Adatasol Managed Hosting SM
Master Services Agreement
This Master Services Agreement is between Adatasol, Ltd., a Texas limited partnership (“Adatasol”) and the person (individual or legal person) whose name appears on the signature line of the Agreement or on any document that incorporates the Agreement by reference (“Customer”) and is effective on the Effective Date.
1. Defined Terms. Capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of the Agreement:
“Agreement” shall mean this Master Services Agreement, the Service Order Form(s), the Service Level Agreement, any Adatasol Addendum to this Master Services Agreement, and the AUP, collectively.
“AUP” shall mean Adatasol’s Acceptable Use Policy, posted on the Effective Date at http://www.Adatasol Inc..com/aboutus/acceptable_use.php, as it may be amended from time to time in accordance with Section 7 (AUP) of this Master Services Agreement.
“Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., central U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
“Effective Date” shall mean the day that Customer accepts the Agreement, either by signing Adatasol’s Service Order Form or the Master Services Agreement, or by using the Service.
“Managed Hosting Service” shall mean the provision of the data center, servers and other devices, bandwidth, software, SupportSM, and other services described in the Service Order Form.
“Service Commencement Date” shall mean the date Adatasol generates an e-mail message to Customer that provides access codes and passwords for use in connection with the Managed Hosting Service.
“Service Level Agreement” shall mean the Adatasol Service Level Agreement in effect on the Effective Date, as it may be amended from time to time by written agreement of the parties.
“Service Order Form” shall mean the Adatasol Service Order Form accepted by Customer, as it may be amended from time to time in accordance with the Agreement, and any subsequent or additional Service Order Forms that incorporate the Agreement by reference.
“Service” or “Services” shall mean the Managed Hosting Service and any Supplemental Service(s) (as defined in Section 3) provided by Adatasol to Customer pursuant to the Agreement.
2. Term. The initial service term of the Agreement shall begin on the Service Commencement Date and continue for the period stated in the Service Order Form (the “Initial Term”). Adatasol and Customer may agree to one or more additional terms having a fixed number of months to follow the expiration of the Initial Term (each a “Renewal Term”). If upon expiration of the Initial Term no Renewal Term has been established by agreement of the parties the Agreement shall automatically renew for successive extended terms of thirty (30) days each (each a “Extended Term”) until Adatasol or Customer provides the other with thirty (30) days advance written notice of termination. The Initial Term applicable to any Service Order Form executed subsequent to the Effective Date shall begin on the Service Commencement Date stated in that Service Order Form and continue for the period stated in that Service Order Form.
3. Services. Contingent upon Customer’s satisfaction of Adatasol’s credit approval requirements and on Adatasol’s verification of the information provided by Customer for the purpose of establishing the Service, Adatasol agrees to provide the Managed Hosting Service in accordance with the terms of the Agreement. In addition, Adatasol Inc. may from time to time perform certain additional services on an hourly fee basis (the “Supplemental Services”), such as those services described in Adatasol’s Spheres of Support Table (http://www.Adatasol Inc..com/support/sphere_table.php), customization of the Managed Hosting Service at Customer’s request, services described in the AUP, and other professional technical services. Except for emergency and remediation services described in Section 4 below, Supplemental Services will be performed only on Customer’s advance approval and will be invoiced at Adatasol’s published rates or other rates approved in advance by Customer.
4. Emergency and Remediation Services. In the event of a security emergency or other emergency, Adatasol may, in its sole discretion, perform Supplemental Services for Customer without Customer’s prior consent. Customer agrees to pay Adatasol’s then current hourly rate for emergency Supplemental Services. In addition, Adatasol may perform services for the fees stated in the AUP as necessary to remediate problems caused by AUP violations without obtaining advance Customer consent.
(a) Fees. Customer agrees to pay the monthly and set up fees stated in the Service Order Form and Adatasol’s standard fees for Supplemental Services in effect at the time the Supplemental Services are performed. Buddy Systems Inc.’s first invoice shall include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. Adatasol may require payment in full of its first invoice before beginning the Service. Following the Service Commencement Date, monthly recurring fees are due in advance on the first day of each calendar month, without invoice. Invoices for Supplemental Services, excess data transfer, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due on receipt. Customer acknowledges that it is responsible for excess data transfer fees that may result from a denial of service or other attack on its Adatasol servers. Credits due under the Service Level Agreement may be given, at Adatasol’s option, against the invoice for the month in which the event(s) occurred or the invoice for the following month. Payments must be made in United States dollars. Adatasol may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Adatasol may suspend any or all Services on four (4) Business Days’ advance notice to Customer if payment for any Service is overdue. Fees not disputed within one hundred eighty (180) days of due date are conclusively deemed accurate. Customer agrees to pay Adatasol’s then current reinstatement fee following a suspension of service for non-payment or an AUP violation investigation. Customer agrees to pay Adatasol’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Early Termination. Customer acknowledges that the amount of the monthly recurring fee for the Managed Hosting Service is based on Customer’s agreement to pay the fee for the entire Initial Term and any agreed upon Renewal Term. In the event Adatasol terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 14 (Termination), or Customer terminates the Managed Hosting Service other than for Adatasol’s breach in accordance with Section 14 (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the Initial Term or any Renewal Term, are due on the Business Day following termination of the Managed Hosting Service.
