MASTER SERVICES AGREEMENT
This Master Services Agreement (“MSA”) is made and entered into as of the date electronically signed (“MSA Effective Date”), by and between North Atlantic Networks, LLC, on behalf of itself and its subsidiaries, (“NAN”), and Sample company (“Customer”) (each a “Party” and collectively the “Parties”).
This MSA is comprised of the Terms and Conditions for the Provision of Services ("Terms"). The terms and conditions contained in this MSA apply to each Sales Order entered into by the Parties (each an “Order”) and Services (defined in Section 1 of the Terms) specified therein on and after the MSA Effective Date. This MSA is hereby incorporated into each executed Order. This MSA does not grant any rights to Customer with respect to any NAN facility or service separate and apart from a fully executed Order. This MSA does not obligate either Party to enter into an Order with respect to any NAN facility or service.
The Parties, intending to be legally bound hereunder, have caused this MSA to be executed by their duly authorized and empowered officers or representatives.
TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES
These Terms are incorporated into and form an integral part of the MSA by and between NAN and Customer. Capitalized terms used but not defined in these Terms shall have the meanings set forth on the Cover Page.
1. NAN SERVICES: NAN will provide Customer the services specified in each Order (each a “Service” and, collectively referred to herein as “Services”). Each Order will specify the NAN data center location or locations at or from which the Services will be provided to Customer (each location a “Premises”), or an Order will specify the nature of the Managed services provided to Customer. For data center services, unless otherwise set forth in these Terms or in an Order, Customer is solely responsible for all costs and expenses to provide all equipment, hardware, cabling and software required to access or receive the Services. For managed services, costs for which Customer is responsible will be specified in these Terms or on an Order form.
2. LICENSE GRANT AND ACCESS
2.1 License Grant and Acceptable Use Policy. NAN grants Customer a nonexclusive, revocable, and non-transferable right and license to use the Services at the Premises set forth in an Order during the Service Term (defined in Section 5.1). In its use of the Services, Customer shall adhere to NAN’s then-current Acceptable Use Policy (“AUP”) as amended from time to time, which is incorporated into this MSA by this reference and set forth at http://www.nan.com/aup.
2.2 Limitations. Customer may only access and use the Services in accordance with the terms of this MSA and the applicable Order(s). Customer shall not: (a) circumvent, copy, modify, decompile, reverse engineer or disassemble NAN’s proprietary technology used in connection with the Services (“NAN Technology”), (b) rent, lease, sublease, license, timeshare or rebrand the NAN Technology or the Services, or (c) disclose or publish performance benchmark results or test results to non-affiliated third parties with respect to the Services without NAN’s prior written consent in each instance.
2.3 Third-Party Software as Part of Services. As set forth in an Order, the Services may include Customer’s utilization of certain third-party software developed and owned by NAN’s third-party software licensors. This software is neither sold nor distributed to Customer, and Customer may use it solely as part of the Services and for no other purpose. Customer may not transfer such third-party software outside the Services or to any other person or entity. Except as otherwise provided for in an Order, NAN and NAN’s third-party software licensors are not responsible for providing any support in connection with the Services or the third-party software. Customer’s use of any such third-party software is governed by the third-party software licensor’s terms as may be referenced and incorporated into an applicable Order. Customer covenants to comply with the terms of such third-party licensor’s terms during an applicable Service Term as if Customer were the licensee.
2.4 Access by Customer. Only those individuals designated by Customer to NAN as persons with authorized access to the Premises or Managed Services (each such individual being an "Authorized Contact") will be authorized to enter the Premises or interact with NAN staff. Customer will have the sole responsibility for maintaining the accuracy of the Authorized Contact list and communicating any changes to the Authorized Contact list to NAN. NAN may refuse access to any person not designated as an Authorized Contact or to any Authorized Contact who violates any rules or regulations of NAN or, in NAN's sole opinion, behaves inappropriately or creates a hazard of any kind. Customer will not provide access to any person not designated as an Authorized Contact or to any previously designated Authorized Contact who is subsequently refused by NAN, unless agreed to by NAN. All Authorized Contacts will be required to present photo identification at NAN’s physical facilities before entering the Premises or will be required to provide a password or security code when engaging NAN engineers in relation to Managed Services.
