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."
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.
The Parties indicate their acceptance of the terms and conditions of this MSA by signature of the Client SOF.
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.
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.
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:
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.
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.
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.
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:
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
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.
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.
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.
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.
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:
Phoenix NAP, LLC
C/O Legal Department
2353 West University Drive
Tempe, Arizona 85281
With a copy sent to [email protected].
All communications to Client shall be sent to client contact information on file. Client is responsible for ensuring all information in current and valid.
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.
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
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.
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/.
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:
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.
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.
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.
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.
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