Master Services Agreement (MSA)
This Master Services Agreement (“Agreement”) is entered into by and between One Data Center America having its main place of business at 3833 Ebony St Ontario, California, 91761 (“One Data Center America ”) and You (“Customer”) (each a “Party” and collectively the “Parties”) with respect to the provision of Services by One Data Center America to Customer.
A. One Data Center America is in the business of providing direct connectivity to the Internet by providing a variety of equipment, hardware, and software services and support for its Customers;
B. Customer desires to obtain Internet connectivity services from One Data Center America, from time to time, as will be more fully set forth in schedules to be entered into by the Parties.
NOW, THEREFORE, in consideration of the mutual provisions contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 “Data Center” means that certain facility located at 350 S. Milliken Ave, Ste E. Ontario, California, 91761 unless otherwise noticed by One Data Center America.
1.2 “Due Date” means, (i) with respect to Service Fees (other than for on-demand unscheduled Professional Services), the date specified on the invoices sent by One Data Center America ; and (ii) with respect to Service Fees for on-demand unscheduled Professional Services immediately upon receipt of One Data Center America ’s corresponding invoice.
1.3 “Equipment” means the equipment or computer devices leased or owned by Customer which is deployed at the Data Center for the purposes of obtaining Internet access and other Services from One Data Center America as per the description of the items in the online Customer portal.
1.4 “Internet Services” means bandwidth and a direct connection of the Equipment to the Internet switch or router via Ethernet or other types of connection, as well as redundant power supply, as per the description of the items in the online Customer portal.
1.5 “Professional Services” means set-up, maintenance, support or similar services, as more fully set forth in the applicable Schedule.
1.6 “Schedule” means a schedule executed by both Parties pursuant to this Agreement, or the description of the services to be provided as per the description of the items in the online Customer portal, as more fully described in Section 2.1.
1.7 “Service Fees” means the costs and fees payable by Customer to One Data Center America for Services, including, but not limited to, recurring base fee, set-up fees, and other fees as per the schedule or the description of the items in the online Customer portal.
1.8 “Service Start Date” means, with respect to each Schedule, the date set forth therein or absent such date, the date that Internet packets begin flowing to the Equipment therein or 30 days after the execution date of such Schedule, or the completion of the order through the online Customer Portal, whichever occurs first.
1.9 “Services” means, as applicable, Internet Services, Professional Services, and other services to be performed by One Data Center America pursuant to this Agreement under a Schedule or as ordered through the online Customer portal.
2.1 Schedules. The Parties shall enter into one or more Schedules, from time to time, which shall in each case, set forth the applicable Services and the corresponding Service Fees, and other information as mutually agreed to by the Parties. Each such Schedule shall be executed by both parties to be valid, the online agreement shall be considered valid execution. Upon execution by both Parties, each such executed Schedule shall be fully incorporated into and governed by the terms and conditions of this Agreement. In the event, any provision in a Schedule conflict with any portion of this Agreement, the provisions of this Agreement shall govern. Each Schedule is intended to define the contemplated scope of Services as described therein and the costs for such Services. To the extent, the Customer places an order online the description of the services to be provided detailed in the shopping cart and the billing details contained in the subsequent related invoices shall be considered a Schedule as described by this section and elsewhere in this agreement. One Data Center America shall not schedule or commence the performance of any Services until Customer signs and returns the applicable Schedule to One Data Center America, or electronically executes an online agreement to the same effect. Customer shall solely be responsible for any delays or increased Service Fees and costs arising due to Customer’s unreasonable delay in responding to or refusal to authorize Services set forth in a Schedule.
2.2 Changes to Schedules. No addition, change or modification to any Schedule will be effective unless made in writing and signed by both Parties. The customer acknowledges that any change to a Schedule may affect or delay the performance of the Services and may involve changes to the applicable Service Fees thereunder. Customer and One Data Center America shall execute a revised Schedule, setting forth the change to the prior Schedule and upon execution by both Parties, such a new Schedule shall supersede the prior Schedule. One Data Center America shall not be obligated to implement any changes to a Schedule until a revised Schedule is executed by both Parties. One Data Center America shall not be liable for any delays that occur in the original Schedule due to these procedures involving changes requested by the Customer. Notwithstanding anything else to the contrary, variations in Service Fees due to delays by Customer, scheduling of Services on weekends or holidays, other delays outside of the control of One Data Center America, or other variable factors, shall not be deemed to be additions, changes or modifications to the applicable Schedule.
