Master Services Agreement
WHEREAS, eighty8networks provides comprehensive, best practice IT services to premier firms in diverse verticals (“Services”);
WHEREAS, Client desires from time to time to retain eighty8networks to perform Services as more fully set forth herein; and
WHEREAS, the Parties desire to set forth herein the terms and conditions pursuant to which Client will retain eighty8networks to perform such Services.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows.
SECTION 1 – ENGAGEMENT
1.1 Statements of Work. This Agreement governs the terms and conditions of eighty8networks’ provision to Client (or any wholly owned subsidiary of Client (“Client Subsidiary”)) of all hardware and third-party software (“Products”) and Services. The particulars of such Products and Services will be described in one or more Statements of Work (each, an “SOW”) executed by the Parties hereunder, each of which shall (a) reference this Agreement, (b) describe the specific Services and/or Products to be provided along with the applicable fees and related schedules, and (c) be duly executed by each of eighty8networks and If Client desires for eighty8networks to provide Services to a Client Subsidiary, such Client Subsidiary shall execute a separate SOW for such Services. Client shall be responsible for all payments for Services under any such SOW, and acknowledges, on behalf of itself and each applicable Client Subsidiary, that each such SOW shall be governed by the terms of this Agreement. eighty8networks may from time to time issue a quote for Products and Services, but no such quote will be binding unless incorporated in an SOW executed by both Parties. All SOWs shall constitute a part of this Agreement until terminated in accordance with their respective terms. Once executed, an SOW may only be amended upon the written agreement of eighty8networks and Client.
1.2 SOW Specifications. In addition to any other terms contained therein, each SOW shall, if possible, identify: (i) the eighty8networks division or Affiliate providing the initial Services; (ii) the eighty8networks division or Affiliate providing the Products and/or Equipment, if any; and (iii) if different from (i) above, the eighty8networks division or Affiliate providing continuing “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party. The term “control” means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.3 Services Reviews. The Parties shall meet on a semiannual basis, at mutually agreed-upon times and places (including electronically or by telephone), to review overall strategy, product roadmap and other elements of the Services provided In the event that Client desires to conduct additional such meetings during any calendar year, eighty8networks shall make itself available on a commercially reasonable basis, and such additional meetings will be billed to Client as strategic services at a rate of $338.00/hour.
SECTION 2 – FEES AND EXPENSES
2.1 Fees and Expenses. In consideration of the Services to be performed by eighty8networks, and subject to the terms of this Agreement, Client shall pay eighty8networks for the Services and reimburse eighty8networks for all Products purchased on Client’s behalf in accordance with the rates set forth in each SOW. Unless otherwise set forth in an SOW, Client shall also reimburse eighty8networks for reasonable out-of-pocket expenses (including, without limitation, parking fees if and as applicable) that are necessarily incurred in the performance of Services for Client and supported by Client will be responsible only for actual out-of-pocket expenses reasonably incurred and will not be responsible for any mark-up or administrative fees. Client agrees to pay any applicable value-added, sales, use and other taxes (other than taxes based on eighty8networks’s net income) related to the Services or payments made by Client hereunder. Client agrees to pay a travel charge of $75.00 per hour for travel by any eighty8networks representative to Client, with a minimum charge of one hour and all travel time above such initial hour billed in 15-minute increments; provided, however, that such travel charge shall not apply for regularly schedule onsite visits made pursuant to Client’s 360 Support Services retainer, if Client has contracted for regular onsite support.
