Servmatix Master Services Agreement

1. General.
This master service agreement (this “Agreement”) is between Servmatix LLC (“Servmatix”) and the customer set forth below (“Customer”). This Agreement sets forth the terms and conditions pursuant to which Servmatix shall provide colocation, dedicated and/or virtual hosting service, and/or dedicated Internet access service and, if ordered or requested by Customer, “remote hands” and/or other additional products or service(collectively, the “Service”) to Customer. Servmatix, in its discretion, may alter its provision of any Service upon notice to Customer, provided that such alteration does not result in a material adverse change in the Service, as determined in accordance with industry standards. This Agreement shall be effective on the date that this Agreement is executed by both Servmatix and Customer, and each Order Form (as defined in Section 2) shall be effective on the date that it is executed by Customer and accepted in writing by Servmatix (each, an “Effective Date”).

2. Billing Information.
Customer agrees to pay the rates and charges set forth in the attached order form(s) (each, an “Order Form”) for the Service pursuant to the terms of Servmatix’s billing and cancellation policy (“Billing and Cancellation Policy”), which policy is posted on Servmatix’s web site at www.Servmatix.com. Unless otherwise expressly set forth on an Order Form, monthly recurring charges for all new Service set forth on each Order Form

shall begin billing on the earlier to occur of (a) the date that Customer actually begins utilizing any Service set forth on such Order Form or places any equipment in the Servmatix data center (new Service delivery only) and (b) the billing start date set forth on such Order Form or issued in writing or via e-mail by Servmatix following execution of the Order Form (the “Billing Start Date”).

If the Billing Start Date is issued by Servmatix following execution of the Order Form, Servmatix agrees to use its good faith efforts to accommodate the start date requested by Customer, if any, provided that (i) Servmatix is able to accommodate Customer’s requested date from a scheduling perspective and (ii) Customer’s requested date is not more than forty-five (45) days following the Effective Date of the Order Form, unless otherwise agreed in writing by Servmatix. If Customer is not able to utilize the Service beginning on the Billing Start Date solely as a result of delays caused by Servmatix, then the Billing Start Date set forth on an Order Form shall be extended for each day

of delay caused by Servmatix. In the event Servmatix has completed installation of a portion (but not all) of the Service set forth on an Order Form, Servmatix may, at its discretion, invoice Customer for that portion of the Service already installed and provided by Servmatix, and Customer shall be obligated to pay for such Service in accordance with this

Section 2. Billing for partial months is prorated based on a calendar month. Unless otherwise expressly set forth on an Order Form, non-recurring charges, including set-up and installation fees, shall be payable upon installation of the applicable Service. The rates and charges for electrical power services set forth on an Order Form may increase from time to time during the Service Term (as defined in Section 3) in an amount proportional to any increases experienced by Servmatix in obtaining such electrical power services from the underlying provider.

Unless otherwise expressly set forth on an Order Form, monthly recurring charges for all space-related Service (e.g., cabinets and/or cage space) shall increase three percent (3%) per year beginning on the first anniversary of Service Term Start Date (as defined below) and continuing on each anniversary of such Service Term Start Date thereafter until termination of the Service pursuant to this Agreement.

For purposes of this Agreement, the “Service Term Start Date” shall mean the first day of the calendar month following the Billing Start Date for the last Service installed on such Order Form. Customer agrees to pay interest on all amounts not paid by the applicable due date at the rate of the lesser of (a) one and a half percent (1.5%) per month or portion

thereof or (b) the highest rate permitted by applicable law. Customer agrees to pay all taxes and fees assessed in connection with the Service, except for taxes based on Servmatix’s net income. Servmatix’s acceptance of this Agreement is subject to satisfactory completion by Servmatix of a Customer credit check, and Servmatix reserves the right at any time to condition provision of the Service on reasonable assurance of payment.

