Terms & Conditions - UnitedLayer

TERMS AND CONDITIONS 2012-v9

These Terms and Conditions, including the Service Level Agreement attached hereto and incorporated by reference, (collectively the “Terms and Conditions”) is entered into between UNITEDLAYER, LLC., a Delaware limited liability company with offices at 200 Paul Avenue, Suite 110, San Francisco, California 94124 and 530 West 6th Street, Suite 903, Los Angeles, California 90014 (“UnitedLayer”), and the party (“Customer”) identified in a service order form(s) (as defined below). UnitedLayer and Customer are each referred to as a “Party” and collectively as the “Parties” These Terms and Conditions and all Service Order Form(s) existing or hereafter entered into between UnitedLayer and the Customer are collectively referred to as the “Agreement”).

Definitions.

a) “Acceptable Use Policy” means the acceptable use policy published on UnitedLayer’s website, as the same may be amended from time to time.

b) “Data Center” means the UnitedLayer’s center where it runs Services for Customer. c) “Facility” means the building in which the Data Center is located.

d) “Monthly Recurring Charges” or “MRC” means the fixed monthly fees set forth on any Service Order Form.

e) “Rules and Regulations” are the rules and regulations published on UnitedLayer’s website, as the same may be amended from time to time. The Rules and Regulations are applicable to any Service Order Form that includes colocation Services.

f) “Service Order Form” means each service order form now, heretofore, or hereafter entered into between Customer and UnitedLayer.

g) “Services” means such of UnitedLayer’s Colocation, IP Transit/Transport, Cloud, Disaster Recovery and/or Managed Services ordered by Customer, which are to be provided by

UnitedLayer pursuant to a Service Order Form.

Services, Maintenance, Support, Training and Service Levels.

2.1. Services. Subject to the terms and conditions of the Agreement, UnitedLayer will use reasonable commercial efforts to provide to Customer such Services as may be from time to time set forth and described on each Service Order Form.

2.2. Support Services. UnitedLayer shall provide 24/7 customer and technical support services to Customer via e-mail through submissions to support@unitedlayer.com and telephone through calls made to 888-853-7733 extension 2 or via UnitedLayer’s customer portal. UnitedLayer reserves the right to change its contact information at any time upon notice to Customer. Support calls for services beyond those specifically set forth in herein and in the Service Order Form shall result in additional charges.

2.3. Additional Charges. All services that are not specifically delineated on a Service Order Form shall be considered additional services for which United Layer may charge an additional fee, including but not limited to set up fees, consulting services, riser fees, cross connect fees, Meet Me Room connection charges, additional bursting IP services stacking, shipping, and trash removal. Charges for bandwidth usage are billed using the industry standard 95th percentile billing method. Charges from third parties, including but not limited to connection charges, will be passed on to the Customer, and are subject to price changes by the third parties at any time during the term of this contract. UnitedLayer requires that a support ticket be created within the UnitedLayer customer portal before any support work can begin.

2.4. Maintenance. UnitedLayer may carry out periodic maintenance or upgrade work on the network or its equipment, or to the Facility infrastructure and/or equipment. UnitedLayer will use commercially reasonable efforts to notify Customer via e-mail or phone pursuant to the information provided on the primary account contact at least 48 hours in advance of scheduled maintenance and scheduled downtime. Customer is responsible for providing UnitedLayer with accurate and current contact information for Customer’s designated points of contact. UnitedLayer reserves the right to perform emergency maintenance as needed with no notice.

2.5. Use of Subcontractors. Customer hereby acknowledges that in the course of performing Services hereunder, UnitedLayer, in addition to its own employees, may desire or require the services and assistance of subcontractors, agents and representatives in connection with the Services and/or Deliverables to be provided under the Agreement.

Customer Responsibilities.

Customer shall comply with UnitedLayer’s Acceptable Use Policy. Customer shall not use the Services (i) for any purpose other than for Customer’s own personal or internal business needs; (ii) in a manner that violates any applicable law or regulation, including export restrictions: (iii) to knowingly or intentionally disseminate or transmit any: unsolicited commercial e-mail messages (SPAM), chain letters, malware, spyware, bots (including spiders and crawlers), or other repetitive or automated information collection or distribution devices (excluding double opt-in e-mail lists); (iv) to create a false identity or otherwise attempt to mislead anyone (including UnitedLayer) as to origin or transmitter of any communication, information or other material; (v) to violate the privacy or breach the security of any other person; or (vi) to access or monitor computer, information or communications devices or resources of UnitedLayer, including but not limited to, engaging in any unauthorized security probing activities or other attempts to evaluate or test UnitedLayer’s networks or host system. UnitedLayer will have the right to monitor online conduct, usage and communications in order to verify compliance with the Agreement and applicable law. Any Service Order Form for colocation services shall be subject to the additional terms and conditions set forth on Exhibit B, the terms of which are incorporated by this reference.

Fees and Payment Schedule.

4.1. Invoicing. UnitedLayer shall, via e-mail and/or postal mail, invoice Customer for fees and charges due and payable for Services to be performed for the upcoming month pursuant to each Service Order Form, and for bandwidth usage or overages and metered power usage and additional Services provided in the prior month. The first invoice under a Service Order Form shall include (i) the first month’s MRC (prorated for any partial first month); plus (ii) set up and other one-time fees, and shall be payable on or before the commencement date of the Services. Thereafter, each invoice is payable on its due date, but in no event less than five days in advance of the month during which the services shall will be provided. Customer shall pay all applicable federal, state, and local taxes, arising out of the Agreement (except those based upon UnitedLayer’s income). Customer shall pay all property taxes on Customer’s equipment.

4.2. Late Payment. Collection Costs. All amounts not paid when due shall be assessed an administrative fee equal to 5% of the amount past due. In addition, UnitedLayer may charge interest on all due and unpaid fees at the rate of 1.5% per month (or the maximum interest rate permitted by law, whichever is lower). Customer shall pay to UnitedLayer all costs of collection, including attorneys’ fees, costs and expenses incurred in connection therewith.

4.3. Cessation of Services. In the event Customer does not remit payment of all amounts due under an invoice by the tenth (10) day following its due date, UnitedLayer may, at its discretion and without notice, cease providing Services to Customer, including but not limited to, denying Customer access to the Facility.