2.2 Invoicing. eighty8networks shall invoice Client on a monthly basis unless a different payment schedule is otherwise stated in the applicable All invoices shall be paid within fifteen (15) days of receipt by Client. All payments made hereunder shall be by ACH or wire transfer of immediately available funds. Client shall have up to thirty (30) days following receipt of an invoice to dispute such invoice, provided that Client’s invoice dispute shall not excuse Client from paying the invoice according to the payment terms set forth in this Section 2.2 or a SOW, as applicable. In the event of an invoice dispute that has been resolved in favor of Client and agreed to by eighty8networks and Client, eighty8networks will issue a credit. For disputes resolved in Client’s favor before the payment due date, the credit will be applied to the invoice in question. For disputes resolved in Client’s favor after the payment due date, the credit will be applied to the next invoice. In the event that Client is late in paying any outstanding invoice, eighty8networks may charge interest on the overdue balance at a rate of one and a half (1.5%) percent per month or fraction thereof or the highest rate permitted by applicable state law, whichever is lower. If an invoice is more than forty-five (45) days overdue, eighty8networks may, five (5) days after providing written notice to Client, suspend all or any portion of the Services or repossess unpaid-for-Products until Client has cured such default. If payments are late three (3) or more times in any six-month period, Client shall, upon receipt of a written request from eighty8networks, make a pre- payment equal to two-months’ worth of the monthly fees due hereunder (plus payment of any fees due for Equipment (as hereinafter defined)), and if such prepayment and/or Equipment fee is not rendered promptly, eighty8networks may suspend all or any portion of the Services three (3) days after delivering written notice thereof. Moreover, if Client fails to timely make any payment due under this Agreement or any SOW after eighty8networks has suspended service pursuant to this Section 2.2, eighty8networks may suspend all or any portion of the Services three (3) days after delivering written notice thereof. In addition to the penalties and remedies set forth in this Section 2.2, a late fee of $188.00 will be added to each overdue invoice.
2.3 Equipment. If Client authorizes eighty8networks to purchase equipment (“Equipment”) on its behalf, eighty8networks will submit an equipment estimate (an “Estimate”) to If Client approves the Estimate, eighty8networks will invoice Client and payment will be due within fifteen (15) days following days of receipt by Client. A late fee of two (2%) percent or $188.00, whichever is larger, will be added to any Equipment invoice not timely paid. Any single order for Equipment in an amount greater than fifteen-thousand dollars ($15,000.00) shall require Client to remit payment before such Equipment will be delivered. A flat fee of $375.00 will be charged per machine build for devices purchased through eighty8networks. eighty8networks will store laptops with respect to which Client wishes to defer delivery at eighty8networks’ then-current rates, which will vary depending on the number of laptops and duration of storage period. eighty8networks may, in its sole discretion, agree to store other Equipment depending on current capacity and other factors. Storage of Equipment will not change Client’s payment obligations as set forth above. Furthermore, Client acknowledges and agrees that it assumes ownership of all stored Equipment throughout any such time as such Equipment is in eighty8networks’ possession. Equipment returns may be made in accordance with the policy referenced on the applicable invoice for such Equipment.
SECTION 3 – INTELLECTUAL PROPERTY
3.1 Ownership. Subject to any licenses expressly granted in this Agreement or any SOW, eighty8networks retains all right, title, and interest in and to all intellectual property developed by it that is used in performing the Services, as well as any and all derivatives, improvements or extensions thereof, and including all methodologies, formulas and trade secrets , whether or not protectable under patent, copyright or other law (collectively, “eighty8networks IP”), and all such eighty8networks IP shall be deemed to be Confidential Information (as hereinafter defined) of eighty8networks hereunder. Notwithstanding the foregoing, Client shall own all copies of documentation and reports related to the Services delivered by eighty8networks and may make copies for its own internal business purposes.
3.2 License. To the extent that the use of eighty8networks IP is required by Client to derive the intended benefit of the Services, eighty8networks hereby grants to Client, subject to Client’s payment obligations, a royalty-free, worldwide, non- exclusive, right to use the eighty8networks IP solely for such purpose during the term of this Agreement. Except as expressly set forth herein, eighty8networks shall retain all right, title and interest in and to all elements of the eighty8networks IP, and any and all derivatives, improvements or extensions thereof, as well as all methodologies, formulas and trade secrets used by eighty8networks in performing the Services hereunder.
