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Exhibit 10.8
This Master Services Agreement (this "Agreement") is entered into as the 16th
day of June, 1999 ("Effective Date") by and between the entity indicated on the
Services Order Form attached hereto, with an office at the address listed on the
Services Order Form, ("Client"), and Frontier GlobalCenter, Inc., a corporation
with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Frontier
GlobalCenter"), and describes the terms and conditions pursuant to which
Frontier GlobalCenter shall license to Client certain Software and provide
certain Services (as defined below). In consideration of the mutual promises and
upon the terms and conditions set forth below, the parties agree as follows:
1. NATURE OF AGREEMENT
This is an Agreement for the provision by Frontier GlobalCenter of Internet
connectivity services (the "Bandwidth"), the lease of equipment to provide such
services (the "Hardware"), the availability of space to store and operate such
Hardware ("Space") and the licensing of software to provide such Services (the
"Software"), together comprising an Internet connectivity and collocation
package to be provided by Frontier GlobalCenter under this Agreement (together,
the "Services").
2. SERVICE ORDERS
2.1. ORDERS. Client may issue one or more service orders describing the
Bandwidth, Space, Hardware, and Software that Client desires ("Service Order").
Each Service Order will set forth the prices, initial term of Services and other
information in the form set forth in the Service Order Form. No Service Order
shall be effective until accepted by Frontier GlobalCenter. All Service Orders
will be subject to the terms and conditions of this Agreement, and the terms of
this Agreement shall supersede any terms and conditions which may appear on
Client's order form, or purchase order.
2.2. CANCELLATION. In the event that Client cancels or terminates a Service
Order at any time for any reason whatsoever other than expiration of a Service
Order or a Service Interruption (as defined below), Client agrees to pay
Frontier GlobalCenter as a cancellation fee all Monthly Recurring Charges
specified in the Service Order for the balance of the term therefor, which shall
become due and owing as of the effective date of cancellation or termination.
2.3. IP ADDRESSES. Frontier GlobalCenter may assign on a temporary basis a
reasonable number of Internet Protocol Addresses ("IP Addresses") from the
address space assigned to the Frontier GlobalCenter by InterNIC. Client
acknowledges that the IP Addresses are the sole property of Frontier
GlobalCenter, are assigned to Client as part of the Service, and are not
"portable," as such term is used by InterNIC. Frontier GlobalCenter reserves the
right to change the IP Address assignments at any time; however, Frontier
GlobalCenter shall use reasonable efforts to avoid any disruption to Client
resulting from such renumbering requirement. Frontier GlobalCenter will give
Client reasonable notice of any such renumbering. Client agrees that it will
have no right to IP Addresses upon termination of this Agreement, and that any
renumbering required of Client after termination shall be the sole
responsibility of Client.
3. SOFTWARE LICENSE AND RIGHTS
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3.1. LICENSE. During the term of the applicable Service Order, Frontier
GlobalCenter grants Client a non-transferable, nonexclusive license to use the
Software in object code form only, solely on the Hardware in conjunction with
the Services.
3.2. PROPRIETARY RIGHTS. This Agreement transfers to Client neither title nor
any proprietary or intellectual property rights to the Software, Hardware,
documentation, or any copyrights, patents, or trademarks, embodied or used in
connection therewith, except for the rights expressly granted herein.
3.3. LICENSE RESTRICTIONS. Client agrees that it will not itself, or through
any parent, subsidiary, affiliate, agent or other third party:
3.4.1. copy the Software except as expressly allowed under this Agreement. In
the event Client makes any copies of the Software, Client shall reproduce all
proprietary notices of Frontier GlobalCenter on any such copies;
3.4.2. reverse engineer, decompile, disassemble, or otherwise attempt to derive
source code from the Software;
3.4.3. sell, lease, license or sublicense the Software or the documentation;
3.4.4. write or develop any derivative software or any other software program
based upon the Software or any Confidential Information (as defined below); or
3.4.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a 'service bureau' basis.