(c) Taxes. Customer shall remit to Adatasol all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on Adatasol), regardless of whether Adatasol fails to collect the tax at the time the related Services are provided. If Customer is located in the European Union, Customer will remit VAT at the appropriate rate unless Customer provides Adatasol with a valid VAT number or evidence acceptable to Adatasol that Customer is using the Services for a business purpose.
6. Customer Obligations. Customer agrees to do all of the following at its expense:
(a) Security Precautions. Use reasonable security precautions in connection with its use of the Services and, if Customer resells Adatasol Inc.’s services, require its customers and end users to use reasonable security precautions;
(b) Data Back Up. Notwithstanding any agreement by Buddy Systems Inc. to provide data storage or back up services, create and maintain a current copy of all content (including software, data and other information) stored on Customer’s Adatasol servers or otherwise provided to Buddy Systems Inc. and store the copy in a reasonably secure location other than a Adatasol server or location;
(c) Law, AUP. Comply with laws applicable to Customer’s use of the Services and with Adatasol’s AUP, and if Customer resells Adatasol’s Service, require its customers and end users to comply with applicable law and Adatasol’s AUP; and
(d) Investigation of AUP. Cooperate with Adatasol’s reasonable investigation of any suspected violation of the AUP.
7. AUP. Customer agrees that Adatasol may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of Adatasol’s notice to Customer that an amendment has been made, or the beginning of any Renewal Term or Extended Term. However, if the amendment would materially and adversely affect Customer and Customer provides Adatasol with a written notice describing it’s objection to the amendment in reasonable detail within five (5) Business Days of the effective date of the amendment, the amendment shall not become effective as to Customer, but Adatasol shall have the right to terminate the Agreement without liability as provided in Section 14 (b)(4) (Termination).
8. Suspension of Service. Customer agrees that Adatasol may suspend Services to Customer without notice and without liability if: (i) Adatasol reasonably believes that the Services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable Adatasol investigation of any suspected violation of the AUP; (iii) there is a denial of service attack on Customer’s servers or other event for which Adatasol reasonably believes that the suspension of Services is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or government agency. Information on Adatasol’s servers will be unavailable during a suspension of Services.
(a) Reciprocal. Adatasol represents and warrants to Customer, and if Customer is not an individual, Customer represents and warrants to Adatasol, that: (i) it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of the Agreement; and, (iii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents. If Customer is an individual, Customer represents and warrants to Adatasol that he or she is at least 18 years of age.
(b) Customer. Customer represents and warrants to Buddy Systems Inc. that the information it has provided and will provide to Buddy Systems Inc. for purposes of establishing and maintaining the Services is accurate.
10. Unauthorized Use of Service. Customer is generally responsible for the security of the servers provided pursuant to this Agreement, and Adatasol Inc. agrees only to perform the specific security services described in the Service Order Form or other portion of the Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services.
(a) Customer. Customer agrees to indemnify and hold harmless Adatasol, Adatasol’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability aris ing out of or related to: (i) the actual or alleged use of Customer’s Services in violation of: (A) the AUP, (B) any other portion of the Agreement, or (C) applicable law, by any person regardless of whether such person has been authorized to use the Services by Customer, or (ii) any dispute regarding the control of Customer’s account with Adatasol. (b) Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark, or other proprietary right.
(c) Procedures. A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party, provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices the indemnifying party’s rights. The indemnified party will have the right to select counsel to defend it in respect of any indemnified matter under this Section, provided, however, that the counsel selected must be reasonably satisfactory to the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld. Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement.
12. Disclaimer of Warranties.
Adatasol DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’s PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Adatasol DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, EXCEPT AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER PORTION OF THE AGREEMENT.
