Master Services Agreement (MSA)

1. Parties; Agreement

This Master Services Agreement ("MSA") is executed between the Client, identified on any applicable Service Order form ("SOF") as ("Client" or "Licensee") and phoenixNAP, LLC ("PNAP") 3402 E University Dr, Phoenix, AZ 85034. This MSA is accompanied by the following policies which are incorporated herein and together form the "Agreement" or "MSA". For purposes hereunder, Client and PNAP are each a "Party", together the "Parties."

Privacy Shield-Compliant Policy (PP)
Acceptable Use Policy (AUP)
PNAP's General Data Protection Regulation (GDPR) – Compliant Data Protection Policy

PNAP offers many services, some of which require auxiliary agreements which must be acknowledged and agreed to by the parties to be in effect. In the event that additional services are requested, such addenda including the respective Service Level Agreement (SLA) will be selected as amendments to this MSA on the Client SOF.

2. Acceptance

The Parties indicate their acceptance of the terms and conditions of this MSA by signature of the Client SOF.

3. Fees, Billing, and Payment Terms

Client agrees to pay all undisputed fees, costs, and charges as outlined in this MSA and the Client SOF for services provided to Client during the term of this MSA. PNAP will provide Client with the services listed on the SOF and gives Client a license to use and occupy the Client Area for permitted purposes.
Additional services and/or space in the facility are available, for a fee; these additions, if any, shall be recorded in a new SOF or a Change Order.
PNAP will bill Client monthly by sending Client an invoice. Payment for non-recurring charges are due, in full and in advance of the Commencement Date. Other monthly recurring charges and fees on the invoice must be paid within thirty (30) days of Clients receipt of the invoice. Client shall provide PNAP accurate and complete account information and keep such up to date. Client will be liable for late charges totaling one percent (1%) on each outstanding invoice, beginning the day after payment was due. Arrears interest will be calculated at two percent (2%) per month on each outstanding invoice.
Client must dispute an error to PNAP, in writing, within forty-five (45) days of the receipt of the invoice. Undisputed fees will be paid on time.
PNAP only accepts US Dollars for payment. Payment may be made via check or money order mailed to our address (at the end of this document), or may be made by any electronic method to include wire transfer.
Delinquent payments can harm Client credit with PNAP, and PNAP may require Client payment terms to be modified—possibly requiring a security deposit (initially or an increase to), automatic payments, or payments prior to provisioning.
If a security deposit is required, PNAP stores the funds in our general account. PNAP does not pay interest on security deposits, and PNAP only draw on the funds if Client becomes past due in an obligation to PNAP. Client will need to replenish the security deposit promptly if PNAP has to draw against it. PNAP will refund the security deposit to Client within sixty (60) days of the termination of the MSA with each other as long as Client's account is paid in full.
Occasionally, a utility provider might change the amounts that they charge PNAP for power delivery, resulting in an increased cost for power delivery that is passed on to Client without mark-up. PNAP will use commercially reasonable efforts to inform Client of the increase in utility charges as soon as practical but in no event less than thirty days prior to increase in rates.
All third-party solutions PNAP provides to Client are subject to service level agreements and all legally binding terms and conditions of said third party as stated and made publicly available on their respective websites. Service Levels might vary greatly per solution provider and product, and remain subject to change at the third-party providers' discretion. In the event that a third-party provider changes the amounts they charge PNAP for the service provided, resulting in an increased cost for said service, PNAP will pass the cost increase on to Client without mark-up.
If Client orders something from PNAP that requires a cost or expense to be incurred by PNAP, and Client pre-approved those expenses or those expenses are otherwise specified in this MSA, Client will be required to reimburse PNAP for those expenses or costs without mark-up. PNAP will issue an invoice to Client in the subsequent billing cycle for any such reimbursement.
Any credits issued to Client's account in accordance with the terms of the Service Level Agreement (SLA) may only be used as a credit toward future charges for services and may not be sold, converted to cash, or transferred. SLA credits expire on the termination or expiration of the MSA.
Prices and fees referred to in this MSA are not inclusive of any tax, withholding, sales, use, value added, levies, import, custom duties, excise, or other tax equivalent required as a result of the supply of services. All taxes will be paid by Client.

