Master Services Agreement (Colocation Services)
This Agreement ("Agreement") states the terms and conditions by which Pugmarks will
deliver and Customer will receive any or all of the Services provided by Pugmarks,
including facilities, equipment, bandwidth, managed services and professional services.
The specific Services and/or products to be provided hereunder are identified in
the order Form(s) applicable to this Agreement. Pugmarks will provide the customer
the Services and/or products as described in the order form. This Agreement is intended
to cover any and all Services ordered by Customer and provided by Pugmarks. In the
event that any terms set forth herein apply specifically to a Service not ordered
by Customer, Customer can send written notice of the disputed Service in writing
to Pugmarks and such terms shall not apply to Customer until disputed service is
agreed by both parties. Failure to give a written notice within thirty (30) days
will automatically imply that Customer is agreeable to the price and Service provided
by Pugmarks or shall permit Cus0tomer to immediately discontinue the use of the
disputed Service without further liability.
(a) "Co-location Space" means that portion(s) of the Co-location Closet made available
to Customer for the placement of Customer Equipment and/or Pugmarks Supplied Equipment
and use of the Service(s).
(b) "Customer Data" means the data and content of Customer and its customers and
licensees which is stored, accessed or used in the Co-location space or otherwise
in connection with the Services.
(c) "Customer Equipment" means the Customer's computer hardware, not including Customer
Data, and other tangible equipment placed by Customer in the Customer Area. The
Customer Equipment shall be identified on Pugmarks' standard customer equipment
list completed and delivered by Customer to Pugmarks, as amended in writing from
time to time by Customer.
(d) "Customer Registration Form" means the list that contains the names and contact
information (e.g. pager, email and telephone numbers) of and the individuals authorized
by Customer, as delivered by Customer to Pugmarks and amended in writing from time
to time by Customer
(e) "Customer Technology" means Customer's proprietary technology, including Customer's
Internet operations design, content, software tools, hardware designs, algorithms,
software (in source and object forms), user interface designs, architecture, class
libraries, objects and documentation (both printed and electronic), know-how, trade
secrets and any related intellectual property rights throughout the world (whether
owned by Customer or licensed to Customer from a third party) and also including
any derivatives, improvements, enhancements or extensions of Customer Technology
conceived, reduced to practice, or developed during the term of this Agreement by
(f) "Pugmarks Supplied Equipment" means the computer hardware, software and other
tangible equipment and intangible computer code contained therein, to be provided
by Pugmarks for use by Customer, as outlined in individual "Statement(s) of Work"
or Order Form(s) signed by Customer.
(g) Pugmarks Technology means Pugmarks proprietary technology, including Pugmarks
Services, software tools, hardware designs, algorithms, software (in source and
object forms), user interface designs, architecture, class libraries, objects and
documentation (both printed and electronic), network designs, know-how, trade secrets
and any related intellectual property rights throughout the world (whether owned
by Pugmarks or licensed to Pugmarks from a third party) and also including any derivatives,
improvements, enhancements or extensions of Pugmarks Technology conceived, reduced
to practice, or developed during the term of this Agreement by either party that
are not uniquely applicable to Customer or that have general applicability in the
(h) Initial Term means the minimum term for which Pugmarks will provide the Service(s)
to Customer, as indicated in the Order Form signed by the Customer. Except as otherwise
expressly provided in this Agreement, Pugmarks is not asked to stop these Services,
Customer is obligated to pay for each Service through its Initial Term and any Renewal
(i) Internet Data Center(s) means Pugmarks facility or any of the third party facilities
used by Pugmarks to provide the Service(s).
(j) Professional Services means any non-standard professional or consulting service
provided by Pugmarks to Customer.
(k) Renewal Term means any Service term following the Initial Term, as specified
in Section 2.2.
(l)Representatives mean the individuals authorized by Customer to interact with
(m) Rules and Regulations means the Pugmarks general rules and regulations governing
Customers use of Services, including, but not limited to, online conduct, and the
obligations of Customer and its Representatives in the Internet Data Centers. The
rules and regulations are as set forth on Annex C attached hereto with such reasonable
changes thereto as have been provided to Client in writing and do not alter the
benefits or value of the Services in any material respect.
(n) Service(s) means the specific service(s) provided by Pugmarks as described in
any Annex "A" "Statement of Work" and include "Order Form(s)" signed by Customer.
(o) Service Commencement Date means the date Pugmarks will begin providing the Service(s)
to Customer, as indicated in the invoice raised to the customer when Pugmarks beings
providing these Services.
(p) Service Level Warranty described and defined in Section 5.2 below.
(q) Work means any tangible deliverable provided by Pugmarks to Customer as described
in the Annex "A" or for any Professional Service.
