These Rebill/Resell Client Master Terms & Conditions are intended to set forth the material terms and conditions (the “Client Master Terms & Conditions”) pursuant to which Expedient shall provide data center colocation / technology equipment hosting services ("Colocation Services"), managed information technology ("IT") services ("Managed Services") and/or Internet and network access services ("Internet Access Services") to clients without a direct contractual relationship with Expedient (e.g., End Clients, as defined herein, who have contracted for Services through a Rebill or Resell Partner).
All services are provided by Expedient including, without limitation, Colocation Services, Managed Services, Internet Access Services and any such additional solutions or services, are referred to herein collectively as the "Services", and any work product or other deliverables provided in connection therewith are referred to herein collectively as "Deliverables".
Hours of Availability. Subject to the Service Level Agreement (Exhibit B, below, and hereafter the "SLA"), Expedient shall make the Colocation Services, Managed Services and Communications Infrastructure available twenty-four (24) hours per day, three hundred sixty-five (365) days per year. Notwithstanding the foregoing, Expedient may schedule planned, routine maintenance which is not expected to impair End Client's use of the Services in any way, for any or all such Services at any time. If there is even a slight risk of impairment to End Client Services, Expedient shall first, take every commercially reasonable effort to conduct such maintenance outside of normal business hours, unless the nature of such work or the supporting expertise for such work requires a specific time for response, maintenance or remediation. Expedient may schedule other planned maintenance activities, which are not expected to impair End Client’s use of Services, but may introduce some level of risk to Services, by temporary removal or reduction of one or several redundant components of the Services, such that End Client’s access to the Services is temporarily single threaded ("low risk maintenance"). Expedient shall provide End Client with at least one-week advance notice of any such scheduled low risk maintenance. If any Expedient planned maintenance activities require downtime or unavailability for any or all such Services, Expedient shall provide End Client with at least sixty (60) days advance notice of such downtime/unavailability, along with a full report on the purpose of such maintenance and an estimated length of the downtime event. Within ten (10) days of receipt of notice from Expedient of a non-routine, Service-impacting maintenance event, End Client may request a delay of such non-routine maintenance, and the Parties will work together, in good faith, to reschedule the non-routine maintenance event within thirty (30) days of the originally scheduled date of such non-routine maintenance. In case of an emergency or other non-routine maintenance event (emergency maintenance) which is required in order to remediate material risk to Expedient Services to End Client , or a risk to human safety, Expedient reserves the right to suspend End Client’s physical access to the Colocation Services and/or Managed Services for purposes of conducting such emergency maintenance work at any time, as deemed appropriate by Expedient in its sole, but reasonable, discretion, without prior notice to End Client, but will notify End Client of such suspended access as soon as possible thereafter and use its best efforts to immediately restore access to the Services as soon as practically feasible, following completion of the emergency maintenance. End Client may communicate all Service inquiries, requests or concerns directly to the Expedient Operations Support Center.
End Client-Supplied Equipment. End Client shall be responsible for obtaining and maintaining all equipment, hardware and software that is required to be provided by End Client (including both End Client’s own equipment, hardware and software and any equipment, hardware and software obtained by End Client from a third-party) ("End Client-Supplied Equipment") in connection with the operation of the Services and / or End Client’s use thereof. Furthermore, End Client (and not Expedient) shall be solely responsible for procuring and maintaining in effect insurance coverage for all such End Client-Supplied Equipment in such types and amounts as End Client shall determine in its sole discretion.
For Colocation clients only, End Client shall be responsible for removing End Client-Supplied Equipment at the end of the Term (as defined below). Upon termination, Expedient has the right, but not the obligation, to turn off the power supply to any End Client-Supplied Equipment that remains within an Expedient data center. Ninety (90) days following termination, any End Client-Supplied Equipment that remains within an Expedient data center shall be removed by Expedient and the cost associated with such removal shall be invoiced to End Client’s Rebill or Resell Partner on a time and materials basis.
Finally, for Expedient Edge End Clients only, Expedient, with End Client’s reasonable cooperation which may include, but is not limited to assisting with packing and shipping, shall have sixty (60) days from the end of the Term of their agreement to request assistance with the recovery of any Expedient owned hardware located at End Client facilities. In addition, Expedient may require scheduled or emergency access to address performance and maintenance issues.
