Definitions
“Contract” means the Terms and Conditions, Service Order and terms and conditions in this Master Services Agreement (“MSA”);
“Customer Equipment” means telecommunications and server equipment owned or controlled by The Customer which is housed or installed in the Facility as set out the Service Order;
“Customer Rights” means the right on a nonexclusive basis to install, inspect, operate, repair and maintain the Customer Equipment in the Facility
;“Asporea Hosting Equipment” means equipment owned or controlled by Asporea Hosting in the Facility;
“Facility” means the facility specified in the Service Order;
“Services” This MSA is for the supply of Data Centre Space to be provided to The Customer as set out in the Service Order. It will apply to the first and any subsequent Service Orders executed by Asporea Hosting and The Customer.“Parties” T
his MSA applies between Asporea Hosting and The Customer identified in a Data Centre Space Services Order (“Customer”).
Contract Term
The Contract shall commence on the date of signing the Service Order. The Services shall commence on the Service Commencement Date as specified in the Service Order and shall, unless terminated earlier in accordance with the terms of this Contract, continue in full force and effect for the Term set out in the Service Order.This Agreement and the license granted herein shall each automatically renew for successive terms equal to the initial term unless cancelled by either party in writing at least ninety (90) days after the expiration of the initial term. This agreement is valid for a 12-month term for services that are automatically renewed every 12 months in perpetuity subject to written cancellation via your account manager or a help desk ticket or email sent to [email protected] (email subject to valid proof of account ownership). Asporea Hosting is not able to schedule cancellation requests for more than two months in advance.
Superior Rights
The Contract is made subject to the terms and conditions of any underlying agreements, leases, licenses and real property or other superior rights relating to the Facility and any equipment housed in the Facility. In particular, the Contract is subject to The Customer’s agreement with Asporea Hosting governing Asporea Hosting’s access to and use of the Facility.The Customer Rights under the Contract are conditional upon the owner of the Facility and/or Asporea Hosting giving and continuing its consent, if required, to the grant and continuation of the Customer Rights under this Contract and the Customer Rights and the Contract shall automatically terminate should we cease to have any rights to use the Facility.Nothing in this Master Services Agreement (“MSA”) gives The Customer any right of tenancy, nor does it confer upon The Customer any right or interest in the land by way of occupation rights, licence, easement, rights of way or otherwise except expressly provided in this MSA.The Customer acknowledges that Asporea Hosting, at its sole discretion, may add to, delete, modify or amend the rules and regulations from time to time. A copy of the new rules and regulations will be given to The Customer by fax, email, regular mail or personal delivery.Nothing in this MSA prohibits Asporea Hosting from selling or otherwise transferring its interest in the Asporea Hosting Facility.
Supply of Services
Prerequisites to supply of the Service
The Customer has signed or will sign a Service Order for Data Centre Space and this Master Services Agreement (“MSA”).
This MSA shall be incorporated in and form part of each Contract between the parties for the supply of Data Centre Space and contains the terms and conditions specifically relating to the Data Centre Space.
The Customer will request for Services by executing a Service Order which will only be effective when accepted by Asporea Hosting and which will be governed by the terms and conditions of this MSA.
Asporea Hosting agrees to supply the Services specified in the Service Order which includes granting you the Customer Rights.
Asporea Hosting agrees to provide The Customer with the following Colocation Services:
Colocation Space – Asporea Hosting will provide the Customer with the specified quantity of server cabinets with the services ordered in the Service Order in a conditioned environment with controlled access for operation on a shared, now-all basis, including UPS electricity, generator backed electricity and air conditioning capable of maintaining proper operating temperature.
Equipment space is located in the building located at [redacted] in the area shown in Exhibit A (“Equipment Space”) and is provided for the installation, operation, repair, replacement and removal of Customer communications equipment (“Equipment”).
The Customer may add Equipment to the Equipment Space after the parties have signed the Master Services Agreement (“MSA”) to this Agreement.Cross Connects Asporea Hosting will provide a cross-connection from the Equipment Space to Customer’s choice of carriers via the communications cabinets located in the Building’s meetme rooms. Cabling from the Equipment Space to the cross‑connect panel and connections at the cross‑connect panel shall be provided by Asporea Hosting and its personnel only at a one-off setup fee.