3.A. Term.
For each Service ordered by Customer, this Agreement shall be effective on the applicable Effective Date and shall continue for the number of months set forth on the applicable Order Form from the Service Term Start Date (each, a “Service Term”); provided, however, in no event shall any Service Term extend beyond the term of the underlying lease or other superior interest in the applicable data center, unless Servmatix elects to relocate the Service to another Servmatix-operated data center in the same metropolitan area. Any Service may be terminated by either party at the end of the applicable Service Term by giving written notice at least ninety (90) days prior thereto, but in the absence of such notice, the applicable Service Term shall automatically renew under the same terms and conditions for a term equal to that of the original Service Term (such renewal term(s) shall also be referred to herein as a “Service Term”). If Customer terminates a Service Term pursuant to the terms of this Section 3, Customer agrees to notify Servmatix in accordance with Servmatix’s Billing and Cancellation Policy. Upon termination of all applicable Service Terms, this Agreement shall terminate automatically. Termination or suspension of a Service for any reason shall not relieve Customer of its obligation to pay charges for such Service accrued through the date of termination or

suspension.

3.B.
Termination for Cause. Either party may terminate this Agreement or Servmatix may suspend provision of the Service immediately upon an event of default of the other party. An event of default shall be defined as (a) in the case of Customer only, failure to pay any amount within ten (10) days of the applicable due date; (b) in the case of Customer only, failure to comply with Servmatix’s acceptable use policy (“AUP”), which policy is posted on

Servmatix’s web site at www.Servmatix.com, or, with respect to any colocation-related Service, Servmatix’s data center rules of use (“Data Center Rules”), which rules are posted in the applicable data center; or (c) any material breach of this Agreement by the other party, which breach is not cured within thirty (30) days following written notice by the non-breaching party, provided that this subsection (c) shall not apply with respect to payment obligations, Service-

related issues and/or obligations (including notifications), and/or obligations to comply with Servmatix’s AUP and/or Data Center Rules, all of which are covered by Sections 3(a) – 3(b) above or Section 13.

3.C.
Termination for Convenience. Customer may terminate any Service for its convenience prior to the end of the applicable Service Term, provided that Customer gives Servmatix at least sixty (60) days prior written notice of such termination and pays Servmatix the following early termination fee (as liquidated damages, not a penalty) prior to the effective date of termination of such Service: (a) one hundred percent (100%) of the remaining monthly recurring charges for each terminated Service for months one (1) through twelve (12) of the then-effective Service Term; plus (b) seventy-five percent (75%) of the remaining monthly recurring charges for each terminated Service for months thirteen (13) through twenty-four (24) of the then- effective Service Term; plus (c) fifty percent (50%) of the remaining monthly recurring charges for each terminated Service for months twenty-five (25) through the end of the then-effective Service Term; plus (d) any previously waived or discounted fees, including, without limitation, installation fees; plus (e) any termination fees or liability associated with any third-party telecommunication services used by Servmatix in the provision of the Service; plus (f) all reasonable costs and expenses, including, without limitation, attorneys’ fees, incurred by Servmatix as a result of collecting such early termination fee or any

other amounts due under this Agreement. Customer shall not be liable for the above-stated early termination fee if Customer terminates this Agreement pursuant to Section 13.C. or due to an event of default by Servmatix pursuant to Section 3. In addition to other remedies available to Servmatix under this Agreement, at law, or in equity, Customer shall pay the above-stated early termination fee (as liquidated damages, not a penalty) for any termination of this

Agreement or any or all Service by Servmatix due to an event of default by Customer.

4.Representations, Warranties, and Obligations of Customer.
Customer represents and warrants that it has and shall have full right and authority to enter into this Agreement. In addition, Customer agrees that its use and its customers’ and other third-party users’ use of the Service and the Customer Data (as defined below) shall not violate the terms of Servmatix’s AUP or Data Center Rules. Customer at all times shall retain copies of the Customer Data and shall be responsible for the editorial supervision of the Customer Data. For purposes of this Agreement, “Customer Data” shall mean the text, data, images, sounds, photographs, illustrations, graphics, programs, code, and other materials transmitted or stored through the Service. With respect to hosting-related Service, Customer shall have no right to access Servmatix’s data center, any equipment, or any software installed or used by Servmatix on the equipment, and the equipment used by Servmatix to provide the Service and such software shall remain the sole and exclusive property of Servmatix. With respect to colocation-related Service, Customer agrees that it shall remove all Customer-owned or Customer-provided equipment (collectively, the “Customer Equipment”) from the Servmatix data center by the date of termination of the relevant space-related Service. If Customer does not remove the Customer Equipment within seven (7) days following the date of termination of the relevant space-related Service, Customer agrees that the Customer Equipment shall be deemed to be transferred to Servmatix, and Servmatix may remove and dispose of the Customer Equipment at its sole discretion and may retain any proceeds from such disposition, without any liability to Customer or any of its affiliates, customers, vendors, lenders, employees, contractors, or agents. Immediately following termination of the relevant space-related Service, Servmatix may in its discretion terminate provision of all associated non space-related Service, including power and bandwidth, without notice to Customer. If any Customer Equipment remains in a Servmatix data center following termination of the associated space-related Service, Customer shall be responsible for all monthly recurring fees associated with such space until removal of such Customer Equipment by Customer or Servmatix pursuant to this Agreement; provided, however, Customer shall not have access to such space or the Servmatix data center unless approved in advance by Servmatix at its discretion and subject to any access conditions imposed byServmatix.