4.4. Security Deposit. Upon signing and delivery of the Service Order Form, Customer shall deposit with UnitedLayer as security for its performance under the Agreement, the amount of the Security Deposit specified in the Service Order Form which is customarily equal to one month’s projected Monthly Recurring Charges (“Security Deposit”). UnitedLayer shall not be required to maintain the Security Deposit in a separate account and Customer shall not be entitled to interest on the Security Deposit. If Customer fails to pay any amount when due, then UnitedLayer may draw upon the Security Deposit in the amount of payment due but not made. If Customer’s MRC increases or Customer’s required monthly payments are received more than five (5) days after the payment due date for two (2) months during the Term, then in addition to its other remedies hereunder, UnitedLayer shall be entitled at its sole discretion to increase the required Security Deposit in an amount equal to up to six (6) month’s MRC. Within five (5) business days after receipt of written notice of any deficiency in the amount of the Security Deposit (either due to withdrawals by UnitedLayer or an increase in the required amount), Customer shall deposit with UnitedLayer cash or cashier’s check in an amount sufficient to restore the Security Deposit to its original or required increased amount. Customer’s failure to do so shall constitute a material breach hereunder. Within thirty days (30) days after the later of (a) expiration or earlier termination of the Agreement or (b) Customer’s vacating the Facility, and provided no default exists hereunder, UnitedLayer shall return the Security Deposit less any portion thereof as UnitedLayer shall have used to satisfy Customer’s obligations under the Agreement.

Confidential Information.

5.1. Non-Disclosure. Each Party agrees to treat as confidential all Confidential Information (as defined below) related to the rights and obligations of the other Party under the Agreement and the business and activities of the other Party, its customers, clients, suppliers and other entities with whom such other Party does business, which may be obtained by such Party from any source or as a result of or relating to the Agreement, including the economic and financial terms and conditions contained in or otherwise referenced by the Agreement (the “Confidential Information”). Each Party agrees to hold the Confidential Information of the other Party in confidence and shall not disclose such information to any person, firm or enterprise, or use (directly or indirectly) any such information for its own benefit or the benefit of any other party. Even when disclosure is permitted, each Party agrees to limit access to and disclosure of the other Party’s Confidential Information solely to its employees on a “need to know” basis for purposes directly related to the performance of the Party’s obligations hereunder. Notwithstanding the foregoing, either Party may disclose the other Party’s Confidential Information pursuant to applicable law or regulation or compulsion of proper judicial or other legal process; provided, however, that the disclosing Party shall, unless prohibited by law, provide prompt notice of the same prior to such required disclosure such that the other Party may seek a protective order or other appropriate remedy to safeguard, restrict and/or limit the disclosure of such Confidential Information. Notwithstanding the foregoing, UnitedLayer may, without prior notice to Customer, comply with requests from governmental agencies. For purposes of the Agreement, Confidential Information includes, without limitation, each Party’s trade secrets, proprietary and competitive information, financial information, the specific terms of the Agreement, past and present operations, activities, future plans and strategy; provided, however, that information shall not be considered Confidential Information to the extent, but only to the extent that such information (a) is or becomes publicly available through no fault, default or breach of or by the receiving Party, (b) is or was rightfully acquired by the receiving Party from another without restriction or obligation of confidentiality or (c) if such information is or was independently developed by the receiving Party without use of or reference to Confidential Information of the other Party. Upon any termination of the Agreement, within 10 days of the effective date of termination or expiration Customer shall return to UnitedLayer (or destroy at UnitedLayer’s request) the Confidential Information of UnitedLayer in Customer’s possession or control.

5.2. Equitable Relief. In the event of a breach or threatened breach of the foregoing confidentiality obligations by one Party, the other Party shall suffer immediate and irreparable harm for which, money damages shall be impossible to calculate and be inadequate compensation. Accordingly, either Party shall be entitled to an injunction, restraining order or other equitable relief to enforce compliance with the provisions hereof; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit either Party from seeking or obtaining any other remedy available under the Agreement.

Term and Termination; Transition Assistance

6.1. Term. Each Service Order Form shall be for the contract term specified therein (unless the Agreement is earlier terminated as provided herein); provided, however, that if any Service Order Form commences on a day other than the first day of a month, the number of months in the term shall be counted starting with the first full month following the commencement date. Upon expiration of the term set forth in a Service Order Form, the Service Order Form will automatically renew for successive twelve month terms (each a “Renewal Term”), unless either party has given notice of non-renewal to the other party at least 60 days prior to the expiration date of the initial term or the then-current Renewal Term, as applicable. At UnitedLayer’s option, the term will not automatically be renewed if Customer is then in default under the Agreement. Unless otherwise provided in the applicable Service Order Form, UnitedLayer reserves the rights to change its prices at any time during any Renewal Term, with or without notice to Customer; provided, however, such changes will be limited to a maximum of 10% in any Renewal Period unless UnitedLayer first gives Customer notice of a higher increase and Customer fails to object to such increase within ten days of such notice. Notwithstanding anything herein to the contrary, throughout the term of this Agreement, changes in charges for power shall not be limited and shall be subject to adjustment in proportion to increases in electricity and other power costs applicable to the Data Center.

6.2. Event of Default by Customer. The occurrence of any one or more of the following shall constitute an “Event of Default by Customer” : (a) Customer for any reason fails to pay UnitedLayer any fees, charges or any other amount due under the Agreement within ten (10) days of its due date, b) Customer fails to perform any obligation or covenant set forth in the Agreement and the same is not cured within ten (10) business days following receipt of written notice thereof, or c) Customer admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, ceases operations of its business in the ordinary course, is adjudicated bankrupt or becomes insolvent, winds up or liquidates its business voluntarily or otherwise, applies for, consents to or suffers the appointment of, or the taking or possession by a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets, makes a general assignment for the benefit of creditors, commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), files a petition seeking to take advantage of any other law providing for the relief of debtors, acquiesces to, or fails to have dismissed, within 30 days, any petition filed against it in any involuntary case pursuant to such bankruptcy laws and/or takes any action for the purpose of effecting any of the foregoing.