General. Subject to the terms and conditions of these Client Master Terms & Conditions, if Expedient provides End Client with Internet Access Services directly or indirectly by way of any connection to the Communications Infrastructure such Internet Access Services shall be used by End Client at all times in accordance with Expedient's Terms and Conditions for Use of Service ("TCUS") as published on the Expedient web site located at http://www.expedient.com (the "Expedient Web Site"). The TCUS are hereby specifically incorporated into these Client Master Terms & Conditions by this reference as if fully set forth herein. End Client acknowledges that Expedient may change the TCUS from time to time at Expedient's sole discretion and without any notice by posting modified TCUS on the Expedient Web Site; provided, if any such change to the TCUS is of a material nature or would in any way impair or require a material modification of End Client's intended use of the Services, such change shall not be binding upon End Client unless agreed to in writing. Notwithstanding anything herein to the contrary, in the event of a conflict between the terms and conditions contained in these Client Master Terms & Conditions and the TCUS, the terms and conditions in these Client Master Terms & Conditions shall control.
patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any person or entity, (ii) violates any law, statute, ordinance, or regulation (iii) is threatening, defamatory, libelous, harassing or profane, (iv) contains a virus, Trojan horse, worm or other malicious code or system component that may adversely affect any hardware or software, or that intercepts or misappropriates any data or information, or (v) includes unsolicited bulk e- mails, advertisements or solicitations. Expedient may restrict or limit End Client's Internet Access Services hereunder if Expedient determines, in its sole discretion, that End Client has engaged in, is planning to engage in, or is threatening to engage in (whether knowingly or unknowingly) any prohibited conduct described herein and such conduct, in Expedient's reasonable opinion, poses any risk of any kind or nature to Expedient's network, business or other Expedient Clients. As promptly as practicable after becoming aware of End Client's engagement in any such prohibited conduct, Expedient will use reasonable best efforts to immediately notify End Client of the required restriction or limitation to End Client's Internet Access and will promptly restore End Client's access after Expedient has obtained reasonable written assurance that such conduct has been permanently discontinued. In addition to and not in limitation of the foregoing rights and remedies, Expedient reserves the right to refuse to post or to remove in whole or in part any information or materials provided or submitted by or on behalf of End Client in connection with its use of the Services that Expedient determines, in its sole, reasonable discretion, are either in violation of these Client Master Terms & Conditions or pose any risk of any kind or nature to Expedient's network, business or other Expedient clients.
Internet Content. End Client may access third-party web sites and other content or information on the Internet ("Content") through use of the Internet Access Services. End Client acknowledges that the Content has not been reviewed by Expedient and is supplied and maintained by third parties over which Expedient exercises no control. Accordingly, Expedient expressly disclaims any responsibility for any Content, the accuracy of the information therein, and/or the quality of products or services provided by or advertised therein or otherwise on the Internet. End Client agrees that Expedient has the right, but not the obligation (unless End Client subscribes to monitoring Services), to monitor End Client's access to the Internet and to disclose any information as may be necessary to satisfy any law, regulation or other governmental request, and to protect itself and/or its other Clients; provided, however, that except where prohibited by the inquiring party or by applicable law or regulation, Expedient shall provide End Client with prior notice of any such required disclosure of End Client-related information.
In the event that End Client desires to change the scope of Services or Deliverables originally or at any time thereafter set forth in these Client Master Terms & Conditions ("Changed Services/Deliverables"), or End Client desires Expedient to provide End Client with services ("New Services") and/or deliverables ("New Deliverables") in addition to those originally contemplated hereunder, End Client shall request that Rebill or Resale Partner, engage with Expedient to prepare and execute a proposed project change request ("Project Change Request") or proposed work order ("Work Order") in respect of such Changed Services/Deliverables, New Services or New Deliverables.
