Master Service Agreement (vA4.11)

This Master Service Agreement (“Agreement” or “MSA”), by and between Latisys-Denver, LLC, with offices at 393 Inverness Pkwy, Englewood, CO  80112, on behalf of itself and its parent, subsidiaries and affiliates (“Latisys”) and the above named client (“Client”) covers business transactions which Latisys and Client may enter into from time to time.

 

NOW, THEREFORE, the parties hereto agree as follows:

DEFINITIONS

Addendum:  In the event the parties wish to modify any provision or part of this Agreement they shall enter into one or more Addenda to be executed by both parties.  Any such Addendum shall be deemed a part of this Agreement, and all obligations and liabilities of Client under this Agreement shall fully apply to all matters set forth in any Addendum.  In the event of conflict between the terms of this Agreement and the terms of any Addendum, the terms of the applicable Addendum shall control.

 

Client:  The party entering into this Agreement with Latisys as identified in the upper right hand corner of this page.

 

Client’s Data:  Means the video, text (digital or otherwise), data, sounds, photographs, illustrations, graphics or other images, programs, code and other materials either provided to Latisys by Client for Latisys’ performance of the Service(s) or stored by Client, Client’s customers and/or persons under Client’s control through any Service(s) provided hereunder.

 

Client’s Space:  For colocation Clients only; the space assigned to Client for the provision of colocation Service(s).

 

Data Center:  The Latisys facility, or facilities in the event Client has selected multiple Latisys sites, in which Client’s Space is located.

 

Equipment:  The set of articles or physical resources, tangible or intangible, including but not limited to hardware, firmware or software, serving to equip Latisys and/or Client in the operation of the Data Center and/or the provision of Service(s) to Client.

 

Good(s):  Any products, including hardware, firmware or software licenses sold, licensed or otherwise provided to Client.

Service(s):  Work performed by Latisys hereunder, pursuant to applicable SOF(s) and/or SOW(s).

Service Order Form (“SOF”):  Sets forth a description, and the cost, of specific Good(s) and/or Service(s) to be performed, or provided, by Latisys.  Separate SOFs may be executed for different Good(s) and/or Service(s) and be subject to different Terms.

 

Statement of Work (“SOW”):  Consulting or technical Service(s) of a specialized and unique nature; the details, deliverables, milestone dates, fees and other pertinent information relating to such performance of which will be set forth on a separate, detailed document; which may, among other things, be set forth in the structure of a long form service(s) specification or a short form service(s) description.

Term:  The period of time during which Latisys is obligated to provide Service(s) pursuant to mutually executed SOF(s) and/or SOW(s).  When Client has entered into multiple SOFs and/or SOWs, there can be multiple Terms or the Term can be coterminous depending on the provisions of the applicable SOFs and/or SOWs.

 

SECTION 1.  TERM.  This Agreement shall remain in effect until terminated pursuant to §10 hereof.  The commencement of any Term shall be on the first day that the Service(s) is/are ready for Client’s use, or in the event Client is required to engage in an act or omission or provide information in order for the Service(s) to be useable and Client fails to do so, on the first business day after receipt of notice from Latisys.

 

SECTION 2.  ORDER SUBMISSION, CREDIT APPROVAL AND DEPOSITS 

 

2.1   Order Submission.  Client may from time to time submit to Latisys orders containing requisite information on an SOF or other approved form.  Latisys’ acceptance shall confirm the availability of the Good(s) and/or Service(s) requested. 

 

2.2.  Credit Approval And Deposits.  Client agrees to provide Latisys with credit information as requested, and delivery of Service(s) is subject to credit approval.  Client’s execution of this Agreement authorizes Latisys’ continuing credit review and approval.  Latisys shall have the right to require Client to make one or more deposits as a condition of Latisys’ continuation of Service(s); said deposit or deposits will be held by Latisys as security for payment of Client’s service charges.  No interest shall be earned on deposits.  At such time as the provision of Service(s) to Client is terminated, the amount of the deposit will be credited to Client’s account and any credit balance will be refunded.  Latisys reserves the right to immediately terminate this Agreement in the event Client’s credit is not approved to secure payments hereunder.

 

2.3   Paperless Orders.  Latisys has created the ability for Client to purchase additional, nominal Service(s) through the ticketing process that will not require the SOF procedure.  In the event that Client elects to avail itself of this process, Client agrees that any such election shall carry the same weight as an SOF in that Client will be obligated to pay the associated fee(s) and that the Term shall be coexistent with the primary Service which Client is augmenting.

 

SECTION 3.  BILLING AND PAYMENT

 

3.1   Billing.  One time set-up fees are due upon order submission, provided however, if not paid at said time, same will be billed upon completion of set-up or as stated below.  Recurring service charges are billed monthly in advance, effective upon Latisys’ delivery of Service(s).  Usage and consumption charges are billed in arrears.  Billing will commence when Latisys has prepared Service(s) for Client’s use whether or not Client is ready to use the Service(s) but in no event prior to the agreed to commencement date set forth in the applicable SOF.  Further, if set up requires Client’s acts and/or omissions or information from Client, in the event Client fails to timely provide same, billing will likewise commence.