6.3. Event of Default by UnitedLayer. The occurrence of any one or more of the following shall constitute an “Event of Default by UnitedLayer” the Agreement: the failure by UnitedLayer to perform any material obligation or covenant set forth in the Agreement if the same is not cured within thirty (30) days following receipt of written notice thereof; provided, however, that it shall not be an Event of Default by UnitedLayer if such failure is capable of cure and UnitedLayer commences to cure such failure within said 30 days and thereafter diligently prosecutes the curing thereof. Upon the occurrence of an Event of Default by UnitedLayer, Customer may terminate the Agreement upon ten (10) days’ notice.

6.4. Remedies upon Event of Default by Customer. Upon the occurrence of an Event of Default by Customer, UnitedLayer shall have the right (a) to discontinue all Services to Customer with or without notice to Customer, (b) to disconnect Customer from its internet, power and telecommunications services; (c) to remove any Customer equipment from the Data Center and place it in storage at Customer’s expense and subject to UnitedLayer’s lien rights, and/or (d) upon written notice to Customer, to terminate the Agreement. In the event this Agreement is terminated for any reason other than an Event of Default by UnitedLayer, Customer shall be obligated to pay to UnitedLayer immediately all amounts due to UnitedLayer, including late charges and fees, plus an amount equal to the total MRC charges that Customer would have paid UnitedLayer over the remainder of the term of the Agreement as specified on each Service Order Form.

6.5. Elective Termination. Customer acknowledges, agrees and covenants that Customer is responsible for full payment of the services for the entire Term regardless of the portion of the services actually consumed. Customer may at its option, terminate any Service Order Form by submitting to UnitedLayer at billing@unitedlayer.com

sixty (60) days prior written notice of termination of such Service Order Form and payment to UnitedLayer, by way of liquidated damages and not a penalty, of an amount equal to the aggregate MRC that would have been paid over the remainder of the then term (as the same may have been extended under Section 6.1) for such Service Order Form. (e.g. if Customer terminates a Service Order Form fourteen months into a two year term for any reason other than an Event of Default by UnitedLayer, Customer shall pay to UnitedLayer a termination fee equal to the balance of all MRC for the remaining 10 months of the term).

Representations, Warranties and Covenants.

7.1. Authority to Execute the Agreement. Each Party represents, warrants and covenants to the other Party that: (a) it has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it under the Agreement, (b) the execution of the Agreement and performance of its obligations under the Agreement do not and shall not violate any other agreement to which it is a party, (c) the Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered and (d) any and all activities it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations.

Indemnification; Limitation of Liability.

8.1. By Customer. Customer agrees to indemnify, defend and/or handle at its own cost and expense any claim or action against UnitedLayer, its parent companies and its affiliates and their successors, and their respective officers, directors, employees, shareholders, representatives, and agents (each an “Indemnified Party”) from and against any action or Claims (defined below) by a third party arising out of, or relating directly or indirectly to the Agreement, the License (if any) granted under the Agreement and the use of the Services by Customer or any person or entity acting through or on behalf of Customer, excepting therefrom Claims arising out of the gross negligence or intentional misconduct of UnitedLayer as determined by a court of competent jurisdiction. For purposes of the Agreement, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs). Claims include claims for injury to any persons (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property. The provisions of this section shall survive the expiration or earlier termination of the Agreement. An Indemnified Party shall give Customer prompt notice of any claim asserted or threatened against it and the basis of which the Indemnified Party intends to seek indemnification, but the obligations of the Customer shall not be conditioned upon receipt of such notice except to the extent that Customer is actually prejudiced by such failure to give notice. Customer shall promptly assume the defense of the Indemnified Party with counsel reasonably satisfactory to the Indemnified Party and the fees and expenses of such counsel shall be at the sole cost and expense of Customer. Notwithstanding the foregoing, the Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Customer and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Customer, which approval shall not be unreasonably withheld. Customer may not agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.

8.2. By UnitedLayer. UnitedLayer agrees to indemnify, defend and/or handle at its own cost and expense any claim or action against Customer, its officers, directors, employees, representatives and agents based upon or in connection with any Claim by a third party arising out UnitedLayer’s gross negligence or intentional misconduct. The provisions of this section shall survive the expiration or earlier termination of the Agreement. UnitedLayer shall be given prompt notice of any claim asserted or threatened against and the basis on which indemnification is sought. UnitedLayer shall solely conduct the defense of any such claim or action and all negotiations for its settlement or compromise; provided, however, that (i) no settlement or compromise affecting the financial or legal obligations of Customer shall be entered into or agreed to without Customer’s prior approval unless such settlement contains an unconditional release by the claimant or the plaintiff of Customer, its officers, directors, employees,

representatives, and agents from all liability in respect of such claim or action and (ii) Customer has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests. UnitedLayer shall have no liability for any damage to Customer’s personal property or Equipment.

8.3. Disclaimer. UNITEDLAYER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF UNITEDLAYER WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

General.

9.1. Assignment. Customer may not assign, transfer or convey the Agreement, or any rights or obligations thereunder, by merger, share exchange, asset sale, reorganization, operation of law or otherwise, to any other party without UnitedLayer’s prior written consent which consent shall not be unreasonably withheld provided that (i) the proposed assignee assumes all of the Customer’s obligations under the Agreement, (ii) Customer is in compliance with all of the terms, covenants and conditions of the Agreement, and (iii) the Tangible Net Worth of the proposed assignee is not less than the Tangible Net Worth of Customer as of the date of the assignment. The term “Tangible Net Worth” means the excess of total assets over total liabilities (in each case, determined in accordance with GAAP) excluding from the determination of total assets all assets which would be classified as intangible assets under GAAP, including, without limitation, goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any assignment of the Agreement without the consent of UnitedLayer shall be void ab initio. The Agreement shall be binding upon, and enforceable by, and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. In the event that UnitedLayer assigns its interest in the Agreement, UnitedLayer shall be released from any liability arising thereafter based upon any of the terms, covenants or conditions, express or implied, which are contained in the Agreement. In such event, Customer agrees to look solely to UnitedLayer’s successor in interest for any liability under the Agreement after such assignment. Customer agrees to attorn in writing to UnitedLayer’s successor in interest if requested to do so.

9.2. Relationship; No Third Party Beneficiaries. Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for federal, state or other tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in the Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, or constitute one Party an agent of the other Party. There are no third party beneficiaries, actual or intended, under the Agreement.