Third-party Components. End Client acknowledges that in order to provide certain Services and Deliverables hereunder, Expedient may be required to purchase access to third-party telecommunications, energy/utility transportation and/or managed service facilities ("Third-party Facilities") and/or purchase/license and provide End Client with access to certain software applications and services provided by third parties ("Third-party Software") (Third-party Facilities and Third-party Software provided or otherwise made available by Expedient to End Client hereunder are sometimes referred to collectively as "Third-party Components"). End Client further acknowledges that availability of these Third-party Components is based solely on the best information available to Expedient as of the date each contract is executed between Expedient and the End Client’s Resell or Rebill Partner, including third- party representations and government regulations, and is subject to change during the Term of these Client Master Terms & Conditions with little or no advance notice. If (i) any necessary Third-party Components are determined by Expedient, in its sole discretion to be unavailable as a result of changes to any third-party availability, governmental regulations or any other condition or circumstance outside of Expedient's control, (ii) End Client's desired solution utilizing Third-party Components cannot be delivered in a manner that meets Expedient's standards for reliability, functionality, availability and security of Expedient's other product offerings, or (iii) in utilizing End Client's desired solution of Third-party Components, meeting End Client's expectation for functionality and performance would require expenditures and/or a commitment of resources beyond the scope contemplated by Expedient upon original presentation of the Services, then, in each such case: (a) Expedient shall not be in breach hereof or otherwise liable for any failure or inability to provide Services or Deliverables hereunder as a result of such unavailability of any Third-
party Components, and (b) Expedient may in its sole discretion modify, change or replace the applicable Third-party Components originally contemplated in order to fulfill its obligations under these Client Master Terms & Conditions and otherwise attempt to mitigate the impact of such unavailability of Third-party Components.
License. Expedient hereby grants to End Client a limited non-transferable, non-sublicensable, non-exclusive license to use, during the Term of End Client’s agreement with Resell or Rebill Partner the Deliverables delivered by Expedient solely for End Client's internal business purposes, which may include serving its own End Clients and / or related parties, as set forth in these Client Master Terms & Conditions. Except as may otherwise be expressly set forth in these Client Master Terms & Conditions and except for any Confidential Information of End Client contained therein, Expedient retains all Intellectual Property Rights in any Deliverable delivered to End Client, and in any and all derivative works thereof. As used in these Client Master Terms & Conditions, "Intellectual Property Rights" shall mean all rights with respect to inventions (whether or not patentable), trade secrets, patents, copyrights, trademarks, service marks, trade dress, know how, as well as moral rights and similar rights of any type, under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
If Services or Deliverables provided to End Client are subject to sales or use tax in multiple jurisdictions, Expedient shall have the right to require End Client (A) to furnish Expedient a Multiple Points of Use Certificate, or similar document applicable in the jurisdiction(s) in question and (B) to administer, report and remit among those jurisdictions all Applicable Taxes payable.
Expedient has the right to apply any non-fixed costs incurred due solely to End Client’s increased monthly consumption of variable resources, including, but not limited to bandwidth, power, third-party licenses, etc., above the then current contracted amount for such non-fixed resources. For the avoidance of doubt, if End Client’s consumption remains at or below monthly contracted levels for any non-fixed resources, there will not be an additional charge. Charges will only occur if End Client’s consumption of variable resources exceeds contracted levels.
Definition. "Confidential Information" shall mean confidential or other proprietary information that is disclosed in writing by one party (the "Disclosing Party") or its Representatives (as defined below) to the other party (the "Receiving Party") or its Representatives under these Client Master Terms & Conditions, including, without limitation, designs, drawings, models, prototypes, software designs and code, bit-map files, product specifications and documentation, business and product plans, and other business information. Confidential Information shall not include information which: (i) is or becomes publicly-available without any action by, or involvement of, the Receiving Party; (ii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; (iii) is already known to the Receiving Party at the time of disclosure under these Client Master Terms & Conditions; (iv) is disclosed to the Receiving Party by a third-party without any obligation of confidentiality; or (v) is disclosed pursuant to any judicial or governmental order, provided that, to the extent permitted, the Receiving Party gives the Disclosing Party sufficient prior notice to contest such order. For the purposes of these Client Master Terms & Conditions, “Representatives” shall mean either Party’s legal or financial advisors, accountants, consultants, any party tasked with negotiating these Client Master Terms & Conditions on
behalf of End Client or other similarly situated advisors who are party to a non-disclosure agreement with the Party that they represent.
Control Policies, Procedures, Security and Availability. Annually, and for each subsequent twelve-month period thereafter during the Term of these Client Master Terms & Conditions, Expedient has completed or shall complete, as applicable, an independent audit of internal control policies, procedures, security and availability, conducted by an American Institute of Certified Public Accountants (AICPA) accredited third-party firm, and End Client acknowledges and agrees that the resulting Confidential SSAE18 Type II and SOC2 Type II reports have been and will be, as applicable, made available to End Client. During the Term of these Client Master Terms & Conditions, Expedient shall use all commercially reasonable efforts to maintain in effect all of the material controls, policies, procedures, security and availability standards (collectively referred to herein as "Security and Control Policies and Procedures") described and tested in accordance with the AICPA requirements and criteria for SSAE18 SOC1 Type II and SOC2 Type II or any relevant successor industry audits, reports or standards relating to control policies, procedures, security and availability. Without limiting the foregoing, upon End Client's written request, Expedient shall provide to End Client a watermarked copy of Expedient's then most currently audited version of the aforementioned reports (which, for the avoidance of doubt, shall constitute Confidential Information, defined above, of Expedient).
