Carahsoft Agreement for Sale of QTS Services for U.S. Government End Users

This comprises Carahsoft Technology Corporation’s offer to sell Services from its supplier, Carahsoft Service Provider (QTS) Affiliate, as defined below. This Agreement consists of the following:

1. Master Terms and Conditions;
2. Addendum to Master Terms and Conditions for Government Cloud Services;
3. Rider to Master Terms and Conditions for U.S. Government End Users (“Rider”); and
4. Acceptable Use Policy posted at www.qtsdatacenters.com, which may be amended by QTS with prior notice of any changes to the Acceptable Use Policy.
5. A Purchase Order submitted by Customer to Carahsoft incorporating the terms of this Agreement which is accepted by Carahsoft Service Provider (QTS) Affiliate.

The Rider takes precedence over the Master Terms and Conditions and Addendum to the Master Terms and Conditions for Government Cloud Services with respect to any sales to Licensees, as defined in Section 1 of the Rider, who are agencies or instrumentalities of the United States or authorized users under United States government contracts. As used in this Agreement, the term “Customer” refers to a government end user or Licensee as defined in the Agreement.

1. Master Terms and Conditions

This Agreement is agreed to by Carahsoft Technology Corporation (””Carahsoft”)) for itself and for services provided by its Carahsoft Service Provider (QTS) of the Services to federal, state, local government and educational customers and prime contractors (collectively, “Customers” or “Licensees” as further defined below. This Agreement is effective on the earlier of acceptance of Customer’s Purchase Order by Carahsoft Service Provider (QTS) Affiliate or Customer’s use of Services provided under this Agreement (“Effective Date”). Carahsoft will submit Work Orders for such sales to specific Licensees (as defined below) to Carahsoft Service Provider (QTS) for acceptance and fulfillment, provided that individual orders will be fulfilled by the specific Carahsoft Service Provider (QTS) Affiliate executing a Work Order(s) with Licensee. Each executed Work Order(s) will form a separate contract between the specific Carahsoft Service Provider (QTS) Affiliate executing the Work Order and Customer, and will incorporate all of the terms of this Agreement. Each Carahsoft Service Provider (QTS) Affiliate identified on a Work Order(s) shall not be deemed jointly and severally liable for any obligations undertaken by any other Carahsoft Service Provider (QTS) Affiliate pursuant to this Agreement or any Work Order(s). This Agreement governs the Customer Space licensed and/or Services purchased under a Work Order, but shall not govern Carahsoft Service Provider’s (QTS) provision of custom colocation space and/or services to Customer pursuant to a separate Lease Agreement signed between Customer and Carahsoft. Capitalized terms used herein shall have the meaning given in the body and the definition section of this Agreement. This Agreement contains terms and conditions applicable to each Carahsoft Service Provider (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 with Carahsoft, subject to acceptance by Carahsoft Service Provider (QTS). To the extent of any inconsistency between this 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 Agreement, including the Rider.

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, Carasoft 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 shall pay, by check or wire transfer, each invoice in full within thirty (30) days from invoice receipt. Fees for each of the licensed Customer Space or Services in a Work Order begin to accrue at the Start Date.

3.2 Disputes. Customers may reasonably dispute any portion of an invoice provided such reasonable dispute is made (a) in writing with sufficient detail as to (i) the nature of the claim, (ii) the amount disputed and (iii) the specific Service(s) and related charges disputed; and (b) within thirty (30) days from the date of the invoice (after which time Customer agrees all amounts charged on the invoice are deemed accurate). A dispute as to any portion of an invoice does not relieve Customer from timely payment of the undisputed portion.

3.3 Intentionally Omitted.

3.4 Late Payments. Any undisputed payment not received by Carahsoft within thirty (30) days from Customer’s receipt of the invoice 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.

3.5 Taxes. Customer shall be responsible for all taxes related to the provision of Customer Space or Services, except for taxes based on Carahsoft’s net income. All taxes shall appear as a separate item on Carahsoft’s invoices (unless Carahsoft receives a valid tax exemption certificate from Customer prior to shipment).

3.6 Credit History. Carahsoft 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) Carahsoft, through Carahsoft Service Provider (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 Carahsoft through its Carahsoft Service Provider (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 Carahsoft Service Provider (QTS) may not legally provide the Customer Space or Services. 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. Customer will indemnify, defend and hold harmless Carahsoft Service Provider (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 Customer’s own negligence or willful misconduct. Customer shall have no liability for Licensee’s negligence, willful misconduct or violation of the AUP. Notwithstanding any other provision or limitation in this Agreement, Carahsoft Service Provider (QTS) shall both defend and indemnify Customer from all costs, damages and expenses arising from any claim that the Services provided hereunder violate the intellectual property rights of any third party, specifically including patent, copyright or trademark infringement.