2. Delivery of Services; Terms; Fees.
2.1 Delivery of Services.
Pugmarks agrees to provide, the Service(s) during the Initial Term and for any Renewal
Term, as specified in paragraph 2.2(b) below.
(b) Delivery of Supplemental Services. The purpose of this provision is to enable
Pugmarks to provide Customer with certain limited Services and equipment needed
by Customer 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 Annex "A"
/ order form. Supplemental Service may include, as an example, a request from Customer
(by Customer Representative) to Pugmarks via telephone that Pugmarks immediately
replace a problem Customer server with a Pugmarks server for a temporary period
of time. Pugmarks shall notify Customer of the fees for any Supplemental Services
requested by Customer and obtain Customer's approval prior to providing such Services.
In the event Pugmarks reasonably determines that Supplemental Services are required
on an emergency basis, Pugmarks may provide such Services without the consent of
Customer, thereafter provide notice of the Services to Customer and bill Customer
a reasonable fee for such Services. Customer agrees to pay Pugmarks the reasonable
fees charged by Pugmarks for Supplemental Services. Customer will be charged for
Supplemental Services in the invoice issued the month following delivery of the
Services. Pugmarks will use commercially reasonable efforts to provide Supplemental
Services, provided that Pugmarks has no obligation to determine the need for or
provide Supplemental Services. All Supplemental Services provided pursuant to this
paragraph 2.1(b) shall be provided in a manner consistent with the standards applicable
to all other Services here under.
(a) Term Commencement.
The term for each Service will commence on the Service Commencement Date, as indicated
in the invoice raised to the customer when Pugmarks beings providing these Services.
(b) Renewal Term(s).
Upon expiration of Initial Term the contract would be renewed for another term equivalent
to the initial term as indicated on the Order Form.
3.Fees and payment terms.
3.1 Fees and Expenses.
Customer will pay all fees due according to the prices and terms listed in the Annex
"B" / order Form. The prices listed in the will remain in effect during the Initial
Term indicated in the order form and will continue thereafter, unless agreed by
both the parties. Customer also agrees to reimburse Pugmarks for the reasonable
amount of actual out-of-pocket reasonable expenses incurred in providing Professional
Services to Customer; provided such out-of-pocket expenses are approved in writing
in advance by Customer.
3.2 Payment Terms.
On the Service Commencement Date for each Service or as per the payment terms mentioned
in Annex "B", if applicable, Customer will be billed an amount equal to all non-recurring
charges indicated in the Annex "B" and the monthly recurring charges for the first
month of the term. Monthly recurring charges for all other months will be billed
in advance of the provision of Services. All other charges for Services received
and expenses incurred for Professional Services during a month (e.g., excess bandwidth
usage fees, travel expenses) will be billed at the end of the month in which the
Services were provided. Payment for all fees is due upon receipt of each Pugmarks
invoice. All payments will be made in US Dollars.
3.3 Late Payments.
Any payment in respect of undisputed charges not received within thirty (30) days
of Customer's receipt of the invoice will accrue interest at a rate of one percent
(1%) per month from the due date until the date(s) of payment in full. If the payment
is delayed by more than sixty (60) days, Pugmarks may, upon written/email notice
to Customer, modify the payment terms to require full payment before the provision
of all Services and Pugmarks Supplied Equipment or require other assurances to secure
Customer's payment obligations hereunder. If the payments are delayed more than
ninety (90) days, Pugmarks will have right to suspend the Services to the Customer.
For reactivation of suspended Services, a reactivation fee of $250 would be payable
in addition to payments of outstanding payments in full. In case of customer being
delinquent on its payment for undisputed Services provided by Pugmarks, Pugmarks
has full right to deny access to, stop Services and posses Customer's equipment
and its contents until final resolution or payment.
All fees charged by Pugmarks for Services are exclusive of all sales and use taxes
and similar fees now in force or enacted in the future imposed on the transaction
and/or the delivery of Services in the United States, all of which Customer will
be responsible for and will pay in full, except for taxes based on Pugmarks income,
property or employees.
4. Confidential Information; Intellectual Property Ownership; License Grants.
4.1 Confidential Information.
(a) Nondisclosure of Confidential Information. Each party acknowledges that it will
have access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, and other information
held in confidence by the other party. Confidential Information will include all
information in tangible or intangible form that is marked or designated as confidential
or that, under the circumstances of its disclosure, should be considered confidential.
All Customer Data, including data residing on backup media, shall constitute Confidential
Information of Customer. Confidential Information will also include, but not be
limited to, Pugmarks Technology, Customer Technology, and the terms and conditions
of this Agreement. Each party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly permitted by, or
required to achieve the purposes of, this Agreement, nor disclose to any third party
(except as required by law or to that party's attorneys, accountants and other advisors
as reasonably necessary), any of the other party's Confidential Information and
will take reasonable precautions to protect the confidentiality of such information,
at least as stringent as it takes to protect its own Confidential Information.
