DATAHOST MASTER SERVICES AGREEMENT TERMS
Terms based on industry-standard managed hosting contract terms.
This DataHost Master Services Agreement (the "Master Services Agreement") accompanied by the DataHost Estimate and/or DataHost Invoice (the “Estimate and/or DataHost Invoice”), collectively called the DataHost Agreement, between Ideawire, Inc. ("Ideawire") and the Ideawire DataHost Client which is a signatory hereto ("Client") is made effective as of the date of the contract the Client signature on the Contract submitted by the Client and accepted by Ideawire. Note: hosting services can mean any one, or combination of the following: website hosting, email services and SPAM/Virus firewall services. Support for services are provided at a "server-function and monitoring" level, and do not include client-requested and/or client account specific support. Such client support (called Supplemental Services) can only be provided through a separate FlexSupport contract, and follows those specific terms and conditions.
This DataHost Agreement states the terms and conditions by which Ideawire will deliver and the Client will receive hosting services provided by Ideawire. This DataHost Agreement is intended to cover the services defined, and does not include services addressing the support specific to the Client website functions, development and/or the support of those functions and developments specific to the Client web environment.
2. Delivery of Services; Terms; Fees.
2.1 Delivery of Services.
By signing the Contract and/or accepting the services as of July 1, 2006, the Client agrees to take and pay for (i) the Datahost Service(s) during the Contract Term/Renewal Term, and (ii) certain limited services needed by the Client on a "one-off" or emergency basis ("Supplemental Services") where such services are not included within the scope of the Services as described in the DataHost Agreement. The Client agrees to pay Ideawire the fees charged by Ideawire for Supplemental Services, and hereby authorizes Ideawire to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with Ideawire's current policies and prices.
(a) Term Commencement. The term for each Service will commence on the Service Commencement Date.
(b) Renewal Term(s). Upon expiration of the Initial Term, the term shall be extended automatically for a period of three (3) months ("Renewal Term"), unless and until either party gives the other no less than three (3) months' written notice of a termination. The termination of any Service will not affect the Client’s obligations to pay for other Service.
3. Fees and Payment Terms.
3.1 Fees and Expenses. The Client will pay all fees due according to the prices and terms listed in contract/invoices submitted all other fees incurred by the Client related to Supplemental Services, Development Services, reinstatement of service fees and fees for switching, migrating to, and/or upgrading servers, all in accordance with current Ideawire prices and policies.
3.2 Payment Terms. Payment terms and costs are outlined in the Estimate and/or DataHost Invoice.
3.3 Late payments. Any payment not received within fourteen (14) days of the invoice date of a Recurring Bill (respectively, a "Payment Default") will accrue interest at a rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law. The Client also shall pay to Ideawire all expenses incurred by Ideawire in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by the Client, including, but not limited to, reasonable attorneys' fees and the fees of any collection agency retained by Ideawire.
3.4 Taxes. The Client will be responsible for and will pay in full, except for taxes on Ideawire net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
4.1 Warranty. DUE TO THE NATURE OF TECHNOLOGY, IDEAWIRE DOES NOT GUARANTEE THE FUNCTION OR SECURITY OF THE SERVER OR ITS SOFTWARE. IDEAWIRE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES. IDEAWIRE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
4.2 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. IDEAWIRE DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM THIRD PARTY NETWORKS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT BABY BOOT CAMP’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). IDEAWIRE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY IDEAWIRE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5. Limitations of Liability.
5.1 Delays and Interruptions. IDEAWIRE SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR SECURITY BREACHES. EXCEPT TO THE EXTENT OF IDEAWIRE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN VIEWING HOSTING PROVIDER SERVICES, IDEAWIRE WILL NOT BE LIABLE FOR FAILURES ORIGINATING FROM HOSTING PROVIDES OR ITS PARTNERS. IDEAWIRE WILL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO IDEAWIRE'S OR BABY BOOT CAMP’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF BABY BOOT CAMP’S DATA FILES, WEB FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF IDEAWIRE'S NEGLIGENCE.
5.2 Consequential Damages. EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS IN SECTION 6, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, 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 ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
5.3 Notwithstanding anything else to the contrary contained in the DataHost Agreement, Ideawire's maximum aggregate liability to the Client for any claim related to, or in connection with, the DataHost Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of hosting fees actually paid by the Client to Ideawire for up to the prior three (3) months.
5.4 Ideawire may provide the Client access to other third party software and/or services ("Third Party Products") through reseller relationships Ideawire has established with certain commercial vendors, including without limitation, Microsoft ("Third Party Vendors"). Unless otherwise notified, the Client understands that product support for Third Party Products is provided by the Third Party Vendor. Neither Ideawire nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. THE CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT THE CLIENT’S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM IDEAWIRE OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER IDEAWIRE NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. THE CLIENT AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT THE CLIENT SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND IDEAWIRE WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of (i) any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributory caused by the other party) and (ii) any violation of or failure to comply with Ideawire terms and policies. The Client further agrees to indemnify Ideawire and its affiliates against any Losses which arise out of, or relate to any content provided by the Client or the Clients clients and/or partners of the Client, and the Client will reimburse Ideawire and its affiliates for all legal expenses, including reasonable attorneys' fees, incurred by Ideawire and its affiliates in connection with any such Losses.
