08/20/2014 AgreementAMY NEAVILIN, CPA
CLERK OF CIRCUIT COURT & COMPTROLLER
MMEMM
DATE: August 26, 2014
TO: Bob Ward, Director
Information Technology
ATTN. • Maria Guerra
Sr. Administrative Assistant
FROM. • Lindsey Ballard, D. C.'
At the August 20, 2014, Board of County Commissioner's meeting the Board granted approval
and authorized execution of Item C24 QTS Master Space Agreement v6.1, including a Miami Colo
Addendum Form v6.0 and the attached work order to lease two (2) 47U racks, with 200 Mb /s of
redundant Internet connectivity, power and cooling. Total cost for 36 -month term is $163,800.00.
Enclosed is a duplicate original of the above mentioned for your handling. Should you have any
questions, please feel free to contact our office.
cc: County Attorney
Finance ✓
File
500 Whitehead Street Suite 101, PO Box 1980, Key West, FL 33040 Phone: 305- 295 -3130 Fax. 305 -295 -3663
3117 Overseas Highway, Marathon, FL 33050 Phone: 305- 289 -6027 Fax: 305- 289 -6025
88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852 -7145 Fax. 305- 852 -7146
Quality
QTS Technology
Services
Quality Investment Properties Miami, LLC
Contract Type:
Sales Executive:
Sales Engineer.
Start Date:
Data Center
Location:
New
Mitch Levine
Greg Rhodes
Upon Provisioning Complete
Notice
Miami
36 Month Term Non Recurring Monthly Recurring
Charges Charges
Expiration Date: the last day of the final month of the Term.
Colocation and Connectivity $4,400.00 $4,470.00
Networking Services $0.00 $80.00
(does not include sales tax) Total Charges $4,400.00 $4,550.00
Work Order Notes
This Work Order includes 80 additional IP addresses. 16 IP addresses are included with QTS' IP bandwidth service. QTS will provide the IP addresses in one block of 64 and one block of 32.
The MRC and NRC for cross connects to QTS IP bandwidth services are included in the price per megabyte.
By signing below, the Authorized Representatives of Customer and QTS acknowledge: (i) that they have reviewed the QTS Work Order, the Master Space Agreement and the
related Addenda and Statements of Work; and (ii) that they understand the requirements of said documents and do hereby agree to be bound by the terms and conditions embodied
therein.
Please print and sign two complete copies of this work order and mail back to your sales representative for processing. One countersigned copy will be sent back to you.
Monroe County, Florida
Company
Signature
Print
mcw�ov of mo ni�uL coU.n�,�
Title
Quali Investme Proper is L
.r tromp
Si
Print Name
-
Title
7
-1 4
Date
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
CHRISTINE M. LIMBERT- BARROWS
ASSISTAKIT COUNTY ATTORNEY
Data I �1�-�'
Quality Technology Services CONFIDENTIAL Page 1 of 2 -Reference Number 00024189
July 26, 2014
r
Company Name
Monroe County, Florida
Contact Name
Jorge Swaby
Customer Address
1100 Simonton St
Key West, Fl. 33040 -3110
Contact Phone Number
+1.305.295 -5121
Contact Email Address
swaby- jorge@monroecounty-fl.gov
36 Month Term Non Recurring Monthly Recurring
Charges Charges
Expiration Date: the last day of the final month of the Term.
Colocation and Connectivity $4,400.00 $4,470.00
Networking Services $0.00 $80.00
(does not include sales tax) Total Charges $4,400.00 $4,550.00
Work Order Notes
This Work Order includes 80 additional IP addresses. 16 IP addresses are included with QTS' IP bandwidth service. QTS will provide the IP addresses in one block of 64 and one block of 32.
The MRC and NRC for cross connects to QTS IP bandwidth services are included in the price per megabyte.
By signing below, the Authorized Representatives of Customer and QTS acknowledge: (i) that they have reviewed the QTS Work Order, the Master Space Agreement and the
related Addenda and Statements of Work; and (ii) that they understand the requirements of said documents and do hereby agree to be bound by the terms and conditions embodied
therein.
Please print and sign two complete copies of this work order and mail back to your sales representative for processing. One countersigned copy will be sent back to you.
Monroe County, Florida
Company
Signature
Print
mcw�ov of mo ni�uL coU.n�,�
Title
Quali Investme Proper is L
.r tromp
Si
Print Name
-
Title
7
-1 4
Date
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
CHRISTINE M. LIMBERT- BARROWS
ASSISTAKIT COUNTY ATTORNEY
Data I �1�-�'
Quality Technology Services CONFIDENTIAL Page 1 of 2 -Reference Number 00024189
July 26, 2014
r
Customer: Monroe County, Florida
Quality Sales Executive: Mitch Levine
QTS I Technology 9
Gre Rhodes
Services Sales Engineer:
Data Center Location: Miami
Product Configuration Notes
-Space Services - Cabinet - [1] square feet supports up to [150] usable watts.
-Power 120V 20Amp Primary - - Unless otherwise noted each branch circuit includes a standard NEMA locking receptacle. Also, unless otherwise noted
120v branch circuits include a QTS standard PDU, the customer will provide PDU for all other circuits
-Power 120V 20Amp Redundant - - Unless otherwise noted each branch circuit includes a standard NEMA locking receptacle. Also, unless otherwise noted
120v branch circuits include a QTS standard PDU, the customer will provide PDU for all other circuits
-IP Bandwidth -1 Gbps port - (50 -99 Mbps Commit) - Bandwidth overage charges are 150% of committed rate unless otherwise specified. 16 IP addresses
are included with bandwidth charges, any additional will incur an additional charge
Additional Notes
July 26,2014
Quality Technology Services CONFIDENTIAL Page 2 of 2 - Reference Number 00024189
Unit: NRC
Unit: MRC
Qty
NRC
MRC
Colocation and Connectivity
$600.00
$635.00
2
$1,200.00
$1,270.00
Space Services - Cabinet
$450.00
$
3
$1,350.00
$1,080.00
Power 120V 20Amp Primary
$450.00
$9 0.00
$90.00
3
$1,350.00
$270.00
Power 120V 20Amp Redundant
$8.00
200
$1,600.00
IP Bandwidth - 1 Gbps port - (50 -99 Mbps Commit)
$0.00
1
As Used
IP Bandwidth - Bursting Overage 1Gbps port
$0.00
$12.00
$100.00
1
$200.00
$100.00
Connectivity: Copper Cross Connect
$200.00
$150.00
1
$300.00
$150.00
Connectivity: AT &T Copper Cross Connect
$300.00
Unit: NRC
Unit: MRC
Qty
NRC
MRC
Networking Services
$0.00
$1.00
80
$80.00
Connectivity: IP Address Space
Totals
$4,400.00
$4,550.00
Product Configuration Notes
-Space Services - Cabinet - [1] square feet supports up to [150] usable watts.
-Power 120V 20Amp Primary - - Unless otherwise noted each branch circuit includes a standard NEMA locking receptacle. Also, unless otherwise noted
120v branch circuits include a QTS standard PDU, the customer will provide PDU for all other circuits
-Power 120V 20Amp Redundant - - Unless otherwise noted each branch circuit includes a standard NEMA locking receptacle. Also, unless otherwise noted
120v branch circuits include a QTS standard PDU, the customer will provide PDU for all other circuits
-IP Bandwidth -1 Gbps port - (50 -99 Mbps Commit) - Bandwidth overage charges are 150% of committed rate unless otherwise specified. 16 IP addresses
are included with bandwidth charges, any additional will incur an additional charge
Additional Notes
July 26,2014
Quality Technology Services CONFIDENTIAL Page 2 of 2 - Reference Number 00024189
QTS m
Quality Investment Properties Miami, LLC
Master Space Agreement
This Master Space Agreement between Quality Investment Properties Miami, LLC, ( "QTS ") and The Board of County Commissioners of Monroe
County, a political subdivision of the State of Florida ( "Customer ") is made effective as of July 16, 2014( "Effective Date ") and governs the Customer
Space licensed and /or Services purchased under a Work Order. Capitalized terms used herein shall have the meaning given in the body and the
definition section of this Master Space Agreement. This master agreement contains terms and conditions applicable to each QTS product offering and
all product specific terms may not be applicable to each Service. Additional terms and conditions specific to a service shall be contained in an
Addendum attached hereto and incorporated herein.
1. LICENSES OF CUSTOMER SPACE AND ORDERS FOR
SERVICES. This Agreement is a master agreement under which
Customer may license Customer Space and order Services from time to
time by the execution of a Work Order between Customer and QTS. To
the extent of any inconsistency between this Master Space Agreement,
any Addendum and a Work Order, the order of precedence shall be as
follows: (i) a Work Order; (ii) an Addendum; then (iii) this Master Space
Agreement.
2. TERM. The Term for this Agreement shall begin on the
Effective Date and expire at the termination or expiration of the last Work
Order. The Term for each Work Order shall begin on the Start Date and
expire on the Expiration Date. The termination or .expiration of a Work
Order will not affect Customer's other Customer Space or Services under
one or more separate Work Orders.
3. FEES AND PAYMENT TERMS.
3.1 Payment Terms Except as otherwise set forth on a
Work Order, QTS will invoice Customer for all Customer Space and
Services on a monthly basis, with fixed recurring charges invoiced in
advance and all other charges invoiced in arrears. Customer will pay
pursuant to the Local Government Prompt Payment Act 218.70 ( "Act ").
Customer will pay, by check or wire transfer, each invoice in compliant
with the Act (i.e. forty -five (45) days after receipt of the proper invoice or
such other date as required by the Act. If Customer disputes any portion
of an invoice, Customer will notify QTS in writing of such dispute pursuant
to the Prompt Payment Act. A dispute as to any portion of an invoice does
not relieve Customer from timely payment of the undisputed portion.
Fees for each of the licensed Customer Space or Services in a Work
Order begin to accrue at the Start Date.