13. Limitation of Damages.
THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT OR SERVICE ORDER FORM ARE CUSTOMER’s SOLE REMEDY FOR Adatasol INC.’s FAILURE TO MEET THE GUARANTIES AND WARRANTIES STATED IN THOSE DOCUMENTS. EXCEPT AS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, Adatasol SHALL NOT BE LIABLE TO THE CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER’s USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY Adatasol’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF BUDDY SYSTEMS INC. AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE MANAGED HOSTING SERVICE FOR THE THREE MONTHS PRIOR TO THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
(a) Customer. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without liability as follows: (i) Adatasol fails in a material way to provide the Managed Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail, or (ii) Adatasol materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer’s written notice describing the violation in reasonable detail.
(b) Adatasol. The Agreement may be terminated by Buddy Systems Inc. prior to the expiration of the Initial Term, any Renewal Term, or Extended Term, without liability as follows: (i) upon four (4) Business Days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Adatasol Inc. describing the violation in reasonable detail; (iii) upon one (1) Business Days notice if Customer’s Service is used in violation of a material term of the AUP more than once; (iv) on one (1) Business Days’ notice if Customer objects to Adatasol’s amendment to the AUP as provided in Section 7 (AUP); or (v) upon reasonable notice if Adatasol Inc. is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.
(a) Confidential Information. Confidential Information is: (i) with respect to Adatasol, Adatasol’s unpublished prices for services, server configuration designs and other proprietary technology, (ii) with respect to Customer, content transmitted to or from, or stored by Customer on, Adatasol’s servers, and (iii) with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party’s written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement, or is required to be disclosed by law or regulation. Each party agrees not to disclose the other’s confidential information to any third party except to its agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement.
(b) Adatasol’s Use of Customer’s Name. Customer agrees that Adatasol may publicly disclose that Adatasol is providing services to Customer and may include Customer’s name in promotional materials, including press releases and on Adatasol’s Web site. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s permission.
(c) Requests for Customer Information. Notwithstanding anything to the contrary above, Customer agrees that Adatasol may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Buddy Systems Inc. believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency. Adatasol may provide any information, including Confidential Information, it has about Customer or its customers or end users in response to a formal request in a civil action that on its face meets the requirements for such a request.
16. Software. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by Adatasol. Customer may not reverse engineer, decompile, or disassemble any Adatasol Inc. provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software. If the Service Order Form indicates that Adatasol uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software that appear at http://www.Adatasol Inc..com/aboutus/microsoftlicense.php, and agrees that if it resells the Services it will require each of its customers to agree to those terms.
17. Third Party Products. As a convenience to Customer, Adatasol Inc. may from time to time arrange for Customer’s purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. BUDDY SYSTEMS INC. MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND THEY ARE PROVIDED “AS IS.” Customer’s use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party.
18. Notices. Notices to Adatasol under the Agreement shall be given in writing via first class mail or established and well-known express courier to Legal Counsel, Adatasol Managed Hosting, at Buddy Systems Inc.’s principal office address posted on www.Buddy Systems Inc..com, currently:
19 Chelsea Ct.
South Russell, OH 44022
Notices to Customer shall be given via electronic mail to the individual listed as the Contact on the Service Order Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
(a) Solicitation of Adatasol Employees. Customer agrees that it shall not solicit any Adatasol employee for employment with customer or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement.
(b) Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property, and that Adatasol Inc. shall own any intellectual property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess Adatasol’s server(s) or other hardware, and has no right of physical access to the hardware. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name) and agrees that Adatasol Inc. may take steps to change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue. The Agreement shall be governed by the laws of the State of Texas, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN BEXAR COUNTY, TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
(d) Modifications. Except for the following, the Agreement may be amended only by a formal written agreement signed by both parties: (i) amendments of the AUP as described in Section 7, above, (ii) a Renewal Term may be agreed by means of Adatasol’s online renewal process, and (iii) changes to the “Server Specifications,” “Software and Services,” or fees section of an existing Service Order Form may be made by an exchange of correspondence (including electronic mail) that includes both parties’ express consent to the change. The terms on Customer’s purchase order or other business forms are not binding on Adatasol unless they are expressly incorporated into a formal written agreement signed by both parties.
(e) Non-Waiver. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Captions. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.
(g) Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original.
(h) Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
(i) Force Majeure. Adatasol shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Adatasol’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(j) No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement
(k) Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement
(l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive. Adatasol may provide service to any person, including a competitor of Customer.
(m) Assignment. Customer may not transfer the Agreement without Adatasol’s prior written consent. Adatasol’s approval for assignment is contingent on the assignee meeting Adatasol’s credit approval criteria. Adatasol may assign the Agreement in whole or in part.
(n) Agreement. The Service Order Form(s), Service Level Agreement, Adatasol’s AUP, and any Adatasol Addendum to this Master Services Agreement accepted by Customer are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replaces any prior understanding or communication, written or oral.