incurred in establishing the right to indemnification hereunder.
This MSA shall not be assigned, transferred or conveyed by Customer without first obtaining the prior written consent of ACEDC, which consent may be granted or withheld by ACEDC in its sole and absolute discretion. Any purported assignment or delegation without the required consent shall be null and void and of no legal force or effect.
15. GOVERNING LAW
This MSA and the SLA and all documents and instruments executed in connection herewith or therewith shall be governed and construed by and interpreted in accordance with the substantive laws of the State of Utah without regard to principles of conflicts of laws. The Parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this MSA shall be an appropriate court located in Salt Lake City, Salt Lake County, or Provo, Utah County, Utah.
16. NO WAIVER
- The failure of either Party at any time to enforce any right or remedy available to it under this MSA or the SLA or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either Party.
17. LIMITATION OF LIABILITY
(a) In addition to the specific limitations of liability, ACEDC shall not in any case be liable for any of the following: (1) the content of the information passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Customers records, information, files or data; (3) consequential damages (including lost profits and savings) or incidental damages, even if ACEDC is informed of their possibility; (4) claims for damages caused by Customer; (5) claims against Customer by any other Party; or (6) any act or omission of any other persons or entity furnishing services and/or products to Customer, or the installation and /or removal of any and all equipment or supplies.
(b) NOTWITHSTANDING THE PROVISIONS OF THE SLA, ACEDC SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY MATTERS BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ANY EVENT OF FORCE MAJEURE (DEFINED BELOW) OR ANY LABOR DISPUTES, FIRES OR OTHER CASUALTIES, WEATHER OR NATURAL DISASTERS, DAMAGE TO FACILITIES, OR THE CONDUCT OF THIRD PARTIES.
(c) NOTWITHSTANDING THE PROVISIONS OF THE SLA, ACEDC SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMERS BUSINESS, THAT RESULT FROM QUALIFIED SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY, EXCEPT THAT CUSTOMERS SOLE REMEDY FOR QUALIFIED SERVICE OUTAGES SHALL BE THE REFUND PROVIDED PURSUANT TO THE SLA. ACEDC SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME, CONNECTIVITY FAILURE OR SERVICE INTERRUPTION.
(d) ACEDC SHALL NOT BE LIABLE FOR ANY DAMAGES TO OR THEFT OF CUSTOMERS EQUIPMENT OR PERSONAL PROPERTY LOCATED ON THE PROPERTY OF ACEDC, FOR ANY REASON.
(e) IN NO CASE SHALL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES WITH RESPECT TO ANY CLAIMS REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF THEY HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
(f) CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISKS, INCLUDING, WITHOUT LIMITATION, ELECTRIC SHOCKS, AND HEREBY RELEASES ACEDC AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY AND ALL LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY.
This MSA may be amended from time to time in writing and/or published on ACEDCs web site.
All notices and demands hereunder shall be in writing and shall be served by personal service by mail at the address of the receiving Party set forth below (or at such different address as may be designated by such Party by written notice to the other Party). All Notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of confirmed delivery or confirmed facsimile transmission. To be effective, Notices must be delivered to the attention of
If to ACEDC, to:
Ace Data Centers, Inc.
727 North 1550 East, Suite 400
Orem, Utah 84097
Attention: Legal Department
Telephone: (801) 851‑5540
Fax: (888) 724‑7570
If to Customer, to:
To theCustomer’s contact name and address set forth in the Service Contract
20. RIGHT TO ACCESS CABINET SPACE
ACEDC retains the right to access the Cabinet Space at any time and from time to time to perform maintenance and repairs, to inspect the Equipment and to perform the Services.
21. FORCE MAJEURE
“Force Majeure” means and refers to any of the following events: acts of war, acts of God; rebellion or sabotage or damage resulting therefrom; expropriation or confiscation of facilities by any governmental authority; compliance with any order of any governmental authority; acts of the government in its sovereign capacity which cause a delay, deferral or suspension in ACEDCs ability to provide the Services; subsidence; earthquakes; hurricanes; fires; floods; explosions; accidents; quarantine restrictions; freight or other embargoes; casualty losses; strikes; labor disputes; shortages of materials or transportation; electrical blackouts or brownouts; the failure of any utility provider to deliver electricity or water to the Premises; and the failure of Customers Equipment. Notwithstanding the above, Force Majeure shall not include (a) any event caused by the fault, negligence, failure to pay money or financial inability of the Party claiming Force Majeure, or (b) any event within the reasonable control of the Party claiming Force Majeure.
22. RELATIONSHIP OF THE PARTIES
The Parties agree that their relationship hereunder is in the nature of independent contractors. Neither Party shall be deemed to be the agent, partner, joint venturer or employee of the other, and neither shall have any authority to make any agreements, contracts or representations on the other Party’s behalf. Each Party shall be solely responsible for the payment of compensation, insurance and taxes of its own personnel, and such personnel are not entitled to the provisions of any employee benefits from or provided by the other Party. Neither Party shall have any authority to make any agreements, contracts or representations on the others behalf without such other Party’s written consent. Additionally, ACEDC shall not be responsible for any costs and expenses arising from Customers performance of its duties and obligations pursuant to this MSA.
Both Parties represent and warrant to the other: (1) that it is a duly organized and existing legal entity under the laws of its domicile, if Customer is a corporation or partnership; (2) that it has full authority to enter into this MSA; (3) that the execution and/or performance of this MSA does not and will not violate or interfere with any other agreement or contract by which such warranting Party is bound; and (4) that the Party making such representations and warranties will not enter into any agreement or contract whose execution or performance would violate or interfere with this MSA.
The titles and headings of the Sections and paragraphs in this MSA are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify or any of the provisions of this MSA.
25. LIMITATION OF ACTIONS
No action, regardless of form, arising out of or relating to this MSA may be brought by Customer more than twelve (12) months from the date on which the cause of action accrues. The Parties expressly agree that this Section 25, as to Customer, only supplants and replaces any and all periods of limitation otherwise provided for by applicable law and applicable hereto. All periods of limitation otherwise applicable to actions by ACEDC shall remain as provided by applicable law.
If any portion of this MSA is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions hereof will continue in full force and effect without being impaired or invalidated in any way. The Parties agree that any such invalid provision shall be replaced with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
Each Party for itself, its employees, agents and representatives agrees that it will not divulge any confidential or proprietary information it receives from the other Party, except as may be required by law. The terms and conditions of this MSA shall be considered confidential or proprietary information under this Section 27. Neither Party shall use the other Party’s name in marketing materials, including, but not limited to, press releases, without the prior written consent of the other Party, which can be denied in such other Party’s sole discretion.
28. ENTIRE AGREEMENT
The Service Contract to which this MSA, the SLA and the TOS is related, constitute the entire understanding of the Parties related to the subject matter hereof. The Parties have read these Agreements and agree to be bound by the terms and conditions hereof and thereof, and further agree that this MSA, the SLA and the TOS, constitutes the complete and entire agreement of the Parties and supersedes all and merges all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. No representations, warranties or statements of any kind made by either Party that are not expressly stated herein shall be binding on such Party. The Parties agree that there are no third party beneficiaries to this MSA.