6. 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, Carahsoft Service Provider (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.

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.

7. MUTUAL CONFIDENTIALITY/NON-SOLICIT

7.1 Disclosure and Use. Each party agrees that it will not use in any way, nor disclose to any third party, the other party’s Confidential Information (which shall include the Confidential Information of any Affiliate of either party), 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 Carahsoft Service Provider (QTS), or acquisition of all or substantially all of the assets of Carahsoft Service Provider (QTS); (iii) any disclosure by Carahsoft Service Provider (QTS) that is required to respond to a security threat to the Carahsoft Service Provider (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. Carahsoft and Customer and their respective representatives agree that a breach of Sections 7.1 and 7.2 above will 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 to seek, 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.

7.4 Non-Solicitation. The Parties agree that during the Term, and for one year thereafter, neither will directly or indirectly: (a) solicit, induce or encourage any employee (other than clerical employees) or independent contractor to terminate their current employment with or to cease rendering services to their current employer, and neither party shall not initiate discussions with any such person for any such purpose or authorize or knowingly cooperate with the taking of any such actions by any other person; or (b) solicit, recruit, induce for employment or hire (on behalf of itself or any other person or entity) any employee (other than clerical employees) or independent contractor who has left the employment or other service of either party (or any predecessor thereof) within one year of the termination of such employee’s or independent contractor’s employment or other service with the other party. Nothing contained in this Section 7.4 shall prohibit either party from hiring any employee or former employee who either initiates employment discussions with the other party or responds to a general solicitation for employment issued by either party.

8. MUTUAL INSURANCE REQUIREMENTS

8.1 Minimum Levels. Each party agrees to keep in full force and effect during the Term of this Agreement 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.

9. TERMINATION

9.1 Termination for Cause. Carahsoft’ 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) Customer has threatened the security of the Data Center, the Carahsoft Service Provider (QTS) IaaS, or any other network or system; (c) failure to pay amounts when due, after ten (10) days written notice and failure to cure; (d) repeated violation of the AUP by Customer or its customers or end-users; (e) Carahsoft Service Provider (QTS) is unable to provide Customer Space or Services due to Customer’s acts or omissions; (f) Customer 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 (g) a court or other government authority having jurisdiction over the Services prohibits Carahsoft Service Provider (QTS) from furnishing the Customer Space or Services to Customer. Customer may terminate this Agreement for any one or more of the following: (x) Carahsoft Service Provider (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 (y) as specifically set forth in an Addendum attached hereto.

9.2 (A) 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 Carahsoft Service Provider (QTS) as provided in Section 9.1 herein, Customer shall pay a termination charge equal to 100% 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) (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 Carahsoft Service Provider (QTS).

(B) Termination for lack of government funding. Notwithstanding anything in Section 9.2(A) to the contrary, it is understood that Customer may be contracting with a government agency or may be a government agency itself (the "Government Customer") which requires government funding to pay for the Services. If, at any time during the Term of a Work Order a Government Customer does not receive the appropriate funding, Customer may, upon written notice delivered to Carahsoft Service Provider (QTS) within ten (10) days of the Government Customer’s notification to Customer that it has not received funding, Customer may terminate the Work Order(s) related to such Government Customer without liability for Termination Fees.

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 (at the end of the Transition Assistance Period, if any), 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 fifty percent (150%) 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.

9.4 Suspension of Licenses or Services by Carahsoft or Carahsoft Service Provider (QTS). Carahsoft or Carahsoft Service Provider (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 ten (10) days after written notice is given to Customer by Carahsoft. In the event of a suspension of Licenses or Services pursuant to this Section 9.4, Customer agrees that Carahsoft 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 Carahsoft 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 Carahsoft under this Section 9.4 are in addition to any other rights that Carahsoft may have under this Agreement.

9.5 Effect of Termination by Either Party. Upon the effective date of termination of the Agreement (or the end of the Transition Assistance Period, if any): (a) Carahsoft will immediately cease providing Services and Customer’s License shall terminate and Carahsoft 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 (or the end of the Transition Assistance Period, if any) 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 Carahsoft Provided Equipment to an authorized representative of Carahsoft or Carahsoft Service Provider (QTS); and (iii) return the Customer Space to Carahsoft Service Provider (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), Carahsoft will have the right to do one or more of the following, without further 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 Majeure. 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; strikes, lock-outs, work stoppages, labor shortages or other labor difficulties; or 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 industry (each, a “Force Majeure Event”). If Carahsoft 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 Carahsoft Service Provider (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 Carahsoft Service Provider (QTS), the parties will cooperate in good faith with each other to facilitate such relocation. Carahsoft Service Provider (QTS) shall be solely responsible for the costs incurred by Carahsoft Service Provider (QTS) in connection with any such relocation. Relocation made by Carahsoft Service Provider (QTS) at the request of Customer, will be at the sole expense of Customer. Carahsoft Service Provider (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 Carahsoft or Carahsoft Service Provider (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 Carahsoft provides 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 Carahsoft at:

11493 Sunset Hills Road
Suite 100
Reston, Virginia 20190
Attn: Contracts Department
Fax: (703) 871-8505
Email: contracts@carahsoft.com

To Customer, to the contract information included on the Purchase Order.