 

3.2   Payment.  Payment of undisputed amounts is due in accordance with the invoice, without other set off or deduction, within thirty (30) days of the invoice date.  If payment of undisputed amounts is not received within said time, the unpaid balance of the undisputed amounts of any invoice shall bear interest at the lesser of one and one-half (1.5%) percent per month (prorated on a daily basis) or the highest rate allowed by law and Client shall pay all collection costs including, but not limited to, reasonable attorneys’ fees, court costs and/or collection agency fees. 

 

3.3   Suspension of Service(s).   If the undisputed portion of Latisys’ invoice is not paid within thirty (30) days of the date of the invoice, after providing five (5) business days written notice, Latisys may suspend the Service(s) (including access to the Data Center and Client’s Space) immediately until all undisputed amounts owed have been paid.  To re-enable Service(s), Latisys may require a reconnection fee and other charges set forth in §9.

 

3.4   Disputed Bills.   Client may dispute an invoice or any portion thereof only by (i) submitting a written, detailed claim to Latisys (c/o Accounting Dept.) describing such dispute within thirty (30) days of the invoice date and (ii) making full and timely payment of all undisputed amounts.  In the event that Client has not disputed an invoice, or any portion thereof, within six (6) months of its date, Client shall forfeit all right to challenge the content of same.

 

3.5   Taxes and Fees.  Prices for Good(s) and/or Service(s) on an SOF are exclusive of applicable sales or use taxes, which, if applicable, shall be paid by Client but shall not include any tax on Latisys’ income.

 

3.6   Regulatory and Operational Changes.  During the Term, in the event of the imposition of any new regulatory requirement, tax, tariff, increased power costs or similar circumstance beyond the control of Latisys that increases the cost of Service(s), Client shall have thirty (30) days after receipt of written notice of the related price increase to terminate the affected Service without early termination charges.

 

SECTION 4.  Performance by Latisys  Latisys will use industry standard efforts to:  (i) maintain Latisys’ facilities and Equipment required to deliver Service(s), (ii) furnish Service(s) in accordance with the applicable Service Level Agreement (“SLA”) and any relevant Service(s) descriptions, and (iii) provide additional Service(s), upon request and if appropriate resources are available, at Latisys’ then-current rates.

 

SECTION 5.  GOOD(S)

 

5.1   Title.  Title to Good(s) sold to Client shall pass upon full payment.  Title to all other Good(s), Equipment and/or facilities furnished by Latisys, shall remain with Latisys.

 

5.2   Shipment.  Client shall notify Latisys and the shipping company, in writing, within two (2) business days after delivery of any defective, non-conforming or damaged Good(s).  Failure to do so shall constitute acceptance of any such Good(s) and a waiver of any claim against Latisys.

 

5.3   Exclusions.  Good(s) installed by Latisys for use in connection with the Service(s) shall not be used for any purpose other than that for which Latisys installed it.  In the event that Client or a third party attempts to operate or maintain any Latisys installed or Latisys-owned Equipment without first obtaining Latisys' written approval, Client shall pay Latisys, in addition to any other remedies to which Latisys is entitled, for any damage incurred, repair and/or replacement (at Latisys' option) necessitated and service charges relating to the maintenance or inspection of said Equipment.  Latisys is not responsible for the installation, maintenance, compatibility, or performance of any equipment or software not provided by Latisys.  If such Equipment impairs the Service(s) or any of Latisys’ operating systems, Client remains liable for payment.  If such Equipment causes or is likely to cause hazard or service obstruction, Client shall, upon notice, remedy the situation.  Latisys may, at Client’s request and at Latisys’ then-current rates, render consulting service to remedy the difficulties caused by any of the foregoing.

 

5.4   Good(s) and/or Service(s) Selected.  (i) Latisys agrees to provide and Client agrees to purchase the Good(s) and/or Service(s) set forth on any duly executed SOF(s) and (ii) in the event Client requests Latisys to perform a SOW(s) and Latisys agrees, Latisys shall perform same in accordance with any such SOW(s).  In such event, Latisys shall provide said Service(s) to Client using Latisys employees or subcontractors of Latisys, the choice of which is at Latisys’ sole discretion.

 

SECTION 6.  CLIENT OBLIGATIONS

 

6.1   Client’s Obligations. 

 

A.    Client shall pay: (i) charges applicable to the Good(s) and/or Service(s) on all applicable SOFs [including charges incurred as a result of fraud or unauthorized use of the Service(s)]; (ii) additional fees or charges arising from supplemental Service requested by Client and/or Client’s usage of facilities, bandwidth and/or network capacity above and beyond Client's entitlement as set forth in the applicable SOFs; and (iii) other mutually agreed to charges.

 

B.    Client will:  (i) be solely responsible for all Client’s Data and any party’s reliance thereunder and (ii) allow Latisys, for the sole purpose of its performance hereunder, to copy, display, distribute, download, and otherwise use Client’s Data to transmit it over the Internet.

 

C.    Client shall not and shall not permit others to rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any of the facilities, Equipment or Latisys-owned Equipment, except upon Latisys’ prior written consent. 

