This Master Services Agreement (MSA) is executed between the Client and Phoenix NAP, LLC (PNAP). This MSA is accompanied by the following addenda:
The MSA and these addenda govern services that PNAP provides, and define the terms of the basic MSA between Client and PNAP. PNAP offers many services, some of which require auxiliary agreements. These documents provide the fundamental terms for each respective service, and/or any additional services that Client would like PNAP to provide. Some addenda may not be applicable to all Client engagements but are included for reference for future services. Client may locate these addenda at https://www.phoenixnap.com/cs/legal for review.
Client accepts this MSA by clicking or checking an acceptance option provided on our web site, electronically signing an order form or addendum, or installing and using any of the provided services or products. By accepting these services Client is agreeing that:
If Client does not agree with any of these statements, Client SHOULD NOT sign, click or check acceptance options, install, or use any services.
This MSA is governed by the laws in the state of Arizona, Maricopa County, exclusive of any Arizona choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The state or federal courts in Maricopa County, Arizona are the exclusive venue for any disputes arising from this MSA and neither party shall bring an action in any other venue. Client may not dispute personal jurisdiction or venue in these courts.
EXCEPT AS REQUIRED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF EITHER PARTY IS FOUND TO BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGE OR LOSS ARISING UNDER THIS MSA OR IN CONNECTION WITH THE SERVICES, TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENTS GIVING RISE TO ITS LIABILITY.
In consideration of each party’s performance under this MSA and with exception to anything contrary in the addendums to this document and/or the SOF, SOW, or RM, Client agrees to the following:
The Disclaimer of Warranties (Section B of the General Provisions), Disclaimer of consequential damages (Section C of the General Provisions), and limitations of liability (Section D of the General Provisions) in this and other provisions of this MSA and the allocation of risk are essential elements of the bargain between the parties and without this PNAP the parties would not enter into the MSA. The pricing of the products and services reflects the allocation of risk and these limitations.
Limitations in this MSA apply to any and all claims and causes of action regardless of whether in contract, tort, strict liability, or other theory.
Each party acknowledges that PNAP has set its prices and each party enters into this MSA by relying on the limitations of liability and disclaimers of warranties and damages (Sections B-D of the General Provisions) listed in this MSA, making this an essential basis for the bargain between Client and PNAP. Client and PNAP both agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this MSA will survive and apply even if they are found to have failed in their essential purpose.
1. Client agrees to indemnify, defend, and hold harmless PNAP and its parents, affiliates, licensors, and providers of third party services through PNAP (as well as their directors, officers, employees, contractors, agents, successors, and assigns (collectively “thePNAP Parties”) from and against any and all liability (including without limiting all attorneys' fees and costs), incurred by the Parties in connection with actual or alleged claims arising from any of the following:
2. PNAP agrees to indemnify, defend, and hold harmless Client and its affiliates and their respective directors, officers, employees, contractors, agents, successors, and assigns, and end customers (collectively “the Client Parties”)) from and against any and all liability (including without limiting all attorneys' fees and costs), incurred by the Client Parties in connection with third-party claims to the extent such claims arise from any of the following:
PNAP may not consent to any judgement, settlement, attachment, lien, or other act adverse to the interests of Client or the Client Parties without the prior written consent of Client or the applicable Client Party. PNAP and PNAP's counsel will cooperate as fully as PNAP is reasonably required to provide information reasonably requested by Client or the Client Parties in the defense or settlement of any related matter.
Client is responsible for informing PNAP in writing if (i) Client is a Covered Entity or Business Associate (both as defined in the Health Insurance Portability Act of 1996 (“HIPAA”)); and Client Data includes Protected Health Information (“PHI”) as defined in HIPAA. If Client notifies PNAP that it is a Covered Entity or Business Associate and that Client Data includes PHI, and PNAP determined that, based on such notification, it is considered a Business Associate, then the parties will execute PNAP’s Business Associate MSA. If Client does not so notify PNAP, PNAP will have no obligation to provide the contracted services in compliance with HIPAA.