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 Carahsoft, which shall not be unreasonably withheld. Carahsoft may require any transferee to execute documentation reasonably acceptable to Carahsoft and Carahsoft Service Provider (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. Carahsoft Service Provider (QTS) may assign or transfer part or all of its respective rights and obligations under this Agreement without notice to Customer, including without limitation, to any entity that is a subsidiary or affiliate of Carahsoft Service Provider (QTS) or to any entity that is the survivor of a merger with Carahsoft Service Provider (QTS) and any entity that acquires all or substantially all of the assets of Carahsoft Service Provider (QTS). In the event of any transfer or termination of Carahsoft Service Provider (QTS) interest in the Data Center by sale, assignment, transfer, foreclosure, deed-in-lieu of foreclosure or otherwise whether voluntary or involuntary, Carahsoft Service Provider (QTS) shall be automatically relieved of any and all obligations and liabilities on the part of Carahsoft Service Provider (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 Carahsoft Service Provider (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. 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 Carahsoft or Carahsoft Service Provider (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 Customer shall be deemed objected to by Carahsoft Service Provider (QTS) without need of further notice of objection, and shall be of no effect or in any way binding upon Carahsoft or Carahsoft Service Provider (QTS).

10.7 No Competitive License or Service. Customer may not at any time, without Carahsoft’s prior written consent, permit any Carahsoft Service Provider (QTS) facility or the QTS IaaS to be utilized for the resale of Internet access, co-location or managed services to Carahsoft Service Provider (QTS) clients. Customer may use allocated space on the QTS IaaS to host software as a service application.

10.8 Relationship of the Parties. Carahsoft 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 including its Rider and Addendum will be incorporated in a Purchase Order submitted by Customer which itself 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. Facsimile, PDF, or electronic signatures shall be acceptable in lieu of original signatures.

10.10 Modification. This Agreement may be changed only by a written document signed by authorized representatives of Carahsoft Service Provider (QTS) and Customer.

10.11 Severability. 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.

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 Delaware, except its conflicts of law principles.

10.14 Third Party Beneficiaries. The provisions of this Agreement and the rights and obligations created hereunder are intended for the sole benefit of Carahsoft 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. Carahsoft and Carahsoft Service Provider (QTS), as their interests may appearshall 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 Carahsoft or Carahsoft Service Provider (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 Carahsoft Service Provider (QTS) all IPR in and to the QTS Technology. In return for payment of all fees and charges, Carahsoft Service Provider (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. Carahsoft and Carahsoft Service Provider (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 Carahsoft or Carahsoft Service Provider (QTS) shall deem necessary or desirable to secure to them the right, title and interest in and to such IPR. Customer further agrees to cooperate with Carahsoft and Carahsoft Service Provider (QTS) as reasonably necessary to maintain or enforce their 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 Carahsoft may utilize Customer’s logo and/or domain name at their respective websites which may include a link from the Carahsoft Service Provider (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 authorized representatives of Carahsoft Service Provider (QTS) and Customer.

10.11 Severability. 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.

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 Delaware, except its conflicts of law principles.

10.14 Third Party Beneficiaries. The provisions of this Agreement and the rights and obligations created hereunder are intended for the sole benefit of Carahsoft 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. Carahsoft and Carahsoft Service Provider (QTS), as their interests may appearshall 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 Carahsoft or Carahsoft Service Provider (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 Carahsoft Service Provider (QTS) all IPR in and to the QTS Technology. In return for payment of all fees and charges, Carahsoft Service Provider (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. Carahsoft and Carahsoft Service Provider (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 Carahsoft or Carahsoft Service Provider (QTS) shall deem necessary or desirable to secure to them the right, title and interest in and to such IPR. Customer further agrees to cooperate with Carahsoft and Carahsoft Service Provider (QTS) as reasonably necessary to maintain or enforce their 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 Carahsoft may utilize Customer’s logo and/or domain name at their respective websites which may include a link from the Carahsoft Service Provider (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 Agreement may contain defined terms that are not applicable to every Service. Section 10.2 shall only apply to Licensees 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.

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.

(c) “Acceptable Use Policy” or “AUP” means the acceptable use policy posted at www.qtsdatacenters.com.

(d) “Affiliate” with respect to any party means any entity that controls, is controlled by or is under common control with such party.