Client is not liable for PNAP's income taxes, and PNAP is not liable for Client's income taxes.
PNAP is required to collect taxes on behalf of Client unless Client provides PNAP with a valid tax exemption certificate from the appropriate authority.
If withholding tax applies to any payments for services made in this MSA, Client may pay those taxes to the appropriate tax authority and provide PNAP with the official tax receipt, and notify PNAP that withholding tax is required, and Client will ensure that PNAP receives the full amount of the invoice.
Client agrees that Client and PNAP will cooperate as much as possible to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties, if applicable, to the relevant tax authority to reduce the rate or tax or exempt the amount if applicable.
Client will account for any tax withheld to the tax authorities on a timely basis.

License fees may change from time to time and fee increases are effective after the end of each term on the (yearly) anniversary of the date PNAP started billing Client as provided on the SOW.
An Early Termination Fee (ETF) equal to seventy-five percent (75%) of the remaining contractual balance shall be assessed to Client in the event Client chooses early termination. Any Bare Metal Servers and/or Bare Metal Cloud services canceled during the term will result in the waiver of all discounted pricing. At the time of cancellation, Client hereby agrees to pay the standard price for all services through the then canceled term.

4. Term and Termination

The MSA is effective for the duration of the initial term listed on any Client SOF and any subsequent renewal terms.
The “Commencement Date” listed on the SOF is the date that the initial term begins. If services are not delivered to Client, for any reason, by the Commencement Date, the date of delivery of services becomes the new Commencement Date. The period of the initial term shall also be documented thereon.
If Client orders multiple services contained on one SOF, those items may be delivered on different dates. In this instance the Commencement Date is the actual date of delivery of each specific item, which can result in multiple Commencement Dates on one SOF. Such changes may or may not result in adjustments to License Fees or other charges. Cessation of services provided under varied commencement dates shall be co-terminus. Therefore, for certain fees which are pre-paid, unused fees shall be returned within forty-five (45) days after termination.
This MSA shall be in force for the initial term from the commencement date as provided in the Service Order Form (SOF) and any subsequent renewal term(s).
Either Party will have the right to terminate this MSA by (i) giving at least thirty (30) days’ written notice to the other Party to terminate the MSA at the end of the then current term.
Holding Over. Client has no absolute right to hold over after this MSA expires or terminates without PNAP’s prior written consent which shall not be commercially unreasonably withheld. If Client holds over after this MSA expires, Client becomes a month-to-month Licensee subject to all of the terms of this MSA and the Parties agree the License Fees will be increased to one hundred and fifty percent (150%) of Client's most recent license fees for the next ninety (90) days, and thereafter increased to two hundred percent (200%) of the same on the ninety-first (91st) day and ongoing. This provision is not a waiver by PNAP of any right to re-entry, and acceptance of License Fees by PNAP (or any affirmation of tenancy) does not waive our right to terminate the MSA for a breach of any terms, covenants, or obligations of Clients. So long as Client removes its equipment, materials, and other property from the Client Area within thirty (30) business days of expiration or termination, Client shall not be deemed to be holding over under this provision.
At the expiration or termination of the Agreement, Client must leave the Client Area in the same condition it was in on Client installation date (normal wear and tear excepted).
When ordering reserved instances for Bare Metal Cloud services, Client agrees that all reservations will be billed throughout the initial term of the reservation. Deleting reserved instances mid-term does not equal canceling the service and you will continue to be billed till the end of term, while the instance will remain reserved and always available to you during that entire time for redeployment.