 

D.    For colocation Service only, Client shall obtain and/or maintain in full force and effect during the Term of the applicable SOF:  (i) comprehensive general liability (“CGL”) insurance insuring Client against any liability arising out of the colocation, use, occupancy or maintenance of the Data Center and all areas surrounding it, which policy shall be in an amount not less than FIVE MILLION ($5,000,000) DOLLARS per occurrence for bodily injury and property damage to tangible property (including loss of use) in an occurrence, and which policy shall insure the hazards of the Data Center and Client’s operations thereon, independent contractors, contractual liability (including covering Client’s indemnity obligation contained in this Agreement); (ii) workers’ compensation insurance in an amount not less than the statutory requirements and employer’s liability insurance in an amount not less than ONE MILLION ($1,000,000) DOLLARS per occurrence; and (iii) Standard form property insurance for Client’s Equipment insuring against the perils of fire, extended coverage, vandalism, malicious mischief, special extended coverage (“all-risk”) and sprinkler leakage, which policy shall be on all Equipment and other property owned by Client, for which Client is legally liable or that was installed at Client’s expense, and which is located in the Data Center, in an amount not less than ninety percent (90%) of the full replacement cost thereof.  Client shall furnish Latisys with a Certificate of Insurance evidencing such CGL coverage and naming Latisys as an additional insured.  Client will be solely responsible for ensuring that its agents (including consultants, contractors and subcontractors) maintain separate insurance at levels no less than those required herein above.  Client is solely responsible for obtaining and/or maintaining appropriate property coverage for all Client Equipment located on Latisys’ premises.  Further, each party shall cause casualty and/or property damage insurance carried by it to be written to provide that the insurance company issuing such insurance waives all right of recovery by way of subrogation against either party in connection with any damage covered by any such policy.  Either party’s failure to carry the required insurance shall not invalidate this waiver.

 

E.     When Service(s) occur at Client’s offices as set forth in the address block in the top right hand corner of page one (1) of this Agreement, Client shall provide: (i) space, utilities, and HVAC necessary to maintain the proper environment for the Service(s), (ii) a safe, hazard free, working environment complying with applicable laws and regulations, and (iii) access and cooperation as may be required for provision of Good(s) and Service(s); and (iv) shall ensure Latisys' Equipment remains free and clear of any liens or encumbrances.

 

F.     Client shall notify Latisys of any changes to its notice address or other contact information.

 

6.2   Client Warranty.  Client warrants and represents that it has all necessary right, title and interest in the Client’s Data, and/or that it has obtained all consents, licenses, permissions and releases necessary to grant Latisys the right to distribute the Client’s Data for the purpose of Latisys’ performance of the Agreement.

 

6.3   Compliance.  Client shall comply with all applicable laws and regulations and with Latisys' Policies and Procedures as may be in effect from time to time (See the Latisys website - www.Latisys.com).

 

6.4   Security Procedures.  Client shall be responsible for following all security procedures in place at the Data Center and shall be liable for any loss or damage to any Equipment, regardless of ownership, due to Client not following such procedures.

 

6.5   Protect and Maintain Your Equipment.  If Client purchases colocation Service(s), Client at its own cost and expense, shall protect and maintain Client’s Space and Client’s Equipment, and shall ensure that neither it nor its employees, agents, contractors or invitees damage any part of the Data Center, Client’s Space or any of Client’s Equipment located in or about the Data Center, and shall not allow any debris or supplies to be left therein.  Client agrees to reimburse Latisys for any costs incurred for the removal of such items.  Client shall not maintain or permit any nuisances or violations of any regulations or ordinances with respect to the Data Center.  Client shall ensure that its employees, agents or invitees shall not permit any explosive, combustible, hazardous, or toxic materials, as defined under state, federal or local laws or regulations, to be located in or about the Data Center or Client’s Space, except in compliance with all applicable laws and regulations and upon Latisys’ prior written consent.

 

6.6   No Control Over Client’s Data.  Client acknowledges and agrees that Latisys exercises no control over, and accepts no responsibility for, the content of the information passing through Latisys’ network or the Internet.  Client understands further that the Internet contains materials some of which are socially inappropriate or may be offensive; and is accessible by persons who may attempt to breach the security of Latisys and/or its network(s).  Latisys has no control over and expressly disclaims any liability or responsibility whatsoever for such materials or third party actions.  Client and its users and end users access the Service(s) at their own risk.  Latisys is not liable for Client’s Data or any data transferred either to or from Client or stored by Client or any of Client’s customers via the Service(s) provided by Latisys.

 

SECTION 7.  SERVICE LEVEL & DISCLAIMER OF WARRANTIES

 

7.1   Service Level.  Service(s) shall conform to the SLA attached hereto or attached to an applicable SOF.

 

7.2   No Other Warranty.  EXCEPT FOR THE SERVICE LEVEL REFERENCED IN §7.1, SERVICE(S) IS/ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND LATISYS EXCLUDES AND CLIENT HEREBY WAIVES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED [OTHER THAN RELATING TO TITLE OF GOOD(S)] ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.  LATISYS DOES NOT WARRANT OR GUARANTY THAT THE SERVICE(S) WILL CAUSE THE GOOD(S) TO OPERATE WITHOUT FAULT, ERROR OR INTERRUPTION. 