(e) “Agreement” means this Master Agreement, the general terms and conditions herein and includes any Addendum, Product Description, Work Order, 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.

(f) “Burstable” means Customer has the ability to use Services provided with respect to Customer Space in excess of the Committed Data Rate.

(g) “Carahsoft Service Provider (QTS) Affiliate” means any entity that is owned, directly or indirectly, by QualityTech, LP or any successor to QualityTech, LP.

(h) “Cloud Organization Administrator” means one or more Customer representatives or Carahsoft Service Provider (QTS) employees designated by Customer as having the right to access the self-service features of the Carahsoft Service Provider (QTS) IaaS.

(i) “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.

(j) “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 (a) 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.

(k) “Customer Access Roster” means the official register of Representatives.

(l) “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.

(m) “Customer Party” or “Customer Parties” means Customer’s representatives, agents, employees, officers, directors, contractors or subcontractors.

(n) “Customer Maintenance” means steps taken by Customer to properly maintain the Customer Equipment in accordance with manufacturer instructions and requirements.

(o) “Customer Space” means the portion of the Data Center(s) and associated power which Carahsoft Service Provider (QTS) licenses to Customer under a Work Order. The location of the Customer Space shall be determined by Carahsoft Service Provider (QTS) in its sole discretion; provided, however, Customer’s reasonable preferences shall be considered.

(p) “Data Center” means any of the buildings and facilities owned or leased by Carahsoft Service Provider (QTS) at which Customer Space is located or from which Services are provided.

(q) “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.

(r) “Facilities” means any and all devices generally used by Carahsoft Service Provider (QTS) to provide Customer Space or deliver Services to its customers, but excluding QTS Provided Equipment and Customer Equipment.

(s) “Facilities Maintenance” means the times Carahsoft Service Provider (QTS) monitors and maintains its network, QTS Provided Equipment or Facilities.

(t) “Internet Intrusion Testing” means tests employing tools or techniques intended to gain unauthorized access to Customer’s environment.

(u) “Laws” means rules, regulations, statutes, ordinances, orders and rulings of a government and administrative and regulatory authorities, as well as the Rules and Regulations.

(v) “Licenses” means licenses of Customer Space to a Customer under a Work Order.

(w) “Licensee” means an U.S. Government agency end user receiving Services under this Agreement through the Customer or other customer purchasing services under this Agreement..

(x) “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).

(y) “Monthly Recurring Charges” means the monthly fee for the Customer Space and/or Services set forth on a Work Order.

(z) “Party” or “Parties” means representatives, agents, employees, officers, directors or contractors, or subcontractors.

(aa) “Point of Demarcation” means the first point where Customer receives telecommunications or Internet access into the Customer Space.

(bb) “Product Description” or “Product Catalog” shall mean the written description of a License or Service provided to Customer by Carahsoft Service Provider (QTS).

(cc) “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.

(dd) “Purchase Order” means an order including a Work Order from Customer to Carahsoft ordering Services provided under this Agreement.

(ee) “QTS Government Cloud Services” means those offerings of Services listed as government cloud on a Work Order.

(ff) “QTS IaaS” means the QTS infrastructure as a service.

(gg) “QTS Provided Equipment” means any hardware, software and other tangible telecommunications or internet equipment leased, subleased, licensed or sublicensed by Carahsoft Service Provider (QTS) to Customer.

(hh) “Reconnection Fee” means a fee of $175 per hour billed in quarter-hour increments for each hour or partial hour spent by Carahsoft Service Provider (QTS) reconnecting the Services provided to Customer.

(ii) “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.

(jj) “Representatives” means the individuals identified on the Customer Access Roster who are authorized to enter the Data Center(s) and access the Customer Space.

(kk) “Rules and Regulations” means the data center rules posted at www.qtsdatacenters.com.

(ll) “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 Carahsoft Service Provider (QTS) cloud services added by the Cloud Organization Administrator through the Carahsoft Service Provider (QTS) portal.

(mm) “Service Level Credit” means the specific remedy set forth in an Addendum for a failure to meet a Service Level Guarantee.

(nn) “Service Level Guarantee” shall have the meaning set forth in an Addendum.

(oo) “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 Carahsoft Service Provider (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.

(pp) “Statement of Work”, “Scope of Work” or “Work” means the detailed description of Professional Services attached to any Work Order.

(qq) “Term” as to any Work Order, means the period of time specified in a Work Order for which Carahsoft Service Provider (QTS) will provide the Customer Space or Services.

(rr) “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 Carahsoft Service Provider (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.

