MASTER SERVICES AGREEMENT
This Master Services Agreement ("MSA" or "Agreement") is entered into as of the __ day of ________ 2013 (the "Effective Date") by and between Banks Data/Com, LLC, a North Carolina limited liability company d/b/a Secure Back-Up Services, and having an office at ___________________________________ ("Banks Data/Com"), and __________________________, a corporation with its principal office at ___________________________ (Customer").
. This MSA, and any addenda attached hereto govern the terms and conditions pursuant to which Banks Data/Com will provide co-location services and/or data storage and back up services.
2. Services to be Provided.
(a) Banks Data/Com initially will provide the services and products set forth on the addenda set forth below (each an "Addendum" and if more than one, the "Addenda"), on the terms and conditions set forth in this MSA and on the specific Addendum:
Data Storage and Backup Services Addendum
Upon written request from the Customer, additional services and products may be added to this MSA upon the execution by both parties of an additional Addendum covering such service or product, which Addendum will become a part of this MSA on the date it is signed by Banks Data/Com.
(b) Unless otherwise authorized by Banks Data/Com in writing, Customer shall use the products and services provided hereunder solely for Customer's business purposes and shall not resell the services provided by Banks Data/Com.
3. Billing and Payment.
(a) All charges for services and products provided pursuant to this MSA (except for charges that are dependent upon the level of usage), are set forth on Exhibit A attached hereto and will be invoiced by Banks Data/Com on a monthly basis in advance. All charges for services and products that are dependent upon the level of usage will be billed in arrears. Invoicing for partial months will be prorated based on a calendar month.
(b) All invoices are due upon receipt, and become past due ten (10) days later. All payment for services and products hereunder shall be paid in US dollars.
(c) Any payment not made when due will be subject to late charges of 1.5% per month (prorated on daily basis beginning on the past due date), or the highest rate allowed by law, whichever is less.
(d) Customer shall be responsible for payment of all sales, use, gross receipts, excise, access, bypass, franchise or other local, state and federal taxes, fees, charges or surcharges, however designated, imposed on or based upon the provision, sale or use of the services and products provided hereunder.
(e) In the event of any change in applicable law, regulation, rule or order that materially increases the costs or other terms of delivery of products and services under this MSA, Banks Data/Com and Customer agree to negotiate regarding the rates to be charged to Customer to reflect such increased cost. In the event that the parties are unable to reach agreement respecting new rates within thirty (30) days after Banks Data/Com's delivery of written notice requesting negotiation, then
(i) Banks Data/Com may pass such increased costs through to the Customer and;
(ii) Customer may terminate the specific product or service in question without termination penalty upon sixty (60) days prior written notice (so long as such notice is given within ninety (90) days of the first invoice reflecting the pass through of such increased costs).
(f) Customer shall provide Banks Data/Com with credit information as requested and the provisions of any product or service hereunder is subject to credit approval. Banks Data/Com may require Customer to make a deposit (which will not exceed Customer's estimated charges for two months for all products and services provided pursuant to the MSA) as a condition to Banks Data/Com's acceptance of any Addendum or as a condition to Banks Data/Com's continuation of service. All deposits shall be held by Banks Data/Com, as security for payment of Customer charges, and upon termination of service hereunder, the amount of the deposit will be credited to Customer's account and any remaining balance will be refunded.
4. Term and Termination.
(a) The initial term ("Initial Term") of this Agreement shall be for a period of one year commencing on the Effective Date of this MSA. Upon expiration of the Initial Term, this Agreement will automatically renew for successive one-year renewal terms (each, a "Renewal Term"), unless either party provides written notice of its intent to not renew at least ninety (90) days prior to the end of the Initial Term or a Renewal Term, as the case may be. For clarity the effective date of termination of the Agreement may be the first anniversary of the Effective Date with proper prior written notice. The Initial Term and all Renewal Terms are referred to as the "Term." After the Initial Term, Banks Data/Com may increase fees and prices charged hereunder on an annual basis by providing not less than one hundred twenty (120) days prior written notice of such increases to Customer.