 

SECTION 8.  LIMITATION OF LIABILITY

 

8.1   Limitation of Liability.  

 

A.    THE LIABILITY OF LATISYS FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICE(S) OR ANY OTHER MATTER HEREUNDER, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS OR OTHER DEFECTS, REPRESENTATIONS, USE OF SERVICE(S) OR ARISING OUT OF THE FAILURE TO FURNISH SERVICE(S), WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, (INCLUDING CLIENT HARDWARE OR SOFTWARE FAILURES OR ANY OTHER DAMAGE OCCURING AFTER THE PROVISION OF SERVICE(S) SUCH AS LOSS OF DATA OR OTHERWISE) SHALL BE LIMITED TO THE EXTENSION OF CREDIT ALLOWANCES DUE UNDER ANY APPLICABLE SLA. THE EXTENSION OF SUCH CREDIT ALLOWANCES OR REFUNDS SHALL BE CLIENT’S SOLE REMEDY FOR SERVICE(S) OUTAGES.  IN THE EVENT CLIENT HAS OTHER DAMAGES LATISYS’ TOTAL LIABILITY SHALL NOT EXCEED SERVICE PAYMENTS MADE BY CLIENT TO LATISYS OVER THE PRECEEDING TWELVE (12) MONTHS.

 

B.    NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF A PARTY’S EMPLOYEES OR REPRESENTATIVES, CULPABLE NEGLIGENCE, OR WILLFUL MISCONDUCT REGARD-LESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES.

 

C.    LATISYS SHALL HAVE NO OBLIGATION OR LIABILITY FOR (i) ANY RECONFIGURATION, MODIFICATION, MISUSE OR ABUSE OF GOOD(S) OR SERVICE(S) BY CLIENT OR ITS AGENTS AND (ii) ANY CLIENT’S DATA.

 

8.2   Basis of Bargain and Failure of Essential Purpose.  Client acknowledges and agrees that Latisys has set its prices and entered into this Agreement in reliance on the warranties, limitations and disclaimers set forth herein, which reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss) and form an essential basis of the bargain between the parties.

 

SECTION 9.  SUSPENSION

 

9.1   Right to Suspend.  Latisys may suspend access or any or all Service(s) forthwith in the event that:

 

A.    (i) Client fails to comply with any provision of §§3, 6 or 11 of this Agreement or (ii) Latisys is entitled to terminate this Agreement pursuant to §10.1;

 

B.    such suspension is:  (i) for the purpose of carrying out maintenance pursuant to this Agreement; (ii) to substitute, change, reconfigure, relocate or rearrange Service(s); or (iii) in accordance with an order, instruction or request of any government entity; or

 

C.    Client consumes Service(s) in an amount that materially exceeds Client’s credit limit and Client, after written notice and a reasonable period for the parties to mutually agree on sufficient security for payment, has not provided same. 

 

9.2   No Waiver.  Suspension shall not be a waiver of any right of termination.  If Service(s) has/have been suspended other than for Client’s breach, Service(s) shall be restored as soon as reasonably possible and the applicable service charges shall be ratably abated.  If Service(s) has/have been suspended for any other reason and Client requests that Service(s) be restored, Latisys may restore Service(s) after satisfaction of conditions and imposition of charges as Latisys reasonably requires.

 

SECTION 10.  TERMINATION

 

10.1 Termination for Cause.  Latisys may terminate this Agreement: (i) without notice upon Client’s failure to pay amounts when due, after five (5) days written notice and failure to cure; (ii) for breach of a material provision of this Agreement, after fourteen (14) days written notice and failure to cure; (iii) if Latisys is unable to provide Service(s) hereunder due to Client’s acts or omissions; (iv) upon any regulatory decision or governmental order requiring Latisys to suspend Service(s) or which is reasonably likely to result in the loss of Latisys’ operating authority, upon reasonable notice; or (v) if Client files for bankruptcy or reorganization or fails to discharge an involuntary petition therefore within sixty (60) days after filing.  Any termination hereunder, except under §10.1(iv), shall subject Client to applicable termination and other accrued charges.

 

10.2 Termination of MSA.  Unless terminated earlier pursuant to §§10.1 or 10.3 of this Agreement, this Agreement shall automatically terminate six (6) months following the termination of all SOFs, unless the Parties enter into at least one new SOF within such six (6) month period.  Either party may terminate this Agreement upon thirty (30) days written notice provided no SOFs are in effect and all amounts due Latisys shall have been paid.

