CDGI CONTINUITY CENTER COLOCATION PLUS AGREEMENT
EXHIBIT
10.5
This
CDGI
Continuity Center Colocation PLUS Agreement (“Agreement”) is between
Cyber
Development Group International, LLC
(“CDGI”)
and Secured Digital Storage LLC (“Customer”) and is effective on the date signed
by CDGI (”Effective Date”). CDGI reserves the right to withdraw the offer
contained herein in the event this Agreement is not executed by the Customer
and
delivered to CDGI on or before October 1, 2007.
TERMS
AND CONDITIONS
1. Services.
The
description, monthly recurring charges (“MRCs”), non recurring charges (“NRCs”),
usage charges, service level agreement, minimum service term, and cancellation
charges for Service are set forth in Exhibit
A
- Order
Form for Service.
2. Term.
The
initial Term is set forth in the “Commitment/Term/Rates” Section in Exhibit
A
- Order
Form for Service.
3. Payment
Terms and Taxes.
(a) The
total
initial one time fee is $30,000 which is due and payable within seven days
(7)
days of execution of this contract. The monthly payments shall be paid quarterly
in advance of the quarter for which services are to be provided with the first
payment (prorated) due seven days (7) days of Customer approval of Punch List
and each quarterly payment thereafter shall be due on the 1st day of the
beginning of calendar quarter for which services are to be provided. CDGI will
invoice Customer approximately 45 days prior to the 1st
of a
quarter. If the payment is not provided within sixty (60) days of the payment
due date, services may be disconnected at the discretion of CDGI. Payments
made
more than thirty (15) days after the start of the quarter shall bear a late
fee
of $25 and Interest of 18% annually.
(b) Customer
agrees to pay for the Services for the duration of the Term. Notwithstanding
anything in this Agreement to the contrary, for each Service, at any time on
or
after the expiration of the initial term of the applicable Order, the rates
and
fees for such Service will be subject to change, at CDGI’s discretion, upon
sixty (60) days’ prior notice to Customer and in such a case, Customer shall be
entitled to terminate this Agreement if the revised terms and fee are not
acceptable.
(c) CDGI
is
not responsible or in any way liable for any Taxes or third-party changes
related to the activities, or the ownership or operation of the equipment
(including Customer’s Equipment), of any of the following: Customer’s Authorized
Persons, Accompanying Persons, and Associated Entities, the CDGI Collocation
Center, or attributable to, any CDGI Center. Without inviting the foregoing,
Customer will be responsible for paying any and all Taxes separately imposed,
levied or assessed against governmental, quasi-governmental or tax authorities
by the date such payments and returns are due. In no event will Customer’s
Equipment be construed to be fixtures.
(d) If
Customer wishes to dispute any charge billed to Customer by CDGI (a “Disputed
Amount”), Customer must submit a good faith claim regarding the Disputed Amount
with documentation as may reasonably be required to support the claim within
ninety (90) days of receipt of the initial invoice sent by CDGI regarding the
Disputed Amount. If Customer does not submit a documented claim within ninety
(90) days of receipt of the initial invoice sent by CDGI regarding such Disputed
Amount, notwithstanding anything in this Agreement to the contrary, Customer
waives all rights to dispute such Disputed Amount and Customer waives all rights
to file a claim thereafter of any kind relating to such Disputed Amount (and
Customer also waives all rights to otherwise claim that it does not owe such
Disputed Amount or to seek any set-offs or reimbursements or other amounts
of
any kind based upon or relating to such Disputed Amount).
4. Access
and Use of the CDGI Centers, and Use of Customer’s Equipment
(a) Subject
to the terms and conditions of this Agreement, Customer will have access to
the
Licensed Space twenty-four (24) hours per day, three hundred sixty-five (365)
days per year via pre-distributed Key Card Access (“Authorized Person”) remote
NOC Visual Sentry Egress.
(b) Unless
otherwise expressly provided in an Order (and then only to the extent otherwise
expressly provided therein). Customer will be responsible for configuring,
providing, placing, installing, upgrading, adding, maintaining, repairing,
and
operating Customer’s Equipment, which actions Customer may engage in only to the
extent permitted by and subject to, the terms and conditions of this Agreement.
Customer represents, warrants and covenants that Customer has the legal right
and authority (including regulatory consents), and will continue to have the
legal right and authority throughout the Term, to operate, configure, provide,
place, install, upgrade, add, maintain and repair Customer’s Equipment as
contemplated by this Agreement. Without limiting the foregoing, Customer will
obtain, and maintain throughout the Term, such consent of Customer’s
subcontractors, third-party providers, vendors and any other parties as may
be
required by CDGI (including any contractors or others acting at CDGI’s request)
to have the right to access Customer’s Equipment for the purpose of providing
Services as required by this Agreement.
(c) At
all
times during the Term, CDGI and Customer agree to comply with the Policies,
which are at all times incorporated by reference into this Agreement. Any
modification by CDGI to the Policies will be effective upon notice to Customer,
except modifications to the Shipping Policies, which will be effective
immediately upon being made.
(d) Customer
will be responsible and liable for all acts or omissions of Customer’s
Authorized Persons, Accompanying Persons and Associated Entities, and all such
acts or omissions will be attributed to Customer for all purposes under this
Agreement (to the same extent as if Customer had committed the act or
omission).
