Please read the following Terms and Conditions carefully.  By checking the "I Accept" button below and submitting this form you agree to accept the Terms and Conditions.

Terremark Enterprise Cloud Terms and Conditions Please read these terms and conditions (the “Agreement”) carefully. This is a legally binding agreement between Terremark North America, Inc. (“Terremark”) and you, including any Terremark approved users within your organization authorized to use your Enterprise Cloud account, (collectively referred to herein as “Customer”). This Agreement becomes effective: (i) as of the date customer checks the “I accept” button and submits the online form (the “Effective Date”). You acknowledge and represent that you have the authority to accept this Agreement on behalf of Customer. 30 DAY TRIAL TERMS – Terremark will make the trial services available to Customer for a maximum 30 day trial period pursuant to the terms set forth below: 1. The terms set forth below in 1(a) – (f), as well as Sections 3 – 6, 11, 13(a), 13(b)(ii), 13(c), 15, 16, and 20 set forth below in Production Terms are applicable to the Trial Period. Immediately upon the expiration of the Trial Period the terms set fort in this Section 1 shall no longer apply. (a) Registration for Terremark’s trial Enterprise Cloud services, which will be for a period of thirty (30) days from the Effective Date (the “Trial Period”), will provide Customer with access to the Infinicenter management application, 5GHz of processing resources, 10GB of memory resources, 100GB of storage, 1 public IP address, a /28 Internal subnet with 11 usable private IPs, a /27 DMZ subnet with 27 usable private IPs, an HA Firewall, an HA Load Balancer, and 1 Software Client-LAN VPN account for server administration (“Trial Services”). (b) Within ten (10) business days after Effective Date of the Agreement, Terremark will validate the intended use of the Trial Services with the Customer and provide access to the Trial Services. Customer may use the Trial Services at no cost during the Trial Period given that Customer complies with this Agreement. After the Trial Period expires, unless Customer converts to The Enterprise Cloud Service, which is defined in the Statement of Work (“SOW”), Customer’s Trial Services will be disabled and all content will be deleted. (c) Technical support services will be offered on a limited basis during the Trial Period. Customer will be permitted access to use the online knowledge base system for self help which is located at. http://support.theenterprisecloud.com. (d) Trial Services should not be utilized for production applications during the Trial Period under any circumstances, and such use will be at Customer’s sole risk until/unless Customer converts to The Enterprise Cloud Service. No Service Level Agreement (“SLA”) shall be in effect during the Trial Period. There can be no exceptions to the Trial Period as Terremark is operating under the strict guidelines of vendor licensing arrangements in order to provide Customer with this free trial. (e) Terremark may, at any time, with or without notice to Customer, change the terms of this Agreement during the Trial Period. The most current version of this Agreement is accessible on Terremark’s website at www.terremark.com. (f) With reference to Microsoft Software Products, Customer hereby agrees to comply with all terms and conditions set forth in the “Customer License – Terms Regarding Use Of Microsoft Software Products” as of the Effective Date with respect to such Microsoft Software Products. Customer shall use the Microsoft Software Products only as authorized by Microsoft, as found at http://www.microsoft.com/serviceproviders/licensing/. In the event Customer elects to convert its Trial Services to The Enterprise Cloud Service at anytime during the Trial Period or within ninety (90) days after the end date of the Trial Period, a complete solution, as well as a new Effective Date, will be detailed in a SOW, which will be executed between Customer and Terremark. The SOW will be an Appendix to this Agreement and all terms and conditions contained herein will be in effect through the term of any SOW. PRODUCTION TERMS 2. Services. Terremark will provide the Services described in the SOW. All equipment necessary to provide the Services is described in the SOW (the “Equipment”). Any change in the scope of Services or additional Services engagements must be agreed upon in writing between Terremark and Customer by means of a new SOW or an Amendment to an existing SOW, and may result in additional fees and scheduling changes. Terremark will maintain the availability of the Services as set forth in the SOW. 3. Third Party Software. As part of Services, Terremark may supply to customer or incorporate an object code version of software owned and/or licensed by a party other than Terremark (“Third Party Software”). Customer will acquire only those rights in the Third Party Software granted by applicable license and accorded by applicable law. 4. Security. Terremark will have the right, in its sole reasonable discretion, to suspend immediately any Services if deemed reasonably necessary by Terremark to prevent any harm to Terremark and its business. Terremark will provide notice an opportunity to cure of practicable depending on the nature of the breach. 