2.5 Compliance with Laws and Rules. Customer shall comply with all applicable laws, rules and regulations relating to Customer’s receipt and use of the Services. Customer employees, agents, and contractors will abide by the applicable Premises rules and guidelines while at the Premises.
3. FEES AND PAYMENT
(a) Recurring and Nonrecurring Charges. For each Service, Customer shall pay all monthly recurring charges (each a “MRC”) and nonrecurring charges (each a “NRC”) set forth in the applicable Order (collectively, “Fees”) in U.S. dollars to the address or in the manner designated on an invoice from NAN by the invoice date. NAN bills in advance and invoices are emailed approximately thirty (30) days prior to the due date. The invoice date reflects the first day of monthly service. Notwithstanding the foregoing, in regard to data center services, the amount of the MRC relating to electricity and/or power (“Power Fee”), if any and if applicable, shall be subject to increase by NAN upon written notice to Customer if the applicable utility provider has increased the prices paid by NAN for such electricity and/or power, and any such increase shall be proportionate to the increase imposed upon NAN by the applicable utility provider. NAN may increase the MRCs for any Renewal Term (defined in Section 5.1) of an Order by an amount not to exceed five percent (5%) of the MRCs set forth in the applicable Order, provided that NAN must provide written notice of such increase at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Term.
(b) Smart-Hands Services. For data center services, if specified in an Order, NAN’s technical staff will provide Customer with technical labor services on a monthly basis for the number of hours and at the hourly rate described in an Order (“Smart-Hands Services”). Smart-Hands Services time must be used within the calendar month of issue, and any Smart-Hands Services time not used within such calendar month will be then forfeited. Customer will be invoiced for Smart-Hands Services provided beyond the hours per month specified in the applicable Order, including in cases of an emergency in which Customer requests Smart-Hands Services not provided for in an Order, in thirty (30) minute increments at NAN’s then-current rate. Smart-Hands Services are subject to all of the terms of this MSA. Customer is not eligible to receive any Service Level Credits related to NAN’s provision of Smart-Hands Services.
(c) Late Payment. All payment obligations are non-cancellable, non-refundable non-contingent and without rights of setoff. Fees that are not received when due will be subject to a late fee equal to five percent (5%) of such outstanding amount, and all such unpaid Fees will bear interest from the due date at the lesser of one and one-half percent (1½%) per month or the maximum rate allowed by applicable law. If Customer does not pay Fees in a timely manner, any applicable Service Level Credits (defined in Section 7) shall be forfeited, and NAN may, in its sole discretion, terminate or suspend any Services pursuant to Sections 5.2 and 5.4, respectively. NAN will continue to charge Customer and Customer will be responsible for charges for Services during any period of suspension. Customer is liable for all costs of collection of delinquent Fees, including, without limitation, reasonable attorneys’ fees.
(d) Invoice Disputes. In the event Customer disputes an invoice, Customer shall pay the Fees in such invoice in full by the due date and file a separate dispute with NAN sent in accordance with Section 10.8 within twenty (20) days from the date of receipt of the applicable NAN invoice. Customer will provide a summary of the dispute together with supporting documentation. Following NAN’s receipt of a dispute summary and the supporting documentation, NAN will investigate and make a final determination on the dispute in NAN’s reasonable discretion. For any sums found to be owed to Customer, NAN will issue Customer a credit on the next succeeding invoice. Customer waives any billing dispute not made in writing with supporting documentation within forty-five (45) days from the date of Customer’s receipt of the applicable NAN invoice.
3.2 Service Commencement Date for Billing. Unless otherwise specified in an Order, billing for a Service specified in an Order commences on the first date NAN delivers the Service (“Service Commencement Date”). Customer will be deemed to have accepted a Service upon delivery.
