The following terms and conditions of this Service Level Agreement (“SLA”) and Acceptable Use Policy (“AUP”) supplement the Colocation Customer Agreement entered into between Company and Customer and govern (1) the use and availability of CPU Express, Inc. d/b/a Lubbock Colocation (“Company”) and the Colocation Space for a Customer who entered into and executed a Colocation Agreement (each, a “Customer”); and (2) the right, under certain circumstances specific below, or a Customer to receive service credits in respect to the failure of Company and/or the Colocation Space to provide the Products and Services purchased by Customer in accordance with (i) the Terms of Service, (ii) the SLA, or (iii) the AUP, each of which is incorporated by reference in the Colocation Agreement and made part thereof and which is also incorporated herein (collectively the Colocation Agreement and this SLA/AUP make up the entire agreement between the parties). CUSTOMER AGREES TO BE BOUND TO ALL AGREEMENTS IN THIS SLA AND AUP AND CUSTOMER’S USE OF THE COLOCATION SPACE IS SUBJECT TO THE ACCEPTANCE AND COMPLIANCE WITH THIS SLA AND AUP.

COMPANY HEREBY RESERVES THE RIGHT TO SUPPLEMENT, AMEND, ALTER, MODIFY, REPLACE OR SUSPEND, FROM TIME TO TIME IN ITS SOLE DISCRETION, ALL OR ANY PORTION OF THIS SLA and AUP. IT IS THE CUSTOMERS RESPONSIBILITY TO REVIEW COMPANY’S POLICIES ON A FREQUENT BASIS TO ENSURE COMPLIANCE BECAUSE THE SLA and AUP IN PLACE DURING YOUR MOST CURRENT MONTH APPLIES, NOT THE SLA and AUP WHICH WAS IN PLACE WHEN YOU EXECUTED THE COLOCATION AGREEMENT.

By requesting the services of Company and entering into the Colocation Agreement, Customer agrees to the following terms and conditions:

DEFINITIONS:

1. SLA: Company’s standard policy for issuing credits to customers as outlined herein and listed on the website from time to time and subject to all changes, modifications, and replacements as Company may determine necessary.

2. AUP: Company’s standard acceptable usage policy, outlined herein and listed on the website from time to time and subject to all changes, modifications and replacements as Company may determine necessary.

3. Colocation Space: Means: (1) the raised floor space in Building #36 at the Reese Technology Center Campus.

4. Customer Support Line: (806) 798-2600

5. Colocation Agreement: The contractual agreement entered into between Company and Customer giving rise to the rights and obligations of this SLA and AUP.

6. Service Credit: A credit, calculated in accordance with this SLA, issued by Company to Customer in respect of products and services contracted for, but not delivered by Company in accordance with the Colocation Agreement.

The SLA is incorporated into the Colocation Agreement and applicable to all services delivered directly to Customers of Company. The SLA is not applicable to unrelated third parties or third parties lacking privity of contract with Customer. The uptime guarantees and the resulting SLA credits are applied in monthly terms unless specified otherwise. To ensure that Company is providing optimal services to its Customers, Company is required to perform scheduled maintenance, from time to time, on the network, customer portal, and hardware. Any downtime resulting from any such scheduled maintenance does not qualify for SLA credit(s). All SLA guarantees and information listed below are made in good faith and are subject to standard contract remedies. Note: SLA credits for Hourly Services will be calculated and applied based on the same monthly calculation used for the Colocation Agreement Terms of Payment.

SLA Credit Claim: To properly claim an SLA credit due, the Customer must contact Company’s support line (806) 798-2600 within seven (“7”) days of the purported outage. Customer must include service type, IP Address, contact information, and full description of the service interruption including logs, if applicable. The SLA claim will be researched by the Company and any credit issued will be issued to accounting and the monthly billing statement. SLA credits are issued as service credits on future billing cycles. SLA credits shall not be traded with other Company customers. Please allow up to fourteen (“14”) days for the process of SLA claims. Customer acknowledges that the maximum amount of SLA credit that may be used for any particular month cannot exceed the total monthly service fee amount for such month.

SLA Claim Fault: Customers who have been in payment arrears three (“3”) or more times in the previous twelve (“12”) months do not qualify for SLA claims. Any Customer making false or repetitive claims will incur a one-time charge of fifty dollars (“$50”) per incident for such claims. Customers participating in malicious or aggressive internet activities, thereby causing attacks or counter-attacks, do not qualify for SLA claims and shall be deemed in violation of the AUP.