Asporea Hosting shall:
Provide to the Customer the Data Centre Space in accordance with applicable laws and on the terms and conditions contained in this MSA and the Contract;Take reasonable care not to damage or interfere with any Customer Equipment and not unreasonably interfere with the Customer’s use of and access to the Data Centre Space;Maintain and keep the Data Centre Space in good and safe condition and repair.
Asporea Hosting is free to grant additional licenses to other customers for the use of space in the Facility that is not allocated to The Customer and to enter and pass through the Facility provided that such access does not unreasonably interfere with The Customer’s use of the Facility.Asporea Hosting will endeavour to give as much notice as reasonably practicable of any suspension of the Services or scheduled outage and will use reasonable endeavours to minimise any disruption and/or suspension of the Services.Asporea Hosting may suspend part or all of the Services immediately where:
Asporea Hosting is required to undertake the repair, maintenance or service of any part of the facilities or equipment owned or operated by Asporea Hosting relevant to the provision of the Services (or an interconnected supplier is required to undertake such work on its network);It is reasonably required to reduce or prevent fraud, illegality or interference within the Asporea Hosting network or other third party networks;Asporea Hosting is required to comply with an order, instruction or request of or by a government or regulatory authority, the ACMA, emergency services or other competent authority; or Asporea Hosting has provided seven (7) days’ notice and The Customer has not rectified the failure to pay any charges (except charges in respect of which there exists a valid dispute) due to Asporea Hosting pursuant to the Contract, and any suspension so occurring will be without prejudice to Asporea Hosting’s rights to terminate the supply of the Services for breach of the Contact. If Asporea Hosting suspends the Services, The Customer must continue to pay for the Services notwithstanding their suspension.
Colocation Remote Hands Support
A ‘Remote Hands Support’ service is provided at the discretion of Asporea Hosting. Such support is limited to the execution of the customer’s precise instructions for the removal/replacement of hardware components. Asporea Hosting reserves the right to refuse to provide such ‘Remote Hands’ at its discretion.
Asporea Hosting is not responsible for any damages caused to hardware, loss of data or loss of service as a result of the ‘Remote Hands’. This service is offered as a courtesy and with no warranty or responsibilities.
Access
The Customer shall have reasonable access to the Facility for the purpose of utilising the Customer Rights, on the following basis:
Asporea Hosting shall grant The Customer reasonable access to the premise of Customer’s server 24 hours a day, seven days a week, 365 days a year, given The Customer does not have any past due invoices. The first name, last name, and date of birth listed within The Customer’s Core profile MUST match their government-issued ID, license, or passport. If there is no match, Facility access will be refused.If you can not attend the premises and require someone to do so on your behalf you must notify Asporea Hosting of your representative and their qualifications must be pre vetted; your representative must be met by a security guard and pass security and identity checks; and the security guard will escort your representative at all times whilst accessing the Facility.Additional charges apply on an hourly rate at Asporea Hosting’s standard rates for after-hours and emergency access.The Customer and all authorised Customer representatives must provide a signed acknowledgement of Asporea Hosting security policy.
Unescorted
If expressly agreed in any Service Order The Customer shall be entitled to 24-hour unescorted access to the Facility. In such a case, The Customer shall comply with the unescorted access protocol.The Customer and all Customer representatives will follow Asporea Hosting’s Safety and Security Policy, which includes but is not limited to these rules:
Asporea Hosting security access card (badge) must be worn while on Asporea Hosting premises. The Asporea Hosting security badge must be clearly visible, picture side out. Security badges cannot be loaned to others and access will not be granted to non employees who arrive without a badge.
When accessing the Facility, badges must be used to enter and to exit. In the future, a finger bioscan will also be required to enter.Security badges are the property of Asporea Hosting and must be surrendered when requested by an authorised Asporea Hosting employee.
These rules are subject to change at any time on reasonable notice, which may include immediate notice, in the sole discretion of Asporea Hosting.
We authorise The Customer to pass through the Facility by routes approved by Asporea Hosting to access the Facility solely for the purpose of utilising the Customer Rights.
