OneColo | Master Service Agreement

OneColo BUSINESS CUSTOMER AGREEMENT

OneColo L.L.C.

MASTER SERVICE AGREEMENT

DATA CENTER SERVICES

THIS MASTER SERVICE AGREEMENT (MSA) IS MADE BY AND BETWEEN OneColo L.L.C. AND ITS OPERATING AFFILIATES (“OneColo”), AND THE CUSTOMER INDICATED IN THE SIGNATURE BLOCK BELOW (“CUSTOMER”). THIS MASTER SERVICE AGREEMENT IS EFFECTIVE AS OF THE DATE OF THE OneColo SIGNATURE BELOW (THE “EFFECTIVE DATE”).

1. ORDERING AND PROVISION OF SPACE AND SERVICES

1.1 Orders. Orders may be placed by Customer using the approved OneColo Business Service Order form (each, an “Order”) which will be a part of and be governed by the terms and conditions of this MSA. Where a term in this MSA contemplates that the Order may provide otherwise, the term in the Order will control with respect to that particular Order. If there is a conflict between this MSA and any Order, the terms of this MSA will control provided that the parties may agree in an Order to supersede the terms of this MSA by identifying and approving in the applicable Order the specific terms to be superseded, in which case such terms will govern only with respect to that particular Order. Customer acknowledges that additional orders may be placed with OneColo via an Order form, from a Customer Representative authorized to place orders. All charges for Orders will be added to the monthly invoice following notification of completion of such Order. Terms in this MSA are subject to defintions contained in this MSA or any applicable Order.

1.2 Commencement and Provision of Space and Services. The occupancy of Space and provision of Services, each as indentitifed in the Order, will be deemed to commence on the date that the Space and Services are made available to Customer (the “Commencement Date”). OneColo will notify Customer’s designated contact in advance of the Commencement Date. Subject to the terms and conditions of this MSA, OneColo agrees to provide and Customer agrees to pay for the Space and Services for the Commitment Period identified in the Order. If no Committment Period is specified in the Order, the Period shall be thirty-six (36) months after the Commencement Date.

1.3 Commitment Period. The Space and Services are non-cancellable during the Commitment Period, unless expressly provided otherwise in this MSA or the Order. As a material inducement for OneColo to enter into this MSA and make available the Space and Services for the fees specified, Customer acknowledges, agrees and covenants that, except as otherwise expressly provided herein, (i) Customer is responsible for full payment of the Space and Services for the entire Commitment Period regardless of the portion of the Space actually occupied or Services actually consumed; and (ii) termination of the Order or this MSA, restriction of access to Space or suspension of Services will not relieve Customer of its obligation to pay the full MRC (as defined herein) for the duration of Commitment Period.

1.4 Suspension of Services. (a) Non-Payment. In the event that Customer is overdue on its payment obligations, OneColo may, upon no less than fifteen (15) days prior written notice to Customer, suspend Services until Customer’s account is current. (b) Protection of Space. If necessary in OneColo’s sole discretion to protect the Space and/or OneColo facility in which the Space located (the “Facility”) or to remedy Acceptable Use Policy (AUP) violations, OneColo may charge Customer for AUP violations and/or restrict or suspend Customer’s rights under this MSA or any Order, including suspension of the Services or access to the Space or Facility, without liability to OneColo. OneColo will use reasonable efforts to notify Customer prior to any such restriction or suspension. OneColo will notify Customer promptly if and when such restriction or suspension is no longer necessary. Suspension of the Services as provided above or pursuant to this Section will not be a breach of this MSA. (c) Power Usage. Customer’s actual power usage may not exceed the Power Commitment, as defined in the Order. If Customer exceeds the Power Commitment set forth in the Order, then OneColo may invoice Customer for its actual usage at the rate specified in the Order. If Customer’s power consumption exceeds the Power Commitment and, in OneColo’s reasonable opinion, creates an unsafe or hazardous environment (including threatening the safe, continued operation of any part of the Facility), then OneColo may immediately suspend power to the Space until Customer has remedied the cause and has provided OneColo with adequate assurance that such event will not recur. Customer shall remain responsible for all applicable charges associated with the Space during all periods that OneColo has suspended power due to Customer exceeding the Power Commitment. Any requests for additional power shall be subject to OneColo’s prior written approval, which may be withheld or conditioned in OneColo’s sole discretion. Customer shall not be permitted to provide its own uninterruptable power supply (“UPS”), without OneColo’s prior written consent, which may be withheld or conditioned in OneColo’s sole discretion.

