SERVICES AGREEMENT between Utility Media, Inc. (“we” or “Utility Media”) and the customer who signs our Service Order (“you” or “Customer”).
1. HOW THIS AGREEMENT WORKS
You will be asked to sign a Service Order that describes the services you have chosen and the related fees. The Service Order will incorporate this Master Services Agreement, a Service Level Agreement, and an Acceptable Use Policy. It may also incorporate an addendum to this Master Services Agreement if you are purchasing services for which we have special legal terms. When we use the term “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the Service Order we prepare.
2. SOME DEFINED TERMS
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Utility Media Acceptable Use Policy posted at http://www.Utility Media.com/aboutus/legal/aup.php as of the date you sign the Service Order.
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States central time, excluding federal public holidays in the United States.
“Confidential Information” means all information disclosed by one of us 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 you, all information transmitted to or from, or stored on, your Utility Media servers or other devices, (ii) for Utility Media, unpublished prices and other terms of service, audit and security reports, data center designs (including non-graphic information you may observe on a tour of a data center), and other proprietary technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“IT Hosting Service” means the information technology hosting services described in a Service Order and Service Level Agreement, plus Support.
“Personally Identifiable Information” or “PII” means: (i) any information that identifies an individual, such as name, social security number or other government issued number, date of birth, address, telephone number, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
“Service” or “Services” means the IT Hosting Service and any Supplemental Services we may provide to you, collectively.
“Service Commencement Date” means the date on which we provide the access codes that enable you to send and receive information to use the IT Hosting Service.
“Service Level Agreement” means the Service Level Agreement incorporated by reference in your Service Order.
“Supplemental Service” means any service we provide to you other than the IT Hosting Service.
“Support” means (i) management of the IT Hosting Service by a service delivery team employed by Utility Media or via a third party company.
3. OUR OBLIGATIONS
Contingent on your satisfaction of Utility Media’s credit approval criteria, Utility Media will provide the IT Hosting Service to the standards stated in the Service Level Agreement for the term of the Agreement.
4. YOUR OBLIGATIONS
You must use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to or from, or stored on, the Utility Media servers or storage devices you use. You must comply with the laws applicable to your use of the Services and with Utility Media’s Acceptable Use Policy. You must cooperate with Utility Media’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You must provide Utility Media with accurate information to help Utility Media determine if any tax is due with respect to the provision of the Services. You are responsible for keeping your billing and other account information up to date. You must pay when due the fees for the Services stated in the Service Order(s) or other agreement between us.
5. PROMISES WE DO NOT MAKE
5.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property.
5.2 We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. Unless otherwise agreed, all Supplemental Services are performed on an “AS IS, AS AVAILABLE” basis.
5.3 We do not promise to back up your data unless you have purchased back up services. We do not promise to retain the data back up for longer than the agreed data retention period.
6. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES
Utility Media is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Utility Media’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
The initial term begins on the Service Commencement Date and continues for the period stated in the Service Order. Upon expiration of the initial term, we may offer you the option of renewing the Agreement for one or more additional terms having a fixed number of months. If you do not renew the Agreement for a fixed term, it will automatically renew for successive extended terms of one month each unless and until one of us provides the other with thirty (30) days advance written notice of non-renewal.
8.1 Your first invoice will include the initial one time set up fee and a prorated part of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. We may require you to pay this initial invoice before beginning the IT Hosting Service. Following the Service Commencement Date, monthly recurring fees will be billed quarterly in advance on or around the first day of corresponding calendar month. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears. Fees for any Supplemental Services will be billed in the amounts and at such times as we agreed with you in writing.
8.2 Fees are due on receipt of invoices. Utility Media may suspend all Services (including Services provided pursuant to any unrelated Service Order or other agreement we may have with you) if payment of any invoiced amount is overdue, and you do not pay the overdue amount within four Business Days of our written notice to your billing contact. You agree that if your Service is reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. Utility Media may charge interest on overdue amounts at 5% per month (or the maximum legal rate if it is less than 5%). If any amount is overdue by more than thirty days and Utility Media brings a legal action to collect, you must also pay Utility Media’s reasonable costs of collection, including attorney fees and court costs. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law.
8.3 Following expiration of the initial term, we may increase the fees for the IT Hosting Service on thirty days advance written notice unless you have agreed to a fixed renewal term.
8.4 If Utility Media is required by law to pay taxes on the provision of the Service, you must pay Utility Media the amount of the tax that is due or provide Utility Media with satisfactory evidence of your exemption from the tax. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.
9. EXPORT MATTERS
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Utility Media is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
10. CHANGES TO THE ACCEPTABLE USE POLICY
We may change our Acceptable Use Policy to add restrictions on your use of the Services provided that any new restrictions are reasonable and consistent with hosting industry norms. Any changes to the AUP made during the term of your Agreement will become effective as to you upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Service Order for your configuration that incorporates the revised AUP by reference, or (iii) thirty days following our notice to you describing the change. If a change to the AUP materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty days following the date the change became effective as to you. We will not charge you an early termination fee for a termination on such grounds. If you terminate your Service because we have modified our AUP in a way that adversely affects you, we may decide to waive that change as to you and keep your Agreement in place for the remainder of the term.
11. SUSPENSION OF SERVICES
You agree that we may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Utility Media network or our other customers, or (iv) required by law. We will give you advance notice of a suspension under this paragraph of at least twelve Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Utility Media or its other customers from imminent and significant operational or security risk.
