Master Service Agreement

Plug and Play Data Center
Master Service Agreement

Download Master Service Agreement pdf

Updated May 7, 2010

This Data Center Master Service Agreement is made by and between PLUG & PLAY, LLC dba PLUG & PLAY TECH CENTER (hereinafter "PLUG & PLAY") and the customer who signs a Service Order (hereinafter "You" or "Customer"), each a "Party" and collectively the "Parties".

As a condition of this Data Center Master Service Agreement, Customer shall sign a Service Order that specifies the services chosen by Customer and the related fees. The Service Order incorporates this Data Center Master Service Agreement, a Service Level Agreement, and an Acceptable Use Policy. Any reference to the term "Agreement" in any of these documents is a collective reference to all. The Agreement is effective as of the date that the Customer signs the Service Order.

1. Services

PLUG & PLAY agrees to provide applicable IT services pursuant to the specification(s) provided in the Service Order for the term of the Agreement ("Services"). In case of any conflict between this Data Center Master Service Agreement and the Service Order, the terms of the Service Order shall control as to those specific items that are in conflict. All remaining undisputed terms and conditions of this Data Center Master Service Agreement will continue to be binding and remain intact.

As a condition to receiving our Services, you must use reasonable security precautions in light of your use of the Services, including encrypting any Personal Identifiable Information transmitted to or from, or stored on, the PLUG & PLAY servers or storage devices you use. For purpose of this Agreement, "Personal Identifiable Information" shall mean any information that identifies an individual, such as name, social security number or other government issued numbers, date of birth, address, telephone number, or other personally identifiable information. You must comply with the laws applicable to your use of the Services and with PLUG & PLAY's Acceptable Use Policy posted at http://www.plugandplaytechcenter.com/datacenter/serviceAgreement/aup.php as of the date you sign the Service Order. You shall cooperate with PLUG & PLAY's reasonable investigation of Service outages, security problems, and/or any suspected breach of the Agreement.

2. Charges and Fees

The Service Order contains the applicable rates and charges for the applicable Service(s). Customer is responsible for paying all sales and use taxes incurred by Customer arising from Customer's use of the Service(s). PLUG & PLAY may increase its fees at any time with thirty (30) days advance written notice to Customer. Revisions of rates will be prorated based on the effective date of such revision, excluding fixed-term agreements.

PLUG & PLAY will invoice fees on a monthly basis and Customer agrees to pay all charges incurred by Customer by no later than the 5th day of each month. PLUG & PLAY may suspend any and all of Customer's Service(s), at its sole and absolute discretion, if the Customer fails to make any payment(s) by the 5th day of each month. Interest charges of ten-percent (10%) per month, or the highest rate permitted by law, will accrue on any overdue amounts. If any amount is overdue by more than thirty (30) days, and PLUG & PLAY brings a legal action to collect, the Customer must also pay PLUG & PLAY's reasonable costs of collection, including attorneys' fees and court costs. If Customer's check is returned for insufficient funds, PLUG & PLAY may charge a fee up to the maximum amount permitted by law.

3. Term & Termination

The term for the Services ("Term") is set forth in the Service Order. Either Party may terminate this Agreement by providing written notification to the other at least thirty (30) days prior to the expiration of the initial Term. If thirty (30) days notice is not given, then the Agreement will automatically renew for a consecutive term of the same length as the initial Term.

PLUG & PLAY may terminate the Agreement at any time if: (i) PLUG & PLAY discovers that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete; (ii) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer; (iii) you fail to timely pay any amount due; (iv) you have made payment arrangements via a credit card or other third party and the third party refuses to honor our charges; (v) a credit report indicates you no longer meet PLUG & PLAY's reasonable credit criteria, (vi) you use your Services in violation of PLUG & PLAY Acceptable Use Policy which is posted online at http://www.plugandplaytechcenter.com/datacenter/serviceAgreement/aup.php, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within five (5) business days of our notice to you describing the failure. If we terminate the Agreement for any of the above reasons, you will be responsible for immediate payment of all monthly recurring fees specified in the Service Order for the remainder of the Term.