9.3. Notices. Unless otherwise specifically provided herein, all notices required under the Agreement shall be in writing and (unless otherwise provided herein) shall be delivered via personal delivery, facsimile, overnight mail by a nationally recognized overnight service, by U.S. Mail, postage prepaid, to UnitedLayer at: 200 Paul Avenue, Suite 110, San Francisco, California 94124, or to Customer at the address set forth on the signature page of the most recent Service Order Form, unless, by notice, a Party changes or supplements the addressee and addresses for giving notice. Notice shall be deemed given on the date it is received if hand delivered or sent by electronic transmission.. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or nationally recognized overnight courier shall be deemed given one business day after delivery of the same to the Postal Service or courier.

9.4. Publicity; Press Releases. Neither Party shall be entitled to use the name, service or trademarks, logos or otherwise identify or refer to the other Party in any press releases, publicity, marketing or promotional material without the prior, express approval of such other Party in each instance. Customer authorizes UnitedLayer to use customer’s name, logos and trademarks in publicity, marketing or promotional material and to release Customer’s name to other UnitedLayer potential and current customers.

9.5. Dispute Resolution, Choice of Law and Jury Waiver. Each Party agrees that they shall attempt to resolve any dispute arising from the Agreement prior to bringing an action in court. Each Party will designate at least one company employee, capable of negotiating an agreement on behalf of that Party, within three weeks of receipt of written notification of a dispute and those employees will meet at least once in an attempt to resolve the dispute. If no agreement can be reached, both parties agree to meet again within a four week period after the initial meeting to negotiate in good faith to resolve the dispute. Thereafter, either party may commence a court action. The Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of California applicable to contracts wholly made and to be performed within the State of California without regard to conflict of laws principles. Each Party irrevocably submits to the sole and exclusive jurisdiction of the courts of the State of California and the Federal courts of the Northern or Southern District of California, situated in the County of San Francisco or County of Los Angeles. Each Party irrevocably consents to the exercise of personal jurisdiction over each of the Parties by such courts and waives any right to plead, claim or allege that California is an inconvenient forum. In order to limit the cost of resolving any disputes between the parties, and as a material inducement to each party to enter into the Agreement, to the fullest extent permitted by law, UnitedLayer and Customer each expressly waives its right to trial by jury in any trial held as a result of a claim arising out of, in connection with, or in any manner related to the Agreement in which UnitedLayer and Customer are adverse parties, including cross-complaints by one against the other.

9.6. Limitation of Actions. No action, regardless of form, arising out of or relating to the Agreement may be brought by the Customer more than twelve (12) months from the date on which the cause of action accrues. The parties agree that this section, as to the Customer only, supplants and replaces any and all periods of limitation otherwise provided by law. All periods of limitation otherwise applicable to actions by UnitedLayer remain as provided by law.

9.7 Limitation of Liability. IN THE EVENT THAT UNITEDLAYER SHALL FAIL TO PERFORM OR FAIL TO HONOR OR PERFORM ANY OBLIGATION OR COVENANT TO BE PERFORMED UNDER THESE TERMS AND CONDITIONS, (INCLUDING, WITHOUT LIMITATION, ANY INDEMNITIES GIVEN BY UNITEDLAYER), UNITEDLAYER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL OF ONE MONTH’S MRC UNDER ALL THEN EFFECTIVE SERVICE ORDER FORMS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A SERVICE OUTAGE (AS DEFINED IN THE SERVICE LEVEL AGREEMENT) SHALL BE THE CREDIT PROVIDED IN THE SERVICE LEVEL AGREEMENT. UNITEDLAYER SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. UNITEDLAYER SHALL NOT IN ANY CASE BE LIABLE FOR ANY OF THE FOLLOWING: (1) THE USE OR CONTENT OF INFORMATION PASSING OVER ITS NETWORK; (2) UNAUTHORIZED ACCESS OR DAMAGE TO, ALTERATION, THEFT, DESTRUCTION OR LOSS OF, CUSTOMER’S RECORDS, INFORMATION, FILES OR DATA; (3) ECONOMIC, INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS AND SAVINGS AND ADDITIONAL COSTS, EXPENDITURES OR INVESTMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS OR OTHERWISE), EVEN IF UNITEDLAYER IS INFORMED OF THE POSSIBILITY THEREOF; (4) DAMAGES CAUSED BY CUSTOMER; (5) CLAIMS AGAINST CUSTOMER BY ANY OTHER PARTY FOR ANY REASON; OR (6) ANY ACT OR OMISSION OF A THIRD PARTY FURNISHING SERVICES AND/OR PRODUCTS, OR (7) THE INSTALLATION AND /OR REMOVAL OF ANY AND ALL CUSTOMER EQUIPMENT OR SUPPLIES.

UNITEDLAYER SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE UNDER THESE TERMS AND CONDITIONS, INCLUDING THE ATTACHED SERVICE LEVEL AGREEMENT AND IN ANY SERVICE ORDER FORM TO THE EXTENT CAUSED BY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION: EARTHQUAKES, WEATHER OR NATURAL DISASTERS, FIRE, FLOOD, STORM, COSMIC STORM, SOLAR WIND, LIGHTING, OR OTHER ACTS OF NATURE, DAMAGE TO FACILITIES, SHORTAGES OF MATERIALS OR TRANSPORTATION, ELECTRICAL BLACKOUTS OR BROWNOUTS, EXPLOSIONS, LABOR DISPUTES, THE FAILURE OF

ANY UTILITY PROVIDER TO DELIVER ELECTRICITY OR WATER TO THE FACILITY IN THE QUALITY AND QUANTITY NORMALLY DELIVERED BY SUCH UTILITY, EXCESSIVE VOLTAGE OR AMPERAGE SAGS ON UTILITY POWER FEEDS, THE FAILURE OF CUSTOMER’S EQUIPMENT, WAR, INVASION, ACT OF FOREIGN ENEMIES, HOSTILITIES (WHETHER WAR IS DECLARED OR NOT), https://nygoodhealth.com CIVIL WAR, REBELLION, REVOLUTION, INSURRECTION, MILITARY OR USURPED POWER OR CONFISCATION, TERRORIST ACTIVITIES, VANDALISM OR OTHER CRIMINAL ACT, NATIONALIZATION, GOVERNMENT SANCTION, EMINENT DOMAIN, BLOCKAGE, OR EMBARGO, OR THE CONDUCT OF THIRD PARTIES (COLLECTIVELY “FORCE MAJEURE”).

CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK ARISING IN CONNECTION WITH CUSTOMER’S EQUIPMENT AND CUSTOMER’S USE OF THE FACILITY, INCLUDING, WITHOUT LIMITATION, FALLS, ELECTRIC SHOCKS AND OTHER PERSONAL INJURY, AND HEREBY RELEASES UNITEDLAYER AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY.

9.8. No Other Warranty. EXCEPT FOR ANY EXPRESS WARRANTIES SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. UNITEDLAYER DOES NOT MAKE ANY OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE PRACTICE. UNITEDLAYER EXERCISES NO CONTROL WHATSOEVER OVER THE CONTENT OF INFORMATION PASSING THROUGH ITS NETWORK OR OVER THE INTERNET.

9.9. Attorney Fees and Costs. If either party commences a legal or administrative action against the other party to enforce the Agreement, the prevailing party in such litigation shall be entitled to collect from the party not prevailing its reasonable attorney fees and costs. In any instance in which Customer requests UnitedLayer’s consent hereunder, Customer shall pay, within ten (10) days after invoicing by UnitedLayer, all of UnitedLayer’s review, processing fees, and costs as well as any reasonable professional attorneys, accountants, engineers or other consultant’s fees incurred by UnitedLayer or the owner of the Facility relating to such request for consent.

9.10. Counterparts and Interpretation. The Agreement may be executed in any number of counterparts, electronically, via facsimile or in portable document format (PDF), all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting the Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive.

9.11. Amendment; Waiver; Severability. No amendment, modification, waiver or discharge of any provision of the Agreement shall be valid unless made in writing and signed by an authorized representative of the Party against whom enforcement is sought. No failure or delay by either Party to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both Parties. If any provision of the Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of the Agreement shall be unimpaired and remain in full force and effect. Notwithstanding the foregoing, the Rules and Regulations and the Acceptable Use Policy may be updated from time to time in writing and/or published on UnitedLayer’s website.

9.12. Survival. The provisions of Article 4, Article 5, Article 6, Article 8, Article 9 and Exhibit B hereof, shall survive the cancellation, expiration or termination of the Agreement.

9.13. Entire Agreement. All Service Order Forms preexisting the date hereof shall be governed by these Terms and Conditions. These Terms and Conditions, including the exhibits hereto which are incorporated herein, together with the Service Order Forms, constitute the entire agreement between the parties and supersede any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof. In the event of a conflict between the Terms and Conditions and any Service Order Form, the terms of these Terms and Conditions shall prevail. Customer acknowledges, that it has read the Agreement, and agrees to be bound thereto and that these Terms and Conditions together with the exhibits, and the Service Order Forms supersede all previous communications, oral or in writing, relating to the subject matter hereof.

EXHIBIT A

Service Level Agreement

This Service Level Agreement (“SLA”) is issued in accordance with the Terms and Conditions (the “Terms and Conditions”) between UnitedLayer and Customer.

General

1.1. In this SLA, the following terms have the following meanings ascribed to them below. Capitalized words not defined below shall have the meanings ascribed to them in the Terms and Conditions.

a) “CDR” (Committed Data/Information Rate) means the data throughput rate selected by Customer in the Service Order Form and provided as part of Services.

b) “Customer Cause” means any Service Outage caused directly or indirectly as a result of any act or omission of Customer or by any third party acting on Customer’s behalf including, without limitation, (i) failure to permit entry by UnitedLayer or make facilities or components available to UnitedLayer for testing or repair or otherwise to comply with UnitedLayer’s instructions and service requirements, (ii) defect in any Customer equipment which is not managed by UnitedLayer, (iii) improper configuration not performed by UnitedLayer; (iv) service interruptions requested by Customer, (v) Customer failure to act in a timely and/or proper manner when notified to do so by UnitedLayer, or (vi) transmission of data at a rate in excess of the CDR or the requested burstable port that the Customer is on.

c) “Customer’s Equipment” means all Customer owned or operated equipment that is colocated at any of UnitedLayer’s Data Centers.

d) “Colocation Services” means those Services set forth under any Service Order Form under which UnitedLayer provides space for Customer’s Equipment.

e) “Data Center Availability” means all the time in any calendar month the Data Center is available to visit. f) “Data Center Downtime” means any interruption in the Data Center Availability.

g) “Defective Hardware” means a defective hardware associated with a Device, including CPU, memory, and hard drives, but specifically excludes non-RAIDed servers.

h) “Device” means any shared or dedicated device which is managed by UnitedLayer as provided in the Service Order Form.

i) “Device Availability” means the ability to access any Device(s) via a remote access protocol normally available on the Device. Device Availability does not apply to any server that is non-RAIDed.

j) “Device Downtime” means the failure of Device Availability. Device Downtime will be deemed to occur for the period of the outage as reported through UnitedLayer’s trouble ticketing system.

k) “Device MRC” means that portion of MRC for the applicable Device.

l) “Device Repair or Replacement” has the meaning ascribed to it in Section 5.4 below.

m) “Environment” means the recorded temperature within the Data Center limited to the cold aisle temperature or the ambient temperature at the intake of the Customer’s Equipment. The average temperature of the cold aisle in the Data Center is to be maintained at 72 – 78 degrees Fahrenheit (+/- 6 degrees). Temperature may be measured at cold aisle points in the Data Center of UnitedLayer’s choosing. Environment does not apply with respect to the hot aisle(s) ambient temperature in the Data Center.

n) “Environment Downtime” means failure to maintain the Environment.

o) “IP Transit/Transport Services” means wholesale internet bandwidth, voluntary interconnection of administratively separate internet networks for the purpose of exchanging traffic between networks (peering services); and/or private links that enable point to point transfer of raw data (layer 2 services) all as set forth in any Service Order Form.

p) “IP MRC” means that portion of MRC applicable to IP Transit/Transport Services.

q) “Managed Services” means the delivery, maintenance, and management of shared or dedicated infrastructure used to provide cloud, disaster recovery, storage, backup, network, hosting, and maintenance of equipment, communications, network infrastructure and devices as set forth in any Service Order Form.

r) “MRC” has the meaning ascribed to it in the Terms and Conditions.

s) “Network” means the physical connection between the equipment provided by Customer and either (i) the Internet or (ii) private networks maintained and operated by Customer or Customer’s agents.