Specifically in reference to the reports and audits of Expedient's Security and Control Policies and Procedures, End Client acknowledges that remedies at law may be inadequate to protect against a breach or threatened breach of the confidentiality of this Confidential Information, and hereby agrees in advance to the granting of injunctive relief in Expedient's favor without proof of actual damages, and without any requirement for any bond or surety, in the event of any such breach or threatened breach of the confidentiality of the reports and audits of Expedient's Security and Control Policies and Procedures by End Client and/or its Representatives. Such remedy shall not be deemed to be the exclusive remedy for breach or threatened breach of the confidentiality of Confidential Information by End Client or its Representatives but shall be in addition to all other remedies available to Expedient at law or in equity.
Except as expressly set forth herein, Expedient reserves all right, title and interest in, to and under, and grants no rights whatsoever with respect to the Colocation Services, Managed Services, Internet Access Services, Communications Infrastructure, Deliverables, Changed Services/Deliverables, New Services, New Deliverables or other property of Expedient or its suppliers, or any Intellectual Property Rights therein.
Termination for Cause. In the event of any material breach of these Client Master Terms & Conditions, the non- breaching party may terminate these all contractual relationships between the parties (direct or indirect) by giving thirty (30) days' prior written notice to the breaching party; provided, however, that neither these Client Master Terms & Conditions nor any other contractual relationships shall terminate if the breaching party (which may include the Rebill or Resell Partner) has cured the breach prior to the expiration of such thirty-day period.
EXCEPT AS OTHERWISE PROVIDED FOR IN THE EXPEDIENT SLA (EXHIBIT B, BELOW) AND FOR ANY UNEXPIRED PASS THROUGH THIRD-PARTY WARRANTIES, IF ANY, (i) THE COLOCATION SERVICES, COLOCATION INFRASTRUCTURE, MANAGED SERVICES, COMMUNICATIONS INFRASTRUCTURE, INTERNET ACCESS SERVICES, DELIVERABLES, CHANGED SERVICES/DELIVERABLES, NEW SERVICES, NEW DELIVERABLES, THIRD-PARTY COMPONENTS AND ANY AND ALL OTHER SERVICES PROVIDED BY OR ON BEHALF OF EXPEDIENT HEREUNDER ARE PROVIDED "AS-IS", WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND (ii) EXPEDIENT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXPEDIENT SHALL NOT BE DIRECTLY LIABLE TO END CLIENT FOR ANY DAMAGES.
END CLIENT’S RECOURSE FOR LIABILITY IN RESPECT OF THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 BELOW OR RESULTING FROM OR ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY SHALL BE THROUGH THE REBILL OR RESELL PARTNER AND, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, AND DAMAGES DUE TO LOSS OR DISCLOSURE OF DATA OR OTHER INFORMATION) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROVISION OR USE OF ANY SERVICES OR DELIVERABLES HEREUNDER, THE DELAY OR INABILITY TO USE ANY SERVICES OR DELIVERABLES, OR OTHERWISE ARISING FROM THESE TERMS & CONDITIONS, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) THE TOTAL LIABILITY OF EACH PARTY FOR ANY CLAIM BY THE OTHER PARTY HEREUNDER, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO EXPEDIENT BY REBILL OR RESELL PARTNER, WITH RESPECT TO THE AFFECTED END CLIENT(S) (I.E., NOT IN AGGREGATE ACROSS ALL SUCH PARTNER’S END CLIENTS RECEIVING SERVICES FROM EXPEDIENT) HEREUNDER IN THE THREE (3) MONTH PERIOD ENDING ON THE DATE THAT SUCH CLAIM OR DEMAND IS FIRST ASSERTED, PROVIDED, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO ANY FEES OR OTHER AMOUNTS OWED BY CLIENT TO EXPEDIENT BUT NOT YET PAID. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSION FOR EXPEDIENT'S INDEMNIFICATION OBLIGATIONS STATED IN THE FIRST SENTENCE ABOVE SHALL NOT APPLY TO ANY CLAIMS RELATED TO THE PERFORMANCE OR LACK THEREOF OF SERVICES THAT ARE DIRECTLY RELATED TO, OR ENABLED BY SPECIFIC OPEN SOURCE SOFTWARE COMPONENTS ("OSS CLAIMS"), AND (II) EXPEDIENT'S MAXIMUM TOTAL LIABILITY FOR OSS CLAIMS, IF ANY, IN ALL CASES SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO EXPEDIENT SPECIFICALLY IN RESPECT OF THE APPLICABLE OPEN SOURCE SERVICES IN THE SIX (6) MONTH PERIOD ENDING ON THE DATE THAT SUCH OSS CLAIM IS FIRST ASSERTED.