2. CUSTOMER’S ACCESS AND USE OF THE SPACE

2.1 Grant of License. Subject to the other provisions of the MSA, OneColo hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (i) install and operate Customer Equipment identified on the Order within the Space; and (ii) reasonably access and use the Common Areas identified by OneColo located within the Facility (collectively, the “Licensed Areas”). The Licensed Areas are provided on an “AS-IS” basis and Customer may use such Licensed Areas only for the purposes of maintaining and operating the Customer Equipment.

2.2 Installation. Customer will have the right to construct and install approved Customer Equipment in its assigned space (the “Work”). (a) Customer shall perform the applicable Work (i) in a safe, good and workmanlike manner consistent with generally-accepted construction standards, and (ii) in a way as to reasonably minimize interference with the operation of the Facility and the use thereof by other customers at the Facility. (b) Customer shall obtain, prior to the commencement of any construction, installation or related Work, all required and necessary federal, state, county and municipal permits, licenses and approvals. (c) Customer will be solely responsible for the immediate removal from the Facility of all disposable materials, including but not limited to, packaging materials, associated with the Customer Equipment.

2.3 Access Rights. Subject to the other provisions of this MSA, Customer will have access to the Licensed Area 24-hours a day, seven (7) days per week. Customer’s access and other rights will be in accordance with OneColo’s security and access procedures. Customer is responsible for any and all actions of Customer’s employees, representatives, contractors, and other agents and their employees and other persons escorted by and/or doing Work on behalf of Customer (collectively, “Customer Representatives”). OneColo may suspend access by any Customer Representative or other person to the Licensed Area.

2.4 Removal of Customer Equipment. Customer will provide OneColo with notice before Customer desires to remove a piece of Customer Equipment from the Space so logistics may be arranged within the Facility. OneColo may prohibit the removal of Customer Equipment if Customer has past due payment obligations.

2.5 Vacating the Space. In the event Customer continues to occupy the Space after the termination of this MSA, Customer agrees to be subject to all the terms and provisions of this MSA during such occupancy period and to pay for such Space and related Services at an amount equal to the greater of fair market value or 150% of the MRC. No occupancy by Customer of the Space or payments of money by Customer after termination will be construed to prevent OneColo’s immediate recovery of the Space by summary proceedings or otherwise. Customer will indemnify, defend and hold harmlessOneColo from and against any and all claims, actions, proceedings or demands and related costs arising from or related to Customer’s failure to timely vacate the Space.

2.6 Relocation of Customer Equipment. (a) OneColo may require Customer to relocate the Customer Equipment. Upon prior written notice of at least thirty (30) days, or in the event of any emergency, OneColo reserves the right to relocate the Customer Equipment within the Facility or to a nearby Facility; provided that the relocation site will afford comparable environmental conditions for and accessibility to the Customer Equipment.

2.7 Non-Exclusivity. The rights granted to Customer under this MSA are not exclusive except as specifically stated. Customer understands that other customers may operate in the Facility and OneColo hereby reserves the right to grant, renew or extend similar licenses to other providers and such other licenses do not unreasonably interfere with the rights granted to Customer.

3. OneColo’S RESPONSIBILITIES

3.1 Power Provisioning. The Data Center will procure from local utilities AC and DC power to the Space as designarted on the signed Order, and will be responsible for repairing and maintaining the electrical system in connection with the Space and Services as necessary to comply with the Service Levels specified in this MSA or any applicable Order or service level agreement between the parties. Unless otherwise agreed to by OneColo, Service Levels may be amended by OneColo from time to time in its sole discretion. The Data Center will use commercially reasonable efforts to make available power from a back-up generator in the event of a power failure. The Data Center will be responsible for timely repairing and maintaining the back-up generator.

3.2 Facility Maintenance Services.The Data Center will be responsible for cleaning, repairing and maintaining the Facility. The Data Center will use good faith efforts to provide Customer (except in the case of emergency, in which event The Data Center will use reasonable efforts, but will not be required, to provide Customer with prior notice) not less than one (1) week’s prior notice of OneColo’s intent to conduct Facility maintenance services and planned repairs that are reasonably likely to disrupt the provision of the Services to Customer. In the event such work is expected to materially disrupt and/or interfere with the business of Customer within the Facility, OneColo and Customer will cooperate to determine an appropriate maintenance window to conduct such work. Such maintenance window shall not be applicable in the event of an emergency.