(b) Banks Data/Com may terminate this MSA and discontinue providing service hereunder without liability upon the occurrence of a Customer Default (as defined below). For purposes of this Agreement, a "Customer Default" means:
(i) Customer's failure to pay a past due balance within ten (10) days after written notice thereof;
(ii) Customer's violation of any law, rule, regulation or policy of any governmental authority;
(iii) Customer's material misrepresentations in any information provided to Banks Data/Com;
(iv) Customer's fraudulent use of the products or services provided under this MSA;
(v) Customer's failure to cure its breach of any provision of the MSA within ten (10) days following written notice thereof provided by Banks Data/Com;
(vi) Customer's filing for bankruptcy, reorganization or failing to discharge an involuntary petition thereafter within sixty (60) days; or
(c) In the event Customer has a past due balance, Banks Data/Com reserves the right to limit or restrict the Customer's access to the facility and the Customer owned equipment located within the facility. The Customer will be notified of any such restrictions in writing, which writing may be via e-mail. Such access will be fully restored to the Customer upon prompt payment of all past due balances.
(d) In the event that Customer terminates its order set forth in an Addenda hereto, Customer shall pay a termination charge equal to 100% of the monthly recurring fees that would have been charged for all services provided by Banks Data/Com for the remaining portion of the Term.
5. Disclaimer or Warranties; Limitations on Liability; Indemnification.
(a) BANKS DATA/COM MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS MSA.
(b) Except as provided in Section 5(e) below, the liability of Banks Data/Com for damages or injury arising out of the furnishing of, or the failure to furnish, products or services described in the Addenda hereto, including but not limited to mistakes, omissions, interruptions, delays, tortuous conduct, representations, errors, or other defects, whether caused by acts of commission or omission, shall be limited to an amount equal to the price of products and services purchased by Customer during the three (3) month period preceding the event which caused the damages or injury. In case of an interruption or failure of any of the services furnished hereunder, including but not limited to power, back-up power, HVAC, transmission and Internet services, Banks Data/Com shall use commercially reasonable efforts to restore service as soon as possible. If Banks Data/Com elects, it may substitute a reasonably equivalent service. In no event shall Banks Data/Com be liable for unauthorized access to Customer's equipment or for unauthorized access to or alteration, theft or destruction of Customer's data files, programs, procedure or information through accident, fraudulent means or devices, or any other method.
(c) Notwithstanding any other provision hereof, Banks Data/Com shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages (including but not limited to damages for lost profits or lost revenues), whether or not caused by the acts or omissions or negligence of its employees or agents, and regardless of whether such party has been informed of the possibility or likelihood of such damages.
(d) Banks Data/Com shall not be liable for any failure of performance or equipment due to causes beyond its reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, terrorist attack, wars, unavailability of rights-of-way or materials, or strikes, lock-outs, work stoppages, or other labor difficulties. In the event any of the foregoing occur and Banks Data/Com is unable to deliver the services contemplated by this MSA for fourteen (14) consecutive days, Customer shall not be obligated to pay Banks Data/Com for the affected services for so long as Banks Data/Com is unable to deliver them; provided, however, that the Term shall be extended for a period of time equal to the period of time for which Banks Data/Com was unable to provide and Customer was not required to pay for the affected service.
(e) Each party shall indemnify the other against any claim, loss, damage, expense or liability (including reasonable attorney's fees and court costs) (collectively, "Claims") to the extent that such Claims are caused by the gross negligence or willful misconduct of the indemnifying party.
Customer shall be liable for and indemnify and defend Banks Data/Com from and against any claims in anyway arising from or related to:
(i) the alleged infringement of patent, trademark, design, copyright or any other intellectual property rights in relation to the Customer's use of the products and services described in this MSA and; (ii) Customer's violation of any federal or state law, rule or regulation in connection with Customer's use of the services and products provided hereunder.
Customer shall defend, indemnify and hold Banks Data/Com, its officers, directors, members, affiliates, suppliers and licensors, harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorneys' fees, expert fees and out-of-pocket expenses) in connection with Customers use of the Banks Data/Com products and services provided hereunder, Customers breach of this Agreement, any violation of the rights of any other person or entity by Customer, including any intellectual property rights, or any claims that the products or services or any part thereof were exported or otherwise transferred or used in violation of applicable laws, rules and regulations.
