Washington, D.C. Location
Washington, DC 20015
Princeton, NJ Location
Princeton, NJ 08540
MASTER SERVICES AGREEMENT
THIS AGREEMENT is made this [date] day of [month], [year] by and between [International Patent Co.], a [State] corporation with offices at [address] (“International Patent Co.”), and [Customer], a [State] corporation with offices at [address] (“Customer”).
W I T N E S S E T H:
WHEREAS, International Patent Co. is in the business of providing certain services to its customers, including Internet connectivity and the provision and maintenance of physical space and facilities suitable for the placement and operation of telecommunications, networking, and other computer equipment, and
WHEREAS, Customer desires to engage International Patent Co. to provide such services to Customer, and International Patent Co. desires to provide such services, on the terms and conditions of this Agreement, and
WHEREAS, Customer and International Patent Co. have agreed to enter into this Agreement for International Patent Co.’s provision of such services in exchange for Customer’s payment for the services rendered.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree, intending to be legally bound, as follows:
1. INTERNET DATA CENTER SERVICES
Subject to the terms and conditions of this Agreement, including but not limited to Customer’s timely payment to International Patent Co. of all fees specified in this Agreement and Customer’s compliance with the Rules arid Regulations, International Patent Co. will provide to Customer the services and other benefits as described in Attachment 1 (the “Internet Data Center Services”), as amended from time to time, or substantially similar services if, in the reasonable opinion of International Patent Co., such substantially similar services would provide Customer with substantially similar benefits.
2. FEES AND BILLING
A. Fees. Customer will pay all fees due hereunder according to the Services and Price Form attached as Attachment 1, as amended from time to time by the parties.
B. Billing Commencement. Except for any fees required to be paid prior to or on the date the Customer Equipment is actually installed and approved by Customer as operational (the “Installation Date”) (as Indicated in the Services and Price Form), billing for Internet Data Center Services indicated in the initial Services and Price Form shall commence on the Installation Date. In the event that the Services and Price Form is amended after the Installation Date to include additional Internet Data Center Services, billing for such services shall commence on the date International Patent Co. first provides such additional Internet Data Center Services to Customer.
C. Billing and Payment Terms. Customer will be billed monthly in advance of the provision of Internet Data Center Services, and payment of such fees will be due within [number] ([##]) days of the date of each International Patent Co. invoice. Customer shall not be responsible for any fees, costs or any other charges that are not billed by International Patent Co. and received by Customer within [number] ([##]) days of the date that such fees, costs or charges are incurred. In the event of a disputed invoice, the parties agree to document any dispute settlements in writing. All payments will be made in U.S. dollars at International Patent Co.’s address set forth in this Agreement or at such other address, or to such other bank account, as International Patent Co. may from time to time indicate by proper notice to Customer. Late payments hereunder will accrue interest at a rate of [number] percent ([##]%) per month, or the highest rate allowed by applicable law, whichever is lower. If after consultation with Customer and based on reasonable information International Patent Co. determines that Customer is not creditworthy or is otherwise not financially secure, International Patent Co. may, upon written notice to Customer with an adequate opportunity to provide evidence of credit worthiness, modify the payment terms to require full payment before the provision of Internet Data Center Services or other assurances to secure Customer’s payment obligations hereunder.
D. Taxes. All payments required by this Agreement are exclusive of all national, state, municipal or other governmental excise, sales, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, all of which Customer will be responsible for and will pay in full, except for taxes based on International Patent Co.’s net income.
3. CUSTOMER’S OBLIGATIONS
A. Compliance with Law. Customer agrees that in connection with the exercise of its rights and performance of its obligations under this Agreement, Customer will comply in all material respects with all applicable laws and regulations. Customer acknowledges that International Patent Co. exercises no control whatsoever over the content of the information passing through its Internet Data Centers, and that, as between International Patent Co. and Customer, it is the sole responsibility of Customer to ensure that the information it transmits and receives complies with all applicable laws and regulations.
