This Master Services Agreement (this “Agreement”) is made between SECURE NETWORK USA, LLC (DBA: FCM360) a New York limited liability company hereinafter (“SN”), and its affiliate companies FCM360 and client hereinafter “CUSTOMER”.
NOW, THEREFORE, in consideration of the promises set forth below, the parties hereby agree as follows:
Services. Customer agrees to purchase from SN and SN agrees to provide Collocation, Point to Point Circuits, Server Rental, Remote Management and Dedicated Internet Access (“Services”) as specified in one or more Customer Service Order(s) “CSOs” hereinafter “CSO” duly executed pursuant to this Agreement. Scope of service (“Service”), the time schedule (“Schedule”), and charges will be set forth in written CSOs to this contract. Each CSO will be executed by authorized representatives of the parties. Upon execution, any such CSO shall automatically be incorporated as part of this Agreement and shall be subject to all terms and conditions of this Agreement. By signing the CSO, Customer represents that it has thoroughly reviewed the Service and accepts the Service and the conditions under which the Service is to be performed. No minimum amount of Service is guaranteed under this CSO. To the extent that terms or conditions of a CSO conflict with terms or conditions of this Agreement, the terms and conditions of this Agreement shall govern unless, and only to the extent, expressly provided otherwise in the CSO, in written language agreed to by both parties.
2. Managed Services. Managed services consist of SN fully managing components labeled as “managed services” in the CSO. Client will not be provided access to switches, routers, firewalls, storage arrays or any other components of the managed service. CUSTOMER is not allowed to access or attempt access through any means to effect serial, console or machine-level management for any such network components. CUSTOMER is also forbidden to monitor ports on the managed service. CUSTOMER is not permitted physical access to any colocation space that houses shared hosting or managed service environments. CUSTOMER is not allowed to re-install or otherwise re-license any licensed operating system or software provided by SN. Any attempt to circumvent this agreement will constitute breach of contract and CUSTOMER shall be fully responsible for the cost involved with any remedy to correct issues with managed environment. SN is not responsible for managing any software or operating systems on any servers provided to CUSTOMER unless specified by CSO. In the event that there are machine or component failures, SN will follow best practices to resolve issues, repair or replace components. The service is bound to component availability, time of day, business/non-business hours and subject to different time periods and cost to deliver necessary components. SN is not bound to replace hardware for new or exact parts however may make use of available comparable replacement service or parts. SN is not required to move or transport existing equipment to alternate locations. SN charges setup fees that are Non Recuring Charges(NRC) as a part of service delivery. The NRC on service orders are based on requirements gathered prior to generating CSOs. SN shall spend a reasonable amount of time and effort to configure and deliver service however, if client changes requirements or counterparty, on behalf of CUSTOMER changes any requirements, SN will bill for time and material in addition to original estimates. SN cannot be held liable for delays caused by third parties upon which it relies to deliver service including but not limited to software vendors, hardware vendors, datacenter management, issues with third party schedulings or lack of cooperation from third party services. CUSTOMER is responsible for all managed services, network configuration, colocation and server hosting fees once they have been made accessible to CUSTOMER. All consulting services over the original estimates will be billed at a time and materials basis calculated based on time spent during project management, configuration and installation of any and all work performed by SN. SN will commence billing for core services regardless of status of third party cross connects, market data or other service CUSTOMER orders in addition to core SN services. SN network does not guarantee any third party VPN service over the Internet.
Payment Terms and Charges. All amounts stated on each monthly invoice for Customer are due and payable immediately upon the date of the invoice, and all applicable non-recurring(“NRCs”) charges are due and payable at the time the applicable CSO is placed, (in each case, the “Due Date”). All CSOs will require an up-front and non-refundable NRC or deposit before additional services are ordered and made available to CUSTOMER. A non-refundable Billing for service shall commence on the date the service is provisioned internally, made available to client or when SN incurs any cost internal or external unless otherwise indicated. Work on CSO will not commence until commercial obligations such as NRC or commercial terms in CSO have been satisfied by CUSTOMER. Billing for Services will commence upon delivery of the contracted Services. Specific billing activation dates will be communicated and confirmed during the implementation process. It is not the obligation of SN to show use of service once services have been provisioned. SN will continue billing Customer regardless of non-use of services. Any amounts not paid when due pursuant to the terms of this Agreement or CCSO shall bear interest at the rate per annum equal to the Prime Rate plus two percent (2%), where Prime Rate means the rate of interest published by The Wall Street Journal as the prime rate in the column entitled “Money Rates”, such rate to change automatically effective with each change in such prime rate. Billing for each service shall commence on the “Billing Commencement Date”, as defined in the applicable service schedule. Except as otherwise set forth in the CSO, (a) monthly recurring charges (“MRCs”) will be billed monthly in advance, (b) varying or usage-based charges will be billed monthly in arrears and (c) installation or other non-recurring charges will be billed upon the billing commencement date. If SN is unable to deliver the services on time due to the delay of Customer or its end users or agents, SN may commence billing as of the date the services would have been ready for delivery but for such delay. SN may, upon 30 days prior notice, modify the payment terms or require a mutually acceptable form of security (e.g., a deposit) if Customer has failed to pay its invoices by the due date or if there has been a material, adverse change in its financial condition, without Customer provision of collateral for continued service. Notwithstanding any other provision to the contrary and not more than once per calendar year, SN may increase the charges applicable to any service provided hereunder in an amount not to exceed the latest annual increase in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average. Such increase shall be effective upon the date set forth in SN written notice thereof to Customer, 30 days prior to effective change. The foregoing charges shall not limit SN ability to increase charges: (I) as set forth in service schedule or (ii) during any automatic renewal term. Customer authorizes SN to acquire from third parties any credit information, Customer Proprietary Network Information hereinafter “CPNI”, or other information necessary for SN to establish Customer’s account and provide and maintain Service. Customer shall furnish such executed “letters of agency” to SN as may be required in connection with Service. CUSTOMER may be responsible for disconnection fees charged to SN by a third party related to the service ordered on behalf of CUSTOMER as a result of any colocation or carrier/cross connect fees levied by building management, service provide or third party service provider. CUSTOMER is responsible for reviewing all invoices in a timely manor and is allowed a time period limited to 3 months to dispute any errors in invoices.