3.3 Air Conditioning. The Data Center will be responsible for providing heating and air conditioning for the Facility and Space as necessary to provide the Services.

3.4 Fire Suppression. The Data Center will supply a fire suppression system for the Facility in accordance with the generally accepted and applicable industry standards and the requirements of any governmental authority having jurisdiction over the Facility and will be responsible for repairing and maintaining the fire suppression system in compliance with the system’s manufacturer’s specifications.

4. CUSTOMER’S RESPONSIBILITIES

4.1 Customer Equipment. Customer has sole control and responsibility for testing, operation and maintenance of the Customer Equipment. In no event will the untimely installation or non-operation of Customer Equipment relieve Customer of its obligation to pay for the Space or Services.

4.2 Interference and Other Restrictions. Customer shall not: (i) do or permit to be done anything in or about the OneColo Facility that violates a requirement or condition of the standard fire insurance policy generally issued for office or data processing buildings in and around the locality containing the OneColo Facility; or (ii) do or permit to be done anything in or about the OneColo Facility that constitutes a nuisance, annoyance or inconvenience to other tenants, customers or occupants of the OneColo Facility; or (iii) store any equipment or property in the Space not approved in advance by OneColo; or (iv) disrupt, adversely affect or interfere with the operations of OneColo, or of OneColo’s customers or future customers in the Facility, or with any occupant’s use and enjoyment of the Facility’s common areas, or (v) interfere with, adversely affect or damage the Facility, its structures, or the Equipment or personal property of OneColo, or of OneColo customers or future customers at the Facility, or of any third party providing services to the Facility; or (vi) interfere with the computer or communications operations in or throughout the OneColo Facility. If OneColo notifies Customer of any such interference, Customer shall promptly discontinue use of its Customer Equipment until the interference is resolved.

4.3 Order and Repair. Customer shall keep the Space and Customer Equipment in good order, repair and condition throughout the terms of the applicable Order and promptly and adequately repair all damages to the Space or the Facility caused by Customer, other than ordinary wear and tear.

4.4 Cable Management. Customer must adhere to industry standards for cable management. Cables must be properly installed and either enclosed in cable management trays or in clean bundles for proper presentation and identification.

4.5 Customer’s End Users. Customer is solely responsible for billing its end users and providing such end users with Customer’s service. Customer will use commercially reasonable efforts to notify OneColo in the event an end user notifies Customer of problems associated with the Services.

4.6 Compliance with Law.At all times, Customer’s operations in the Facility and use of the Licensed Area and Services and any contractor or third party performing Work or services on behalf of Customer, shall comply with all applicable laws and regulations. Customer acknowledges that OneColo exercises no control over the content of the information passing through the Customer’s use of the Services and that, as between OneColo and Customer, it is Customer’s sole responsibility to ensure that the information Customer transmits and receives complies with all applicable laws and regulations. If Customer fails to cooperate with any investigation by OneColo or any governmental authority, or fails to immediately rectify any illegal use, then OneColo may suspend or terminate Services or Customer’s access to Space, and Customer will be in material breach of this MSA. Customer’s use of the Space and the Services may only be for lawful purposes.

4.7 Safeguards and Security. Customer will encrypt and otherwise safeguard any sensitive, personal, proprietary, or confidential data contained on the Customer Equipment or processed in connection with the Services. OneColo will limit access to the Space and Facility and has designed security and access procedures in order to safeguard the Facility. OneColo will maintain security protocols and procedures designed to prevent unauthorized access. OneColo will not authorize its other customers, tenants or third parties (other than fire and other emergency workers) to enter the Space without Customer’s authorization. Customer will comply with any security requirements and procedures adopted by OneColo and communicated to Customer.

4.8 Compliance with AUP. At all times, Customer’s operations in the Facility and use of the Licensed Area and Services and any contractor or third party performing Work or services on behalf of Customer, shall comply with the OneColo AUP.