3.3 Credit Approval and Security Deposits. Customer agrees to provide NAN with reasonable credit information as requested, and delivery of Services under an Order may be subject to credit approval. If Customer fails to pay any Fees when due, in addition to any other rights in this MSA, NAN shall have the right to require Customer to make one or more security deposits as a condition of NAN’s continuation of Services. Said security deposit(s) will be held by NAN as security for payment of future Fees and may be used by NAN to pay any delinquent Fees. No interest will be earned on security deposits. When the provision of all Services to Customer are terminated, the amount of the security deposit will be credited to Customer’s account and any excess credit balance will be refunded to Customer.
3.4 Taxes and Duties. Excluding taxes based on NAN’s net income, Customer is liable for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to Customer’s receipt or use of the Services, regardless of whether NAN invoices Customer for such amounts.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Reservation of Rights. As between the Parties, NAN (or its licensors) retains title to the Services under all Orders and the NAN Technology, including all modifications, alterations, derivative works and enhancements and all intellectual property rights contained therein. Customer may not copy any ideas, features, functions or graphics of the Services or the NAN Technology or modify or make derivative works based upon the Services. Customer has no license, right or intellectual property right in any NAN trademark, trade name or service mark.
4.2 Customer Content. As between the Parties, Customer owns all data, imagery, information and other content (“Customer Content”) transmitted by or on behalf of Customer in connection with the Services under all Orders, and Customer has sole responsibility for Customer Content and its intellectual property ownership and right to use. Customer grants to NAN the non-exclusive right and license to receive, retrieve, process, and transmit any Customer Content necessary to perform the Services under all Orders.
5. TERM AND TERMINATION
5.1 Term. This MSA shall be effective as of the MSA Effective Date and shall remain in effect until ninety (90) days following the termination or expiration of all Service Terms (as defined below). This MSA shall terminate automatically ninety (90) days after the MSA Effective Date if no Orders are entered into by the Parties during that time period. The term for each Service commences on the Service Commencement Date of the applicable Service specified in an Order and continues for the length of time stated in such Order (“Initial Term”); provided that some Services may be provided on an hourly basis, as more fully described in Section 3(b). A Service whose Initial Term is for one (1) year or longer shall automatically renew for additional periods of one (1) year, and a Service whose Initial Term is for less than one (1) year shall automatically renew for the same period of time as the Initial Term stated in the applicable Order (each renewal a “Renewal Term”, and, collectively, the Initial Term and any Renewal Term(s) shall comprise a “Service Term” with respect to the Service). Notwithstanding the foregoing, either party may cancel the renewal of an Initial Term or a Renewal Term for a Service by notifying the other party at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term.
5.2 Termination for Cause. NAN may terminate any or all Services and Orders (except as qualified in subsection (v) below):
(i) upon Customer’s failure to pay any Fees when due if Customer fails to pay such Fees within ten (10) days of Customer’s receipt of notice of such failure to pay from NAN;
(ii) upon Customer’s failure to pay any Fees when due or in full two (2) times or more in any twelve (12) month period;
(iii) for breach of a material provision of this MSA or an Order if Customer fails to cure such breach within ten (10) days of Customer’s receipt of notice of such breach from NAN;
(iv) if NAN is unable to provide Service(s) hereunder due to Customer’s acts or omissions;
(v) as to any applicable Service(s), upon any regulatory or governmental order requiring NAN to suspend such Service(s) or which is reasonably likely to result in the loss of NAN’s operating authority, upon reasonable notice to Customer; or
(vi) if Customer, or a third party through Customer, violates any provision of the AUP.
