In addition to the General Terms and Conditions, your use of the Managed Collocation Services is subject to the following additional terms and conditions:
1. ADDITIONAL DEFINED TERMS
Some words used in these Managed Collocation Services Terms and Conditions have particular meanings:
“Hosting Services” means ClearData’s provision for your use of the Hosted System described in a Service Description.
“Personally Identifiable Information” or “PII” means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
“Service Commencement Date” means the date on which we provide the access codes that enable you to send and receive information from your Hosted System.
“Support”means: (i) availability of live support twenty four hours per day, seven days per week, year round; (ii) any specific support services described in a Service Description; and (iii) use of the ClearData customer portal. “Support” does not include support for any managed backup services you elect to purchase.
2. DEPLOYMENT
2.1 Deployment Guaranty. We will deploy the server(s) described in the Service Description by the date stated in the Service Description, provided that you promptly provide all information that we reasonably request from you to complete deployment. Servers are deemed deployed as of the time that ClearData generates an email message to you that includes the information needed to allow you to transfer information to and from the server(s). Your sole and exclusive remedy for our failure to deploy the servers by the guarantied time shall be a credit equal to the amount of the set up fee stated in the Service Description for the affected server(s). You are not entitled to a credit if you request or cause the deployment delay. This deployment guaranty does not apply to any software, other managed services, or hardware devices other than the server(s).
2.2 Delayed Deployment. If you wish to delay the deployment of a Hosted System you may do so, provided that you give us written notice of your election to delay no later than five (5) days following the date you sign the Agreement. The requested delay may not continue for more than two (2) months following your signature on the Agreement. If you request a delay in deployment, we may charge you up to fifty percent (50%) of the monthly recurring fees for the Hosted System during the period of delay. You are not entitled to a credit under Subsection 2.1 above if you request the deployment delay. The initial term of the Agreement will begin when we deploy your Hosted System at your request, or on the second monthly anniversary of the date you sign the Agreement, whichever comes first. Following deployment we will charge you the full monthly recurring fee (plus other usage fees as applicable) for the full term of the Agreement.
3. ENCRYPTION OF PERSONALLY IDENTIFIABLE INFORMATION
The General Terms and Conditions require you to use reasonable security precautions in light of your use of the Services. For Hosting Services, this includes encrypting any PII transmitted to or from, or stored on, the ClearData servers or storage devices you use.
4. ADMINISTRATION OF HOSTED SYSTEM
Except as otherwise specifically agreed in writing, you are responsible for administering all aspects of your Hosted System, including application and virtualization licensing, the operating system, any firewalls or load balancers, DNS, intrusion detection systems, backups, monitoring and customer-administered storage solutions. We will be available to assist you with certain Supplementary Services included in ClearData’s spheres of support for Managed Collocation on an hourly fee basis at your request.
5. MONITORING SERVICES
If ClearData has agreed to provide monitoring services, then notification of a monitoring alert will be communicated via support ticket to the email addresses associated with the customer contacts that have access to that device in your ClearData portal. ClearData is not responsible for notifying you by any alternative method if the affected server is the server that you use to receive email notifications.
6. SERVICE LEVEL GUARANTIES
6.1 Network. We guaranty that our data center network will be available 100% of the time in a given month, excluding scheduled maintenance. The data center network means the portion of the ClearData network extending from the outbound port on your edge device to the outbound port of the data center border router and includes ClearData managed switches, routers, cabling. We will credit your account 5% of the monthly fee for each 30 minutes of network downtime, up to 100% of your monthly fee for the affected server.
6.2 Infrastructure. We guaranty that data center HVAC and power will be functioning 100% of the time in a given month, excluding scheduled maintenance. Power includes UPSs, PDUs and cabling, but does not include the power supplies on your servers. Infrastructure downtime exists when a particular server is shut down due to power or heat problems. ClearData will credit your account 5% of the monthly fee for each 30 minutes of infrastructure downtime, up to 100% of your monthly fee for the affected server(s).
6.3 Hardware. We guaranty the functioning of the following dedicated, ClearData-provided hardware: (i) servers, firewalls, and load balancers; (ii) attached storage devices; (iii) network attached storage devices, and (iv) storage area networks and replication appliances. Hardware repair or replacement is guaranteed to be complete within five (5) hours of problem identification for network attached storage devices, and within one (1) hour of problem identification for servers, firewalls, load balancers, and attached storage devices. For SAN and replication appliance hardware failures, we guaranty that we will have a technical specialist and necessary parts onsite to begin repairs within six (6) hours of problem identification. We will credit your account 5% of the monthly fee per additional hour of downtime (after the initial five (5) hours or one (1) hour for repair or replacement, as applicable or, for SANs and replication appliances, additional hour of delay in beginning repairs), up to 100% of your monthly fee for the affected hardware. This guaranty excludes the time required to rebuild your system, such as the time required to configure a replacement device, rebuild a RAID array, reconfigure devices from their default settings, and reload operating systems and applications.