B. Compliance with Rules and Regulations. Customer agrees that it will comply at all times with International Patent Co.’s general rules and regulations, in existence from time to time and of which it has been notified, relating to its provision of Internet Data Center Services to its customers (the “Rules and Regulations”), which may be supplemented by International Patent Co. from time to time, provided, however, that Customer shall not be bound by any changes made by International Patent Co. until International Patent Co. has notified Customer in writing of any changes and Customer has agreed to be bound thereto.
C. Customer’s Costs. CUSTOMER AGREES THAT IT WILL BE SOLELY RESPONSIBLE, AND AT INTERNATIONAL PATENT CO.’S REQUEST WILL REIMBURSE INTERNATIONAL PATENT CO. FOR ALL COST AND EXPENSES (OTHER THAN THOSE INCLUDED AS PART OF THE INTERNET DATA CENTER SERVICES AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN) IT INCURS IN CONNECTION WITH THIS AGREEMENT, SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 3C. INTERNATIONAL PATENT CO. SHALL NOTIFY CUSTOMER WHEN ANY SUCH EXPENSES ARE EXPECTED TO BE INCURRED. INTERNATIONAL PATENT CO. WILL BE SOLELY LIABLE FOR COSTS INCURRED BY INTERNATIONAL PATENT CO. AT INTERNATIONAL PATENT CO.’S INITIATION THAT ARE NOT PRE-APPROVED BY CUSTOMER.
D. Access and Security. CUSTOMER WILL BE FULLY RESPONSIBLE FOR ANY CHARGES, COSTS, EXPENSES, AND THIRD PARTY CLAIMS THAT MAY RESULT FROM ITS USE OF, OR ACCESS TO, THE INTERNET DATA CENTERS AND/OR THE PORTION OF THE INTERNET DATA CENTERS MADE AVAILABLE TO CUSTOMER HEREUNDER FOR THE PLACEMENT OF CUSTOMER EQUIPMENT (the “CUSTOMER AREA”), INCLUDING BUT NOT LIMITED TO ANY UNAUTHORIZED USE OF ANY ACCESS DEVICES PROVIDED TO CUSTOMER BY INTERNATIONAL PATENT CO. HEREUNDER, EXCEPT RESULTING DIRECTLY FROM INTERNATIONAL PATENT CO.’S OR ITS EMPLOYEES’ NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT WITH THE ADVANCED WRITTEN CONSENT OF INTERNATIONAL PATENT CO., CUSTOMER’S ACCESS TO THE INTERNET DATA CENTERS WILL BE LIMITED SOLELY TO THE INDIVIDUALS IDENTIFIED AND AUTHORIZED BY CUSTOMER TO HAVE ACCESS TO THE INTERNET DATA CENTERS AND THE CUSTOMER AREA IN ACCORDANCE WITH THIS AGREEMENT (THE “REPRESENTATIVES”), LISTED ON THE REGISTRATION FORM ATTACHED HERETO AS ATTACHMENT 5, AS AMENDED FROM TIME TO TIME.
E. No Competitive Services. Customer may not at any time permit any Internet Data Center Services to be utilized for the provision of any services that compete with any International Patent Co. services, without International Patent Co.’s prior written consent. International Patent Co. agrees that none of the services currently provided by Customer competes with any International Patent Co. services.
1. Minimum Levels. Each party will keep in force and effect during the term of this Agreement: (i) comprehensive general liability insurance in an amount not less than $[amount] per occurrence for bodily injury and property damage; (ii) employer’s liability insurance in any amount not less than $[amount] per occurrence; and (iii) workers’ compensation insurance in any amount not less than that required by applicable law. Each party also agrees that it and its agents (including contractors and subcontractors) will maintain other insurance at levels no less than those required by applicable law and customary in each party’s and its agents’ industries.
2. Certificates of Insurance. Prior to installation of any of Customer’s computer hardware, peripheral, and other tangible equipment justified in Attachment 4, as amended from time to time, that Customer places in the Customer Area pursuant to this Agreement (“Customer Equipment”) in the Customer Area, or access to the Internet Data Centers, Customer will furnish International Patent Co. with certificates of insurance which evidence the minimum levels of insurance set forth above. All changes in Customer Equipment, including but not limited to installation and removal of Customer Equipment, must be approved by International Patent Co., which shall not be unreasonably withheld or delayed. As between International Patent Co. and Customer, the parties acknowledge and agree that all Customer Equipment is owned by Customer.