Information will not be deemed Confidential Information hereunder if such information:
(i) is known to the receiving party prior to receipt from the disclosing party directly
or indirectly from a source other than one having an obligation of confidentiality
to the disclosing party;
(ii) becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an obligation
of confidentiality to the disclosing party;
(iii) becomes publicly known or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by the receiving party; or
(iv) is independently developed by the receiving party. The receiving party may
disclose Confidential Information pursuant to the requirements of a governmental
agency or by operation of law, provided that it gives the disclosing party reasonable
prior written notice sufficient to permit the disclosing party to contest such disclosure.
4.2 Intellectual Property.
Except for the rights expressly granted herein and the assignment expressly made
in paragraph 4.4(a), this Agreement does not transfer from Pugmarks to Customer
any Pugmarks Technology, and all right, title and interest in and to Pugmarks Technology
will remain solely with Pugmarks. Except for the rights expressly granted herein,
this Agreement does not transfer from Customer to Pugmarks any Customer Technology,
and all right, title and interest in and to Customer Technology will remain solely
with Customer. Pugmarks 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.
(b) General Skills and Knowledge.
Notwithstanding anything to the contrary in this Agreement, neither party will be
prohibited or enjoined at any time by the other party from utilizing any skills
or knowledge of a general nature acquired during the course of providing or receiving
the Services, including, without limitation, information publicly known or available
or that could reasonably be acquired in similar work performed for another customer
4.3 License Grants.
Pugmarks hereby grants to Customer a nonexclusive, royalty-free license, during
the term of this Agreement, to use the Pugmarks Technology solely for purposes of
using the Service(s). Customer shall have no right to use the Pugmarks Technology
for any purpose other than using the Service(s).
Customer agrees that if, in the course of performing the Service(s), it is necessary
for Pugmarks to access Customer Equipment Customer Data and use Customer Technology,
Pugmarks is hereby granted and shall have a nonexclusive, royalty-free license,
during the term of this Agreement, to use the Customer Technology solely for the
purposes of delivering the Service(s) to Customer. Pugmarks shall have no right
to use the Customer Technology or Customer Data for any purpose other than providing
4.4 Professional Services; Assignments and License.
(a)Assignment of Work.
Effective at the time Pugmarks receives full and final payment for the Professional
Service, Pugmarks assigns to Customer all right, title and interest, including all
intellectual property rights, in the Work, provided, however, that such assignment
does not include the Pugmarks Technology.
Commencing at the time Pugmarks receives full and final payment for the Work, Pugmarks
grants to Customer a non-exclusive, non-transferable, royalty free, perpetual license
to use the Pugmarks Technology incorporated into the Work solely in connection with
the use of the Work as a whole. To the extent that Customer or its employees or
contractors participate in the creation or development of Pugmarks Technology, Customer,
on behalf of itself and its employees and contractors, hereby assigns to Pugmarks
all right, title and interest, including all intellectual property rights in, the
Pugmarks Technology but shall retain a perpetual royalty-free license to use and
allows others to use the same solely for Customer's ongoing operations.
5. Pugmarks Interweb Representations and Warranties.
5.1 Authority and Performance of Pugmarks Interweb.
Pugmarks represents and warrants that
(i) it has the legal right to enter into this Agreement and perform its obligations
(ii) the performance of its obligations and delivery of the Services to Customer
will not violate any applicable laws or regulations or cause a breach of any agreements
with any third parties.
(iii) Pugmarks warrants that it will perform the Services in a manner consistent
with industry standards reasonably applicable to the performance thereof.
(iv) Pugmarks warrants that it will implement and adhere to industry standard physical,
data, electronic and administrative security procedures within the Co-location Space
and Internet Data Centers and in connection with the delivery of the Services.
In the event of a breach of the warranties set forth in this paragraph 5.1(i), Customer's
sole remedy is termination pursuant to Section 9 of the Agreement.
5.2. Service Level Warranty.
In addition to the other warranties and remedies set forth herein, in the event
that Customer experiences any of the Service performance issues defined in this
Section 5.2 as a result of Pugmarks failure to provide Services according to Statement
of Work, Pugmarks will, upon Customer's request in accordance with paragraph 5.2(d)
below, credit Customer's account as described below (the Service Level Warranty).
The Service Level Warranty shall be limited to Services described in the Statement
of Work and, shall not apply to performance issues due to limitations of hardware
or Customers application.