2.3 Cancellations of Professional Services. Should Customer request that One Data Center America cancel any scheduled Professional Services as set forth in a Schedule, then Customer shall pay to One Data Center America that amount equal to (i) one-half of the applicable Service Fees for such scheduled Professional Services; and (ii) all non-recoverable costs and reimbursable expenses incurred by One Data Center America related to such Professional Services and their cancellation. One Data Center America shall issue Customer an invoice for such amount upon such cancellation.
2.4 Rescheduling of Professional Services. Should Customer request that Professional Services scheduled pursuant to a Schedule be rescheduled to a later date, then Customer shall pay to One Data Center America that amount equal to (i) twenty percent (20%) of the applicable Service Fees for such Professional Services; and (ii) all such non-recoverable costs and reimbursable expenses incurred by One Data Center America related to such Services and their rescheduling. One Data Center America shall issue Customer an invoice for such amount upon such cancellation.
Article 3.Financial Arrangements
3.1 Service Fees. The customer agrees to pay to One Data Center America all Service Fees that are due under the Schedules on or before each applicable Due Date, or as invoiced by One Data Center America.
3.2 Invoicing for On-Demand Unscheduled Professional Services. One Data Center America will issue Customer invoices for on-demand unscheduled Professional Services on a monthly basis each month which will include the on-demand unscheduled Professional Services performed in such month and the corresponding Service Fees due as set forth in the applicable Schedule. No invoices will be issued for any recurring base payments or other scheduled Services, as set forth in the applicable Schedule.
3.3 Payments. Payment of the Service Fees or other fees and costs hereunder will be made by Customer to One Data Center America as follows:
(a) The initial base recurring fee for Services as well as one-time setup fees and any other upgrades as picked by Customer and as described in the applicable Schedule are all due and payable in advance of the Service Start Date. Thereafter, the base recurring fee for Services shall be due and payable in advance on a monthly, quarterly or yearly basis, as will be set forth in the applicable Schedule or as invoiced by One Data Center America.
(b) Unless a credit card or auto-debit account is then on file with One Data Center America for charging the recurring Service Fees due under a Schedule, the Customer shall pay the Service Fees (other than for on-demand unscheduled Professional Services) in advance prior to the corresponding Due Date. Payment of Service Fees (other than for on-demand unscheduled Professional Services) is not conditioned on Customer’s receipt of an invoice from One Data Center America. Customer shall pay the Service Fees for on-demand unscheduled Professional Services on the corresponding Due Date or as invoiced by One Data Center America.
3.4 Pre-Authorized Payments. If Customer elects to make payments of recurring Service Fees using a credit card or other auto debit account, Customer hereby warrants that all charges incurred will be honored by the applicable credit card company or bank. Customer hereby authorizes One Data Center America to charge the recurring Service Fees under each Schedule, in advance on the periodic basis (monthly, quarterly, annually) as set forth in the Schedule or as invoiced by One Data Center America to the credit card or other auto debit account on file with One Data Center America and One Data Center America shall automatically charge such Service Fees to the Customer’s provided credit card or other auto debit account. Should Customer fail to pay any fees due under any agreement between the parties Customer hereby authorizes One Data Center America to charge the recurring Service Fees to the credit card or other auto debit account on file with One Data Center America and One Data Center America shall automatically charge such Service Fees to the Customer’s provided credit card or other auto debit account.
3.5 Payment Disputes. Should Customer dispute any amount charged under this Agreement, Customer must send to One Data Center America a written dispute notice within three (3) months of the date of the disputed charge, in each case setting forth the details of any such dispute.