5. Default Events and Remedies

The following events by Client will cause a default under this Agreement:

Failure to pay undisputed fees or other amounts due under this MSA which is then not cured within ten (10) days after receipt of notice.
A court enters an order, judgment, or decree adjudicating Client as bankrupt or appointing a receiver of Client's whole or a substantial part of Client's property without Client's consent, or approving a petition filed against Client seeking reorganization or arrangement of Client's company under the US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within thirty (30) days of entry.
Client's use of client area in the PNAP facility (“Client Area”) or the PNAP facility materially threatens the availability, resiliency, and/or routine operations of the facility in PNAP's reasonable discretion.
Client fails to perform any material obligation under this Agreement and does not cure such within thirty (30) days after receipt of notification of nonperformance from PNAP.

The following remedies are available to PNAP in the occurrence of a default by Client which default, if capable of cure is not so cured within no less than thirty (30) days after receipt of notice from PNAP:

Suspension of some or all of the services PNAP provides to Client.
Termination of this MSA and Client's right to possession of Client Area; exclusive possession is returned to PNAP, however, all hardware owned by Client shall be returned to Client within thirty (30) days.
Recover accrued and unpaid license fees and direct damages arising from Client's breach of the license.
Recovering all reasonable attorneys' fees and other expenses that PNAP incurs while enforcing this MSA when PNAP is the prevailing Party in any suit or proceeding.

The following events by PNAP will cause a default under this Agreement:

Breach of any material term or condition of this Agreement. Client must notify PNAP in writing of any breach and PNAP has thirty (30) days from receipt of notice to cure the breach. The Parties agree that such shall not extend the documented service level requirements.
A court enters an order, judgment, or decree adjudicating PNAP as bankrupt or appointing a receiver of PNAP’s whole or a substantial part of PNAP’s property PNAP’s without consent, or approving a petition filed against PNAP seeking reorganization or arrangement of PNAP’s company under US or state bankruptcy laws, and that item is not vacated, set aside, or stayed within thirty (30) days of entry.

The following remedies are available to Client in the event of a default by PNAP which default, if capable of cure is not so cured within no less than thirty (30) days after receipt of notice from Client:

Return of any un-used fees prepaid by Client, including but not limited to, a pro-rata portion of the most recently paid License Fees, costs, and charges for the remaining days of the term month. Recovering from PNAP any and all reasonable direct damages a breach causes Client.
Recovering all reasonable attorneys' fees and other expenses that Client incurs while enforcing this MSA when Client is the prevailing Party in any suit or proceeding.

Survival

Certain the rights and obligations of Client and/or PNAP will survive the expiration of this MSA, including, but not limited to, provisions related to security deposits, taxes, remedies, confidentiality, and other general provisions intended to so survive.

6. Insurance

By Client.
Client will keep in force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage; (ii) employer's liability insurance in an amount not less than $1 million per occurrence; and (iii) workers' compensation insurance in an amount not less than that required by applicable law. Client shall insure the Client Equipment which is located on PNAP site. Client, as a material part of the consideration to PNAP, hereby assumes all risk of damage to property or injury to persons, in, upon, or about the Client Area from any cause, and Client hereby waives all claims in respect thereof against PNAP, unless caused by or contributed to by the negligence or willful action of PNAP, its agents or employees. Client shall give immediate notice to PNAP of any fire, accident or defect discovered by the Client within the Client Area or the PNAP Data Center.
By PNAP.
Operator will keep in force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage; cyber security and/or cyber liability insurance in an amount not less than $10 million per occurrence; (iii) employer’s liability insurance in an amount required by applicable law (iv) fire and property insurance in sufficient limits to cover the cost of Client’s Equipment in the event such is damaged due to the negligence or misconduct of PNAP or PNAP representatives. PNAP will furnish Client with certificates of insurance which evidence the minimum levels of insurance set forth herein upon request. PNAP shall give immediate notice to Client of any fire, accident or defect discovered by the PNAP within the Client Area or the Data Center as a whole. In the event that the Client Area is damaged or destroyed by fire or other casualty, PNAP will restore the Client Area to the commencement date condition. If there is other acceptable to Client space available within the contracted for PNAP facility, PNAP will promptly move Client to an acceptable area at PNAP’s cost. In the event of damage or destruction by casualty is not covered by PNAP-maintained insurance, or if the casualty occurs in the last year of the term, Client or PNAP may have the option to terminate this agreement.
Notice.
Parties to notify the other Party of any changes, cancellations, or limit adjustments are made to insurance. Cancellation or modification does not change Client obligation to maintain the coverage in accordance with this section.