For the purposes of these Client Master Terms & Conditions, Open Source Software means any software or software component of the Services that meets the principal elements of the Open Source Initiative definition, including but not
limited to: (i) freely available; (ii) program includes the source code; (iii) software allows modification and derived works or, if modification is not permitted, the license allows for the distribution of patch files; (iv) not placing restrictions on other software; and (v) being technology-neutral. Open Source Services are Expedient Services that utilize Open Source Software.
For the avoidance of doubt, any Services that require or could utilize Open Source Software would require explicit agreement between the parties to utilize such Open Source Software in the list of Services.
Each party shall indemnify and hold harmless the other party and its affiliates, and its and their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by any third-party, and all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties and costs (including reasonable and documented legal fees and expenses) (collectively, "Losses") incurred in connection with such third-party claims, for personal injury (including death) or damage to real and/or tangible property arising out of or resulting from acts or omission to act under these Client Master Terms & Conditions of any employees, contractors or agents of the indemnifying party.
Expedient shall indemnify and hold harmless End Client and its affiliates, and its and their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by any third-party, and all Losses incurred in connection with such third-party claims, arising out of or resulting from (i) any breach by Expedient of these Client Master Terms & Conditions, and/or (ii) any claim that Expedient's performance of the Services or the exercise by End Client of its rights granted under these Client Master Terms & Conditions in accordance with the terms hereof, infringes, misappropriates or violates the intellectual property rights of any third- party. Notwithstanding the preceding provisions, Expedient shall not indemnify End Client for any items under clause
(ii) above that occur with respect to or as a result of any Services specifically identified in any present or future Work Order or PCR as Open Source Services.
End Client shall indemnify and hold harmless Expedient and its affiliates, and its and their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by any third-party, and all Losses incurred in connection with such third-party claims, arising out of or resulting from (i) any breach by End Client of these Client Master Terms & Conditions, (ii) End Client's use of any Services or Deliverables, including but not limited to any Third-party Components thereof, in a manner not expressly directed or reasonably contemplated by Expedient, and/or (iii) any information that End Client transmits via, posts on, or accesses and / or views through the Internet or any Internet web-site, including as a result of or in connection with any claim that such information constitutes copyright infringement or infringement of any other intellectual property rights of any third- party.
The indemnified party shall promptly notify the indemnifying party in writing of any claims, demands, actions and proceedings related to the indemnifying party's obligations under this Section 11, provided, however that the indemnifying party's obligations hereunder shall not be affected by any delay or failure in providing such notice unless and then only to the extent the indemnifying party's defense or settlement of the applicable claim was materially prejudiced thereby. The indemnifying party shall have the right, at its sole expense, to defend with counsel reasonably acceptable to the indemnified party all such claims, demands, actions or proceedings and, so long as the indemnifying party is defending any such claim diligently and in good faith, the indemnifying party shall have full and complete authority for the defense thereof; provided, however, the indemnifying party shall have no authority to enter into any settlement or compromise on behalf of the indemnified party without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party does not undertake the diligent, good faith defense of a claim, the indemnified party shall have the right to conduct the defense of such claim at its sole defense, provided, (i) nothing in the foregoing shall limit or be deemed to limit a party's right to dispute that a claim (and/or any Losses arising therefrom) relates to an indemnifiable matter hereunder, and (ii) if the indemnifying party has agreed that a claim relates to an indemnifiable matter hereunder, the indemnified party shall have no authority to enter into any settlement or compromise on behalf of the indemnifying party without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed. In all circumstances, the indemnified party shall have the right to participate in the defense of any proceedings with counsel of its own choosing, at its sole expense, and shall cooperate with the indemnifying party in the defense of any claim maintained thereby.