5. Representations, Warranties, and Obligations of Servmatix.
Servmatix represents and warrants that it has and shall have full right and authority to enter into this Agreement. In addition, Servmatix agrees that it shall use its best efforts to provide the Service in accordance with Section 13; to the extent that Servmatix does not provide the Service in accordance with Section 13, Servmatix agrees to provide Customer with the remedies set forth in Section 13.

Any equipment or software not owned or leased through a third-party by Customer shall remain the sole and exclusive property of Servmatix. At Customer’s request, Servmatix shall use commercially reasonable efforts to secure domain names and to assign Internet Protocol (“IP”) address space for Customer during a Service Term and to route those IP addresses on Servmatix’s network. Customer shall have no right to route such IP addresses.

Servmatix shall retain ownership of all such IP addresses at all times, and Customer’s access to such IP addresses shall cease immediately upon termination of the Agreement.

6. Disclaimer of Warranties.
Servmatix exercises no control over and accepts no responsibility for the information or content accessible on the Internet. The Internet is not a secure network; confidential or sensitive information should not be transmitted over the Internet or stored on computers directly connected to the Internet. Servmatix disclaims any liability for loss or theft of information transmitted over the Internet or stored on computers directly connected to the Internet. THE SERVICE AND ANY RELATED SOFTWARE AND/OR EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER Servmatix NOR ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS WARRANT THAT THE SERVICE SHALL BE ERROR-FREE, UNINTERRUPTED, SECURE, OR PRODUCE PARTICULAR RESULTS OR THAT THE INFORMATION OBTAINED ON THE INTERNET SHALL BE RELIABLE OR UNOBJECTIONABLE. NO ADVICE OR INFORMATION GIVEN BY Servmatix OR ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS SHALL CREATE A WARRANTY.

7.A.Indemnification by Customer.
Customer shall indemnify, defend, and hold harmless Servmatix and its employees, affiliates, contractors, and agents from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, without limitation, reasonable attorneys’ fees) arising from or related to (a) any breach of Servmatix’s AUP and, with respect to any colocation-

related Service, Servmatix’s Data Center Rules; or (b) any use of the Service or any negligent or willful act or omission by Customer or any of its customers, employees, affiliates, contractors, or agents.

7.B. Indemnification by Servmatix.
Subject to the terms of this Agreement, Servmatix shall indemnify, defend, and hold harmless Customer and itsemployees, and affiliates from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, without limitation, reasonable attorneys’ fees) arising from or related to (a) tangible personal property damage to

Customer’s equipment located in the Servmatix data center resulting from Servmatix’s negligence or willful misconduct, up to the full replacement cost of the damaged equipment and (b) actual personal injury damage resulting from Servmatix’s negligence or willful misconduct, provided that such indemnification shall not apply to any claims made by Customer’s employees that are covered under applicable workers’ compensation laws, up to the limits

covered by Servmatix’s applicable insurance policies. In addition, if any portion of the Service becomes, or in Servmatix’s opinion is likely to become, the subject of a claim of infringement of any third party intellectual property rights recognized in the United States of America, then Servmatix, at its option and expense, may do one of the following:

(1) procure for Customer the right to continue using such portion of the Service; (2) replace or modify such portion of the Service so that it becomes non-infringing; or (3) terminate this Agreement and refund Customer a pro-rated portion of any unused Service fees actually paid. The obligation of Servmatix set forth in the preceding sentence does not apply (a) with respect to portions or components of the Service (i) that are not supplied directly by Servmatix, (ii) that are made or modified in whole or in part in accordance with Customer’s specifications, (iii) that are modified by