(e) Customer,
on behalf of itself and each of Customer’s Authorized Persons, Accompanying
Persons and Associated Entities will not file a mechanic’s lien or similar lien
on the Licensed Space or CDGI Center, and Customer will be responsible for
any
mechanic’s lien or similar lien filed by any Authorized Person, Accompanying
Person or Associated Entity. Without limiting the foregoing, in the event any
such lien is filed, Customer will be responsible for the immediate satisfaction,
payment or bonding of any such lien. Except as set forth in Section 5
(which
is further limited by Section 6),
Customer will not have any responsibility for any loss or damage to equipment
owned by CDGI, and CDGI will not have any responsibility for any loss or damage
to Customer’s Equipment.
(f) Customer
Premise Equipment (“CPE”).
Customer shall be responsible for the procurement, installation, maintenance
and
operation of all Customer Equipment from the Fiber or Copper Cross Connection
Termination Device (“Fiber Connector” or “Copper Connector”) into the Customer
premise at the Licensed Space (the “Customer Premise Equipment”).
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5. Indemnification
(a) CDGI
will
indemnify, defend and hold harmless the Customer Parties from any and all
liability, damages, costs and expenses (including reasonable attorneys’ fees and
expenses) for personal injury, damage to tangible property and other claims
(including financial loss) resulting from the negligence or willful misconduct
of CDGI or CDGI’s contractors, consultants, agents, employees or representatives
(collectively “CDGI Parties”)
(b) Customer
will indemnify, defend and hold harmless the CDGI Parties from any and all
liability, damages, costs and expenses (including reasonable attorneys’ fees and
expenses) for:
(i) personal
injury or damage to tangible property resulting from the negligence or willful
misconduct of Customer or any of Customer’s Authorized Persons, Accompanying
Persons or Associated Entities;
(ii) any
claim
by any of Customer’s Authorized Persons, Accompanying Persons or Associated
Entities or any employee of Customer to the extent caused by negligence or
willful misconduct of Customer;
(iii) any
claim
that Customer has failed to fulfill a contractual obligation with a third-party;
and
(iv) any
claim
resulting from Customer’s failure to obtain or maintain the required consents
pursuant to Section
4(b).
(c) Through
counsel of its own choosing, the indemnified Party has the right to participate
in (but not control the defense of) any proceeding in which it is being
indemnified under this Agreement, but in such event the indemnified Party will
be solely responsible for paying the legal fees and expenses for its own
counsel. The indemnifying Party will, however, continue to be solely responsible
for all other expenses relating to the action, including the legal fees and
expenses of the counsel it selects to defend the claims. The indemnifying Party
shall not take any action, which unreasonably exposes the indemnified Party
to a
risk of damages, which would not be covered by such indemnity, and may not
settle any matter for which the indemnifying Party is providing indemnification
without the prior written consent of the indemnified Party, which shall not
be
unreasonably withheld.
6. Warranty
Disclaimer, Limitation of Liability, Credits
(a) CDGI
DOES
NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED,
ERROR-FREE OR COMPLETELY SECURE. CDGI DOES NOT MAKE AND CDGI HEREBY DISCLAIMS,
ANY AND ALL IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
CDGI
DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS WARRANTIES WITH REGARD TO
THE
SERVICES. ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR
PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF THE
SERVICES IS SOLELY AT ITS OWN RISK.
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(b) NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CDGI’S TOTAL LIABILITY TO CUSTOMER
IN THE AGGREGATE FOR THE ENTIRE TERM (AND REGARDLESS OF WHETHER THE CLAIMS
ARE
BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR
RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEY’S FEES), BUT
EXCLUDING DAMAGE TO CUSTOMER’S EQUIPMENT, WILL NOT EXCEED ONE MILLION DOLLARS
($1,000,000.00)
(c) This
section Deleted
(d) CDGI
and
Customer each waive the right to bring any claim against the other Party arising
or in any way relating to this Agreement more than one (1) year after the date
this Agreement expires or is earlier terminated.
(e) Notwithstanding
and in addition to the limitation of liability set forth in Section 6(b) above,
if some or all of the Licensed Space is not usable for a period exceeding one
hour (the “Temporarily Unusable Licensed Space”), subject to the remainder of
this Section 6(f),
Customer will be entitled to a credit for each full hour that such Temporarily
Unusable Licensed Space is unusable; provided that the credit shall not exceed
in the aggregate, the monthly recurring Service Fee for the month in which
the
credit accrues. The credit shall equal one thirtieth (1/30) of the monthly
recurring Service Fee for each of the following:
(i) the
Temporarily Unusable Licensed Space;
(ii) the
Power
Services installed in such Temporarily Unusable Licensed Space; and
(iii) the
Cross-Connects installed in such Temporarily Unusable Licensed Space. This
credit covers all failures, defects, delays, impairments or inadequacies in
any
of the Services. Notwithstanding the foregoing, Customer will only have the
right to receive a credit if:
(1) Customer
notifies CDGI within (5) days of its inability to use the Temporarily Unusable
Licensed Space; and
(2) the
Temporarily Unusable Licensed Space is not usable for reasons other than for:
(A) the actions or omissions of Customer, Customer’s Authorized Persons,
Accompanying Persons, or Associated Entities; or (B) circumstances or events
beyond CDGI’s control.