3.3 Feedback. Client may, from time to time, provide suggestions, techniques, know-how, comments or other feedback to eighty8networks with respect to the Services provided hereunder (collectively, “Suggestions”). Each Suggestion is and shall be given entirely voluntarily. eighty8networks shall be free to use, disclose, reproduce, license or otherwise distribute and exploit each Suggestion as it sees fit, entirely without obligation or restriction of any kind.
SECTION 4 – CONFIDENTIALITY
4.1 Protection of Confidential Information. Each Party agrees that, with respect to any Confidential Information that is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, the Receiving Party shall not disclose such Confidential Information to any third party, or use it for any purpose except in connection with its rights and obligations under this Agreement. The Receiving Party shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Disclosing Party’s Confidential Information by exercising the same level of care, but no less than a reasonable degree of care, that a Party uses to protect its own Confidential Information of a similar nature. Each Party shall permit access to Confidential Information of the other Party only to those of its directors, officers, employees, contractors, consultants, agents, third-party service providers or other authorized representatives (collectively, “Representatives”) who have a bona fide need to know such Confidential Information for purposes of this Agreement and who are subject to obligations of confidentiality and non-use at least as restrictive as those contained herein. Each Receiving Party shall be responsible for the compliance of its Representatives with the obligations of confidentiality and non-use set forth herein and shall be liable for any breach thereof.
4.2 “Confidential Information” means all information concerning a Party or any of its subsidiaries or Affiliates that is not generally known to the public and that is marked confidential or proprietary or that a reasonable person should consider to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” shall include, but not be limited to, a Party’s technology, business plans, techniques, methodologies, pricing, marketing and sales’ strategies, client information and other non-public materials and information regarding such Party’s business operations and the technology and know-how related to the Services, as well as the terms of this Agreement (but not the fact of the Agreement’s existence). Notwithstanding the foregoing, “Confidential Information” does not include information that: (i) is, as of the time of disclosure by a Party, or thereafter becomes, part of the public domain through a source other than the Receiving Party ; (ii) was lawfully in the possession of the Receiving Party at the time of disclosure, as evidenced by its written records; (iii) is independently developed by the Receiving Party without reference to or reliance upon any Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed. In the event the Receiving Party is required by law or legal process to disclose any Confidential Information, the Receiving Party shall, to the extent permitted by law, provide prompt notice of such to the Disclosing Party so that legal protection for the Confidential Information may be sought. In the event that a protective order or other remedy is not obtained, each Party will furnish only that portion of the Confidential Information that is legally required. Upon termination of this Agreement, each Party will promptly either return or destroy all tangible Confidential Information as requested by the other Party, retaining only such information as is necessary for recordkeeping in the ordinary course of business.
SECTION 5 – WARRANTIES; LIMITATION OF LIABILITY
5.1 Warranties. eighty8networks warrants that: (a) the Services will be performed by qualified personnel with reasonable care and in a diligent and professional manner consistent with generally accepted industry standards for such Services; (b) the Services and Products provided under each SOW will conform in all material respects to the applicable specifications and to the descriptions contained therein; and (c) the Services will be performed in material compliance with all applicable federal, state and local laws, statutes, regulations and ordinances, including, but not limited to, the Standards for the Protection of Personal Information of Residents of the Commonwealth, 210 CMR 17.00 et al.
5.2 Remedy. eighty8networks’ sole obligation, and Client’s exclusive remedy, for any material breach by eighty8networks of any warranties or other obligations contained in this Agreement or any SOW shall be that eighty8networks will use reasonable commercial efforts to promptly cure such breach or, if eighty8networks is unable to effect such cure, Client may terminate this Agreement or the applicable SOW in accordance with Section 7 and eighty8networks will grant Client a refund of any fees paid hereunder for the affected portion(s) of the Services and/or Products.