In the event that Customer cancels or terminates a Service Order at any time for any reason whatsoever other than expiration of a Service Order, Customer agrees to pay PLUG & PLAY, as a cancellation fee, all monthly recurring fees specified in the Service Order for the remainder of the Term, which shall become due and payable as of the effective date of cancellation or termination.

4. IP Addresses

PLUG & PLAY may assign, on a temporary basis, a reasonable number of Internet Protocol Addresses ("IP Addresses"). Customer acknowledges that the IP Addresses are: a) the sole property of PLUG & PLAY, b) assigned to Customer as part of the Service(s), and c) not transferable. PLUG & PLAY reserves the right to change the IP Address assignments at any time; however, PLUG & PLAY shall use reasonable efforts to avoid any disruption to Customer resulting from such renumbering requirement. PLUG & PLAY will give Customer reasonable notice of any such renumbering. Customer agrees that it will have no right to IP Addresses upon termination of this Agreement, and that any renumbering required of Customer after termination shall be the sole responsibility of Customer.

Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP Addresses and server names assigned to you by PLUG & PLAY in connection with Services, including pointing the DNS for your domain name(s) away from PLUG & PLAY.

5. Limitation on Services

Backups: PLUG & PLAY performs data backups on a "snap shot" basis at a specific moment. Therefore PLUG & PLAY may not create a backup of every item that is sent, received, or stored. The backup will only capture those items (including mailboxes and public folders) that are present during the time of the backup. Data on backups may be retrieved only for a limited number of days.

6. Rights and Obligations of PLUG & PLAY; Disclaimer of Warranties

PLUG & PLAY does not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are inherent risks in internet connectivity that could result in the loss of your privacy, property, and Confidential Information. For purposes of this Agreement, "Confidential Information" means all information disclosed by one of us to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, the content of email and other information transmitted via PLUG & PLAY's server, (ii) for PLUG & PLAY, unpublished prices and other terms of service, audit and security reports, and proprietary technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.

Customer understands that Customer, and its customers or authorized users, may access the Internet through the Services provided by PLUG & PLAY. Customer further understands that neither PLUG & PLAY, nor any of its affiliates, operates or controls the Internet in any way, and that all merchandise, information and services offered or made available or accessible on the Internet are offered or made available or accessible by third-parties who are not affiliated with PLUG & PLAY or its affiliates. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER'S USE AND ITS CUSTOMERS' AND AUTHORIZED USERS' USE OF THE SERVICES AND THE INTERNET. NEITHER PLUG & PLAY NOR ANY OF ITS AFFILIATES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ANY MERCHANDISE, INFORMATION OR SERVICES PROVIDED THROUGH THE INTERNET OTHER THAN BY PLUG & PLAY, AND THEY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS THE SOLE RESPONSIBILITY OF THE CUSTOMER AND CUSTOMER'S CUSTOMERS' AND AUTHORIZED USERS' RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE, PROVIDED THROUGH THE SERVICES OR ON THE INTERNET GENERALLY.

CUSTOMER FURTHER UNDERSTANDS THAT THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE CONSIDERED OFFENSIVE TO SOME PEOPLE. CUSTOMER, CUSTOMER'S CUSTOMERS, AND CUSTOMER'S AUTHORIZED USERS ACCESS SUCH MATERIALS AT CUSTOMER'S OWN RISK. PLUG & PLAY HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.

NO COMPLIMENTARY ADVICE OR INFORMATION GIVEN BY PLUG & PLAY, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER PLUG & PLAY NOR ITS AFFILIATES WARRANTS THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SERVICES IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.