3.2 Intentionally Omitted.
3.3 Late Payments Subject to the Prompt Payment Act,
any undisputed payment not received by QTS within thirty (30) days of
the invoice due date shall be considered late and will accrue interest at a
rate of one percent (1 %) per month (compounded daily), or the highest
rate allowed by applicable law, whichever is lower.
3.4 Taxes Customer, as a political subdivision of the
State of Florida, is exempt from taxes. 3.5 Credit History QTS
may in its sole discretion report Customer's payment history to reporting
agencies, including but not limited to, Dun & Bradstreet.
4. SPACE AND SERVICES SELECTED.
4.1 Services (i) QTS agrees to provide the Customer
Space and Services and Customer agrees to pay the applicable fees for
the Customer Space licensed and the Services set forth in each Work
Order; and (ii) in the event Customer requests QTS to perform consulting
or technical service of a specialized nature, the details, deliverables,
milestone dates, fees and other pertinent information relating to such
service will be set forth on an attached, executed Work Order.
4.2 Customer Use of Services Customer represents and
warrants that Customer does not appear on the United States Department
of Treasury, Office of Foreign Asset Controls list of Specially Designated
National and Blocked Persons and is not otherwise a person to whom QTS
may not legally provide the Customer Space. Customer may not use the
Services for the development, design, manufacture, production, stockpiling,
or use of nuclear, chemical or biological weapons, weapons of mass
destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3,
as set forth in Supplement No. 1 to the Part 740 of the United States Export
Administration Regulations. Customer may not provide administrative
access to the Service to any person (including any natural person or
government or private entity ) that is located in or is a national of Cuba, Iran,
Libya, Sudan, North Korea or Syria or any country that is embargoed or
highly restricted under United States export regulations.
5. MUTUAL REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION. Each party represents, warrants and covenants that:
(i) it has and will maintain the legal right to use, operate and locate its
equipment in the Data Center; (ii) the performance of its obligations
hereunder will not violate any applicable Laws; (iii) neither the execution of
this Agreement nor the performance of its obligations hereunder will
constitute a breach by it of any agreements to which it is a party or by which
it is bound; (iv) it has duly, authorized, executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding
obligation of such party and shall be enforceable against such party in
accordance with its terms; and (v) all equipment, materials and other
tangible items placed by it at Data Center will be installed, operated, used
and maintained in compliance with all applicable Laws and manufacturer
specifications. Subject to F.S. 768.28, Customer will indemnify, defend
and hold harmless QTS, and its representatives, agents, employees,
officers, directors, members, partners, principals, managers, affiliates,
lenders, contractors, subcontractors from any and all Losses arising from
or relating to: (i) any and all bodily injuries, sickness, disease or death to
the extent caused by the negligence or wrongful act or omission by
Customer; (ii) injury to or destruction of tangible property to the extent
caused by the negligence or wrongful act or omission by Customer;; (iii)
any claim, action or omission by a customer or end -user of Customer or
other third party, relating to, or arising out of, Customer's or any of its
customers' services or the Customer Space licensed or Services provided
under this Agreement (including claims arising from or relating to
interruptions, suspensions, failures, defects, delays, impairments or
inadequacies in any of the aforementioned Licenses or Services); and (iv)
any claim, action or omission by a customer or end -user of a Customer or
other third party relating to or arising out of violation of the AUP by
Customer, a Customer Party or any end -user or customer of Customer.
Subject to F.S. 768.28, both parties shall defend and indemnify the other
for any breach of the mutual insurance provisions in Section 8.
-1-
CONFIDENTIAL
Master Space Agreement (6.1)
QTS shall indemnify, defend, save and hold harmless the Customer, its
officers, agents and employees, harmless from any and all Losses arising
from or related to (a) any and all bodily injuries, sickness, disease or death
to the extent caused by the negligence or willful misconduct of QTS; (b)
injury to or destruction of tangible property to the extent caused by the
negligence or willful misconduct of QTS; or (c) the violation of any
applicable federal, state, County or municipal laws, ordinances or
regulations by QTS or a QTS Parry. This indemnification shall not apply to
the negligent or wrongful acts, omissions or defaults caused by the
Customer, its employees, or agents. Customer shall give prompt notice of
any claim for which QTS may be obligated to provide indemnification.
REMEDIES AND DAMAGES, AND LIMIT ON WARRANTIES
6.1 No Other Warranty EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH IN THE AGREEMENT, THE CUSTOMER
SPACE AND SERVICES (INCLUDING ALL MATERIALS SUPPLIED
AND USED THEREWITH) ARE PROVIDED "AS IS, WHERE IS ", AND
CUSTOMER'S USE OF THE CUSTOMER SPACE AND SERVICES IS
AT ITS OWN RISK. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN THE AGREEMENT, QTS DOES NOT MAKE, AND HEREBY
DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, WHETHER IN FACT OR BY OPERATION OF
LAW, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY, HABITABILITY,
MARKETABILITY, PROFITABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SUITABILITY, NONINFRINGEMENT, TITLE, OR ARISING
FROM A COURSE OF DEALING, OR TRADE PRACTICE.
6.2 Consequential Damages Waiver IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY TYPE OF
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS
OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR
INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT,
EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND WHETHER ARISING UNDER THEORY OF
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. THE
FOREGOING LIMITATION OF LIABILITY AND DAMAGES SHALL NOT
APPLY TO: (i) A BREACH BY EITHER PARTY OF THE
CONFIDENTIALITY OBLIGATIONS IN SECTION 7; (ii) A PARTY'S
INDEMNIFICATION OBLIGATIONS; OR (iii) A BREACH BY CUSTOMER
OF THE AUP OR SECTION 10.15 OF THIS AGREEMENT.
6.3 Basis of the Bargain The parties acknowledge that
the prices have been set, and the Agreement is entered into in reliance
upon the limitations of liability, remedies, damages, and the disclaimers
of warranties and damages set forth herein, and that all such limitations
and exclusions form an essential basis of the bargain between the
parties. The specific remedies provided herein or in any Addendum are
the exclusive remedies available to Customer.
MUTUAL CONFIDENTIALITY /NON - SOLICIT
7.1 Disclosure and Use Subject to Chapter 119, Public
Records Law, each party agrees that it will not use in any way, nor
disclose to any third party, the other party's Confidential Information, and
will take reasonable precautions to protect the confidentiality of such
information, at least as stringently as it takes to protect its own
Confidential Information, but in no case will the degree of care be less
than reasonable care. Nothing herein shall preclude disclosure by a party:
(i) to that party's attorneys, accountants, lenders and other advisors and
employees who have a bona fide need to know the other party's
Confidential Information in connection with the receiving party's
performance under this Agreement; (ii) with respect to the terms of this
Agreement only, to any potential transferee or assignee of all or any
portion of the Data Center, or in connection with a merger involving QTS,
or acquisition of all or substantially all of the assets of QTS; (iii) any
disclosure by QTS that is required to respond to a security threat to the
QTS IaaS; or (iv) any disclosure that a party concludes that it is required
to make as a matter of law (including, without limitation, in accordance
with the rules and regulations of a national stock exchange, the
Securities and Exchange Commission or other securities law regulators):
provided that such disclosure is made after good faith consultation with
counsel with respect thereto and prior to making such required
disclosure, where permissible, the party who is required to disclose the
Confidential Information shall notify the owner of such Confidential
Information that disclosure is legally required. Each party agrees to only
make copies of the other's Confidential Information for purposes
consistent with this Agreement, and each party shall maintain on any
such copies a proprietary legend or notice as contained on the original or
as the disclosing party may request.
7.2 Exclusions from Confidentiality Obligations
Notwithstanding the confidentiality obligations required herein, neither
party's confidentiality obligations hereunder shall apply to information
which: (a) is already known to the receiving party (other than the terms of
this Agreement); (b) becomes publicly available without fault of the
receiving party; (c) is rightfully obtained by the receiving party from a
third party without restriction as to disclosure; or (d) such Confidential
Information is approved for release by written authorization of the party
having the rights in such Confidential Information; or (e) is developed
independently by the receiving party without use of the disclosing party's
Confidential Information.
7.3 Specific Performance and Injunctive Relief Each of
QTS, Customer and theit respective representatives agree that a breach
of Sections 7.1 and 7.2 above give rise to irreparable injury to the other
party for which damages may not be adequate compensation, and
consequently, that the other party shall be entitled, in addition to all other
remedies available to it at law or equity, to injunctive and other equitable
relief to prevent a breach of Sections 7.1 and 7.2 and to secure the
specific performance of such sections without proving actual damages or
posting a bond or other security.
8. MUTUAL INSURANCE REQUIREMENTS
8.1 Minimum Levels QTS agrees to keep in full force
and effect during the Term of this Agreement: (i) commercial general
liability insurance with a combined single limit in an amount not less than
$1,000,000 per occurrence, and $2,000,000 aggregate (or coverage
under an "umbrella" policy in an amount not less than $3,000,000),
including broad form premises and operations, independent contractors,
products and completed operations, personal injury, contractual, and
broad form property damage liability coverage: and (ii) workers'
compensation insurance covering such party's employees in an amount
not less than that required by Law. QTS shall maintain property
insurance (all risks) covering QTS' Facilities, including the Data Center.
Customer shall maintain property insurance (all risks) covering the
Customer Space and Customer Equipment. Customer agrees that it will
insure and be solely responsible for insuring the injuries to and claims of
its representatives, except for injuries caused by QTS' negligent or
wrongful acts or omissions. All such policies shall be written by
insurance carriers licensed in the state in which the Data Center is
located, and shall be rated A -, IX or better by A.M. Best. Customer is
self- insured and agrees to keep in full force and effect during the Term of
this Agreement general liability coverage in an amount not less than
1,000,000 per occurrence. Each party must submit the required
Certificates of insurance to the other party prior to execution of this
Agreement.