Customer Equipment and Data
The Customer must, at their expense;
Deliver the Customer Equipment in the Customer Area;Test the Customer Equipment from time to time to ensure that the Customer Equipment is used in compliance with all applicable manufacturer’s specifications;Ensure that it has an adequate backup for all data, information and software stored on or served by the Customer Equipment;
Maintain the Customer Equipment in good working condition for the Term;
Not connect or attempt to connect the Customer Equipment to any network, equipment or facilities except as directed by Asporea Hosting;
The Customer is solely responsible for the transmission and reception of communications signals by the Customer Equipment and the quality of and/or defects in such signals, and Asporea Hosting has no responsibility for it.The Customer must ensure that the Customer Equipment does not damage or interfere with any other party’s equipment, facilities or network.The Customer uses the facility at their own risk and Asporea Hosting is not liable for backups or data loss on Customer Equipment.
Asporea Hosting is not responsible for the operation or maintenance of any Customer equipment and such equipment at all times remains at the risk of the Customer and Asporea Hosting will not assume any responsibility for the safety or security of such equipment.Asporea Hosting is not responsible for the loss of power, connectivity or any other issue with the running of the Customer Equipment which is caused by events out of our control.
Our Facilities and Equipment
All rights, title and interest in and to any facilities or equipment provided or operated by Asporea Hosting will, unless otherwise agreed in any Contract, remain exclusively with Asporea Hosting and The Customer will not obtain any right, title or interest (including any lien in or over such facilities or equipment).
Asporea Hosting reserves the right to enter and pass through the Data Centre Space with or without equipment provided that such access does not unreasonably interfere with the use of the Data Centre Space by The Customer.
Asporea Hosting will maintain Asporea Hosting’s facilities and equipment required to deliver the Service.
The Customer and all customer representatives must keep safe and secure and must take all reasonable care within the Asporea Hosting facility.
The Customer must not (and must not permit any third party) without Asporea Hosting prior written consent to handle, rearrange, disconnect, remove, attempt to repair or otherwise deal with any of Asporea Hosting or any third party’s facilities or equipment located in the Facility.
Equipment provided or installed at the Facility by Asporea Hosting for use in connection with the Services must not be used for any purpose other than that for which it was provided by Asporea Hosting.
Asporea Hosting may remove our equipment from the Facility for repair, replacement or for other purposes Asporea Hosting may determine as reasonably necessary or desirable.
Customer Obligations
The Customer and Customer representatives shall:
Ensure that space utilised is minimised when installing, operating and maintaining Customer Equipment;
Ensure that their space is kept clean and tidy and that no flammable materials are left or kept in the Facility;
Comply with Asporea Hosting’s reasonable requests regarding cleaning of The Customer’s allocated space and disposal of waste;
Immediately inform Asporea Hosting in writing of any damage to the equipment or facilities of third parties, or the Facility (including any equipment and cabling) as soon as becoming aware of it;
Ensure that no Customer Equipment shall exceed the floor loading limits of the Facility;
Before ordering the Services satisfy themselves as to the adequacy of the Facility, their space in the Facility, power supply, ventilation and levels of electromagnetic emission;
By ordering the Services, the Customer acknowledges that all facets of the Facility have been inspected and accepts the space “as is” and agrees that Asporea Hosting is under no obligation to perform any work or to provide any services or materials to prepare the same for Customer unless specifically agreed in writing.Upon request by Asporea Hosting remove from the Facility equipment that:
Is not Customer Equipment approved by Asporea Hosting;Interferes with the equipment of Asporea Hosting or third parties in the Facility;
Interferes with the safety, structural integrity or operation of the Facility; emits unacceptable levels of electromagnetic emissions.
Customer Restrictions
The Customer shall not:
Directly interconnect its equipment to the collocated equipment of any carrier or other party at the Facility without Asporea Hosting written consent and the consent of the relevant equipment owner.
Cross-connection setup charges may apply to such interconnections;
Obtain or attempt to obtain the passwords of others, make unauthorised attempts to access Asporea Hosting’s Equipment Room or systems and networks of others or to circumvent the security procedures established by Asporea Hosting, attempt to disable or interfere with the use or operation of Asporea Hosting’s Network Operations Center or the systems and networks of others.