Customer to the extent the alleged infringement relates to such modification, or (iv) that are combined with other products, processes or materials other than by Servmatix to the extent the infringement relates to such combination; or (b) where Customer’s use of the Service is not strictly in accordance with the terms of this Agreement and the applicable software license agreement provided by Servmatix to Customer or agreed to by Customer via a “click-to-accept” license during installation, if any. Notwithstanding anything to the contrary set forth in this Agreement, Customer’s sole and exclusive remedies against Servmatix for intellectual property infringement are as set forth in this Section 7.B.

8. Limitation of Liability.
IN NO EVENT SHALL Servmatix OR ITS EMPLOYEES, AFFILIATES, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS, REVENUE, DATA, OR USE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, INCLUDING, WITHOUT LIMITATION, LEGAL THEORIES OF CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF Servmatix HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL Servmatix’S LIABILITY FOR ANY DAMAGES EXCEED THE ACTUAL DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE DAMAGES OCCURRED OR THE CAUSE OF ACTION AROSE. With the exception of any monetary obligations under this Agreement, neither party shall be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, interruption of or delay in transportation or telecommunication service, act of its vendors or suppliers, or inability to obtain raw materials, supplies, or power used in or equipment needed for the provision of the Service.

9. Insurance.
(a)With respect to colocation-related Service: Customer must procure and maintain the following insurance during the Service Term: (i) “all risk” property insurance covering all Customer equipment located in the Servmatix data center in an amount not less than its full replacement cost; (ii) commercial general liability insurance, including automobile coverage and business interruption and electronic data processing (EDP) data and

media insurance, with a combined single limit coverage of not less than $2,000,000 per occurrence; (iii) professional liability insurance with a combined single limit of not less than $1,000,000 per occurrence; and (iv) worker’s compensation insurance in compliance with all applicable worker’s compensation or similar statutes and employers liability insurance with a limit not less than $1,000,000 per occurrence. (b) With respect to hosting-related Service:

Customer shall procure and maintain throughout the Service Term (i) professional liability insurance and (ii) standard form property insurance, including business interruption and electronic data processing media insurance. Such insurance shall be in the amount of $1,000,000 per occurrence and shall be provided by an insurance company reasonably satisfactory to Servmatix. The above policies, with respect to both collocation-related and hosting-related

Service, (1) must list Servmatix and any additional parties that Servmatix may reasonably designate as additional insured(s) and (2) must be maintained with a carrier with an AM Best rating of A- VIII or better. Customer’s policies must contain provisions providing that such insurance is primary insurance insofar as Servmatix and Customer are concerned, with any other insurance maintained by Servmatix being excess and noncontributing with the insurance

required of Customer and providing coverage for the contractual liability of Customer to indemnify Servmatix.

Customer is responsible for requiring its contractors, subcontractors, and/or sublicenses who access any Servmatix facilities to procure and maintain the same types, amounts, and coverage extensions as required of Servmatix customers. Upon request, Customer shall provide certificate(s) of insurance to Servmatix evidencing such insurance requirements. Customer agrees to provide Servmatix with not less than sixty (60) days prior notice of any cancellation or material change to such insurance policies.

10.Assignment.
Customer shall not assign this Agreement without the prior written consent of Servmatix, which consent shall not be unreasonably

withheld.

11.Governing Law; Venue.
This Agreement shall be governed by the laws of the State of Utah, without regard to its conflicts of laws principles. Each of the parties hereby irrevocably submits to the exclusive personal jurisdiction of any federal or state court of competent jurisdiction located in Salt Lake City,Utah in any action or proceeding relating to this Agreement. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY ACTION ARISING OUT OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER CLAIMS.

