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Master Service Agreement

This Master Service Agreement (the “Agreement”) is between Subconscious, LLC (“Service Provider”) and Service Provider’s Client(s).

1. Service Fees and Billing. Client agrees to pay the monthly charges for Service, the activation and other charges indicated on the Order(s) or otherwise due hereunder (collectively, “Fees”). Fees do not include applicable taxes (if any), shipping charges (if any), all of which shall be billed in addition to the Fees and shall be the responsibility of the Client. In lieu of any similar billing, service term and/or termination clauses in the Agreement, the following terms will apply:

1.1 Initial Payment. Upon Service Provider’s acceptance of the Order and full execution of this Agreement, Client shall be invoiced for all Service Activation Charges and the first full month’s Fees which shall be due upon execution of Agreement.

1.2 Charges. Client will pay the monthly recurring charges (“MRCs”), non-recurring charges (“NRCs”), and any applicable power or per kW charges, on a breakered amp load basis, a metered usage basis, or a kilowatt basis as set forth on the Order beginning on the Service Commencement Date. Notwithstanding anything to the contrary including any provision in any document that indicates rates are fixed for the Initial Service Term, Subconscious may increase the rates associated with existing Service upon thirty (30) days prior written notice (i) at any time during the Service Term in order to pass through increases in underlying power utility costs; and (ii) at any time after twelve (12) months after the Service Commencement Date and each twelve (12) month period thereafter in order to implement an annual escalator of no more than 5%. In addition, Subconscious reserves the right to adjust rates at any time after expiration of the Initial Service Term due to inflation.

2. Recurring Fees. Service Provider will bill Client monthly in advance for all recurring Fees and in arrears for usage-based or non-recurring Fees. Billing for monthly Fees will begin on the earlier of: (a) the date that Client starts using the Service or installs Client Equipment in Service Provider’s premises (b) within ten (10) days after the Ready For Service Date. If, however, Client is unable to use the Services due solely to delays caused by and within the reasonable control of Service Provider, then the date on which monthly Service Fees billing begins will be extended by one day for each such day of delay.

3. Payment. Client will pay in full all invoices from Service Provider in U.S. dollars within fifteen (15) days of the date of invoice. Late payments will accrue interest at a rate of one and one-half percent (1 ½%) per month or the highest rate allowed by applicable law, whichever is lower. If payment is returned to Service Provider with insufficient funds, Client is considered to not to have paid and subject to a returned check charge of $25 and may be terminated for Nonpayment as described in 12.1.

4. Local and Long Distance Carriers. Client is responsible for ordering, maintaining, terminating and paying for any data and telecommunications circuits provided to Client by local and long-distance carriers including cross-connects from Service Provider.

5. Other Networks. Client is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the Network and/or through other public and private networks. Service Provider is not responsible or liable for performance or non performance of such networks or their inter-connection points.


7. Disclaimer of Third Party Actions and Control. Service Provider does not and cannot control the flow of data to or from the Network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which Client connections to the Internet (or portions thereof) may be impaired or disrupted. Service Provider cannot guarantee that such situations will not occur and, accordingly, Service Provider disclaims any and all liability resulting from or related to such events. In the event that Client’s use of the Service or interaction with the Internet or such third parties is causing harm to or threatens to cause harm to the Network or its operations, Service Provider shall have the right to suspend the Service. Service Provider shall restore Service at such time as it reasonably deems that there is no further harm or threat of harm to the Network or its operations.

8. Insurance. Client will keep in full force and effect during the term of this Agreement: (i) commercial general liability insurance; (ii) workers’ compensation insurance in an amount not less than that required by applicable law; and (iii) business property insurance covering Client’s equipment in the amount of its replacement value.

9. Limitations of Liability.

9.1 Personal Injury. Service Provider will not be liable for any harm or personal injury to Client personnel resulting from any cause, other than Service Provider’s gross negligence or willful misconduct.

9.2 Damage to Client Equipment. Service Provider is not liable for damage to, or loss of any of Client Equipment resulting from any cause, other than Service Provider’s gross negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged Client Equipment, or the total amount paid by Client to Service Provider for one month’s service, whichever is lower.

9.3 Damage to Client Business. In no event will Service Provider be liable for any incidental, punitive, indirect, or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or interruption or loss of use of Service or any other similar claims by Client or related to Client’s business, even if Service Provider is advised of the possibility of such damages. Service Provider will not be liable for any damages or expenses incurred by Client as a result of any deficiency, error, or defect in Service Provider’s service whether due to equipment, hardware, software, or Service Provider’s failure to correct the same.

9.4 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, Service Provider’s maximum aggregate liability to Client related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount paid by Client to Service Provider for one month’s service.