t) “Network Availability” means all the time in any calendar month that the Network is available.

u) “Network Downtime” means any interruption of Network Availability. Network Downtime will be deemed to commence and end as reported on UnitedLayer’s monitoring system.

v) “RAIDed” means a storage configuration for a server that has redundant disks using RAID levels other than 0.

w) “Power” means the physical electricity delivered to the Customer within the Data Center.

x) “Power Downtime” means any interruption to the Power delivered to the Customer. Power Downtime will be deemed to commence and end as reported on UnitedLayer’s electrical monitoring system.

y) “Power MRC” means that portion of MRC allocated to Power.

z) “Scheduled Downtime” means times scheduled by UnitedLayer in advance for periodic maintenance and/or upgrade work during which a Service Outage is planned as an unavoidable requirement to affect the maintenance or upgrade. Except in the case of an emergency, UnitedLayer will endeavor to provide Customer with 48 hours’ notice of Scheduled Downtime. Outage times will be quoted in Pacific Time to prevent mistakes being made over the various time zones. UnitedLayer will consider Customer’s requirements in terms of outage times; however, depending on the circumstances this may not always be possible or practical and the scheduling of outage times will be at UnitedLayer’s sole discretion.

aa) “Scheduled Maintenance” means periodic maintenance or upgrade work on UnitedLayer’s network or its equipment, planned to be performed during a network maintenance window, during which no Service Outages are anticipated. UnitedLayer will endeavor to limit Service Outages resulting from Scheduled Maintenance.

bb) “Service Outage” means any Data Center Downtime, Power Downtime, Environment Downtime, Network Downtime or Device Downtime.

cc) “Space” means that area of the Data Center which is allocated to Customer for Customer’s equipment for colocation services.

dd) “Space MRC” means the portion of MRC allocated to Space.

1.2. This SLA only applies to the Services to the extent that they are provided by means of systems and equipment that are either owned or operated by or on behalf of UnitedLayer. UnitedLayer shall have no liability for the failure of any other systems or services, including but not limited to application systems.

1.3. In no event shall UnitedLayer have any liability under this SLA, the Terms and Conditions or any Service Order Form to the extent its failure to meet any of its obligations under this SLA is a caused by a Force Majeure event, the performance of Scheduled Maintenance, Scheduled Downtime or Customer Cause. All credits are subject to Customer meeting each of the requirements of Section 6 below.

PROVISION OF SERVICES

2.1. UnitedLayer will provide customers with the services (the “Services”) described in each signed Service Order Form. Such Services may include Managed Services, IP Transit/Transport Services, Cloud, Storage, Disaster Recovery Services and/or Colocation Services.

2.2. UnitedLayer will provide the service levels set forth below. If UnitedLayer fails to meet those service levels, Customer’s sole remedy is as provided for under this SLA.

SERVICE LEVELS FOR COLOCATION SERVICES

3.1. Service Level for Data Center Availability.

a) UnitedLayer endeavors to provide Data Center Availability 100% of the time.

b) If there is Data Center Downtime in any calendar month, Customers will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for Space MRC for each hour or partial hour that Data Center Downtime exists.

3.2. Service Level for Scheduled Downtime.

a) UnitedLayer endeavors to limit Scheduled Downtime to 12 times in any calendar year.

b) If Scheduled Downtime exceeds 12 times in any calendar year, Customers will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for Space MRC for each hour or partial hour that Scheduled Downtime is exceeded.

3.3. Service Level for Power Availability.

a) UnitedLayer endeavors to provide Power 100% of the time.

b) If there is Power Downtime in any calendar month and Customer has a primary and redundant circuit configuration, Customer will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for Power MRC and Space MRC for each hour or partial hour that Power Downtime exists. If Customer does not have a primary and redundant circuit configuration, the credit will be reduced by 50%.

3.4. Service Level for Environment Downtime.

a) UnitedLayer endeavors to maintain the Environment at the Data Center 100% of the time.

b) If there is Environment Downtime in any calendar month, customers will be entitled to request a credit of one three hundred sixtieth (1/360) of that month’s invoice for Space MRC for each hour or partial hour that Environment Downtime exists.

SERVICE LEVELS FOR IP TRANSIT/TRANSPORT SERVICES

4.1. Service Level for Scheduled Downtime.

a) UnitedLayer endeavors to limit Scheduled Downtime to 12 times in any calendar year.

b) If Scheduled Downtime exceeds 12 times in any calendar year, Customers will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for IP MRC for each hour or partial hour that Scheduled Downtime is exceeded.

4.2. Service Level for Network Availability

a) UnitedLayer endeavors to provide overall Network Availability 99.99% of the time.

b) If any incident of Network Downtime in the aggregate in any calendar month exceeds four minutes, Customer will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for IP MRC for each hour or partial hour that Network Availability was exceeded.

SERVICE LEVELS FOR MANAGED SERVICES

5.1. Service Level for Scheduled Downtime.

a) UnitedLayer endeavors to limit Scheduled Downtime to 12 times in any calendar year.

b) If Scheduled Downtime exceeds 12 times in any calendar year, Customers will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for IP MRC for each hour or partial hour that Scheduled Downtime is exceeded.

5.2. Service Level for Network Availability

a) UnitedLayer endeavors to provide overall Network Availability 99.99% of the time.

5.3. Service Level for Device Availability.

a) UnitedLayer endeavors to provide Device Availability 100% of the time.

b) If Device Downtime occurs for reasons other than Defective Hardware, Customer will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for Device MRC (for the specific Device that experienced Device Downtime) for each hour or partial hour that Device Downtime exists.

c) If Device Downtime occurs as a result of Defective Hardware and UnitedLayer does not restore availability to the applicable Device or a comparable Device within two (2) hours of notification of failure as reported through UnitedLayer’s ticketing system, provided that delay was not caused in whole or in part by Customer, Customer will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for Device MRC (for the specific Device that experienced Device Downtime) for each hour or partial hour of Device Downtime in excess of two (2) hours..