12. Non-Disclosure.
During the Service Term, each party may have access to certain confidential and proprietary information disclosed by the other party, including, without limitation, information relating to either party’s clients, customers, or business operations (including the terms of this Agreement and the rates charged for the Service), whether disclosed orally or in writing by any other media (collectively, “Confidential Information”). Each party (the

“Receiving Party”) acknowledges that the Confidential Information of the other party (the “Disclosing Party”) may contain information valuable to the Disclosing Party and that any such Confidential Information shall remain the property of the Disclosing Party. Each party shall use the Confidential Information provided hereunder only for purposes directly related to the purpose for which it was provided and shall restrict disclosure of Confidential

Information solely to its employees and subcontractors with a need to know, and not disclose such Confidential

Information to any other parties, and otherwise to protect the Confidential Information with no less restrictive measures than it uses to protect its own confidential and proprietary information. “Confidential Information” shall not include information that: (a) was in the public domain at the time it was communicated to the Receiving Party; (b) is

rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was communicated to the Receiving Party; or (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party. Notwithstanding

the above, the Receiving Party shall not be in violation of this Section 12 with regard to a disclosure that is in response to a valid order by a court or other governmental body, provided that the Receiving Party provides the Disclosing Party with written notice of such disclosure where reasonably possible in order to permit the Disclosing Party to seek confidential treatment of such information. The obligations of confidentiality of each party under this Section

12 with regard to any disclosure of Confidential Information shall survive for two (2) years from the date of any such disclosure. The parties recognize and agree that any breach of this Section 12 would cause irreparable harm and, accordingly, that injunctive relief is an appropriate remedy to prevent any threatened or ongoing breach of such confidentiality obligations. Notwithstanding anything to the contrary set forth in this Section 12, any disclosure of

confidential or proprietary information by means of a third-party attack, probe, theft, or other breach of network security (for which Servmatix expressly disclaims all liability as set forth in Section 6) shall not be deemed to be a breach of this Section 12. The terms of this Section 12 shall supersede and

replace any non-disclosure or confidentiality agreement entered into by the parties prior to the Effective Date of this Agreement.

13.A.  Service Level.
For purposes of this Section 13, the “Servmatix Network” shall mean, with respect to the system facilitating Customer’s usage of and connection to the Internet, that portion of such system beginning at the entrance where the Customer’s collocation/hosting uplink (the “Customer Port”) connects to the network and ending where Servmatix delivers Internet Protocol (“IP”) data packets to the Public Internet (as hereinafter defined) on the

Customer’s behalf. For purposes of this Section 13, the “Public Internet” shall mean the gateway router interface between the Servmatix Network and Servmatix’s upstream providers’ networks. For purposes of this Section 13, a trouble ticket may be opened in Servmatix’s trouble ticketing system by Servmatix, Customer, or Servmatix’s monitoring systems. Servmatix reserves the right to verify the validity of any tickets opened by Customer or

Servmatix’s monitoring systems.

13.B. Responsibilities for Hosting Service.
For the purposes of this Section 13, with respect to any hosting Service provided by Servmatix pursuant to this Agreement, the parties agree that Servmatix shall be responsible for the following: (a) Operating System Management: Servmatix shall manage, maintain, and support the applicable Red Hat Linux and/or Windows Server operating system (the “Operating System”). Servmatix shall perform the initial setup and installation of the Operating System and ongoing maintenance, including reasonable upgrades or fixes. Servmatix shall use commercially reasonable efforts to notify Customer of any upgrades to the Operating System in advance of such upgrade. (b) Server Infrastructure Management: Servmatix shall manage, maintain, and support the following server infrastructure elements: CPU, memory, hard disk, power supply, and motherboard (collectively, “Server

Infrastructure”). If Customer purchases any server upgrades, Servmatix also shall provide installation as necessary. (c)

Network Infrastructure Management:

Servmatix shall manage, maintain, and support the following network infrastructure elements: routers, switches, Internet connectivity on the Servmatix Network, and, to the extent ordered by Customer and provided by Servmatix as part of the Service, firewalls and load balancers (collectively, “Servmatix Network Infrastructure”). (d) Monitoring:

Servmatix shall provide 24×7 monitoring of the Operating System, Server Infrastructure, and Servmatix Network Infrastructure for health and failure of these systems and infrastructures. For the purposes of this Section 13, with respect to any hosting Service provided by Servmatix pursuant to this Agreement, the parties agree that Customer shall be responsible for the following:

(a) Application, Code, and Content Management:

Customer shall manage, maintain, and support any application code or content that is not provided and installed by Servmatix. Customer also shall be responsible for (1) application, code, and content compatibility with the Operating System, including upgrades and (2) loading its Customer provides Servmatix with a written request within five (5) business days of the last day of the month in which such failure occurred, Servmatix shall provide a service credit to Customer’s account equal to ten percent (10%) of Customer’s Monthly Service Charges for the affected Service for each

twenty-four (24) hour measurement period during which Servmatix fails to meet the commitment during the applicable month, up to a maximum of the total Monthly Service Charges charged by Servmatix to Customer during the applicable month for the affected Service.