2. Addendum to Master Terms and Conditions

for Government Cloud Services
 

This Addendum is attached to and incorporated in the Master Terms and Conditions agreed to by Customer and Carahsoft Technology Corporation (“Carahsoft”) in effect as of the date of execution of a Purchase Order under this Agreementand are applicable where Customer orders QTS Government Cloud Services from Carahsoft. Capitalized terms used herein and not otherwise defined herein shall have the same meaning such terms are given in the Master Agreement.

1. CUSTOMER OBLIGATIONS

1.1. Customer Obligations and Restrictions. Customer shall (i) use reasonable security precautions in light of Customer’s use of the Services, (ii) cooperate with Carahsoft Service Provider’s (QTS) reasonable investigation of security problems, outages, data breaches, and any suspected breach of the Agreement, and (iii) immediately notify Carahsoft Service Provider (QTS) of any unauthorized use of Customer’s account or any other breach of security. Customer’s use of the Services shall at all times comply with Carahsoft Service Provider’s (QTS) then current Acceptable Use Policy.

1.2. Customer Warranty. 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 Carahsoft Service Provider’s (QTS) may not legally provide the Services. 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 any country that is embargoed or highly restricted under United States export regulations.

1.3. Third Party Software. Customer's use of any third party software is governed by the applicable terms and conditions accompanying such software. Customer is responsible to ensure they are compiling with all third party license agreements.

1.4 Microsoft Applications. Customer agrees that, unless Customer has contracted with Carahsoft Service Provider’s (QTS) for physical dedicated hardware, any Microsoft Server Operating System licensed software running on any equipment in the QTS Government Cloud must be purchased from Carahsoft Service Provider’s (QTS). Customer acknowledges that Microsoft has the right to increase its SPLA rates on an annual basis and Customer agrees that Carahsoft Service Provider’s (QTS) may increase Customer’s monthly recurring charges to reflect such increase in Microsoft’s SPLA rates no more than once annually. No other Microsoft Server Operating System licensed software will be allowed to run on any equipment in the QTS Government Cloud. In the event that Customer purchases a Microsoft license through Carahsoft Service Provider’s (QTS), Customer agrees that it will, at all times, comply with the Microsoft then current product use rights located at 1.1. http://www.microsoftvolumelicensing.com. Customer agrees that, unless Customer has contracted for physical dedicated hardware, all Microsoft applications consisting of Microsoft Exchange, Microsoft SQL, Microsoft Sharepoint or Microsoft Lync must either be purchased through Carahsoft Service Provider’s (QTS) or Customer must provide proof of License Mobility through Software Assurance. It is the Customer’s sole responsibility to ensure that it maintains a current Software Assurance agreement with Microsoft. Customers using Microsoft Windows Server Operating Systems purchased from Carahsoft Service Provider’s (QTS) configured with application mode remote desktop services (RDS); must also purchase a remote desktop license from Carahsoft Service Provider’s (QTS) for each named user with access to the Microsoft Operating System within QTS Government Cloud. Customer shall provide Carahsoft Service Provider’s (QTS) with the name of each named user representative with a remote desktop license and shall ensure that only those representatives with a remote desktop license are accessing the Microsoft Operating System within QTS Government Cloud.

1.5 Orders of Additional Services. Provided the Services are available, Customer may designate, in writing, one or more Cloud Organization Administrators that shall have the ability to do any or all of the following: (a) utilize the Carahsoft Service Provider (QTS) portal to add, modify and decommission virtual machines, and/or (b) modify network, firewall and load balancer settings. Customer acknowledges that it has certain responsibilities to manage its environment based on the roles and responsibilities set forth in the Responsibility Matrix attached hereto as Schedule A (“Responsibility Matrix”). Carahsoft Service Provider (QTS) shall not be liable, and Customer shall hold Carahsoft Service Provider (QTS) harmless for any damages that occurs during any of the actions listed in (a) and/or (b) and Customer shall reimburse Carahsoft Service Provider (QTS) for any costs Carahsoft Service Provider (QTS) incurs to repair any such damage. Customer acknowledges that it shall be responsible for any increase in monthly recurring charges and as well as any non-recurring one-time charges resulting from the above actions by the Cloud Organization Administrator(s). Customer may access a price list for the Services on the customer portal.

1.6 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 Work 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”.