Assignment. Neither party shall assign these Client Master Terms & Conditions to any third-party without the prior written consent of the other party; provided, however, that Expedient may, without notice to or the consent of End Client, grant a security interest in these Client Master Terms & Conditions to a lender pursuant to a lending arrangement and/or assign these Client Master Terms & Conditions to any entity that at that time controls, is controlled by or is under common control with Expedient. For purposes of these Client Master Terms & Conditions, "assignment" shall exclude: (i) the sale of all or substantially all of the assets of a party, (ii) a merger, consolidation or reorganization, or (iii) the sale or transfer of more than fifty (50%) of the voting stock (as measured by assuming all convertible securities converted into common stock) to an individual or entity or group of individuals or entities acting in concert that immediately prior to such sale or transfer did not own more than fifty percent (50%) of the then outstanding voting stock. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
Exhibit A
LIST OF ORIGINAL SERVICES AND PRICING
Third-party Software Licensing - Certain Services and Deliverables provided to End Client under these Client Master Terms & Conditions may include Third-party Software. Such Third-party Software may be (i) provided on a direct subscription based basis from the applicable vendor (including, but not necessarily limited to, direct subscription based licenses with Microsoft) ("Direct Licenses") and/or (ii) embedded within Services or Deliverables and covered by an indirect software license with the applicable vendor) ("Embedded Licenses"). With respect to such Third-party Software and the associated Direct Licenses and Embedded Licenses, as applicable, and notwithstanding anything in these Client Master Terms & Conditions to the contrary, End Client acknowledges and agrees that the following additional terms and conditions shall apply:
Price Changes
Direct Licenses. Any vendor of Third-party Software covered by Direct Licenses may from time to time increase the prices of its software products and services, and in that event Expedient reserves the right to pass on to End Client (on a dollar-for-dollar, actual cost pass-through basis only, and with no additional mark-up or margin to Expedient) any such price increases incurred by Expedient during the Term of these Client Master Terms & Conditions.
Embedded Licenses. Any vendor of Third-party Software covered by Embedded Licenses may from time to time increase the price of its software products and services, and if the price of the software products/services associated with any Embedded License increases by more than five percent (5%) (as measured from the Effective Date of these Client Master Terms & Conditions or the date of the last price increase related to such Embedded License under this Paragraph 1.A.ii of this Exhibit A, whichever is more recent), then Expedient reserves the right to pass on to End Client (on a dollar-for-dollar, actual cost pass-through basis only, and with no additional mark-up or margin to Expedient) such price increase, provided in such event that Expedient provides End Client with documentation reflecting the corresponding price increase of the underlying Embedded License.
Warranties - Vendors typically disclaim, to the extent allowable by law, all warranties and any liability for any damages, whether direct, indirect or consequential, arising from the use of their Third-party Software.
Maintenance - Vendors typically do not provide direct maintenance or technical support of their Third-party Software provided or otherwise made available to End Client under these Client Master Terms & Conditions, and therefore End Client shall be responsible to provide or cause to be provided such support for Third-party Software.
Proprietary Rights - End Client must display in the form provided all copyright, trademark and patent notices included within any Third-party Software (including, where applicable, identifying the applicable Third-party Software vendor via appropriate descriptors), and End Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on or during the use of any Third-party Software.
Reverse Engineering - End Client shall not reverse engineer, decompile or dissemble any Third-party Software, except to the extent such activity is expressly permitted by applicable law.
End Client Information - End Client hereby allows Expedient to provide Third-party Software vendors with information regarding End Client to the extent required under Expedient's agreements with any vendors, which such information may include (but is not necessarily limited to) results of demonstrations to End Client of and/or evaluations by End Client regarding the Third-party Software.
High Risk Use - End Client shall not utilize any Third-party Software in any application or situation where the failure thereof could directly or indirectly lead to death or serious bodily injury to any person and/or to severe physical or environmental damage.
Other - If End Client provides any Services or Deliverables that contain Third-party Software to End Client (i.e., such that End Client is not the end user of such Services/Deliverables and Software), End Client must ensure that
End Clients’ use of such Services/Deliverables and Third-party Software is subject to all applicable restrictions and limitations hereunder on the use thereof, including those listed above in this Exhibit A.
Acknowledgement - If and to the extent Microsoft is the applicable vendor of any Third-party Software (e.g., Exchange, Sharepoint, Dynamics, SQL, etc.) used by End Client in connection with any Services or Deliverables provided by Expedient under these Client Master Terms & Conditions, then Microsoft will be (and is) an intended third-party beneficiary of these Client Master Terms & Conditions, with the right to enforce all applicable provisions of these Client Master Terms & Conditions against End Client and to verify the compliance of End Client with such provisions.
