Data Center Facility Agreement

DATA CENTER FACILITY AGREEMENT

PARTIES

RECITALS

WHEREAS, Provider operates a secure data center facility located at (the facility) and offers space, power, cooling and related services to third parties; and

WHEREAS, Client desires to obtain from Provider certain colocation, rack, cage, and support services as set forth in this Agreement and Provider agrees to provide such services under the terms and conditions herein.

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the parties agree as follows:

SCOPE OF WORK

Provider shall furnish Client with the data center services described below (collectively, the Services). Provider shall provide space, conditioned power, network cross-connects, remote hands (as specified), physical security, environmental monitoring, and other ancillary services necessary for Client's operation of equipment at the Facility. The Services to be provided, the number of racks or cabinets, and specific equipment locations will be as set forth and detailed by the parties in writing.

SERVICE LEVEL AND OPERATIONS

Provider shall use commercially reasonable efforts to maintain the Facility environment, power, cooling and network infrastructure to support the Services. Provider warrants an annualized uptime target of . In the event Provider fails to meet the uptime target, Client's sole and exclusive remedy shall be service credits as set forth below.

PAYMENT TERMS

Client shall pay Provider the fees for Services as set forth below. Fees are due in accordance with the Payment Schedule. All fees are non-refundable except as expressly provided in this Agreement.

Late payments shall accrue interest at the lesser of (a) the maximum rate permitted by applicable law or (b) . In addition, a late payment administrative fee of may be charged for each late invoice.

TERM AND TERMINATION

This Agreement shall commence on and shall continue until (the Term), unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for convenience upon days' prior written notice. Either party may terminate immediately for material breach if the breaching party fails to cure such breach within thirty (30) days after receipt of written notice, or immediately for breach of confidentiality or material security obligations.

CONFIDENTIALITY

Each party acknowledges that during the Term it will have access to Confidential Information of the other. "Confidential Information" means non-public information disclosed in any form that is designated confidential or that reasonably should be understood to be confidential given the nature of the information. Each receiving party shall (a) use Confidential Information solely to perform its obligations hereunder, (b) restrict disclosure to employees, agents and subcontractors having a need to know and subject to confidentiality obligations at least as protective as those herein, and (c) not disclose Confidential Information to any third party without prior written consent, except as required by law. Confidentiality obligations survive termination for a period of five (5) years, except trade secrets shall be protected for so long as they remain trade secrets.

INSURANCE AND INDEMNITY

Provider shall maintain commercially reasonable insurance for the Facility operations, including general liability, property damage and cyber/security insurance. Client shall maintain insurance covering Client equipment and operations at the Facility. Each party shall indemnify, defend and hold harmless the other from third party claims arising from the indemnifying party's negligence or willful misconduct, subject to customary limitations and exclusions set forth in this Agreement.

ACCESS, SECURITY, AND COMPLIANCE

Client shall comply with Provider's access policies and security protocols. Provider shall control physical access, badge issuance, and maintain surveillance and environmental controls. Client is responsible for ensuring its use of the Facility and any hosted equipment complies with applicable laws and industry standards.

LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY, OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE. THE AGGREGATE LIABILITY OF PROVIDER FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO PROVIDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its conflicts of law principles. Any dispute arising out of or relating to this Agreement shall be resolved in the courts located in the foregoing state unless the parties agree in writing to arbitration.

ENTIRE AGREEMENT

This Agreement, together with any exhibits, statements of work, rate cards, purchase orders and written amendments signed by both parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, representations and understandings, whether written or oral. No amendment or waiver shall be effective unless in writing and signed by authorized representatives of both parties.

MISCELLANEOUS

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except that Provider may assign to an affiliate or in connection with a sale of substantially all of Provider's assets.

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