PNAP is an ISP (Internet Service Provider) under the DMCA (Digital Millennium Copyright Act). Clients are expected to comply with the DMCA. PNAP follows the notification and takedown procedures set forth in the U.S.C 17 Section 512 DMCA and may block access to, or terminate any or all services provided under this MSA for repeat infringers.
PNAP needs to gather and use certain information about individuals. This information can include customers, suppliers, business contacts, employees and other people the organization has a relationship with or may need to contact. PNAP’s General Data Protection Regulation (GDPR) – Compliant Data protection Policy describes how this personal data must be collected, handled and stored to meet the company’s data protection standards – and to comply with the law.
This data protection policy ensures PNAP:
Information Collection and Tracking
You can visit our website (www.phoenixnap.com) without giving away your personal information. PNAP uses Google Analytics and Cookies in order to improve our service, user experience and analyze how our website is used. Aside from the approximate location (IP address), the information collected by Google Analytics is mostly anonymous traffic data including browser information, device information, language. We do not collect additional information, such as your age, gender, interests, bank details or clickstream. The collected information is used to provide an overview of how people are accessing and using the PNAP website. It is not used for any additional purpose, such as to profile those who access our website.
While you can use our website without giving out your personal information, once you contact us via the PNAP website, PNAP collects information about you. The information you fill in (personal information such as your name, email address, organization) will be processed and stored so that it is possible for us to contact and respond to your request, and/or allow you access to our services.
If you apply for a job with PNAP, we will collect, process and store the information you have sent us for recruitment-related purposes, such as contacting you. Additionally, PNAP may keep your data for a period of time for the purpose of considering you for a different opportunity.
Our website features two plug-ins for easy sharing and following our social media pages: Facebook, operated by Facebook Inc., 1601 S. California Ave, Palo Alto, CA 94304, USA; and LinkedIn, operated by LinkedIn, 2029 Sterling Court Mountain View, CA 94043 United States. Being on our website does not automatically result in sharing data on these social media networks. These plugins remain inactive (idle) until clicked upon. Once clicked upon, you will be taken to the said social media networks with their own specific privacy policies you are recommended to consult.
When PNAP collects information about you, we also make sure that your information is protected from unauthorized access, loss, manipulation, falsification, destruction or unauthorized disclosure. This is done through appropriate technical measures.
We might share your personal information with the following third parties for the purposes of providing you with the best service possible:
All our entities in the group are required to take appropriate security measures to protect your personal information in line with our policies. We do not allow our third-party service providers to use your personal data for their own purposes. We only permit them to process your personal data for specified purposes and in accordance with our instructions.
We process data within the EEA and countries deemed by the European Union as having adequate safeguards for protecting personal data. These countries are recognized by the EU as having suitable safeguards for the rights and freedoms of individuals and recourse processes by which data subjects can exercise their rights.
We will only consider transferring your data outside of the EU if the following conditions are met.
You have the right to request access to the information we have on you. You can do this by contacting PNAP at DPO@phoenixnap.com. We will make sure to provide you with a copy of the data we process about you. In order to comply with your request, we may ask you to verify your identity. We will fulfil your request by sending your copy electronically, unless the request expressly specifies a different method. For any subsequent access request, we may charge you with an administrative fee.
If you believe that the information we have about you is incorrect, you are welcome to contact us so we can update it and keep your data accurate. Any data that is no longer needed for the purposes specified in Information Collection and Use or for any Regulatory Reporting purposes will be deleted. If you have any queries about the personal data that PNAP stores, you can simply contact us at DPO@phoenixnap.com.
This Privacy Policy is applicable to the services offered by PNAP directly via our website. Our website may contain links to other websites. Once redirected to another website, this Policy is no longer applicable.
This version of the Privacy Policy is effective from January 2020.