5. FEES AND BILLING

5.1 Charges. Customer shall timely pay all fees and charges set forth in this MSA and all corresponding Orders. Recurring Charges. Customer agrees to pay the minimum Monthly Recurring Charges (“MRC”) indicated on the Order. Customer shall pay the fees and expenses specified in accordance with the terms set forth in this MSA and any associated Order. Such fees may be updated effective as of the start of the next annual renewal of this Agreement or the Order provided that OneColo provides written notice of such updated fees to the Customer no later than ninety (90) days prior to the beginning of such next annual renewal; provided, Customer also agrees to reimburse OneColo for the amounts charged by or on behalf of the utilities for powering Customer Equipment. Non-Recurring Charges. Customer agrees to pay the Non-Recurring Charges (“NRC”) specified and agreed to in each Order.

5.2 Power. Any Power Commitment charges set forth on any Order may additionally increase to proportionately reflect increases after the Commencement Date in third party utility charges incurred by OneColo in connection with Customer’s use of power. Upon the Customer’s request, OneColo will provide to the Customer documentation of the related power cost increases and Customer’s use of power. Notwithstanding anything in this MSA to the contrary, after the first twelve (12) months of the Commitment Period of a specific Order, and for every twelve (12) month period thereafter, in the event that power rates charged to OneColo (i) increase by more than ten percent (10%) above the average rate during the previous twelve (12) month period, or (ii) increase by more than twenty-five percent (25%) over the Commitment Period of the applicable Order, OneColo reserves the right to increase the provisioned Power Commitment rate proportionally and Customer agrees to pay such increased amount.

5.3 Invoicing and Payment. OneColo will begin invoicing MRC upon the Commencement Date and NRC upon Order execution. OneColo shall invoice Customer monthly in advance for MRC and NRC charges, and Customer shall pay such invoices within thirty (30) days after the date of the invoice. Amounts not paid when due are subject to a late fee of five percent (5%) of the amount due plus an interest charge on the outstanding balance equal to the lower of one and one-half percent (1.5%) per month or the maximum allowable rate under applicable law.

5.4 Disputed Amounts. Customer will provide OneColo with timely written notice of any amounts invoiced which Customer disputes and the rationale for such dispute within thirty (30) days of receipt of each invoice. The parties will work together in an effort to resolve all disputes within thirty (30) days of the date of the dispute notice. Disputes not resolved in such period will be escalated to senior executives of each party who will promptly meet to discuss and resolve the dispute. If Customer was invoiced in error, OneColo will provide Customer with a credit for the amount invoiced incorrectly. If the amount was invoiced correctly, Customer will pay the amount within fifteen (15) days of confirmation.

5.5 Bankruptcy/Insolvency. If Customer fails to make any payments, or if a petition is brought by or against Customer under any state or federal insolvency law, OneColo may modify the payment terms to secure Customer’s payment obligations before providing Space or Services.

5.6 Taxes. All charges are exclusive of applicable taxes, duties, tariffs, and similar charges. Customer will be responsible for and will pay in full the taxes, duties, tariffs, and similar charges that directly relate to or result from its business or activities at the OneColo Facility (exclusive of income taxes and federal, state or local employer taxes payable by OneColo), whether imposed on OneColo or directly on Customer. If applicable, OneColo will exempt Customer from payment of taxes in accordance with law, effective on the date OneColo receives a valid exemption certificate from Customer.

6. FORCE MAJEURE

Neither party shall be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses or any consequences thereof caused by or attributable to any event of Force Majeure. For purposes of this Agreement “Force Majeure” means any cause beyond the reasonable control of the party claiming relief, including without limitation, action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in governmental laws, regulations or rules occurring after the Effective Date), third party labor disputes, natural catastrophe (such as flood, hurricane, lightning), war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut by a third party or failure of a third party to recognize a permit, authorization, right-of-way, easement, license or other agreement obtained by OneColo to construct and operate the Company Network and/or the Data Center.

7. ADDITIONAL COMPONENTS OF THIS AGREEMENT

(a.) Service Level Agreement: OneColo shall provide the Colocation Services in accordance with the Service Level Agreement (“SLA”) as amended from time to time by OneColo. The SLA sets forth Customer’s sole and exclusive remedies for making any claim relating to any failure by OneColo to meet the service level objectives set forth in the SLA. The current version of the SLA is set forth on OneColo’s website.