General Provisions

Governing Law, Lawsuits

This MSA is governed by the laws in the state of Arizona exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable.

Warranties

Mutual.

Each Party will be in full compliance with all applicable laws and regulations.

By Client.

Client’s collection, access, use, storage, disposal, and disclosure of its end-user personal information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
Client will not knowingly disturb or interfere with any other tenant or occupant of the PNAP facility.
Client must own or maintain the legal right/authority to any of the Client equipment covered by this agreement.
Client will not knowingly use any of the Client's equipment, or the equipment, facilities, or services provided to Client under this agreement, to infringe, mis-appropriate, or violate in any manner the intellectual property rights of any person or entity.
Client will not use the facility or services for dangerous activities or life-critical applications or services that could, if they fail, result in death, personal injury, catastrophic damage, or mass destruction.
Subject to PNAP’s compliance with GDPR and DPA, if applicable, Client is responsible for related data maintenance, integrity, retention, security, and backup of Client content and Client's compliance with any laws, rules, or regulations in any region or country that applies in regard to security, privacy, legality, and safe handling of Client and Client's end-customers' data.

By PNAP.

PNAP has the legal right and authority to grant Client a license and/or lease, for purposes hereunder, together a license, to use the Client Area for purposes described in this agreement, the MSA and addenda thereto.
PNAP will continue to maintain the legal right and authority to grant the same license to Client to use the Client Area and applicable parts of PNAP facility for the purposes described in this Agreement.
PNAP will comply with any and all federal, state, local, and international laws PNAP is required to be bound by while providing Client with the service(s).
PNAP will comply with any applicable and agreed upon SLAs while providing Client the service(s).
PNAP will maintain all reasonable and appropriate physical security to protect Client content but in no event less than industry standards.
PNAP will not allow or authorize any third party to do anything that subjects Client, Client’s equipment or any applicable party (lender, etc.) to claims, liens, or encumbrances in accordance with statute, law, or express or implied contract.
PNAP retains ownership of all PNAP owned items it installs in the Client Area for the provision of services hereunder.

Disclaimer of Warranty

Except as documented in this Agreement, PNAP site and services are provided "as-is" with no warranties or conditions, statutory or otherwise, of any kind, including implied warranties of title. PNAP does not warrant that the operation of the services(s) will be timely, uninterrupted, without risk, secure, or error-free or that any defects will be corrected to standards of Client, however, PNAP will meet the service level guarantee documented in such addenda. Except as provided herein this Agreement, PNAP does not warrant or make any representations or conditions about the results of the use of the service in terms of accuracy, reliability, timeliness, completeness, or otherwise.

Limitation of Liability

EXCEPT AS REQUIRED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY. IF EITHER PARTY IS FOUND TO BE LIABLE TO THE OTHER PARTY FOR ANY SUCH DAMAGES OR LOSSES ARISING UNDER THIS MSA OR IN CONNECTION WITH THE SERVICES, TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO ITS LIABILITY.
Each Party acknowledges that PNAP has set its prices and each Party enters into this MSA by relying on the limitations of liability and disclaimers of warranties as provided for herein, making this an essential basis for the bargain between Client and PNAP. Client and PNAP both agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this MSA will survive and apply even if they are found to have failed in their essential purpose

Indemnification

Each Party will indemnify, hold the other Party harmless, and defend any third-party claims against such Party and/or its affiliates and their respective officers, directors, employees, including damages, interest, costs, and reasonable attorneys' fees payable pursuant to a settlement agreed to by the Parties with respect to such claims allege or arise from:

By Client.