3.6 Taxes. Customer shall pay for all taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties.
3.7 Default. If any payment of Service Fees is not received by the corresponding Due Date, One Data Center America may impose a late fee of 20% per service account past due after 7 days. Notwithstanding anything else to the contrary, One Data Center America shall have the right to discontinue Services in the event of any delinquency in payments from Customers without prior notice and without any liability. No Services shall be rendered by One Data Center America to Customer if any payment due to One Data Center America is not received in full within seven (7) days from the applicable Due Date. In the event that Customer pays the overdue Service Fees after the disconnect event, and One Data Center America has not terminated this Agreement as permitted herein, the Customer shall immediately pay to One Data Center America a re-connection charge of 20% per service account as a condition of One Data Center America resuming Services.
Article 4.Scope of Services
4.1 Performance of Services.
(a) Upon One Data Center America ’s receipt of Customer’s authorization as evidenced by Customer’s execution of the applicable Schedule, and subject to Customer’s performance of its obligations hereunder, including, but not limited to, timely payment of all Service Fees due pursuant to this Agreement, One Data Center America shall perform the Services as set forth in such Schedule.
(b) All Services performed hereunder shall be deemed accepted upon performance. The Services shall be performed at the Data Center or such other facility as may be specified in the applicable Schedule.
(c) IP addresses will be allocated according to the policy of ARIN.NET. IP addresses can be leased for a monthly fee or such other value as may be set forth in the applicable Schedule.
(d) The fee for technical support services shall be according to the Customer selection and per hour or such other fee as may be specified in the applicable Schedule.
(e) All equipment and servers and any other property provided by One Data Center America incident to the Services shall remain the sole property of One Data Center America unless the release of the equipment is agreed to in writing by an officer or director of One Data Center America as more fully set forth in a Schedule.
(f) One Data Center America reserves the right to change bandwidth providers and IP addresses at any time without notice.
4.2 Customer Obligations.
(a) The customer shall be responsible for providing to One Data Center America in an accurate and timely manner all information or other materials as necessary for One Data Center America to perform the Services. Customer shall (i) provide One Data Center America with access to any hardware, networks, files and documentation as necessary for One Data Center America to perform the Services; (ii) provide one Customer-designated point of contact for One Data Center America to use for all questions and issues relating to each Schedule; and (iii) provide sufficient personnel qualified to perform Customer’s obligations as may be set forth in a Schedule. The customer shall also be responsible to perform any additional obligations as may be set forth in the applicable Schedule.
(b) The customer is ONLY allocated the amount of power for colocation noted in the Schedule. The customer shall be responsible for providing an accurate measurement of all power consumption requirements for Customer’ equipment, as well as ensuring that power usage shall be less than 80% of the power amount allocated to Customers in the schedule. Customer shall also be responsible for any costs and damages incurred to due equipment exceeding this power usage level, in addition to a power overage fee per amp set according to the service/plan requested, per occurrence. Equipment which exceeds power allocation will be billed according to the rate schedule. One Data Center America may occasionally test Customer’s equipment to ensure it does not exceed this amount, If the allocated usage is exceeded One Data Center America may bill the Customer for the excess power at the selected rate per month, or fraction thereof, retroactive to the start date of this agreement. This does not apply to Customers with dedicated servers only.
(c) The customer shall be responsible for maintaining full and up-to-date backups (replication) of all data and information stored in One Data Center America facilities in an offsite location not controlled or maintained in any way by One Data Center America. The customer acknowledges that this procedure is standard practice in the IT industry and failure to adhere to it could place Customer’ data in extreme and unnecessary jeopardy. Customer further acknowledges that One Data Center America’s willingness to enter into this Agreement is expressly conditioned on Customer’s agreement to maintain such full and up-to-date backups of all of its data and information. Customer understands that One Data Center America is not responsible for Customer data or for making any backups of such data.
(d) Customers may be required to make an additional deposit to cover anticipated excessive bandwidth usage if One Data Center America determines that bandwidth usage is in excess of the bandwidth commitment rate agreed to in a Schedule. Excessive usage shall be any bandwidth usage over the subscription rate set forth in the applicable Schedule. Excessive usage shall be billed at the specific rate selected with the services unless a different rate is set forth in the applicable Schedule. Customer’s failure to pay for excessive bandwidth usage may result in the suspension of account until such payment is made. One Data Center America shall make reasonable attempts to notify Customers of such excessive usage but may nonetheless disconnect Customers without notice and without liability in the event of excessive bandwidth usage.