7.1 Termination Without Cause During Renewal Term. The DataHost Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than three (3) months’ prior written notice of termination. No matter which party terminates the DataHost Agreement pursuant to this Section 7.1, any and all payment obligations under the DataHost Agreement for Service(s) provided through the date of termination, supplemental services of the Client web environment, other services associated with development, and other agreements will immediately become due, and the Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such three (3) month period.
7.2 Termination For Cause. In addition to any other rights it may have under the DataHost Agreement or applicable law, Ideawire may immediately terminate the DataHost Agreement or suspend service, effective without notice, in the event of (i) a Payment Default on the Client’s account with Ideawire, or (ii) the Client’s breach or failure to comply with any other obligation of the Client under the DataHost Agreement or any other agreement including, but not limited to, its failure to comply with any of the terms of Ideawire’s terms and conditions, and/or the policies of Ideawire. The Client may terminate the DataHost Agreement if Ideawire breaches any material term or condition of this Agreement and fails to cure such breach within fourteen (14) days after receipt of written notice of same. If the DataHost Agreement is terminated by Ideawire, all remaining monthly recurring and other charges specified on the applicable Contract for the balance of then current term shall immediately become due and payable. In addition to the foregoing, Ideawire reserves the right to prohibit any conduct or to remove any materials or content in violation of Ideawire’s customer account policies or which Ideawire believes in its sole discretion to be illegal or potentially harmful to others or may expose Ideawire to harm, loss or liability.
7.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Service or the DataHost Agreement in accordance with its terms.
7.4 Survival. The following provisions will survive any expiration or termination of the DataHost Agreement: Sections 3, 4, 6, 7, 8 and 9.
(a) “Service Commencement Date” means the date Ideawire will begin providing the Service(s) to the Client as indicated in the DataHost Estimate and/or DataHost Invoice.
(b) “Datahost Service(s)” means the specific service(s) provided by Ideawire to the Client as described within the DataHost Agreement documents. Within the DataHost service, Ideawire reviews and approves the suitability of its DataHost partners – dedicated hosting providers – and directs strategies for Ideawire’s DataHost Services.
(c) “Datahost Agreement” refers collectively to both the DataHost Master Services Agreement and the DataHost Estimate and/or DataHost Invoice.
(d) “Supplement Services” means any non-routine root-level support or consulting provided by Ideawire to the Client. This includes, but is not limited to server failure troubleshooting and recovery, and other client account-specific support services.
(e) “Interim Term” means the period as described prior to, and during a client’s web services being initiated, as indicated on the Contract.
(f) “Initial Term” means the minimum term for which Ideawire will provide the Service(s) to the Client, as indicated on the Contract.
(g) “Renewal Term” means any service term following the Initial Term, as specified in the DataHost Estimate and/or DataHost Invoice.
(h) “Ideawire’s customer account policies” means the Ideawire general terms and conditions governing Ideawire clients’ use of Ideawire Services, including, but not limited to, Ideawire's project terms and conditions, and Ideawire’s Acceptable Use Policy, all which can be found at www.ideawire.com/policies.
(i) “Best effort.” Ideawire DataHost reflects a "best effort" delivery approach to web hosting and web hosting and server support. Best effort does not provide any guarantees or that a client is given a guaranteed quality of service level or a certain priority. In a best effort delivery all users obtain best effort service. This service is a budget-conscious approach to providing affordable professional web hosting services.
9. Miscellaneous Provisions.
Ideawire shall not be deemed to be in default of any provision of the DataHost Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to the Client resulting, directly or indirectly, from any unforeseen or force majeure event. Ideawire and the Client agree that, except as otherwise expressly provided in the DataHost Agreement, the Contractor the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to the DataHost Agreement, including but not limited to the insurance providers for either party or the customers and/or partners of the Client. THE DATAHOST AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE DATAHOST AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of the DataHost Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. The Client may not reassign or transfer or delegate duties under the DataHost Agreement either in whole or in part to another third party without the prior written consent of Ideawire, and any attempted assignment or delegation without such consent will violate the DataHost Agreement. Ideawire may assign the DataHost Agreement in whole or part, and/or may also delegate the performance of certain Services to third parties, including Ideawire's partners. All notices, demands, requests or other communications required or permitted under the DataHost Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of certified mail. Ideawire and the Client are independent companies and the DataHost Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Ideawire and the Client. Neither Ideawire nor the Client will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. The DataHost Agreement, including The DataHost Master Services Agreement and the DataHost Estimate and/or DataHost Invoice, and all documents incorporated herein by reference, constitutes the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such hosting services. The DataHost Agreement must be executed combining the DataHost Master Services Agreement and the DataHost Estimate and/or DataHost Invoice, each of which will be deemed an original, but all of which together shall constitute the one DataHost Agreement. Once signed, any reproduction of the DataHost Master Services Agreement and the Estimate and/or DataHost Invoice Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided, the DataHost Agreement may be changed only by a written document signed by authorized representatives of Ideawire and the Client in accordance with this Section 9.
Authorized representatives of the Client and Ideawire have read the foregoing and all documents incorporated therein and, by executing the Contract and/or paying the DataHost invoices
July 1, 2006