10. Client will indemnify, defend and hold harmless the Service Provider Parties from and against any and all claims, actions or demands arising out of Client’s use of the Service alleging: (a) with respect to the Client’s business: infringement or misappropriation of any intellectual property rights; defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or spamming or any other offensive, harassing or illegal conduct or violation of the Acceptable Use Policy; (b) any loss suffered by, damage to or injury of any other Service Provider Client, any other Client equipment or personnel, which loss, damage or injury is caused by acts or omissions by Client personnel; (c) any personal injury suffered by any Client personnel arising out of such individual’s activities related to the Services, unless such injury is caused by Service Provider’s gross negligence or willful misconduct; or (d) any other damage arising from the Client Equipment or Client’s business. Client agrees to reimburse Service Provider for the expense and cost of handling such claims including, without limitation, legal fees.

11. Term. This Agreement will commence on the Effective Date and shall expire at the end of the last “Term” specified in any Order, unless sooner terminated as provided in Section 13 below, provided, however, that each Order shall automatically renew for additional periods of the same length as the initial Term upon the end of its Term unless one party provides the other written notice that it is terminating such Order not more than 90 days and not less than 30 days prior to the end of the Term specified in the Order.

11.1 Rate Adjustments. After the initial term, Subconscious has the right to increase rates by giving Client 30 days advance notice of its intention to do so (as stated in section 1.2). Client may terminate service within the 30 day period or continue to use service and pay the increased rate.

12. Termination.

12.1 Nonpayment. Service Provider may suspend Service to Client if any amount due hereunder is not paid in full within fifteen (15) days after Client is sent an overdue notice. To reinstate Service, Service Provider will require payment of the overdue amount. Service Provider may terminate this Agreement (or at its option, only the relevant Order) if any amount due hereunder is not paid in full within sixty (60) days after Client is sent an overdue notice.

12.2 Bankruptcy. Service Provider may terminate this Agreement upon written notice to Client if Client becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.

12.3 Unacceptable Use. Service Provider may immediately terminate this Agreement if Client violates any provision of the Service Provider Acceptable Use Policy that results or could result in suspension by Service Provider.

12.4 For Other Cause. Except as otherwise stated, either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of the same.

12.5 Service Provider shall have the right to terminate Client’s use of the Colocation space or the Service delivered at a specific facility therein in the event that Service Provider’s rights to use the facility terminates or expires for any reason.

12.6 Effect of Termination. Upon expiration or termination of this Agreement: (a) Service Provider will cease providing the Services; (b) except in the case of termination by Client pursuant to Section 12.1, 13.4, or 13.5, all of Client payment obligations under this Agreement, including but not limited to monthly Service Fees through the end of the Term indicated on the Order(s) will become due in full immediately; and (c) within ten (10) days, Client will remove all of Client Equipment and any other property from Service Provider’s premises and return the Colocation Space to Service Provider in the same condition as it was prior to Client installation. If Client does not remove such property within the ten (10) day period, Service Provider, at its option and at Client expense, may remove and store any and all such property, return such Equipment to the Client, or dispose of such equipment without liability for any related damages. In addition, Service Provider reserves the right to hold any Client Equipment until it has received payment in full.

13. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.

14. Miscellaneous Provisions.

14.1 Force Majeure. Neither party will be liable, nor will any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”).

14.2 No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of or tenancy or other interest in the Colocation Space or other Service Provider premises, the Service Provider Equipment or any other real or personal property.

14.3 Government Regulations. Client will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Client operates or does business.

14.4 Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to an affiliate or a party that acquires substantially all of the assigning party’s assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

14.5 Notices. Any required notice hereunder may be emailed to, delivered personally or by courier; sent by confirmed facsimile; or mailed by registered or certified mail, return receipt requested, postage prepaid, to either party at the name and address on the signature page of this Agreement, or at such other address as such party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered personally or by courier, or five (5) days after it is sent by confirmed facsimile or mailed.

14.6 Relationship of Parties. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.

14.7 Changes Prior to Execution. Client represents and warrants that any changes to this Agreement made by it were properly marked as changes and that Client made no changes to the Agreement that were not properly identified as changes.

14.8 Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles.

14.9 Confidential Information. The terms and conditions of this Agreement, any Order(s) and other related Service Provider documents are confidential information.