(e) If Customer requests custom technical support or One Data Center America otherwise provides custom technical support or custom administration for Customer at a later date, then Customer shall pay to One Data Center America according to the selected service rate per hour for the total hours of custom support or custom administrative services needed and/or requested by Customer.
(f) After a disconnection event for any reason, the Customer is still required to pay all Service Fees as set forth in the applicable Schedule. The customer acknowledges that One Data Center America does not store Equipment in the Data Center free of charge. Customers shall settle outstanding fees due to One Data Center America and remove Equipment promptly; otherwise, storage fees will be applied.
(g) The customer understands that One Data Center America does not carry insurance for any of the Equipment or any data that may be stored or processed thereon. Customer shall policies of insurance to adequately compensate it for any losses due to any Excluded Conditions.
Under no circumstances will One Data Center America be obligated to provide insurance coverage for any Equipment or data owned by the customer and hosted in the Premises.
(h) If a Customer is a person, he or she shall personally guarantee this Agreement. If Customer is a legal entity such as a corporation, partnership, limited liability company, etc., and One Data Center America has not specifically approved the credit of such entity in writing, the Guarantor herein below shall fully and personally guarantee the performance of this Agreement.
One Data Center America will perform a phone, email, address verification prior to services activation, Customer agrees to supply a copy of current Identification, either current driver’s license and state-issued ID card or current passport for the purpose of One Data Center America performing onetime identity verification. Onetime identity verification is performed in order to confirm your mailing address, method of payment, establish proper identification, avoid fraudulent activities and credit establishment for unpaid services.
If Customer fails to respond to the mentioned above-scheduled verifications and has made a payment, One Data Center America will not be responsible for the use of the method of payment (credit card, check, PayPal or another method of payment) Customer refunds can be requested from the Customer portal by opening a ticket, a refund fee of 30% will be applied and One Data Center America is not obligated to issue any payment refund at One Data Center America sole discretion.
For Colocation services, the Customer certifies the ownership of all equipment not provided by One Data Center America which Customer brings into the data center.
4.3 Personnel. One Data Center America reserves the right to determine which of its personnel shall be assigned to perform Services, and to replace or reassign such personnel during the term hereof; provided, however, that it will, subject to scheduling and staffing considerations, attempt to honor Customer’s request for specific individuals.
4.4 One Data Center America Subcontractors. One Data Center America shall, at its sole discretion, have the right to delegate some or all of the Services to one or more of its subcontractors.
4.5 Delays. A Party will be relieved of its obligations under a Schedule to the extent dependent upon the other Party’s obligations thereunder and/or under this Agreement that are not met. Customer will be responsible for additional fees and expenses incurred by One Data Center America due to (i) any delays resulting from Customer’s failure to perform Customer obligations hereunder and/or under a Schedule in a timely and effective manner; (ii) One Data Center America ’s performing tasks that were originally Customer obligations hereunder and/or under a Schedule but which were not performed in a timeframe or manner necessary to maintain the overall schedule and objectives of the applicable Schedule; and (iii) Excluded Conditions.
5.1 Customer Warranty. The execution, delivery, and performance of this Agreement has been duly authorized by all necessary action on behalf of Customer and do not conflict with or result in any breach of any of the terms of or constitute a default under any document, instrument, or agreement to which Customer is a party. The person executing this Agreement on behalf of Customer has full power and authority to do so. This Agreement has been duly executed and delivered by Customer, and constitutes, the legal, valid and binding obligations of Customer, enforceable against Customer in accordance with its respective terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally.
5.2 Services Warranty. One Data Center America represents and warrants to Customer that the Services will be performed in a workmanlike manner and consistent with industry practice.
5.3 Equipment Warranty. Customer represents and warrants to One Data Center America that Customer is the sole owner of all Equipment and that no agreement or restriction exists which would create any limitation on One Data Center America’s ability to perform the Services hereunder.
5.4 Disclaimer. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 5.1, One Data Center America EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE SERVICES PROVIDED BY One Data Center America TO CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR BASED ON COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE.
