Amended and Restated Master Services Agreement dated March 21, 2018 but effective March 1, 2018. . Confidential Portions have been redacted and a Request for Confidential Treatment has been filed separately with the Commission

6.3 Accesses and Security.  Except with the advanced written consent of Vendor, Customer’s access to the Vendor Data Centers will be limited solely to the Representatives as set forth in the Customer Registration Form which is hereby incorporated by reference into this MSA.

6.4 Restrictions on Use of Services.  Customer shall not, without the prior written consent of Vendor, which will not be unreasonably withheld, resell the Services to any third parties.

7.1 Vendor Minimum Levels. Vendor agrees to keep in full force and effect during the term of this MSA: (i) comprehensive general liability insurance in an amount not less than $2 million per occurrence for bodily injury and property damage and (ii) workers' compensation insurance, if applicable, in an amount not less than that required by applicable law.  Vendor agrees that it will ensure and be solely responsible for ensuring that its contractors and subcontractors maintain insurance coverage at levels no less than those required by applicable law and customary in Vendor’s and its agents’ industries.

7.2 Customer Minimum Levels.  In order to provide customers with physical access to facilities operated by Vendor and equipment owned by third parties, Vendor is required by its insurers to ensure that each Vendor customer maintains adequate insurance coverage. Customer agrees to keep in full force and effect during the term of this MSA: (i) comprehensive general liability insurance in an amount not less than $2 million per occurrence for bodily injury and property damage and (ii) workers compensation insurance in an amount not less than that required by applicable law.  Customer agrees that it will ensure and be solely responsible for ensuring that its agents (including contractors and subcontractors) maintain insurance coverage at levels no less than those required by applicable law and customary in Customer’s and its agents’ industries.  During the term of this MSA, it is Customers sole responsibility to provide and maintain adequate insurance coverage for all Customer owned equipment.  Vendor has the right to review Customer’s equipment insurance coverages upon reasonable request.

7.3 Certificates of Insurance; Naming Vendor as an Additional Insured.  Prior to any access of the Vendor Data Centers by any Representative or other agent or employee of Customer, Customer will (i) deliver to Vendor certificates of insurance which evidence the minimum levels of insurance set forth above; and (ii) cause its insurance providers to name Vendor as an additional insured and notify Vendor in writing of the effective date thereof.

Article 8 – Limitations of Liability

 

8.1 PERSONAL INJURY.  EACH REPRESENTATIVE AND ANY OTHER PERSON VISITING A VENDOR DATA CENTER DOES SO AT ITS OWN RISK. NEITHER PARTY ASSUMES LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN THE PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT.

8.2 CONSEQUENTIAL DAMAGES WAIVER.  EXCEPT FOR A BREACH OF SECTION 4.1 (“CONFIDENTIAL INFORMATION”) OF THIS MSA, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.  FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST VENDOR.

8.3 LIMITATION OF ACTUALS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY ACTUAL DAMAGES IN EXCESS OF SUCH PARTY’S INSURANCE LIMIT AS MANDATED UNDER THIS AGREEMENT.

Article 9 – Indemnification

9.1 Indemnification.  Each party will indemnify, defend and hold the other harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against the other or its affiliates alleging (i) the infringement or misappropriation of any intellectual property right relating to the delivery or use of the Services (but excluding any infringement contributorily caused by the other party); (ii) tangible property or personal injury caused by the negligence or willful misconduct of the other party; and (iii) any violation of or failure to comply with the Acceptable Use Policy.  Customer will further indemnify, defend and hold Vendor and its affiliates harmless from and against any and all Losses resulting from or arising out of any Action (i) brought against Vendor related to Customer’s breach of this MSA or any Order Form, exhibit, schedule, or addendum hereto, or (ii) brought against Vendor, its affiliates or customers alleging any damage or destruction to the Vendor Data Centers, Vendor equipment or other customers’ equipment caused by the negligence or willful misconduct of Customer, its Representatives or designees.

 

 

 

11.1 Force Majeure.  Except for the obligation to make payments or as otherwise set forth herein, neither party will be liable for any failure or delay in its performance under this MSA due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of Vendor) (each a “Force Majeure Event”), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

11.2 No Lease. This MSA is a services agreement and is not intended to and will not constitute a lease of any real property.  Customer acknowledges and agrees that (i) it has been granted only a license to use the Vendor Data Centers in accordance with this MSA; (ii) Customer has not been granted any real property interest in the Vendor Data Centers; and (iii) Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.

11.3 Marketing.  During the term of this MSA, except as required by Federal or state law, the parties shall not publicly refer to this agreement orally or in writing without prior written consent, however, Customer agrees that Vendor may refer to Customer in communications with Vendor’s bankers, accountants, and other service providers to the extent reasonably necessary.