(i) caused by factors outside of Pugmarks reasonable control and would not have
been avoided through the use of reasonable measures consistent with industry standards;
(ii) that resulted from any unapproved actions or inactions of Customer or any third
parties and would not have been avoided through the use of reasonable measures consistent
with industry standards; or
(iii) that resulted from Customer's Equipment.
(a) Service Warranty Definitions.
For purposes of this Agreement, the following definitions shall apply only to the
Services (not including Professional Services).
(i) "Downtime period" shall mean any period of time of sustained packet loss in
excess of fifty percent (50%) within Pugmarks U.S. network. Downtime shall not include
any packet loss or network unavailability during Pugmarks scheduled maintenance
of the Internet Data Centers, network and Service(s), as described in the Rules
and Regulations. Scheduled maintenance shall occur during regularly scheduled times
and/or such other windows agreed by the parties not less than 48 hours in advance.
(ii) "Service Credit" shall mean an amount equal to the pro-rata monthly recurring
connectivity charges (i.e., all monthly recurring bandwidth-related charges) for
one (1) day of Service.
(b) Service Credit for Downtime Periods.
Pugmarks shall deliver 99.9% uptime. In the event Customer experiences a Downtime
period in excess of .1% of any given 24-hour period (such Downtime period, a "Credit
Event"), Customer shall be eligible to receive from Pugmarks a Service Credit for
each Credit Event.
Examples: If Customer experiences one Credit Event, it shall be eligible to receive
one Service Credit. If Customer experiences two Downtime periods, either from a
single event or multiple events, it shall be eligible to receive two Service Credits.
Customer may employ an independent third party monitoring service to measure the
compliance with the foregoing uptime commitments.
(c) Customer Must Request Service Credit.
In order to receive any of the Service Credits described in this Section 5.2, Customer
must notify Pugmarks within forty-five (45) days from the Credit Event. Failure
to comply with this requirement will forfeit Customer's right to receive a Service
(d) Remedies Shall Not Be Cumulative; Maximum Service Credit.
The aggregate maximum number of Service Credits to be issued by Pugmarks to Customer
for any and all Downtime periods and Performance Problems that occur in a single
calendar month shall not exceed five (5) Service Credits. A Service Credit shall
be issued in the Pugmarks invoice in the month following the Downtime or Performance
Problem, unless the Service Credit is due in Customer's final month of Service.
In such case, a refund for the US Dollar value of the Service Credit will be mailed
to Customer within thirty (30) days. Customer shall also be eligible to receive
a pro-rata refund for any Services Pugmarks does not deliver to Customer for which
Customer has paid.
(e) Termination Option for Chronic Problems.
The aggregate maximum number of Service Credits to be issued by Pugmarks to Customer
per calendar month shall not exceed five (5) Service Credits. Customer may terminate
the Agreement for cause and without penalty by notifying Pugmarks within five (5)
days following the end of a calendar month in the event any of the following occurs:
(i) Customer experiences more than six (6) Credit Events during any one (1) month
(ii) Customer experiences more than four (4) consecutive hours of Downtime due to
any single event. Such termination will be effective thirty (30) days after receipt
of such notice by Pugmarks.
(f) Limitations. The service level warranty set forth in this section
5.2 shall only apply to the bandwidth provided by Pugmarks and, does not apply to
(i) any Professional Services;
(ii) any Supplemental Services; and
(iii) any Service(s) that expressly exclude this service level warranty.
This Section 5.2 states customer's sole and exclusive remedy for any failure by
Pugmarks to provide Service(s).
5.3 Intentionally Blank.
5.4 Selection of Pugmarks Supplied Equipment; Manufacturer Warranty. Customer acknowledges
that it has selected the Pugmarks Supplied Equipment and disclaims any statements
made by Pugmarks. Except with respect to any express warranties for Service(s) related
to Pugmarks Supplied Equipment, Customer acknowledges and agrees that its use and
possession of the Pugmarks Supplied Equipment by Customer shall be subject to and
controlled by the terms of any manufacturer's warranty, and Customer agrees to look
solely to the manufacturer with respect to all mechanical, service and other claims,
and the right to enforce all warranties made by said manufacturer are hereby, to
the extent Pugmarks has the right, assigned to Customer solely for the Initial Term.
5.5 No Other Warranty.
Except for the express warranties set forth in this section 5, the Services are
provided on an "as is" basis, and Customer's use of the Services is at its own risk.
Pugmarks does not make, and hereby disclaims, any and all other Express and/or implied
warranties, including, but not limited to, warranties of merchantability, fitness
for a particular purpose, non-infringement and title, and any warranties arising
from a course of dealing, usage, or trade practice. Pugmarks does not warrant that
the Services will be uninterrupted, error-free, or completely secure.