UNDER NO CIRCUMSTANCES SHALL PLUG & PLAY, ITS EMPLOYEES, AFFILIATES OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER'S (OR CUSTOMER'S CUSTOMERS' OR AUTHORIZED USERS') USE OF, OR INABILITY TO USE, THE SERVICES OR TO ACCESS THE INTERNET OR ANY PART THEREOF, OR CUSTOMER'S (OR CUSTOMER'S CUSTOMERS' OR AUTHORIZED USERS') RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE(S), OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, UNLESS RESULTING FROM THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF PLUG & PLAY OR ITS EMPLOYEES. NOTWITHSTANDING, PLUG & PLAY'S MAXIMUM MONETARY LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO PLUG & PLAY PURSUANT TO THIS AGREEMENT AT THE TIME OF THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.

If Customer is dissatisfied with the Services or with any terms, conditions, rules, policies, guidelines, or practices of PLUG & PLAY in operating the Services, unless otherwise provided herein, Customer's sole and exclusive remedy is to terminate this Agreement in accordance with Section 3 above and discontinue using the Services.

PLUG & PLAY has no obligation to monitor the Services. However, Customer agrees that PLUG & PLAY has the right to monitor the Services electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect itself or its customers. PLUG & PLAY will not intentionally monitor or disclose any private electronic-mail message unless required by law. PLUG & PLAY reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement.

7. Ownership of Intellectual Property

Each Party retains all rights, title and interest in and to its respective trade secrets, trademarks, inventions, copyrights, and other intellectual property. Any intellectual property developed by PLUG & PLAY during the performance of the Services shall belong to PLUG & PLAY unless otherwise agreed to in writing by both Parties.

8. Indemnity

Customer agrees to defend, indemnify, and hold PLUG & PLAY and its any of it affiliates, present and former managers, officers, directors, partners, shareholders, members, joint ventures, agents, employees, tenants, contractors, attorneys, successors, and assigns harmless from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, related to or arising from (i) any violation of the terms and conditions of this Agreement by Customer or those who access the Services through Customer's account; (ii) the use of the Services and/or Internet by Customer or those who access the Services through Customer's account; or (iii) the placement or transmissions of any message, information, software, or other materials on the Internet by Customer or by those who access the Services through Customer's account.

9. Third Party Products and Services

PLUG & PLAY may from time to time arrange for Customer to purchase or license third party software, services or other products that are not included as part of PLUG & PLAY's Services. PLUG & PLAY SHALL MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND SUCH SERVICES ARE PROVIDED "AS IS" TO CUSTOMERS. Customer's use of third party software, services, and other products are governed by the terms of its agreement with the third party.

10. Independent Consultant

The relationship of the Parties is of an independent consultant and PLUG & PLAY shall control and determine the method and means of performing the Service(s) under this Agreement and it shall determine the time, place, and manner in which it will accomplish the Service(s). Nothing in this Agreement shall be construed as creating a relationship between PLUG & PLAY and Customer of joint venturers, partners, employer-employee, franchisor-franchisee, or agency. Neither party has the authority to create any obligations for the other, nor to bind the other to any representation or document.

11. General Provisions

This is the Parties' entire Agreement, and may be amended only by a separate writing signed by both Parties. Any document referred to herein is incorporated by reference. This Agreement shall be construed using the laws of State of California (except as they apply to conflict of law), and the copyright laws of United States. This Agreement shall bind and be for the benefit of the Parties and their heirs, fiduciaries, and permitted successors and assigns, except that only PLUG & PLAY shall perform the Services, which are the subject of this Agreement. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court or judicial authority finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited but only to the minimal extent required to make the provision valid and enforceable. Correspondence will be to the Parties at the addresses specified in the Service Order, or to such other places that the Parties designate from time to time. This Agreement may be signed in counterparts, which together shall be one contract. Faxed signature will be treated as original. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. Parties acknowledge that each have read and understand this Agreement; that each Party is fully aware of its legal effect; and that they have entered into it freely and voluntarily and based on own judgment and not on any representations or promises other than those contained in this Agreement. By signing below, you hereby represent and warrant that you have full legal power and authority to enter into this Agreement.