6.4 Downtime Measurement. Downtime is measured from the time a trouble ticket is opened until network availability is restored, or the affected device is powered back on, as applicable.
6.5 Limitations. ClearData may need logical access to your Hosted System to meet certain of the Service Level Guaranties; no credit will be due if the credit would not have accrued but for your delay in providing, or refusal to provide, logical access to your Hosted System. You are not entitled to a credit if the event giving rise to the credit would not have occurred but for your breach of the Agreement or misuse or improper administration of your Hosted System. You are not entitled to a credit if you are in breach of the Agreement (including your payment obligations to us) at the time of the occurrence of the event giving rise to the credit until you have cured the breach. To receive a credit, you must contact your account manager within ten (10) days of the occurrence of the event giving rise to the credit.
6.6 Cumulative Dollar Amount. Notwithstanding anything in this Agreement to the contrary, the maximum total credit for any calendar month for failure to meet Service Level Guaranties under this Agreement shall not exceed 100% of your monthly recurring fee for the affected Hosted System. Credits that would be available but for this limitation will not be carried forward to future months.
7. TERM
The initial term of the Agreement begins on the Service Commencement Date (unless otherwise provided in Section 2.2 (Delayed Deployment) and continues for the period stated in the Service Description. Upon expiration of the initial term, we may offer you the option of renewing the Agreement for one or more additional terms having a fixed number of months. If you do not renew the Agreement for a fixed term, it will automatically renew for successive extended terms of three months each unless and until one of us provides the other with notice of non-renewal at least ninety (90) days in advance of the expiration of the initial term or then current extended term, as applicable. If you add service elements to a Hosted System by a subsequent agreement, we may use the word “coterminous” to describe the initial term of the subsequent agreement for those additional elements. If the term of an agreement is “coterminous,” the initial term of that agreement shall expire on the last day of the initial term of the agreement that initially established the Hosted System.
8. FEES
8.1 Your first invoice will include the initial one-time set-up fee and a pro-rated monthly recurring fee from the Service Commencement Date to the last day of the calendar month. We may require you to pay this initial invoice before beginning the Hosting Services. Following the Service Commencement Date, monthly recurring fees will be billed monthly in advance on or around the first day of each calendar month. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears.
8.2 Fees are due within five (5) days of invoice date. If you have arranged for payment by credit card or ACH, ClearData may charge your card or account on or after the invoice date. ClearData may suspend all Services and other services provided pursuant to any unrelated Service Description or other agreement we may have with you if payment of any invoiced amount is overdue, and you do not pay the overdue amount within four Business Days of our written notice to your billing contact. You agree that if your Service is reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. ClearData may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty days and ClearData brings a legal action to collect, you must also pay ClearData’s costs of collection, including reasonable attorney fees and court costs. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.
9. FEE INCREASES
9.1 Increase in Producer Price Index. If during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Service Description, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees under this Subsection more often than once per twelve (12) months, and we must give you at least thirty (30) days advance written notice of the increase. The “Producer Price Index” means the Producer Price Index for Finished Goods, WPUSOP3000, not seasonally adjusted, and first published as “preliminary” data by the United States Bureau of Labor Statistics in its PPI Detailed Report or successor publication. For historical information on the Producer Price Index you may visit the Bureau of Labor Statistics website. (Example: if the Producer Price Index for the month in which you sign the Service Description is 186, and then increases in a subsequent month during the term of the Service Description to 195, we may increase your fees by up to 4.8%).
9.2 Increase During Extended Term. If following the expiration of the initial term or any renewal term you do not sign a renewal of your Service Description but continue to use your Services for successive three month terms as described in Section 5 (Term) above, then we may increase your fees at any time by any amount, in our sole discretion, on ninety days advance written notice.
10. TERMINATION FOR CONVENIENCE
You may terminate this Agreement for convenience at any time on ninety (90) days advance written notice.