 

10.3 Early Termination: Charges.  If Service(s) is/are terminated by Client for convenience before the end of the SOF Term, which can only be done on thirty (30) days prior written notice, Client will pay an early termination charge of one hundred percent (100%) of its recurring charges for the remainder of the SOF Term, provided no such charge will apply if: (i) Client terminates as a result of Latisys’ material breach, i.e., for cause, or (ii) Latisys terminates other than by reason of Client’s breach.  The parties specifically agree that the damages which Latisys would incur arising from any breach or early termination for convenience of this Agreement by Client are based upon future facts and conditions which are difficult for the parties to presently predict, anticipate, ascertain or calculate.  The parties further agree that such liquidated damages, as determined herein, are based upon the best efforts of the parties to estimate the nature and amount of Latisys’ actual damages, are not penal in nature, and are intended to place Latisys in the same position it would have achieved, had this Agreement been fully performed by the parties according to the original terms.  Upon the effective date of expiration or termination of this Agreement, (a) Latisys will immediately cease providing the Service(s), and (b) any and all payment obligations of Client under this Agreement will become due immediately.  Termination by Client for convenience, or by Latisys with cause does not terminate Client’s obligations under this Agreement, including the obligation to pay charges as set forth herein, including past due amounts and interest thereon, if applicable.  In the event this Agreement is terminated for any reason, all SOFs shall automatically terminate as of the effective date of this Agreement’s termination, unless the parties mutually agree in writing not to terminate specific SOFs.  In the latter case, such non-terminated SOFs shall continue to be governed by this Agreement until the applicable SOF is terminated or concluded.  In the event that Client fails to pay Latisys all amounts owed under any SOF in a timely manner, Client agrees that without notice, Latisys may, without liability, take possession of any Client Equipment and store it, at Client’s expense, until taken in full or partial satisfaction of any lien or judgment; or liquidate the property in a commercially reasonable manner, upon notice and apply the proceeds to any amounts due under this Agreement.

 

SECTION 11.  SOFTWARE

 

11.1 License.  If and to the extent computer software provided by Latisys or its licensors is required for the use of a Service ordered by Client hereunder (“Licensed Software”), Latisys shall grant or obtain for Client a nonexclusive, nontransferable, limited license to use such Licensed Software, in object code format only, and solely to the extent required to use the Service(s).  Client shall in no event be entitled to claim title to or any ownership interest in any Licensed Software (or any derivations or improvements thereto), and Client shall execute any documentation reasonably required to memorialize the licensor’s existing and continued ownership of Licensed Software.

 

11.2 Restrictions.  Client shall not copy, reverse engineer, decompile, disassemble, sell, lease, license or sublicense the software; or create, write or develop any derivative software or other software program, based on the Licensed Software.

 

SECTION 12.  MISCELLANEOUS

 

12.1 Force Majeure.  Except with respect to accrued payment obligations, neither party shall be liable for any failure of performance due to causes beyond such party’s reasonable control, including, but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, or governmental action; national emergencies, insurrections, riots, acts or attempted acts of terrorism or wars; unavailability of rights-of-way; or strikes or other labor difficulties not involving Latisys, provided however, the affected party shall use commercially reasonable efforts to eliminate such event.

12.2 No Competitive Service(s).  Client may not at any time, without Latisys’ prior written consent, permit any Latisys facility to be used for the resale of Internet access or managed Service(s) to Latisys’ Clients.

 

12.3 Non-Solicitation.  Neither party shall knowingly solicit for employment, offer employment to or employ the other party's employees during and for a period of two (2) years following termination of this Agreement.  In the event of a breach of this provision the parties agree that appropriate liquidated damages shall be payment by the breaching party of one hundred (100%) percent of the new annual compensation of the employed individual.

 

12.4 No Lease.  This Agreement is for Good(s) and/or Service(s) only and is neither intended to nor does it constitute an agreement relating to real property.  Client acknowledges and agrees that (i) it has been granted only a revocable license to use any applicable Client Space and appropriate Latisys facilities in accordance with this Agreement, and (ii) Client has no rights as a tenant or otherwise under any real property or landlord/tenant theory, laws, regulations, or ordinances.

 

12.5 Assignment or Transfer. Neither party may transfer or assign this Agreement, or any of its rights or obligations hereunder without the other’s prior written consent, which will not be unreasonably withheld. Each party shall remain liable for nonpayment by its respective assignee or transferee.  Notwithstanding the foregoing, Latisys may assign or transfer this Agreement without notice to a Latisys affiliate or successor in interest.  Provided, however, this Agreement shall be for the benefit of not only Client but its affiliates including subsidiaries, divisions, and companies with which it shares at least a minimum of fifty (50%) percent common ownership.

 

12.6 Notice.  Notice shall be in writing to the address set forth hereinabove and properly given: (i) immediately, if delivered in person, via facsimile, or electronic mail; (ii) after one (1) day, if sent by overnight courier; or (iii) after three (3) days, when sent by first class U.S. Mail.

12.7 Marketing.  Client agrees that Latisys may refer to Client and may briefly describe Client’s business in Latisys’ marketing materials, on the Latisys website and any press releases that Latisys may choose to issue.  Client hereby grants Latisys a limited license to use any Client trade names and trademarks only for this purpose.

