The parties agree as follows:
1. Services
Service Provider agrees to provide Customer the services described
in “Appendix A”. Service Provider may from time to time change the
Services provided to Customer under this Agreement. In the event
such change materially alters or decreases the Services, Customer
may terminate this Agreement by giving Service Provider ninety (90)
days written notice of termination.
2. Term and Termination
(a) Term. The Initial Term of this Agreement is 36 months commencing
on the Effective Date. Thereafter, unless terminated in accordance
with the terms of this Agreement, this Agreement will automatically
renew, on each anniversary date, for an additional twelve-month
term.
(b) Termination. This Agreement may be terminated as follows: (i)
Either party may terminate this Agreement at the end of a contract
term with ninety (90) days' written notice to the other party prior
the end of the initial or additional term; (ii) Upon Service
Provider's failure to perform or observe any material term or
condition of this Agreement and failure to correct within thirty
(30) days after receipt of written notice from Customer of such
failure, Customer may terminate the Services affected by such
breach; or (iii) Upon Customer's failure to pay any outstanding
charges within ten (10) days of receipt of written notice from
Service Provider of delinquency, Service Provider may terminate this
Agreement immediately.
3. Proprietary Rights
(a) Ownership. Service Provider shall retain and own all right,
title and interest and all Intellectual Property in and to the
Services and nothing herein transfers or conveys to the Customer any
ownership right, title or interest in or to the Service or any
license right with respect to same not expressly granted herein. As
used herein, “Intellectual Property” shall include, without
limitation, copyrights, trade-secrets, service names,
trademarks(including the Service Provider Marks), trade-names,
domain names, patents, know-how, formulation, data, technology,
designs, inventions, improvements, discoveries, processes, models or
sales, financial, contractual and marketing information and all
other intellectual or industrial property and like rights whether or
not registered and the applications thereof.
(b) License Grant. Subject to the terms and conditions of this
Agreement, including the payment of applicable fees, Service
Provider grants Customer a non-exclusive, non-transferable,
non-sub-licensable right to access and use the Services for the
purpose for which it is made available to Customer.
(c) Reservation of Rights. Customer acknowledges that in providing
the Services, Service Provider may utilize (i) the customer name,
the customer logo, the customer domain name, the product names
associated with the Services and other trademarks; (ii) certain
methodology, information, documents, software and other works of
authorship; and (iii) other technology, software, hardware,
products, processes, algorithms, user interfaces, know-how and other
trade secrets, techniques, designs, inventions, look and feel of the
Services and other tangible or intangible technical material or
information (collectively " Service Provider Technology") and that
the Service Provider Technology is the exclusive property of the
Service Provider, contains valuable trade secrets and Confidential
Information of Service Provider, and is covered by Intellectual
Property rights owned or licensed by the Service Provider. Other
than as expressly set forth in this Agreement, no license or other
rights in the Service Provider Technology or the Services are
granted to Customer, and all such rights are hereby expressly
reserved. Nothing contained in this Agreement shall be deemed to
convey to Customer any right, title or interest in or to the
Services or data therein or the Service Provider Technology, except
to the extent of the limited license granted in this Agreement.
(d) Restrictions. Customer shall not (i) modify, copy or make
derivative works based on the Service Provider Technology or the
Services; (ii) disassemble, reverse engineer, or decompile any of
the Service Provider Technology; or (iii) sell, sublicense, transfer
or make available the Service Provider Technology or the Services to
any third parties.
4. Payment
(a) Fees. Schedule Fees, described in “Appendix A”, will be invoiced
to Customer on a Monthly basis, and will become due and payable on
the first day of each month. Services will be suspended if payment
is not received within 5 days following date due.
(b) Taxes. It is understood that any Federal, State or Local Taxes
applicable shall be added to each invoice for services or materials
rendered under this Agreement. The Customer shall pay any such taxes
unless a valid exemption certificate is furnished to Service
Provider for the state of use.