13.I.Servmatix Network Roundtrip Delay Commitment. Servmatix’s commitment is to maintain average roundtrip delay of no more than forty (40) milliseconds across the Servmatix Network. Average roundtrip delay across the Servmatix Network is measured over a twenty-four (24) hour period beginning at 12:01 A.M. MST each day. Measurements shall be performed on an ongoing basis. If Servmatix fails to meet the network roundtrip delay

commitment set forth in this Section 13.I. and Customer provides Servmatix with a written request within five (5) business days of the last day of the month in which such failure occurred, Servmatix shall provide a service credit to Customer’s account equal to ten percent (10%) of Customer’s Monthly Service Charges for the affected Service for each twenty-four (24) hour measurement period during which Servmatix fails to meet the commitment during the applicable month, up to a maximum of the total Monthly Service Charges charged by Servmatix to Customer during the applicable month for the affected

Service.

13.J. Servmatix Non-Redundant Hardware Availability Commitment. This commitment shall apply only with respect to Service provided by Servmatix to Customer in a hosting environment. Servmatix’s commitment is to maintain availability of Servmatix-owned and operated hardware for which Customer has not ordered a redundant unit (the “Non-Redundant Hardware”) as follows:

hardware/availability

1. Communications, controller, routers, switches, firewalls, and other network infrastructure 99.00%

2. Disk storage 99.00%

3. CPU and/or processing platforms 99.00%

Unavailability of the Non-Redundant Hardware is measured over a calendar month and is based on total outage time incurred by Customer. Non-Redundant Hardware unavailability shall exist when (1) the unit that is in production for provision of the Service is unable to operate in accordance with industry standards and causes unavailability of the Service and (2) such failure is recorded in Servmatix’s trouble ticket system. Non-Redundant Hardware unavailability is measured from the time the trouble ticket is opened to the time Servmatix confirms that the affected unit is again operational. Servmatix shall use commercially reasonable efforts to notify Customer, via any immediately available method selected by Servmatix, including, without limitation,

telephone, e-mail or posting at www.servmatix.com/billing/, of any Non-Redundant Hardware unavailability affecting Customer’s Service. If Servmatix fails to meet the Non-Redundant Hardware availability commitment set forth in this Section 13.J. and Customer provides Servmatix with a written request within five business days of the last day of the month in which such failure occurred, Servmatix shall provide a service credit to Customer’s account equal to

ten percent (10%) of Customer’s Monthly Service Charges for the affected Service for each cumulative hour of unavailability or failure during the applicable month, up to a maximum of the total Monthly Service Charges charged by Servmatix to Customer during the applicable month for the affected Service.

13.K. Servmatix Redundant Hardware Availability Commitment.

This commitment shall apply only with respect to Service provided by Servmatix to Customer in a hosting environment. Servmatix’s commitment is to maintain availability of Servmatix-owned and operated hardware for which Customer has ordered a redundant unit (the “Redundant Hardware”) as follows:

hardware/availability

1. Communications, controller, routers, switches, firewalls, and other network infrastructure 100%

2. Disk storage 100%

3. CPU and/or processing platforms 100%

Unavailability of the Redundant Hardware is measured over a calendar month and is based on total outage time incurred by Customer. Redundant Hardware

unavailability shall exist when (1) both the primary and the redundant units that are in production for provision of the Service are unable to operate in accordance with industry standards and cause unavailability of the Service and (2) such failure is recorded in Servmatix’s trouble ticket system. Redundant Hardware unavailability is measured from the time the trouble ticket is opened to the time Servmatix confirms that at least one of the affected units is again

operational. Servmatix shall use commercially reasonable efforts to notify Customer, via any immediately available method selected by Servmatix, including, without limitation, telephone, e-mail or posting at

www.servmatix.com/billing/, of any Redundant Hardware unavailability affecting Customer’s Service. If Servmatix fails to meet the Redundant Hardware availability commitment set forth in this Section 13.K. and Customer provides Servmatix with a written request within five business days of the last day of the month in which such failure occurred, Servmatix shall provide a service credit to Customer’s account equal to ten percent (10%) of Customer’s Monthly Service Charges for the affected Service for each cumulative hour of unavailability or failure during the applicable month, up to a maximum of the total Monthly Service Charges charged by Servmatix to Customer during the applicable month for the affected Service.