7. Limitation
of Liability.
EACH
PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT,
EXCLUDING DAMAGES TO CUSTOMER’S EQUIPMENT, WILL NOT EXCEED THE LIMITATION OF
LIABILITY SET FORTH IN SECTION 6 ABOVE (”DAMAGE CAP”). Notwithstanding the
foregoing, the limitation of liability in this Section and the Damage Cap will
not apply to: (i)) Customer’s payment obligation for all charges under this
Agreement, including without limitation, Service charges, taxes, interest,
Shortfall charges, Early Termination Charges, and Service cancellation charges.
Any claim or dispute out of or relating to this Agreement must be brought within
two years after the cause of action arises.
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8. Personal
injury, Death, and Property Damage.
Each
Party will be responsible for the actual, physical damages it directly causes
to
the other Party in the course of its performance under this Agreement, limited
to damages resulting from personal injury or death to a Party’s employee (if not
covered under applicable workers’ compensation laws) and loss or damage to a
Party’s personal tangible property arising from negligent acts or omissions of
the eligible Party. Damages under this Section will be subject to the limitation
of liability of this Agreement but not the Damage Cap. Owner shall be
responsible for the actual physical damage, up to actual replacement cost (which
replacement costs shall be mutually agreed to by the Parties) of Customer’s
Equipment, to the extent such damage is causes by or the result of Owner’s
negligent acts, errors or omissions in its performance under this
Agreement.
9. Indemnification.
Each
Party will defend and indemnify the other Party, its Affiliates, agents, and
contractors against all third-party claims, liabilities, costs, and expenses,
including reasonable attorneys’ fee, involving personal injury or death to
persons or loss or damage to personal property resulting from the negligence
or
willful misconduct of the indemnifying Party; provided, however, the foregoing
indemnification will not apply to any claims made by employees that are covered
under applicable workers’ compensation laws. Furthermore, Customer will defend
and indemnify CDGI, its Affiliates, agents, and contractors against all
third-party claims, liabilities, costs, and expenses, including reasonable
attorney’s fees, arising from or related to the use , modification or resale of
the Services by Customer or End Users.
10. Insurance
(a) Customer
agrees to maintain, at its expense, during the entire time this Agreement is
in
effect:
(i) Commercial
General Liability Insurance in an amount not less than One Million US Dollars
($1,000,000), or the local currency equivalent, per occurrence for bodily
injury, death and property damage, which policy will include contractual
liability coverage related to this Agreement; and
(ii) Workers’
Compensation and employer’s liability insurance in an amount not less than that
prescribed by applicable law. Prior to any use of the Licensed Space at a CDGI
Center (including, but limited to, delivery of any of Customer’s Equipment to a
CDGI Center), Customer will furnish CDGI with certificates of insurance that
evidence the minimum levels of insurance set forth herein and which name CDGI
as
an additional insured.
(iii) Property
Insurance for the full value of any customer equipment located in the CDGI
Center.
In
addition, Customer will notify CDGI of any non-renewal, cancellation, reduction
in policy limit or other material change in Customer’s coverage at least
forty-five (45) days prior to such change in coverage, and shall provide
an
updated certificate of insurance naming CDGI as an additional insured on
or
before each anniversary of the date of this Agreement. CDGI does not have
any
obligation to insure any property belonging to or in the possession of
Customer.
(b) Customer
will use its best efforts to cause and ensure that each insurance policy
referred to in Section 10(a),
will
provide that the insurance company waive all claims and rights of recovery
by
subrogation against the CDGI Parties in connection with any liability or damage
covered in Customer’s insurance policies. As to any property insurance carried
by CDGI on the CDGI Centers where any of the Licensed Space is located, CDGI
will obtain a waiver of subrogation in favor of Customer.
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(c)
CDGI
will
obtain Commercial Generality Insurance and Professional Liability Insurance
with
sufficient limits and scopes of coverage to insure the indemnity obligations
set
forth in this Agreement.
11. Terms
of Agreement, Suspension of Service, Termination, and Removal of Customer’s
Equipment
(a) This
Agreement will commence on the MSA Effective Date. Unless earlier terminated
in
accordance with its terms, this Agreement will terminate on the date the last
Order then in effect expires or is terminated pursuant to the terms and
conditions set forth in this Agreement. This Agreement shall continue to govern
the rights and obligations of the Parties for any period of time following
the
Term and all renewal periods, if any, in which CDGI continues to provide
Services to Customer and has not entered into a separate agreement with Customer
related to such Services.
(b) Either
Party may terminate this Agreement by giving notice of termination to the other
Party if the other Party breaches any material term or condition of this
Agreement and fails to cure such breach within ten (10) days after receipt
of
notice of the same; provided, however, CDGI shall have the right to terminate
this Agreement immediately should Customer fail to make timely payment to CDGI
of any sums due hereunder. If the breach (other than where Customer has failed
to pay Service Fees or other monies owed to CDGI) is not capable of being cured
within ten (10) days, the breaching Party shall be given reasonable period
of
time to cure the failure (but no more than sixty (60) days after notice of
the
breach) provided that the breaching Party promptly commences attempts to cure
such failure after receipt of such notice and pursues the cure to completion
with due diligence. CDGI may also terminate this Agreement if:
(i) it
exercises any of its rights under Section 11(c)
on three
or more occasions during any twelve (12) month period;
(ii) Customer’s
breach of any provisions of this Agreement continues for at least ten (10)
days
(subject to the right to effect immediate termination for nonpayment of monies
owed); or
(iii) Customer
liquidates, ceases to do business or becomes insolvent.