5.4. Service Level for Device Repairs and Replacement.

a) UnitedLayer endeavors to repair or replace defective Devices within 72 hours (“Device Repair or Replacement”).

b) If UnitedLayer does not replace or repair a defective Device within 72 hours of the time that UnitedLayer determines the Device to be defective, provided that any delay was not caused in whole or in part by Customer, Customer will be entitled to request a credit equal to one three hundred sixtieth (1/360) of that month’s invoice for Device MRC (for the specific Device that required repair or replacement) for each hour in excess of 72 hours that UnitedLayer takes to repair or replace the Device. This Service Level is not in addition to Device Downtime and shall not apply for any time when there is Device Downtime.

5.5 Customer hereby acknowledges that UnitedLayer’s ability to provide Device Service and technical support to Customer is contingent upon UnitedLayer’s ability to manage, monitor and/or connect UnitedLayer’s network to such Device. As determined solely by UnitedLayer, in the event that Customer impairs UnitedLayer’s ability to manage, monitor and/or connect UnitedLayer’s Network to any Device through, but not limited to, the installation of software (including, but not limited to, firewall software or load balancing software), or through the configuration of such services, then UnitedLayer shall have no obligation to provide the Services in this SLA and the Service Order Form and Customer shall not be entitled to any Credit and/or other compensation under this SLA with respect to such Services.

Additional Conditions for all Service Levels

6.1. Credits and/or other compensation under this SLA shall be payable only if all of the following conditions have been met:

a) Customer was not, at the time of the Service Outage and at the time such credit is to be made, in breach of any of the terms and conditions of the Terms and Conditions, including this SLA;

b) Customer has submitted to UnitedLayer within seven calendar days of the Service Outage a claim in writing to UnitedLayer at billing@unitedlayer.com identifying the circumstances in which Customer claims that the credit and/or compensation arose and marked in the subject line “claim for services credit”. Customer’s failure to notify UnitedLayer within the period stated above shall result in Customer’s waiver of its right to receive any such credit and/or other compensation;

c) UnitedLayer has agreed in writing, acting reasonably and without undue delay, to issue such credit and/or other compensation in connection with such claim;

d) Customer has not on more than two (2) occasions in the twelve (12) month period preceding the Service Outage for which a claim is being made, been more than ten (10) days delinquent in its payment obligations under any Service Order Form.

e) Customer is not in violation of the Rules and Regulations or, if applicable, the ANSI/NFPA/NEC 70 power standard codes;

f) Customer was not, at the time of the Service Outage and at the time such credit is to be made, if applicable, in violation of cold aisle/hot aisle design methods and best practices, including cabinet level air flow design and management set forth by UnitedLayer; and

g) The Service Outage was not caused directly or indirectly, in whole or in part, by Scheduled Maintenance, Scheduled Downtime, Customer Cause or a Force Majeure.

6.2. The maximum monthly credit and/or compensation available under this SLA is limited to an amount not greater than one month’s MRC for the applicable Service. The credits set forth in this SLA shall be Customer’s sole and exclusive remedy for any Service Outage or any failure by UnitedLayer to meet its services requirements under the Terms and Condition, including this SLA, and the Service Order Form.

6.3. The aggregate of all credits in any month under this Service Level Agreement will be applied towards the invoice which Customer receives two months following the month in which the service level was exceeded. UnitedLayer reserves the right to amend the SLA from time to time. Changes to this SLA shall be effective when the same have been posted to UnitedLayer’s website.

EXHIBIT B

Additional Terms for Colocation Services

License Grant. By executing a Service Order Form for colocation services, UnitedLayer grants to Customer, on the terms and subject to the conditions set forth in the Terms and Conditions, a license for access to and use of space or spaces (“Licensed Area” or “Space”) in the Data Center for the Permitted Uses, subject to revocation as provided herein (the “License”). Customer may not sublicense or sublet the Space to any third party in any way. Customer acknowledges that other licensees of UnitedLayer will be using the Facilities. UnitedLayer reserves the right to install and maintain conduits, cables and wiring along and adjacent to the ceiling above or below the floor of the Licensed Area and to relocate or otherwise substitute replacement space at any time during the term of the Agreement. Power circuits may be used up to a maximum of 80% of their rated limit in a primary configuration, and up to a maximum of 40% of their rated limit in a redundant configuration, subject to a maximum usable power rating of 4.0KW per cabinet. Only one device may be plugged into a single outlet (e.g. power strips cannot be plugged into other power strips).

Access to Facility. Provided that no Event of Default by Customer then exists, during the term of the Service Order Form, Customer’s authorized personnel shall have access to the Licensed Space in accordance with the Rules and Regulations (as defined below) for the purpose of adding, maintaining, operating or modifying customer owned and operated equipment 24 hours per day and 7 days a week. Customer shall be liable for the actions of any Approved Personnel. Approved Personnel must carry photo-identification for presentation to UnitedLayer or UnitedLayer’s agents, employees, or representatives when entering the Facility including building security personnel and must comply with the Rules and Regulations established for the Facility.

Resources. UnitedLayer will provide security and access control policies and processes to endeavor to limit only authorized access to the Facility. UnitedLayer reserves the right to change in its discretion and without liability to Customer, the methods, processes and/or suppliers by which UnitedLayer provides Services to Customer.

No Real Property Interest. The grant of the License is not a grant of an interest in real property. Customer represents, warrants, acknowledges and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space or the Facility; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges or remedies that a tenant or lessee would have under a real property lease or occupancy agreement.

Rules and Regulations. Customer agrees to abide by and honor the all Rules and Regulations as from time to time published by UnitedLayer, a copy of which is posted at its web site at www.Unitedlayer.com. (Collectively the “Rules and Regulations”). Any amendments to the Rules and Regulations shall be effective upon posting at UnitedLayer’s website. By signing the service Order Form, Customer acknowledges that it has read the Rules and Regulations and agrees that Customer will, and will cause its agents, employees and contractors to comply with them.

Equipment Installation. Any delivery, installation, replacement or removal work with respect to Customer’s equipment shall be subject to review and approval by UnitedLayer, such approval not to be unreasonably withheld. From time to time UnitedLayer may request and Customer shall promptly provide information regarding Customer’s equipment, systems, proposed rack/cabinet layout and interconnections/cross connect diagrams, and the identification of Customer’s suppliers or contractors. All Customer equipment and equipment installments shall strictly adhere to the Rules and Regulations. UnitedLayer reserves the right to request reasonable security from Customer prior to the commencement of any work by Customer at the Facility to avoid the claim of mechanic’s liens. Customer shall not make, or cause to be made, any construction changes or material alterations to the interior or exterior portions of the Facility or Licensed Area, including any cabling or power supplies for the Equipment, without obtaining UnitedLayer’s prior written approval.