12. TERMINATION FOR BREACH
12.1 You may terminate the Agreement for breach if: (i) we materially fail to provide the IT Hosting Service as agreed and do not remedy that failure within ten days of your written notice describing the failure.
12.2 We may terminate the Agreement for breach if: (i) we discover that the information you provided to us for the purpose of establishing the Services is materially inaccurate or incomplete, (ii) the individual signing the Agreement did not have legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within four Business Days of our written notice, or (iv) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty days of our notice to you describing the failure. We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation.
13. TERMINATION FOR CONVENIENCE
You may terminate the Agreement for convenience at any time on thirty days advance written notice.
14. EARLY TERMINATION FEE
If you terminate the Agreement for convenience or we terminate the Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term.
15. CONFIDENTIAL INFORMATION
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement,
(ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
You agree that we may publicly disclose that we are providing services to you and may include your name in promotional materials including press releases and on the Utility Media Web site. Neither of us may publicly use the other party’s logo or other trade or service mark without permission.
17. LIMITATION ON DAMAGES
17.1 We are not liable to you for failing to provide the IT Hosting Service unless such failure results from a breach of the deployment guaranty stated in the Service Order Form, a breach of the Service Level Agreement, or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. The dollar credits stated in the Service Order Form and Service Level Agreement are your sole and exclusive remedy for our failure to meet those guaranties for which dollar credits are provided unless such failure is due to Utility Media’s willful misconduct..
17.2 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
17.3 We are not liable to you for lost data unless and to the extent you purchase data back up services from Utility Media and we fail to provide the back up services as agreed. You release Utility Media from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a back up.
17.4 Notwithstanding anything in the Agreement to the contrary, except for claims based on our willful misconduct, the maximum aggregate monetary liability of Utility Media and any of its employees, agent, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed six times the monthly recurring fee payable under the Service Order(s) in effect for the configuration at the time of the occurrence of the event(s) giving rise to the claim.
18.1If you, your affiliates, or any of your or their respective employees, agents, or suppliers, is faced with: (i) a legal claim by a third party arising out of Utility Media’s actual or alleged gross negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the Agreement, or (ii) a legal claim by a third party alleging that the IT Hosting Service infringes on the United States patent or copyright of a third person, then, subject to the limitations stated in Section 17 above, Utility Media will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on you as a result of the claim.
18.2 If we, our affiliates, or any of our or their respective employees, agents, or suppliers is faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or ends users, violation of Section 9 (Export Matters) of this Master Services Agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on Utility Media as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.
18.3 You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
18.4 If either of us receives notice of a claim that is covered by this Section, the notice must be promptly forwarded to the financially responsible party. The party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible party. The party against whom the claim is made may not settle the claim without the consent of the financially responsible party, although such consent may not be unreasonably withheld. Notwithstanding anything to the contrary in this Section, if we are financially responsible under this Section for claims against multiple customers, we may elect to choose counsel to defend the claims and control the defense of the claims. Amounts due under this Section must be paid by the financially responsible party as they are incurred by the party against whom the claim is made.
You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to us. In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft’s license terms.
20. OTHER PEOPLE’S PRODUCTS AND SERVICES
We may from time to time arrange for you to purchase or license third party software, services or other products that are not included as part of the IT Hosting Service, either as part of an Integrated Solution Partner Program or other Supplemental Service. Utility Media MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND Utility Media, SUCH SERVICES ARE PROVIDED “AS IS.” Your use of any third party software, services, and other products is governed by the terms of your agreement with the third party.
21. WHO MAY USE THE SERVICE
You may resell the IT Hosting Service and you may permit your subsidiaries and affiliated companies to use the Services if you wish, but you are responsible for use of the Service by any third party to the same extent as if you were using the Service yourself. Utility Media will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
Your routine communications regarding the Services should be sent to your Utility Media account team using the email address: firstname.lastname@example.org. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class United States mail to:
Utility Media, Inc.
2307 W. Beebe Capps #251
Searcy, AR 72143
Utility Media’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
23. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by Utility Media during the performance of the Services shall belong to Utility Media unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
24. OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the servers or other hardware we provide for your use, and you have no right of physical access to the hardware. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your Utility Media servers or other devices. On termination of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name) and agree that we may take steps to change or remove any such IP addresses.
25. INTELLECTUAL PROPERTY INFRINGEMENT
If Utility Media or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and Utility Media is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Utility Media may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
You may not assign the Agreement without Utility Media’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business.
27. FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
28. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the State of Wyoming, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Wyoming, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Utility Media or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
29. SOME AGREEMENT MECHANICS
If you sign multiple Service Orders for a single configuration – for example, to add a server or additional services, then the Master Services Agreement, Service Level Agreement, and Acceptable Use Policy referenced in the last signed Service Order will govern the entire configuration.
Except for amendment to the AUP as described in Section 10 above, the Master Services Agreement, Acceptable Use Policy and Service Level Agreement may be amended only by a formal written agreement signed by both parties.
A Service Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies services in connection with a configuration established by a Service Order shall be deemed to be an amendment to that Service Order, notwithstanding the fact that the correspondence does not expressly refer to the Service Order.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Service Order, the Service Level Agreement, any addendum to the Master Services Agreement, the Master Services Agreement, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 8, 14, 15, 16, 17, 18, and 28, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
The Agreement is the complete and exclusive agreement between you and Utility Media regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.