3. Naming the other Party as an Additional Insured. Each party agrees that prior to the installation of any Customer Equipment, it will cause its insurance provider(s) to name the other party as an additional insured and notify the other party in writing of the effective date thereof.
4. REPRESENTATIONS AND WARRANTIES
A. Warranties by Customer.
1. Customer Equipment and Customer Materials. Customer represents and warrants that it owns or 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 the Customer Equipment not purchased from International Patent Co. as contemplated by this Agreement, and to use, modify, transmit, and distribute all software, data, and information contained in documentation, and other information and intangibles used by Customer to operate, install, and/or maintain Customer’s Business through the Customer Equipment or provided to International Patent Co. by Customer for such purposes or otherwise pursuant to this Agreement (the “Customer Materials”) without infringing, misappropriating, or otherwise violating any intellectual property rights of any third party. As between International Patent Co. and Customer, the parties acknowledge and agree that all Customer Materials are owned by Customer. Customer further represents and warrants that its placement, arrangement, and use of the Customer Equipment not purchased from International Patent Co. in the Internet Data Centers complies with the Customer Equipment and Customer Materials Manufacturer’s environmental and other specifications.
2. Rules and Regulations. The Rules and Regulations contained in Attachment 1 are incorporated by reference herein.
3. Customer’s Business. Customer is familiar with the laws and regulations applicable to Customer’s services and/or products to be made available via the Internet in connection with this Agreement (the “Customer’s Business”). Customer represents and warrants that Customer’s Business does not as of the Installation Date, and will not during the term of this Agreement, contain or transmit any material that would violate any applicable local state, national, foreign or international law. In the event of any breach, or reasonably anticipated breach, of such warranty, in addition to any other remedies available at law or in equity, International Patent Co. will have the right after notice to Customer with an adequate opportunity to cure based on the specific circumstances, in International Patent Co.’s sole discretion: (i) to terminate or restrict access to any such materials in any manner, and/or (ii) to suspend any related Internet Data Center Services provided International Patent Co. takes the minimal action(s) necessary to address the specific violation.
B. Warranties and Disclaimers by International Patent Co..
1. Service Level Warranty. In the event Customer is unable to transmit and receive information from International Patent Co.’s Internet Data Centers to other portions of the Internet and Customer notifies International Patent Co. immediately of such event and International Patent Co. determines in its reasonable judgment that such inability was caused by International Patent Co.’s failure to provide Internet Data Center Services for reasons within International Patent Co.’s reasonable control and not as a result of any actions or inactions of Customer or any third parties, International Patent Co. will, upon Customer’s request, credit Customer’s account as follows: If International Patent Co. failed to provide the Internet Data Center Services for (i) more than [number] ([#]) consecutive hours in a calendar month, International Patent Co. will credit Customer’s account the pro-rata connectivity charges for [number] ([#]) day of service; and (ii) more than [number] ([#]) consecutive hours in a calendar month, International Patent Co. will credit Customer’s account the pro rata connectivity charges for [number] ([#]) week of service. International Patent Co.’s scheduled maintenance of the Internet Data Centers and Internet Data Center Services, as described in the Rules and Regulations, shall not be deemed to be a failure of International Patent Co. to provide Internet Data Center Services. THIS SECTION 5.B(1) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY INTERNATIONAL PATENT CO. TO PROVIDE INTERNET DATA CENTER SERVICES.
2. Internet Data Center Services. International Patent Co. represents and warrants that it has the legal right and authority, and will continue to maintain the legal right and authority during the term of this Agreement, to provide the Internet Data Center Services to Customer as contemplated by this Agreement, and without infringing, misappropriating, or otherwise violating any intellectual property rights of any third party. International Patent Co. further represents and warrants that its provision of Internet Data Center Services complies with the equipment Manufacturer’s environmental and other specifications.
3. International Patent Co. represents that it exercises no control over the content of the information passing through its Internet Data Centers.