5. Customer Materials. Any content, data, services, equipment, customer information, software supplied by Customer, and any trademarks and domain names used by Customer (collectively, the “Customer Materials”) will be the sole responsibility of Customer. Customer has the legal right and authority to use and to authorize Terremark to use all Customer Materials, and such use will not cause a breach of any third party agreement, violate any third party intellectual property right or applicable law or regulation, or unreasonably interfere with other Terremark customers’ use of the Terremark services. Customer’s use of the Services will comply with all applicable laws and regulations as well as the Terremark Acceptable Use Policy (“AUP”) a copy of which can be accessed at http://www.terremark.com/uploadedfiles/aup08.pdf. 6. Compliance. The Parties agree to adhere to all applicable Export Laws and Regulations of the United States and that, absent any required prior authorization from the Office of Export Licensing, U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) or the U.S. Department of State, Directorate of Defense Trade Controls “DTC”), they will not knowingly export or re-export (as defined in Part 772 of the Export Administration Regulations (“EAR”) (15 C.F.R. Parts730-774) and Part 120 of the International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130)) directly or indirectly, through their affiliates, licensees, or subsidiaries, any of the Information (or any product, process, or service resulting directly there from) they receive under this or any ancillary agreements, to any country named in Country Groups D1, E1, or E2 in Supp. 1 Part 740 of the EAR or any other country hereafter restricted by the U. S. Law or governmental order, including destinations subject to sanctions administered by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”). Neither Customer, his employees, or businesses under his control (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to , among others, Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) as amended, and Executive Order 13268 of July 3, 2006 (67 Fed Reg. 44751 (2002)) and Executive Order 13372 of February 16, 2005 (70 Fed Reg 8499 (2005)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals or subject to the limitations or prohibitions under any other OFAC regulation or executive order. The Customer, its employees or businesses under Customer’s direct control are in compliance, in all material respects, with the Uniting and Strengthen America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended. 7. Payments. Customer will pay without deduction or set-off the fees summarized on the SOW for each of the Services purchased by Customer. Invoices are delivered monthly. Terremark bills in advance for Service to be provided during the upcoming month, except for charges that are dependent upon usage of Service, which are billed in arrears. Billing for partial months is prorated based on a calendar month. All invoices are due thirty (30) days after the date of invoice. In the event that Customer does not pay each invoice within thirty (30) days and fails to remedy that late payment within ten (10) days from notice, Terremark may block Customer’s administrative rights to the Services and Equipment utilized to provide the Services until such payment is made. Past due amounts bear interest at the rate of 1.5% per month (or the highest rate allowed by law, whichever is less) beginning from the date first due until paid in full. Customer shall pay any and all applicable federal, state and local sales, use, value added, excise, duty and any other taxes of any nature (except any taxes based on Terremark’s net income) assessed on the Services. 8. Term. The Term of this Agreement will commence upon the Effective Date and continue through the latest date that any SOW is in effect. Upon proper termination of this Agreement, prospective payments under this Agreement shall cease; provided, however, Terremark shall be entitled to immediate payment for periods and partial periods that occur before the effective date of termination and for which Terremark has not yet been paid. 9. Termination. In the event that Customer terminates a SOW prior to the end of the term of a SOW (or in the event that the delivery of the Services is terminated by Terremark as the result of an uncured default by Customer pursuant to Section 9b of this Agreement), Customer shall pay Terremark a termination charge in a lump sum equal to the balance of the then-current monthly fee times the number of months remaining under the SOW. The parties acknowledge that the termination charges set forth in this Section 8 are a genuine estimate of the actual damages that Terremark will suffer and are not a penalty. 10. Default and Effect of Default. (a) Default by Terremark. For the purposes of this Agreement, Terremark shall be deemed in “Default” in the event that: (i) Terremark becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization of liquidation proceeding; (ii) Terremark makes an assignment for the benefit of creditors; (iii) Terremark admits in writing its inability to pay debts when due; or (iv) Terremark fails to observe and perform any material term of this Agreement and such failure continues for a period of thirty (30) days after written notice from Customer; then Customer may (A) terminate this Agreement and any SOW in whole or in part, in which event Customer shall have no further duties or obligations thereunder, and/or (B) pursue any remedies Customer may have under this Agreement, at law or in equity. (b) Default By Customer. For the purposes of this Agreement, Customer shall be deemed in “Default” in the event that: (i) Customer becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization of liquidation proceeding; (ii) Customer makes an assignment for the benefit of creditors; (iii) Customer admits in writing its inability to pay debts when due; (iv) Customer fails to observe and perform any material term of this Agreement (other than payment terms) and such failure continues for a period of thirty (30) days after written notice from Terremark; or (v) Customer fails to make any payment required hereunder when due, and such failure continues for a period of thirty (30) days after written notice from Terremark. In the event of Customer’s Default hereunder, Terremark may (A) suspend performance and/or terminate this Agreement and any SOW in whole or in part, in which event Terremark shall have no further duties or obligations thereunder, and/or (B) pursue any remedies Terremark may have under this Agreement, at law or in equity. 