5.6 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Except
as caused by a breach of Pugmark's express obligations and warranties hereunder,
Pugmarks does not and cannot control the flow of data to or from Pugmarks' network
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 customer's connections
to the Internet (or portions thereof). Although Pugmarks will use commercially reasonable
efforts to take all actions to remedy and avoid such events, Pugmarks cannot guarantee
that such events will not occur. Accordingly, Pugmarks disclaims any and all liability
resulting from or related to such events not caused by a breach of its obligations
6. Customer Obligations.
6.1 Warranties of Customer.
Customer represents and warrants that
(i) it has the legal right and authority, and will continue to own or maintain the
legal right and authority, during the term of this Agreement, to place and use any
Customer Equipment as contemplated under this Agreement;
(ii) the performance of its obligations and use of the Services (by Customer, its
customers and users) will not violate any applicable laws, regulations or the Rules
and Regulations or cause a breach of any of its agreements with any third parties
or unreasonably interfere with other Pugmarks customers, use of Pugmarks Services,
(iii) all equipment, materials and other tangible items placed by Customer at Co-location
Space will be used in compliance with all applicable manufacturer specifications.
(b) Breach of Warranties.
In the event of any breach of any of the foregoing warranties, in addition to any
other remedies available at law or in equity, Pugmarks will have the right, in its
sole reasonable discretion, to suspend immediately any related Services if deemed
reasonably necessary by Pugmarks to prevent any harm to Pugmarks and its business.
Pugmarks will provide notice and opportunity to cure if practicable depending on
the nature of the breach. Once cured, Pugmarks will promptly restore the Service(s).
6.2 Compliance with Law and Rules and Regulations.
Customer agrees that it will use the Service(s) only for lawful purposes and in
accordance with Pugmarks Acceptable Use Policy (AUP) that is part of the Rules and
Regulations. Any use of these Services which violates any local, state, national,
or international laws which may apply to Customer's local jurisdiction, or any jurisdiction
that Customer or Customer's site may be subject to is strictly prohibited. Ownership
and responsibility of web site (server) contents resides only with the customer
and Pugmarks is in no way liable for consequences arising from the web site contents.
Customer will comply at all times with all applicable laws and regulations and the
Rules and Regulations, as updated by Pugmarks from time to time. Customer agrees
that it has received, read and understands the current version of the Rules and
Regulations. The Rules and Regulations contain restrictions on Customer's and Customer's
users online conduct (including prohibitions against unsolicited commercial email)
and contain financial penalties for violations of such restrictions.
6.3 Relocation of Customer Equipment.
In the event that it becomes necessary to relocate the Customer Equipment to another
Customer Area or Internet Data Center operated by Pugmarks, Pugmarks will provide
written notice of its intent to move not less than thirty (30) days prior thereto
with information concerning the new location and other pertinent details thereof
(which move shall not be more than twenty (20) miles without Customer's written
approval). Customer will cooperate in good faith with Pugmarks to facilitate such
relocation, provided that such relocation is based on reasonable business needs
of Pugmarks (including the needs of other Pugmarks customers), the expansion of
the space requirements of Customer or otherwise. Pugmarks shall be solely responsible
for any costs and expenses incurred by Pugmarks in connection with any such relocation
and will use commercially reasonable efforts, in cooperation with Customer, to minimize
and avoid any interruption to the Services. Any such move shall occur during scheduled
maintenance windows or as otherwise agreed to by Client. Any Downtime which occurs
outside of scheduled maintenance windows shall be eligible for the credits provided
6.4 Pugmarks Supplied Equipment.
(a) Delivery and Term.
On or prior to the Service Commencement Date, Pugmarks shall deliver to Customer,
at the designated Co-location Space, the Pugmarks Supplied Equipment. Customer shall
have the right to use the Pugmarks Supplied Equipment for the Initial Term set forth
in the ANNEXURE "A". and any additional period agreed to in writing by Pugmarks.
The Pugmarks Supplied Equipment shall always remain property of Pugmarks. Customer
shall have no right or interest in or to the Pugmarks Supplied Equipment except
as provided in this Agreement and shall hold the Pugmarks Supplied Equipment subject
and subordinate to the rights of Pugmarks. Customer will, at its own expense, keep
the Pugmarks Supplied Equipment free and clear from any liens or encumbrances of
any kind (except any caused by Pugmarks) and will indemnify and hold Pugmarks harmless
from and against any loss or expense caused by Customer's failure to do so. Customer
shall give Pugmarks immediate written notice of any attachment or judicial process
affecting the Pugmarks Supplied Equipment or Pugmarks ownership.
(c) Use, Maintenance and Repair.