9. TERMINATION
-2-
Master Space Agreement (6.1)
9.1 Termination for Cause QTS may terminate this
Agreement or any Service (in whole or in part), at any time, without
liability, for any one or more of the following: (a) Customer breaches any
material term of this Agreement and fails to cure such breach (if
susceptible to cure) within thirty (30) days after receipt of written notice of
the same (provided, however, in the event this Agreement provides that
termination of any rights shall be immediate for any specific breach, then
such notice period shall not be required); (b) QTS becomes aware that
Customer has threatened the security of the Data Center, the QTS IaaS,
or any other network or system; (c) failure to pay amounts in accordance
with Section 3. 1, after twenty (20) days written notice and failure to cure;
(d) repeated violation of the AUP by Customer or its customers or
end - users; (e) QTS is unable to provide Customer Space or Services due
to Customer's acts or omissions; or (f) a court or other government
authority having jurisdiction over the Services prohibits QTS from
furnishing the Customer Space or Services to Customer. Customer may
terminate this Agreement for any one or more of the following: (w) QTS
breaches any material term of this Agreement and fails to cure such
breach within thirty (30) days after receipt of written notice of the same;
or (x) as specifically set forth in an Addendum attached hereto: (y) QTS
becomes the subject of a voluntary or involuntary proceeding relating to
insolvency, bankruptcy, receivership, liquidation, or reorganization for the
benefit of creditors, and such petition or proceeding is not dismissed
within sixty (60) days of the filing thereof; or (z) a court or other
government authority having jurisdiction over the Services prohibits QTS
from furnishing the Customer Space or Services to Customer.
9.2 Early Termination In the event Customer desires to
terminate any License or Services prior to the end of the Term (other
than as provided in Section 9.1 herein), or if the Licenses or Services are
terminated by QTS as provided in Section 9.1 herein, Customer shall pay
for all work performed prior to notice of termination and for monthly fees
incurred prior to termination plus a termination charge equal to the
percentage of the remaining monthly recurring fees that would have
been charged for the Customer Space and Services for the Term (as
applicable on the date of said termination) calculated as follows:
a. 100 %) of the remaining monthly recurring charges
that would have been charged for the Customer
Space and Services for months 1 -12 of the Term (as
applicable on the effective date of termination); plus
b. 80% of the remaining monthly recurring charges that
would have been charged for the Customer Space
and Services for months 13 -24 (as applicable on the
effective date of termination); plus
C. 50% of the remaining monthly recurring charges that
would have been charged for the Customer Space
and Services for months 25 through the end of the
Term (as applicable on the effective date of
termination) (the "Termination Fees ").
Such Termination Fees are not penalties, but due to the difficulty in
estimating actual damages for early termination, are agreed upon charges
to fairly compensate QTS.
Notwithstanding anything in this Section 9.2 to the contrary, QTS and
Customer acknowledge that funding for the fees set forth on each Work
Order is dependent at all times upon the appropriation of funds by the
Board of County Commissioners and /or any other organization of the State
of Florida authorized to appropriate such funds. In the event that the
funding to support the fees set forth on a Work Order is not appropriated,
whether in whole or in part, then Customer may terminate the applicable
Work Order(s), without liability for Termination Fees, provided that
Customer delivers written notice to QTS as soon as reasonably practical
after it receives notice of the non - appropriation.
9.3 Hold -over Customer If Customer continues to use
any Customer Space or Service after the expiration or earlier termination
of the Term for such Customer Space or Service, then Customer shall
remain subject to the terms and conditions of this Agreement and the
recurring monthly charge and usage charges during such hold -over
period shall increase to one hundred and twenty -five percent (125 %) of
the recurring monthly charge and usage charges for the last full month
before expiration or earlier termination of the Term. During such
hold -over period, this Agreement becomes a month -to -month Agreement
and can be terminated on thirty (30) days notice by either party. This
Section 9.3 shall not apply if the Customer and QTS are participating in
good faith negotiations for a renewal of Services.
9.4 Suspension of Licenses or Services by QTS QTS
may suspend Customer's access and rights to any or all Customer Space
or Services and /or Customer's rights to remove any or all of Customer's
Equipment if Customer fails to pay any undisputed sum for Customer
Space or Services when such payment is due and such failure remains
uncured for a period of twenty (20) days after written notice is given to
Customer by QTS. In the event of a suspension of Licenses or Services
pursuant to this Section 9.4, Customer agrees that QTS may, without
notice or liability, prevent Customer access to the Customer Space
and /or suspend Services. If Customer's access or Services are
suspended pursuant to this Section 9.4 and QTS determines, in its sole
discretion, to reconnect Customer Space or Services, Customer agrees
to pay, in addition to any other fees or sums for Customer Space or
Services owing under this Agreement, the Reconnection Fee. The
remedies of QTS under this Section 9.4 are in addition to any other rights
that QTS may have under this Agreement.
9.5 Effect of Termination by Either Part y Upon the
effective date of termination of the Agreement: (a) QTS will immediately
cease providing Services and Customer's License shall terminate and
QTS shall not be responsible for any loss of access or data as result of
such cessation of Services; (b) any payment obligations of Customer
under this Agreement for Customer Space or Services provided through
the date of termination and any applicable Termination Fees will
immediately become due and payable; and (c) within ten (10) days of
such termination Customer shall: (i) remove from the Data Center(s) all
Customer Equipment and any other Customer property located at the
Data Center(s) (but only upon receipt of all sums due under (b)); (ii) make
available all QTS Provided Equipment to an authorized representative of
QTS; and (iii) return the Customer Space to QTS in the same condition as
existed on the Start Date, normal wear and tear excepted. If Customer
does not remit the sums payable under (b) and /or does not remove the
Customer Equipment and its other property as provided in (c), QTS will
have the right to do one or more of the following, without notice, without
liability therefor, and without prejudice to any other available remedies: (x)
re -claim the Customer Space, remove all property therefrom and
re- license the Customer Space; (y) move all such Customer property to
secure storage and charge Customer for the cost of such removal and
storage; and (z) liquidate the Customer property in accordance with
applicable law, applying all proceeds first to the cost of such liquidation,
then to all payment obligations due hereunder, and the balance thereof, if
any, shall be paid to Customer.
10. MISCELLANEOUS PROVISIONS
10.1 Force Maieure Neither party shall be liable to the
other for any failure of performance or equipment due to causes beyond
such party's reasonable control, including but not limited to: acts of God,
fire, explosion; any Law or direction of any governmental entity;
emergencies; civil unrest, wars; unavailability of rights -of -way, third party
services or materials; or strikes, lock -outs, work stoppages, labor
shortages or other labor difficulties; viruses, denial of service attacks,
telecommunications failures, failure of the Internet or other events of a
type or magnitude for which precautions are generally not taken in the
-3-
Master Space Agreement (6.1)
industry (each, a "Force Majeure Event "). If QTS is unable to deliver the
Customer Space or Service for thirty (30) consecutive days, Customer
shall have the right to terminate any affected Work Order pursuant
hereto.
10.2 Relocation of Customer Equipment or Customer
Space If it is necessary or desirable, for QTS' use of the Data Center, to
relocate the Customer equipment or Customer Space to another area in
the Data Center or other similar data center owned by QTS, the parties
will cooperate in good faith with each other to facilitate such relocation.
QTS shall be solely responsible for the costs incurred by QTS in
connection with any such relocation. Relocation made by QTS at the
request of Customer, will be at the sole expense of Customer. QTS will
use commercially reasonable efforts to minimize and avoid any
interruption in Services during such relocation.
10.3 Regulatory Changes In the event that a tariff is filed
against QTS or there is a change in law, rule or regulation, increased
power costs or similar circumstance that materially increases the costs or
other terms of delivery of Customer Space or Services, the parties agree
to negotiate the rates to be charged, or other required terms of service to
reflect such increased costs or change in term of space or service. If the
parties are unable to agree on new rates within thirty (30) days after QTS'
delivery of written notice regarding the rate change, then either party may
terminate the Licenses or Services without liability by giving thirty (30)
days written notice.
10.4 Notice Any notice or communication required or
permitted to be given hereunder may be delivered by hand, deposited
with an overnight courier, sent by e-mail or facsimile (provided delivery is
confirmed), or U.S. Mail registered or certified return receipt requested
and postage prepaid, in each case to the address set forth below or to
such other address as may hereafter be furnished in writing by either
party to the other party in accordance with this section. Such notice will be
deemed to have been given as of the date it is received.
To QTS at:
Quality Investment Properties Miami, LLC
12851 Foster Street
Overland Park, KS 66213
Attn: Legal Department
Fax: (913) 814 -7766
To Customer at
Information Technology Director
102050 Overseas Hwy, Suite 222
Key Largo, FL 33037
County Administrator
1100 Simonton Street, Suite 205
Key West, FL 33040
County Attorney
1111 12`" Street, Suite 408
Key West, FL 33040
10.5 Assignment Customer may not assign or
transfer part or all of its rights and obligations under this Agreement, or
resell the Services, or sublicense or lease (each a "Transfer ") all or any
part of the Customer Space without the written consent of QTS, which shall
not be unreasonably withheld. QTS may require any transferee to execute
documentation reasonably acceptable to QTS in connection with the
applicable Transfer, including, without limitation, an assumption
agreement whereby the transferee assumes all of Customer's liabilities,
duties and obligations under this Agreement. In any event no Transfer
shall relieve or release Customer of its obligations under this Agreement.
QTS may assign or transfer part or all of its respective rights and
obligations under this Agreement without prior notice to Customer,
provided; however, QTS shall deliver notice as soon as practical after
consummation of the transfer, including without limitation, to any entity that
is a subsidiary or affiliate of QTS or to any entity that is the survivor of a
merger with QTS and any entity that acquires all or substantially all of the
assets of QTS. In the event of any transfer or termination of QTS' interest
in the Data Center by sale, assignment, transfer, foreclosure, deed -in -lieu
of foreclosure or otherwise whether voluntary or involuntary, QTS shall be
automatically relieved of any and all obligations and liabilities on the part of
QTS from and after the date of such transfer or termination, and any
subsequent owner of the Data Center shall only be responsible for such
obligations and liabilities under this Agreement which accrue from and
after the date such transferee or assignee acquires QTS' interest as
licensor under this Agreement. Customer agrees to attorn to the
transferee upon any such transfer and to recognize such transferee as the
licensor under this Agreement; provided that upon the request of Customer,
such transferee completes the necessary documentation to become a
Customer approved vendor. This Agreement shall apply to, bind, and
inure to the benefit of, any permitted transferees, assignees or successors,
all of whom shall execute counterparts of this Agreement, and Customer
shall remain liable for the payment of all charges due under each Work
Order or otherwise due or to become due under this Agreement.