(c) If
CDGI
suspends a Service pursuant to this Section 11(c),
unless
CDGI has subsequently terminated this Agreement as permitted under this
Agreement, CDGI will resume the discontinued Service within twenty-four (24)
hours after it is reasonably satisfied Customer has cured the breach(es) which
gave rise to CDGI’s right to suspend the Service. CDGI may charge a
reinstatement fee equal to the direct out-of-pocket expenses incurred by CDGI
to
discontinue the Service as well as related to the period in which the Service
was discontinued, and to then resume the discontinued Service.
(d) CDGI
may
terminate this Agreement as to any affected Licensed Space or CDGI Center if
any
portion of the CDGI Center in which the affected Licensed Space is located
becomes subject to a condemnation proceeding or is condemned, CDGI’s possession
is otherwise terminated or abated, or CDGI cannot provide or reasonably believes
it will be unable to provide Customer with access to the affected Licensed
Space
as contemplated herein for a period exceeding thirty (30) days. In such event,
CDGI’s sole liability to Customer will be to refund to Customer the fees, if
any, collected by CDGI from Customer that relate to the period for which the
Services have been or will be discontinued. Customer may terminate the Agreement
as to a Licensed Space if CDGI changes the Policies in a way that materially
adversely affects Customer’s use of the Services in such Licensed Space, but
only if within ten (10) days after Customer’s receipt of notification of such
change in the Policies, Customer notifies CDGI that Customer wishes to terminate
this Agreement as to such Licensed Space on such grounds and CDGI does not
object as to the basis for such discontinuation; if CDGI does object, then
CDGI
shall have the right to seek an adjudication as to the reasonableness of such
termination and this Agreement shall remain in full force and effect pending
such adjudication.
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(e) Upon
expiration or termination of this Agreement, or an Order (or any portion
thereof), all other rights of Customer with respect to the Licensed Space
licensed under this Agreement, or such Order (or the affected portion thereof)
(“Terminated Space”), will terminate, and Customer will immediately remove all
of Customer’s Equipment and other tangible items of any kind belonging to
Customer or Customer’s Authorized Persons, Accompanying Persons and/or
Associated Entities located in such Terminated Space, but excluding any wiring,
cable or other equipment or property owned, leased or licensed by CDGI, from
the
Termination Space by no later than the effective date of such termination.
Customer agrees to indemnify and hold harmless CDGI and each of its other
customers from and against any loss, liability or damage caused by Customer
or
its invitees with respect to the removal of the Customer’s Equipment, including
any damage to the Premises or interruptions in service caused by such removal.
If Customer fails to remove any such property (including Customer’s Equipment)
in accordance with this Section 11(e),
CDGI
will be entitled to pursue all available legal remedies against Customer,
including one or more of the following remedies:
(i) immediately
removing any or all such property and storing it at Customer’s expense at an
onsite or offsite location;
(ii) shipping
such property to the address set forth at the end of this Agreement at
Customer’s risk and expense; or
(iii) upon
providing thirty (30) days’ prior notice to Customer, and if Customer fails to
remove such property within such thirty (30)-day period, liquidating such
property in any commercially reasonable manner and charging Customer for all
costs associated with the liquidation.
Notwithstanding
anything in this Agreement to the contrary, Customer will not be entitled to
remove any of Customer’s Equipment from a CDGI Center, and Customer waives its
right to do so, during any period of time (including after this Agreement or
any
Order or portion thereof expires or is terminated) in which Customer’s account
is more than 60 days past due. In addition, if Customer’s account is past due
when this Agreement or an Order (of any portion thereof) expires or is
terminated, as to any such property referred to in this Section 11(e), CDGI
may:
(1) immediately
remove any or all such property and store it at Customer’s expense at an onsite
or offsite location until Customer pays all amounts owed to CDGI and then
retrieves the property, or
(2) upon
providing thirty (30) days’ prior notice to Customer, and if Customer fails to
pay all amounts owed to CDGI and then remove such property within such thirty
(30)-day period, liquidate such property in any commercially reasonable manner
and charge Customer for all costs associated with the liquidation and CDGI
will
also retain from the liquidation all amounts necessary to pay CDGI the past
due
amounts owed by Customer.
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During
the period prior to any disposition of Customer’s Equipment pursuant to this
Section 11(e),
CDGI
shall have the right to use the Equipment free of
charge.
(f) Neither
Party will be liable to the other Party for properly terminating this Agreement
in accordance with its terms, but Customer shall be liable to CDGI for any
amounts owed prior to the effective date of termination as well as for the
fees
that would otherwise be payable hereunder by Customer for the remainder of
the
Term of this Agreement in the event this Agreement has been terminated as a
result of Customer’s breach. Notwithstanding anything to the contrary in this
Agreement, CDGI has the right to recover from Customer all damages recoverable
under law for the period past the end of the Term, if CDGI terminates this
Agreement prior to the end of the full Term due to Customer’s
breach.