13.L. Servmatix Support Response Commitment. Servmatix’s service support for colocation and hosting Service is available 24 x 7. Servmatix‘s commitment is to respond to any failure of Customer’s colocation or hosting Service within the following time frames following Servmatix’s confirmation of such failure:

Severity/Response Time

Level 1 – Critical 30 minutes

Level 2 – Non-Critical 4 hours

For the purposes of this Section 13.L., (b) “Critical” issues shall mean all issues in which (i) Customer’s Operating System, Server Infrastructure, Servmatix Network Infrastructure, and/or the power to Customer’s space are unavailable for normal use, (ii) communications are significantly degraded, and/or (iii) data loss or corruption are observed; and (b) “response” shall mean that a Servmatix representative is working to resolve the issue. If Servmatix fails to meet the support response commitment set forth in this Section 13.L. and Customer provides Servmatix with a written request within five business days of the last day of the month in which such failure occurred, Servmatix shall provide a service credit to Customer’s account equal to ten percent (10%) of Customer’s Monthly Service Charges (as hereinafter defined) for the affected Service for each cumulative hour of unavailability or failure during the applicable month, up to a maximum of the total Monthly Service Charges charged by Servmatix to Customer during the applicable month for the affected Service.

13.M.Service Credit Eligibility. In the event that Customer is eligible to receive multiple credits under this Section 13 from the same event pursuant to different commitments, such credits shall not be cumulative and Customer shall be eligible to receive only the maximum credit available for such event under the service level commitment corresponding to the root service failure. For purposes of this Section 13, “Monthly Service Charges” shall mean the service charges (excluding any taxes, pass-through charges, promotional or other credits, colocation space or other non-bandwidth charges, set-up or installation charges, or other one-time charges) billed for the affected or applicable Service during the applicable month. THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR EQUIPMENT AND/OR SOFTWARE FAILURES, SERVICE INTERRUPTIONS, SERVICE RESPONSE ISSUES, AND/OR SERVICE DEFICIENCIES OF ANY KIND WHATSOEVER.

13.N.Service Credit Exceptions. For each commitment set forth in this Section 13, service credits shall not be available to Customer in cases where (1) the Service is unavailable as a result of (a) the acts or omissions of Customer or its employees, contractors, agents or end-users; (b) the failure, malfunction, or limitation of throughput of equipment, network, software, applications or systems not owned or directly controlled by Servmatix; (c) circumstances or

causes beyond the control of Servmatix, including, without limitation, events of force majeure and third-party attacks on the Servmatix Network (such as ping and denial of service attacks); (d) scheduled maintenance with prior notice posted at www.servmatix.com/billing/, which URL is subject to change upon prior notice; or (e) urgent maintenance with notice provided as soon as is commercially practicable under the circumstances or (2) Customer is not in

compliance with its applicable Servmatix Service Agreement (including Servmatix’s then-current Acceptable Use Policy, Billing and Cancellation Policy and, with respect to any colocation-related Service, Data Center Rules). Such credits shall be granted only if Customer provides Servmatix with all requested information in an expeditious manner and affords Servmatix full and free access to Customer’s premises and equipment to make necessary

repairs, maintenance, testing, etc.

13.O. Rerouting. Servmatix reserves the right to re-route IP data packets to any and all Internet carriers connected to the Servmatix Network based upon current load and service issues at the time of re-routing. The removal of IP data packets and the re-routing to another Internet carrier shall not be calculated in the service level commitments set forth in this Section 13.

13.P.Chronic Alerts. In the event that a single alert or one or more related alerts recur on a consistent basis, as reasonably determined by Servmatix, and Servmatix determines that the alert(s) are generated due to a condition or component that is outside the scope of the Service to be provided by Servmatix under this Agreement, Servmatix may flag the condition or component generating the alerts as being in a “testing” status rather than in a “production”

status.

