TERMS AND CONDITIONS

These Terms and Conditions, including the Service Level Agreement, attached hereto and incorporated by reference, (collectively the “Terms and Conditions”) is entered into between HCC., 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 (“HCC”), and the party (“Customer”) identified in a service order form(s) (as defined below). HCC and Customer are referred to as “Party,” and the “Parties,” the Terms and Conditions and Service Order Form(s) existing entered between HCC and the Customer, are collectively referred to as the “Agreement”).

• Definitions.

1. “Acceptable Use Policy” means the acceptable use policy published on HCC’s website, as the same may be amended from time to time.
2. “Data Center,” suggests the HCC’s center where it runs Services for its Customers.
3. “Facility” is the building where the Data Center is located.
4. “Monthly Recurring Charges” or “MRC” means the fixed monthly fees set forth on any Service Order Form.
5. “Rules and Regulations” are the rules and regulations published on HCC’s website, as the same may be amended from time to time. The Rules and Regulations apply to any Service Order Form that includes colocation Services.
6. “Service Order Form” means each service order form now, heretofore, or hereafter entered between Customer and HCC.
7. “Services” means such of HCC’s Colocation, IP Transit/Transport, Cloud, Disaster Recovery, and Managed Services ordered by Customer, which are to be provided by HCC according to a Service Order Form.
   1.  

• Services, Maintenance, Support, Training, and Service Levels.

1. Services: Subject to the terms and conditions of the Agreement, HCC 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. HCC shall provide 24/7 customer and technical support services to Customer via e-mail through submissions to support@HCC.com and telephone through calls made to 888-853-7733 extension two or via HCC’s customer portal. HCC reserves the right to change its contact information at any time upon notice to the Customer. Support calls for services beyond those correctly outlined in herein and in the Service Order Form shall result in additional charges.
2.  Additional Charges: All services not explicitly delineated on a Service Order Form shall be considered other services. HCC 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, other 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 subject to price changes by the third parties at any time during this contract. HCC requires that a support ticket be created within the HCC customer portal before any support work can begin.
3. Maintenance: HCC may carry out periodic maintenance or upgrade work on the network or equipment or to the Facility infrastructure and equipment. HCC will use commercially reasonable efforts to notify Customer via e-mail or phone according to the information provided on the primary account contact at least 48 hours in advance of scheduled maintenance and scheduled downtime. The Customer is responsible for delivering HCC with accurate and current contact information for Customer’s designated points of contact. HCC reserves the right to perform emergency maintenance as needed with no notice.
4. Use of Subcontractors: Customer acknowledges that in the course of performing Services hereunder, HCC, in addition to its employees, may desire or require the services and assistance of subcontractors, agents and representatives in connection with the Services or Deliverables to be provided under the Agreement.

• Customer Responsibilities.

The customer shall comply with HCC’s Acceptable Use Policy. Customer shall not use the Services:

1. For any purpose other than for customer’s own personal or internal business needs;
2. In a manner that violates any applicable law or regulation, including export restrictions;
3. 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);
4. To create a false identity or attempt to mislead anyone (including HCC) as to origin or transmitter of any communication, information or other material;
5. To violate the privacy or breach the security of any other person; or
6. To access or monitor computer, information or communications devices or resources of HCC, including but not limited to, engaging in any unauthorized security probing activities or other attempts to evaluate or test HCC’s networks or host system.

   HCC will have the right to monitor online conduct, usage, and communications 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, which are incorporated by this reference.

• Fees and Payment Schedule.

1. Invoicing: HCC shall, via e-mail or postal mail, invoice Customer for fees due and payable for Services to be performed for the upcoming month according to each Service Order Form and bandwidth usage or overages metered power usage and additional Services provided in the prior month. The first invoice under a Service Order Form shall include the first month’s MRC (prorated for any partial first month), the setup and other one-time fees, and shall be payable on or before the commencement date of the Services. After that, 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 be provided. Customer shall pay all applicable federal, state, and local taxes, arising out of the Agreement (except those based upon HCC’s income). The customer shall pay all property taxes on the customer’s equipment.
   