Client's knowing use or misuse of such third-party services including software.
Client's, or Client's end-customers', breach or alleged breach of the rights of any third-party's rights in connection with their use of the services under this MSA, including without limiting, actual or alleged infringement or misappropriation of a copyright, patent, trademark, publication, or other proprietary right in connection with the receipt of services under this MSA.
Violation of non-compliance by Client, or Client's end customer, with any law, court order, rule, or regulation in any jurisdiction.
Assertion of transfer of employment relationship claims made against PNAP under EU Directive 2001/23/EC or similar by one of Client's employees or a contracted third party providing contractual services prior to the start date.

By PNAP.

PNAP’s or any of PNAP’s employees, agents, or contractors, breach of the rights of any third party's rights, including without limiting, actual or alleged infringement or misappropriation of a copyright, trade secret, patent, trademark, privacy, publication, or other proprietary right in connection with the provision of services under this MSA.
Violation or non-compliance by PNAP, or any of PNAP’s employees, agents, or contractors, with any law, court order, rule, or regulation in any jurisdiction.
Assertion of transfer of employment relationship claims made against PNAP under EU Directive 2001/23/EC or similar by one of Client's employees or a contracted third party providing contractual services prior to the start date.

Process.

Once learned, the indemnifying Party will provide timely written notice to the Party seeking indemnity of matters giving rise to a claim for indemnification. The indemnifying Party shall either promptly assume the defense of any such claim, proceeding or action, at their sole cost or the Party seeking indemnity may assume such responsibility and invoice the indemnifying Party for all such costs and expenses related thereto. The Parties shall cooperate and shall keep each other informed as necessary hereunder. The indemnified Party reserves the right to participate in the defense at their own cost and/or participate in any negotiations regarding the proposed settlement of any claim.

HIPAA Compliance

Client provides notice herein that Client is a Business Associate or Processor (both as defined in the Health Insurance Portability Act of 1996 ("HIPAA")); and that certain Client data includes Protected Health Information as defined in HIPAA.

DMCA

PNAP is an Internet Service Provider (ISP) under the Digital Millennium Copyright Act (DMCA). PNAP follows the notification and takedown procedures set forth in the U.S.C 17 Section 512 DMCA and may block access to its facilities or terminate any or all services provided under this MSA for repeat infringers.

GDPR Compliance

The Parties acknowledge that PNAP will gather certain minimum information from individuals solely to provide services hereunder. PNAP’s General Data Protection Regulation (GDPR) – Compliant Data Protection Policy as provided, documents how this personal data must be collected, handled and stored to meet all data protection standards and comply with all applicable laws and regulations.

Such includes and ensures that:

An individual may request access to information held by PNAP and upon request, PNAP will update and correct such individual’s data.
when data is no longer needed for the purposes specified in Information Collection and Use or for any Regulatory Reporting purposes such data will be promptly deleted.
PNAP may be contacted by end users at [email protected] with questions about PNAP’s collection and storage of data:

Phoenix NAP, LLC
3402 East University Drive
Phoenix, Arizona 85281 USA
[email protected]

Confidential Information

Each Party acknowledges that it will have access to certain confidential information and materials of the other Party (“Confidential Information”). Confidential Information will include, but is not limited to, information regarding each Party’s business, plans, technology, products, proprietary software, and customer information. Each Party specifically designates as Confidential Information its internal documentation, prices, rates, quotations, and other financial information relating to this MSA. Client specifically designates as its Confidential Information all data and content stored or transmitted by Client, or accessed by PNAP, in connection with its use of PNAP’s services under this MSA. Both Client and PNAP must keep all Confidential Information confidential and only share Confidential Information where this MSA allows or when required to do so by law. Both parties will make every reasonable effort to keep this Confidential Information confidential and promise to return all Confidential Information to the other Party within thirty (30) days of the expiration or termination of this MSA. Neither Party may keep any copies of Confidential Information except as where required by law or for administrative record keeping. Information will not be deemed Confidential Information hereunder if the receiving Party can establish by reasonably competent evidence that such information was: a) known to the receiving Party before it was disclosed by the disclosing Party, b) becomes known by disclosure from a direct or indirect source who does not have an obligation of confidentiality to the disclosing Party, c) becomes publicly known or ceases to be confidential (not by breach of this MSA by the receiving Party), of it is independently developed without the use of or reference to the Confidential Information from the disclosing Party. The obligations and restrictions set forth herein regarding Confidential Information shall survive during the term of this MSA and for three (3) years after its termination or expiration and the limitation of liability shall not apply to any breach of a Parties Confidential Information