 

12.8 Indemnification by Client.  Client shall indemnify, defend and hold harmless Latisys, its officers, directors, members, employees, subcontractors, representatives, landlords and/or mortgagees from claims, losses, damage, expense (including reasonable attorney's fees and court costs), or liability (including liability for infringement of a third party’s intellectual property rights), personal injury, death or property damage caused by or arising from:

 

A.    the Client’s Data or any communication transmitted via the Service(s) or maintained in connection with any Good(s) provided hereunder;

 

B.    the acts or omissions of Client or a third party under Client’s control, including their respective employees or representatives, in connection with the Good(s) or Service(s) provided hereunder.

 

12.9 Indemnification by Latisys.  Latisys shall indemnify, defend and hold harmless Client, its officers, directors, employees, subcontractors, and representatives, from claims, losses, damage, expense (including reasonable attorney's fees and court costs), or liability (including liability for infringement of a third party’s intellectual property rights), personal injury, death and property damage or caused by or arising from Latisys’ negligence or willful misconduct.

 

12.10 Indemnification Procedure.  With respect to a Party’s obligation to indemnify (the “Indemnifying Party”) the other Party (the “Indemnified Party”): (i) the Indemnified Party shall provide prompt written notice of any such claim, action or demand; (ii) the Indemnified Party shall allow the Indemnifying Party to control the defense and related settlement negotiations, provided, however, that the Indemnified Party shall have the right to participate in such defense with counsel of its own choosing at the Indemnifying Party’s expense; (iii) the Indemnified Party shall provide the Indemnifying Party, at the Indemnifying Party’s request, with reasonable assistance in the defense of such claim, action or demand, so long as the Indemnifying Party reimburses the Indemnified Party for the Indemnified Party’s reasonable out-of-pocket expenses associated therewith; and (iv) the Indemnifying Party shall not settle a claim in a manner that causes the Indemnified Party to incur unindemnified liability, take action, or suffer other injury, without the Indemnified Party’s written consent, which consent shall not unreasonably be withheld.  The Indemnifying Party shall not be relieved of its indemnification obligations herein for the Indemnified Party’s failure to comply with such requirements, except to the extent that the Indemnifying Party has been prejudiced by the Indemnified Party’s actions or inactions.

 

12.11 Confidentiality.  Unless the parties have entered into a non-disclosure or mutual non-disclosure agreement, the following shall apply:  “Confidential Information” means any information that is marked “confidential” or “proprietary” or any other similar term or in relation to which its confidentiality should by its nature be inferred or, if disclosed orally, is identified as being confidential at the time of disclosure and, within two (2) weeks thereafter, is summarized, appropriately labeled and provided in tangible form.  Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (ii) a matter of public knowledge; (iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information.  Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Agreement or any SOF hereunder; and (ii) protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until two (2) years thereafter, except with respect to Client data to which Latisys may have access in connection with the provision of Service(s), which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies.  Notwithstanding the foregoing, either party may disclose Confidential Information (a) to an Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing; and (b) if required by law provided the receiving party has given the disclosing party prompt notice unless precluded by law.

 

12.12 Export Control. The Service(s) and the technology included therein provided under this Agreement may be subject to governmental restrictions on (i) exports from the U.S.; (ii) exports from other countries in which such Service(s) and technology included therein may be produced or located; (iii) disclosures of technology to foreign persons; (iv) exports from abroad of derivative products thereof; and (v) the importation and/or use of such Service(s) and technology included therein outside of the United States or other countries (collectively, "Export Laws").  Client shall comply with all Export Laws and Latisys export policies to the extent such policies are made available to Client by Latisys.  Diversion contrary to U.S. law or other Export Laws is expressly prohibited.

 

12.13 Relationship of Parties.  The parties are independent contractors and this Agreement does not establish any partnership, joint venture, employment, franchise or agency relationship between them.

 

12.14 Severability.  Should any provision of this Agreement be held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity and maintain the parties’ original intent.

 

12.15 No Waiver; All Rights Cumulative.  Failure to enforce any provision of this Agreement shall not be construed as a waiver.  The parties’ rights shall be deemed cumulative, such that the exercise of one shall not preclude the exercise of others.

 

12.16 Third Party Beneficiaries.  The parties do not intend any provision of this Agreement to be enforceable by or to benefit any third party.  Provided, however, this Agreement shall be for the benefit of not only Client but its affiliates including subsidiaries, divisions, and companies with which it shares at least a minimum of fifty (50%) percent common ownership.  Provided, further, in the event any such affiliated company purchases Good(s) and/or Service(s) under this Agreement Client shall remain primarily liable even though Latisys will bill such affiliate directly at the affiliate’s request.

 

12.17 Intellectual Property Rights.  Latisys shall remain the sole owner of and retain all right, title and interest in any Service(s), technical information and/or intellectual property rights (IPR) provided to Client hereunder, including, without limitation, all trademark, trade names, service marks, copyrights, computer programs, general utility programs, software, methodology, databases, specifications, systems designs, applications, enhancements, documentation, manuals, know-how, formulas, hardware, audio/visual equipment, tools, libraries, discoveries, inventions, techniques, writings, designs and other IPR either used or developed by Latisys or its agents in connection with the provision of Service(s) hereunder (“Latisys Technology”).  Any Latisys Technology will not be work for hire.  In return for payment of all fees and charges, Latisys grants to Client a royalty free, non-exclusive, non-transferable, non-assignable license to use any IPR provided with Service(s) hereunder.  Latisys shall be free to provide similar IPR to other parties and shall retain the right to unrestricted use of any data, any and all related concepts, know-how, techniques or IPR either acquired or developed as a result of this Agreement.