10.6 Entire Understanding This Agreement constitutes
the entire understanding and agreement of the parties related to the
subject matter hereof, and supersedes and replaces any and all prior or
contemporaneous discussions, agreements and understandings
regarding such subject matter. Each Work Order and Addendum
includes terms which are in addition to, and not in lieu of the Agreement,
and shall be deemed to be part of this Agreement. Unless expressly
provided for in the Agreement, Customer agrees not to claim any
reliance on any other opinion, advice, recommendation, statement,
representation, warranty of QTS regarding the suitability, fitness, quality,
merchantability, or the compatibility or functionality of any equipment or
software. Any additional or different terms in any purchase order or other
response made by either party shall be of no effect or in any way binding
upon either party unless signed by both parties.
10.7 No Competitive License or Service Customer may
not at any time, without QTS' prior written consent, permit any QTS facility
or the QTS IaaS to be utilized for the resale of Internet access,
co- location or managed services to QTS clients. Customer may use
allocated space on the QTS IaaS to host software as a service
application.
10.8 Relationship of the Parties QTS and Customer are
independent contractors; this Agreement will not establish any
relationship of partnership, employment, franchise or agency.
10.9 Execution and Counterparts This Agreement may
be executed in two or more counterparts, each of which will be deemed an
original, but all of which together shall constitute one and the same
instrument.
10.10 Modification This Agreement may be changed only
by a written document signed by authorized representatives of QTS and
Customer.
10.11 Severabilitv If any provision of this Agreement, as
applied to either party or to any circumstance, is adjudged by a court or
arbitrator to be invalid, illegal or unenforceable, the same will not affect
the validity, legality, or enforceability of any other provision of this
Agreement. All terms and conditions of this Agreement will be deemed
enforceable to the fullest extent permissible under applicable law.
4-
Master Space Agreement (6.1)
10.12 No Waiver All Rights Cumulative The failure by
either party to enforce any rights hereunder shall not constitute a waiver
of such right(s) or of any other or further rights hereunder. The waiver of
any breach or default of this Agreement will not constitute a waiver of any
subsequent breach or default.
10.13 Governing Law This Agreement will be governed
by and construed in accordance with the laws of the State of Florida,
except its conflicts of law principles. In the event any cause of action or
administrative proceeding is instituted for the enforcement or interpretation
of this Agreement, the Parties agree that venue will lie in the appropriate
court or before the appropriate administrative body in Monroe County,
Florida. The Parties agree that, in the event of conflicting interpretations of
the terms or a term of this Agreement by or between them, the issue shall
be submitted to mediation prior to the institution of any other administrative
or legal proceeding. This Agreement shall not be subject to arbitration.
10.14 Third Party Beneficiaries The provisions of this
Agreement and the rights and obligations created hereunder are intended
for the sole benefit of QTS and Customer, and do not create any right,
claim or benefit on the part of any person not a party to this Agreement.
The parties do not intend any provision of this Agreement to be
enforceable by or to benefit any third party.
10.15 Intellectual Property Rights QTS shall remain the
sole owner of and retain all right, title and interest in any service,
technical information and /or intellectual property rights ( "IPR ") provided to
Customer hereunder, including, without limitation, all trademark, trade
names, service marks, copyrights, computer programs, general utility
programs, software, methodology, databases, specifications, systems
designs, applications, enhancements, documentation, manuals,
know -how, formulas, hardware, audio /visual equipment, tools, libraries,
discoveries, inventions, techniques, writings, designs, and other IPR
either used or developed by QTS or its agents in connection with the
provision of service hereunder and all derivative works or improvements
therein ( "QTS Technology "). Any QTS Technology will not be
work - for -hire and Customer agrees to assign and hereby does assign to
QTS all IPR in and to the QTS Technology. In return for payment of all fees
and charges, QTS grants to Customer a royalty free, non - exclusive,
non - transferable, non - assignable license to use any IPR provided with
the Services hereunder solely for the purpose of receiving such Services.
QTS shall be free to provide similar IPR to other parties and shall retain
the right to unrestricted use of any data, and any and all related concepts,
know -how, techniques or IPR either acquired or developed as a result of
this Agreement. Customer further agrees to execute and deliver all
documents and do all acts that QTS shall deem necessary or desirable to
secure to QTS' right, title and interest in and to such IPR. Customer
further agrees to cooperate with QTS as reasonably necessary to
maintain or enforce QTS' rights in the IPR.
10.16 General Without the consent of the other party,
neither party shall issue any publication relating to this Agreement,
except as may be required by Law. Notwithstanding, either party may
publicly refer to the other, orally and in writing, as a Customer /licensee
or service provider /licensor of the other, as applicable, and QTS may
utilize Customer's logo and /or domain name at its website
(www.gtsdatacenters.com) which may include a link from the QTS
website to Customer's website. If either party retains an attorney to
enforce the terms of this Agreement or to collect money due hereunder,
the prevailing party shall be entitled to recover reasonable attorneys' fees,
court costs and other related expenses incurred in connection therewith
The terms and provisions contained herein that by their sense and context
are intended to survive the performance thereof by the parties shall so
survive termination of this Agreement, including, without limitation,
provisions for indemnification and the making of any payments. This
Master Space Agreement may contain defined terms that are not
applicable to every Service. Sections 10.2, 10.18 and 10.19 shall only
apply to Customers contracting for Customer Space as reflected on a
Work Order.
10.17 Time of the Essence Time is of the essence with
respect to all provisions of this Agreement that specify a time for
performance; provided, however, that the foregoing shall not be construed
to limit or deprive a party of the benefits of any grace or use period allowed
in this Agreement.
10.18 Estoppel Certificate Customer shall, within twenty (20)
days' prior written notice from QTS (but only in connection with a sale,
financing, transfer, lease or similar transaction), deliver to QTS a signed
statement certifying the following information (but not limited to the
following information in the event further information is reasonably required
by QTS): (i) that this Agreement is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and certifying that
this Agreement, as modified is in full force and effect); (ii) the dates to
which the fees and other charges due under this Agreement are paid in
advance, if any; (iii) the amount of Customer's security deposit, if any; and
(iv) acknowledging that there are not any uncured defaults or breaches on
the part of QTS under this Agreement (including, without limitation, all
Addendum and Work Orders), and no events or conditions then in
existence which, with the passage of time or notice or both, would
constitute a default or breach on the part of QTS under this Agreement
(including, without limitation, all Addendum and Work Orders), or
specifying such defaults events or conditions, if any are claimed. It is
expressly understood and agreed that any such statement may be relied
upon by any prospective purchaser or encumbrance of all or any portion of
the Data Center. Customer's failure to deliver such statement within such
twenty (20) day period shall, constitute an admission by Customer that all
statements there are true and correct.
10.19 Subordination Customer accepts this Agreement
subject and subordinate to any mortgage, deed of trust, deed to secure
debt, ground lease or master lease of QTS and to any renewals,
modifications, consolidation, refinancing and extensions thereof. It is
understood that QTS' interest in the Customer Space and Data Center
may be that of ground lessee, rather than owner. This provision is hereby
declared to be self- operative and no further instrument shall be required to
effect such subordination of this Agreement; provided, however, Customer
shall, within ten (10) days after QTS' written request therefore, execute,
acknowledge and deliver any documents reasonably requested by QTS to
assure the subordination of this Agreement to any of the same.
Notwithstanding the foregoing, if the lessor under any such lease or the
holder of any such deed to secure debt advises QTS that they desire to
require this Agreement to be prior and superior thereto, upon written
request of QTS to Customer, Customer agrees to promptly execute,
acknowledge and deliver any documents which QTS or such lessor, holder
or holders reasonably deem necessary for purposes thereof.
10.20 Inspection and Access to QTS Books and Records
QTS shall keep and maintain all books, records, and documents directly
pertinent to performance under this Agreement in accordance with
generally accepted accounting principles consistently applied. Each party
to this Agreement or their authorized representatives shall have
reasonable and timely access to such records of each other party to this
Agreement for public records purposes during the term of the Agreement
and for five (5) years following the termination of this Agreement. If an
auditor employed by the Customer or Monroe County Clerk of Court
determines that monies paid to QTS pursuant to this Agreement were
spent by Customer for purposes not authorized by this Agreement, QTS
shall repay the monies together with interest calculated pursuant to Sec.
55.03, FS, running from the date the monies were paid to Contractor.
RE
Master Space Agreement (6.1)
10.21 Public Records
The Parties shall allow and permit reasonable access to, and inspection of,
all documents, papers, letters or other material subject to the provision of
Chapter 119, Florida Statutes, and made or received by the parties in
conjunction with this Agreement.
Pursuant to F.S. 119.0701, QTS and its subcontractors shall comply with
all public records laws of the State of Florida, including but not limited to:
(a) Keep and maintain public records that ordinarily and necessarily
would be required by Monroe County in order to perform the service.
(b) Provide the public with access to public records on the terms and
conditions that Monroe County would provide the records and at a cost that
does not exceed the cost provided in Florida Statutes, Chapter 119 or as
otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as
authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no
cost, to Monroe County all public records in possession of QTS upon
termination of the contract and destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically on QTS systems must be
provided to Monroe County in a format that is compatible with the
information technology systems of Monroe County.
The County shall have the right to unilaterally cancel this Agreement upon
violation of this provision by QTS.