4. HARDWARE TERMS AND CONDITIONS
4.1. INSTALLATION. Frontier GlobalCenter will use commercially reasonable
efforts to install the Hardware as the Hardware is shipped to Frontier
GlobalCenter. At Client's request, Frontier GlobalCenter will work with the
Client on an installation plan to define installation time frame and
requirements.
4.2. PURCHASE AND TITLE OF HARDWARE. If so indicated on the Service Order,
Client shall purchase the Hardware and deliver, at Client's expense, the
Hardware to the Space. Client agrees that the Hardware shall reside at the Space
during the term of this Agreement.
4.3. LEASE OF HARDWARE. If so indicated on the Service Order, Client shall
lease the Hardware, and Frontier GlobalCenter shall obtain and deliver to the
Space the Hardware. In the event Client leases the Hardware, the following terms
and conditions shall apply: The Hardware is and shall remain the property of
Frontier GlobalCenter. Client shall not have taken, or attempt to take, any
right, title or interest therein or permit any third party to take any interest
therein. Client will not transfer, sell, assign, sublicense, pledge, or
otherwise dispose of, encumber or suffer a lien or encumbrance upon or against
the Hardware or any interest in the Hardware. Client will use the Hardware only
at the Space. Client will not move the Hardware from that facility without
Frontier GlobalCenter's prior written permission. Client shall be responsible
for any damage to the Hardware. Client will use the Hardware only for the
purpose of exercising its rights under this Agreement.
4.4. RENT TO OWN. If so indicated on the Service Order, Client shall lease
the Hardware on a "rent to own" plan. In such event, all of the terms and
conditions in Section 4.3 shall apply, and the following terms and conditions
shall also apply. At the end of the term of the Service Order, providing Client
is not in breach of this Agreement, Client shall have the option to purchase the
Hardware. The purchase price shall be as indicated on the Service Order. Upon
payment by Client of the purchase price, title in the
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Hardware shall pass to Client at the Space. Unless the Service Order is extended
by mutual agreement, Client shall immediately delete, or shall allow Frontier
GlobalCenter to delete, all copies of the Software, associated documentation, or
any other materials of Frontier GlobalCenter resident on the Hardware.
5. SPACE
5.1. LICENSE TO OCCUPY. Frontier GlobalCenter grants to Client a
non-exclusive license to occupy the Space. Client acknowledges that it has been
granted only a license to occupy the Space and that it has not been granted any
real property interests in the Space. In the event, however, that this
arrangement shall be construed by the owner of the building in which the Space
is situated to be such a grant and if the landlord of the building asserts such
a grant to be a violation of the lease under which Frontier GlobalCenter
occupies its premises, Frontier GlobalCenter agrees to cooperate with Client in
obtaining the approvals Client may need to obtain from the landlord.
5.2. MATERIAL AND CHANGES. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space,
including any cabling or power supplies for the Hardware, without obtaining
Frontier GlobalCenter's prior written approval for Client to have the work
performed. Alternatively, Client may request Frontier GlobalCenter to perform
the work. Frontier GlobalCenter reserves the right to perform and manage any
construction or alterations within the Space areas at rates to be negotiated
between the Parties hereto. Client agrees not to erect any signs or devices to
the exterior portion of the Space without submitting the request to Frontier
GlobalCenter and obtaining Frontier GlobalCenter's advance written approval.
5.3. DAMAGE. Client agrees to reimburse Frontier GlobalCenter for all
reasonable repair or restoration costs associated with damage or destruction
caused by Client's personnel, Client's agents, Client's suppliers/contractors,
or Client's visitors during the term or as a consequence of Client's removal of
the Hardware or property installed in the Space.