(g) Notwithstanding
anything in this Agreement (including in any Order) to the contrary, under
no
circumstances will any Order survive the expiration or earlier termination
of
this Agreement, and under no circumstances will any Order pertaining to a CDGI
Center survive the termination of this Agreement as to that CDGI Center. CDGI
will not have any obligation to provide any Services after the expiration or
earlier termination of this Agreement, for any reason by either Party, and
CDGI
will not have any obligation to provide any Services at a CDGI Center after
the
expiration or earlier termination of this Agreement as to such CDGI
Center.
12. Dispute
Resolution; Governing Law.
Any
dispute arising out of, or relating to, this Agreement will be settled by
arbitration to be conducted in accordance with the Judicial Arbitration and
Mediation Services (“JAMS”) Comprehensive Arbitration Rules. The Federal
Arbitration Act, 9 U.S.C. Sections 1-16, not state law, will govern the
arbitrability of disputes. This Agreement will otherwise be governed by the
laws
of the State of Illinois without regard to its choice of law principals;
provided, however, the Services will also be subject to the Communications
Act
of 1934, as amended. The costs of the arbitration, including the arbitrator’s
fees, will be shared equally by the parties; provided, however, that each Party
will bear the cost of preparing and presenting its own claims and/or defenses
(including its own attorneys’ fees). The venue for arbitration will be
designated by the Party not initiating the action with the exception of any
billing collection disputes, which will be conducted in a location designated
by
CDGI or in Chicago, IL. The arbitrator’s decision will be final, binding, and
enforceable in a court of competent jurisdiction. If a Party is required to
enforce compliance with this Section (including nonpayment of an award), then
the non-complying Party must reimburse all of the costs and expenses incurred
by
the Party seeking such enforcement (including reasonable attorney’s
fees).
13. General.
Customer may not assign this Agreement or any of its rights or obligations
under
this Agreement without the prior written consent of CDGI, which will not be
unreasonably withheld. This Agreement is intended solely for CDGI and Customer
and it will not benefit or be enforceable by any other person or entity,
including without limitation, End Users.
14. Miscellaneous.
(a) Except
where otherwise expressly started in this Agreement, (and regardless of whether
certain provisions in this Agreement expressly require written notice, consent
or approval) all notices, consents, or approvals required by this Agreement
will
only be effective if in writing and sent by:
(i) certified
or registered air mail, postage prepaid;
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(ii) overnight
or same day delivery by bonded courier service;
(iii) delivery
by hand; or
(iv) facsimile
or electronic mail (promptly confirmed by certified or registered mail or
overnight delivery), to the Parties at the respective street addresses,
facsimile numbers, or electronic mail addresses set forth at the end of this
Agreement or such other addresses or facsimile numbers as may be designated
in
writing by the respective Parties.
Notices,
consents and approvals will be deemed effective on the date of receipt.
Notwithstanding anything to the contrary in this Agreement, notices sent
by CDGI
pursuant to Sections
3(b), 3(c) and 4(c)
may be
sent by first class US mail, and receipt of such notices shall be presumed
to
occur three (3) days after mailing.
(b) This
Agreement will be governed in all respects by the internal laws of the State
of
Illinois without regard to its conflict of laws provisions. The Parties
irrevocably agree to the resolution of all disputes through binding arbitration
administered by and under the rules of the American Arbitration Association
by
an arbitrator selected in accordance with its rules. Each Party is aware that
the right to a jury trial is waived and that appeal rights may be limited.
The
Parties freely enter into this Agreement to arbitrate as part of the overall
consideration for this Agreement and with the ability to have the advice of
counsel. In any action by CDGI to recover payment of monies owned to it by
Customer, should CDGI prevail in whole or part, then Customer agrees to
reimburse CDGI for all costs and fees incurred by CDGI in connection with such
action, including legal fees, paralegal fees and all costs and other fees
incurred in connection with the arbitration.
(c) No
Party’s directors, officers, managers, members or employees will have any
liability to any other Party with respect to this Agreement. Except as may
be
specifically otherwise consented to in writing by an Affiliate of a Party (and
none of the other terms of this Agreement shall be deemed to constitute such
consent), no Party’s Affiliates will have any liability to any other Party with
respect to this Agreement, including with respect to any Orders.
(d) Any
Order
may be amended by a change order that expressly provides it amends such Order,
but only if such change order is either executed by CDGI and Customer or is
prepared by CDGI and agreed to by CDGI and Customer, and CDGI’s and Customer’s
agreement to such amendment to the Order is reflected in the manner required
by
the change order. Any Order amended by a change order shall thereafter, as
amended , continue to be governed by the terms and conditions of this Agreement.
This Agreement, the exhibits, the Policies then in effect, and all Orders
executed at any time during the Term, all of which are incorporated herein
by
reference into this Agreement, constitute the complete and entire agreement
between the Parties with respect to the subject matter hereof, and supersede
and
replace any and all prior or contemporaneous discussions, negotiations,
proposals, understandings and agreements, written and oral, regarding such
subject matter, as well as any industry custom. This Agreement will be effective
only when signed by each Party. This Agreement may be executed in two or more
counterparts, whether by original, photocopy, facsimile or e-mail in PDF format,
each of which will be deemed an original, but all of which together will
constitute on and the same instrument. Subject to the next sentence below,
this
Agreement may be amended only in writing by any instrument signed by each Party.