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. Besides, HCC 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). The customer shall pay HCC all costs of collection, including attorneys’ fees, charges, and expenses incurred in connection in addition to that.
3. Cessation of Services: In the event, the customer does not remit payment of all amounts due under an invoice by the tenth day following its due date, HCC may, at its discretion and without notice, cease providing Services to Customer, including but not limited to, denying Customer access to the Facility.
4. Security Deposit: Upon signing and delivering the Service Order Form, Customer shall deposit with HCC 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”). HCC shall not be required to maintain the Security Deposit in a separate account, and the customer shall not be entitled to interest on the Security Deposit. If the customer fails to pay any amount when due, HCC 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 days after the payment due date for two months during the Term, then in addition to its other remedies hereunder, HCC shall be entitled at its sole discretion to increase the required Security Deposit in an amount equal to up to six month’s MRC. Within five business days after receipt of written notice of any deficiency in the amount of the Security Deposit (either due to withdrawals by HCC or an increase in the required amount), the customer shall deposit with HCC 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 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, HCC shall return the Security Deposit less any portion thereof as HCC shall have used to satisfy customer’s obligations under the Agreement.
5.  

• Confidential Information.

1. Non-Disclosure: Each Party agrees to treat the Confidential Information (as defined below) related to the other party’s rights and obligations under the Agreement and the business and activities of the other party, its customers, clients, suppliers and other entities with whom such other party do business. The information 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 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 preceding, either party may disclose the other Party’s Confidential Information according to applicable law or regulation or compulsion of proper judicial or other legal processes. However, that the disclosing party shall, unless prohibited by law, provide prompt notice of the same before such required disclosure such that the other party may seek a protective order or other appropriate remedies to safeguard, restrict or limit the disclosure of such Confidential Information. Despite the preceding, HCC may, without prior notice to Customer, comply with governmental agencies’ requests. 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, plans, and strategy; provided. The data shall not be considered Confidential Information, but only to the extent that such information becomes publicly available through no fault, default, or breach by the receiving party or was rightfully acquired by the receiving party from another without restriction or obligation of confidentiality. If the receiving party independently develops such information without the use of or reference to Confidential Information of the other Party, upon any termination of the Agreement, within ten days of the effective date of expiration, Customer shall return to HCC (or destroy at HCC’s request) the Confidential Information of HCC in his possession.
2. Equitable Relief: In the event of a breach or threatened breach of the previous 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 solution available under the Agreement.

    

• Term and Termination; Transition Assistance.

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 condition outlined 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 before the expiration date of the initial term or the then-current Renewal Term, as applicable. At HCC’s option, the term will not automatically be renewed if the customer is then in default under the Agreement. HCC reserves the rights to change its prices at any time during any Renewal Term, with or without notice to the customer; however, such changes will be limited to a maximum of 10% in any Renewal Period unless HCC first gives Customer notice of a higher increase and customer fails to object to such increase within ten days of such notice. Nonetheless, 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.
2. Event of Default by Customer: The occurrence of any one or more of the following shall constitute an Event of Default by Customer:
   – Customer for any reason fails to pay HCC any fees, charges or any other due under the Agreement within ten days of its due date;
   – Customer fails to perform any obligation or covenant outlined in the Agreement within ten business days following receipt of written notice thereof;
   – 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. If the customer is adjudicated bankrupt, liquidates its business voluntarily, applies for, consents to or suffers the appointment of possession by a receiver, or a similar fiduciary of itself. 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 or fails to have dismissed, within 30 days, any petition filed against it in an involuntary case according to such bankruptcy laws and takes any action to effect any of the preceding.
3. Event of Default by HCC: The failure by HCC to perform any material obligation or covenant outlined in the Agreement within thirty days following receipt of written notice, it shall not be an Event of Default by HCC if such failure is capable of cure and HCC commences to cure such failure within said thirty days and after that diligently prosecutes the curing. Upon the occurrence of an Event of Default by HCC, the customer may terminate the Agreement upon notice of ten days.
4. Remedies upon Event of Default by Customer: Upon the occurrence of an Event of Default by Customer, HCC shall have the right to discontinue all Services of the customer with or without notice and to disconnect customers from its internet, power and telecommunications services. It will remove any Customer equipment from the Data Center and place it in storage at the customer’s expense and subject to HCC’s lien rights upon written notice to the customer to terminate the Agreement. If the Agreement is terminated, the customer shall have to pay to HCC immediately. All amounts due to HCC, including late charges, plus an amount equal to the total MRC charges that customers would have paid HCC over the remainder of the term of the Agreement as specified on each Service Order Form.
5. Elective Termination: Customer acknowledges, agrees, and covenants that he is responsible for full payment of the services for the entire term regardless of the portion of the services consumed. Customer may at its option, terminate any Service Order Form by submitting to HCC at billing@HCC.com sixty days prior written notice of termination of such Service Order Form and payment to HCC, by way of liquidated damages and not a penalty, of an amount equal to the aggregate MRC. The amount would have been paid over the remainder of the then term (extended under Section 6.1) for such Service Order Form. (e.g., if any customer terminates a Service Order Form fourteen months into a two-year term for any reason other than an Event of Default by HCC, Customer shall pay to HCC a termination fee equal to the balance of all MRC for the remaining ten months of the term).