(f) In addition to the other terms and conditions set forth herein, the following terms apply to Customers use of any Data Storage and Backup Services (as defined in Addendum B. CUSTOMER'S USE AND ACCESS OF THE DATA STORAGE AND BACKUP SERVICES IS AT CUSTOMER'S SOLE DISCRETION AND RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGES TO CUSTOMER'S DEVICES, SOFTWARE AND THE LOSS OF CUSTOMER DATA THAT RESULTS FROM THE USE THE DATA STORAGE AND BACKUP SERVICES. CUSTOMER'S DATA MAY NOT BE AVAILABLE OR RESTORABLE IF (1) BANKS DATA/COM HAS NOT COMPLETED COPYING OR SYNCING CUSTOMER'S DATA, (2) FOR FILES, FOLDERS OR DISK DRIVES THAT THE DATA STORAGE AND BACKUP SERVICES DO NOT AUTOMATICALLY BACKUP OR SYNC PURSUANT TO BANKS DATA/COM DOCUMENTATION, CUSTOMER DOES NOT MANUALLY SELECT THEM FOR BACKUP OR SYNCING OR CUSTOMER UNSELECTS CERTAIN USER DATA FOR BACKUP OR SYNCING, (3) CUSTOMER DELETES CERTAIN DATA FROM CUSTOMER'S DEVICES AND DOES NOT RESTORE IT WITHIN 30 CALENDAR DAYS AFTER DELETION, OR CUSTOMER DELETES A DEVICE FROM CUSTOMER'S BANKS DATA/COM ACCOUNT, (4) CUSTOMER MOVE DATA TO A LOCATION ON CUSTOMER'S DEVICES THAT ARE NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP OR SYNCING, OR CUSTOMER UPGRADES CUSTOMER'S OPERATING SYSTEM RESULTING IN CHANGES TO CUSTOMER'S FILE MAPPING, (5) CUSTOMER'S DEVICES ARE UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE, (6) BANKS DATA/COM SERVERS OR NETWORK SERVICE ARE UNABLE TO MAKE A CONNECTION WITH CUSTOMER'S DEVICE, OR (7) CUSTOMER FAILS TO FOLLOW BANKS DATA/COM'S TECHNICAL REQUIREMENTS, INCLUDING UPGRADING THE VERSION OF THE DATA STORAGE AND BACKUP SERVICES AS REQUIRED.
THE DATA STORAGE AND BACKUP SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT BANKS DATA/COM DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (1) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (2) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER'S USER DATA, WEBSITES, DEVICES AND NETWORKS. BANKS DATA/COM IS NOT RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF CUSTOMER'S ACCOUNT, CUSTOMER'S USER DATA AND CUSTOMER'S DEVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT BANKS DATA/COM SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM CUSTOMER'S FAILURE TO MAINTAIN ACCURATE CONTACT OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, CUSTOMER'S FAILURE TO RECEIVE CRITICAL INFORMATION ABOUT THE DATA STORAGE AND BACKUP SERVICES. THE DATA STORAGE AND BACKUP SERVICES AND THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. BANKS DATA/COM DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE DATA STORAGE AND BACKUP SERVICES AND THIRD-PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE DATA STORAGE AND BACKUP SERVICES. BANKS DATA/COM DOES NOT WARRANT THAT THE DATA STORAGE AND BACKUP SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE OPERATION OF THE DATA STORAGE AND BACKUP SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE DATA STORAGE AND BACKUP SERVICES WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. CUSTOMER UNDERSTANDS AND AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BANKS DATA/COM SHALL CREATE ANY ADDITIONAL BANKS DATA/COM WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF BANKS DATA/COM'S OBLIGATIONS HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BANKS DATA/COM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE DATA STORAGE AND BACKUP SERVICES, OR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF USER DATA OR BUSINESS INTERRUPTION, ARISING OUT OF CUSTOMER'S USE OR INABILITY TO USE THE DATA STORAGE AND BACKUP SERVICES, EVEN IF BANKS DATA/COM HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF BANKS DATA/COM FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE DATA STORAGE AND BACKUP FEES PAID BY CUSTOMER TO BANKS DATA/COM IN THE 3 CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING. CUSTOMER EXPRESSLY RECOGNIZES AND ACKNOWLEDGES THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS AND BANKS DATA/COM'S AGREEMENT TO PROVIDE CUSTOMER THE DATA STORAGE AND BACKUP SERVICES, AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE DATA STORAGE AND BACKUP SERVICES.
6. General Terms.
(a) Assignment or Transfer. This Agreement may not be assigned by either party in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Banks Data/Com may assign this MSA to an affiliate or division so long as Banks Data/Com exercises management control over or owns a controlling interest in or is under common control with such affiliate or division. In addition, each of Banks Data/Com and Customer have the unrestricted right to assign its rights and obligations under this MSA to any individual, corporation or other business entity which acquires all or substantially all of its shares or assets, and upon such assignment, the assigning party shall be released of all its obligations under this Agreement arising from and after the date of such assignment.