(b.) Colocation Access Procedures: Customer agrees that it shall at all times abide by the Colocation Access Procedures as amended from time to time by OneColo The Colocation Access Procedures are designed to provide security for the Data Center and Customers by outlining the procedures for gaining access to the Data Center and the Customer Space. The current version of the Colocation Access Procedures is set forth on OneColo’s website.

Any amendments to these additional components of this Agreement shall be effective upon posting on OneColo’s website and notice to Customer of such posting.

8. ACCEPTABLE USE POLICY

Customer acknowledges that it must use the Colocation Services and the Company Network in compliance with the Acceptable Use Policy of its internet carrier, as in effect from time to time. Any violation of the applicable Acceptable Use Policy by Customer or a User gaining access through Customer’s account, as determined in OneColo’s reasonable business judgment, may be treated as a Default under this Agreement.

9. PRIVACY PROTECTION

(a) Privacy Policy: OneColo endeavors to protect the privacy of Customer information and has adopted an Online Privacy Policy (“Privacy Policy”). The current version of the Privacy Policy is posted on OneColo’s website. By using the Colocation Services, Customer consents to the Privacy Policy. The Privacy Policy may be changed by OneColo at any time. When a change is made to the Privacy Policy, it shall be effective upon posting to OneColo’s website.

(b) Access Codes: Customer is solely responsible for protecting the privacy of, and monitoring use of, its user ID and password (“access codes”) for all purposes, including without limitation, ordering Colocation Services on OneColo’s website. All orders placed using the access codes shall for all purposes be deemed a writing signed by Customer.

(c) Publicity: Neither party shall use the other party’s name, images from such party’s website or images of the Data Center in any marketing material, including but not limited to advertising, press releases or other public announcements of any kind, whether in print, on a website or any other form, without the prior written consent of the other party, which may be withheld in its sole discretion. Notwithstanding the preceding sentence during the Contract Term, either party may use the name and logo of the other party in any listing (in print or online) of vendors and/or customers of such party.

10. RIGHT TO USE

(a) Data Center: Prior to termination of this Agreement, Customer has a non-exclusive license to access the Data Center, which access is subject to terms and conditions imposed on OneColo under its lease or other agreement governing its occupancy of the Data Center. Furthermore, OneColo may adopt rules and procedures to govern use of, and behavior in, the Data Center by Customers by posting the Data Center Rules on OneColo’s website. By accessing the Data Center, Customer agrees to the Data Center Rules. The Data Center Rules may be changed by OneColo at any time. When a change is made to the Data Center Rules, it shall be effective upon posting to OneColo’s website. OneColo is responsible for ensuring that the services needed to support the overall operation of the Data Center, such as janitorial services, environmental systems maintenance and power plant maintenance, are provided for the benefit of Customer.

(b) Customer Space: Prior to termination of this Agreement, Customer has an exclusive license to access and use the Customer Space for the purpose of installing, operating and supporting Customer Equipment. Customer acknowledges that its right to use is not a grant of any real property interest in the Customer Space or the Data Center. Customer is responsible for maintaining the Customer Space in an orderly manner and is responsible for removing trash, packing, cartons and related items from the Customer Space. Customer must maintain the Customer Space in a safe condition, including but not limited to, not storing hazardous material. Customer may not use the Customer Space as an office site or house its employees or agents. Customer acknowledges that OneColo, through its officers, employees and contractors, may access the Customer Space, without notice to Customer, for undertaking routine maintenance procedures, completing customer support requests and other activities designed to protect the safety and security of the Data Center and all of its Customers.

(c) Power: OneColo agrees to provide Power to the Customer Space as outlined on the applicable executed Service Order. OneColo reserves the right to monitor Customer’s actual electrical consumption and charge Customer for any usage in excess of the ordered amounts in accordance with its standard policy or the terms set forth on the applicable Service Order. To the extent usage is based on Power consumed by Customer, nothing in this Agreement shall be construed such that OneColo is considered to be reselling electricity to Customer. Rather the usage of the Power is intended to measure the amount due to OneColo for its cost in operating and maintaining the Data Center and Customer Space for the benefit of Customer.