• Representations, Warranties, and Covenants.

Authority to Execute the Agreement:

Authority to execute the Agreement: Each Party represents, warrants and covenants to the other Party that;

• It has the full corporate right, power, and authority to enter into the Agreement and perform the acts required of it under the Agreement,
• 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,
• The Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered,
• Any activities it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules, and regulations.

Indemnification; Limitation of Liability.

1. By Customer: Customer agrees to indemnify at its own expense any claim against HCC, its parent companies, affiliates, successors, respective officers, directors, employees, shareholders, representatives, and agents (each an “Indemnified Party”) 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 a customer, except claims arising out of the gross negligence or intentional misconduct of HCC as determined by a court of competent jurisdiction. For purposes of the Agreement, the term “Claims” means any 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 person (including death at any time resulting from that injury), destruction of 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. Obligations of the Customer shall not be conditioned upon receipt of such notice except to the extent that the Customer is prejudiced by such failure to give notice. The 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 preceding, the Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Customer and 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 consent shall not be unreasonably withheld. The Customer may not agree to a Claim’s solution against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.
   
   
2. By HCC: HCC agrees to indemnify, defend and 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 HCC’s gross negligence or intentional misconduct. The provisions of this section shall survive the expiration or earlier termination of the Agreement. HCC shall be given prompt notice of any claim asserted or threatened against and the basis on which indemnification is sought. HCC shall solely conduct the defense of any such claim or action and all negotiations for its settlement or compromise. Provided that no covenant or commitment affecting the financial or legal obligations of Customer shall be agreed to without Customer’s prior approval unless such solution 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. The Customer has the right to participate, at its own expense, in the defense to protect its interests. HCC shall have no liability for any damage to the Customer’s personal property or Equipment.
   
   
3. Disclaimer: HCC will not be liable for any consequential, incidental, exemplary, punitive, or multiple damages, even if HCC was advised in advance of the possibility of such damages.

• General.

1. 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 HCC’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 HCC 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 HCC assigns its interest in the Agreement, HCC 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 HCC’s successor in interest for any liability under the Agreement after such assignment. Customer agrees to attorn in writing to HCC’s successor in interest if requested to do so.

1. 1. Relationship; No Third-Party Beneficiaries. Each Party is 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.

1. 1. 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 HCC 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.

1. 1. 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 HCC to use customer’s name, logos and trademarks in publicity, marketing or promotional material and to release Customer’s name to other HCC potential and current customers.

1. 1. 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 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 principals. 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, HCC 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 HCC and Customer are adverse parties, including cross-complaints by one against the other.

1. 1. 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 HCC remain as provided by law.

9.7   Limitation of Liability.   IN THE EVENT THAT HCC 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 HCC), HCC’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. HCC SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. HCC 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 HCC 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.

HCC 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), 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 HCC AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY.

1. 1. 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. HCC 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. HCC EXERCISES NO CONTROL WHATSOEVER OVER THE CONTENT OF INFORMATION PASSING THROUGH ITS NETWORK OR OVER THE INTERNET.

1. 1. 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 HCC’s  consent hereunder, Customer shall pay, within ten (10) days after invoicing by HCC, all of HCC’s review, processing fees, and costs as well as any reasonable professional attorneys, accountants, engineers or other consultant’s fees incurred by HCC or the owner of the Facility relating to such request for consent.

1. 1. 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.

1. 1. 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 HCC’s website.

1. 1. 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.

1. 1. 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 HCC 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.

1. 1. 1. “CDR” (Committed Data/Information Rate) means the data throughput rate selected by Customer in the Service Order Form and provided as part of Services.

1. 1. 1. “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 HCC or make facilities or components available to HCC for testing or repair or otherwise to comply with HCC’s instructions and service requirements, (ii) defect in any Customer equipment which is not managed by HCC, (iii) improper configuration not performed by HCC;

(iv) service interruptions requested by Customer, (v) Customer failure to act in a timely and/or proper manner when notified to do so by HCC, or (vi) transmission of data at a rate in excess of the CDR or the requested burstable port that the Customer is on.