Colocation Services: Company provides one hundred percent (“100%”) uptime on all services to Customers outlined in the respective Customer’s Colocation Agreement. Except for service downtimes resulting from Customer’s fault, and provided Customer follows the proper procedures for service credit claims as set forth in this SLA, for each continuous, uninterrupted thirty (“30”) minute interval of Public Network service downtime that Customer experiences during an applicable month, Company agrees to grant to Customer a SLA credit equal to five percent (“5%”) of the Customer’s monthly service fees for that month. Service downtimes of less than thirty (“30”) continuous, uninterrupted minutes do not qualify for this service credit, and the Customer cannot combine or augment Colocation or other service-related downtimes to satisfy such downtime requirement.

DISCLAIMER: Customer hereby acknowledges that Company’s ability to provide Products and Services and technical support to Customer and to manage any server owned or controlled by or leased to Customer is contingent upon Company’s ability to connect and access the Colocation Space. In the event that Customer substantially impairs Company’s ability to connect the Colocation Space to any server owned or controlled by or leased to Customer, including, but not limited to, through the installation of software, including, but not limited to, firewall software or load balancing software, or through the configuration of such server, then Company shall have no obligation to provide Products and Services or technical support services or any of the services provided for in this SLA for such server and Customer shall not be entitled to any Service Credit under this Agreement with respect to such server. If Customer requests technical support services or management services for a server for which Customer has impaired the ability of Company to connect to the Colocation Space to such server, Company shall provide such technical support services or management services as professional services on a time and material basis and Customer shall be billed at Company’s then-current professional services rate. Company shall not be liable for the failure or delay in performing its obligations hereunder or under the Agreement if such failure or delay is due to external circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Company’s products and services (each, a “Force Majeure Event”). Company agrees to exercise reasonable efforts to mitigate the damage arising from Force Majeure Event; however, under no circumstances will Company or its affiliates be held liable for any cost, expense, liability, claim or damage due to such interruptions. In no event shall Company or its affiliates be liable to Customer or any other person for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, cost of cover, loss of income or cost of replacement services. Customer acknowledges and agrees that the receipt of a Service Credit as provided for in this SLA constitutes Customer’s sole and exclusive remedy, and The Company’s sole and exclusive liability, for any failure of the Colocation Space or failure by Company to provide Customer with the products and services purchased by Customer in accordance with the Agreement which results in an interruption of service. COMPANY RESERVES THE RIGHT TO AMEND, MODIFY OR TERMINATE THIS SLA and AUP FROM TIME TO TIME, AND A CUSTOMER’S USE OF THE COMPANY PRODUCTS AND SERVICES AND THE COLOCATION SPACE AFTER ANY SUCH AMENDMENT, MODIFICATION OR TERMINATION WILL CONSTITUTE THE CUSTOMER’S ACCEPTANCE OF ANY SUCH AMENDMENTS, MODIFICATIONS OR TERMINATION.  SLA and AUP IS POSTED AT WWW.REESEDATACENTER.COM/SLA_AUP.

General Statement: Company is dedicated to the unrestricted free transmission of information via the internet and its many resources. Our goal is to deliver enterprise quality on-demand IT services to all of our Customers while serving as the medium of exchange for transmission of all information. The storage, distribution, and exchange of information (content) are the internet’s single most valuable feature. Company is dedicated to protecting the source and distribution of information and protecting the rights and privileges of those utilizing it. Company does not purport to be the content police; our duty in the process of information dissemination is simply to act as conduit between interested parties. Company follows all local, state and federal laws pursuant to the services delivered over the internet and directly related to the Colocation Agreement. The purpose of this AUP is to inform all Customers of acceptable, anticipated Customer use. This AUP is intended to act as a guideline to service and not to be all encompassing.

Colocation Services: Customers Proper use under the Colocation Agreement is to utilize the network in any way so long as Customer does not violate any local, state, or federal laws or generate harm to the network or interfere with the use of services of other users utilizing the same network. Violation, misuse, or interference of the services shall be considered a violation of the AUP and shall trigger the Methods of Resolution under this AUP as set forth below in Table C.

Customer Content: Company does not actively monitor content for review. Company believes in the free dissemination of information via our services. Dedicated content will only be reviewed upon complaint by verified third parties. Content that does not violate local, state and federal law or the AUP is deemed in compliance and shall remain intact. Legal adult content is allowed. Content deemed in violation will be addressed pursuant to the Methods of Resolution under this AUP as set forth below in Table C.

Per Se Violations: The following list represents per se direct violations of this AUP and will be subject to immediate redress under one or more of the Methods of Resolution as described in this AUP and as set forth below. Note: Company is not required to follow the Methods of Resolution for Hourly Services, and reserves the right to immediately terminate the Colocation Agreement based on violations of this AUP.