(d) Customer Equipment: Prior to termination of this Agreement, all Customer Equipment remains Customer’s exclusive personal property. Customer is solely responsible for obtaining and maintaining property insurance covering the Customer Equipment. OneColo assumes no risk for any damage or loss of the Customer Equipment. Customer must give prior notice to OneColo when installing or removing Customer Equipment from the Data Center. Customer Equipment may only be installed and stored within the Customer Space. The installation or storage of Customer Equipment outside the Customer Space must be approved in advance by OneColo. Without OneColo’s prior written consent, Customer (i) may not install wireless equipment and/or antenna in the Data Center or in the Customer Space; (ii) may not use camera or other video equipment in the Customer Space; or (iii) may not access the subfloor, at any time, to install or remove Customer Equipment. OneColo is responsible for providing and connecting a cable from the demarcation point of Customer’s Internet’s carrier’s network to the demarcation point of the Customer Equipment. Customer must provide access to the Customer Equipment to OneColo to enable OneColo to perform its duties under this Agreement. Customer must ensure that all Customer Equipment conforms to the manufacturer’s specifications. Customer must provide OneColo with such documentation prior to OneColo performing any maintenance service on such Customer Equipment.

(e) Vacating: Upon termination of this Agreement for any reason, Customer must, at its own expense, immediately vacate and surrender the Customer Space and remove all Customer Equipment from the Customer Space and the Data Center. If Customer fails to remove such Customer Equipment within 30 days of the effective date of termination, then OneColo may charge Customer a storage fee for such Customer Equipment in amount equal to 50 percent of the monthly recurring charge (excluding the monthly recurring charge for usage based Services) as of the effective date of termination of this Agreement until the time Customer either (i) removes the Customer Equipment from the Customer Space or (ii) it is deemed abandoned by Customer. Customer Equipment is deemed abandoned if Customer does not remove the Customer Equipment within six months of the effective date of termination of this Agreement. Customer must return to OneColo all keys, access cards and other security devices received from OneColo by the effective date of termination.

(f) Damages: Customer is responsible for all damages caused by Customer’s employees, agents, vendors or visitors to the Data Center or the Customer Space. Customer is also responsible for all damages caused by Customer’s removal of the Customer Equipment or other items installed in the Customer Space. Customer agrees to promptly reimburse OneColo for all repairs and restoration costs associated with repairing such damage upon written notice to Customer itemizing the damages and associated costs for repairing.

11. ALTERATIONS

(a) General: Customer may not make any construction changes or material alterations to the Customer Space, including changes to the cabling and power supplies for the Customer Equipment, without the prior written consent of OneColo. All fixtures, repairs, build-outs and other alterations in or to the Customer Space (“Fixtures”) shall become part of the Customer Space. Upon termination of this Agreement, Customer may not remove any Fixtures from the Customer Space without the prior written consent of OneColo.

(b) Vendor Approval: Prior to any delivery, installation, replacement or removal work, Customer must obtain the written approval of OneColo with respect to the suppliers or contractors to be used by Customer, which approval may not be unreasonably withheld. OneColo may request additional information before granting approval. The approval of the supplier or contractor is not an endorsement of Customer’s choice. Customer remains solely responsible for the selection of the supplier or contractor and for all payments due to such suppliers or contractors.

(c) No Liens: Customer must keep the Data Center and the Customer Space free from any liens arising from any work performed, material furnished or obligations incurred by or at the request of Customer. Any vendor contracting with Customer or furnishing or rendering labor and materials to Customer must be notified in writing by Customer that they must look solely to Customer for payment. If any lien is filed against the Data Center or the Customer Space as a result of the acts or omissions of Customer, Customer must discharge it within 60 days of learning of such lien.

12. RELOCATION

(a) Within Data Center: OneColo shall not arbitrarily require Customer to relocate Customer Equipment and/or move into different Customer Space within the Data Center listed on the executed Service Order. However, upon 60 days prior written notice or, in the event of an emergency with such time as may be reasonable, OneColo may require Customer to change location of its Customer Space to a location within the Data Center that affords comparable environmental conditions for, and accessibility to, the Customer Equipment.

(b) New Data Center: In the event that OneColo relocates the Data Center to another location within the geographic area of the original Data Center listed on the executed Service Order for any reason, upon 30 days prior written notice, OneColo may require Customer to relocate to the new Data Center and shall provide Customer with comparable Customer Space in the new Data Center.