1. 1. 1. “Customer’s Equipment” means all Customer owned or operated equipment that is colocated at any of HCC’s Data Centers.

1. 1. 1. “Colocation Services” means those Services set forth under any Service Order Form under which HCC provides space for Customer’s Equipment.

1. 1. 1. “Data Center Availability” means all the time in any calendar month the Data Center is available to visit.

1. 1. 1. “Data Center Downtime” means any interruption in the Data Center Availability.

1. 1. 1. “Defective Hardware” means a defective hardware associated with a Device, including CPU, memory, and hard drives, but specifically excludes non-RAIDed servers.

1. 1. 1. “Device” means any shared or dedicated device which is managed by HCC as provided in the Service Order Form.

1. 1. 1. “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.

1. 1. 1. “Device Downtime” means the failure of Device Availability. Device Downtime will be deemed to occur for the period of the outage as reported through HCC’s trouble ticketing system.

1. 1. 1. “Device MRC” means that portion of MRC for the applicable Device.

1. 1. 1. “Device Repair or Replacement” has the meaning ascribed to it in Section 5.4 below.

1. 1. 1. “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 HCC’s choosing. Environment does not apply with respect to the hot aisle(s) ambient temperature in the Data Center.

1. 1. 1. “Environment Downtime” means failure to maintain the Environment.

1. 1. 1. “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.

1. 1. 1. “IP MRC” means that portion of MRC applicable to IP Transit/Transport Services.

1. 1. 1. “Managed Services” means the delivery, maintenance, and management of shared or dedicated infrastructure used to provide cloud, disaster recovery, storage, backup, network, hosting, and maintaining of equipment, communications, network infrastructure and devices as set forth in any Service Order Form.

1. 1. 1. “MRC” has the meaning ascribed to it in the Terms and Conditions.

1. 1. 1. “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.

1. 1. 1. “Network Availability” means all the time in any calendar month that the Network is available.

1. 1. 1. “Network Downtime” means any interruption of Network Availability. Network Downtime will be deemed to commence and end as reported on HCC’s monitoring system.

1. 1. 1. “RAIDed” means a storage configuration for a server that has redundant disks using RAID levels other than 0.

1. 1. 1. “Power” means the physical electricity delivered to the Customer within the Data Center.

1. 1. 1. “Power Downtime” means any interruption to the Power delivered to the Customer. Power Downtime will be deemed to commence and end as reported on HCC’s electrical monitoring system.

1. 1. 1. “Power MRC” means that portion of MRC allocated to Power.

1. 1. 1. “Scheduled Downtime” means times scheduled by HCC 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, HCC 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. HCC 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 HCC’s sole discretion.

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

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

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

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

1. 1. 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 HCC. HCC shall have no liability for the failure of any other systems or services, including but not limited to application systems.

1. 1. In no event shall HCC 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

1. 1. HCC will provide Customer 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.

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

• SERVICE LEVELS FOR COLOCATION SERVICES

• Service Level for Data Center Availability.

1. 1. 1. HCC endeavors to provide Data Center Availability 100% of the time.

1. 1. 1. If there is Data Center Downtime in any calendar month, Customer 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.

• Service Level for Scheduled Downtime.

1. 1. 1. HCC endeavors to limit Scheduled Downtime to 12 times in any calendar year.

1. 1. 1. If Scheduled Downtime exceeds 12 times in any calendar year, Customer 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.

• Service Level for Power Availability.

1. 1. 1. HCC endeavors to provide Power 100% of the time.

1. 1. 1. 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%.

• Service Level for Environment Downtime.

1. 1. 1. HCC endeavors to maintain the Environment at the Data Center 100% of the time.

1. 1. 1. If there is Environment Downtime in any calendar month Customer 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

• Service Level for Scheduled Downtime.

1. 1. 1. HCC endeavors to limit Scheduled Downtime to 12 times in any calendar year.

1. 1. 1. If Scheduled Downtime exceeds 12 times in any calendar year, 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 Scheduled Downtime is exceeded.

• Service Level for Network Availability

1. 1. 1. HCC endeavors to provide overall Network Availability 99.99% of the time.

1. 1. 1. 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

• Service Level for Scheduled Downtime.