We reserve the right to change this Privacy Policy. We constantly review our Privacy Policy and strive towards making it better. PNAP will not reduce your rights stated in this Policy without asking for explicit prior consent to the changes. All changes to our Privacy Policy will be available on this website. You can access the previous versions of this Policy here.
In accordance with applicable law, we only collect a limited amount of information about you that is necessary for improving our service. We do not use profiling, we do not sell or in any way spread your data to third parties, unless we permit them to process your personal data for specified purposes and in accordance with our instructions, and we do not use your data for purposes other than what we specified. We also make sure that your data is stored securely. We delete all information deemed no longer necessary. We constantly review our Privacy Policy in order to make it better and protect you more.
The full GDPR – Compliant Data Protection Policy can be found at the following URL: https://phoenixnap.com/gdpr
If you have any additional questions about PNAP’s collection and storage of data, please contact us at:
Phoenix NAP, LLC |
3402 East University Drive |
Phoenix, Arizona 85281 USA |
DPO@phoenixnap.com |
Any credits issued to Client's account in accordance with the SLA may only be used as a credit toward future charges for services and may not be sold, converted to cash, or transferred. SLA credits expire on the termination or expiration of the MSA.
Neither Client nor PNAP is liable for failure or delay in performance under this MSA due to causes beyond their reasonable control, including without limitation acts of war or terrorism, acts of god, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts, or failure of the Internet. The effected party should promptly notify the other party in writing and use its best effort to correct any failure or delay under this provision.
This MSA is subject to updates and modifications. Updates are always posted at https://phoenixnap.com/cs/legal and Client's continued use of the services serves as Client acceptance of the updates and updates are in effect as soon as they are posted. Modifications of any terms must be approved in writing by PNAP. Modifications to PNAP’s policies regarding Acceptable Use, Privacy, and Security may be updated, with all updates being effective upon written notice to Client and posting in location available to Client.
Written notices must be delivered by hand, mailed by registered or certified mail (return receipt requested, postage prepaid), or sent by overnight courier with proof of delivery (FedEx, UPS, etc.) to:
Phoenix NAP, LLC |
C/O Legal Department |
2353 West University Drive |
Tempe, Arizona 85281 |
Electronic notification may be sent to support@phoenixnap.com.
Delivery date is notification date.
When necessary, PNAP shall request Client execute, acknowledge, and deliver a statement in writing that may be relied upon by a prospective mortgagee, purchaser, or other similar encumbrance certifying all matters reasonably requested. PNAP and the addressee of the certificate are entitled to rely on the information contained in the certificate that PNAP submitted to Client as true, correct, and complete and Client may not later deny, contradict, or take any position inconsistent with the information in the certificate.
The MSA may be executed in two or more counterparts and each will be considered an original, but together constitute the same instrument.
This MSA does not establish a relationship or partnership, joint venture, employment, franchise, or other agency between Client and PNAP except as PNAP and lessee. Neither Client nor PNAP has the power to bind the other or incur obligations on the other's behalf without the written consent of the other unless that power is specified in this MSA.
PNAP's official language is English and it does not provide translations into any other language of any services, support, notices, designations, specifications, or communications. All references to days throughout this MSA shall mean calendar days unless specified otherwise.
Both Client and PNAP agree that it has reviewed and had the opportunity to have legal counsel review this MSA and its attachments and addendums and that this MSA is intended not to be construed against either party as the drafting party.
Any individual signing this MSA on behalf of an entity represents and warrants that he or she has full authority to do so. The signatories to this MSA respectively warrant that they are fully authorized to enter into this MSA on behalf of their respective entity or individual; that entities which are corporations, partnerships or limited liability companies are duly organized, validly existing and in good standing; and that the making, execution and performance of this MSA have been duly approved by the entities governing bodies and do not violate any provision of the entity’s respective articles of incorporation, charters, by-laws, or partnership MSAs.
Conflicts or discrepancies between any portions of this MSA are governed by the following order of precedence:
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