5.4. INSURANCE. Unless otherwise agreed, Client agrees to maintain, at
Client's expense, (i) Comprehensive General Liability Insurance in an amount not
less than One Million Dollars ($1,000,000) per occurrence for bodily injury or
property damage, (ii) Employer's Liability in an amount not less than Five
Hundred Thousand Dollars ($500,000) per occurrence, and (iii) Worker's
Compensation in an amount not less than that prescribed by statutory limits.
Prior to taking occupancy of the Collocation Space, Client shall furnish
Frontier GlobalCenter with certificates of insurance which evidence the minimum
levels of insurance set forth herein. Client shall also maintain insurance
covering Hardware or property owned or leased by Client against loss or physical
damage.
5.5. REGULATIONS. Client shall comply with and not violate all of Frontier
GlobalCenter's safety, health and operational rules and regulations, which may
be amended by Frontier GlobalCenter from time to time. Client's failure to
comply with Frontier GlobalCenter's rules and regulations shall constitute a
material default under this Agreement. Frontier GlobalCenter may, in its sole
discretion, limit Client's access to a reasonable number of authorized Client
employees or designees. Client shall not interfere with any other clients of
Frontier GlobalCenter, or such other clients' use of the Space.
5.6. DISCLAIMER. Frontier GlobalCenter does not make any representation or
warranty whatsoever as to the fitness of the Space for Client's use. Client
hereby assumes any and all risks associated with Client, its agents or
employees' use of the Space and shall indemnify, defend and hold harmless
Frontier GlobalCenter from any and all claims, liabilities, judgments, causes of
action, damages, costs, and expenses (including reasonable attorneys' and
experts' fees), caused by or arising in connection with such use.
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6. SERVICE INTERRUPTIONS
6.1. 99% UPTIME GUARANTEE. In the event of Downtime (as defined below), the
monthly fee payable for the Services shall be reduced as follows:
6.1.1. if the total Downtime in the calendar month is more than seven
and two-tenths (7.2) hours, but does not exceed fourteen and four-tenths
(14.4) hours, the monthly fee for that month shall be reduced by
one-third (33.3%);
6.1.2. if the total Downtime in the calendar month is more than
fourteen and four-tenths (14.4) hours, but does not exceed twenty-one
and six tenths (21.6) hours, the monthly fee for that month shall be
reduced by two-thirds (66.6%); and
6.1.3. If the total Downtime in the calendar month is more than
twenty-one and six-tenths (21.6) hours, the monthly fee for that month
shall be waived.
For the purposes of this Section, Downtime shall mean any interruption of one
(1) minute or more in the availability to users of any Web site residing on the
Hardware and made available through the Services, only if such interruption is
due to either (i) failure by Frontier GlobalCenter to manage a server anomaly so
as to avoid interruption in Web availability, or (ii) a disruption in the
connection between any such server and the Internet. For purposes of this
Section, the Internet is deemed to consist of services that commence where
Frontier GlobalCenter transmits a Client's content to Frontier GlobalCenter's
carrier(s) at the Frontier GlobalCenter border router port(s). Such carriers
provide Frontier GlobalCenter with private and dedicated bandwidth. Frontier
GlobalCenter undertakes no obligation for the circuit or link between Frontier
GlobalCenter's facilities and such carrier's services. If router packet loss is
excess of seventy percent (70%) and is sustained for sixty (60) seconds or more,
Frontier GlobalCenter will classify this an "outage." If an "outage" continues
for a time period of more than two (2) minutes, then such outage will be deemed
Downtime.
6.2. INVESTIGATION OF SERVICE INTERRUPTIONS. At Client's request, Frontier
GlobalCenter will investigate any report of Downtime, and attempt to remedy any
Downtime expeditiously. Frontier GlobalCenter reasonably determines that all
facilities, systems and equipment furnished by Frontier GlobalCenter are
functioning properly, and that Downtime arose from some other cause, Frontier
GlobalCenter reserves the right to recover labor and materials cost for services
actually performed at the usual and customary rates for similar services
provided by Frontier GlobalCenter to clients in the same locality.