11. Mutual Confidentiality (a) Disclosure and Use Pursuant to the terms of our Mutual Non-Disclosure Agreement (“NDA”), and in the event that a Non-Disclosure Agreement has not been executed between the Parties, both Parties agree that they have a duty to maintain the confidentiality of all matters related to our dealings between Customer and Terremark. In addition, each Party agrees that it will not use in any way, nor disclose to any third party, the other Party's confidential information, and will take reasonable precautions to protect the confidentiality of such information, at least as stringently as it takes to protect its own confidential information, but in no case will the degree of care be less than reasonable care. Nothing herein shall preclude disclosure by a Party to that Party's attorneys, accountants 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. 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. (b) 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 such confidential information is approved for release by written authorization of the Party having the rights in• such confidential information; (d) is developed independently by the receiving Party without use of the disclosing Party's confidential information; or (e) is required to be disclosed by Law, provided that prior to making such required disclosure, the Party who is required to disclose the confidential information shall notify the owner of such confidential information that disclosure is legally required. 12. Ownership. “Terremark Technology” means Terremark’s proprietary technology, including the hardware designs, algorithms, user interface designs, architecture, documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Terremark or licensed to Terremark from a third party) used in the Services and any derivatives, improvements, enhancements or extensions of Terremark Technology conceived, reduced to practice, or developed during the term of this Agreement that are not uniquely applicable to Customer or that have general applicability in the art. Except for the rights expressly granted herein, this Agreement does not transfer from Terremark to Customer any Terremark Technology, and all right, title and interest in and to Terremark Technology will remain solely with Terremark or its licensors. Except for the rights expressly granted herein, this Agreement does not transfer from Customer to Terremark any rights in the Customer Materials, and all right, title and interest in and to Customer Materials will remain solely with Customer. Terremark and Customer each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party. Terremark will own all right, title and interest in the hardware acquired by Terremark on its own behalf to perform Services. 13. Representations and Warranties. (a) Authority. Each of Customer and Terremark warrants to the other that (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, (ii) the performance of its obligations and duties hereunder do not and will not violate any agreement by which it is bound, and (iii) when executed and delivered, this Agreement constitutes the legal, valid and binding agreement as to the subject matter herein between the parties. (b) Warranties. (i) By Terremark. Terremark represents and warrants that it will perform the Services in a good and workmanlike manner and that the Services will comply with quality and performance standards established under this Agreement and the applicable SOW and any SLA. Except to the extent that Customer’s remedies for breach of an SLA are set forth in the SLA, Terremark’s sole obligation, and Customer’s sole remedy, for any breach of the foregoing warranty shall be that Terremark shall, at Terremark’s option and as applicable, (A) use commercially reasonable efforts to re-perform the relevant Services or (B) provide Customer with a service credit for the fees allocable to the time period and portion of the Services affected. (ii) By Customer. Customer represents and warrants that the statements in Section 5 herein are and will continue to be true during the Term of this Agreement. (c) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR A SOW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING ANY OTHER DELIVERABLES OF EITHER PARTY HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN APPLICABLE STATEMENT OF WORK, TERREMARK PROVIDES THE THIRD PARTY SOFTWARE “AS IS” AND THE WARRANTIES, INDEMNITIES, AND REMEDIES SET FORTH HEREIN DO NOT APPLY TO THIRD PARTY SOFTWARE OR ANY BREACH, INFRINGEMENT, OR MISAPPROPRIATION TO THE EXTENT IT IS CAUSED BY SUCH THIRD PARTY SOFTWARE. 14. Indemnification. (a) By Terremark. Terremark agrees, at its expense, to defend or settle any third-party claim of infringement of U.S. patents, copyrights, trademarks or trade names resulting from Customer’s use of the Services during the term of the applicable SOW, provided that Customer: (i) promptly delivers to Terremark any notices or papers served regarding such claim; (ii) provides Terremark sole control over the defense and any negotiation for its settlement or compromise; and (iii) provides such assistance as Terremark reasonably requests. Terremark will have no indemnification obligation to Customer for any infringement due to: (A) an unauthorized modification of the Services; (B) Customer’s failure to promptly install an upgrade, update, or other fix or error correction provided by Terremark if prompt installation of such would have avoided the infringement; or (C) the combination of the Services with any non-Terremark product(s), software, or equipment if the Services would have avoided the infringement but for such combination. This states Customer’s sole and exclusive remedy, and Terremark’s sole and exclusive liability, regarding infringement of any intellectual property rights of a third party. (b) By Customer. Customer agrees, at its expense, to defend or settle (i) any third-party claim of infringement of U.S. patents, copyrights, trademarks or trade names resulting from Terremark’s use of the Customer Materials during the term of the applicable SOW, and (ii) any third party claim against Terremark resulting from Customer’s breach of the AUP, provided that Terremark: (A) promptly delivers to Customer any notices or papers served regarding such claim; (B) provides Customer sole control over the defense and any negotiation for its settlement or compromise; and (C) provides such assistance as Customer reasonably requests. Customer will have no indemnification obligation to Terremark for any infringement due to an unauthorized modification of the Customer Materials. This states Terremark’s sole and exclusive remedy, and Customer’s sole and exclusive liability, regarding infringement of any intellectual property rights of a third party. 