THIS MASTER SERVICES AGREEMENT ("Agreement") is made effective as of the Effective Date, by and between you ("Customer"), and ESITED LLC and/or its Affiliates ("Host").
WHEREAS, Host is engaged in the business of providing website hosting and other online delivery, maintenance, and support services. WHEREAS, Customer desires to obtain hosting for its website(s) and other online materials, and to provide visitors to such website(s) with reliable access to the materials contained therein.
WHEREAS, Customer desires to engage Host for the purpose of providing certain of the foregoing hosting services.
WHEREAS, Customer and Host desire to enter into this Agreement to set forth the general terms and conditions under which Host will provide Customer with services and Customer will purchase services from Host.
NOW, THEREFORE, in consideration of the mutual conditions and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
Term and Termination
Responsibilities of the Parties
Disclaimer of Warranties
Limitation of Liability
Intellectual Property Rights
IP Address Ownership
As used in this Agreement, the following terms have the following meanings:
1.1. "Acceptable Use Policy" or "AUP" means Host's Acceptable Use Policy, which Customer agrees to adhere to, and is attached to this Agreement as Exhibit B and also online at http://www.vpls.net/aup/.
1.2. "Affiliates" means any business entity in which ESITED LLC has an ownership interest or an affiliation. As of the Effective Date, Affiliates include ESITED LLC, and ESITED LLC Technologies LLC.
1.3. "Confidential Information" means all information disclosed by one of the parties to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Customer, all information transmitted to or from, or stored on, your Host servers or other devices, (ii) for Host, unpublished prices and other terms of service, audit and security reports, data center designs, and other proprietary technology, and (iii) for the both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of the parties on its own, without reference to the other's Confidential Information, or that becomes available to one of us other than through a violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
1.4. "Customer Content" means all data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials supplied by Customer to Host pursuant to this Agreement, as such materials may be modified from time to time.
1.5. "Domain Name" means, collectively, the domain name or names specified for the Website by Customer from time to time, which are listed in the Service Orders.
1.6. "Effective Date" means the date on which the Customer accepts the Agreement by clicking or checking the box presented with the Agreement, installing and/or using the Services.
1.7. "Host Facility" means Host's Internet-based data center and network.
1.8. "Services" means the website hosting and other online delivery, maintenance, and support services provided by Host to Customer hereunder, as described in Section 4.1 below.
1.10. "Service Order" shall mean orders for Services on Host's standard service order forms, quotes, invoices, and/or professional services engagement agreements. Each Service Order will contain specific provisions with respect to prices, features, description of service, duration and other terms as appropriate.
1.11. "SLA" means the service level agreement attached hereto as Exhibit A.
1.12. "Term" has the meaning ascribed to it in Section 3.1, below.
1.13. "Website" means, collectively, all websites and content hosted by Host for Customer in the configuration and according to the terms contained in the Agreement and Service Orders.
2. Master Agreement
3. Term and Termination
3.1. TERM. The term of this Agreement shall begin on the Effective Date and shall continue until the expiration of the last Service Order issued and accepted hereunder. Thereafter, this Agreement and the Service Order shall automatically renew on a month-to-month basis until Customer notifies Host in writing of its desire not to renew this Agreement at least 30 days prior to the expiration of the then-current term. The initial term and any and all renewal terms are referred to herein as the "Term."
3.2. DEFAULT. If either party is in breach of this Agreement or any Service Order (other than for failure by Customer to pay any undisputed amounts, which is covered in Section 6.7), the non-breaching party shall give the breaching party thirty (30) calendar days' notice in writing of such breach. If the breach has not been cured to the non-breaching party's reasonable satisfaction without the thirty (30) day period, then the non-breaching party may terminate the applicable Service Order, without penalty, effective at the end of such thirty (30) day period immediately upon written notice to the breaching party. No termination for breach pursuant to this Section shall constitute or permit termination of any portions of this Agreement or any Service Order not breached or affected by such breach.
3.3. EARLY TERMINATION. If Customer terminates or cancels service under any Service Order for reason other than Host's breach prior to such Service Order's agreed expiration date, Customer will pay Host (a) a termination fee that includes all non-recurring, disconnection or termination charges reasonably incurred by Host; and (b) the full amount of the remaining monthly charges due and payable within five (5) days after the effective date of termination of the Service Order.
3.4. NO RETURN OF DATA. Upon the termination of this Agreement, Host will remove and erase the Customer Content. It is NOT Host's duty, responsibility, or contractual obligation to return the Customer Content to Customer before it is removed and erased from Host's equipment. It is Customer's sole responsibility to obtain copies of the Customer Content before such termination.