4. International Patent Co. represents and warrants that, with respect to Customer Equipment and Customer Materials sold or otherwise provided to Customer by International Patent Co. and based solely on International Patent Co.’s knowledge and reliance in part on any manufacturer’s and/or licensor’s express representations and warranties regarding such Customer Materials,
(a) Customer owns or has the legal right and authority to place and use the Customer Equipment as contemplated by this Agreement, and to use, modify, transmit, and distribute the Customer Materials without infringing, misappropriating, or otherwise violating any intellectual property rights of any third party; and
(b) The placement, arrangement, and use of the Customer Equipment and Customer Materials in the Internet Data Centers, as permitted by International Patent Co., complies with the Customer Equipment and Customer Materials Manufacturer’s environmental and other specifications.
5. No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN SUBSECTIONS (1), (2), (3) AND (4) ABOVE, ALL SERVICES PERFORMED AND PRODUCTS PROVIDED AND SPACE MADE AVAILABLE BY INTERNATIONAL PATENT CO. HEREUNDER ARE PERFORMED, PROVIDED, AND MADE AVAILABLE ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE INTERNET DATA CENTERS IS AT ITS OWN RISK. INTERNATIONAL PATENT CO. 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, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. International Patent Co. DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
6. Disclaimer of Actions Caused by and/or Under the Control of Third Parties. WHILE INTERNATIONAL PATENT CO.’S INTERNET DATA CENTER SERVICES PROVIDE CUSTOMERS WITH CONNECTIVITY TO THE INTERNET, INTERNATIONAL PATENT CO. DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM INTERNATIONAL PATENT CO.’S INTERNET DATA CENTERS TO 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 CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH INTERNATIONAL PATENT CO.’S CUSTOMERS’ CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH INTERNATIONAL PATENT CO. WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, INTERNATIONAL PATENT CO. CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, INTERNATIONAL PATENT CO. DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5. LIMITATIONS OF LIABILITY
A. Personal Injury. EACH REPRESENTATIVE, AND ANY OTHER PERSONS, VISITING THE INTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND INTERNATIONAL PATENT CO. ASSUMES NO LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN INTERNATIONAL PATENT CO.’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO SUCH PERSONS DURING SUCH A VISIT.
B. Damage to Customer Equipment or Materials.
1. CERTAIN CUSTOMER EQUIPMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER EQUIPMENT LOCATED ON RACKS, MAY BE DIRECTLY ACCESSIBLE BY OTHER CUSTOMERS. International Patent Co. ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN INTERNATIONAL PATENT CO.’S NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE EXTENT INTERNATIONAL PATENT CO. IS LIABLE FOR ANY DAMAGE TO, OR LOSS OF, THE CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY TO THE THEN-CURRENT VALUE OF THE CUSTOMER EQUIPMENT.
2. INTERNATIONAL PATENT CO. ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER MATERIALS RESULTING FROM ANY CAUSE WHATSOEVER, EXCEPT AS A RESULT OF INTERNATIONAL PATENT CO.’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
C. Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6A AND 6B, IN NO EVENT WILL INTERNATIONAL PATENT CO. BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE CUSTOMER EQUIPMENT, THE CUSTOMER MATERIALS, THE CUSTOMER’S BUSINESS, OR OTHERWISE.
D. No Liability for Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL INTERNATIONAL PATENT CO. BE LIABLE FOR ANY LOST ADVERTISING OR OTHER REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR OF ANY CUSTOMER EQUIPMENT OR CUSTOMER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE.
E. Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INTERNATIONAL PATENT CO.’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO INTERNATIONAL PATENT CO. HEREUNDER.
F. Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges that International Patent Co. 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 bask 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.
A. Customer’s Indemnification of International Patent Co..
1. Customer will indemnity and hold International Patent Co., its affiliates, shareholders, officers, directors, employees, agents, representatives, and customers harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees arid fees of experts) arising out of any claim, suit, action or proceeding (each, an “Action”), and Customer will pay any settlement reached or judgment entered thereon against International Patent Co. or such third party, to the extent such Action arises from an allegation that any of the following has occurred or will occur:
(a) with respect to the Customer’s Business, Customer Materials, or Customer Equipment: (A) infringement of any intellectual property rights; (B) misappropriation of any intellectual property rights; (C) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (D) flaming, spamming, or any other offensive, harassing or illegal conduct or violation of the Rules and Regulations; or
(b) any damage or destruction to the Customer Area, the Internet Data Centers or the equipment of International Patent Co. or any other customer by Customer or Representative(s) or Customer’s designees resulting from Customer’s or Customer’s Representative’s or Invitee’s negligence or willful misconduct; or
(c) any other damage arising from the Customer Equipment, Customer Materials, or Customer’s Business, except to the extent such damage is caused by International Patent Co., its employees or other customers.