End Client Owned License Mobility Assurance - If at any time during the Term of the Agreement, End Client intends to utilize Microsoft software license(s) not provided by Expedient in conjunction with Services provided under these Client Master Terms & Conditions, End Client will execute a zero cost PCR (no charge from Expedient) to document such software and to attest to End Client Client's required compliance with the Microsoft License Mobility (LM) provision associated with the Microsoft Software Assurance program. End Client will be responsible for transmitting the required information to Microsoft in order to validate eligibility for License Mobility and will provide written acknowledgement and supporting evidence of LM approval from Microsoft.
Software Restrictions and International Usage - If is utilizing Expedient Services that are hosted on private virtual infrastructure physically located outside of the United States, End Client agrees not to transmit to Expedient in the course of End Client’s use of the Services and Deliverables any information, data or technology controlled by the International Traffic in Arms Regulations or otherwise requiring an export license or other authorization from the U.S. Government or any other governmental authority.
Red Hat Licensure - If any of the Services provided under these Client Master Terms & Conditions, include Red Hat Software, End Client hereby agrees to and assent (in a binding manner) to the Cloud Services Subscription Agreement set forth at www.redhat.com/licenses/cloud_cssa/, which may be amended from time to time by Red Hat in its sole discretion ("End User Agreement"), as a condition to providing End Users with access to the Software and/or Updates. Any modification or waiver of the End User Agreement requires prior written consent by Red Hat.
End User License Agreements - End Client acknowledges that it has reviewed and at all times during the Term of these Client Master Terms & Conditions will adhere to the specific End User License Agreements for any and all Open Source Services provided under the Agreement. The current list of which can be found at: https://expedient.com/third-party-eulas/.
Bandwidth Bursting
Bandwidth usage levels are determined by traffic samples taken every five minutes. The five-minute samples are collected for the month and then the top 5% are eliminated. The bandwidth charge is based on the next highest remaining sample. Expedient's flexible pricing allows virtually unlimited "bursting" for up to 36 hours per month (based on 8640 samples in a typical month) without additional fees. Incremental charges for usage above End Client’s base bandwidth commitment will only apply if End Client’s usage, as defined above, exceeds End Client’s contracted bandwidth with Resell or Rebill Partner in more than 5% of the monthly samples. Unless stated otherwise in these Client Master Terms & Conditions, additional fees will be assessed for excess incremental bandwidth consumption in an amount equal to End Client’s monthly per megabit rate for the service multiplied by the overage (in increments of one megabit).
Third-party License Bursting
All Third-party Software is provided to End Client according to the licensed capacity, as set forth in the Original Order or PCR. Expedient monitors End Client’s use on a monthly basis and if End Client’s consumption is in excess of the licensed capacity, Expedient will identify the bursting charge and will, at End Client’s direction, work with End Client for not more than thirty (30) days to reduce their usage so that it conforms to the applicable usage limit or increase the licensed capacity limit to fit End Client’s changing needs and such that End Client’s licensed usage will be increased at a fixed monthly rate through the End Client’s Resell or Rebill Partner for the remainder of the term avoiding more costly monthly bursting charges for excess consumption.
Variable Pricing on Managed Storage Services
Unless otherwise stated herein, End Client’s Resell or Rebill Partner shall be invoiced and responsible for the following additional incremental fees, payable upon the same terms set forth for all invoices in the Agreement between Expedient and the End Client’s Resell or Rebill Partner, as prescribed:
If the month averaged data storage amount is in excess of the quantity purchased, a fee equal to that excess multiplied by the listed rate will apply with overage amounts assessed in 50GB increments.
If Client requires more than two (2) hours of backup assistance in a given month, a Project Change Request will be provided to the Resell or Rebill Partner with an agreed upon hourly rate with a one (1) hour minimum.
Power Service Consumption and Fee Changes
Increased Power Cost Pass-Through. In the event that Expedient incurs an increase in power costs from its energy generation and/or energy transport provider(s) of greater than three percent (3%), Expedient reserves the right to pass through the impact of such power cost increase to End Client’s Resell or Rebill Partner on a pro rata or proportionate basis. To eliminate any confusion, by way of example: (i) in cases where End Client subscribes to a specific, itemized power service, the rate will be changed by an equal percentage to that of the actual percentage rate change incurred by Expedient; or (ii) In instances where End Client is subscribing to a "bundled" per rack service or per square foot service in which, power is included (bundled service), that rate will be changed by an amount equal to the actual percentage rate change incurred by Expedient times thirty percent (30%) of the fees for the bundled service.