Do anything in or around the Facility that, in Asporea Hosting’s opinion or the opinion of any party with superior rights, is noxious, offensive or a nuisance;
Use the Facility for any purpose other than exercise of the Customer’s Rights;
Damage the Facility or any equipment located therein;Except as expressly permitted by Asporea Hosting, install fixtures or fittings in the Facility;Permit any third party (other than its authorised employees, representatives or contractors who have Asporea Hosting approval) to access the Facility; or
Do any act or thing that causes Asporea Hosting to be in breach of any regulatory approval, consent, licence or regulation held or required to be held by Asporea Hosting.
Bring food, beverages, or any flammable material into the Facility.
The Customer must ensure that the Customer Equipment does not:
Exceed their power allocation at any time; or
Exceed 90% of their power allocation for more than one (1) hour in any twentyfour (24) hour period.
If The Customer breaches clause 9.2, Asporea Hosting will:
Provide written notice of the breach; and
If Asporea Hosting have previously provided written notice pursuant to clause increase The Customer’s power allocation at their cost.
Fees
The Customer shall pay to Asporea Hosting the fees set out in the Service Order with such fees to be invoiced on the frequency, and payable on the terms set out in the Service Order.On or before The Customer’s billing date of each and every month during the Term hereof (each, a “Due Date”),
The Customer agrees to and shall pay the Fees to Asporea Hosting, in advance, for the Services to be rendered by Asporea Hosting to Customer during the said month, without offset, deduction or credit of any kind and in good and drawable funds. If The Customer fails to pay the Fees to Asporea Hosting by the Due Date of any month during the Term hereof for two (2) consecutive months, on the next late payment, The Customer will be assessed an administrative charge in the amount which is equal to five (5%) of the overdue Fees (“Administrative Charge”);
in addition, Asporea Hosting may charge interest on all due but unpaid Fees at 1.5% per month (“Default Interest”) until paid in full. The Customer agrees to and shall pay to Asporea Hosting for all costs of collection of the Fees, Default Interest and Administrative Charges.
The Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of this Agreement. If The Customer requests that Asporea Hosting provide services not specifically set forth herein and Asporea Hosting agrees to provide such services, The Customer agrees to pay Asporea Hosting’s standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service.
Asporea Hosting may suspend any or all Services to The Customer if payment for any Service is overdue by sixty (60) days. A “Reinstatement Fee” equal to two hundred dollars ($200.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated.
If a Fee is disputed in good faith by The Customer then the parties shall work together in good faith to resolve the dispute. Notwithstanding any other term in this Agreement, The Customer may suspend the payment of all disputed amounts until the dispute is resolved and all of Asporea Hosting’s obligations shall continue unabated until dispute resolution.
Fees not disputed within sixty (60) days of due date are conclusively deemed accurate.Fees Required to Begin Service On the date of account signup, The Customer agrees to and shall pay to Asporea Hosting that amount which is equal to the sum of (a) the cost to install the racks, cabinets, cages, custom space, electrical circuits, fibre optic connections, cable, panels and other items necessary for the Equipment to function in the Space (“Expense Component”) as per any customisations specified in the Service Order.
The Expense Component is not refundable to The Customer, and shall be deemed earned by Asporea Hosting upon receipt.Asporea Hosting shall have the right to increase the Fees: (a) after twelve (12) months of consecutive service in proportion to increases in the Consumer Price Index (CPI) applicable to the geographic area where the Building is located, plus two per cent (2%), provided however, that Asporea Hosting provided The Customer with sixty (60) days prior written notice of such increase in fees. The Customer may purchase additional Services offered by Asporea Hosting from time to time on terms and conditions mutually agreed to in writing.
Asporea Hosting agrees to provide the Services in accordance with and pursuant to the terms and conditions set forth in this Agreement.In the event of an electricity price increase due to market fluctuations or other circumstances, Asporea Hosting will pass this increase onto the customer at a value equal to but no more than the cost price billed to Asporea Hosting via our energy supplier.It shall be considered a default of this Agreement if any one or more of the following events occurs:
Bankruptcy
The filing of bankruptcy by a party or making a general assignment for the benefit of creditors;Violation of Law A party violates any applicable laws, statutes, ordinances, codes or other legal requirements with respect to services specified in the Contract and such violation(s) are not remedied within fourteen (14) days after written notice thereof; or
Non Performance
A party fails to perform its obligations under this Agreement and such nonperformance is not remedied within fourteen (14) days after notice thereof.Fees If The Customer shall default in the payment of any Fees or other sum or money due to Asporea Hosting hereunder and such default shall continue for a period of seven (7) days after receipt of written notification by Asporea Hosting to The Customer of such default.
