This Agreement states the terms and conditions by which Pugmarks Interweb will deliver
and Customer will receive any or all of the services provided by Pugmarks Interweb,
including facilities, bandwidth, managed services and professional services. The
specific services and/or products to be provided hereunder are identified in the
order Form or First Invoice are applicable to this agreement. Pugmarks Interweb
will provide the customer the services and/or products as described in the order
form or first invoice at the usage prices mentioned in Invoice. This Agreement is
intended to cover any and all Services ordered by Customer and provided by Pugmarks
Interweb. In the event that any terms set forth herein apply specifically to a service
not ordered by Customer, Customer can send the disputed in writing to Pugmarks Interweb
and such terms shall not apply to Customer until disputed service is agreed by both
parties. Failure to give a written notice will automatically imply that Customer
is agreeable to the price and service provided by Pugmarks Interweb.
(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
Interweb Supplied Equipment and use of the Service(s).
(b) "Customer Equipment" means the Customer's computer hardware, not including
stored data, and other tangible equipment placed by Customer in the Customer Area.
The Customer Equipment shall be identified on Pugmarks Interweb ' standard customer
equipment list completed and delivered by Customer to Pugmarks Interweb, as amended
in writing from time to time by Customer.
(c) "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 Interweb and amended
in writing from time to time by Customer.
(d) "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 Customer.
(e) "Pugmarks Interweb Supplied Equipment" means the computer hardware,
software and other tangible equipment and intangible computer code contained therein,
to be provided by Pugmarks Interweb for use by Customer, as detailed in the Annexure
(f) Pugmarks Interweb Technology means Pugmarks Interweb proprietary technology,
including Pugmarks Interweb 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 Interweb or licensed to Pugmarks Interweb from
a third party) and also including any derivatives, improvements, enhancements or
extensions of Pugmarks Interweb 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 art.
(g) Initial Term means the minimum term for which Pugmarks Interweb will provide
the Service(s) to Customer, as indicated in the order Form / First Invoice sent
to the Customer. Except as otherwise expressly provided in this Agreement, Pugmarks
Interweb is not asked to stop provide these services, Customer is obligated to pay
for each Service through its Initial Term and any Renewal Term.
(h) Internet Data Center(s) means any of the third party facilities used by Pugmarks
Interweb to provide the Service(s).
(i) Professional Services means any non-standard professional or consulting service
provided by Pugmarks Interweb to Customer.
(j) Renewal Term means any service term following the Initial Term, as specified
in Section 2.2.
(k) Representatives mean the individuals authorized by Customer to interact with
(l) Rules and Regulations means the Pugmarks Interweb 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 updated at Pugmarks Interweb .net site from time
(m) Service(s) means the specific service(s) provided by Pugmarks Interweb as described
in Annexure "A" / Order Form / First invoice.
(n) Service Commencement Date means the date Pugmarks Interweb will begin providing
the Service(s) to Customer, as indicated in the invoice raised to the customer when
Pugmarks Interweb beings providing these services.
(o) Service Level Warranty described and defined in Section 5.2 below.
(p) Work means any tangible deliverable provided by Pugmarks Interweb to Customer
as described in the Annexure "A" or for any Professional Service.
2. Delivery of Services; Terms; Fees.
2.1 Delivery of Services.
By submitting an Order Form, or by verbally asking Pugmarks Interweb to provide
services Customer agrees to take and pay for, and, by accepting the Order Form /
not disputing the first invoice within 1 week of invoice date, Pugmarks Interweb
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 Interweb 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 Annexure "A" /. Order form / First
invoice. Supplemental Service may include, as an example, a request from Customer
to Pugmarks Interweb via telephone that Pugmarks Interweb immediately replace a
problem Customer server with a Pugmarks Interweb server for a temporary period of
time. Pugmarks Interweb 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 Interweb reasonably determines that Supplemental
Services are required on an emergency basis, Pugmarks Interweb 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 Interweb the fees charged by Pugmarks Interweb for Supplemental
Services. Customer will be charged for Supplemental Services in the invoice issued
the month following delivery of the services. Pugmarks Interweb will use commercially
reasonable efforts to provide Supplemental Services, provided that Pugmarks Interweb
has no obligation to determine the need for or provide Supplemental Services. All
Supplemental Services provided pursuant to this paragraph 2.1(b) are provided on
an as-is basis and exclude warranties of any kind, whether express or implied.
(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 Interweb being providing these
(b) Renewal Term(s).