5.5 Excluded Conditions. Notwithstanding anything else to the contrary herein, One Data Center America is not responsible or liable for any result due to (“Excluded Conditions”): (i) any Equipment malfunctions, failures or errors; (ii) any power surges, software problems and other reasons beyond One Data Center America’s reasonable control; (iii) any failure or reduction in the available electrical power from the local public utility company; (iv) any telecommunications equipment or services, including, without limitation Internet interruptions or telecommunication connectivity problems; (v) regular or periodic disruption of Services due to scheduled and unscheduled maintenance of the equipment in the Data Center; (vi) Customer’s failure to regularly backup the Equipment and to maintain full and up to date backups of the Equipment at all times hereunder; or (vii) any failure by Customer to provide to One Data Center America with electronic access and permissions to Customer’s systems as necessary for One Data Center America to provide the Services. If any claims fall within any of the above exceptions, then, in addition to any amounts paid by Customer hereunder, Customer shall also pay One Data Center America’s costs of investigating and identifying the problem, and One Data Center America’s expenses to repair or correct the problem, based on One Data Center America’s then-current charges.
Article 6.Allocation of Liabilities
6.1 Customer’s Indemnity. Customer shall indemnify, defend and hold harmless One Data Center America, its officers, directors, shareholders, employees, parent and affiliated entities, agents and representatives against all damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorneys’ fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arise out of or relate to (a) a breach of any warranty provided by Customer hereunder; (b) any Excluded Conditions; (c) Customer’s negligent or willfully wrongful acts or omissions; and (d) Customer’s transactions with its affiliates or customers. In the event Customer fails to promptly indemnify and defend such claims and/or pay One Data Center America’s expenses as provided above, One Data Center America shall have the right to defend itself, and in that case, Customer shall reimburse One Data Center America for all of its reasonable attorneys’ fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of One Data Center America’s written requests.
6.2 Contrary Intentions. The foregoing indemnities shall be payment obligations and not merely reimbursement obligations, it being understood that One Data Center America and Customer have a “contrary intention” with respect to the provisions of paragraph 2 of Section 2778 of the California Civil Code.
6.3 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.1, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE SERVICES, THE RESULTS GENERATED FROM THE USE OF THE SERVICES, ANY TRANSACTIONS RESULTING FROM THIS AGREEMENT, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. IN ADDITION, One Data Center America ’S ENTIRE LIABILITY TO CUSTOMER WHETHER IN TORT, CONTRACT OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO One Data Center America IN THE PRECEDING THREE (3) MONTHS UNDER THE APPLICABLE SCHEDULE FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM.
Article 7.Term and Termination
7.1 Term. This Agreement shall commence on the Effective Date and shall continue unless and until terminated in accordance with the provisions of Section 7.2.
7.2 Termination. This Agreement may be terminated by either Party (i) in the event the other Party breaches a material obligation on its part to be performed hereunder and fails to cure such material breach within fifteen (15) days of receiving written notice of such breach; provided however, that a breach by Customer of paying any amounts due hereunder to One Data Center America must be cured within five (5) days of receiving One Data Center America’s written notice of such breach; (ii) for any reason at the end of the billing period and upon a prior thirty (30) day written notice to the other Party; or (iii) immediately upon the mutual written agreement of the Parties.
7.3 Termination by One Data Center America. This Agreement may additionally be immediately terminated by One Data Center America without notice to Customer in the event that (i) Customer makes any false statements for personal gain at the expense of One Data Center America ; (ii) Customer fails to follow instructions of One Data Center America’s staff or management which results in an increased hazard to persons or equipment; (iii) Customer attempts to remove Equipment from the Data Center while a Services Fee remains outstanding; (iv) Customer violates any rules of the building owner where the Data Center is located; (v) Customer violates any applicable law or regulation or causes the issuance of any judicial action to interrupt any of One Data Center America’s equipment or operations; (vi) Customer causes unannounced excessive bandwidth usage for which a payment or deposit is not provided as required; (vii) Customer originates or relays SPAM using the Equipment; (viii) Customer is listed on SpamHaus or Spews or other serious black list or the Spamhaus ROKSO list of “registry of known spam organizations; (ix) Customer operates the Equipment as an IRC Server, eggdrop server, botnet server, or sells “shell” hosting accounts; (x) Customer mismanages the Equipment resulting in, or which could potentially result in, any form of harm or interruption to the services provided by One Data Center America ; (xi) Denial of Service attacks are incoming or outgoing from the Equipment; (xii) Customer violates One Data Center America ’s security procedures as posted or instructed by One Data Center America; or (xiii) Customer engages in any other type of abuse not specifically mentioned above but which, in One Data Center America’s reasonable opinion, could potentially result in any form of harm or interruption to the services provided by One Data Center America or could harm other networks.