A-B Feed Restrictions Unless otherwise specified and/or defined in Power Service descriptions listed elsewhere in these Client Master Terms & Conditions and/or in any Work Order or Project Change Request, Expedient will provide, as part of its Standard Power Service offering, a set of redundant branch circuits commonly referred to as "A" and "B" side access feeds. The sole and exclusive purpose of the A and B access feeds are to provide an added layer of power redundancy.
The aggregate consumption of the equipment connected to the combined A and B side access feeds shall not exceed eighty percent (80%) of the branch circuit rating of either the A side access feed or the B side access feed. If at any time during the Term of these Client Master Terms & Conditions, End Client’s aggregate power consumption on a set of redundant A and B side access feeds exceeds eighty percent (80%) of the branch circuit rating of either single feed, then in addition to and not in limitation of any other provisions of these Client Master Terms & Conditions, End Client hereby acknowledges and agrees that (i) Expedient is not and shall not be liable for any service disruption that may occur as a result of the excess power consumption, (ii) End Client’s Resell or Rebill Partner will be obligated to pay Expedient for charges equal to two times the amount of End Client’s standard power service charge for the previous three (3) months of service, such amount to be invoiced within thirty (30) days of the period when such excess power was measured by Expedient and payable upon the same terms set forth for all invoices in the Agreement, and (iii) Expedient and End Client’s Resell or Rebill Partner will then agree to the appropriate amount of actual power needs and corresponding charges required by the End Client on a go forward basis.
Exhibit B
SERVICE LEVEL AGREEMENT (SLA)
If End Client’s Resell or Rebill Partner’s account is past due or suspended for late payment.
Incidents outside Expedient's reasonable control, including those described in Section 12.7 of the Client Master Terms & Conditions.
Expedient scheduled or emergency maintenance events as described in Section 1.2 of the Client Master Terms & Conditions.
Incidents caused by equipment, software or other technology provided by either End Client or by a third-party on behalf and at the direction of End Client
Incidents related to End Client’s usage of power that exceeds the recommended and / or capacity thresholds for proper configuration and use of A-B circuit configuration as outlined in Exhibit A, section 4 of the Client Master Terms & Conditions.
Incidents involving a End Client’s Private Virtual Colocation Service, where successful failover is prevented as a result of End Client’s overconsumption of either the allotted memory and/or the allotted CPU contracted for, to the point where such overconsumption exceeds the resources available to maintain an N+2 configuration.
Incidents caused by an error or the direct negligence or willful misconduct End Client or Client agents or employees.
Hardware failures on equipment that is owned or exclusively used by End Client, which are cured within 4 hours as prescribed by Expedient's "Break Fix" coverage.
Incidents associated with disaster recovery services (including backups) in which testing of the solution was not cooperatively completed by End Client and Expedient upon service activation or following a subsequent configuration change that prevents successful failover/recovery.
Instances where the Service disruption occurs as the result of End Client’s application of Open Source Services not specifically directed by or under the supervision of Expedient.
Instances where the Service disruption involves equipment stored outside of Expedient data centers (e.g., Edge, private Colocation, etc.) in which End Client’s acts or omissions led to the Service Interruption.
Instances where the Service disruption involves equipment stored outside of Expedient data centers and the Service Interruption was prolonged due End Client’s acts or omissions including, but not limited to, providing Expedient with timely access to the affected equipment.
The ambient room temperature reading measured in the center of the nearest cold aisle row, no more than four
(4) feet from the floor, is less than 64.4 degrees or greater than 80.6 degrees Fahrenheit (or the then current "Recommended Range" for Equipment Environment Specifications as Published by ASHRAE; Thermal Guidelines for Data Processing Environments), for more than twenty (20) minutes within any twenty-four (24) hour period of time.
The humidity reading measured in the center of the nearest cold aisle row, no more than four (4) feet from the floor, is less than 25% or more than 60% (or the then current "Recommended Range" for Equipment Environment Specifications as Published by ASHRAE; Thermal Guidelines for Data Processing Environments), for more than twenty (20) minutes within any twenty-four (24) hour period of time.