2. International Patent Co. will give Customer prompt written notice of the existence of any such Action of which International Patent Co. becomes aware, and an opportunity to participate in the defense thereof at Customer’s expense.
B. International Patent Co.’s Indemnification of Customer.
1. International Patent Co. will indemnify and hold Customer, its affiliates, shareholders, officers, directors, employees, agents, and Representatives harmless from and against any and all reasonable costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of (i) the infringement of any third party registered U.S. copyright or issued U.S. patent resulting from the provision of Internet Data Center Services pursuant to this Agreement and (ii) personal injury to Customer’s Representatives from International Patent Co.’s negligence or willful misconduct.
2. Customer will give International Patent Co. prompt written notice upon of the existence of any such event of which it becomes aware, and an opportunity to participate in the defense thereof at International Patent Co.’s expense.
7. TERM AND TERMINATION
A. Term. This Agreement will be effective for a period of [number] ([#]) year from the Installation Date, unless earlier terminated according to the provisions of this Section. The Agreement will automatically renew for additional terms of [number] ([#]) year each.
1. For Convenience. Either party may terminate this Agreement for convenience at any time effective after the first (1st) anniversary of the Installation Date by providing [number] ([#]) days’ prior written notice to the other party.
2. For Cause. Either party will have the right to terminate this Agreement if: (i) the other party materially breaches any term or condition of this Agreement, including but not limited to the payment of fees, and fails to cure such breach within [number] ([#]) days after written notice of the same; (ii) the other party 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; or (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 [number] ([#]) days of filing.
C. No Liability for Termination. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms.
D. Effect of Termination. Upon the effective date of expiration or termination of this Agreement:
1. International Patent Co. will immediately cease providing the Internet Data Center Services;
2. any and all payment obligations of Customer which have accrued as of such expiration or termination will become due immediately;
3. within [number] ([##]) days after such expiration or termination, each party will return all Confidential Information of the other party in its possession at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal, accounting, or administrative record keeping requirement; and
4. Customer will remove from the Internet Data Centers all Customer Equipment, Customer Materials, and any of its other property within the Internet Data Centers within [number] ([#]) business days of such expiration or termination and return the Customer Area to International Patent Co. in the same condition as it was on the Installation Date, normal wear and tear excepted. If Customer does not remove such property within such [number]-day period, International Patent Co. will have the option to (i) move any and all such property to secure storage and charge Customer for the cost of such removal and storage, and/or (ii) after a final notice to Customer, liquidate the property in any reasonable manner.
5. Notwithstanding the foregoing, Customer shall be entitled to retain control over the route of all IP addresses used by Customer during the preceding [number] ([#]) days for [number] ([#]) days following the termination of this Agreement.
E. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 2, 3, 4, 6, 6, 7, 8, and 9.
8. CONFIDENTIAL INFORMATION
A. Confidential Information. Each party acknowledges that it will have access to certain confidential information and materials of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software and customer information. 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 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.
B. Exceptions. 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.
C. Remedies. Notwithstanding anything to the contrary in this Agreement, in the event of any intentional breach of this Section 9, the non-breaching party will be entitled to any remedies available at law and/or in equity.
9. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
10. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State] including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
12. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
IN WITNESS WHEREOF each of the parties hereto has caused this Agreement to be duly executed by their authorized representatives and delivered in duplicate as of the date first written above.
[Name of International Patent Co.] [Name of Customer]
1. Rules and Regulations
Each International Patent Co. Customer and its Representatives, employees, contractors, customers, agents and users of Customer’s online facilities are subject to these Rules and Regulations in connection with their use of International Patent Co.’s Internet Data Center Services.