10.22 Nondiscrimination
The Parties agree there will be no unlawful discrimination against any
person, and it is expressly understood that upon a determination by a court
of competent jurisdiction that unlawful discrimination has occurred, this
Agreement shall automatically terminate without any further action on the
part of any party, effective the date of the court order. QTS and Customer
agree to comply with all Federal and Florida statutes, and all local
ordinances, relating to nondiscrimination as applicable to such party.
These include but are not limited to: (1) Title VI of the Civil Rights Act of
1964 (P.L. 88 -352) which prohibits discrimination on the basis of race,
color and national origin; (2) Section 504 of the Rehabilitation Act of 1973,
as amended (20 U.S.C. s. 794), which prohibits discrimination on the basis
of handicap; (3) The Age Discrimination Act of 1975, as amended (42
U.S.C. ss. 6101 - 6107), which prohibits discrimination on the basis of age;
(4) The Drug Abuse Office and Treatment Act of 1972 (P.L. 92 -255), as
amended, relating to nondiscrimination on the basis of drug abuse; (5) The
Comprehensive Alcohol Abuse And Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (P.L. 91 -616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The
Public Health Service Act of 1912, ss. 523 and 527, (42 U.S.C. 290 dd -3
and 290 ee -3), as amended, relating to confidentiality of alcohol and drug
abuse patient records; (7) The American with Disabilities Act of 1990 (42
U.S.C. s. 1201 Note), as may be amended from time to time, relating to
nondiscrimination on the basis of disability; (8) The Florida Civil Rights Act
of 1992, (Chapter 760, Florida Statutes, and Section 509.092, Florida
Statutes), as may be amended from time to time, relating to
nondiscrimination; (9) The Monroe County Human Rights Ordinance
(Chapter 13, Article VI, Sections 13 -101 through 13 -130), as may be
amended from time to time, relating to nondiscrimination; and (10) any
other nondiscrimination provisions in any Federal or state statues or local
ordinances that may apply to the parties to, or the subject matter of, this
Agreement.
10.23 Non - Waiver of Immunity
Notwithstanding the provisions of Section 768.28, Florida Statutes, the
participation of the parties in this Agreement and the acquisition of any
commercial liability insurance coverage, self- insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver
of immunity to the extent of liability coverage, nor shall any contract
entered into by the Customer be required to contain any provision for
waiver.
10.24 Privileges and Immunities
All of the privileges and immunities from liability, exemptions from laws,
ordinances and rules, and pensions and relief, disability, workers'
compensation and other benefits that apply to the activity of officers,
agents, volunteers or employees of the Customer, when performing their
respective functions under this Agreement within the territorial limits of the
County shall apply to the same degree and extent to the performance of
such functions and duties of such officers, agents, volunteers or
employees outside the territorial limits of the County.
10.25 No Personal Liability
No covenant or agreement contained herein shall be deemed to be a
covenant or agreement of any member, officer, agent or employee of
Monroe County in his or her individual capacity, and no member, officer,
agent or employee of Monroe County shall be liable personally on this
Agreement or be subject to any personal liability or accountability by
reason of the execution of this Agreement.
10.26 Section Headings
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings
are not a part of this Agreement and will not be used in the interpretation of
any provision of this Agreement.
10.27 Attestations QTS agrees to execute such documents as the
Customer may reasonably require, including a Public Entity Crime
Statement, and Ethics Statement, and a Drug -Free Workplace Statement
DEFINITIONS
(a) "Addendum" means an addendum to this Agreement stating additional terms and conditions
applicable to the specific License or Service.
(b) "Adhoc Engineering Services" means any technical support considered to be above and beyond
Remote Hands which usually includes technical support from a consultative or operational
perspective.
-6-
Master Space Agreement (6.1)
(c) "Acceptable Use Policy" or "AUP" means the acceptable use policy posted at
www.qtsdatacenters.com
(d) "Agreement" means this agreement, the general terms and conditions herein and includes any
Addendum, Product Description, Work Order, Specification, Statement of Work, Scope of Work,
Customer Access Roster, the Rules and Regulations, and the Acceptable Use Policy, and all other
items expressly incorporated herein.
(e) "Burstable" means Customer has the ability to use Services provided with respect to Customer
Space in excess of the Committed Data Rate.
(f) "Cloud Organization Administrator" means one or more Customer representatives or QTS
employees designated by Customer as having the right to access the self- service features of the
QTS IaaS.
(g) "Committed Data Rate" means Customer's agreement to pay for a minimum amount of bandwidth
per month (expressed in Megabits per second (Mbps)), as set forth in a Work Order, in connection
with its License of Customer Space.
(h) "Confidential Information" means information which: (i) derives actual or potential economic value
from not being generally known to, and not available through proper means, by other persons who
could obtain economic value from receipt or use of such information, (ii) is the subject of reasonable
efforts by its owner to maintain its confidentiality or secrecy, or (iii) is by its nature confidential, trade
secrets or otherwise proprietary to its owner. Confidential information includes the terms and
conditions of this Agreement, software source and object code, inventions, know -how, data,
formulas, patterns, compilations, programs, devices, methods, techniques, drawings, configurations,
plans, processes, financial and business plans, names of actual or potential customers or suppliers,
Data Center configuration and QTS Technology.
(i) "Customer Access Roster" means the official register of Representatives.
(j) "Customer Equipment" means software, computer hardware, and all other equipment, goods, and
personal property owned by Customer or licensed or leased by Customer from third parties.
(k) "Customer Maintenance" means steps taken by Customer to properly maintain the Customer
Equipment in accordance with manufacturer instructions and requirements.
(1) "Customer Space" means the portion of the Data Center(s) and associated power which QTS
licenses to Customer under a Work Order. The location of the Customer Space shall be determined
by QTS in its sole discretion; provided, however, Customer's reasonable preferences shall be
considered.
(m) "Data Center" means any of the buildings and facilities owned or leased by QTS at which Customer
Space is located or from which Services are provided.
(n) "Expiration Date" as to any Work Order means the date which is calculated by adding the Term of
the Work Order to the Start Date.
(o) "Facilities" means any and all devices generally used by QTS to provide Customer Space or deliver
Services to its customers, but excluding QTS Provided Equipment and Customer Equipment.
(p) "Facilities Maintenance" means the times QTS monitors and maintains its network, QTS Provided
Equipment or Facilities.
(q) "Internet Intrusion Testing" means tests employing tools or techniques intended to gain
unauthorized access to Customer's environment.
(r) "Laws" means rules, regulations, statutes, ordinances, orders and rulings of a government and
administrative and regulatory authorities, as well as the Rules and Regulations.
(s) "Licenses" means licenses of Customer Space to a Customer under a Work Order.
(t) "Losses" means claims, demands, actions, suits, proceedings, and all damages, judgments,
liabilities, losses, and expenses (including, but not limited to, reasonable attorneys fees and court
costs).
-7-
Master Space Agreement (6.1)
(u) "Party" or "Parties" means representatives, agents, employees, officers, directors or contractors,
or subcontractors.
(v) "Point of Demarcation" means the first point where Customer receives telecommunications or
Internet access into the Customer Space.
(w) "Product Description" or "Product Catalog" shall mean the written description of a License or
Service provided to Customer by QTS.
(x) "Professional Services" means professional engineering or computer design, software
development, support or other consulting service provided, pursuant to a Statement of Work or
Scope of Work.
( "QTS laaS" means the QTS infrastructure as a service.
(z) "QTS Provided Equipment" means any hardware, software and other tangible telecommunications
or internet equipment leased, subleased, licensed or sublicensed by QTS to Customer.
(aa) "Reconnection Fee" means a fee of $175 per hour billed in quarter -hour increments for each hour
or partial hour spent by QTS reconnecting the Services provided to Customer.
(bb) "Remote Hands" means general Customer directed actions such as power cycling equipment, basic
power or data cabling support, packing and /or unpacking of Customer Equipment, and simple key
stroke commands to reboot or configure equipment.
(cc) "Representatives" means the individuals identified on the Customer Access Roster who are
authorized to enter the Data Center(s) and access the Customer Space.
(dd) "Rules and Regulations" means the data center rules posted at www.atsdatacenters.com
(ee) "Services" means all offerings of services and goods under a Work Order, but not including
Licenses of the Customer Space. With respect to Customer's contracting for QTS Cloud Services,
Services shall also include those QTS cloud services added by the Cloud Organization Administrator
through the QTS portal.
(ff) "Specifications" means the detailed description of Licenses of Customer Space or Services, other
than Professional Services, attached to any Work Order.
(gg) "Start Date" means the start date specifically set forth on the Work Order or, if there is not a start date
specified on the Work Order that date on which QTS provides notice to Customer that provisioning is
complete and Services shall begin. For the purposes of this notice, electronic mail notification shall be
adequate.
(hh) "Statement of Work ", "Scope of Work" or "Work" means the detailed description of Professional
Services attached to any Work Order.
(ii) "Term" as to any Work Order, means the period of time specified in a Work Order for which QTS will
provide the Customer Space or Services.
(jj) "Work Order" or "Order" means Customer's written order for a License of Customer Space, or the
provision of Services that has been accepted by QTS and executed by both parties. The Work Order
includes backup detail and shall set forth the Licenses and Services, the prices to be charged for
Licenses and Services and any applicable Term and /or Committed Data Rate.
[Signatures on following page]
-6-
Master Space Agreement (6.1)
IN WITNESS WHEREOF, authorized representatives of Customer and QTS have read the foregoing Master Space Agreement and
agree to be bound thereby as of the Effective Date.
CUSTOMER: Monroe County Board of County Commissioners QTS
Signature:
Print Name: Mayor Sylvia Murphy
Quality Inve-51olot Prod e s ami, LLC
Signatur .
Print Name.