(c) Cooperation: OneColo shall work in good faith with Customer to minimize any disruption to the Services to Customer as a result of any relocation pursuant to this Section 12. OneColo is responsible for the cost of improving the relocated Customer Space, for relocating the Customer Equipment utilized for accessing the Computer Network and, if moving to a new Data Center, the cost of transporting the Customer Equipment to the new Data Center.

13. PROHIBITED ACTIVITIES

(a) Non-Interference: Customer shall not use any products, tools, material or methodologies that interfere with the Colocation Services or may cause damage to the Data Center and/or the Company Network or may cause harm to any individual or the public. Furthermore, Customer agrees that the Customer Equipment installed or stored in the Customer Space shall not (i) interfere with or impair the Colocation Services provided to other Customers; (ii) unreasonably disturb any other Customer or other tenant in the Data Center; (iii) endanger or damage the Data Center or the Customer Space of other Customers; (iv) compromise the privacy of any communications carried in, from or through the Data Center; or (v) create an unreasonable risk of injury or death to any individual or the public. Customer shall not improperly restrict or interfere with the use of the Company Network. Upon notice to Customer, Customer shall promptly remove any hazard, interference or service obstruction that may be caused by the Customer Equipment or the connectivity under the control of Customer.

(b) Not Permitted: Food and drinks are not permitted inside the Data Center at any time. Combustibles (i.e., cardboard boxes, paper, etc.) are not permitted to be stored inside the Customer Space.

(d) Signage: No signage or advertising may be placed within the Data Center or the Customer Space without the prior written consent of OneColo, which may be withheld in its sole discretion.

14. GENERAL LIABILITY INSURANCE

As long as this Agreement remains in effect, Customer shall maintain, at its own expense, general liability insurance that provides comprehensive liability coverage in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate. Upon request, Customer shall provide OneColo with proof of such coverage and shall furnish a certificate of insurance showing OneColo as an additional insured under the policy.

15. MUTUAL INDEMNIFICATION

(a) OneColo: OneColo agrees to indemnify, defend and hold Customer, its officers, directors, managers, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense, including reasonable attorney’s fees, by reason of any claims or actions by third parties against Customer for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party claims arises out of or relates to OneColo’s gross negligence or willful misconduct; or (ii) infringement or misappropriation by OneColo of any Intellectual Property under this Agreement.

(b) Customer: Customer agrees to indemnify, defend and hold OneColo, its officers, directors, managers, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense, including reasonable attorney’s fees, by reason of any claims or actions by third parties against OneColo for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party claims arises out of or relates to Customer’s gross negligence or willful misconduct; (ii) infringement or misappropriation by Customer of any Intellectual Property under this Agreement; (iii) Customer’s, its Users or its customer’s use of the Colocation Services, including without limitation, defamation, libel, slander, obscenity, pornography, violation of the rights of privacy or publicity or spamming or any other tortious or illegal conduct; or (iv) Customer’s or its User’s violation of any applicable Acceptable Use Policy.

16. CONFIDENTIALITY

Each party agrees that the terms of the Service Orders and all information furnished to it by the other party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed confidential and proprietary information or trade secrets (collectively, “Proprietary Information”) of the party furnishing the Proprietary Information (“Disclosing Party”) and shall remain the sole and exclusive property of the Disclosing Party. Each party shall treat the Proprietary Information and the contents of the Service Orders in a confidential manner. Except to the extent necessary in connection with the performance of its obligations under this Agreement, neither party may directly or indirectly disclose the same to anyone other than its employees and other advisors on a need to know basis and who agree to be bound by the terms of this Section 16 without the written consent of the Disclosing Party. Information shall not be deemed Proprietary Information if it (a) becomes publicly available other than through the action of the receiving party; (b) is independently developed by the receiving party; or (c) becomes available to the receiving party without restriction from a third party. If the receiving party is required by a governmental or judicial order, regulation, rule or permit to disclose Proprietary Information, it must give prompt written notice to the Disclosing Party of the requirements of such disclosure and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice shall not be a breach of this Section 16.