6.3. TERMINATION. Client may terminate a Service Order in the event of
Downtime of either twenty-four (24) hours of cumulative time during any
continuous twelve (12) month period, or any continuous Downtime of eight (8)
hours or more.
6.4. SOLE REMEDY. The terms and conditions of this Section 6 shall Client's
sole remedy and Frontier GlobalCenter's sole obligation for any Downtime.
7. USER CONTENT. Client is solely responsible for the content of any
postings, data, or transmissions using the Services ("Content"), or any other
use of the Services by Client or by any person or entity Client permits to
access the Services (a "User"). Client represents and warrants that it and any
User will not use the services for unlawful purposes (including without
limitation infringement of copyright or trademark, misappropriation of trade
secrets, wire fraud, invasion of privacy, pornography, obscenity and
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libel), or to interfere with or disrupt other network users, network services or
network equipment. Disruptions include without limitation distribution of
unsolicited advertising or chain letters, repeated harassment of other network
users, wrongly impersonating another such user, falsifying one's network
identity for improper or illegal purposes, sending unsolicited mass e-mailings,
propagation of computer worms and viruses, and using the network to make
unauthorized entry to any other machine accessible via the network. If Frontier
GlobalCenter has reasonable grounds to believe that Client or a User is
utilizing the Services for any such illegal or disruptive purpose, Frontier
GlobalCenter may suspend or terminate Services immediately upon notice to
Client. Client shall defend, indemnify, hold harmless Frontier GlobalCenter from
and against all liabilities and costs (including reasonable attorney's fees)
arising from any and all claims by any person arising out of Client's use of the
Services, including without limitation any content.
8. PRICING AND PAYMENT TERMS
8.1. PAYMENT TERMS. Client shall pay the fees set forth in the Services
Order Form according to the terms set forth therein. Client agrees to pay a late
charge of two percent (2%) above the prime rate as reported by the Wall Street
Journal at the time of assessment or the maximum lawful rate, whichever is less,
for all undisputed amounts not paid within thirty (30) days of receipt of
invoice.
8.2. LATE PAYMENTS. In the event of non-payment by Client of sums over-due
hereunder for more than sixty (60) days, Frontier GlobalCenter may upon written
notice to Client either retain any equipment or other assets of Client then in
Frontier GlobalCenter's possession and sell them in partial satisfaction of such
unpaid sums, or request Client to remove equipment from Frontier GlobalCenter's
premises within ten (10) days. If Client fails to so remove, Frontier
GlobalCenter may deliver the equipment to Client at the latter's address for
notices at Client's expense for shipment and insurance, and Client shall be
obligated to accept such delivery.
8.3. PRICE INCREASES. Frontier GlobalCenter shall not increase the prices for
services during the initial term of any Service Order, but may thereafter change
prices upon sixty (60) days written notice.
9. MAINTENANCE AND SUPPORT. Frontier GlobalCenter shall provide Client
with maintenance and support of the Software and Hardware, if any ("Maintenance
and Support") as specified in the Service Specification.
9.1 EXCLUSIONS. Maintenance and Support shall not include services for
problems arising out of (a) modification, alteration or addition or attempted
modification, alteration or addition of the Hardware or Software undertaken by
persons other than Frontier GlobalCenter or Frontier GlobalCenter's authorized
representatives; or (b) programs or hardware supplied by Client.
9.2. CLIENT DUTIES. Client shall document and promptly report all errors or
malfunctions of the Hardware or Software to Frontier GlobalCenter. Client shall
take all steps necessary to carry out procedures for the rectification of errors
or malfunctions within a reasonable time after such procedures have been
received from Frontier GlobalCenter. Client shall maintain a current backup copy
of all programs and data. Client shall properly train its personnel in the use
and application of the Hardware and Software.
10. TERM AND TERMINATION
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10.1. TERM. The term of this Agreement shall commence on the Effective Date
and continue indefinitely until terminated in accordance with this Section 10.