Remedies and Effect of Termination
Remedies Upon or after the occurrence of a default as described above, the non-defaulting party may elect to terminate this Agreement and may pursue any other damages to which the non-defaulting party may be entitled at law or in equity.Removal of Equipment At the expiration or earlier termination of this Agreement (“Termination Date”), The Customer shall remove its Equipment and personal property from the Building. Any property not so removed within sixty (60) days after the Termination Date may, at Asporea Hosting’s sole option, (i) be removed and stored or disposed of by Asporea Hosting at Customer’s expense; or (ii) become the property of Asporea Hosting without compensation to Customer.
Limitation of Liability
The Customer shall indemnify and hold Asporea Hosting, its principals, officers, directors, agents and employees harmless from and against any loss, cost, damage and expense of whatever kind arising directly or indirectly from the construction, installation, operation, maintenance, repair, and removal of The Customer’s Equipment or from The Customer’s breach of this Agreement, including, but not limited to, reasonable legal fees and court costs, except to the extent such loss, damage, cost or expense is due to the gross negligence or willful misconduct of Asporea Hosting or its employees, agents or invitees. The provisions of this Paragraph shall survive termination of this Agreement.The Customer agrees that The Customer is solely responsible for anything not developed or supplied by Asporea Hosting and that Asporea Hosting shall have no responsibility whatsoever for mistakes, errors, bugs, defects or any acts of omission or omissions by The Customer’s agents or employees or those of third parties. The Customer agrees that it is solely responsible for its use of the Equipment Space, including, but not limited to, any use by Customer’s employees, agents, subsidiaries and further agrees to indemnify, defend, and hold Asporea Hosting harmless for any liability, direct, indirect, consequential or otherwise, incurred as a result of any breach of the foregoing.
In addition, The Customer agrees that Asporea Hosting’s liability under this Agreement, if any, shall be limited to direct, objectively measurable damages, and will not exceed: (i) the total Fees payable to Asporea Hosting during the month(s) that the Colocation Services were affected by the condition that gave rise to the claim for damages, or (ii) Fifty Thousand Dollars ($50,000), whichever is less.
The parties acknowledge that these limitations on potential liabilities were an essential element in setting consideration under this Agreement.
Force Majeure
Asporea Hosting shall not be liable for any loss or damage whatsoever caused by delays, failures of performance, damage, destruction, or malfunction of switching equipment, or any loss or damage occasioned by fire, the elements, labour disputes, shortages, utility curtailments, explosions, cable cuts acts of God, government requisition, changes in government regulation, acts or omissions of third parties or any other cause beyond Asporea Hosting’s reasonable control.
Confidentiality
Asporea Hosting and The Customer agree to keep confidential the financial terms of this Agreement. The obligations of Asporea Hosting under this Agreement shall no longer be binding upon Asporea Hosting in the event that Asporea Hosting assigns or otherwise transfers its interest in the Building to a third party.
The terms and conditions contained herein supersede all prior oral or written understandings between the parties and constitute the entire agreement between them concerning the subject matter of this Agreement. This Agreement shall not be modified or amended except in writing signed by authorised representatives of the parties.
Exchange of Information
Both parties shall mark as confidential all information provided by each party to the other, which is considered by the disclosing party to be confidential information. The party receiving such confidential information shall not use or disclose such confidential information to any third party, except to the extent required by the law, to a government agency or department or to enforce its rights or carry out its duties under this Agreement.
Miscellaneous
All services provided by Asporea Hosting are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any Australian law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardises national security, or material protected by trade secret or other laws.
The Customer agrees to indemnify and hold harmless Asporea Hosting from any claims resulting from the Customer’s use of Asporea Hosting’s services which damages the Customer or any other party.