7.4 Effect of Termination.
(a) Upon termination or expiration of this Agreement: (i) no refunds of any kind are due in the event of termination; and (ii) Customer and One Data Center America shall each remain liable for all of their respective obligations hereunder that accrued prior to the date of termination.
(b) Upon any termination by One Data Center America pursuant to Section Error: Reference source not found(i) or 7.3 or by Customer pursuant to Section Error: Reference source not found(ii), Customer shall immediately pay to One Data Center America that amount equal to (i) one-half of the applicable Service Fees for any unperformed Services remaining on all then-active Schedules; and (ii) all non-recoverable costs and reimbursable expenses incurred by One Data Center America related to such Services and their cancellation.
(c) The provisions of Sections 3.1, 3.3, 3.4, 3.5, Error: Reference source not found, 7.4 and 7.2 all provisions under Article 5., Article 6. and Article 8. shall survive the termination or expiration of this Agreement.
7.5 Cumulative Rights and Remedies. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each Party at law, equity or otherwise.
Article 8.General Provisions
8.1 Relationship of Parties. Neither Party is the agent or legal representative of the other Party, and neither party has the right or authority to bind the other Party in any way. This Agreement creates no relationship as partners or a joint venture and creates no pooling arrangement.
8.2 Governing Law. This Agreement shall be interpreted and enforced according to the substantive laws of the State of California without application of its conflicts or choice of law rules.
8.3 Arbitration. Any and all controversies, claims, disputes, or actions of any nature whatsoever arising out of, in connection with, or relating to this Agreement, or in any way involving One Data Center America and Customer, including any issues of arbitrability, the scope or applicability of this Agreement to arbitrate, and the quality, cost, or appropriateness of One Data Center America’s services, shall be resolved by confidential arbitration before a retired judge at JAMS (www.jamsadr.com) in accordance with its expedited rules. Any such controversy, dispute, claim or action must be brought in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The place of the confidential binding arbitration will be in San Bernardino, California. The arbitrator must decide all disputes in accordance with the California Arbitration Act (Code Civ. Proc. section 1281 et seq.) and the expedited rules of JAMS. The arbitrator shall have the power to decide all matters, including arbitrability and legal questions raised by pleading or summary judgment motions. The arbitrator’s award shall be final and binding, and a judgment upon the award may be entered and enforced by any court of competent jurisdiction. The prevailing party shall be entitled to recover all costs and expenses, including without limitation all arbitration, expert witness and attorneys’ fees and costs, in addition to other relief to which it is entitled.
8.4 Assignment. The customer shall have no right to assign, delegate, transfer or otherwise encumber this Agreement or any portion thereof without One Data Center America’s prior written consent. In the event of a corporate reorganization, merger and/or acquisition, Customer may assign its rights under this Agreement to its successor in interest, subject to the written approval of One Data Center America, which may not be unreasonably withheld.
8.5 Counterparts. This Agreement may be executed in several counterparts that together shall be originals and constitute one and the same instrument.
8.6 Waiver. The failure of any Party to enforce any of its rights hereunder or at law or in equity shall not be deemed a waiver or a continuing waiver of any of its rights or remedies against another Party unless such waiver is in writing and signed by the Party to be charged.
8.7 Severability. If any provision of this Agreement, or part thereof, is declared by a court of competent jurisdiction to be invalid, void or unenforceable, each and every other provision, or part thereof, shall nevertheless continue in full force and effect.