Customer Obligations. All of SN network and the services by Customer and its end users will comply with the “Acceptable Use Policy hereinafter “AUP” which is incorporated to this Agreement and all CCSOs herein by reference. SN may make reasonable changes to the AUP at any time and such change will be deemed effective upon posting to the SN website or other notice to Customer. SN may suspend the services or otherwise restrict access to the network without notice if SN learns of an AUP violation that, does not exhibit reasonable discretion, is unlawful or is likely to cause loss or liability for SN or any party. Any such suspension or restriction will be on the most limited basis as SN determines is reasonably practical under the circumstances in order to address the underlying violation, in an expedient manner in the attempt to prevent further suspension of services or otherwise restricted access to the network. Customer will indemnify, defend and hold SN and its contractors harmless from any and all third party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs or liabilities arising from or related to the use or resale of the Service, including, without limitation, any violation of this section. The AUP can be viewed here: http://www.fcm360.com/acceptable-use-policy/.
Burst Usage; Invoicing. SN will measure Customer’s bandwidth usage in five minute intervals, for each point of connection between the Customers and SN (or its up-stream provider) in two categories: incoming and outgoing. At the end of each billing cycle, all data samples in each category will be sorted from highest to lowest and the top 5% of measurements will be discarded. The highest remaining data sample in the higher of the two categories will then constitute the bandwidth usage level for that particular billing cycle. Burst usage is the amount of bandwidth usage for the particular billing cycle exceeding the Customer’s committed level of bandwidth. SN will allow for 20% burst of the committed data rate within each billing cycle, without a need for additional deposits or security. However, if Customer requires bursts in excess of 20% of committed data rate, within one or more billing cycles, a separate Appendice will be added to the applicable CSO outlining the deposit requirements pertaining to burst in excess of 20% in any one billing cycle. Whilst invoicing for the Customer’s monthly recurring charge, as set forth on any CSO shall be monthly in advance for fixed or committed bandwidth, burstable bandwidth charges will be invoiced in arrears as set forth in the Appendice(s) to the applicable CSO.
Service Level Agreement. SN provides Customer service level guarantees set forth as provided to SN by the various telecommunications carriers, landlords and other service providers.
Insurance. APPLIES ONLY TO COLOCATION CLIENTS. In accordance with the stated insurance requirements Customer will furnish SN with certificates of insurance that evidence the minimum levels of insurance with SN and SN landlord(s) as additional insured (if SN so requests), prior to any use of the Licensed Space at an Data Center (including, but not limited to, delivery of any of Customer’s Equipment to an Data Center). Customer will notify SN of any non-renewal, cancellation, reduction in policy limit or other material change in Customer’s Insurance Coverage in writing within 30 days prior to the effective change and immediately if the effective change results in Customers lack of compliance with the insurance requirements of this Agreement or valid CCSO which is subjects to the requirements of this Agreement. DOES NOT APPLY TO HOSTING AND TELCO ORDERS.