(b) Notices. Notices hereunder shall be deemed properly given when delivered, if delivered in person, or when transferred via overnight courier (e.g., FedEx, etc.), or when deposited with the U.S. Postal Service, return receipt requested. Notices to Customer shall be delivered to the address indicated below, provided that if Customer has notified Banks Data/Com of any change to its address, notice shall be delivered to such new address. Notices to Banks Data/Com shall be delivered to address indicated below.
Address for Banks Data/Com Notices
Address for Customer Notices
Banks Data/Com, LLC
(c) Entire Understanding. This MSA, including any Addenda hereto, constitutes the entire understanding of the parties related to the subject matter hereof. In the event of any conflict between this MSA and the terms and conditions of any Addendum hereto, the terms of this MSA shall control.
(d) Governing Law. This MSA shall be construed in accordance with the laws of North Carolina (excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods), and all disputes shall have exclusive venue in the federal and state courts in Wake County, North Carolina and Customer agree to the jurisdiction of these courts.
(e) Binding Effect. All covenants, representations, warranties and other stipulations in this Agreement and other documents referred to herein, given by or on behalf of any of the parties hereto, shall bind and inure to the benefit of the respective successors, heirs, personal representatives and assigns of the parties hereto.
(f) Headings. The descriptive section headings herein have been inserted for convenience only and shall not be deemed to limit or otherwise affect the construction of any provisions hereof.
(g) Multiple Originals. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.
(h) Amendment or Waiver. This Agreement may be amended, and Banks Data/Com may take any action herein prohibited, or omit to perform any act herein required to be performed by it, if Banks Data/Com shall obtain the prior written consent of the Customer to such amendment, action or omission to act.
(i) Public Disclosure. Customer understands that Internet use, and related products and services provided under this MSA, may require registration and related administrative reports which are public in nature.
(j) Application of Tariffs. Banks Data/Com may elect or be required to file with the appropriate regulatory agency tariffs respecting the delivery of certain services by Banks Data/Com to Customer. In the event that such tariffs are filed respecting services ordered by Customer, then the terms set forth in the applicable tariff shall govern Banks Data/Com's delivery of, and Customer's consumption or use of, such services.
(k) Use of Customer's Name and Banks Data/Com's Name. Upon prior written consent from the Customer, Banks Data/Com may use Customer's name in connection with proposals to prospective customers and in print or electronic form for marketing or other purposes, including compliance with applicable laws or regulations and the protection of any rights relating to Banks Data/Com or its business. Customer may use the name "Banks Data/Com" in connection with the services provided to Customer by Banks Data/Com or otherwise only with Banks Data/Com's prior written consent.
(l) Severability. If one or more of the provisions contained in this MSA are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
(m) Independent Contractor Status. Nothing in this MSA or in the course of dealing between Banks Data/Com and Customer pursuant hereto shall be deemed to create between Banks Data/Com and Customer (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship other than that of independent contractors with respect to each other.
(n) No Third Party Beneficiaries. Except as otherwise specifically provided herein, this MSA inures to the benefit of Banks Data/Com and Customer only and no third party shall enjoy the benefits of this Agreement or shall have any rights hereunder.
CO-LOCATION ADDENDUM TO MASTER SERVICES AGREEMENT
This CO-LOCATION ADDENDUM ("Addendum A") is part of the MASTER SERVICES AGREEMENT ("MSA") dated _____________________, between BANKS DATA/COM, LLC ("Banks Data/Com") and ________________________ ("Customer"). The following additional terms and conditions apply under this Addendum A when Customer contracts with Banks Data/Com for the use of equipment space (the "Equipment Space") at Banks Data/Com's facility located at ____________________________ (the "Facility") for the purpose of collocating telecommunications, Internet, or computer equipment used for connection to the Internet (the "Customer's Equipment").
The installation date for the Customer's Equipment is on or before _______________. Banks Data/Com guarantees that the equipment space and associated bandwidth will be available on the installation date or Customer will receive one month's Monthly Service Charge free. Billing under this Addendum A will begin upon the actual installation of the Customer's Equipment.
