This Hardware as a Service Subscription Agreement ("Haas") is by and between phoenixNAP and Client for the Subscription or Subscription to Own of certain computer hardware equipment located, managed, and supported exclusively in a phoenixNAP facility.
The Term of the Haas agreement shall be determined upon execution of a valid Service Order Form ("SOF") and shall be for a length of 12, 24, or 36 months, respectively. At the expiration of the initial Term, the agreement is subject to automatic renewal for an additional Term. Client shall be provided the option to take full and exclusive possession of the hardware or will be provided an option to continue use of the hardware on a monthly basis with no Buyout provision.
Upon execution of the Service Order Form, Client is provided the option to buy the hardware at the expiration of the Term when the Subscription to Own option is specified on the Service Order Form. Client shall elect on the applicable Service Order Form to either purchase the specified hardware at the end of the agreed Term or to continue use on a monthly basis. The Buyout price is one dollar ($1.00) for each specified piece of hardware. Each SOF including subscribed Hardware shall constitute a separate subscription to own agreement and shall be binding, when executed by the Parties hereto, upon the Parties, their successors, legal representatives, and permitted assigns. The terms and conditions contained herein and in such SOF or Order Forms shall govern the subscription to purchase and use of the Hardware.
Client is responsible for paying the monthly fee as specified in the Service Order. If payment is not received within 10 days of the due date, a late fee of 5% of the outstanding balance shall be applied. If payment remains unpaid for 30 days, interest shall accrue at the lesser of 1.5% per month (18% annualized) or the maximum rate permitted by applicable law.
If Client elects a Subscription to Own arrangement, there is no applicable prepayment penalty. Client may purchase the applicable Hardware prior to the expiration of the term provided on the HOF at any time prior to expiration of the agreed Subscription to Own Term by paying all monthly subscription amounts in advance. Upon receipt of all funds owed, phoenixNAP shall deliver all right, title, and interest in the applicable Hardware subject to sale.
As selected by Client, phoenixNAP will provide adequate facilities and electricity in one of its managed facilities. Client will maintain possession of equipment in a licensed space which may be removed from a phoenixNAP facility only upon Buyout. All alterations, upgrades, and modifications to Equipment shall be performed by phoenixNAP.
The monthly service payment includes all costs for hardware, software, operating systems, and all labor needed to maintain all hardware, software, operating systems on the Equipment Schedule(s) located in the Service Order Form. PhoenixNAP shall provide Best Effort Support. Client is responsible for the following:
The following phoenixNAP Service Level Agreement ("SLA") is a policy governing the use of the PNAP Hardware as a Service (“HaaS”) under the terms of the Master Service Agreement (the "MSA") between PNAP, LLC., and Clients of PNAP. Unless otherwise provided herein, this SLA is subject to the terms of the MSA and capitalized terms will have the meaning specified in the Agreement. We reserve the right to change the terms of this SLA in accordance with the MSA.
4 Hour Hardware Replacement Guarantee. If hardware belonging to us and located within PNAP’s datacenter fails PNAP will replace it within 4 hours of determination and Client notification of failure. To report a failure, send an email to [email protected].
If PNAP doesn’t replace the hardware within 4 hours, PNAP will credit Client for one day of Client’s monthly recurring hosting charges. We'll give Client that same 1 day credit for every four hour block of time beyond the initial 4 hour guarantee until the replacement is complete, up to a total of 100% of Client’s monthly recurring payment if necessary. Client must send us an official request for the credit within 7 days of the hardware replacement. Send an email to [email protected] to claim the credit.
The 4 hour hardware replacement guarantee only applies to the replacement of the failed hardware. It takes some time, though, to re-load the operating system and applications and apply any applicable data restorations and backups if necessary, and the time to do that does not count toward the hardware outage. Once the hardware is installed, the hardware failure incident timer is stopped.
If Client experiences a problem with the operations of the computer hardware, Client shall open a ticket with phoenixNAP Support at [email protected]. The ticket shall provide details of the problem, and any necessary information required by support to correct the problem.
Client is responsible for carrying out routine backups for their content to a remote location. PhoenixNAP is not responsible and waives all liability for lost data due to system or hardware failure.
PhoenixNAP guarantees that any request for service will be acknowledged within four hours.
The computer hardware shall at all times remain in the possession of Client, subject to Buyout. It is the intention and understanding of both phoenixNAP and Client that the Equipment shall be and at all times remain separately identifiable personal property.
Client shall be in default if:
If the Client is in default of this agreement, phoenixNAP may take a variety of actions, including but not limited to terminating the agreement, and recovering the equipment.
Upon execution of the Service Order Form, Client may elect the Subscription to Own option, which grants the Client the right, but not the obligation, to purchase the specified hardware at the expiration of the agreed Term. The Subscription to Own option is not a financing arrangement and shall not be construed as a security interest or lease-purchase agreement. The Buyout price is one dollar ($1.00) per specified piece of hardware, provided that all subscription payments have been made in full. Client must notify Provider at least 15 days prior to termination if they intend to exercise the Buyout option. Upon Buyout, Client shall own all right, title and interest in the purchased hardware. PhoenixNAP shall expeditiously provide all documentation for conveyance of hardware to Client, and deliver hardware to Client at a place of Client's choosing within the continental United States.
At the termination of the Subscription term of this agreement, Client shall, at its expense, return the Hardware to phoenixNAP (at the location designated by phoenixNAP within the continental United States) in the same operating order, repair, condition and appearance as on the Installation Date, reasonable wear and tear only excepted with all engineering changes prescribed by the manufacturer prior thereto incorporated therein, and Client shall arrange and pay for such repairs (if any) as are necessary for the manufacturer to accept the Hardware under contract maintenance at its then standard rates.
Client shall comply with all governmental laws, regulations and requirements, and all insurance requirements, if any, with respect to the use, maintenance and operation of the Hardware.
Except as otherwise specifically provided in this Agreement, it is understood and agreed that this is a closed end subscription agreement, and that, as between Client and phoenixNAP, phoenixNAP shall be responsible for all costs and expenses of every nature whatsoever arising out of or in connection with or related to this Agreement or the Hardware.
Client is responsible for carrying out routine backups for their content to a remote location. PhoenixNAP shall ensure that, upon repossession or return of hardware, all stored data is securely erased in compliance with industry standards. Client waives all liability for lost data due to system or hardware failure.
This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to conflicts of law principles. Any disputes arising under this Agreement shall be resolved through binding arbitration in Phoenix, Arizona, in accordance with the rules of the American Arbitration Association (AAA).
Except as otherwise specifically provided in this Agreement, this is a closed-end subscription agreement, and PhoenixNAP shall retain ownership of all equipment unless a Buyout is completed. PhoenixNAP shall not be liable for any indirect, incidental, or consequential damages arising from the use or failure of the hardware, including but not limited to lost profits, loss of business, or data loss.
DEFINITIONSV.4, 03032025