For purposes of clarification, the prior sentence is not intended to modify
or
limit CDGI’s and Customer’s rights to:
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(i) agree
to
Online Orders or Phone Orders pursuant to the terms of Section 14(f)
below,
or
(ii) amend
Orders in accordance wit the terms of a change order prepared by CDGI even
where
such change order does not require a writing executed by both Parties to effect
an amendment of such Orders.
(e) No
waiver
of any breach of any provision of this Agreement will constitute a waiver of
any
prior, concurrent or subsequent breach of the same or any other provisions
hereof, and no waiver will be effective unless made in writing and signed by
an
authorized representative of the waiving Party.
(f) If
Customer and CDGI execute multiple Orders, each additional Order will supplement
rather than replace the prior Orders, unless otherwise stated by the Parties
in
writing. Notwithstanding anything in this Agreement to the contrary, including
Section 2(a):
(i) CDGI
has
no obligation to execute, or to amend any Order with Customer;
(ii) no
Sales
Order will be effective unless executed by both Parties;
(iii) no
Online
Order or Phone Order will be effective unless made by Customer and agreed to
by
CDGI; and
(iv) no
amendment to an Order will be effective unless the change order that is amending
such Order is prepared by CDGI and agreed to by CDGI and Customer in the manner
required by the change order.
(g) Each
Party acknowledges and agrees that it has reviewed, and has had an opportunity
to have reviewed, this Agreement (including the exhibits and the Policies).
The
section headings and captions throughout this Agreement are for convenience
and
reference only, and will not be used to construe this Agreement.
(h) If
any
provision of this Agreement, as applied to any Party or to any circumstance,
is
adjudged by an arbitrator to be involved, illegal or unenforceable, the same
will not affect the validity, legality, or enforceability of the portion of
the
provision, if any, that is not invalid, illegal or unenforceable, the
application of such provision is any other circumstances, or the validity,
legality, or enforceability of any other provision of this Agreement. All terms
and conditions of this Agreement will be deemed enforceable to the fullest
extent permissible under applicable law, and, when necessary, the arbitrator
in
any action between the Parties is requested to reform any and all terms or
conditions to give them as much effect as possible.
(i) The
rights and obligations of the Parties will survive the termination of this
Agreement, but Exhibit A
will
only survive for three (3) years after the end of the Term (including all
renewal terms). In addition, all provisions of this Agreement that can only
be
given proper effect if they survive the termination of this Agreement will
survive the termination of this Agreement. This Agreement will be valid as
to
any obligation incurred prior to termination of this Agreement, including any
Service Fees owed by Customer. Each Party recognizes and agrees that the
warranty disclaimers and liability and remedy limitations in this Agreement
are
material bargained for bases of this Agreement and that they have been taken
into account and reflected in determining the consideration to be given by
each
Party under this Agreement and in the decision by each Party to enter into
this
Agreement.
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10
(j) Except
where otherwise expressly stated herein, and subject to the limitations set
forth in Section 6,
the
rights and remedies provided for herein are cumulative and not exclusive of
any
rights or remedies that a Party would otherwise have.
(k) CDGI
and
Customer are independent contractors and this Agreement will not establish
any
relationship of partnership, joint venture, employment, franchise or agency
between CDGI and Customer. Neither CDGI 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.
(l) This
Agreement, and the rights of Customer hereunder, are, without any further action
by any Party, subject and subordinate to the leases (including, without
limitation, mortgages or ground leases for the CDGI Centers). This Agreement
is
a services agreement and is not intended to and will not constitute a lease
of
any real or personal property. Customer acknowledges and agrees
that:
(i) it
has
been granted only a license (“License”) to use the Licensed Space in accordance
with this Agreement;
(ii) Customer
has not been granted any real property interest under this Agreement;
and
(iii) Customer
has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations, or ordinances. CDGI hereby reserves, with
respect to the CDGI Centers, all rights not specifically granted to Customer
in
this Agreement, including, without limitation, the right:
(1) of
access
to and use of the CDGI Centers for its own use or the use of
others;
(2) to
grant
additional licenses to other persons or co-location customers for the use of
portions of the CDGI Centers; and
(3) to
exercise or grant other rights not inconsistent with the rights granted in
this
Agreement.
(m) CDGI
may
permit any other CDGI Affiliate, or any independent contractor or other
third-party, to perform any of CDGI’s obligations hereunder. CDGI may assign,
delegate or transfer its rights and obligations under this Agreement to a CDGI
Affiliate, or to a Party acquiring all or substantially all of CDGI’s business
or assets, including through merger or asset purchase, and in the event of
any
such assignment, transfer or delegation, and the assumption by the transferee
of
CDGI’s obligations hereunder, CDGI will be released from any further liability
or obligation under this Agreement. Customer may assign this Agreement without
CDGI’s prior consent (in which event Customer must provide CDGI with prior
notice of the assignment) only where the Party to whom this Agreement is
assigned by Customer has a net worth greater than Customer and is either an
Affiliate of Customer, or is acquiring all or substantially all of Customer’s
business or assets, including through merger. This Agreement will be binding
upon and inure to the benefit of all successors and permitted assigns of CDGI
and Customer, who will be bound by all of the obligations of their predecessors
or assignors.