Each Service will continue automatically for additional terms equal to the Initial
Term (Renewal Term) unless Customer notifies Pugmarks Interweb in writing at least
ninety (90) days prior to the end of the Initial Term or a Renewal Term, as applicable,
that it has elected to terminate such Service, in which case such Service shall
terminate at the end of such term. The termination of any Service will not affect
Customer's obligations to pay for other Service(s). Notwithstanding the foregoing,
Pugmarks Interweb may change or increase the prices it charges Customer for any
Service at any time after the Initial Term effective thirty (30) days after providing
notice to Customer.
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 Annexure
"B" / order Form and/or First invoice. The prices listed in the will remain
in effect during the Initial Term indicated in the order form / first invoice and
will continue thereafter, unless modified in accordance with Section 2.2. Customer
also agrees to reimburse Pugmarks Interweb for actual out-of-pocket reasonable expenses
incurred in providing Professional Services to Customer.
3.2 Payment Terms.
On the Service Commencement Date for each Service or as per the payment terms mentioned
in Annexure "B", if applicable, Customer will be billed an amount equal to all non-recurring
charges indicated in the Annexure "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., 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 within 15 days from receipt
of each Pugmarks invoice. All payments will be made in India.
3.3 Late Payments.
Any payment not received within thirty (30) days of the invoice date will accrue
interest at a rate of two percent (2%) per month from the date of default until
the date(s) of payment in full. If Customer is delinquent in its payments, Pugmarks
Interweb may, upon written/email notice to Customer, modify the payment terms to
require full payment before the provision of all Services and Pugmarks Interweb
Supplied Equipment or require other assurances to secure Customer's payment obligations
All fees charged by Pugmarks Interweb for Services are exclusive of all taxes and
similar fees now in force or enacted in the future imposed on the transaction and/or
the delivery of Services, all of which Customer will be responsible for and will
pay in full, except for taxes based on Pugmarks Interweb net income.
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. Confidential Information will also include, but
not be limited to, Pugmarks Interweb 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 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 Interweb to
Customer any Pugmarks Interweb Technology, and all right, title and interest in
and to Pugmarks Interweb will remain solely with Pugmarks Interweb. Except for the
rights expressly granted herein, this Agreement does not transfer from Customer
to Pugmarks Interweb any Customer Technology, and all right, title and interest
in and to Customer Technology will remain solely with Customer. Pugmarks Interweb
and Customer each agrees that it will not, directly or indirectly, reverse engineer,
recompile, 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, Pugmarks Interweb will
not be prohibited or enjoined at any time by Customer from utilizing any skills
or knowledge of a general nature acquired during the course of providing the Services,
including, without limitation, information publicly known or available or that could
reasonably be acquired in similar work performed for another customer of Pugmarks
4.3 License Grants.
(a)By Pugmarks Interweb.
Pugmarks Interweb hereby grants to Customer a nonexclusive, royalty-free license,
during the term of this Agreement, to use the Pugmarks Interweb Technology solely
for purposes of using the Service(s). Customer shall have no right to use the Pugmarks
Interweb 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 Interweb to access Customer Equipment and use Customer Technology,
Pugmarks Interweb 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 Interweb shall
have no right to use the Customer Technology for any purpose other than providing
4.4 Professional Services; Assignments and License.
(a)Assignment of Work.
Effective at the time Pugmarks Interweb receives full and final payment for the
Professional Service, Pugmarks Interweb 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 Interweb Technology.
Commencing at the time Pugmarks Interweb receives full and final payment for the
Work, Pugmarks Interweb grants to Customer a non-exclusive, non-transferable, royalty
free, perpetual license to use the Pugmarks Interweb 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 Interweb Technology, Customer, on behalf of itself and its employees
and contractors, hereby assigns to Pugmarks Interweb all right, title and interest,
including all intellectual property rights in, the Pugmarks Interweb Technology.
5. Pugmarks Interweb Representations and Warranties.
5.1 Authority and Performance of Pugmarks Interweb.
Pugmarks Interweb 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.
In the event of a breach of the warranties set forth in this paragraph 5.1, Customer's
sole remedy is termination pursuant to Section 9 of the Agreement.
5.2. Service Level Warranty.
In the event that Customer experiences any of the service performance issues defined
in this Section 5.2 as a result of Pugmarks Interweb failure to provide bandwidth
or professional services, Pugmarks Interweb 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 not apply to any services other
than bandwidth and facility services, and, shall not apply to performance issues
(i) caused by factors outside of Pugmarks Interweb reasonable control;
(ii) that resulted from any actions or inactions of Customer or any third parties;
(iii) that resulted from Customer's equipment and/or third party equipment (not
within the sole control of Pugmarks Interweb).