1.7 Suspension of Services. Carahsoft Service Provider (QTS) may suspend Services without liability if: (i) Carahsoft Service Provider (QTS) reasonably believes that the Services are being used (or have been or will be used) in violation of the AUP or the Agreement, (ii) Carahsoft Service Provider (QTS) discovers that Customer is affiliated in any manner with, a person who has used similar services abusively in the past; (iii) Customer doesn't cooperate with Carahsoft Service Provider’s (QTS) reasonable investigation of any suspected violation of the Agreement; (iv) Carahsoft Service Provider (QTS) reasonably believes that Customer Services have been accessed or 1.1. manipulated by a third party without Customer consent, (v) Carahsoft Service Provider (QTS) reasonably believes that suspension of the Services is necessary to protect the QTS Government Cloud, other Carahsoft Service Provider (QTS) networks or systems or customer data; (vi) suspension is required by law: or (vii) as set forth in Section 1.7 below Carahsoft Service Provider (QTS) will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless Carahsoft Service Provider (QTS) determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Carahsoft Service Provider (QTS) or its other customers from imminent and significant operational or security risk. If the suspension was based on Customer's breach of its obligations under the Agreement, then Carahsoft Service Provider (QTS) may continue to charge the fees for the Services during the suspension, and may charge the Reconnection Fee upon reinstatement of the Services. Customer will not have access to data stored on the QTS Government Cloud during a suspension or following termination, except as required to perform transition assistance under Section 2.3.

1.8 FedRAMP Provisional Authorization to Operate. Customer acknowledges that Carahsoft Service Provider (QTS) has received a FedRAMP provisional authorization to operate “(P-ATO”) the QTS Government Cloud Services by the Joint Authorization Board. In the event that Customer uses the Government Cloud Services in any manner that may jeopardize Carahsoft Service Provider (QTS) P-ATO, Carahsoft Service Provider (QTS) shall have the right to immediately suspend or terminate the Government Cloud Services, without liability therefor.

1.9 Discontinue Use of Services. Upon the effective date of termination or expiration of the Agreement, Customer shall immediately discontinue use of the Services and any IP addresses or servers assigned to Customer in connection with the Services; and Customer will cease pointing the DNS for any Customer controlled domains to addresses within the QTS Government Cloud.

1.10 Services for Government Use Only. Customer acknowledges and agrees that the Services are for Federal, State and local Government use only and that the Services will not
be used for non-government purposes. In the event that Customer uses the Services for any non-government purpose, Carahsoft Service Provider (QTS) shall have the right to immediately terminate the Services without liability therefor.

2. Carahsoft Service Provider (QTS) OBLIGATIONS

2.1. Services. Carahsoft Service Provider (QTS) shall provide the Services set forth on each Work Order beginning on the Start Date.

2.2 Facilities Maintenance. Carahsoft Service Provider (QTS) may from time to time perform 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. Carahsoft Service Provider (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, Carahsoft Service Provider (QTS) shall give Customer notice by e-mail prior to conducting such maintenance, identifying the time and anticipated duration of the Facilities Maintenance.

2.3 Transition Assistance. In the event of a termination of the Agreement by either party, Customer shall have five (5) business days from the date of termination (the “Transition Assistance Period”) in which to transfer Customer data to Customer or another service provider. Carahsoft Service Provider (QTS) shall use reasonable efforts to assist in such transfer during the Transition Assistance Period, at Carahsoft Service Provider’s (QTS) standard time and materials rates then in effect.

3. REMEDIES AND DAMAGES AND LIMIT ON WARRANTIES

3.1 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, NEITHER CARAHSOFT NOR CARAHSOFT SERVICE PROVIDER (QTS) MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PRODUCT CATALOG OR ANY THIRD PARTY SOFTWARE OR SERVICE. CUSTOMER ACKNOWLEDGES THAT CLOUD BASED NETWORKS AND THE INTERNET INVOLVE THE TRANSMISSION AND PROCESSING OF DATA THROUGH VARIOUS INTERCONNECTED NETWORKS THROUGHOUT THE GLOBE, AND ACCEPTS THE PRIVACY AND SECURITY RISKS INHERENT IN SUCH SYSTEMS.

3.2 Remedies. Customer's sole remedy and Carahsoft Service Provider’s (QTS) sole obligations with respect to any failure in the Service, hardware failure, software failure, QTS Government Cloud failure or other error relating to the Service or the responsibilities of Carahsoft Service Provider (QTS) set forth in the Responsibility Matrix shall be for Carahsoft Service Provider (QTS) to use reasonable efforts to promptly correct such error, to the extent reproducible by Carahsoft Service Provider (QTS), and if applicable, to provide the Service Level Credits set forth in Section 4. Service Level Credits and error corrections are subject to Customer diligently working to meet its responsibilities as set forth in the Responsibility Matrix.

4. SERVICE LEVEL GUARANTEES

4.1 Internet Access Guarantee. Carahsoft Service Provider (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 Carahsoft Service Provider (QTS) network.

4.2 Internet Access Remedy. In the event Carahsoft Service Provider (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.

4.3 Cloud Infrastructure Availability Guarantee. Carahsoft Service Provider (QTS) shall make the infrastructure devices configured with high availability available for the Customer 99.999% of the time (“Cloud Infrastructure Availability Guarantee”). Infrastructure includes all hardware and equipment that make up the core IaaS environment. It does not include OS Layer and above and excludes vMotion time.