If a condition or component is flagged as being in a “testing” status, it means that (i) an error or condition has occurred because of development or other inherent issues unrelated to the Service provided by Servmatix and (ii) any alerts generated from such condition or component are not subject to Servmatix’s problem resolution and escalation process and shall not be addressed by Servmatix.

Servmatix shall notify Customer of any consistently recurring alerts due to a condition or component that is outside the scope of the Service to be provided by Servmatix and shall provide Customer with an opportunity to correct the condition or the component causing the alerts prior to placing it in a “testing” status. Upon notification by Customer that the condition or component has been addressed to eliminate the recurring alerts, Servmatix shall bring the condition or component back to a “production” status unless Servmatix determines that the recurring alerts still are occurring.

14.A.Power Utilization. This Section 14 shall apply with respect to all colocation-related Service provided to Customer pursuant to this Agreement. For colocation-related Service provided on a per cabinet basis, in the event that Customer’s sustained power utilization exceeds 5,000 watts per cabinet, then one of the following must occur as determined by Servmatix:

(a) Customer shall purchase additional colocation cabinet space at the then-current rates in order to reduce power utilization below 5,000 watts per cabinet; (b) Servmatix shall increase Customer’s colocation cabinet and power pricing set forth on the applicable Order Form, at its reasonable discretion, to offset the increased power and data center support costs; or (c) Customer shall decrease its power utilization below 5,000 watts per cabinet. For colocation-related Service provided on a square foot basis, in the event that Customer’s sustained power

utilization exceeds 120 watts per square foot, then one of the following must occur as determined by Servmatix:

(a) Customer shall purchase additional colocation space at the then-current rates in order to reduce power utilization below 120 watts per square foot; (b) Servmatix shall increase Customer’s colocation space and power pricing set forth on the applicable Order Form, at its reasonable discretion, to offset the increased power and data center support

costs; or (c) Customer shall decrease its power utilization below 120 watts per square foot.

14.B. Circuit Breaker Utilization. In the event that any of Customer’s allocated circuit breaker(s) carry greater than eighty percent (80%) of its continuous current load based on National Fire Protection Association 70 Article 210.20

(A), then one of the following must occur as determined by Servmatix:

(a)Customer shall purchase additional power circuits at the then-current rates in order to reduce circuit breaker utilization to less than eighty percent (80%) of its rated current or (b) Customer shall decrease its circuit breaker utilization to eighty percent (80%) of its rated current.

14.C. Primary and Redundant Power. In the event that Customer orders a primary power circuit or a redundant power circuit, such Service must be utilized as set forth on the applicable Order Form. If Customer is found to be using a redundant power circuit as a primary power circuit, then one of the following must occur as determined by Servmatix: (a) Servmatix shall increase Customer’s power pricing set forth on the applicable Order Form, at its

reasonable discretion, to the then-current rates for primary power circuit or (b) Customer shall begin utilizing the redundant power circuit in a redundant manner as reasonably determined by Servmatix. For purposes of this Section

14.C., any redundant power circuit with utilization greater than 40% of the rated breaker capacity shall be deemed to being utilized as a primary power circuit.

15. Miscellaneous. This Agreement, including the attached Order Form(s) and Servmatix’s AUP, Billing and Cancellation Policy, and, with respect to any colocation-related Service, Data Center Rules, constitutes the entire agreement between the parties with respect to the Service and supersedes all prior representations, understandings, and agreements between the parties with respect to the Service. Servmatix’s AUP, Billing and Cancellation Policy, and DataCenter Rules may be amended from time to time in Servmatix’s sole discretion. Customer agrees that Servmatix may refer to Customer by trade name and trademark, and may briefly describe customer’s business in Servmatix’s marketing materials. No failure by either party to insist upon strict performance of any provision of this Agreement shall be construed as a waiver of any of its rights hereunder. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed as nearly as possible to reflect the original intent of the parties and the remainder shall remain in full force and effect. All terms and provisions of this Agreement that should by their nature survive the termination of this Agreement shall so survive, including, without limitation, Sections 3, 4, 5, 6, 7, 8, 11, 12, and 15.

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