Customer will, at its own expense, keep the Pugmarks Supplied Equipment in good
repair, appearance and condition, other than normal wear and tear, and, if not included
in the Services, shall obtain, pay for and keep in effect through the Initial Term
a hardware and software maintenance agreement with the manufacturer or other party
acceptable to Pugmarks. All parts furnished in connection with such repair and maintenance
shall be manufacturer authorized parts and shall immediately become components of
the Pugmarks Supplied Equipment and the property of Pugmarks. Customer shall use
the Pugmarks Supplied Equipment in compliance with the manufacturer's or supplier's
(d) Upgrades and Additions.
Customer may affix or install any accessory, addition, upgrade, equipment or device
on to the Pugmarks Supplied Equipment (other than electronic data) (Additions) provided
that such Additions
(i) can be removed without causing material damage to the Pugmarks Supplied Equipment;
(ii) do not reduce the value of the Pugmarks Supplied Equipment and
(iii) are obtained from or approved in writing by Pugmarks and are not subject to
the interest of any third party other than Pugmarks. Any other Additions may not
be installed without Pugmarks prior written consent. At the end of the Initial Term,
Customer shall remove any Additions which
(i) were not provided by Pugmarks and
(ii) are readily removable without causing material damage or impairment of the
intended function, use, or value of the Pugmarks Supplied Equipment, and restore
the Pugmarks Supplied Equipment to its original configuration. Any Additions, which
are not so removable, will become the property of Pugmarks (lien free).
6.5 Security Breach.
Customer agrees that the security of its account is primarily its own responsibility
(without diminishing Pugmarks obligations and warranties hereunder). Customer understands
that Internet and other various networking communication medium are not secure,
unless explicitly specified as such, and may be subjected to interception or loss.
Except as provided herein, Pugmarks makes no warranties of any kind, express, implied
or statutory concerning the data or information available through the Pugmarks'
network. Except as provided herein, in no event will Pugmarks be liable to the customer
for any indirect, incidental or consequential damages arising out of the Services
or any products provided under this agreement, even if the company has been advised
of the possibility of such damages. Customer further agrees that if it believes
the security of its account has been compromised in any way, it will notify Pugmarks
immediately by telephone at 630-579-1256 and in writing by registered mail return
receipt requested to Pugmarks Inc , 1717 Park Street, Suite 110, Naperville, IL
60563. Customer agrees that if any security violations are believed to have occurred
in association with its account, Pugmarks has the right to suspend access to the
account pending an investigation and resolution. Customer also agrees that Pugmarks
has the right to co-operate in any government or legal investigation regarding any
aspect of its Services, including Services sold to Customer.
7. Limitations of Liability.
7.1. Damage to Customer Equipment.
Pugmarks assumes no liability for any damage to, or loss of, any Customer Equipment
resulting from any cause other than the negligence or willful misconduct of Pugmarks.
To the extent Pugmarks is liable for any damage to, or loss of, Customer Equipment
for any reason, such liability will be limited solely to the lower of then-current
replacement value of the Customer Equipment, or actual payments made by the customer
to Pugmarks excluding lost data, software and firmware.
7.2. Consequential Damages Waiver.
Except for a breach of section 4.1 (Confidential Information) of this Agreement
and any indemnity relating to intellectual property infringement or damage to persons,
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), strict liability or otherwise.
7.3. Basis of the Bargain; Failure of Essential Purpose.
The parties acknowledge that Pugmarks has set its prices and entered into this Agreement
in reliance upon the limitations of liability and the disclaimers of warranties
and damages set forth herein, and that the same form an essential basis of the bargain
between the parties. The parties agree that the limitations and exclusions of liability
and disclaimers specified in this Agreement will survive and apply even if found
to have failed of their essential purpose. Except for a breach of section 4.1 (Confidential
Information) of this Agreement and any indemnity relating to intellectual property
infringement or damage to persons, in no circumstances will Pugmarks be liable for
amounts more than what Customer has paid to Pugmarks.
Customer will indemnify, defend and hold Pugmarks harmless from and against any
and all costs, liabilities, losses, and expenses (including, but not limited to,
reasonable attorneys' fees) (collectively "Losses") resulting from any claim, suit,
action, or proceeding (each, an "Action") brought by any third party against the
other or its affiliates alleging
(i) the infringement or misappropriation of any intellectual property right relating
to Customer's use of the Service(s) (but excluding any infringement to the extent
contributorily caused by Pugmarks, any Pugmarks Technology or Pugmarks Equipment);
(ii) any violation of or failure to comply with the Rules and Regulations. Customer
will indemnify, defend and hold Pugmarks, its affiliates and customers harmless
from and against any and all Losses resulting from or arising out of any Action
brought against Pugmarks, its affiliates or customers alleging any damage or destruction
to the Co-Location Space, the Internet Data Centers, Pugmarks equipment or other
customer equipment caused by Customer, its representative(s) or designees.