11. EARLY TERMINATION FEE
If you terminate this Agreement for convenience or we terminate this Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term. You will not be charged an early termination fee under this Section in the event you terminate this Agreement as part of an agreement to establish a replacement for the Hosted System in a different ClearData service segment, even if the overall fees for the replacement system are less than those for the Hosted System, provided that the replacement system is the functional equivalent of the Hosted System.
12. RESALE
You may not resell the Hosting Services without ClearData’s prior written consent.
13. MANAGED BACKUP
13.1 Access and Specifications. You must provide ClearData with root access to servers for which you have purchased managed backup services, and must permit ClearData to access your servers as necessary to support and maintain the backup services, including via special agent application users if necessary. You acknowledge that you may be required to configure and maintain your operating system and applications to certain specifications for the backup agents to function properly. We recommend that you test your managed backup service promptly following the Service Commencement Date, and following any change to your OS or application configuration, to determine if it is capturing your data properly.
In the event your primary server or device hardware fails and is replaced, we may not be able to restore your backed up data exactly as it was configured on the failed device. If this risk is not acceptable to you, then we will help you identify other data backup solutions that are more reliable in this situation.
13.2 Support. Support for the managed backup services is not included with the fees for the managed backup services, but is available on an hourly fee basis as a Supplementary Service during Business Hours.
13.3 Disproportionate Use of Shared Resources. We may suspend or terminate your managed backup service on written notice if ClearData’s other customers who are served by the same infrastructure are adversely impacted by the service we are providing to you, regardless of the reason. You will not be required to pay for the managed backup services during any suspension or following a termination unless the adverse impact resulted from your breach of the Agreement. Your data will not be backed up during any period of suspension or following termination unless you have made other arrangements.
13.4 Retention/Restoration. ClearData’s managed backup services are designed to facilitate restoration of data to the server or device from which the data originated in the event the primary data is lost or corrupted. Database duplications or “cloning” for purposes other than a restoration of lost or corrupted data as described in this paragraph are not included as part of your managed backup service, but may be arranged as a Supplementary Service for an hourly fee. The “retention” period for your backup refers to the amount of time that we will retain the backup in a useable form for restoration to the server or device from which it originated. If you wish to preserve your backup after the time that this server or device is decommissioned, you must make arrangements with us at least seventy-two hours in advance of the scheduled decommissioning of the server or device.
13.5 Other. We may choose to use either tape or disk to collect your data, in our discretion. Provided that we do not impair the security or reliability of your backup service, you agree that we may from time to time test our backup systems, and may use copies of your data as part of these tests. We will treat duplicate data in accordance with the same security standards applicable to your backup service.
14. HIPAA
If ClearData is your “Business Associate” as defined in the Health Insurance Portability and Accountability Act of 1996, as amended, then the HIPAA Business Associate Agreement Addendum, as of the date that we become your Business Associate, is part of this Agreement.
15. DATA REPLICATION
If you purchase any Services that involve data replication at a geographically diverse site (such as our DNAS based data replication Services), then the following applies to your use of that Service:The rate by which the data at the primary site can be transferred to the secondary site will vary depending on the amount and type of data, constraints inherent in your Hosted System, and fluctuations in bandwidth availability. Therefore, at any given time, the secondary site may not be completely up to date.In the event of a failover to the secondary site, the data that has not yet completed the transfer from the primary site will be lost.We may provide you with some guidelines on latency times based on our understanding of your data and system constraints, but these guidelines are not guaranties.
16. COLLOCATION
If we host a device that you own in our datacenter, then the Collocation Addendum, as of the date you sign the order or agreement, covering the collocation services is part of the Agreement.
17. VULNERABILITY TESTING
Vulnerability testing services involve inherent risks, such as data corruption, and impaired performance of your Hosted System.If you ask ClearData to provide vulnerability testing services, then you agree that ClearData is not liable to you for any damages arising from the performance of the Services as agreed.
18. UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES
If you ask us to implement a configuration element (hardware or software) or hosting service in a manner that is not customary at ClearData, or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “one-off,” “EOL,” “end of support,” or with like term in the Service Description (referred to in this Section as an ” Unsupported Service “). ClearData makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that ClearData will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Guaranties will not apply to the Unsupported Service, or any other aspect of the Hosting Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with ClearData’s other services, such as backup and monitoring.
19. IP ADDRESSSES
Upon termination of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Services (but not any URL or top level domain or domain name) and you agree that we may take steps to change or remove any such IP addresses.
This Managed Collocation Services Terms and Conditions constitutes the final agreement between you and ClearData regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