4.4 Cloud Infrastructure Availability Remedy. In the event that Carahsoft Service Provider (QTS) fails to provide the level of service provided in the Cloud Infrastructure Availability Guarantee, Customer shall receive the applicable Service Level Credit described below. The Cloud Infrastructure Availability Guarantee is measured on a calendar month basis.

4.5 Remedies.

a) If Carahsoft Service Provider (QTS) fails to meet either of the Internet Access Guarantee or the Cloud Infrastructure Availability 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 4.12and 4.4 of this Addendum. Carahsoft Service Provider (QTS) shall apply all of the Customer’s Service Level Credits directly to the Customer’s total monthly recurring charges for the month following such failure. In no event shall the Customer’s total amount of Service Level Credits exceed the Customer’s total monthly recurring charges for the QTS Government Cloud Services for a given month.

b) If Carahsoft Service Provider (QTS) shall fail to meet the Internet Access Guarantee two (2) times in any calendar quarter or shall fail to meet the Cloud Infrastructure Availability Guarantee two (2) times in any calendar quarter, either party shall be entitled to terminate the 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, Carahsoft Service Provider (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 Carahsoft Service Provider (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 Carahsoft Service Provider (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 or any Customer Maintenance, then Carahsoft Service Provider (QTS) shall have no obligation to credit Customer any amount for any such failure.

SCHEDULE A

Responsibility Matrix

3. Carahsoft Rider to QTS’s Master Terms and Conditions

for U.S. Government End Users

1. Scope. This Carahsoft Rider (the “Rider”) is attached and made part of the Master Terms and Conditions agreed to by Carahsoft and Customer to establish the terms and conditions enabling Customer to purchase QTS services through Carahsoft pursuant to a government prime contract ("Government Contract"). The Rider supersedes conflicting terms in the Master Agreement. Capitalized terms used herein and not otherwise defined herein shall have the meaning such terms are given in the Master Agreement.

2. Applicability. To the extent that the terms of the Master Agreement are inconsistent with Federal Law (e.g., the Anti-Deficiency Act (31 U.S.C. § 1341(a)(1)(B)), the Contracts Disputes Act of 1978 (41.U.S.C. § 601-613), the Prompt Payment Act, the Anti-Assignment statutes (31 U.S.C. § 3727 and 41 § U.S.C. 15), 28 U.S.C. § 516 (Conduct of Litigation Reserved to Department of Justice (DOJ), 28 U.S.C. § 1498 (Patent and copyright cases)) and FAR 12.212(a), they shall be deemed deleted and unenforceable.

(a) Contracting Parties. The Licensee is an entity authorized to order under Government contracts as set forth in Government Order 4800.2G ADM, as may be revised from time to time. The Licensee cannot be an individual because any implication of individual licensing triggers the requirements for legal review by Federal Employee unions. Conversely, because of competition rules, Customer must be defined as a single entity even if the Customer is part of a corporate group. The Licensee cannot contract with the group, or in the alternative with a set of contracting parties.

(b) Changes to Work and Delays. Changes in the terms and conditions of this Rider may be made only by written agreement of the parties.

(c) Contract Formation. Subject to FAR Sections 1.601(a) and 43.102, the Licensee’s Order with Customer must be signed by a duly warranted contracting officer, in writing. The same requirement applies to contract modifications affecting the rights of the parties. All terms and conditions intended to bind the Licensee must be included within the contract signed by the Licensee.

(d) Audit. During the term of this Agreement: (a) If Licensee’s security requirements included in the Work Order are met, Carahsoft or its designated agent may audit Licensee’s facilities and records to verify Licensee’s compliance with the Master Agreement. Any such audit will take place only during Licensee’s normal business hours contingent upon prior written notice and adherence to any security measures the Licensee deems appropriate, including any requirements for personnel to be cleared prior to accessing sensitive facilities. Carahsoft on behalf of QTS will give Licensee written notice of any non-compliance, including the number of underreported units of software or Services ("Notice"); or (b) If Licensee’s security requirements are not met and upon Carahsoft or QTSLicensee will run a self-assessment with tools provided by and at the direction of QTS ("Self-Assessment") to verify QTS’ compliance with the Master Agreement.

(e) Consent to Government Law / Consent to Jurisdiction. Subject to the Contracts Disputes Act of 1978 (41. U.S.C §§ 7101-7109) and Federal Tort Claims Act (28 U.S.C. §1346(b)), the validity, interpretation and enforcement of the Master Agreement will be governed by and construed in accordance with the laws of the United States. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal laws or regulations are enacted, to the extent allowed by law, it will not apply to the Master Agreement, and the governing law will remain as if such law or regulation had not been enacted. All clauses in the Master Agreement referencing equitable remedies with respect to the Licensee are deemed not applicable to the Licensee and are therefore deemed to be deleted.