Title: % /P&A
Address: MYjj1 " NCLSDY1 UhfiU' 12851 Foster Street
i C9.050 j_s &A10 Swf" a34
O, ft, 3D3'1 Overland Park, KS 66213
T
Telephone: ( S 07S_7 G 913.312.5514
G1
E Mail:
bucGd @monwcco � 1 �' J` " E -Mail: �OLDIe xfbkk
curt A0 x014 Date:
(Cor or Seal)Attest or Two (2) Witnesses
12-M tr `�
1
!j ��$$ � r` Pri Witn Na ss 1 r 1 . 1 1 a
nt me: ' ` �
tt� t: in, Clerk of Court �
_ F ti
'- ''-1 �e
:-
W'
Printed
B y: 'F '�^
Deputy Clerk
-9-
Master Space Agreement (6.1)
T Quality
Q 1 S Technology
Services
Quality Investment Properties Miami, LLC
ADDENDUM TO MASTER SPACE AGREEMENT
ADDITIONAL TERMS AND CONDITIONS
FOR COLOCATION AND INTERNET ACCESS
This Addendum is attached to and made a part of the Master Space Agreement between Customer and Quality Investment Properties Miami, LLC
( "QTS "), and the terms hereof are incorporated therein by this reference and are applicable where Customer orders the use of space within the Data
Center(s) to be used for the purpose of colocating computer equipment and associated telecommunications equipment (the "Customer Space "); or
Customer orders communications or connectivity including connection to the Internet. Capitalized terms used herein and not otherwise defined herein
shall have the same meaning such terms are given in the Master Space Agreement. Reference herein to the "Agreement" shall mean the Master Space
Agreement, this Addendum and all other Addenda attached thereto, and all Orders placed thereunder. No other discussions, proposals, brochures, or
statements of work are incorporated herein, and neither customer nor QTS have relied thereon. The Master Space Agreement, all Addenda attached
thereto, including this Addendum, and all Orders placed thereunder, fully and completely reflect the understanding and obligations of the parties.
1. CUSTOMER SPACE AND QTS OBLIGATIONS
1.1 Upon acceptance by QTS of an Order for colocation and
completion of build -out (if necessary), Customer will be granted
a license to use the Customer Space, effective on the Start
Date. The location of the Customer Space shall be determined
by QTS in its sole discretion provided, however, Customer's
reasonable preferences identified to QTS may be considered.
1.2 QTS shall use commercially reasonable efforts to complete the
build -out and make the Customer Space available to Customer
on or before the Target Date. The Term of use of the Customer
Space shall begin thirty (30) days from the date of signing the
Order. Build -out shall mean QTS's construction and installation
of the Customer Space pursuant to the Order. QTS shall
provide the following Services in connection with the Customer
Space:
(a) Physical space as identified in the applicable Order (i.e.
Half Cabinet, Full Cabinet, Cage, Suite)
(b) Physical security for the Data Center(s) (security station
and personnel, 24 hours /day, 365 days /year);
(c) Power to the Customer Space and generator back -up to
the Data Center(s);
(d) Data Center environmental controls (temperature and
humidity); and
(e) Security alarms and fire alarm /suppression systems for the
Data Center(s).
1.3 QTS shall provide cabling for services provided by QTS (i.e.
network services, network monitoring) and maintenance on
equipment and cabling owned by QTS up to the Point of
Demarcation. The "Point of Demarcation" shall mean the first
point where Customer receives telecommunications or Internet
access service from QTS into the Customer Space. Except as
otherwise agreed pursuant to a separate Addendum for Services
attached to the Master Space Agreement and set forth in a 2.
corresponding Order, QTS shall not provide installation,
configuration, connection, inter - connection, maintenance or
support for any cabling, lines or equipment which is not owned
or operated by QTS, whether or not such cabling, lines or
equipment occurs before or after the Point of Demarcation.
1.4 QTS shall perform Remote Hands and Adhoc Engineering
Services as requested by Customer on an as needed basis.
Remote Hands and Adhoc Engineering Services shall be billed
in quarter -hour increments and shall include all time expended to
receive Customer instructions, travel to and return from
Customer Space, perform the operations and report any findings
or results. Remote Hands will be billed at the rate of $125.00 per
hour. Adhoc Engineering Services shall be billed at the rate of
$175.00 per hour. In no case, does this rate include the cost of
any materials or equipment supplied by QTS. Remote Hands
and Adhoc Engineering Services shall be provided to
Customer's Equipment within the Customer Space only pursuant
to the express instructions of Customer, and as such, Subject to
F.S. 768.28, Customer hereby releases and shall hold QTS, its
employees and contractors harmless from and against all
Losses relating to QTS's performance of such Remote Hands or
Adhoc Engineering Services actions caused or arising out of any
negligent, intentional or wrongful act, omission or default of
Customer. Customer agrees that all requests for Remote Hands
and Adhoc Engineering Services will be billed to Customer at the
rates specified, provided that QTS may, in its sole discretion,
waive all or a portion of such Remote Hands or Adhoc
Engineering fees, where the need for such service arises out of
a system failure directly caused by QTS. The response time for
Remote Hands and Adhoc Engineering Services will be based
upon available resources at time of Customer request and at no
time does QTS imply or guarantee a specific response time for
these services.
1.5 QTS shall perform such janitorial services, environmental
systems maintenance, power plant maintenance and other
maintenance actions as QTS deems necessary or desirable with
respect to the Data Center(s) in which the Customer Space is
located. QTS may from time to time monitor and maintain its
network, QTS Provided Equipment and Facilities ( "Facilities
Maintenance "). Customer acknowledges and agrees that the
performance of Facilities Maintenance and Customer
Maintenance may cause the network to be temporarily
inaccessible and the Services temporarily unavailable to
Customer. QTS will use its commercially reasonable efforts to
conduct such Facilities Maintenance in a manner and at such
times so as to avoid or minimize the inaccessibility of the
network and /or unavailability of the Services. If Facilities
Maintenance is expected to interrupt access to the network or
the availability of Services, QTS shall give Customer notice by e-
mail prior to conducting such maintenance, identifying the time
and anticipated duration of the Facilities Maintenance.
CUSTOMER OBLIGATIONS
2.1 Customer shall use the Customer Space only for placement and
maintenance of telecommunications and computer equipment
and related personal property in accordance with this
Agreement. Customer shall not store any parts or equipment in
the Customer Space other than Customer Equipment which is
operational and integral to the use of the network, unless
otherwise authorized by QTS. Customer shall not install any
equipment or personal property (including QTS Provided
Equipment and Facilities) in the Customer Space (including,
without limitation, ramps, and aisles therein) that individually or
in combination exceeds 1,250 lbs. per tile. Customer shall
inform QTS of any equipment and property anticipated to be
housed in the Customer Space, and QTS may require that the
Order include build -out of reinforced flooring if, in QTS's opinion,
such equipment and /or property will exceed the weight limits
proscribed herein.
-1-
CONFIDENTIAL
Quality Investment Properties Miami Colocation Addendum v6.0
2.2 Customer shall provide all end -user equipment, software and all
other telecommunications, Internet access and related
equipment that Customer deems necessary or desirable for
Customer's use of the Customer Space as permitted by the
Agreement. Except as otherwise agreed to pursuant to a Work
Order, Customer shall be solely responsible for installation,
maintenance, configuration, connection, inter - connection, and all
other support in connection with (a) all equipment and personal
property to be used by Customer in the Customer Space,
including without limitation, QTS Provided Equipment, and (b) all
telecommunications, data, Internet and power cabling or lines
and connections from the Point of Demarcation into and
throughout the Customer Space.
2.3 Throughout the Term of the Agreement, Customer shall maintain
the Customer Space in an orderly and safe condition in
accordance with all applicable laws, and the Rules and
Regulations. Customer shall provide the Customer Access
Roster to QTS on or prior to the Start Date, and thereafter, from
time to time, as the information in the Customer Access Roster
may change or be amended by Customer (including names,
addresses, signatures, pager numbers, e-mail address, and
telephone numbers of the then current Representatives).
Customer or its contractors shall be responsible for and shall
properly maintain in accordance with manufacturer instructions
and requirements the Customer Equipment and all personal
property located in the Customer Space ( "Customer
Maintenance ").
2.4 Customer is entitled to use up to, but not to exceed, 150 watts of
electric power per square foot of Customer Space ( "Power
Capacity "). QTS will notify Customer when electric power usage
reaches 90 -95% of Power Capacity. In the event that
Customer's electric power consumption exceeds 100% of Power
Capacity consistently for five (5) consecutive hours ( "Excess
Demand "), Customer agrees that it will immediately reduce its
electric power consumption to below 100% of Power Capacity or
upgrade its contract with QTS by executing a Work Order to
increase Power Capacity. The only method of increasing Power
Capacity is to contract for additional contiguous Customer Space
(the purchase of non - contiguous customer space will not
increase Customer's Power Capacity). If contiguous customer
space is not available, Customer must immediately reduce it
electric power consumption to below 100% of Power Capacity If
Customer fails to execute a Work Order to increase Power
Capacity within five (5) days after receipt of notice from QTS of
Excess Demand, or fails to reduce its electric power
consumption, Customer will be subject to suspension of electric
power. According to the National Electrical Installation
Standards, the maximum utilization on any power circuit is 80%
of the maximum capacity of that power circuit. Customer shall
take the necessary precautions to avoid exceeding 80%
utilization on any power circuit, In the event that Customer's
utilization exceeds 80% of maximum capacity on any power
circuit, the power related remedies and Service Level Credits set
forth in Section 5.2 herein shall not apply.
rely upon all such information in admitting persons identified
therein to the Data Center(s). QTS may require Representative
to be accompanied by an authorized QTS representative or
security personnel. QTS shall have the right to refuse access, or
limit access, to the Data Center(s) to any person who is not a
Representative or to any Representative whom QTS (in its sole
discretion) considers to be a risk to security or to the safety of
persons or property, or who is not qualified to perform the tasks
for which such person purports to access the Customer Space,
or for any other lawful reason.
3.2 Security personnel may require individuals desiring access to
sign -in, present photo identification, submit to physical
inspection of their person and properties and otherwise answer
such questions and provide such information as the security
personnel may require to authenticate such person and verify
that such person is an authorized Representative of Customer.