 

12.18 Supplemental Terms.  The terms contained in any SOF, SLA, SOW or other related documents are intended to supplement this Agreement’s terms.

 

12.19 Headings.  The titles and headings of the sections and subsections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of this Agreement’s provisions.

12.20 Survival.  The following sections of this Agreement shall survive termination: §3, §5, §7, §8, §10.3 and §12.

12.21 Governing Law & Jurisdiction.  This Agreement shall be governed by the laws of the State of Colorado applicable to contracts to be fully performed therein.  The jurisdiction and venue for actions related to this Agreement shall be the State and Federal Courts located in Denver County, Colorado.  Provided, that Latisys may bring an action in such Courts or in the jurisdiction where Client’s principal place of business is located.

 

12.22 Entire Understanding.  This Agreement and any SOF, SLA, SOW or other related documents executed hereunder, constitute the parties’ entire understanding and supersede any oral representations, understandings and offers related to the subject matter hereof.  In the event Client is an existing Client with an unexpired MSA or DCA, Colocation and/or Hosting Agreement said agreement(s) shall be superseded by this Agreement and any SOFs thereunder shall become subject to this Agreement.  This Agreement can be modified in writing by a document duly signed by authorized persons of both parties. 

 

12.23 Counterparts.  This Agreement may be executed in counterparts, including facsimile transmissions and/or electronic signatures, each of which shall be deemed an original against any party whose signature appears on such counterpart and all of which together shall constitute one and the same Agreement.

 

IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives as of the date first above written.

 

LATISYS	CLIENT:
By: _____________________________________	By: _____________________________________
Name:  Joan M. Stoneking	Name:
Title:  Controller	Title:

LATISYS STANDARD SERVICE LEVEL AGREEMENT(vA4.11)

 

NOTICE TO ALL CLIENTS:  TO QUALIFY FOR THE BELOW SET FORTH ENTITLEMENTS CLIENT

MUST FULLY COMPLETE ALL LATISYS REQUIRED CLIENT CONTACT INFORMATION FORMS.

 

1.  Network Availability and Uptime.  Latisys guarantees one hundred (100%) percent Backbone Network Uptime with at least ninety-nine (99%) percent sustained Packet Throughput (PT).  To determine compliance, measurements are taken on a continual basis on the Latisys U.S. Domestic Backbone Network between various combinations of any two of our Points of Presence (POPs).

 

1. Network availability refers to the ability of a Client to access the Latisys Backbone Network.

 

1. Latisys measures latency on the Latisys Backbone Network.  These measurements are taken as round trip times between core routers within the Latisys POP facilities in the continental United States.  Latisys guarantees an average round trip latency of not more than one hundred and twenty (120ms) milliseconds.  If this standard is not met, Latisys will credit the Client as detailed in §5.

 

1. Network Unavailability is defined as a packet loss in excess of fifty (50%) percent for fifteen (15) consecutive minutes or more or one that exceeds one (1%) percent for two (2) or more consecutive hours on the Latisys Backbone Network.  Periodically, Latisys will upgrade or find the need to repair or replace vital network equipment which interruptions are foreseeable events common to all First Tier network providers.  Neither these maintenance events, necessary for providing a consistently high level of service, nor Client caused outages or disruptions beyond Latisys’ control are considered “Network Unavailability” as covered by this SLA.

 

1. Clients must report Network Unavailability of longer than fifteen (15) consecutive minutes or the aforementioned packet loss to Latisys Network Operations Center (NOC) within three (3) business days of the event.  If the event reported by the Client is confirmed by Latisys’ NOC, the Client will receive a pro-rated service credit as detailed in §5.  However, the total of any credits granted for any twenty-four (24) hour period may not exceed one (1) full day’s pro-rated fee.

 

1. Network Unavailability for Point to Point Leased Line Dedicated Access Clients caused by a failure due to the Local Exchange Carrier (LEC) is covered by this SLA for any Service(s) with a Latisys ordered local loop circuit.  Latisys will use industry standard efforts to remedy any circuit failures when working with the LEC.  The pro-rata discount for this type of outage is limited to Internet Port access fees only and will be applied to Client's invoice as described in §5.

 

2.  Hardware and Software Monitoring and Uptime.  Equipment not owned and operated by Latisys is not directly monitored.  However, indirect monitoring is provided in the form of a standard Ping Test performed every three hundred (300) seconds to one (1) IP address per Client service account.  It is the Client’s responsibility to provide the IP address to be monitored. In the event that three (3) consecutive Ping Tests fail, Latisys will notify Client in accordance with the standard notification policy detailed in §3.  However, Latisys will not take any corrective action unless a Maintenance Agreement between the parties is in effect.

 

3.  Notification of Outages and Service Interruption Events.  Fifteen (15) minutes after an outage is officially recorded, which occurs when the second Ping Test fails, Latisys will contact Client's designated representative by e-mail, phone, or pager.  Clients reporting service interruption events or outages of any kind may use the “Single Point of Contact” local support telephone number for access to the twenty-four (24) hour Support Group.