5.3 Termination Charge. In addition to all of its other obligations under this MSA, in the event a Service or an Order is terminated by NAN pursuant to Section 5.2 or a Service or Order is terminated by Customer for any reason, in either of these instances, Customer shall owe NAN a termination charge (“Termination Charge”) of an amount equal to, as of the effective date of termination, one hundred percent (100%) of all remaining MRCs that would have been incurred and payable to NAN by Customer for the remainder of the Initial Term or the then-current Renewal Term for each such Service, as applicable. Such amount will be payable as provided in Section 5.6. In addition to any other rights under this MSA, NAN may, in its sole discretion, suspend Customer’s access to a Premises and/or the provision of any Services under all Orders immediately if: (a) Customer fails to timely pay any Fees when due; (b) Customer or a third party through Customer, violates the AUP or any other policies or rules of NAN; (c) Customer has breached a material provision of this MSA or an Order and failed to cure such default within five (5) calendar days after Customer’s receipt of written notice of such default from NAN; or (d) NAN reasonably believes that any element of the Services, or Customer’s receipt or use of the Services, violates any applicable law, rule or regulation.
CUSTOMER ACKNOWLEDGES THAT THE TERMINATION CHARGE SET FORTH IN THIS SECTION 5.3 IS A REASONABLE ESTIMATE OF DAMAGES TO BE SUFFERED BY NAN AS A RESULT OF THE TERMINATION OF A SERVICE OR AN ORDER, WHICH AMOUNTS ARE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ASCERTAIN, AND THAT SUCH TERMINATION CHARGE IS NOT INTENDED AS A PENALTY BUT AS LIQUIDATED DAMAGES.
5.4 Suspension of Services. In addition to any other rights under this MSA, NAN may, in its sole discretion, suspend Customer’s access to a Premises and/or the provision of any Services under all Orders immediately if: (a) Customer fails to timely pay any Fees when due; (b) Customer or a third party through Customer, violates the AUP or any other policies or rules of NAN; (c) Customer has breached a material provision of this MSA or an Order and failed to cure such default within five (5) calendar days after Customer’s receipt of written notice of such default from NAN; or (d) NAN reasonably believes that any element of the Services, or Customer’s receipt or use of the Services, violates any applicable law, rule or regulation.
5.5 Notice to NAN of Nonrenewal or Termination. If Customer intends not to renew an Order or a Service, as permitted by this MSA, Customer must provide notice from an authorized representative of Customer of such nonrenewal or termination in writing at least sixty (60) days prior to the end of the current term. If Customer intends to terminate an Order or a Service, as permitted by this MSA, Customer must provide notice from an authorized representative of Customer of such termination in writing at least thirty (30) days prior to the end of the current term. ALL WRITTEN NOTICES TO NAN OF NONRENEWAL OR TERMINATION MUST BE SUBMITTED AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CUSTOMER THROUGH NAN'S ELECTRONIC CANCELLATION FORM (CLICK HERE). WRITTEN NOTICE GIVEN VIA EMAIL, US MAIL, OR THROUGH ANY ALTERNATE METHODS WILL NOT BE ACCEPTED. CUSTOMER MAY REQUEST ACCESS TO THIS FORM AT ANY TIME BY CONTACTING FINANCE@NAN.COM. Customer shall not be deemed to have provided an effective notice of nonrenewal or termination if NAN does not receive such notice as set forth in this Section 5.5 and in accordance with the terms of this MSA.
5.6 Effect of Termination or Nonrenewal. Upon the effective date of termination or nonrenewal of a Service or an Order, Customer shall immediately pay to NAN: (a) all third-party charges incurred by NAN arising from such termination or nonrenewal; (b) all unpaid Fees through the effective date of termination or nonrenewal; and (c) if applicable, the Termination Charge. Customer agrees to pay all amounts owing pursuant to this Section 5.6 no later than the effective date of termination. If requested by Customer within thirty (30) days from the effective date of termination of a Service or an Order or expiration of the Service Term, NAN will make available to Customer a file of the Customer Content in its possession, if any, with respect to such Service or Order. Rights and obligations that, by their nature, continue after the termination or expiration of a Service or an Order and this MSA including, but not limited to, Sections 4, 6, 7, 8, 9 and 10 and Subsections 3.1, 3.4, 5.3 and 5.6 shall survive and continue after the termination or expiration of a Service Term, and shall bind the parties, their successors, heirs and permitted assigns.