15. General. This Agreement (including Appendix A and B below), together with the Order(s) and Service Provider policies referred to in this Agreement is the complete agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral. This Agreement may be executed in two or more counterparts (and the signature pages may be delivered with ink or electronic signature or by facsimile or email), each will be deemed an original, but all together will constitute one and the same instrument. This Agreement may be modified only through a written instrument signed by both parties. Should any provision of this Agreement be declared void or unenforceable, such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of this Agreement will remain in full force and effect. If a conflict arises between Client’s purchase order terms and this Agreement and Order(s), this Agreement and Order(s) shall take precedence. In the case of international, federal, state or local government orders, Client purchase order must contain the following language: “This purchase order is being used for administrative purposes only and is subject to the terms and conditions of the Service Provider Master Service Agreement executed between Client and Service Provider.”

16. Definitions

“Bandwidth Fees” Fees for usage of bandwidth provided under this Agreement as set forth in the Order. “Colocation Space” The physical area within Service Provider’s Colocation facility identified in an Order.

“Client Equipment” The computer, network, or other equipment placed by or for Client in the Colocation Space, other than Service Provider Equipment.

“Fees” Charges and fees for Services charged to Client by Service Provider, exclusive of Taxes.

“Service Provider Equipment” All computer equipment, software, networking hardware, shelving, cabling, cross connects or other materials belonging to or furnished by Service Provider.

“Service Provider Parties” Service Provider and its affiliates, owners, partners, trustees, officers, directors, employees, and agents.

“Network” The network of routers, switches and circuits that are owned or controlled by Service Provider.

“Order” An order for Service prepared by Service Provider, submitted by Client, and accepted by Service Provider. Service Provider is under no obligation to accept an Order. For legacy purposes, an Order may also be called Quotation of Services (“Quote”). Client and Service Provider may enter into subsequent Order(s), which will automatically become part of this Agreement. In the event of conflict between the terms of this Agreement and the terms of an Order, the terms of the Order shall control.

“Personnel” refers to employees, representatives, agents, contractors, or subcontractors.

“Ready For Service Date” refers to the date Service Provider has delivered the Service ready for Client use.

“Service” All services, goods and other offerings provided by Service Provider under an Order pursuant to this Agreement.

This appendix only applies if Client is receiving Internet Service from Subconscious.

A.1 Acceptable Use Policy. Client will at all times comply with and conform its use of the Service to the Service Provider Acceptable Use Policy (set forth at Service Provider’s website), as updated from time to time. In the event Client violates Service Provider’s Acceptable Use Policy, Service Provider shall have the right to immediately suspend Service. Service Provider will provide notice and opportunity to cure, if and to the extent Service Provider deems practicable, depending on the nature of the violation and availability of the Client. Service Provider, in its reasonable discretion, may re-enable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.

A.2 Updates. Service Provider may update the Service Provider Acceptable Use Policy from time to time by posting such updates on Service Provider’s website. References herein to the Service Provider Acceptable Use Policy shall mean the most updated version of such policies or procedures posted on Service Provider’s web site. Service Provider shall notify Client of any material changes to its policies and procedures.

A.3 Illegal Use. Client will cooperate in any investigation of Client’s alleged illegal use of Service Provider’s facilities or other networks accessed through Service Provider. If Client fails to cooperate with any such investigation, Service Provider may suspend Client’s Service. Additionally, Service Provider may modify or suspend Client’s Service in the event of illegal use of the Network or as necessary to comply with any law or regulation, including the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512, as reasonably determined by Service Provider.

A.4 Address Space. Service Provider will assign IP addresses to Client based upon ARIN guidelines. Addresses assigned to Client by Service Provider may only be used while a Service Provider Internet Service Client. If Client has a valid address allocation from ARIN, RIPE, APNIC, LACNIC, or AFRINIC Client may request Service Provider to announce it via BGP at no additional charge.

A.5 Bandwidth Measurement. Bandwidth usage will be calculated by the Service Provider using Observium’s SNMP scanning and monitoring features. The 95th percentile of bandwidth usage will be determined based on samplings taken at 5-minute intervals over a monthly period. Observium will gather these samples from the Service Provider’s switch or router port to which the Client is connected. These samples represent the greater of input or output bits per second. The 95th percentile is calculated by Observium by sorting the data from smallest to largest and discarding the top 5 percent, with the remaining largest sample being designated as the 95th percentile.

This appendix only applies if Client is receiving Colocation from Subconscious in a Service Provider Electric data center.

B.1 Use of Space. Service Provider grants Client the right to operate Client Equipment at the Colocation Space, as specified on Client’s Order. Except as specifically provided herein, Client expressly assumes all risk of loss to Client Equipment in the Colocation Space. Client shall be liable to Service Provider for any damage to the Colocation facility, Service Provider Equipment or equipment of other Service Provider Clients caused by Client, Client Equipment, or Client’s personnel. Client Equipment shall be industry-accepted information and communication technology equipment suitable for use in a data center.