The term of each Service Order shall be as indicated therein. The term of any
Service Order may be extended upon mutual agreement.
10.2. TERMINATION UPON DEFAULT. Either party may terminate this Agreement in
the event that the other party materially defaults in performing any obligation
under this Agreement and such default continues unremedied for a period of
thirty (30) days following written notice of default. In the event this
Agreement is terminated due to Frontier GlobalCenter's breach, Frontier
GlobalCenter shall refund to Client any Services fees on a straight line
prorated basis.
10.3. TERMINATION UPON INSOLVENCY. This Agreement shall terminate, effective
upon delivery of written notice by a party, (i) upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of debts of the other party; (ii) upon the making of an
assignment for the benefit of creditors by the other party; or (iii) upon the
dissolution of the other party.
10.4. EFFECT OF TERMINATION. The provisions of Sections 1, 2.3, 3.2, 3.3, 7,
10.4, 11, 12, 13 and 14 shall survive termination of this Agreement. All other
rights and obligations of the parties shall cease upon termination of this
Agreement. The term of any license granted hereunder shall expire upon
expiration or termination of this Agreement
11. CONFIDENTIAL INFORMATION. All information identified disclosed by
either party ("Disclosing Party") to the other party ("Receiving Party"), if
disclosed in writing, labeled as proprietary or confidential, or if disclosed
orally, reduced to writing within thirty (30) days and labeled as proprietary or
confidential ("Confidential Information") shall remain the sole property of
Disclosing Party. Except for the specific rights granted by this Agreement,
Receiving Party shall not use any Confidential Information of Disclosing Party
for its own account. Receiving Party shall use the highest commercially
reasonable degree of care to protect Disclosing Party's Confidential
Information. Receiving Party shall not disclose Confidential Information to any
third party without the express written consent of Disclosing Party (except
solely for Receiving Party's internal business needs, to employees or
consultants who are bound by a written agreement with Receiving Party to
maintain the confidentiality of such Confidential Information in a manner
consistent with this Agreement). Confidential Information shall exclude
information (i) available to the public other than by a breach of this
Agreement; (ii) rightfully received from a third party not in breach of an
obligation of confidentiality; (iii) independently developed by Receiving Party
without access to Confidential Information; (iv) known to Receiving Party at the
time of disclosure; or (v) produced in compliance with applicable law or a court
order, provided Disclosing Party is given reasonable notice of such law or order
and an opportunity to attempt to preclude or limit such production. Subject to
the above, Receiving Party agrees to cease using any and all materials embodying
Confidential Information, and to promptly return such materials to Disclosing
Party upon request.
12. LIMITATION OF LIABILITY. FRONTIER GLOBALCENTER'S LIABILITY FOR ALL
CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID
BY CLIENT TO FRONTIER GLOBALCENTER UNDER THIS AGREEMENT. IN NO EVENT SHALL
FRONTIER GLOBALCENTER BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF
COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING
FROM OR IN RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES, HOWEVER CAUSED
AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF
FRONTIER GLOBALCENTER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH
DAMAGES.
13. DISCLAIMER OF WARRANTIES. FRONTIER GLOBALCENTER SPECIFICALLY
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DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY FRONTIER GLOBALCENTER
HEREUNDER.
14. MISCELLANEOUS
14.1. INDEPENDENT CONTRACTOR. The relationship of Frontier GlobalCenter and
Client established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed to (i) give either party
the power to direct and control the day-to-day activities of the other; (ii)
constitute the parties as partners, joint ventures, co-owners or otherwise as
participants in a joint undertaking; or (iii) allow either party to create or
assume any obligation on behalf of the other party for any purpose whatsoever.
14.2. NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be given by registered or certified mail addressed to the addresses
first written above. Such notice shall be deemed to be given upon the earlier of
actual receipt or three (3) days after it has been sent, properly addressed and
with postage prepaid. Either party may change its address for notice by means of
notice to the other party given in accordance with this Section.