1. Use of Equipment Space.
(a) Customer will be entitled to occupy and use the space (the "Equipment Space") within Banks Facility only for placement and maintenance of telecommunications or Internet access equipment. Banks Data/Com shall have the right to access the Equipment Space for any business purpose at all times.
Banks Data/Com may provide certain equipment ("Banks Data/Com Equipment") used to deliver the products and services pursuant to the attached MSA. Banks Data/Com shall use reasonable efforts to provide and maintain the Banks Data/Com Equipment in good working order. Banks Data/Com shall be entitled to remove all Banks Data/Com Equipment for repair, replacement, or otherwise as Banks Data/Com may determine is necessary, but Banks Data/Com shall use reasonable efforts to minimize disruptions to the service provided to Customer caused thereby. Customer shall not and shall not permit others to rearrange, disconnect, remove, and attempt to repair or otherwise tamper with any of the Banks Data/Com Equipment.
(b) Customer may locate Customer-provided equipment in the Equipment Space. Unless otherwise agreed to by Banks Data/Com in writing, Banks Data/Com shall not be responsible for the operation or maintenance of any Customer-provided equipment.
(c) Following termination of the MSA, Banks Data/Com shall be entitled to remove all Banks Data/Com Equipment and Customer-provided equipment from the Equipment Space, and to repair any damage to the Equipment Space. Customer shall leave the Equipment Space in the same condition as when the Customer occupied the space, normal wear and tear accepted. Customer shall reimburse Banks Data/Com for the reasonable cost of any repairs required to restore the Equipment Space to its original condition.
(d) Customer is solely responsible for the transmission of any content between any Customer and any third party, which transmission utilizes Banks Data/Com's Facility. Customer agrees to comply with all applicable laws with regard to the transmission and use of information and content. Customer further agrees not to use the services provided hereunder for illegal purposes, to interfere with or disrupt other network users, network services or network equipment.
(e) Upon notice from Banks Data/Com, Customer promptly shall eliminate any hazard, interference or service obstruction that any hardware or software used by Customer, Data/Com ("Customer Materials"), is causing, or is likely to cause. If Customer requests Banks Data/Com's assistance in removing any such hazard, interference or service, Banks Data/Com may, but is not required, to assist in such removal.
2. Installation - Banks Data/Com agrees to allow Customer to place the Customer's Equipment in the Facility subject and subordinate to the terms and provision of Banks Data/Com's lease with its landlord. Such placement shall be subject to this Addendum A and Banks Data/Com's installation and maintenance specifications, which Banks Data/Com shall provide to Customer from time to time.
3. Maintenance - Banks Data/Com shall perform such janitorial services, environmental systems maintenance, power plant maintenance and other actions as are reasonably required to maintain the Facility in which the Equipment Space is located in a condition which is suitable for the placement of telecommunications and Internet access equipment. Customer agrees that it will be solely responsible, and at Banks Data/Com's request will reimburse Banks Data/Com, for all costs and expenses associated with placing, installing, maintaining operating and removing the Customer's Equipment and related materials, including but not limited to, costs associated with relocation or removal of the Customer's Equipment once installed, and all electric, telephone and other utility charges attributable to the Customer's Equipment and related use of the Equipment Space.
4. Security - Banks Data/Com will take reasonable responsible measures to protect the security of Customer's Equipment. Notwithstanding the prior sentence, Banks Data/Com ASSUMES NO LIABILITY FOR ANY DAMAGE OR LOSS TO CUSTOMER'S FACILITY AND/OR EQUIPMENT RESULTING FROM ANY OTHER CUSTOMER'S ACCESS TO ITS FACILITY. ANY SUCH DAMAGE OR LOSS WILL BE THE EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER WHO CAUSED SUCH LOSS OR DAMAGE. Banks Data/Com will provide reasonable assistance to resolve any disputes regarding such losses or damages.
5. Access - In the event that unauthorized parties gain access to the Equipment Space through access cards, keys or other access devices provided to Customer, Customer shall be responsible for any damages incurred as a result thereof. Customer shall be responsible for the cost of replacing any security devices lost or stolen after delivery thereof to Customer. In addition to the rights set forth in the MSA, Banks Data/Com shall have the right to terminate Customer's use of the Equipment Space or the Services in the event that:
(a) Banks Data/Com's rights to use the Facility within which the Equipment Space is located terminates or expires for any reason;
(b) Customer makes any material alterations to the Equipment Space without first obtaining the written consent of Banks Data/Com;
(c) Customer allows personnel or contractors to enter the Equipment Space who have not been approved by Banks Data/Com in advance; or
(d) Customer violates any posted or otherwise communicated rules relating to use of or access to the Equipment Space.