Page
11
(n) Excluding
Customer’s obligation to pay amounts owed under this Agreement, including
Service Fees, neither Party will be responsible or in any way liable to the
other Party, and neither Party will have any termination or other rights,
arising out of or relating to any failure by the other Party to perform or
any
hindrance in the performance of its obligations under this Agreement if such
failure or hindrance is caused by events or circumstances beyond such
nonperforming Party’s control, including acts of God, war, labor strike,
terrorist act, fire, flood, earthquake, any law, order, regulation or other
action of any governing authority or agency thereof, or failure of the
Internet.
(o) All
Orders are set at all times subject to all of the terms and conditions of this
Agreement. In the event of a conflict between the body of this Agreement and
an
Order, the body of this Agreement will control, unless the body of this
Agreement or the Order states that the conflicting term in this Order controls.
In the event of a conflict between the (1) the Policies and (2) either the
body
of this Agreement or any Order the body of this Agreement or any Order will
control.
(p) Unless
otherwise expressly agreed to by the Parties in writing, CDGI will retain title
to all parts and materials used or provided by CDGI or third parties acting
on
CDGI’s behalf in the performance and/or furnishing of the Services.
(q) The
Parties agree that there will be no third-party beneficiaries to this Agreement,
including, but not limited to, any Accompanying Person, Associated Entity (which
includes any Sublicensee), Authorized Person, end user, customer or the
insurance providers for either Party.
15. Definitions.
“Accompanying
Person” Each person (other than an employee of CDGI) who is accompanied by an
Authorized Person while at a CDGI Center.
“Affiliate”
shall mean any entity controlling, controlled by, or under common control with
such Party, where the term “control” and its correlative meanings,
“controlling”, “controlled by,” and “under common control with”, means the
legal, beneficial or equitable ownership, directly or indirectly, of more than
fifty percent (50%) of the aggregate of all voting equity interests in an
entity. Without limiting the foregoing, but in addition thereto, any Affiliate
of, or subsidiary of, CDGI shall be deemed to be an Affiliate of
CDGI.
“Associated
Entity” shall mean each individual, company, partnership or other entity of any
type which employs, contracts with, or is otherwise associated or affiliated
with any of Customer’s Authorized Persons or Accompanying Persons. Without
limiting the foregoing definition, each Sublicensee that has sublicensed
Sublicensed space at a CDGI Center will be an Associated Entity at such CDGI
Center.
“Authorized
Person” shall mean each person who is then included on the most recent list of
Authorized Persons given to CDGI by Customer in accordance with the
Policies.
“Billing
Commencement Date” shall mean for a Service obtained in a Sales Order - the date
designated in the Sales Order as the Billing Commencement Date. For a Service
ordered in an Online Order of Phone Order - the date CDGI begins providing
the
Service to Customer, unless otherwise agreed to by the Parties in the
Order.
“CDGI
Centers” or “CDGI Colocation Center” shall mean the Internet Business Exchange
Centers in which Customer licenses Licensed Space or receives Services from
CDGI
pursuant to an Order.
“CDGI
Parties” shall mean CDGI and the Affiliates, owners, officers, directors,
employees, and agents of CDGI or of the Affiliates of CDGI.
Page
12
“Cross-Connect”
shall mean a physical or wireless interconnection within a CDGI Center that
(i)
exits Customer’s cage or (ii) connects Customer to another CDGI
Center.
“Customer
Care Website” shall mean the customer care website accessible via the Internet
at a location designated by CDGI, which it has the right to change from time
to
time.
“Customer
Cross-Connect” shall mean a physical interconnection, including cable,
connections, and other wiring, that (i) does not exit Customer’s cage, (ii) does
not connect Customer to another CDGI customer, and (iii) interconnects (a)
Equipment belonging to the Customer or (b) POD Equipment that is provided by
CDGI and that is in Customer’s cage with Customer’s Equipment.
“Customer’s
Equipment” shall mean all network and/or computer equipment (including wiring
and Customer Cross-Connects between such equipment and Customer’s POD Equipment)
that is located in the Licensed Space, regardless of whether such equipment
is
owned, leased, licensed or otherwise obtained for use by Customer, Customer’s
Authorized Persons, Accompanying Persons or Associated Entities (but this does
not include Cross-Connects or POD Equipment that is provided by CDGI and that
is
located in Customer’s Licensed Space).
“Customer
Parties” shall mean Customer and the Affiliates, owners, officers, directors,
employees, and agents of Customer or of the Affiliates of Customer.
“Early
Termination Charges” shall mean the amount of MRCs from the date of early
termination of this Agreement through its original Term, or such other charges
as set forth on Exhibit A.
“End
Users” shall mean any customers of Customer.
“Licensed
Space” shall mean the areas licensed by Customer under the Agreement and the
Orders and as identified in the Orders as to the amount of space. For each
Licensed Space, CDGI will determine at all times during the Term the exact
location in the CDGI Centers where
the
Licensed Space will be located, which location may be changed from time to
time
by CDGI, and CDGI will notify Customer accordingly.
“MRCs”
shall mean monthly recurring charges.
“MSA
Effective Date” shall mean the effective date for the commencement of Service
called for on Exhibit A.
“NOC
Visual Sentry Egress” shall mean a right to entry to the CDGI Center by visual
means.