2. Access to Internet Data Centers
A. Only those individuals identified by Customer as its Representatives may access the Internet Data Centers. Customer may not allow any unauthorized persons to access the Internet Data Centers.
B. Customer will notify International Patent Co. in writing of any change in Customer’s Representatives.
C. Customer agrees to adhere at all times to security measures that have been established by International Patent Co. to protect the Internet Data Centers, its equipment and its Customers’ equipment.
3. Use of Internet Data Center Facilities
A. Customer must keep the Customer Area clean at all times. Customer may not store any paper products or materials of any kind in the Customer Area (other than equipment manuals).
B. Customer may not bring, or make use of, any of the following into the Facility:
1. Food or drink.
2. Alcohol or other intoxicants.
3. Tobacco products.
4. Electro-magnetic devices.
6. Radioactive materials.
8. Photographic or recording equipment of any kind (other than tape back-up equipment).
10. Illegal drugs
4. Equipment and Connections
A. All Customer Equipment must be clearly labeled with Customer’s name (or code name provided to International Patent Co.) and individual component identification.
B. Customers may not connect or disconnect any Customer Equipment or other equipment except as specifically pre-approved by an authorized employee of International Patent Co., at least [##] hours in advance of proposed installation, except as otherwise approved by International Patent Co..
C. All connections to and from Customer Equipment must be clearly labeled.
D. Customer Equipment must be configured and run at all times in compliance with the manufacturer’s specifications, including clearance requirements.
E. International Patent Co. makes available at its Data Centers certain equipment for the temporary use by Customers at the Internet Data Centers. This equipment is provided on an “AS IS” basis without any warranties of any kind. Customer may borrow and/or use any International Patent Co. property or equipment, at its own risk, after receiving permission from International Patent Co..
5. Scheduled Maintenance
Periodically, International Patent Co. will conduct routine scheduled maintenance of its Internet Data Centers and Internet Data Center Services pursuant to a schedule posted on International Patent Co.’s World Wide Web site (http://www.ingleside.net/ingle maintenance frame.html). During such time, Customer’s Equipment may be unable to transmit and receive data and Customer may be unable to access its Equipment. Customer agrees to cooperate with International Patent Co. during the scheduled maintenance so that International Patent Co. may keep such period or time to a minimum.
Customer and its Representatives may not:
A. Misuse or abuse any International Patent Co. property or equipment;
B. Make any unauthorized use or interfere with any property or equipment of any other International Patent Co. customer;
C. Harass any individual, including International Patent Co. personnel and representatives of other customers of International Patent Co.; or
D. Engage in any activity that is in violation of the law, or aid in criminal activity while on International Patent Co. property or in connection with the Internet Data Center Services.
7. Online Conduct
Customer will not, and will not permit any persons using Customer’s online facilities (including but not limited to Customer’s Web site(s) and transmission capabilities), to do any of the following:
A. Send Spam (unsolicited commercial messages or communications in any form).
B. Infringe or misappropriate the intellectual property rights of others. This includes posting copyrighted materials without appropriate permission, using trademarks of others without appropriate permission or attribution, and posting or distributing trade secret information of others in violation of a duty of confidentiality.
C. Violate the personal privacy rights of others. This includes using and distributing information about Internet users without their permission, except as permitted by applicable law.
D. Send, post or host harassing, abusive, libelous or obscene materials or take any similar actions.
E. Intentionally omit, delete, forge or misrepresent transmission information, including headers, return addressing information and IP addressees or take any other actions intended to cloak Customer’s or its users’ identity or contact information.
F. Use the online facilities for any illegal purposes.
G. Assist or permit any persons in engaging in any of the activities described above.
If Customer becomes aware of any such activities, Customer will take all actions necessary to stop such activities immediately, including, if necessary, terminating Customer’s user’s access to Customer’s online facilities.
8. Modification of Rules and Regulations
International Patent Co. reserves the right to change these Rules and Regulations at any time. Customer is responsible for regularly reviewing these Rules and Regulations. Continued use of the Internet Data Center Services following any such changes shall constitute the Customer’s acceptance of such changes.