Non-Solicitation

When permitted by law, neither Client nor PNAP will actively solicit current employees or contractors of the other Party that become known to them solely through this relationship having worked directly with the Party in connection with the provision of services under this MSA. This remains in effect during the entire term of Client MSA. With respect to non-solicitation, this remedy does not waive the right to seek any other remedies or injunctive relief permitted by this MSA.

Force Majeure

Neither Client nor PNAP is liable for failure or delay in performance under this MSA due to causes beyond their reasonable control, including without limitation acts of war or terrorism, acts of god, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts, or failure of the Internet. The effected Party should promptly notify the other Party in writing and use its best effort to correct any failure or delay under this provision.

Use of Trade Names or Logos

Neither Client nor PNAP will use the trade name, trademark, logos, or symbols of the other without prior written consent of the other Party's authorized representative.

Compliance with the Law

PNAP reserves the right to comply with any and all warrants, court orders, subpoenas, summons, and other legal requirements. Client authorizes PNAP to consent to any access, search, seizure, or other governmental action that is valid by our reasonable opinion. PNAP shall use its best reasonable efforts to notify Client, if so permitted thereunder, of any legal process within forty eight (48) hours of service. Failure of this notification will not restrict our rights under this clause and does not constitute as a breach. PNAP reserves the right to restrict or terminate access by Client or any representative to the facility from and after the service of a search or seizure warrant and/or after receiving an order of a court or government agency.
PNAP may shut down all or part of the facility, including and without limitation the Client Area, and to comply with an order of any city, county, state, provincial, federal, or other legitimate government official if PNAP reasonably determines that an emergency exists.

Entire Agreement, Integration, Modifications, and Severability

This MSA and its addenda attached hereto are the entire MSA and supersedes any prior MSAs, promises, representations, understanding, and negotiations between the Parties.
Any modifications, amendments, supplements, or waivers must be in writing and executed by authorized representatives of both Client and PNAP.
If any provision in this MSA is declared invalid the remaining provisions of the MSA will remain in full force and effect. Client and PNAP will renegotiate the invalid provision in good faith to most closely reflect the Party’s intent and be bound by the mutually agreed upon replacement provision.
Either Party’s failure or delay in exercising any of its rights under this MSA does not create a waiver of or modification to those rights. Either Party’s waiver of any right under this MSA must be in writing.
The MSA may be executed in two or more counterparts and each will be considered an original, but together constitute the same instrument.
PNAP's official language is English and it does not provide translations into any other language of any services, support, notices, designations, specifications, or communications. All references to days throughout this MSA shall mean calendar days unless specified otherwise.
Both Client and PNAP agree that it has reviewed and had the opportunity to have legal counsel review this MSA and its attachments and addenda and that this MSA is intended not to be construed against either Party as the drafting Party.

Assignment

Neither Party may assign its rights or delegate its duties under this MSA (whole or part) without the prior written consent of the other Party which consent shall not to be commercially unreasonably withheld. However, notwithstanding the aforementioned, either Party may transfer such in the event of a merger or acquisition.

Notices

Written notices must be delivered by hand, mailed by registered or certified mail (return receipt requested, postage prepaid), or sent by overnight courier with proof of delivery (FedEx, UPS, etc.) to:

For PNAP:

Phoenix NAP, LLC

C/O Legal Department

2353 West University Drive

Tempe, Arizona 85281

With a copy sent to [email protected].