3.3 Customer shall not (and shall not permit others operating at its
request, under its instruction, direction, control or supervision to)
access, rearrange, reconfigure, disconnect, remove, repair,
replace, damage or otherwise tamper with (or attempt to do any
of the foregoing to) any of the Facilities or the properties or
customer space of any other person using the Data Center(s).
Any violation of this Section 3 shall be material breach by
Customer of this Agreement and, in addition to all other
remedies available to QTS therefor, and notwithstanding any
provisions contrary hereto, Customer shall upon demand (a) pay
QTS the cost to repair or remedy all damage caused or arising
out of negligent, intentional or wrongful act, omission or default
caused to the Facilities or the properties or Customer Space of
its customers (including replacement of any such properties, if
deemed necessary by QTS or the owner of such property), and
(b) shall indemnify QTS, its employees, agents, representatives
and other Data Center users and customers, from all Losses
caused or resulting from negligent, intentional or wrongful act,
omission of default of Customer therefrom, pursuant to the
Master Space Agreement. Further, Customer shall indemnify,
defend and hold harmless QTS, its employees, agents,
representatives and contractors, pursuant to the Master Space
Agreement, for any injury to any person or damage to property
of any person (including employees and representatives of QTS)
caused by or arising out of a negligent, intentional or wrongful
act, omission or default of Customer's and its Representatives'
caused by or related to access to and use of the Customer
Space or the Data Center(s).
3.4
In addition to the requirements set forth herein, Customer's
access shall be subject to any and all rules, regulations, security
and access requirements imposed by QTS governing the Data
Center(s), including without limitation, Rules and Regulations
posted on the QTS portal and the Visitor Acknowledgment and
Release. Customer agrees (and shall cause each of its
Representatives) to strictly abide by all such requirements for
the Data Center. Customer agrees to periodically access the
website and familiarize itself with the then current version of the
Rules and Regulations. Notwithstanding, QTS agrees to provide
Customer with thirty (30) days notice of any changes to said
Rules and Regulations.
2.5 In the event of a data security breach, Customer shall coordinate
with QTS in its efforts to comply with applicable data breach
notification laws and shall submit any data security breach
notices, press releases, announcements or other disclosures to 3.5
QTS for approval prior to mailing or other publication.
3. ACCESS TO DATA CENTER(S) AND CUSTOMER SPACE
3.1 Customer's 24 x 7 x 365 access to the Customer Space and the
Data Center(s) will be limited solely to the Representatives
identified on the then current Customer Access Roster.
Customer represents and warrants that the information
contained therein shall be true, complete and accurate in all
respects. QTS shall have no obligation to verify that any 4.
information contained in the Customer Access Roster then on
file with QTS is current or accurate, and QTS shall be entitled to-2-
QTS retains the right to access the Customer Space at any time
for any legitimate business purpose of QTS. Customer shall
provide a safe place for QTS personnel to work at the Premises
and within the Customer Space. Customer shall allow QTS
access to the premises and Customer Space to the extent
reasonably necessary (as determined by QTS) for the
installation, inspection, removal, relocation, replacement, and
scheduled or emergency Facilities Maintenance, or as may
otherwise be necessary to provide the Services.
INTERNET ACCESS SERVICES
Quality Investment Properties Miami Colocation Addendum v6.0
Error! unknown document property name.
4.1 Customer's use of the Internet access Services and that of its
customers, personnel or other end -users shall at all times
comply with QTS's then current Acceptable Use Policy and
Privacy Policy ( "Acceptable Use Policy "), as amended by QTS
from time -to -time and which is available through the QTS portal.
QTS will notify Customer of complaints received by QTS
regarding each incident of alleged violation of QTS's Acceptable
Use Policy, whether by Customer or third parties that has gained
access to the Service through Customer. Customer will require
its customers, personnel and other end -users to comply with the
Acceptable Use Policy. Customer agrees that it will promptly
investigate all such complaints and take all reasonably
necessary actions to remedy and to prevent any further violation
of QTS's Acceptable Use Policy. Customer agrees that QTS
may identify to the complainant that Customer or a third party is
investigating the matter and QTS may provide the complainant
with the necessary information to contact Customer directly to
resolve the complaint. Customer shall identify a representative
for the purposes of receiving such communications. QTS
reserves the right to install and use, or to require Customer to
install and use, any appropriate devices to prevent violations of
QTS's Acceptable Use Policy, including devices designed to
filter or terminate access to the Services. If QTS is notified of
any allegedly infringing, defamatory, damaging, obscene,
pornographic, illegal, or offensive use, content or activity, QTS
may (but shall not be required to) investigate the allegation, or
refer it to Customer or a third party for investigation. QTS
reserves the right to remove or require the removal of the illegal
or objectionable content from the Web page or any other text or
item linked to the Internet, and require Customer to cease (or
cause its users to cease) all illegal or objectionable activities or
use. If Customer refuses such requirements, QTS may, at its
option, immediately remove the subject Web page or other text
or item from the Internet, suspend the Services provided
hereunder, and /or terminate this Agreement, all without limiting
any other remedies available to QTS, and QTS shall not be
liable to Customer or any other person as a result of any such
action.
4.2 Customer shall diligently comply with the notice and takedown
procedures of the Digital Millennium Copyright Act.
4.3 Unless specifically provided for in a separate Addendum, QTS
does not provide, and subject to FS 768.28, Customer shall
hold QTS harmless from any and all Losses arising from or
relating to, user or access security with respect to any of
Customer's facilities or facilities of others, and Customer shall be
solely responsible for user /access security and network access
to Customer's facilities. QTS does not provide any service to
detect or identify any security breach of Customer's websites,
databases or facilities, except as may be set forth in a separate
written agreement between Customer and QTS.
4.4 Unless specifically provided for in a separate Addendum, QTS
does not perform any tests employing tools and techniques
intended to gain unauthorized access to Customer's
environment ( "Internet Intrusion Testing "). Customer shall
indemnify, defend, and hold harmless QTS for any Losses
incurred in connection with any Internet Intrusion Testing by
Customer or any third party acting on Customer's behalf caused
by or arising out of negligent, intentional or wrongful act,
omission of default or Customer and /or its agents or employees.
4.5 Unless otherwise agreed in writing by QTS, QTS shall not be
responsible for the installation, removal, operation, maintenance
or replacement of any equipment or Customer Equipment.
4.6 The parties understand and agree that use of
telecommunications and data communications networks and the
Internet may not be secure and that connection to and
transmission of data and information over the Internet and such
facilities provides the opportunity for unauthorized access to
computer systems, networks, and all data stored therein.
Information and data transmitted through the Internet or stored
on any equipment through which Internet information is
transmitted may not remain confidential and QTS does not make
any representation or warranty regarding privacy, security,
authenticity, and non - corruption or destruction of any such
information. QTS does not warrant that the Services or
Customer's use will be uninterrupted, error -free, or secure. QTS
shall not be responsible for any adverse consequence or loss
whatsoever to Customer's (or its users' or subscribers') use of
the Internet. Use of any information transmitted or obtained by
Customer using the QTS network or the Internet is at
Customer's own risk. QTS is not responsible for the accuracy of
information obtained through its network, including as a result of
failure of performance, error, omission, interruption, corruption,
deletion, defect, delay in operation or transmission, computer
virus, communication line failure, theft or destruction or
unauthorized access to, alteration of, or use of information or
facilities, or malfunctioning of websites. QTS does not control the
transmission or flow of data to or from QTS's network and other
portions of the Internet. Such transmissions and /or flow depend
in part on the performance of telecommunications and /or
Internet services provided or controlled by third parties. At times,
actions or inactions of such third parties can impair or disrupt
Customer's connections to the Internet. QTS does not represent
or warrant that such events will not occur and QTS disclaims any
and all liability resulting from or related to such acts or
omissions.
4.7 Customer may not resell IP addresses, IP numbers, or IP
accounts from a QTS provided leased line, including, without
limitation, serial line Internet protocol (SLIP) or point -to -point
protocol (PPP) dial -up accounts, point -to -point leased lines,
switched packet leased lines, or any TCP /IP transmission that
uses resources on QTS's network without the prior written
consent of QTS and such account addresses are not portable.
Customer shall own its own registered domain names and shall
disclose any private or proxy domain name registrations to QTS
immediately on request.
4.8 To the extent Customer orders any Service designated as
"Burstable" (meaning Customer has the ability to use Services in
excess of the Committed Data Rate), Customer will be billed for
(a) the Committed Data Rate, and (b) the Excess Use at the
price per Mbps set forth in the Order. Customer's use will be
sampled in five- minute inbound and outbound averages during
each month. At the end of the month in which such use is
measured, the top five percent (5 %) of the inbound and
outbound averages shall be discarded. The highest of the
resulting ninety -five percent (95 %) for inbound and outbound
averages will be compared to the Committed Data Rate, and if
that ninety -fifth percentile (95 %) of traffic is higher than the
Committed Data Rate, the difference between the highest of
either average and the Committed Data Rate shall be the
"Excess Use ".
4.9 If Customer is an international, federal, state, or local
governmental agency, the purchase order submitted by
Customer shall contain the following language:
"Notwithstanding any provisions to the contrary on the face of
this purchase order or on any attachments to this purchase
order, this purchase order is being used for administrative
purposes only, and this order is placed under and subject solely
to the terms and conditions of the QTS Master Space
Agreement and Addendum for Colocation and Internet Access,
executed between Customer and QTS.
-3-
Quality Investment Properties Miami Coloration Addendum v6.0
Error! Unknown document property name.
5. SERVICE LEVEL GUARANTEE
5.1 Internet Access Guarantee Except in the event of Facilities Maintenance, Customer Maintenance, Customer use of a single physical
connection and Force Majeure conditions, QTS shall have the contracted Internet access available for the Customer to transmit information to,
and receive information from the Internet 99.999% of the time during the Term of this Addendum ( "Internet Access Guarantee "). Customer
acknowledges that incremental usage in excess of the Committed Data Rate is subject to available bandwidth on the QTS network.