(a) Service Warranty Definitions.
For purposes of this Agreement, the following definitions shall apply only to the
Services (not including Professional Services).
(i) Downtime shall mean sustained packet loss in excess of fifty percent (50%) within
Pugmarks Interweb U.S. network for fifteen (15) consecutive minutes due to the failure
of Pugmarks Interweb to provide Service(s) for such period. Downtime shall not include
any packet loss or network unavailability during Pugmarks Interweb scheduled maintenance
of the Internet Data Centers, network and Service(s), as described in the Rules
(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) Downtime Periods.
In the event Customer experiences Downtime, Customer shall be eligible to receive
from Pugmarks Interweb a Service Credit for each Downtime period. Examples: If Customer
experiences one Downtime period, 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.
(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 Interweb within seven (7) days from the time Customer becomes
eligible to receive a Service Credit. Failure to comply with this requirement will
forfeit Customer's right to receive a Service Credit.
(d) Remedies Shall Not Be Cumulative; Maximum Service Credit.
The aggregate maximum number of Service Credits to be issued by Pugmarks Interweb
to Customer for any and all Downtime periods and Performance Problems that occur
in a single calendar month shall not exceed seven (7) 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 rupee value of the Service Credit will
be mailed to Customer. Customer shall also be eligible to receive a pro-rata refund
(i) Downtime periods and Performance Problems for which Customer does not receive
a Service Credit and
(ii) any Services Pugmarks Interweb does not deliver to Customer for which Customer
(e) Termination Option for Chronic Problems.
Customer may terminate the Agreement for cause and without penalty by notifying
Pugmarks Interweb within five days following the end of a calendar month in the
event either of the following occurs:
(i) Customer experiences more than fifteen (15) Downtime periods resulting from
three (3) or more nonconsecutive Downtime events during the calendar month; or
(ii) Customer experiences more than eight (8) consecutive hours of Downtime due
to any single event. Such termination will be effective thirty (30) days after receipt
of such notice by Pugmarks Interweb.
(f) The service level warranty set forth in this section 5.2 shall only apply to
the bandwidth provided by Pugmarks Interweb 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 Interweb to provide Service(s).
5.3 Service Performance Warranty.
Pugmarks Interweb warrants that it will perform the Services in a manner consistent
with industry standards reasonably applicable to the performance thereof
5.4 Selection of Pugmarks Interweb Supplied Equipment; Manufacturer Warranty.
Customer acknowledges that it has selected the Pugmarks Interweb Supplied Equipment
and disclaims any statements made by Pugmarks Interweb. Except with respect to any
express warranties for Service(s) related to Pugmarks Interweb. Supplied Equipment,
Customer acknowledges and agrees that its use and possession of the Pugmarks Interweb
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 Interweb
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 Interweb 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
Interweb does not warrant that the Services will be uninterrupted, error-free, or
5.6 Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
Pugmarks Interweb does not and cannot control the flow of data to or from Pugmarks
Interweb 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 Interweb will
use commercially reasonable efforts to take all actions it deems appropriate to
remedy and avoid such events, Pugmarks Interweb cannot guarantee that such events
will not occur. Accordingly, Pugmarks Interweb disclaims any and all liability resulting
from or related to such events.
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 (including policies as updated at Pugmarks Interweb .net website)or
cause a breach of any agreements with any third parties or unreasonably interfere
with other Pugmarks Interweb customers, use of Pugmarks Interweb services, and
(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 Interweb will have the right,
in its sole reasonable discretion, to suspend immediately any related Services if
deemed reasonably necessary by Pugmarks Interweb to prevent any harm to Pugmarks
Interweb and its business. Pugmarks Interweb will provide notice and opportunity
to cure if practicable depending on the nature of the breach. Once cured, Pugmarks
Interweb 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 this Agreement. Any use of these services which violates any local,
state, national, or international laws which may apply to Pugmarks Interweb, 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 contents
resides only with the customer and Pugmarks Interweb 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 Interweb
from time to time. The Rules and Regulations are incorporated herein and made a
part hereof by this reference. Pugmarks Interweb may change the Rules and Regulations
upon fifteen (15) days notice to Customer, which notice may be provided by posting
such new Rules and Regulations at the Pugmarks Interweb Web site www.pugmarks.in.
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.