1. 1. 1. HCC endeavors to limit Scheduled Downtime to 12 times in any calendar year.

1. 1. 1. If Scheduled Downtime exceeds 12 times in any calendar year, 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 Scheduled Downtime is exceeded.

• Service Level for Network Availability

1. 1. 1. HCC endeavors to provide overall Network Availability 99.99% of the time.

1. 1. 1. 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 Level for Device Availability.

1. 1. 1. HCC endeavors to provide Device Availability 100% of the time.

1. 1. 1. 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.

1. 1. 1. If Device Downtime occurs as a result of Defective Hardware and HCC does not restore availability to the applicable Device or a comparable Device within two (2) hours of notification of failure as reported through HCC’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..

• Service Level for Device Repairs and Replacement.

1. 1. 1. HCC endeavors to repair or replace defective Devices within 72 hours (“Device Repair or Replacement”).

1. 1. 1. If HCC does not replace or repair a defective Device within 72 hours of the time that HCC 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 HCC 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 HCC’s ability to provide Device Service and technical support to Customer is contingent upon HCC’s ability to manage, monitor and/or connect HCC’s network to such Device. As determined solely by HCC, in the event that Customer impairs HCC’s ability to manage, monitor and/or connect HCC’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 HCC 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

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

1. 1. 1. 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;

1. 1. 1. Customer has submitted to HCC within seven calendar days of the Service Outage a claim in writing to HCC at billing@HCC.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 HCC within the period stated above shall result in Customer’s waiver of its right to receive any such credit and/or other compensation;

1. 1. 1. HCC has agreed in writing, acting reasonably and without undue delay, to issue such credit and/or other compensation in connection with such claim;

1. 1. 1. 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.

1. 1. 1. Customer is not in violation of the Rules and Regulations or, if applicable, the ANSI/NFPA/NEC 70 power standard codes;

1. 1. 1. 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 HCC; and

1. 1. 1. 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.

• 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 HCC to meet its services requirements under the Terms and Condition, including this SLA, and the Service Order Form.

1. 1. 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.  HCC 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 HCC’s website.

EXHIBIT B

Additional Terms for Colocation Services

1. License Grant. By executing a Service Order Form for colocation services, HCC 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 HCC will be using the Facilities. HCC 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 maybe 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).

1. 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 HCC or HCC’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.

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

1. 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.

1. Rules and Regulations. Customer agrees to abide by and honor the all Rules and Regulations as from time to time published by HCC, a copy of which is posted at its web site at www.HCC.com. (Collectively the “Rules and Regulations”). Any amendments to the Rules and Regulations shall be effective upon posting at HCC’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.

1. Equipment Installation. Any delivery, installation, replacement or removal work with respect to Customer’s equipment shall be subject to review and approval by HCC, such approval not to be unreasonably withheld. From time to time HCC 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. HCC 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 HCC’s prior written approval.

1. 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 HCC’s election, the  contractor designated by HCC) shall, at Customer’s sole cost and expense, promptly remove (subject to HCC’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 HCC’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, HCC 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 HCC. Notwithstanding anything to the contrary contained in the Agreement, Customer shall not, without HCC’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 HCC 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, HCC’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 harmless to HCC for any and all damages and claims incurred by HCC as a result of Customer’s failure to timely remove its Equipment and vacate the Space.

1. Damage to the Facility. If the Facility or access thereto, is damaged by fire or other casualty, HCC shall give notice to Customer of such damage as quickly as practicable. HCC 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 HCC does not exercise the right to terminate, then HCC 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 HCC have any obligation to repair or replace any of Customer’s personal property, including but not limited to Customer’s equipment.

1. 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 HCC 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 HCC evidence that Customer has the insurance policies required hereunder in effect and shall provide to HCC certificates, with copies of all applicable endorsements attached. Such certificates shall name HCC and such other entities as HCC may reasonably designate as additional insureds. Each such policy shall provide that it cannot be canceled or modified

unless HCC 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, HCC may obtain such coverages at Customer’s expense. Customer’s property insurance shall include a waiver of subrogation in favor of HCC. If any work is to be performed by third parties for Customer at the Facility, a certificate of insurance covering the third party and meeting the foregoing requirements shall be delivered by Customer to HCC prior to such third party accessing the Facility.

1. 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, HCC may, at its discretion, assert a possessory lien on and maintain possession of all Customer Equipment as collateral for amounts owed.

1. 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.