(c) Individual Services. It is understood that any and all Services
requested by the Customer that fall outside of the terms of this
Agreement will be considered Individual Services and will be quoted
and billed separately.
5. Modifications of Services and Pricing
In order to ensure that Service Provider's level of Service keeps
pace with Customer's needs, the Service Provider and the Customer
may agree from time to time to modify the Services and prices
described in this Agreement. The Service Provider and the Customer
shall negotiate any such modifications and any corresponding
adjustments in prices in good faith and such modifications shall be
agreed to in writing.
6. Warranty
(a) Warranty. Service Provider shall perform the Service in a
workmanlike manner and in accordance with generally accepted
industry STARTERs. Customer must notify the Service Provider of any
failure to so perform within ten (10) days after the date on which
such failure first occurs. If the Service Provider is unable to
correct and/or re-perform the Service within a reasonable time, then
Service Provider’s entire liability and Customer’s exclusive remedy
for failure to so perform shall be at Customer’s sole option and
upon written notice to Service Provider, termination of the affected
Services forthwith and Service Provider shall refund the remainder
of any unused fees paid in advance by Customer for the affected
Service and which remain undelivered as of the termination date.
(b) Disclaimer and Exclusions. Except as expressly stated in Section
6(a) above, the Service Provider (including its suppliers,
subcontractors, employees and agents) provides Services “AS IS” and
makes no other express or implied warranties, written or oral, and
ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY
ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR
PERFORMANCE, OR USAGE OF TRADE. NOTHING HEREIN IS INTENDED TO
CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY THE SERVICE
PROVIDER TO ANY THIRD PARTY, (INCLUDING END USERS), DIRECTLY OR AS A
THIRD PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES
PROVIDED HEREUNDER.
7. Limitation of Liability
In no event shall Service Provider be held liable for indirect,
special, incidental or consequential damages arising out of service
provided hereunder, including but not limited to loss of profits or
revenue, loss of use of equipment, lost data, costs of substitute
equipment, or other costs.
8. Indemnity
Service Provider shall (i) defend Customer against any third party
claim that the Services and the related materials provided by the
Service Provider to Customer infringe a patent, or a copyright
enforceable in a country that is a signatory to the Berne
Convention, and (ii) pay the resulting costs and damages finally
awarded against Customer by a court of competent jurisdiction or the
amounts stated in a written settlement signed by the Service
Provider. Customer shall (i) defend the Service Provider against any
third party claim that the materials provided by Customer or its
agents for use by the Service Provider infringe a patent, or a
copyright enforceable in a country that is a signatory to the Berne
Convention, and (ii) pay the resulting costs and damages finally
awarded against the Service Provider by a court of competent
jurisdiction or the amounts stated in a written settlement signed by
Customer. The foregoing obligations are subject to the following:
the indemnitee (a) notifies the indemnitor promptly in writing of
such claim, (b) grants the indemnitor sole control over the defense
and settlement thereof, (c) reasonably cooperates in response to an
indemnitor request for assistance, and (d) is not in material breach
of this Agreement. Should such a claim be made, or in the
indemnitor’s opinion be likely to be made, the indemnitor may, at
its option and expense, (1) procure for the indemnitee the right to
make continued use thereof, (2) replace or modify such so that it
becomes non-infringing, (3) request return of the subject material,
or (4) discontinue the Service and refund the portion of any
pre-paid Service fee that corresponds to the period of Service
discontinuation. The indemnitor shall have no liability under this
Section 8 to the extent that the alleged infringement arises out of
or relates to: (A) the use or combination of the subject Services
and/or materials with third party products or services, (B) use for
a purpose or in a manner for which the subject Services and/or
materials were not designed, (C) any modification to the subject
Services and/or materials made by anyone other than the indemnitor
or its authorized representatives, (D) any modifications to the
subject Services and/or materials made by the indemnitor pursuant to
the indemnitee’s specific instructions, or (E) any technology owned
or licensed by the indemnitee from third parties. THIS SECTION
STATES THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND THE
INDEMNITOR’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.