Customer may not:
(i) Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene,
offensive, indecent, pornographic, profane, or otherwise objectionable information
of any kind, including without limitation any transmissions constituting or encouraging
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any local, state, national or international law and laws protecting
intellectual property including copyright, trademark, trade secret, misappropriation
and anti-dilution laws;
(ii) Post, publish, transmit, reproduce or distribute any information or software,
which contains a virus or other harmful component;
(iii)Post, publish, transmit, reproduce, distribute or in any way exploit any information,
software, or other material obtained through the service for commercial purposes
(other than as expressly permitted by the provider of such information, software,
or other material);
Customer agrees to comply with such restrictions and, in the event of a failure
to comply, Customer agrees to pay the financial penalties in accordance with the
Rules and Regulations. Customer acknowledges that Pugmarks Interweb exercises no
control whatsoever over the content of the information passing through Customer's
site(s) and that it is the sole responsibility of Customer to ensure that the information
it and its users transmit and receive complies with all applicable laws and regulations
and the Rules and Regulations.
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 Interweb, Customer will
cooperate in good faith with Pugmarks Interweb to facilitate such relocation, provided
that such relocation is based on reasonable business needs of Pugmarks Interweb
(including the needs of other Pugmarks Interweb customers), the expansion of the
space requirements of Customer or otherwise. Pugmarks Interweb shall be solely responsible
for any costs and expenses incurred by Pugmarks Interweb 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.
6.4 Pugmarks Interweb Supplied Equipment.
(a) Delivery and Term.
On or prior to the Service Commencement Date, Pugmarks Interweb shall deliver to
Customer, at the designated Co-location Space, the Pugmarks Interweb Supplied Equipment.
Customer shall have the right to use the Pugmarks Interweb Supplied Equipment for
the Initial Term set forth in the ANNEXURE "A" and any additional period
agreed to in writing by Pugmarks Interweb.
The Pugmarks Interweb Supplied Equipment shall always remain the personal property
of Pugmarks Interweb. Customer shall have no right or interest in or to the Pugmarks
Interweb Supplied Equipment except as provided in this Agreement and shall hold
the Pugmarks Interweb Supplied Equipment subject and subordinate to the rights of
Pugmarks Interweb. Customer will, at its own expense, keep the Pugmarks Interweb
Supplied Equipment free and clear from any liens or encumbrances of any kind (except
any caused by Pugmarks Interweb) and will indemnify and hold Pugmarks Interweb harmless
from and against any loss or expense caused by Customer's failure to do so. Customer
shall give Pugmarks Interweb immediate written notice of any attachment or judicial
process affecting the Pugmarks Interweb Supplied Equipment or Pugmarks Interweb
(c) Use, Maintenance and Repair.
Customer will, at its own expense, keep the Pugmarks Interweb 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 Interweb. All parts furnished in connection
with such repair and maintenance shall be manufacturer authorized parts and shall
immediately become components of the Pugmarks Interweb Supplied Equipment and the
property of Pugmarks Interweb. Customer shall use the Pugmarks Interweb Supplied
Equipment in compliance with the manufacturer's or supplier's suggested guidelines.
(d) Upgrades and Additions.
Customer may affix or install any accessory, addition, upgrade, equipment or device
on to the Pugmarks Interweb Supplied Equipment (other than electronic data) (Additions)
provided that such Additions
(i) can be removed without causing material damage to the Pugmarks Interweb Supplied
(ii) do not reduce the value of the Pugmarks Interweb Supplied Equipment and
(iii)are obtained from or approved in writing by Pugmarks Interweb and are not subject
to the interest of any third party other than Pugmarks Interweb. Any other Additions
may not be installed without Pugmarks Interweb prior written consent. At the end
of the Initial Term, Customer shall remove any Additions which
(i) were not provided by Pugmarks Interweb and
(ii) are readily removable without causing material damage or impairment of the
intended function, use, or value of the Pugmarks Interweb Supplied Equipment, and
restore the Pugmarks Interweb Supplied Equipment to its original configuration.
Any Additions, which are not so removable, will become the property of Pugmarks
Interweb (lien free).
6.5 Security Breach.
Customer agrees that the security of its account is solely its own responsibility.
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. Pugmarks Interweb makes no warranties of any kind, express, implied or
statutory concerning the data or information available through the Pugmarks Interweb
network. In no event will Pugmarks Interweb 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 Interweb immediately
by registered mail return receipt requested to Pugmarks Interweb. Customer shall
be held fully responsible for any misuse or compromise to its account for which
Pugmarks Interweb is not properly notified. Customer agrees that if any security
violations are believed to have occurred in association with its account, Pugmarks
Interweb has the right to suspend access to the account pending an investigation
and resolution. Customer also agrees that Pugmarks Interweb has the right to co-operate
in any government or legal investigation regarding any aspect of its services, including
services sold to Customer.