Pugmarks will indemnify, defend and hold Customer harmless from and against any
and all Losses resulting from any claim, suit, action, or proceeding (each, an "Action")
brought by any third party against Customer or its affiliates alleging: (i) the
infringement or misappropriation of any intellectual property right relating to
the delivery or use of the Service(s), the Pugmarks Technology or the Pugmarks Equipment
(but excluding any infringement to the extent contributorily caused by Customer
or Customer Technology); and (ii) any breach of any of Pugmarks representations,
warranties or obligations hereunder. Pugmarks will indemnify, defend and hold Customer,
its affiliates and customers harmless from and against any and all Losses resulting
from or arising out of any Action brought against Customer, its affiliates or customers
alleging any damage or destruction to any persons or property caused by Pugmarks,
its representative(s) or designees.
Each party's indemnification obligations hereunder shall be subject to
(i) receiving prompt written notice of the existence of any Action;
(ii) being able to, at its option, control the defense of such Action;
(iii) permitting the indemnified party to participate in the defense of any Action;
(iv) receiving full cooperation of the indemnified party in the defense thereof.
9.1. Termination For Cause.
Either party may terminate this Agreement if:
(i) the other party breaches any material term or condition of this Agreement and
fails to cure such breach within thirty (30) days after receipt of written /email
notice of the same, except in the case of failure to pay fees, which must be cured
within thirty (30) days after receipt of written / phone / email notice from Pugmarks;
(ii) the other party or principal(s) other related or non-related businesses becomes
the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating
to insolvency, receivership, liquidation, or composition for the benefit of creditors;
(iii) the other party becomes the subject of an involuntary petition in bankruptcy
or any involuntary proceeding relating to insolvency, receivership, liquidation,
or composition for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing. Customer may also terminate this Agreement
in accordance with the terms set forth in paragraph 5.2(f) (Termination Option For
Chronic Problems) of this Agreement.
9.2 No Liability for Termination.
Neither party will be liable to the other for any termination or expiration of any
Service or this Agreement in accordance with its terms. However, if Customer terminates
this Agreement, under the terms that are not in accordance with the terms of this
Agreement, Customer would be liable to pay the balance monies payable to Pugmarks
for the remaining term of the Agreement.
9.3. Effect of Termination.
Upon the effective date of termination of this Agreement or at anytime when Pugmarks
feels that its rightful dues are unrecoverable from the customer:
(a) Pugmarks will immediately cease providing the Service(s);
(b) Any and all payment obligations of Customer under this Agreement for Service(s)
provided through the date of termination will immediately become due;
(c) Within thirty (30) days of such termination, each party will return to the other
party all Confidential Information of other party in its possession and will not
make or retain any copies of such Confidential Information except as required to
comply with any applicable legal or accounting record keeping requirement; and
(d) Within ten (10) days of such termination Customer shall
(i) remove from the Co-location Space all Customer Equipment (excluding any Pugmarks
Supplied Equipment) and any other Customer property;
(ii) deliver or make available all Pugmarks Supplied Equipment to an authorized
representative of Pugmarks.
If Customer does not remove the Customer Equipment and its other property within
such five-day period, Pugmarks will have the option to assume title to all Customer's
hardware and contents and:
(i) move any and all such property to secure storage and charge Customer for the
cost of such removal and storage, and/or
(ii) erase all Customer Data and liquidate the physical assets property in any reasonable
(iii) sell it to anyone willing to pay for it in order to recover Pugmark's outstanding,
and refund the surplus to the customer within 30 days of receiving compensation
for the same.
9.4. Customer Equipment as Security.
In the event that Customer fails to pay Pugmarks all undisputed amounts owed Pugmarks
under this Agreement when due, Customer agrees that, following thirty (30) days
delivery of written notice to Customer, Pugmarks may
(i) restrict Customer(s) any form of access to the Equipment (but not any Customer
(ii) take possession of any Customer Equipment and store it, at Customer's expense,
until taken in full or partial satisfaction of any lien or judgment, all without
being liable to prosecution or for damages.
The following provisions will survive any expiration or termination of the Agreement:
Sections 3, 4.1, 4.2, 4.4, 5.5, 7, 8, 9, and 10 (excluding 10.2).
10. Miscellaneous Provisions.
10.1 Force Majeure.
Neither party will be liable for any failure or delay in its performance under this
Agreement due to any cause beyond its reasonable control, including acts of war,
acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet (not resulting from the actions or inactions
of Pugmarks), provided that the delayed party:
(a) gives the other party prompt notice of such cause, and
(b) uses its reasonable commercial efforts to promptly correct such failure or delay
in performance. If Pugmarks is unable to provide Service(s) for a period of thirty
(30) consecutive days as a result of a continuing force majeure event, Customer
may cancel the Service(s).