Internet Access Remedy In the event QTS fails to provide the level of service provided in the Internet Access Guarantee, Customer shall
receive the applicable remedy ( "Service Level Credit ") described below. The Internet Access Guarantee is measured on a calendar month
basis.
LENGTH OF INTERNET OUTAGE
SERVICE LEVEL CREDIT
More than 26 Seconds but less than 4 Minutes in a given month.
Credit of 1.0% of total Monthly Recurring Charge for Internet Access
4 Minutes per month, but less than 43 Minutes in a given month.
Credit of 2.0% of total Monthly Recurring Charge for Internet Access
43 Minutes per month, but less than 86 Minutes in a given month.
Credit of 4.0% of total Monthly Recurring Charge for Internet Access
NONE
Credit of 6.6% of total Monthly Recurring Charge for Internet Access,
Charge for Customer Space
plus the applicable credit for any partial hour, not to exceed the total
More than 86 Minutes per month.
Monthly Recurring Charge for Internet service. For example,
unavailability of 1 hour, 30 minutes, would result in a credit of the total
NONE
Monthly Recurring Charge of 8.6% 6.6% +2%
5.2 Power Guarantee Except in the event of Facilities Maintenance, Customer Maintenance and Force Majeure conditions, QTS shall have the
contracted power available for the Customer as follows: 99.999% of the time during the Term of this Addendum when configured with
redundant power, or if the Customer does not choose the redundant power option on the Customer order form, 99.99% of the time during this
Addendum ( "Power Guarantee ").
Power Remedy In the event QTS fails to provide the level of service provided in the Power Guarantee, Customer shall receive the applicable
remedy ( "Service Level Credit ") described below. The Power Guarantee is measured on a calendar month basis and is based upon
Customer's selection on the Order form of either single or redundant power.
POWER UNAVAILABILITY
SERVICE LEVEL CREDIT FOR
SERVICE LEVEL CREDIT FOR A
CALCULATIONS
REDUNDANT POWER SUPPLY
SINGLE POWER SUPPLY ONLY
More than 26 Seconds but less than 4
Credit of 1.0% of total Monthly Recurring
NONE
Minutes in a given month.
Charge for Customer Space
4 Minutes per month, but less than 43
Credit of 2.0% of total Monthly Recurring
NONE
Minutes in a given month.
Charge for Customer Space
43 Minutes per month, but less than 86
Credit of 4.0% of total Monthly Recurring
Credit of 2.0% of total Monthly Recurring
Minutes in a given month.
Charge for Customer Space
Charge for Customer Space
Credit of 6.6% of total Monthly Recurring
Credit of 4.0% of total Monthly Recurring
Charge for Customer Space, plus the
Charge for Customer Space, plus the
applicable credit for any partial hour, not to
applicable credit for any partial hour, not to
exceed the total Monthly Recurring Charge
exceed the total Monthly Recurring Charge
More than 86 Minutes in a given month.
for Customer Space. For example,
for Customer Space. For example,
unavailability of 1 hour, 30 minutes, would
unavailability of 1 hour, 30 minutes, would
result in a credit of the total Monthly
result in a credit of the total Monthly
Recurring Charge of 10.6% (6.6 % +4 %)
Recurring Charge of 5% (4 % +1 %)
5.2 Latency Guarantee Except in the event of Facilities Maintenance, Customer Maintenance and Force Majeure conditions, QTS shall provide
the contracted Internet access capable of one -way transmissions of a monthly average of 40 milliseconds or less between the QTS switch port
and the QTS transit routers during the Term of this Addendum ( "Latency Guarantee'). It is mutually understood that customers who purchase
Burstable bandwidth may necessarily suffer increased latency should volume exceed the Burstable access ordered.
-4-
Quality Investment Properties Miami Colocation Addendum v6.0
Error! Unknown document property name.
Latency Remedy In the event QTS fails to meet the Latency Guarantee, Customer will receive a Service Level Credit equal to one day's
Monthly Recurring Charges for Internet Access for every 10 milliseconds (or portions thereof) over the guaranteed 40 milliseconds monthly
average.
5.4 Packet Delivery Guarantee Except in the event of Facilities Maintenance, Customer Maintenance and Force Majeure conditions, QTS
guarantees Network Packet Loss ( "Packet Guarantee ") of less than 0.5% monthly average measured from the QTS switch port to the QTS
transit routers ( "Network "). It is mutually understood that customers who order fixed Committed Data Rates (not Burstable), may necessarily
suffer packet losses should volume exceed the fixed Committed Data Rate ordered, and customers who purchase Burstable bandwidth may
necessarily suffer packet losses should volume exceed the Burstable access ordered. As such, the remedy (Service Level Credit) is only
available for packet losses occurring within the ordered bandwidth.
Packet Delivery Remedy In the event QTS fails to meet the Packet Guarantee, Customer will receive a Service Level Credit equal to one
day's Monthly Recurring Charges for Internet Access for every one percent (or portions thereof) over the guaranteed 0.5% monthly average.
5.5 Temperature Guarantee Except in the event of Facilities Maintenance, Customer Maintenance and Force Majeure conditions, QTS
guarantees the monthly average Data Center temperature will not exceed 78 degrees Fahrenheit ( "Temperature Guarantee ").
Temperature Remedy In the event any QTS sampling point registers a monthly average deviation in excess of the Temperature Guarantee,
Customer will receive a Service Level Credit equal to one day's Monthly Recurring Charges for physical space for every one (1 °) degree
Fahrenheit above the Temperature Guarantee during the applicable month.
5.6 Humidity Guarantee Except in the event of Facilities Maintenance, Customer Maintenance and Force Majeure conditions, QTS guarantees
the monthly average Data Center humidity will not exceed 55% ( "Humidity Guarantee ").
Humidity Remedy In the event any QTS sampling point registers a monthly average deviation in excess of the Humidity Guarantee,
Customer will receive a Service Level Credit equal to one day's Monthly Recurring Charges for physical space for every one (1 %) percent the
humidity exceeds the Humidity Guarantee during the applicable month.
5.7. Remedies
a) If, during the term of this Addendum, QTS fails to meet any of the Internet Access Guarantee, Power Guarantee, Latency
Guarantee, Packet Delivery Guarantee, Temperature Guarantee, or the Humidity Guarantee (each referred to herein individually
and collectively as a "Service Level Guarantee "), Customer shall be entitled to receive, as its sole and exclusive remedy, the
applicable Service Level Credits described in Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6 of this Addendum. QTS shall apply all of the
Customer's Service Level Credits directly to the Customer's total Monthly Charges. In no event shall the Customer's total amount of
Service Level Credits exceed the Customer's total Monthly Charges for a given month.
b) If QTS shall fail to meet the Internet Access Guarantee two (2) times in any calendar quarter or shall fail to meet the Power
Guarantee two (2) times in any calendar quarter, either party shall be entitled to terminate this Agreement upon the delivery of
written notice received by the other party within thirty (30) days of the date of the second failure. Termination pursuant to this section
shall be effective sixty (60) days after the non - terminating party's receipt of the required termination notice.
C) Notwithstanding anything herein to the contrary, if, following the application of any Service Level Credits to the Customer's Monthly
Charges for the failure by QTS to meet the same Service Level Guarantee two (2) times in any calendar quarter, QTS determines in
its sole and reasonable discretion that it will be unable to meet such guarantee in the future, QTS reserves the right, upon written
notice to the Customer, to terminate this Addendum without penalty. In the event of a termination pursuant to the foregoing
sentence, upon Customer's written request, QTS will continue to provide Customer the Services governed by this Addendum for a
period of up to sixty (60) days, provided, however, Customer continues to make timely payments of the Monthly Charges as
provided herein. Customer acknowledges that QTS will not be responsible for payment of any additional Service Level Credits, of
any nature whatsoever, during this sixty (60) day period.
d) Notwithstanding anything herein to the contrary, QTS will not knowingly or purposefully fail to meet any Service Level Guarantee. In
the event that a Service Level Guarantee is not met and QTS determines in its reasonable judgment that such failure was a result of
(i) any Force Majeure condition, (ii) any actions or inactions of Customer, (iii) any activity under Customer's control or within the
obligations undertaken by Customer (including, without limitation, inaccurate or corrupt data input, use of network or the Services
other than in accordance with the documentation or the directions of QTS, failure or inability of Customer to obtain or the failure or
inability of a vendor to provide upgrades, new releases, enhancements, patches, error corrections and fixes for software equipment,
and problems in Customer's local environment), or (iv) any Facilities Maintenance performed during the maintenance window
identified in Section 1.5 of this Addendum or any Customer Maintenance, then QTS shall have no obligation to credit Customer any
amount for any such failure.
[Signatures on the following page]
-5-
Quality Investment Properties Miami Coloration Addendum v6.0
Error! unknown document property name.
CUSTOMER:
MONROE COUNTY BOARD OF
QTS:
COUNTY COMMISSIONERS
QUALITY INVESTMENT PROPERTIES MIAMI, LLC
Print Name:
� �+ � J -
Print Name:
Mayor Sylvia Murphy
00610
Title:
Address:
12851 Foster St, Suite 205
rr1I,Lwa WfL50v) Cal
Overland Park KS, 66213
Address:
1050 Ols H W y • U..{tC �'
Attn: Legal
KfAg EL 3323"1
Telephone:
913- 312 -5514
Telephone:
o%8 4S3 — Di e]
Facsimile:
913-814-7766
Facsimile:
Facsimile:
Email:
I�6(, fS&r 1w✓DLCDU.V1ty'
ft . qL ) V
E- mail:
Date:
�4(A ItiJf 2Ut�� �VI' -I
Date:
Signature:
Signature:
m�
HEffifILI'd, CLERK
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
CHRISTINE M. LIMBERT - BARROWS
ASSIST AT COUNTY ATTORNEY
Date au I U
-6-
Quality Investment Properties Miami Colocation Addendum v6.0
Error! Unknown document property name.