5.7 Removal of Equipment and Property. For data center services provided by NAN, if Customer has equipment or property at the Premises at the end of a Service Term, Customer will remove all such equipment and property at the Premises within ten (10) days of the last day of the Service Term, provided that all Fees have been paid in full. If Customer does not remove such equipment or property or cannot remove such equipment or property because of unpaid Fees within such ten (10) day period, NAN may move any and all such equipment or property to storage and charge Customer for the cost of such removal and storage, without any cost, obligation or liability of NAN to Customer. If Customer does not pay all Fees due to NAN or has paid all Fees but failed to remove such property from the Premises or storage facility within thirty (30) days of last day of a Service Term, NAN may liquidate and sell the equipment or property in any reasonable manner and apply any proceeds against unpaid Fees without NAN having any obligation or liability to Customer.
6. CONFIDENTIALITY, PUBLICITY AND NONSOLICITATION
6.1 Confidentiality. Each Party agrees that while this MSA is in effect and for a period of two (2) years following the termination or expiration of this MSA, all information furnished to it by the other Party, including maps, layouts, pricing, financial terms, business plans or models, network routes, design information, methodologies, specifications, locations or other information to which it has access, is deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the disclosing Party and will remain the property of the disclosing Party. Each Party will take commercially reasonable security precautions to prevent unauthorized use and disclosure of the Proprietary Information of the disclosing Party and shall use at least the same degree of care the receiving Party employs with respect to its own Proprietary Information, but in no event less than a reasonable standard of care. Neither Party will directly or indirectly, without the prior written consent of the disclosing Party, disclose the disclosing Party’s Proprietary Information or terms of an Order or this MSA to anyone other than: (a) the receiving Party’s officers, directors, affiliates, subsidiaries, shareholders, financing sources, attorneys, and employees on a need to know basis and who agree to be bound by confidentiality terms at least as restrictive as those contained in this Section 6.1; or (b) as required by governmental law, rule, or regulation including judicial proceedings. Information will not be deemed Proprietary Information if it: (i) becomes publicly available other than through the actions of the receiving Party in breach of this Section 6.1; (ii) is independently developed by the receiving Party without reference to the Proprietary Information of the disclosing Party; or (iii) becomes available to the receiving Party without restriction from a third party. If the receiving Party is required by a governmental or judicial law, order, rule, regulation, or permit to disclose Proprietary Information of the disclosing Party or the terms of an Order or this MSA, then the receiving Party will 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. If the Parties have entered into any confidentiality agreement with respect to the provision of Services by NAN prior to the MSA Effective Date, that agreement will automatically be terminated without further action by the Parties after the MSA Effective Date.
6.2 Publicity. While this MSA is in effect, Customer grants NAN the right to use Customer’s logo and name on NAN’s website and promotional materials. Customer shall have the right to require NAN to terminate any such uses at any time by written notice to NAN.
6.3 Non-solicitation. While this MSA is in effect and for a period of one (1) year thereafter, both Parties will not solicit or hire for employment any employee, contractor or consultant of the other Party who such Party has met or had contact with in connection with this MSA, the business relationship between NAN and Customer, or the Services provided to Customer by NAN, if any. This prohibition shall not apply to hiring as a result from non-targeted solicitation, such as newspaper or internet ads.
7. SERVICE LEVEL AGREEMENT
NAN will use commercially reasonable efforts to perform each Service in an Order in accordance with the applicable service level objectives (“Service Level Objectives”) set forth in the Service Level Agreements on NAN’s website and located at http://www.nan.com/sla. Subject to the terms of the MSA, in the event NAN does not meet a Service Level Objective as applicable to a Service under an Order as specified in the Service Level Agreement, as Customer’s sole and exclusive remedy and NAN’s sole liability for not meeting the Service Level Objective, Customer will be entitled to a credit, if applicable, as set forth in the Service Level Agreement (“Service Level Credit”) for such Service (and no other Services) subject to all terms and conditions in the Service Level Agreement. Customer will forfeit any unused Service Level Credits that may exist as of the termination or expiration of the applicable Service Term under an Order.