15. Liability Limitation. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVING, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BASED ON CLAIMS OF THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. FURTHER, EXCEPT WITH RESPECT TO LIABILITY UNDER SECTIONS 9, 11 AND 14, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID FOR SERVICES THAT GAVE RISE TO SUCH DAMAGES OR LOSSES IN THE 60 DAY PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH DAMAGES OR LOSSES OCCURRED. 16. Assignment. This Agreement shall accrue to the benefit of and be binding upon the Parties hereto and any successor or permitted assignee or transferee. Except as expressly provided, neither Party may, or shall have the power to, assign this Agreement or delegate its obligations hereunder without the prior written consent of the other, except that either Party may assign its rights and obligations under this Agreement without the approval of the other Party: (a) to an entity which acquires all or substantially all of the assets of the assigning Party; (b) to any Affiliate, in which event the assignor shall remain liable as a guarantor of the assignee/Affiliate’s performance of such Party’s obligations hereunder; (c) to a successor in a merger or acquisition; or (d) as collateral to any institutional lender. 17. No Hire Provision. Unless otherwise mutually agreed by Terremark and Customer in writing, Customer agrees not to hire or to solicit the employment of any personnel directly or indirectly associated with the work effort of Terremark under any SOW during the term of such SOW and for a period of one year thereafter. 18. Notices. All notices will be deemed given as of the day received by receipted, nationwide overnight delivery service, or in the U.S. mails, postage prepaid, certified or registered, return receipt requested, to the address and attention of the representatives specified below with copy to each party’s General Counsel. Notices to Customer shall be sent to the address as set forth in a SOW. Terremark notices shall be sent to: Terremark North America, Inc., Attention: Legal Department, One Biscayne Tower, 2 South Biscayne Blvd., Suite 2900, Miami, FL, 33131. 19. Insurance. Each party will keep in full force and effect during the term of this Agreement: (i) comprehensive general liability insurance in an amount not less than $2 million per occurrence for bodily injury and property damage and (ii) workers’ compensation insurance in an amount not less than that required by applicable law. Terremark will keep in full force and effect during the term of this Agreement (A) professional liability and errors and omission liability insurance covering acts, errors, omissions arising out of insured’s negligence in an amount not less than $2 million per occurrence and (B) commercial crime coverage in an amount not less than $1 million per occurrence. Before installation of any Equipment in a Terremark data center, Customer will: (i) deliver to Terremark certificates of insurance showing the minimum levels of insurance set forth above. Customer will bear all risk of loss with respect to all Equipment. 20. Governing Law. This Agreement will be governed by and interpreted in accordance with Florida law, excluding its federal and state courts of Miami-Dade County, Florida, or the courts for the Southern District of Florida, waiving an objection to forum non conveniens. 21. Miscellaneous. Terremark is permitted to include Customer’s name on a public list of existing customers. Customers on the public list may be disclosed as a customer of Terremark in earnings calls, public announcements and public disclosures. While the public list may be included in certain promotional and marketing materials, any other promotional or marketing use of Customer name will take place only with the express written consent of Customer. All other media releases relating to this Agreement or its subject matter, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements, including the obligations of a publicly traded company, beyond the reasonable control of the disclosing Party, shall be coordinated with and shall be subject to written approval by each Party prior to release. Terremark may perform any obligation pursuant to this Agreement using agents and subcontractors. Terremark will be entitled to its reasonable attorneys’ fees in addition to any other damages and amounts awarded to it in any action to collect unpaid fees owed pursuant to this Agreement. No waiver, amendment, or other modification of this Agreement will be effective unless in writing and signed by the party against whom enforcement is sought. If any provision of this Agreement is held unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement. Sections of this Agreement, including those relating to payments, confidentiality, indemnification, and limitation of liability shall survive any expiration or termination of this Agreement. This Agreement and its schedules constitute the complete and entire statement of all terms, conditions, and representations of the agreement between Terremark and Customer with respect to its subject matter and supersede all prior writings or understandings. Terremark North America, Inc. © 2008 Proprietary