Customer agrees that during the term of this Agreement Pugmarks may publicly refer
to Customer, orally and in writing, as a Customer of Pugmarks. Any other reference
to Customer by Pugmarks requires the written consent of Customer.
During the Term of this Agreement and continuing through the first anniversary of
the termination of this Agreement, each party agrees that it will not, and will
ensure that its affiliates do not, directly or indirectly, solicit or attempt to
solicit for employment any persons employed by the other party and involved in the
delivery or receipt of Services. The foregoing shall not prohibit or restrict a
response by an employee to any general solicitation or ad, including over the Internet,
for employment. 10.4 No Third Party Beneficiaries.
Pugmarks and Customer agree that, except as otherwise expressly provided in this
Agreement, there shall be no third party beneficiaries to this Agreement, including
but not limited to the insurance providers for either party or the customers of
10.5 Governing Law; Dispute Resolution.
This Agreement is made under and will be governed by and construed in accordance
with the laws of Illinois USA. The parties will endeavor to settle amicably by mutual
discussions any disputes, differences, or claims whatsoever related to this Agreement.
Failing such amicable settlement, any controversy, claim, or dispute arising under
or relating to this Agreement, including the existence, validity, interpretation,
performance, termination or breach thereof, shall finally be settled by arbitration.
There will be three (3) arbitrators (the Arbitration Tribunal), the first of which
will be appointed by the claimant in its notice of arbitration, the second of which
will be appointed by the respondent within thirty (30) days of the appointment of
the first arbitrator and the third of which will be jointly appointed by the party-appointed
arbitrators within thirty (30) days thereafter. The language of the arbitration
shall be English. The Arbitration Tribunal will not have the authority to award
punitive damages to either party. Each party shall bear its own expenses, but the
parties will share equally the expenses of the Arbitration Tribunal. This Agreement
will be enforceable, and any arbitration award will be final, and judgment thereon
may be entered in any court of competent jurisdiction. The arbitration will be held
in Chicago, USA. Notwithstanding the foregoing, claims for preliminary injunctive
relief, other pre-judgment remedies, and claims for Customer's failure to pay for
Services in accordance with this Agreement may be brought in a court of law over
the subject matter and parties.
10.6 Severability; Waiver.
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 this
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.
Customer may assign this Agreement in whole as part of a corporate reorganization,
consolidation, merger, or sale of substantially all of its assets. Customer may
not otherwise assign its rights or delegate its duties under this Agreement either
in whole or in part without the prior written consent of Pugmarks, and any attempted
assignment or delegation without such consent will be void. Pugmarks may assign
this Agreement in whole or part. Pugmarks also may delegate the performance of certain
Services to third parties, including Pugmarks' wholly owned subsidiaries, provided
Pugmarks controls the delivery of such Services to Customer and remains responsible
to Customer for the delivery of such Services. This Agreement will bind and inure
to the benefit of each party's successors and permitted assigns.
Any notice or communication required or permitted to be given hereunder may be delivered
by hand, deposited with an overnight courier, sent by email, confirmed facsimile,
or mailed by registered mail, return receipt requested, postage prepaid, in each
case to the address of the receiving party as listed on the Registration Form or
at such other address as may hereafter be furnished in writing by either party to
the other party. Such notice will be deemed to have been given as of the date it
is delivered, mailed, emailed, faxed or sent, whichever is earlier.
10.9 Relationship of Parties.
Pugmarks and Customer are independent contractors and this Agreement will not establish
any relationship of partnership, joint venture, employment, franchise or agency
between Pugmarks and Customer. Neither Pugmarks nor Customer 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.
10.10 Entire Agreement; Counterparts; Originals.
This Agreement, including all documents incorporated herein by reference, constitutes
the complete and exclusive 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 subject matter. Any additional or different terms in any purchase order or
other response by Customer shall be deemed objected to by Pugmarks without need
of further notice of objection, and shall be of no effect or in any way binding
upon Pugmarks. This Agreement may be executed in two or more counterparts, each
of which will be deemed an original, but all of which together shall constitute
one and the same instrument. Once signed, any reproduction of this Agreement made
by reliable means (e.g., photocopy, facsimile) is considered an original. This Agreement
may be changed only by a written document signed by authorized representatives of
Pugmarks and Customer in accordance with this Section 10.11 For purposes of this
Agreement, the term written means anything reduced to a tangible form by a party,
including a printed or hand written document, e-mail or other electronic format.
Authorized representatives of Customer and Pugmarks have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
Signature: Not required if the order form is signed or the first invoice is not
disputed in writing by the customer.
Signature: Not required if the order form is signed or the first invoice is not
disputed in writing by the customer.