B.2 Client Equipment Installation and Removal. Client is responsible for all aspects of installation and removal of Client Equipment, including bringing appropriate equipment, tools and packaging materials. Client will install Client Equipment in the Colocation Space after obtaining the appropriate authorization from Service Provider to access Service Provider premises. Client will remove all packaging for Client Equipment promptly after installation. Should Client use an agent or other third party to deliver, install or remove Client Equipment, Client will be solely responsible for the acts of such party. At Client’s option, Service Provider will remove and package Client Equipment and place Client Equipment in a designated area for pick-up, on the condition that Client either provide or pay for all needed packaging plus pay Service Provider’s packaging fees and charges. Within five (5) days after authorization from Service Provider, Client will remove Client Equipment from the designated area or arrange on a paid basis for a carrier to pick-up and ship such equipment to Client. Client may request remote hands service for the purpose of installation of equipment that has been shipped preconfigured by Client to Service Provider.

B.3 Designated Space. Service Provider will designate space for Client. All of Client’s equipment and property must be stored in Client’s designated space or removed from the premises by Client. Equipment and other property left by Client in an area other than the Client’s designated space may be considered abandoned by Service Provider. In that event, Service Provider may, at its option either (a) retain such items as its property or dispose of them without accountability in such a manner as Service Provider shall determine, at Client’s expense, or (b) remove and store such items for Client, at Client’s expense.

B.4 Electrical Power. Unless otherwise specified on Client’s Order, each cabinet or rack shall be supplied with one 208v 30A single phase electrical circuit connected to its own circuit breaker. Any power strips provided by Service Provider are subject to the Limitations of Liability contained within this Agreement. Service Provider does not keep track of the power requirements of Client equipment and will not be held liable by Client if Client, by action of Client’s personnel or by Service Provider’s personnel at the request of Client, exceeds the rating of an electrical circuit, power strip, and/or circuit breaker. Subconscious is not responsible for damage caused by loss of power due to a circuit breaker tripping, equipment failure, or other reason. The Client will be allocated a power capacity of 5kVa/5kW, unless otherwise agreed upon in the Client Order. Service Provider will monitor the power usage. Should the Client’s consumption exceed this allocated capacity, they will be billed for the extra usage at a rate calculated per kVa over the agreed amount. If the Client exceeds their allocated power capacity for more than 60 consecutive days, both parties will discuss the possibility of increasing the monthly kVa allocation to ensure safe and efficient use of resources. Client is responsible for any damage to the circuit breaker, wiring, electrical outlet, power strip, or other electrical equipment caused by a sustained over amperage condition.

B.5 Cross Connects. Client may run cross connects between Client’s adjacent cabinets at no charge. In addition to any cross connects between Client’s adjacent cabinets, Client may request one category 5e cross connect at no charge per Client’s nonadjacent cabinets, within Service Provider’s facility at no additional charge. Client may request cross connects at the then current rate. All cross connects to cabinets other than Client’s cabinets or between Client’s nonadjacent cabinets shall be installed solely by Service Provider and no cross connects shall be performed in any other manner or location, unless otherwise permitted by Service Provider in writing at its sole discretion. The term of the license of any such cross connects shall commence on the date of installation. Client may terminate the license of any such cross connection upon at least thirty (30) days advance written notice to Service Provider (provided that, without limiting such notice period, the effective date of termination must be the first day of a calendar month). Client shall not be entitled to any other cross connects or other connections. All cross connects shall be subject to the consent of the party with whom Client wishes to connect.

B.6 Access and Security. Client personnel may access the Colocation Space as allowed by the access list provided by Client to Service Provider. Service Provider reserves the right to deny access to specific Client personnel for billing or security reasons. Client shall be responsible for any authorized or unauthorized access to Client Equipment through the Internet and any resulting use of Service.

B.7 Relocation and Changes. Subconscious reserves the right (at Subconscious’s reasonable cost) to move the location of or change configuration of the Space licensed to Client, provided that Subconscious will not arbitrarily require such moves or changes. Subconscious and Client will work in good faith to minimize any disruption in Client’s services that may be caused by changes in location or configuration of the Space. If any change (e.g., any changes in the configuration, build-out of the Space) at Client’s request after submission of the Order and Subconscious’s acceptance of such Order results in a delay of Subconscious’s delivery of Space, billing for Space will commence no later than the original Client Commit Date or Service Commencement Date, as applicable.

B.8 Prohibited Uses. Client shall not do or allow any use which in the opinion of Service Provider (a) causes or is likely to cause damage or constitutes a nuisance or annoyance to the facility, equipment, personnel, or other Clients (b) would violate a condition of standard fire insurance policy for data processing centers in California (c) would violate any certificate of occupancy for the building.


End of Service Provider Master Service Agreement.