9. Confidentiality
(a) Confidential Information. “Confidential Information” means the
terms of this Agreement and all confidential and proprietary
information of Service Provider or Customer, including without
limitation all business plans, product plans, financial information,
software, designs, formulas, methods, know how, processes, materials
provided to Customer in the course of performing Services under this
Agreement, and technical, business and financial data of any nature
whatsoever (including, without limitation, any marketing, pricing
and other information regarding the Services), provided that such
information is marked or designated in writing as “confidential,”
“proprietary,” or any other similar term or designation.
Confidential Information does not include information that is (i)
rightfully in the receiving party’s possession without obligation of
confidentiality prior to receipt from the disclosing party; (ii) a
matter of public knowledge through no fault of the receiving party;
(iii) rightfully furnished to the receiving party by a third party
without restriction on disclosure or use; or (iv) independently
developed by the receiving party without use of or reference to the
disclosing party's Confidential Information. Each party shall (i)
use Confidential Information of the other party only for the
purposes of exercising rights or performing obligations in
connection with this Agreement and (ii) use at least reasonable care
to protect from disclosure to any third parties any Confidential
Information disclosed by the other party for a period from the date
hereof until three (3) years following the later of the termination
date of this Agreement. However, that Confidential Information that
constitutes, contains or reveals, in whole or in part, Service
Provider proprietary rights shall not be disclosed by the receiving
party at any time. Notwithstanding the foregoing, a receiving party
may disclose Confidential Information pursuant to a valid order of a
court or authorized government agency provided that the receiving
party has given the disclosing party prompt notice, to the extent
legally permissible, so that the disclosing party will have an
opportunity to defend, limit or protect against such disclosure.
(b) References. Service Provider may identify Customer for reference
purposes unless and until Customer expressly objects in writing.
(c) Performance Tests. Customer may not disclose the results of any
performance tests of a Service to any third party without Service
Provider’s prior written approval. Notwithstanding the foregoing,
(i) Service Provider may disclose Customer Confidential Information
to an Affiliate or contractor (who is under an obligation of
confidentiality) for the purpose of fulfilling Service Provider’s
obligations or exercising Service Provider’s rights hereunder so
long as Service Provider and its Affiliates comply with the
confidentiality obligations above.
10. Notices
Any notices permitted or required under this Agreement shall be in
writing and shall be deemed given when delivered (i) in person; (ii)
by overnight courier, upon written confirmation of receipt; (iii) by
certified or registered mail, with proof of delivery; (iv) by
facsimile transmission with confirmation of receipt; or (v) by
email, with confirmation of receipt. Notices shall be sent to the
address, facsimile number or email address set forth above, or at
such other address, facsimile number or email address as provided to
the other party in writing.
11. Governing Law
This Agreement shall be governed by the laws of the State of
California. It constitutes the entire Agreement between the parties
with regard to the subject matter hereof and may be modified only by
a writing signed by authorized representatives of both parties.
Service Provider is not responsible for failure to render services
due to circumstances beyond its control including, but not limited
to, acts of God.
12. Force Majeure
Neither party shall be deemed in default of this Agreement to the
extent that performance of its obligations or attempts to cure any
breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, act of government, labor strike, or an
act that is beyond the reasonable control of either party, provided
that such party gives the other party written notice thereof
promptly and, in any event, within fifteen (15) days of discovery
and uses its best efforts to continue to so perform or cure. In the
event of such a force majeure, the time for performance or cure
shall be extended for a period equal to the duration of the force
majeure.
13. Acceptance of Service Agreement
This Agreement covers only those services listed in “Appendix A.”
Service Provider must deem services Customer may want to add to this
Agreement after the effective date acceptable. The addition of
Services not listed in “Appendix A” at the signing of this
Agreement, if acceptable to Service Provider, shall result in an
adjustment to the Customer’s monthly charges. IN WITNESS WHEREOF,
the parties hereto have caused this Service Agreement to be signed
by their duly authorized representatives as of the date set forth
below.
LIVE COMMENT