With respect to items (b), (c) and (d) above, unless the same interferes or has the potential to interfere with other Banks Data/Com customers, Banks Data/Com shall provide Customer a written notice of the foregoing and a 10-day opportunity to cure the same before terminating Customer's rights to the Equipment Space.
6. Condition of Premises - EXCEPT AS EXPRESSLY STATED HEREIN, THE EQUIPMENT SPACE SHALL BE DELIVERED AND ACCEPTED "AS IS" BY CUSTOMER, AND NO REPRESENTATION HAS BEEN MADE BY BANKS DATA/COM AS TO THE FITNESS OF THE EQUIPMENT SPACE FOR CUSTOMER'S INTENDED PURPOSE.
7. Rights to Equipment. Customer represents, warrants and covenants that it owns or has the legal right and authority, and will continue to own or secure the legal right and authority, during the term of this Addendum, to use the Customer's Equipment.
8. Insurance - Prior to occupancy and during the term of use of any Equipment Space, Customer shall procure and maintain the following minimum insurance coverage:
(a) Workers' Compensation in an amount not less than that prescribed by statutory limits;
(b) Employer's Liability with limits of $500,000 each accident;
(c) Commercial General Liability with combined single limits of $1,000,000 each occurrence; and
(d) "All Risk" Property insurance covering Customer's Equipment and all of Customer's personal property located in the Equipment Space.
Customer's Commercial General Liability policy shall be endorsed to show Banks Data/Com (and any underlying property owner, as requested by Banks Data/Com) as an additional insured. All policies shall provide that Customer's insurers waive all rights of subrogation against Banks Data/Com. Customer shall furnish Banks Data/Com with certificates of insurance demonstrating that Customer has obtained the required insurance coverage prior to occupancy of the Equipment Space. Such certificates shall contain a statement that the insurance coverage shall not be materially changed or cancelled without at least thirty (30) days prior written notice to Banks Data/Com. Customer shall require any contractor entering the Equipment Space on its behalf to procure and maintain the same types, amounts and coverage extensions as required of Customer above.
9. Casualty or Eminent Domain - In the event of damage by fire or other casualty to the Facility, Customer shall acquiesce and be bound by any action taken by or agreement entered into between Banks Data/Com and its landlord with respect thereto.
10. Not a Lease - This Co-location Addendum is a service agreement and is not intended to and will not constitute a lease of real property. Customer acknowledges and agrees that it has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations or ordinances. Upon termination of this Addendum A for any reason, Banks Data/Com will have the right to remove immediately all of Customer's Equipment located at the Facility.
11. Ability to Change Equipment Space - Banks Data/Com reserves the right to change the location or configuration of the Equipment Space; provided, however, that Banks Data/Com shall not arbitrarily or discriminatorily require such changes. Banks Data/Com and Customer shall work in good faith to minimize any disruption in Customer's services that may be caused by such changes in location or configuration of the Equipment Space.
12. Service Level Agreement - In the event Banks Data/Com fails to meet the service level criteria outlined below for Standard Co-location Services, the Customer shall be entitled to one credit of 1/30th of the monthly recurring charges per day associated with the Standard Co-location services described in this Addendum A. The total amount of credits may not exceed the amount of one month's recurring charges for the service. In the event Banks Data/Com fails to meet the service level criteria outlined below for Disaster Recovery Co-location Services, the Customer shall be entitled to a credit equal to one month charges specific to the Disaster Recovery Co-location Services related charges described in this Addendum.
Power will be available to Customer computer infrastructure 100% of the time. (Banks Data/Com is not responsible for outages associated with overloaded power strip or circuit).
Daily data center temperature average of 72&186; +/- 5&186; F. Banks Data/Com does not guarantee temperatures within Customer cabinet(s).
Daily data center humidity average of 50&186; +/- 10&186;. Banks Data/Com does not guarantee humidity levels within Customer cabinet(s).
IN WITNESS WHEREOF, the parties hereto, by their signatures below, have caused this Addendum A to the Master Services Agreement to be entered into and effective as of the last date to be signed as set forth below.
Banks Data/Com, LLC
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