For Client:

All communications to Client shall be sent to client contact information on file. Client is responsible for ensuring all information in current and valid.

Relationship of Parties

This MSA does not establish a relationship or partnership, joint venture, employment, franchise, or other agency between Client and PNAP. Neither Client nor PNAP has the power to bind the other or incur obligations on the other's behalf without the written consent of the other.

Representation of Authority

Any individual signing this MSA on behalf of an entity represents and warrants that he or she has full authority to do so. The signatories to this MSA respectively warrant that they are fully authorized to enter into this MSA on behalf of their respective entity or individual; that entities which are corporations, partnerships or limited liability companies are duly organized, validly existing and in good standing; and that the making, execution and performance of this MSA have been duly approved by the entities governing bodies and do not violate any provision of the entity’s respective articles of incorporation, charters, by-laws, or partnership MSAs

Priority of Documents

Conflicts or discrepancies between any portions of this MSA are governed by the following order of precedence and shall govern the lower ranking documents as provided herein below:

First, the applicable Order of Service Order Form signed by the Parties.

Second, any amendments or additions to a Service Order Form signed by the Parties.

Third, this MSA.

Fourth, the applicable addenda.

Except as otherwise documented herein, fifth, the Acceptable Use Policy, Privacy MSA, Service Level Agreement.

By signature of the Client SOF, such Party acknowledges and understands that they have read this Agreement, all applicable Addenda. The person executing the SOF has the authority to bind their respective company to the terms and conditions hereto.

Acceptable Use Policy

All Clients of PNAP, LLC (PNAP) agree to abide by the following acceptable use policies. To meet changes in law or regulation, PNAP may change these policies and shall provide email notice to Client and updates will be posted at https://phoenixnap.com/cs/legal/.

Introduction

These Acceptable Use Policies demonstrate what PNAP considers to be acceptable conduct when using its service and actions that PNAP may take, with notice, when the service is used in material breach of the MSA. These AUPs are drawn from applicable law and generally accepted Internet conduct standards and are used to ensure the protection of PNAP’s technical resources, ability to continue providing high quality service to Clients, and its reputation. Clients are expected to conform to the following AUPs:

Security

Client takes full responsibility for files and data transferred and to maintain all appropriate backups of files and data stored on PNAP’s infrastructure.
Client is responsible for all use of its own account(s) and keeping all passwords safe and confidential, and setting file protections.
If a password to PNAP portal is lost, stolen, or otherwise compromised, PNAP will suspend access or change Client account access immediately following notification by Client. PNAP will immediately provide such updated passwords to Client
PNAP is not responsible for any usage by non-authorized third parties who gained access through Client or charges related to such prior to the notification and account alteration.
PNAP makes email as safe as it possibly can, but no computer network can ever be considered completely safe from intrusion. Knowing this and that all email may pass through many computer networks it should not be considered a secure communication unless encrypted, and even then it is only as secure as the encryption method used.

Unacceptable Conduct

The following types of unacceptable conduct by Client are grounds for immediate suspension of service pending prompt investigation by PNAP. Upon a finding of fault, such may result in termination without refund for any and all accounts held by the Client (individual, corporation, or Website) found to be in violation of AUP. Client’s business relationships (referrers, associates, etc.) impacting PNAP are also Client’s responsibility, and Client will make sure that they immediately cease non-compliant actions or Client discontinues its association with them. Continuing with material violations by Client's business relationships after notice from PNAP may result in PNAP, at its discretion and acting in good faith, terminating the Client relationship without refund, however, such will only occur after notice to Client and thirty (30) days to cure.
The following behaviors are unacceptable conduct:

Spamming or Harassment: Posting a single article or substantially similar articles to an excessive number of newsgroups (i.e., more than 20) or continued posting of articles which are off-topic according to the newsgroup charter, or which provoke complaints from the regular readers of the newsgroup for being inappropriate). Sending unsolicited mass E-mailings (i.e., to more than 25 users – not potential licensees of Client’s offering) that provoke complaints from the recipients.
Engaging in either (1.) from a provider other than PNAP to draw attention to a Web site housed within PNAP’S networks or covered by PNAP’S agreement with Client.
Engaging in abuse or harassment of other individuals on the Internet after being asked to stop by those individuals and/or by PNAP.
Email bombing, i.e., sending large volumes of unsolicited E-mail to individuals or to individual business accounts. Likewise, the sending of UBE (unsolicited bulk email) from another service provider advertising a web site, email address or utilizing any resource hosted on PNAP's servers, is prohibited.
Impersonating another user or otherwise falsifying one's username in E-mail, Usenet postings, on Internet Relay Chat (IRC), or with any other Internet service. (This does not preclude the use of nicknames in IRC or the use of anonymous retailer services.)
Intellectual property right infringement: Knowingly using any means to transmit, publish, submit, copy, reproduce, steal, infringe on or distribute any information, software or other material that is protected by copyright, trademark, patent, trade secret, or other proprietary or intellectual property rights of any third party, including, but not limited to, the unauthorized use and/or copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software, unless you own or control the rights thereto or have received all necessary consents to do the same.

Network Unfriendly or Illegal Activity

Attempts, whether successful or not, to knowingly gain access to any other system or users' private data without express consent of the user.
Purposeful, attempts to interfere with the regular workings of PNAP’S systems or network connections or which knowingly adversely affect the ability of other people or systems to use PNAP’S services or the Internet.
Any unauthorized attempts by a Client to gain access to any account not belonging to that Client on any of PNAP’s systems.
Any activity, which knowingly violates applicable local, state, U.S., or international law or regulation.
Repeated submissions of transactions to PNAP utilizing the same or similar IPs with varying identification information with the goal of maliciously attacking PNAP servers.

Violation of PNAP Policy

Any attempt to bypass or remove PNAP’S name, logo, or customer support link from any page from PNAP’S servers.
The posting or display of any image or wording related to any Web site running, participating, or advertising acts allowing the subscriber to bet or gamble on an uncertain outcome, or to play a game of chance for stakes.
Any attempt to display, sell, or transfer materials that knowingly violate or infringe any third-party copyright, trademark, right of publicity, or proprietary rights of others, or contain anything obscene, libelous, or threatening.
Reproduction, storage, advertising, or transmission of any software, program, product, or service in violation of any local, state, U.S., or international law or regulation is prohibited. PNAP makes every attempt in such cases to work with both U.S. and foreign law enforcement agencies to provide information about the providers and purchasers of such material. This includes the posting or display of any image or wording instructing users how to make or perform devices or situations that may violate any state, federal, or international law.
Knowingly, operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database, located at spamhaus.org/rokso.

Compliance with Rules of Other Networks.

Any access to other networks connected to PNAP’s Internet service must comply with the rules for that network as well as with PNAP’s rules.

Monitoring/Privacy.

PNAP reserves the right to monitor any and all communications through or with its facilities, as well as all Client’s sites, for compliance with this AUP and PNAP’s Terms and Conditions. PNAP is not a secure communication medium for purposes of the Electronic Communications Privacy Act, and no expectation of privacy is afforded. PNAP employees may be required to examine system accounting logs and other records to determine if privacy violations or other network unfriendly activities have occurred.

Cooperation with Authorities.

PNAP cooperates with law enforcement and other authorities investigating claims of illegal activity, including without limit illegal transfer or availability of copyrighted material, trademarks, child pornography, postings, or email containing threats of violence, or other illegal activity.

Confidentiality of Personal Subscriber Information.

PNAP will not release any Client or customer Personal Identifying Information (PII) to any third party except upon presentation of a valid court order or other request PNAP is legally required to respond to. Client agrees that PNAP’s judgment of the validity of any court order, subpoena, or request shall be considered proper and final.