8. DISCLAIMERS AND LIMITATION OF LIABILITY
8.1 Third Party Products and Services Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT NAN MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCT OR SERVICE INCLUDED WITH THE SERVICES. NAN ASSIGNS TO CUSTOMER DURING A SERVICE TERM UNDER AN ORDER ALL ASSIGNABLE WARRANTIES AND INDEMNITIES GRANTED TO NAN BY SUCH THIRD PARTIES TO THE EXTENT APPLICABLE TO CUSTOMER’S RECEIPT OR USE OF THE SERVICES UNDER AN ORDER DURING THE SERVICE TERM ONLY.
8.2 Services Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS MSA, NAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE SERVICES UNDER AN ORDER OR THE NAN TECHNOLOGY. NAN EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. NAN DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY, BUT ONLY TO THE EXTENT NECESSARY TO BRING THE EXCLUSION INTO COMPLIANCE WITH THE REQUIREMENTS OF THE APPLICABLE JURISDICTION.
8.3 Limitation of Liability. Neither Party will be liable to the other for any indirect, incidental, special, consequential, exemplary or punitive damages, including, without limitation, loss of use, interruption of business, loss of data, lost profits, lost revenues or the cost of purchasing replacement services, arising out of the performance or failure to perform the Services or a breach of this MSA or an Order, regardless of whether such liability is based on breach of contract, tort (including all forms of negligence), strict liability, breach of warranty, failure of essential purpose or otherwise, and even if advised of the likelihood of such damages. NAN shall not be liable, in contract, tort or any other theory for: (a) unauthorized nonphysical access, alteration, theft, corruption or destruction of or to Customer’s or its customers’, end users’ or other parties’ computer files, databases, network, transmission facilities or equipment; or (b) the content, accuracy or completeness of any Customer Content transmitted through the Services. IN NO EVENT SHALL NAN’S TOTAL AGGREGATE LIABILITY, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING ALL FORMS OF NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE, FAILURE TO MEET ONE OR MORE SERVICE LEVEL OBJECTIVES, OR OTHERWISE, FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION FOR DAMAGES, LOSSES, OR COSTS ARISING OUT OF ANY PROVISION OF THIS MSA OR AN ORDER OR THE SERVICES PROVIDED BY NAN UNDER ANY ORDER, EXCEED THE FEES PAID BY CUSTOMER TO NAN IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
9. INDEMNIFICATION AND INSURANCE
9.1 Indemnification. Customer shall defend, indemnify and hold harmless NAN, and its shareholders, affiliates, subsidiaries, officers, directors, employees, agents, contractors and representatives against and from any and all loss, liability, damage and expense, including reasonable attorneys’ fees, arising out or in connection with: (a) any action or omission of Customer or Customer’s directors, officers, employees, agents, vendors, partners, representatives or contractors under an Order or this MSA; (b) data transmitted, received or stored on or over NAN’s network by or through Customer; (c) any actual or alleged infringement of a third party’s proprietary rights in connection with any information, materials or access to property provided by Customer; (d) the use by an end user of Customer of any Services; (e) the installation, maintenance, or operation of Customer equipment by Customer; or (f) Customer’s breach or alleged breach of any representation, warranty, or obligation in an Order or this MSA. The provisions of this Section shall survive the termination or expiration of this MSA.
9.2 Insurance. If data center services are provided to Customer by NAN, Customer will obtain and maintain: (a) Commercial General Liability insurance coverage with limits of no less than $1,000,000 per occurrence and $2,000,000 annual aggregate providing coverage for premises and operations, products and completed operations, independent contractors, and contractual liability covering obligations under this MSA; (b) “Special Causes of Loss” property insurance or the industry equivalent thereof covering all of Customer’s personal property located at each Premises covered by an Order; (c) Workers’ Compensation insurance (coverage A) covering the Workers’ Compensation laws applicable in the jurisdiction of each Premises covered by an Order; (d) Employers Liability insurance (coverage B) in an amount not less than $1,000,000 for each accident, $1,000,000 for policy limit, and $1,000,000 occupational disease; and (e) Umbrella and Excess Liability with limits not less than $5,000,000 covering General, Auto, and Employers Liability. The carriers providing such insurance will have a minimum A.M. Best Rating of A- or better. Upon NAN’s request, Customer shall provide to NAN current certificates of insurance as evidence of the required insurance coverage that show that such policies list NAN as an additional named insured, and Customer shall provide at least thirty (30) days written notice to NAN if such policy is to be cancelled or materially altered. Customer shall require any contractor, customer or other third party entering a NAN facility on Customer’s behalf to procure and maintain the same types, amounts and coverage extensions as required of Customer under this Section.