1. Copyright and Trademark Infringement: Direct copyright infringement (as defined and noted under Title 17, Section 512 of the United States Code) and trademark infringement are direct violations.

2. Unsolicited Email: The sending or receiving of mass unsolicited email (SPAM) is a direct violation. This includes the direct sending and receiving of such messages, support of such messages via web page, splash page or other related sites, or the advertisement of such services.

3. Email Bombing: The sending, return, bouncing or forwarding of email to specified user(s) in an attempt to interfere with or over flow email services is a direct violation.

4. Proxy Email (SPAM): The use of dedicated services to proxy email unsolicited users is a direct violation. Proxy email is defined as the use of dedicated services to act in concert with other services located inside and outside the network to achieve mass unsolicited email (SPAM) to unrelated third parties.

5. UseNet SPAM: The use of dedicated services to send, receive, forward, or post UseNet unsolicited email or posts is a direct violation.

6. Illegal Use: Any use of dedicated services in a manner which is defined or deemed to be statutorily illegal is a direct violation. This includes, but is not limited to: death threats, terroristic threats, threats of harm to another individual, multi-level marketing schemes, “ponzi schemes,” invasion of privacy, credit card fraud, racketeering, and other common illegal activities.

7. Child Pornography: Company has a zero-tolerance policy on child pornography and related sites. The hosting of child pornography or related sites or contact information is in direct violation of federal law and Company’s AUP.

8. Threats & Harassment: Company’s Colocation Services can be utilized for any type of individual, organizational or business use. This does not include threats to or harassment of individuals, organizations or businesses, unless it falls within the bounds of protected free speech under the First Amendment of the United States Constitution.

9. Fraudulent Activities: Company prohibits utilizing dedicated services or network services for fraudulent activities.

10. Terrorist Websites: Compay prohibits the use of dedicated services for the hosting of terrorist-related web sites. This includes sites advocating human violence and hate crimes based upon religion, ethnicity, or country of origin.

11. Distribution of Malware: Company prohibits the storage, distribution, fabrication, or use of malware, including without limitation, virus software, root kits, password crackers, adware, key stroke capture programs and other programs normally used in malicious activity. Programs used in the normal ordinary course of business are deemed acceptable.

12. Phishing: Company strictly prohibits any activity associated with Phishing or systems designed to collect personal information (name, account numbers, usernames, passwords, etc.) under false pretense. Splash pages, phishing forms, email distribution, proxy email or any relation to phishing activities will result in immediate removal.

Reporting Violation of the Acceptable Use Policy: Company accepts reports of alleged violations of this AUP by contacting the Customer Support Line (806) 798-2600. Reports of alleged violations must be verified and must include the name and contact information of the complaining party, and the IP address or website allegedly in violation, and description of the violation. Unless otherwise required by law, such as the DMCA, Company owes no duty to third parties reporting alleged violations due to lack of privity in contract law. Company will review all verified third party reports and will take appropriate actions as described within Methods of Resolution as set forth in Table C below or within its sole discretion.

The Methods of Resolution below form the framework for resolving all potential violations. Timing for resolution differs according to the degree of the violation, the nature of the violation, involvement of law enforcement, involvement of third party litigation, or other related factors. Overall, Company is dedicated to working with the Customer in resolving all potential violations prior to any service interruptions.

Step 1: First alleged violation of AUP: a notice will be generated and provided the Customer with information regarding the potential violation. This is often a fact-finding email requiring further information or notifying Customer of the potential violation and the required actions to resolve the issue
.
Step 2: Acknowledgement of violation of AUP: a notice is placed in the Customer’s file with information specific to the violation. This ticket will also include any additional facts about the situation and will notify Customer of the action required to resolve the violation.

Step 3: Violation of AUP disregarded, not properly addressed, or continuing violation if a notice has been disregarded, not properly addressed, or resolved by the Customer for a specified period of time: Company will turn Customer’s access to the specified services off. As soon as the violation is addressed, the public access shall be restored and service will continue as normal.

Step 4: Failure to address violation and resolve violation: if Customer fails to address the violation AND fails to resolve the
violation, a suspension of services shall occur. This is a last resort for Company and only results when the Customer completely fails to participate in Company’s resolution process. A permanent suspension of services includes reclamation of all dedicated services and the destruction of Customer’s data.

Disclaimer: Company retains the right, at its sole discretion, to refuse new service to any individual, group, or business. Company also retains the right to discontinue service to Customers with excessive and/or multiple repeated violations.