Decommissioning and Removal of Customer Equipment. Customer agrees that, upon the expiration or termination of the term of the applicable Service Order Form, Customer (or, at UnitedLayer’s election, the contractor designated by UnitedLayer) shall, at Customer’s sole cost and expense, promptly remove (subject to UnitedLayer’s lien rights) all cable, wiring, connecting lines, and other installations, equipment or property installed or placed by or for Customer in the Facility and restore those portions of the Facility damaged by such removal to their condition immediately prior to the installation or placement of such items; provided, however, that at UnitedLayer’s option, Customer shall not remove cabling and wiring that is contained in any walls or structures located in the Facility. If Customer fails to promptly remove all such items pursuant to this paragraph, UnitedLayer may, at Customer’s expense, remove and store such items and restore those portions of the Facility damaged by such removal to their condition immediately prior to the installation or placement of such items. Any Customer equipment not claimed by Customer within 15 days of the expiration or termination of the License shall be deemed abandoned and ownership of such equipment shall automatically transfer to UnitedLayer. Notwithstanding anything to the contrary contained in the Agreement, Customer shall not, without UnitedLayer’s consent, be permitted to remove any Customer Equipment from the Licensed Area at a time when Customer is delinquent in meeting its payment obligations or is in breach of any other material term under the Agreement. Customer will provide UnitedLayer with notice at least twenty-four (24) hours before Customer desires to remove a significant piece of Customer Equipment so logistics may be arranged within the Facility. Before authorizing the removal of any significant Customer Equipment, UnitedLayer’s accounting department will verify that Customer’s account is in good standing. In addition to all other remedies provided herein, if Customer fails to remove its equipment upon expiration of the term, then the monthly charges payable under the Service Order Form shall be increased by 300%. Additionally, Customer shall be indemnify, defend and hold harmlessto UnitedLayer for any and all damages and claims incurred by UnitedLayer as a result of Customer’s failure to timely remove its Equipment and vacate the Space.

Damage to the Facility. If the Facility or access thereto, is damaged by fire or other casualty, UnitedLayer shall give notice to Customer of such damage as quickly as practicable. UnitedLayer shall have the option to terminate the License due to damage or destruction of the Facility and the Agreement shall terminate as of the date of such exercise or decision as to the affected Licensed Area, and the monthly recurring charges (which includes monthly fixed charges for the Licensed Area and power, but excludes power overages, “MRC”) payable by Customer shall be prorated as of the date thereof. If UnitedLayer does not exercise the right to terminate, then UnitedLayer shall either (i) restore the Licensed Area to substantially the same condition it was in prior to the damage, or (ii) substitute new space for the Licensed Area. In no event shall UnitedLayer have any obligation to repair or replace any of Customer’s personal property, including but not limited to Customer’s equipment.

Insurance. Customer shall keep in effect such insurance coverage as are set forth below, at Customer’s expense: (1) commercial general liability insurance. Such coverage shall: (a) contain blanket contractual liability coverage that covers Customer’s liabilities arising out of the Agreement; (b) have a single limit of not less than one million dollars ($1,000,000), an aggregate limit of not less than two million dollars ($2,000,000); (c) cover any third parties performing work at the Facility on behalf of Customer; and (d) be considered primary, with any other insurance maintained by UnitedLayer being excess and noncontributing with the insurance of Customer required hereunder. (2) Customer shall maintain “all risk” property insurance (inclusive of coverage for data, media and electronic data processing perils) in the full replacement value of Customer’s Equipment and personal property, if any located at the Facility. (3) Customer shall procure and maintain workers’ compensation and employer’s liability insurance in accordance with the laws of the state in which the Facility is located and employer’s liability insurance with a limit of not less than: (a) one million dollars ($1,000,000) Bodily Injury – Each Accident; (b) one million dollars ($1,000,000) Bodily Injury By Disease – Each Person; and (c) one million dollars ($1,000,000) Bodily Injury By Disease – Policy Limit. Each Insurer shall be authorized to do business in the state in which the Facility is located and shall be written by carriers having an A.M. Best rating of A- VIII or better. Prior to accessing or occupying the Licensed Area, Customer shall submit to UnitedLayer evidence that Customer has the insurance policies required hereunder in effect and shall provide to UnitedLayer certificates, with copies of all applicable endorsements attached. Such certificates shall name UnitedLayer and such other entities as UnitedLayer may reasonably designate as additional insureds. Each such policy shall provide that it cannot be canceled or modified.

unless UnitedLayer is given thirty (30) calendar days advance written notice of such cancellation or modification. The insurance requirements set forth herein are independent of Customer’s indemnification and other obligations hereunder and shall not be construed or interpreted in any way to restrict, limit, or modify Customer’s indemnification and other obligations, or to limit Customer’s liability. If Customer fails to obtain the necessary coverages, UnitedLayer may obtain such coverages at Customer’s expense. Customer’s property insurance shall include a waiver of subrogation in favor of UnitedLayer. If any work is to be performed by third parties for a Customer at the Facility, a certificate of insurance covering the third party and meeting the foregoing requirements shall be delivered by Customer to UnitedLayer prior to such third party accessing the Facility.

Lien on Customer Equipment. In the event Customer does not remit payment of all amounts due under an invoice by the tenth (10) day following its due date, UnitedLayer may, at its discretion, assert a possessory lien on and maintain possession of all Customer Equipment as collateral for amounts owed.

Hazardous Materials. “Hazardous Materials” means any substance referred to, or defined in any law, as a hazardous material or hazardous substance (or other similar term). Customer will not cause or permit any Hazardous Materials to be brought upon, kept, stored, discharged, released or used in, under or about any portion of the Facility. Customer will cause all Hazardous Materials brought to the Facility by or on behalf of Customer to be removed from the Facility in compliance with all applicable laws. If Customer or its agents performs any act or omission which contaminates or expands the scope of contamination of the Facility then Customer will promptly, at Customer’s expense, take all investigatory and remedial actions necessary to fully remove and dispose of such Hazardous Materials and any contamination so caused in compliance with all applicable laws. Customer will also repair all damage to the Facility and any other real or personal property caused by such contamination and remediation.