14.3. ASSIGNMENT. Client may not assign this Agreement, in whole or in part,
either voluntarily or by operation of law, and any attempt to do so shall be a
material default of this Agreement and shall be void.
14.4. GOVERNING LAW. This Agreement shall be interpreted according to the
laws of the State of California without regard to or application of
choice-of-law rules or principles. The parties hereby agree to the exclusive
jurisdiction of the state and federal courts located in Santa ▇▇▇▇▇ County,
California.
14.5. ENTIRE AGREEMENT AND WAIVER. This Agreement shall constitute the entire
agreement between Frontier GlobalCenter and Client with respect to the subject
matter hereof and all prior agreements, representations, and statement with
respect to such subject matter are superseded hereby, including without
limitation any non-disclosure agreement previously executed between the parties.
This Agreement may be changed only by written agreement signed by both Frontier
GlobalCenter and Client. No failure of either party to exercise or enforce any
of its rights under this Agreement shall act as a waiver of subsequent breaches;
and the waiver of any breach shall not act as a waiver of subsequent breaches.
14.6. SEVERABILITY. In the event any provision of this Agreement is held by a
court of other tribunal of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible under applicable
law, and the other provisions of this Agreement will remain in full force and
effect.
14.7. NON-SOLICITATION. During the term of this agreement and for a period of
one (1) year thereafter, Client shall not solicit, nor attempt to solicit the
services, of any employee or subcontractor of Frontier GlobalCenter without the
prior written consent of Frontier GlobalCenter.
14.8. SUBSTITUTION. Frontier GlobalCenter may substitute, change or modify
the Software or Hardware at any time, but shall not thereby alter the technical
parameters of the Services.
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FRONTIER GLOBALCENTER CLIENT
BY: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BY: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: VP SALES TITLE: PRESIDENT
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SERVICE SPECIFICATION
Frontier GlobalCenter will provide a level of service that includes the
following features and options:
GENERAL FEATURES:
MAINTENANCE OF THE SPACE (INCLUDING JANITORIAL SERVICES):
In connection with the Space made available hereunder, Frontier GlobalCenter or
its landlord shall perform services that support the overall operation of each
Space at no additional charge to Client. Those services include the following:
- Janitorial Services
- 24 x 7 Access to the Space
- Authorized Security System Access to Raised Floor Collocation Space
- Primary A/C 110 volt Power to the Space
- Backup Power- UPS Systems & Battery Plant (30 - 60 minute survivability
objective)
- Generator Back-up (Sustained backup power)
- HVAC Systems for facility air conditioning
- Fire Control Systems
- Network Monitoring Systems
- Redundant Network Connectivity and Hardware
- 19" Rack Spaces for installation of Hardware
- 10-base-T or 100-base-T switched port with direct high speed Internet
backbone connection.
24X7 NOC SUPPORT: Will provide proactive site monitoring with ExpressLane(TM)
statistics on Client information base; including bandwidth usage, statistics and
network availability reporting, host monitoring and management interface, access
to Frontier GlobalCenter incident tracking system to expedite fault resolution
and remote server reboot.
24X7 CONSOLE ACCESS: Frontier GlobalCenter facilities in Sunnyvale and ▇▇▇▇▇▇▇
will provide systems that allow Clients access to a terminal with a connection
to servers inside the Data Centers.
FRONTIER GLOBALCENTER ESCALATION PLAN AND PROCEDURES: To be provided in the
Frontier GlobalCenter Customer Information Packet 5-10 days after contract
signing.
RIGHT-OF-WAY AND ACCESS:
Frontier GlobalCenter will allow 24 x 7 access and right-of-way to Client
Hardware located in Frontier GlobalCenter facility at no charge. Clients will be
escorted at all times while in the facility. Access to the facilities will not
be unreasonably be withheld by Frontier GlobalCenter to Clients for performing
appropriate procedures and maintenance of Hardware, facilities, and systems.
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