“Online
Order” shall mean an Order for Services placed by Customer via the Customer Care
Website and accepted by CDGI pursuant to CDGI’s then current ordering procedures
(as well as any amendment to such Order reflected in a change order agreed
to by
the Parties in accordance with the terms of the applicable change order, the
Order and this Agreement).
“Order”
shall mean any Sales Order, Online Order or Phone Orders between Customer and
CDGI. A change order that amends an Order is not itself considered to be an
Order under this Agreement, but is instead considered to be an amendment of
an
existing Order under this Agreement.
Page
13
“Order
Confirmation” shall mean a document that confirms, among other things, the
Services, the quantity of such Services, and the prices of such Services,
ordered in an Online Order or Phone Order and which is issued by CDGI and
returned to CDGI pursuant to the instructions set forth in such document. Not
all Online Orders or Phone Orders require Order Confirmations.
“Party”
shall mean Customer or CDGI.
“Phone
Orders” shall mean an Order for Services placed by Customer via telephone and
accepted by CDGI pursuant to CDGI’s then current ordering procedures (as well as
any amendment to such Order reflected in a change order agreed to by the Parties
in accordance with the terms of the applicable change order, the Order and
this
Agreement).
“POD
Equipment” shall mean the (i) patch panels, DSX panels for category 5 twisted
pair, co-axial, single and multi-mode fiber, or (ii) other appropriate (as
reasonably determined by CDGI) point of demarcation equipment.
“Policies”
shall mean the procedures, rules, regulations, security practices and policies
adopted by CDGI that are then in effect for the CDGI Centers, and as they may
be
amended from time to time by CDGI.
“Power
Services” shall mean power circuits ordered by Customer. For the avoidance of
doubt, Power Services do not include power provided by CDGI as part of a bundled
Service.
“Sales
Orders” shall mean all written sales orders executed by Customer and CDGI with
respect to activity in or associated with the Licensed Space (as well as any
amendment to such Order reflected in a change order agreed to by the Parties
in
accordance with the terms of the applicable change order, the Order and this
Agreement).
“Services”
shall mean all services, goods and other offerings of any kind set forth in
an
Order to be provided by CDGI to Customer pursuant to this
Agreement.
“Service
Fees” shall mean charges and fees for Services charged to Customer by CDGI
pursuant to this Agreement.
“Shipping
Policies” shall mean the portion of the Policies entitled Shipping
Policies.
“Smart
Hands Services” shall mean services that are defined as Smart Hand Services
under the then current
Policies.
“Sublicensed
Space” shall mean the portion of the licensed Space sublicensed to a Sublicensee
by Customer pursuant to the terms of this Agreement.
“Sublicensee”
shall mean a customer of Customer or other third-party who sublicenses all
or
part of the Licensed Space from Customer.
“Taxes”
shall mean sales, use, transfer, privilege, excise, VAT, GST, consumption tax,
and other similar taxes and duties, whether foreign, national, state or local,
however designated, now in force or enacted in the future, which are levied
or
imposed by reason of the performance by CDGI or Customer under this Agreement
or
by Customer with respect to its operations and use of the Services, but
excluding taxes on CDGI’s net income.
“Term”
shall mean the term of this Agreement as determined in accordance with
Section 2
of this
Agreement, subject to possible termination as set forth elsewhere in this
Agreement.
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14
This
Master Service Agreement has been entered into between the Parties as of the
CDGI Continuity Center Colocation PLUS Effective Date.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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15
Customer
to Complete:
The
person signing below hereby warrants and represents that he or she has full
authority to execute this Agreement for the Party on whose behalf he or she
is
signing.
|
Customer
Name:
|
Secured
Digital Storage LLC
|
|
[Complete
Legal Name]
|
|
|
Authorized
Signature:
|
/s/
Xxxxxxxx X. Xxxxxx
|
|
Printed
Name:
|
Xxxxxxxx X. Xxxxxx |
|
Title:
|
President
& COO
|
|
Street
Address for Notices:
|
0000
Xxxxxxxxxxx Xxxx, #0000
|
|
Xxxxxxx
Xxxxx, XX 00000
|
|
|
Telephone:
|
000-000-0000
|
|
Facsimile:
|
|
|
Electronic
E-Mail Address:
|
|
CDGI
to Complete:
The
person signing below hereby warrants and represents that he or she has full
authority to execute this Agreement for the Parties on whose behalf he or she
is
signing.
|
Authorized
Signature
|
/s/
Xxxxx Xxxxx
|
|
Printed
Name:
|
Xxxxx
Xxxxx
|
|
Title:
|
Chief
Financial Officer
|
Street
address for notices:
Cyber
Development Group International, LLC
0000
X.
Xxxxxxxx Xxxxxx Xxxxx
Xxxxx
Xxxxxxxx, XX 00000
Phone:
000-000-0000
Facsimile
number: 000-000-0000
Electronic
mail address: xxxxx@xxxxxxxxxxxxx.xxx
and
xxxxxx@xxxxxxxxxxxxx.xxx
Page
16
2nd
Address for Notifications
Xxxxxxxx
Xxxxxxxxx
Xxxxxxx
& Xxxxxxxx
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Tel
(000)
000.0000
Fax
(000)
000.0000
xxxxxxxxxx@xxxxxxxxxx.xx
Page
17