(f) Excusable delays. Carahsoft shall not be liable for default if its nonperformance is caused by an occurrence beyond the reasonable control of QTS and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Carahsoft shall notify Customer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Customer of the cessation of such occurrence. This clause does not displace or modify the limitation on remedies, damages, warranties or Service Level Guarantees set forth in the Master Agreement or Addendum to Master Terms and Conditions for Government Cloud Services.

(g) Assignment. All clauses regarding Assignment are subject to FAR Clause 52.232-23, Assignment of Claims (JAN 1986) and FAR 42.12 Novation and Change-of-Name Agreements, and all clauses governing assignment in the Master Agreement are hereby deemed to be deleted.

(h) Customer Indemnities and Insurance. All Master Agreement clauses referencing insurance requirements of the Licensee and indemnities by the Licensee are hereby deemed to be deleted with respect to Licensee, US government agencies and instrumentalities. For avoidance of doubt, this Section 2(j) does not displace or modify Section 5 of the Master Agreement with respect to Customer’s obligations to QTS.

(i) Contractor Indemnities. All Master Agreement clauses that (1) violate DOJ’s right (28 U.S.C.516) to represent the Licensee in any case and/or (2) require that the Licensee give sole control over the litigation and/or settlement, are hereby deemed to be deleted.

(j) Renewals. All Master Agreement clauses that violate the Anti-Deficiency Act (31 U.S.C. 1341, 41 U.S.C. 11) ban on automatic renewal are hereby deemed to be deleted.

(k) Future Fees or Penalties. All Master Agreement clauses that violate the Anti-Deficiency Act (31 U.S.C. 1341, 41 U.S.C. 11), which prohibits the Licensee from paying any fees or penalties beyond the contract amount, unless specifically authorized by existing statutes, such as the Prompt Payment Act, or Equal Access To Justice Act 31 U.S.C. 3901, 5 U.S.C. 504 are hereby deemed to be deleted.

(l) Taxes. Taxes are subject to FAR 52.212-4(k), which provides that the contract price includes all federal, state, local taxes and duties.

(m) Third Party Terms. Any additional third party terms that the manufacturer (on behalf of the manufacturer’s sub-contractors) desires to pass down to an end user must be embedded into the manufacturer’s commercial supplier agreement as a URL or as an addendum.

(n) Installation and Use of the Software. Installation and use of the software shall be in accordance with the Master Agreement, unless Licensee determines that it requires different terms of use and QTS agrees in writing to such terms in a valid task order placed pursuant to the Government Contract.

(o) Dispute Resolution and Venue. Clauses in the Master Agreement referencing termination, suspension or cancellation the of the Master Agreement are hereby deemed to be deleted, and disputes shall be governed by the following provisions:

Disputes Between QTS and Customer under the Master Agreement:

In the event of any dispute that cannot be amicably resolved within a reasonable period of time, QTS may pursue any right or remedy available at law and/or equity. The law of the state of Delaware shall apply. Pending completion of this contract or final disposition of a dispute pursuant to this Section 2(n), which releases QTS from performance, QTS shall, at all times, proceed diligently with performance under the Master Agreement. This duty to proceed with performance supersedes the following: (i) the right to terminate as set forth in Section 10.3 of the Master Agreement (Regulatory Changes); (ii) the right to suspend under Section 9.4 of the Master Agreement (Suspension of Licenses or Services by Carahsoft Service Provider (QTS)); or (iii) the right to suspend under Section 1.7 of the Addendum to the Master Terms and Conditions for Government Cloud

(p) Limitation of Liability: Subject to the following:

Customer and QTS shall not be liable for any indirect, incidental, special, or consequential damages, or any loss of profits, revenue, data, or data use. Further, neither Customer nor Carahsoft shall be liable for punitive damages except to the extent this limitation is prohibited by applicable law. This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to this Government Contract under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733.

(q) Advertisements and Endorsements. Unless specifically authorized by Licensee in writing, such use of the name or logo of any U.S. Government entity is prohibited.

(r) Public Access to Information. QTS agrees that the Master Agreement contains no confidential or proprietary information and acknowledges the Master Agreement will be available to the public.

(s) Confidentiality. If the Master Agreement includes a confidentiality clause, such clause is hereby amended to state that neither the Master Agreement nor the Federal Supply Schedule price list shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in the Master Agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of the Master Agreement.

IN WITNESS WHEREOF, authorized representatives of Customer and Carahsoft Service Provider (QTS) have read the foregoing Master Terms and Conditions, Addendum to Master Terms and Conditions for Government Cloud Services Public Rider and AUP and agree to be bound thereby as of the Effective Date.