8.8 Entire Agreement. This Agreement, including any Schedules as may be entered into by the Parties, constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior oral or written agreements or understandings regarding this subject matter. This Agreement can only be amended by a writing signed by both Parties. NO TERM OR CONDITION SET FORTH IN ANY OF CUSTOMER’S SOLICITATIONS, RFPs OR PURCHASE ORDERS SHALL BECOME PART OF ANY ORDER OR OTHERWISE BECOME BINDING ON One Data Center America UNLESS EXPRESSLY AGREED TO IN WRITING BY One Data Center America. ANY CUSTOMER PURCHASE ORDER IS ACCEPTED SOLELY ON THE CONDITION THAT CUSTOMER EXPRESSLY ACCEPTS AND ASSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
8.9 Authority. The parties executing this Agreement on behalf of One Data Center America and Customer represent and warrant that they have the authority from their respective governing bodies to enter into this Agreement and to bind their respective companies to all the terms and conditions of this Agreement.
8.10 Force Majeure. Other than for Customer’s payment obligations, neither Party shall be liable for any delay or nonperformance due to acts of God, natural casualties, war, terrorism, material shortages, transportation and communications delays, energy shortages and disruptions, trade embargoes, governmental regulations, strikes, civil unrest and/or other causes beyond the reasonable control of a Party (a “Force Majeure Event”). If a Force Majeure Event occurs, the Party whose performance is affected shall give the other Party written notice within ten (10) days of such occurrence, detailing the circumstances of the Force Majeure Event and an estimate of the anticipated delay in performance and whether payments will be suspended. The Party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable workaround plan in an attempt to minimize the impact of the Force Majeure Event. Performance and payments shall be promptly resumed upon the termination of the Force Majeure Event.
8.11 Law Enforcement. The customer agrees to abide by all applicable laws and regulations related to the use of One Data Center America Services and Equipment. The customer authorizes One Data Center America to cooperate with Law Enforcement in any manner related to any criminal investigation and indemnifies One Data Center America from any all damages related to this cooperation.
8.12 Non-Solicitation. During the term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement, Customer shall not directly or indirectly solicit, take away or assist any other party or business in soliciting solicit any employee or contractor of One Data Center America. The customer acknowledges that One Data Center America has a valid interest in maintaining a stable workforce and this provision is reasonably tailored to that purpose.
Other Applicable Terms
The Customer acts as an independent entity and therefore assumes all the risks related to his/its activities. The Customer is solely liable with regard to the use of the services and websites hosted on his/its dedicated server, the content of the information transmitted, posted or collected, including operations and updates, as well as with regard to all files, including address files. The Customer agrees, more specifically, to comply with the rights of third parties, human rights, and intellectual property rights, such as copyrights, patent rights or trademarks. One Data Center America shall therefore not be liable, in any way whatsoever, for the content of information transmitted, posted or collected, used, and updated, as well as for any files, including address files.
One Data Center America alerts the Customer as to the legal consequences that could result from unlawful activities on the server and disclaims any joint and several liabilities regarding the use of the data made available by the Customer to internet users.
The Customer shall also refrain from any breach or attempted breach activities (such as port scanning, sniffing, spoofing, spam, DDoS attacks, etc.) while using the server.
In such cases, the Customer shall not be entitled to the reimbursement by One Data Center America of amounts already paid in and One Data Center America reserves the right to disconnect the services at any time without prior notice until clarification of the situation in place without any liability.
The Customer will be responsible for the delivery of the Equipment. One Data Center America is responsible of the initial installation of the equipment in the individual server space assigned to the Customer. Access to the equipment is authorized on business hours upon previous notification from the Customer and accompanied by a One Data Center America staff member. Emergency access can be arranged outside business hours, the Customer will pay for emergency access requests in accordance to the emergency hourly rate in effect.
The Customer will be responsible for the delivery and installation of the Equipment in the private space. Upon request, the Customer can get 24/7 access to the private space. One Data Center America reserves the right to approve the Customer’s technicians and other contractors and to require identification, fingerprints, and photos of each individual who has access to the Premises. The Customer will cause its employees, agents, contractors or invitees who have access to the Premises to conform to all One Data Center America terms, rules and regulations. Except with One Data Center America written approval and subject to the terms of this Agreement, the Customer may only remove Equipment upon reasonable prior written notice to One Data Center America and during business days between 8:00 a.m. and 5:00 p.m. PST. The Customer will only install or place Equipment in the allocated section.