In case of customer being delinquent on its payment for services provided by Pugmarks
Interweb, Pugmarks Interweb has full right to deny access to, stop services and
posses / assume title of Customer's equipment and its contents and sell it to recover
the payable amount to Pugmarks Interweb.
7. Limitations of Liability.
7.1. Damage to Customer Equipment.
Pugmarks Interweb 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 Interweb. To the extent Pugmarks Interweb 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 Interweb excluding lost data, software
7.2. Consequential Damages Waiver.
Except for a breach of section 4.1 (Confidential Information) of this agreement,
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 Interweb 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.
In no circumstances, Pugmarks Interweb will be liable for amounts more than what
Customer has paid to Pugmarks Interweb.
Customer will indemnify, defend and hold the other harmless from and against any
and all costs, liabilities, losses, and expenses (including, but not limited to,
reasonable attorneys' fees) (collectively) 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 the delivery or use of the Service
(s) (but excluding any infringement contributory caused by the other party); and
(ii) any violation of or failure to comply with the Rules and Regulations. Customer
will indemnify, defend and hold Pugmarks Interweb, its affiliates and customers
harmless from and against any and all Losses resulting from or arising out of any
Action brought against Pugmarks Interweb, its affiliates or customers alleging any
damage or destruction to the Customer Area, the Internet Data Centers, Pugmarks
Interweb equipment or other customer equipment caused by Customer, its Representative(s)
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 five (5) 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
Interweb 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
Interweb feels that its rightful dues are unrecoverable from the customer:
(a) Pugmarks Interweb 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, Customer will return all Confidential
Information of the Pugmarks Interweb 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 five (5) days of such termination Customer shall
(i) remove from the Co-location Space all Customer Equipment (excluding any Pugmarks
Interweb Supplied Equipment) and any other Customer property;
(ii) deliver or make available all Pugmarks Interweb Supplied Equipment to an authorized
representative of Pugmarks Interweb.
If Customer does not remove the Customer Equipment and its other property within
such five-day period, Pugmarks Interweb 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's data and liquidate the physical assets property in any
(iii) sell it to anyone willing to pay for it in order to recover Pugmarks Interweb
out standings, 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 Interweb all undisputed amounts
owed Pugmarks Interweb under this Agreement when due, Customer agrees that, upon
delivery of written notice to Customer, Pugmarks Interweb may
(i) restrict Customer(s) any form of access to the Equipment; and/or
(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.
Except for the obligation to make payments, 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 Interweb), 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 Interweb 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 Interweb may publicly
refer to Customer, orally and in writing, as a Customer of Pugmarks Interweb. Any
other reference to Customer by Pugmarks Interweb requires the written consent of
10.3 Domain name registration.
Domain name owner shall be liable to follow the rules and regulation as established
by Domain Name Registrar. Domain Names are registered on first come first serve
basis by the Domain Name Registrars. If customer has requested for a domain name
to be booked and someone else registers the same domain name by the time the customer's
payment is realized at Pugmarks Interweb ' end, then Pugmarks Interweb is not liable
for the loss of Domain Name in any way whatsoever.
During the Term of this Agreement and continuing through the first anniversary of
the termination of this Agreement, Customer 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 Pugmarks Interweb or contracted by Pugmarks
Interweb to provide Services to Customer.
10.5 No Third Party Beneficiaries.
Pugmarks Interweb 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
10.6 Governing Law; Dispute Resolution.
This Agreement is made under and will be governed by and construed in accordance
with the laws of IL 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. 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.
10.7 Sever ability; 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 Interweb, and
any attempted assignment or delegation without such consent will be void. Pugmarks
Interweb may assign this Agreement in whole or part. Pugmarks Interweb also may
delegate the performance of certain Services to third parties, including Pugmarks
Interweb ' wholly owned subsidiaries, provided Pugmarks Interweb 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.
10.10 Relationship of Parties.
Pugmarks Interweb and Customer are independent contractors and this Agreement will
not establish any relationship of partnership, joint venture, employment, franchise
or agency between Pugmarks Interweb and Customer. Neither Pugmarks Interweb 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
10.11 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 Interweb without
need of further notice of objection, and shall be of no effect or in any way binding
upon Pugmarks Interweb. 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 Interweb 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
Authorized representatives of Customer and Pugmarks Interweb 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.