17. LIMITATION OF LIABILITY

The total liability of either party for damages arising out of or in connection with a Service Order (excluding any early termination charge under Section 2(e) above) is limited to an amount equal to the lesser of (a) total charges payable by Customer during the Contract Term or (b) three times the monthly recurring charges for the month immediately preceding the date the claim arose. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OF LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THIS AGREEMENT. The limitation set forth in this Section 17 applies to any claim by Customer whether occasioned by any construction, installation, relocations, service, repair or maintenance performed by, or failed to be performed by, OneColo, or any other cause whatsoever, including breach of contract, breach of warranty, negligence or strict liability. In no event shall either party be liable for loss of data or technology. Notwithstanding anything to the contrary these is no limit on the early termination charges imposed on a Customer under this Agreement.

18. WARRANTY

OneColo warrants that any Colocation Services to be provided to Customer shall be at a professional level of quality conforming to generally accepted industry standards and in compliance, in all material respects, with all applicable laws, regulations and rules. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, OneColo DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

19. INTELLECTUAL PROPERTY

Neither party shall use any copyrights, trademarks, service marks or other intellectual property rights (“Intellectual Property”) owned, licensed or used by the other party without the other party’s written consent. Upon termination of this Agreement, all permitted uses shall be discontinued, and any Intellectual Property shall be returned to the other party.

20. REPRESENTATIONS

Each party represents to the other party that (a) if an entity, it is duly organized and in good standing under the laws of the state of its organization; (b) it has all requisite power and authority to enter into and perform its obligations under this Agreement and each executed Service Order; (c) it will comply with all applicable Federal, State and Local laws, regulations and rules in connection with the provision and use of the Colocation Services; and (d) this Agreement and each Service Order, when executed, are legal, valid and binding obligations of such party.

21. ASSIGNMENT

Customer may not assign this Agreement or any executed Service Order without the prior written consent of OneColo. However, upon notice to OneColo, Customer may assign the Agreement to an entity controlling, controlled by or under common control with Customer; provided however, Customer shall remain bound by all of the terms of this Agreement unless OneColo consents in writing to release Customer, which consent may be withheld in its sole discretion. OneColo may assign this Agreement by giving written notice to Customer.

22. RELATIONSHIP

OneColo and Customer are independent contractors. Nothing contained in this Agreement may be deemed to constitute a partnership or other agency relationship between them.

23. CONSTRUCTION

This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to its principles of conflicts of laws. The undertakings and agreements set forth in this Agreement are solely for the benefit of, and enforceable by, OneColo and Customer and their respective successors and assigns. Each party’s representations and covenants, including the obligations of indemnification, confidentiality and limitations of liability, shall survive termination of this Agreement and shall remain in full force and effect. The failure to exercise or delay in exercising any right or privilege under this Agreement by either party shall not operate as a waiver unless expressly stated. In any event any term of this Agreement is held invalid, illegal or unenforceable, in whole or part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement shall be in any way affected.

24. NOTICES

All notices, including without limitation, demands, requests and other communications required or permitted under this Agreement (excluding invoices for Colocation Services), must be in writing and shall be deemed given (a) when delivered in person; (b) one business day after deposit with an overnight delivery service for next day delivery; or (c) three business days after deposit in first class U.S. mail, postage prepaid, and addressed to the recipient party. In addition, OneColo may send invoices for Colocation Services and notices to Customer, including notices of default or suspension of Colocation Services, to Customer’s email address or fax number as contained on OneColo’s customer contact list. Any email or fax notification is deemed delivered on the day sent unless returned to sender. The initial notification address for Customer shall be the address set forth on the initial executed Service Order. The initial notification address for OneColo shall be set forth on OneColo’s website (www.OneColo.com). Either party may change its notification address by notice to the other party pursuant to this Section 24.

25. EFFECTIVENESS

(a) Entire Agreement: Collectively, this Agreement, each executed Service Order and the Service Level Agreement and the Colocation Access Procedures comprise the entire agreement between OneColo and Customer with respect to the provision of the Colocation Services and granting access to the Company Network and the Data Center. This Agreement supersedes any and all prior negotiations, understandings and agreement, whether written or oral, between OneColo and Customer.

(b) Updating Terms: OneColo may modify or change this Agreement, the Service Level Agreement and/or the Colocation Access Procedures from time to time in its sole discretion. Upon posting of such changes to OneColo’s website and giving notice to Customer of such updating, Customer shall be bound by such updated documents.

(c) Changes to Service Order: Any changes to an executed Service Order must be in writing and executed by both OneColo and Customer.