Default and Termination. A “Customer Default” shall occur if Customer (a) fails to make payment as required under this Agreement and such failure remains uncorrected for 24 hours after the Due Date; (b) fails to perform or observe any material term or obligation contained in this Agreement or under any CCSO; (c) uses the Services for any unlawful purpose or in any unlawful manner, or violates Carrier’s Acceptable Use Policy, or (d) SN shall have the right (without any liability, and in its sole discretion) to (a) suspend and/or terminate any or all Services being provided to Customer and/or (b) terminate any or all outstanding CCSOs and/or this Agreement. If the Customer Default materially, adversely affects the carrier’s network (e.g.: Denial of Service Attack), SN may take such actions immediately and without prior notice to Customer. If the Customer Default does not materially, adversely affect the carrier’s network, SN shall provide adequate notice (at least two business days) of SN intentions to suspend and/or terminate service. Such notice may be provided via electronic mail. If this Agreement is terminated because of a Customer Default, such termination shall not reduce or in any other way affect Customer’s remaining minimum monthly commitments required under any CSO. SN shall at all times be entitled to all rights available to it at law and in equity; and, Customer agrees to pay SN reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of SN rights in the event of a Customer Default.
Taxes. If any taxes, fees, surcharges, or other charges or impositions are asserted against SN as a result of Customer’s use of Services by any local, state, national, international, public or quasi-public governmental entity or foreign government or its political subdivision, Customer shall pay such taxes or charges and indemnify SN from any liability or expense incurred by SN in connection with such taxes or charges.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, SN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF ERROR-FREE OR UNINTERRUPTED USE.
Limitation of Liability. SN shall not be responsible for any liabilities caused by (i) any acts of negligence by Customer or any third party; (ii) any act by Customer in violation of Customer’s obligations under this Agreement; (iii) any use of the Services by Customer for which it is not designed or intended; (iv) any modification, addition or alteration to the Services; and (v) any casualty event out of the control of SN.
Compliance with Law. Use of the Services by Customer or any person accessing Services provided Customer shall be in accordance, and comply, with all applicable laws, regulations and rules. Customer shall obtain all approvals, consents and authorizations necessary or advisable to conduct its business and initiate or conduct any transmissions over any facilities covered by this Agreement.
Indemnity. (a) Customer and SN shall defend, indemnify and hold harmless the other from and against any and all claims for damage to tangible property or bodily injury, including claims for wrongful death, to the extent that such claim arises out of the gross negligence or willful misconduct of the respective indemnifying party, its employees, agents or contractors in connection with this Agreement. (b) Customer will defend, indemnify and hold harmless SN and its officers, directors, members, stockholders, employees, contractors and agents from and against any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation, all reasonable costs and expenses incurred including all reasonable litigation costs and attorneys’ fees arising out of, resulting from or based upon any complaint, claim, action, proceeding or suit of any third party based upon (i) an alleged defect in or failure of Service, (ii) failure to obtain approval, consent or authorization, or (iii) Customer’s violation of any applicable law; rule or regulation.
Force Majeure. SN may adjust or suspend its performance to the extent performance is beyond SN reasonable control for reasons including, without limitation, Acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut, governmental action, or national emergencies, war, riot, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts.
Proprietary Information. Unless compelled by a court of law, the terms and conditions of this Agreement, any CCSO, and all documents referenced herein including invoices are confidential and shall not be disclosed without prior written consent of SN.
Regulatory Matters. Customer acknowledges that the Services will be subject to the laws and regulations of multiple jurisdictions. SN may cancel or suspend any Service immediately with notice to Customer if provision of that Service, or any portion thereof, is determined to be a violation of any applicable law, rule or regulation.
Choice of Law/Venue. Any disputes concerning this Agreement shall be governed by and determined under New York law. Exclusive venue for any disputes arising under this Agreement shall be in New York.
Miscellaneous. (a) Customer shall not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of SN. Such consent shall not be unreasonably withheld and, to the extent otherwise permissible, SN shall provide Customer the option of assignment of this Agreement directly to the upstream carrier in the event that SN is unable to continue managing the Services; (b) No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this Agreement; (c) The provisions of this Agreement are for the benefit only of the parties hereto, and no third party may seek to enforce or benefit from these provisions; (d) If any term or provision of this Agreement shall be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then Agreement shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its original intent as agreed by all parties; and the remainder of this Agreement shall be valid and enforceable; (e) The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision; (f) Sections 3, 6, 7, 8, 9, 11, 13 and 15 shall survive any termination of this Agreement; (g) This Agreement, appurtenant schedules and CCSOs constitutes the complete and exclusive statement of the understanding between the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to the content of this Agreement and the provision of the Services; (h) Captions and paragraph headings are used merely for reference purposes and do not affect and shall not be interpretative of the context in any manner; (i) This Agreement may be signed in counterparts, each of which when executed, shall be deemed an original, and all such counterparts shall constitute one and the same instrument.
NON DISCLOSURE AGREEMENT. CUSTOMER will under no circumstance share terms of MSA, pricing, quotations or CUSTOMER SERVICE ORDERS(CSO) to any third party including but not limited to: 1) Third-party vendors, 2) Third-party trading firms, 3) Third-party software development companies.
Customer agrees to allow Secure Network USA, LLC to perform a credit check against Customer business entity or personal individual before approving account status.
The Customer agrees to allow Secure Network USA, LLC to represent its name as a customer on marketing and sales materials including websites.