 

4.  Dedicated Server Hardware Guarantee.  Latisys guarantees the functioning of all managed services hardware components and will replace any failed component at no cost to Client.  Hardware replacement will begin immediately upon identification of the hardware failure and is guaranteed to be complete within two (2) hours of the problem identification.  In the event that it takes more than two (2) hours to replace faulty hardware, Latisys will refund Client 5% of the monthly fee per additional hour of down time (up to 50% of Client’s monthly fee for the affected server).  Hardware is defined as the processor(s), RAM, hard disk(s), mother board, NIC card and other related hardware included under the managed services purchased by Client.

 

5.  Warranties and Disclaimers by Latisys.  Service Level Warranty.  In the event Client experiences any of the following and Latisys determines in its reasonable judgment that such inability was caused by Latisys’ failure to provide Internet Data Center Service(s) for reasons within Latisys’ reasonable control and not as a result of any action or inaction of Client or any third parties (including Client equipment and/or third party equipment), Latisys will, upon Client’s request in accordance with §5C., credit Client’s account as described below:

1. Inability to Access the Internet (Downtime).  If Client is unable to transmit and receive information from Latisys’ Internet Data Centers (i.e., Latisys’ LAN and WAN) to other portions of the Internet because Latisys failed to provide Internet Data Center Service(s) for more than fifteen (15) consecutive minutes, Latisys will credit Client’s account the pro-rata Latisys connectivity charges (i.e., all bandwidth related charges) for one (1) day of service, up to an aggregate maximum credit of connectivity charges for seven (7) days of service in any one calendar (1) month.  Latisys’ scheduled maintenance of the Internet Data Centers and Internet Data Center Service(s), as described in the Policies and Procedures, shall not be deemed to be a failure of Latisys to provide Internet Data Center Service(s).  Pro-rata daily credits are limited to one full day’s credit per twenty-four (24) hour service period.
2. Packet Loss and Latency.  While Latisys does not proactively monitor the packet loss or transmission latency of specific Clients, Latisys does monitor the packet loss and transmission latency within its LAN and WAN.  If Latisys discovers (either from its own efforts or after being notified by Client) that Client is experiencing packet loss in excess of the level set by the SLA purchased by Client (“Excess Packet Loss”) or transmission latency in excess of one hundred and twenty (120ms) milliseconds round trip time (based on Latisys’ measurements) between any two POPs within Latisys’ U.S. network (collectively, “Excess Latency”, and with Excess Packet Loss “Excess Packet Loss/Latency”), and Client notifies Latisys (or confirms that Latisys has notified Client), Latisys will take all actions reasonably necessary to determine the source of the Excess Packet Loss/Latency. 

(i)       Remedy of Excess Packet Loss/Latency.  If the Excess Packet Loss/Latency remedy is within the sole control of Latisys, Latisys will remedy the Excess Packet Loss/Latency within two (2) hours of determining the source of the Excess Packet Loss/Latency.  If the Excess Packet Loss/Latency is caused from outside of the Latisys LAN or WAN, Latisys will notify Client and will use industry standard efforts to notify the party(ies) responsible for the source and cooperate with it/them to resolve the problem as soon as possible.

(ii)     Failure to Determine Source and/or Resolve Problem.  If Latisys is unable to determine the source of and remedy the Excess Packet Loss/Latency within the time periods described above (where Latisys was solely in control of the source), Latisys will credit Client’s account the pro-rata Latisys connectivity charges for one (1) day of Service(s) for every two (2) hours after the time periods described above that it takes Latisys to resolve the problem, up to an aggregate maximum credit of connectivity charges for seven (7) days of Service(s) in any one (1) month.

C.    NOTE: Client Must Request Credit.  To receive any applicable credits, Client must notify Latisys Customer Service within three (3) business days from the time Client becomes eligible to receive a credit or forfeit its right to receive a credit.  Latisys will contact Client to review the status of the credit request and to determine the applicable credit, if any, due Client.

D.    Remedies Not Cumulative - Maximum Credit.  In the event that Client is entitled to multiple credits arising from the same event, whether under this SLA or any other SLAs, Client shall be entitled to receive only the maximum single credit available for such event.  In no event will Latisys be required to credit Client in any one (1) calendar month Latisys connectivity charges in excess of seven (7) days of Service(s).  A credit shall be applied only to the month in which the incident took place and will appear on the invoice for the month following.  Client shall not be eligible to receive any credits for periods during which Client received any Service(s) free of charge.

E.     Termination Option for Chronic Problems.  If, in any single calendar month, Client would be able to receive credits totaling fifteen (15) or more days (but for the limitation in subparagraph D above) resulting from three (3) or more events during such calendar month or, if any single event entitling Client to credits under subparagraph A exists for a period of eight (8) consecutive hours, then, Client may terminate the applicable Service for cause and without termination fee by notifying Latisys within five (5) days following the end of such calendar month.  Termination will be effective thirty (30) days after receipt of such notice by Latisys.