11.4 Government Regulations.  Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this MSA without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

11.5 Non-Solicitation.  During the Term of this MSA and continuing through the first anniversary of the termination of this MSA, Customer agrees that it will not, and will ensure that its affiliates do not, directly, solicit for employment any persons employed by Vendor.

11.6 No Third Party Beneficiaries.  Vendor and Customer agree that, except as otherwise expressly provided in this MSA, there shall be no third party beneficiaries to this MSA, including but not limited to the insurance providers for either party or the customers of Customer.

 

 

 

 

11.7 Governing Law; Dispute Resolution.  This MSA and the rights and obligations of the parties created hereby will be governed by and construed in accordance with the internal laws of the state of Indiana without regard to its conflict of law rules and specifically excluding from application to this MSA that law known as the United Nations Convention on the International Sale of Goods.  The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this MSA.  Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this MSA, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules (and if Customer is a non-U.S. entity, the International Arbitration Rules) of the American Arbitration Association (“AAA”).  There will be three (3) arbitrators (the “Arbitration Tribunal”), the first of which will be appointed by the claimant in its notice of arbitration, the second of which will be appointed by the respondent within thirty (30) days of the appointment of the first arbitrator and the third of which will be jointly appointed by the party-appointed arbitrators within thirty (30) days thereafter.  The language of the arbitration shall be English.  The Arbitration Tribunal will not have the authority to award punitive damages to either party.  Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration Tribunal and the AAA.  This MSA will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction.  The arbitration will be held in Indianapolis, Indiana, USA.  Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Customer’s failure to pay for Services in accordance with this MSA may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.

11.8 Severability.  In the event any provision of this MSA is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this MSA will remain in full force and effect.

11.9 Waiver.  The waiver of any breach or default of this MSA, or the failure to exercise any right provided for in this MSA, will not constitute a waiver of any subsequent breach, default or right, and will not act to amend or negate the rights of the waiving or non-exercising party.

11.10 Assignment.  Neither party may assign this MSA without the others approval, such approval to not be unreasonably withheld, in whole as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets, or transaction or series of related transactions that results in the transfer of fifty percent (50%) or more of the outstanding voting power of such party.  Customer may not otherwise assign its rights or delegate its duties under this MSA either in whole or in part without the prior written consent of Vendor, and any attempted assignment or delegation without such consent will be void.  Vendor may delegate the performance of certain Services to third parties, including Vendor’s wholly owned subsidiaries and affiliates. This MSA will bind and inure to the benefit of each party's successors and permitted assigns.

 

11.11 Notice.  Any notice or communication required or permitted to be given under this MSA may be deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Order Form or at such other address as may hereafter be furnished in writing by either party to the other party.  Such notice will be deemed to have been given as of the date it is delivered, mailed, or sent, whichever is earlier.

11.12 Relationship of Parties.  Vendor and Customer are independent contractors and this MSA will not establish any relationship of partnership, joint venture, employment, franchise or agency between Vendor and Customer.  Neither Vendor nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in this MSA.

11.13 Article and Section Headings; Pronouns; Plural and Singular. The article and section headings in this MSA are for reference purposes only and shall not affect the meaning or interpretation of this MSA.  References in this MSA to a designated “Article” or “Section” refer to an Article or Section of this MSA unless otherwise specifically indicated.  All pronouns used in this MSA shall be construed as including both genders and the neuter.  All capitalized defined terms used in this MSA are equally applicable to their singular and plural forms.

11.14 Entire Agreement.  This MSA, including schedules and all documents incorporated into this MSA by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all of the prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter of this MSA.  Any additional or different terms in any Order Form or other response by Customer shall be deemed objected to by Vendor without need of further notice of objection, and shall be of no effect or in any way binding upon Vendor.

 

11.15 Counterparts and Originals. This MSA may be executed in counterparts, which together shall constitute a single agreement.  Delivery by telephonic facsimile or electronic mail transmission of a signed counterpart of this MSA shall be effective as delivery of a manually signed counterpart.  Once signed, any reproduction of this MSA made by reliable means (e.g., photocopy, facsimile) is considered an original.

11.16 Amendments.  This MSA may be amended or changed only by a written document signed by authorized representatives of Vendor and Customer in accordance with this Section 11.16.

11.17 Interpretation of Conflicting Terms.  In the event of a conflict between or among the terms in this MSA, the Order Forms, Statements of Work and any other document made a part hereof, the documents shall control in the following order: the Order Form with the latest date, Statements of Work, this MSA and other documents.