10. MISCELLANEOUS PROVISIONS
10.1 Governing Law; Venue. The Services, any Orders and this MSA will be governed by and construed under the laws of the State of New Hampshire. Jurisdiction and venue for purposes of any litigation in connection with the Services, an Order or this MSA will be in the relevant federal or state court located in Concord, New Hampshire.
10.2 Force Majeure. Except for the Customer’s obligation to make payments (unless NAN is unable to provide the applicable Services due to the reasons set forth in this Section 10.2) and maintain insurance, neither Party will be liable to the other for any failure or delay in its performance hereunder, due to acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet or other similar acts beyond a Party’s reasonable control, provided that the delayed Party: (a) gives the other Party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance if reasonably practicable.
10.3 Assignment. Customer may not assign, transfer, sublease, or sublicense any portion of its rights to the Service(s), an Order or this MSA or otherwise grant an encumbrance of any of its rights thereunder (except as expressly provided in this MSA or an Order), without NAN’s prior written consent which shall not be unreasonably withheld. In the event of an approved assignment, Customer will remain bound by the terms of the applicable Order and this MSA. NAN may assign or transfer the Services, an Order and this MSA without the consent of Customer.
10.4 No Waiver. The failure of a Party to enforce any provision of an Order or this MSA will not constitute a waiver of that provision or deprive a Party of the right to subsequently insist upon strict adherence to that provision, or any other provision contained therein.
10.5 Severability. The provisions of this MSA and the Order(s) are severable. If any provision is determined invalid, illegal or unenforceable, in whole or in part, then such provision shall be modified to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
10.6 Counterparts. An Order or this MSA may be signed in counterparts with the same force and effect as if required signatures were contained in a single, original instrument.
10.7 Injunctive Relief. The Parties acknowledge that a threatened or actual breach of Section 6.1 or 6.3, or infringement of a Party’s intellectual property rights, will result in immediate, irreparable harm, and equitable relief may be sought by the non-breaching Party from a court of competent jurisdiction located in Concord, New Hampshire.
10.8 Notices. All notices, consents and communications pursuant to this MSA or an Order will be in writing and will be deemed to have been duly given: (a) when sent by receipt-verified email (b) on the date delivered in person or by courier, or (c) on the date received if sent certified or registered mail, return receipt requested, and addressed to the recipient Party at the address set forth on the Cover Page, or to such other address or individual as the Parties may specify from time to time by written notice to the other Party. A refusal to accept delivery by a Party will be deemed delivery.
10.9 No Third-Party Beneficiaries. No person or entity, other than the Parties, will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, an Order or this MSA.
10.10 Interpretation. Neither Party will be considered the drafter of an Order or this MSA to give rise to any presumption or convention regarding construction of such Order or this MSA.
10.11 No Modifications. The Order(s) and this MSA entered into by the Parties may not be modified except by a written instrument signed by an authorized representative of NAN. Customer may not vary an Order or this MSA in any manner without the written approval of NAN, even if Customer purports to condition its acceptance subject to any different or additional terms.
10.12 Conflicts. In the event of a conflict or inconsistency between this MSA and an Order, this MSA shall control in all instances.
10.13 Entire Agreement. This MSA, together with one or more Sales Orders and any associated Supplements, constitutes the entire agreement between the Parties with respect to the subject matter of the Sales Order(s), and constitutes and supersedes all prior written or oral negotiations, understandings, agreements and/or MSAs between the Parties concerning the subject matter of such Sales Order(s) and associated Supplement(s).