5.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES, PRODUCTS AND EQUIPMENT ARE PROVIDED AND ACCEPTED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO CONDITION, DESIGN, PERFORMANCE, ACCURACY, COMPLETENESS OR OPERATION, AND EIGHTY8NETWORKS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. NO WRITTEN OR ORAL REPRESENTATION MADE BY EIGHTY8NETWORKS PERSONNEL OR OTHERWISE WHICH IS NOT CONTAINED IN THIS AGREEMENT WILL BE DEEMED TO BE A WARRANTY BY EIGHTY8NETWORKS OR GIVE RISE TO ANY LIABILITY OF EIGHTY8NETWORKS WHATSOEVER. DEPLOYMENT OF EIGHTY8NETWORKS SERVICES IN CLIENT’S ENVIRONMENT DOES NOT ACHIEVE THE IMPOSSIBLE GOAL OF RISK ELIMINATION, AND EIGHTY8NETWORKS MAKES NO GUARANTEE THAT INTRUSIONS, COMPROMISES OR ANY OTHER UNAUTHORIZED ACTIVITY WILLNOT OCCUR.
5.4 Third-Party Warranties. eighty8networks expressly disclaims any and all warranties applicable to Products or Equipment purchased from third parties on behalf of Client.
5.5 Limitation of Liability.
- NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ACTUAL OR ANTICIPATED REVENUE OR PROFITS, COSTS TO PROCURE REPLACEMENT GOODS OR SERVICES, LOSS, DAMAGE TO OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, LOSS OF USE OF SERVICE OR EQUIPMENT, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY INCLUDING BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Except for its indemnification obligations set forth in Section 6 below and subject to Section 2,
eighty8networks maximum liability, and Client’s sole and exclusive remedy, for any and all claims arising under or in connection with this Agreement, regardless of the form of the action, whether in breach of warranty, contract, tort, strict liability or otherwise, will not exceed the aggregate fees actually paid to eighty8networks under the specific Statement of Work giving rise to such claim.
- Notwithstanding anything to the contrary set forth in this Section 5, in no event will eighty8networks have any liability under this Section 5 or otherwise for any loss suffered by Client as a result of Client’s failure to heed, in a prudent and timely manner, any written recommendation by eighty8networks to Client regarding the necessity of upgrading service or replacing or making improvements to Client’s existing infrastructure if eighty8networks reasonably believes, based on supporting evidence, that such loss would not have occurred but for Client’s failure to heed such recommendation.
5.6 Basis of the Bargain; Failure of Essential Purpose. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement represent the Parties’ agreement as to the allocation of risk between the Parties in connection with eighty8networks’ obligations under this Agreement, and that such limitations, exclusions and disclaimers will survive and apply even if found to have failed of their essential purpose. The Parties acknowledge that eighty8networks 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 in this Agreement, and that the same form an essential basis of the bargain between the Parties.
SECTION 6 – INDEMNIFICATION
6.1 Indemnification by eighty8networks. eighty8networks shall defend, indemnify and hold Client and each of its officers, directors, employees, shareholders, agents, and permitted successors and assigns harmless from and against any and all claims (“Claims”) that the Services infringe a third party’s copyright, patent or trade secret or other intellectual property right. If any of the Services are, in eighty8networks’ reasonable opinion, likely to, or do, become the subject of any Claim, eighty8networks may, at its sole option and expense, (i) procure for Client the right to continue using such Services, (ii) replace such Services with a substantially equivalent, non-infringing substitute or suitably modify such items so that they are non- infringing or (iii) terminate this Agreement (or applicable SOW) in accordance with Section 7. Notwithstanding the foregoing, eighty8networksassumes no liability for Claims to the extent arising from (a) the combination of any of the Services with software, hardware or other third-party products not provided or authorized by eighty8networks, if such Claim would not exist in the absence of such combination or (b) a Claim against Client arising from Client’s breach of this Agreement or any SOW.
If eighty8networks is given access to Client’s premises to perform the Services, eighty8networks will perform work only in the area(s)specified by an authorized representative of Client. eighty8networks agrees to indemnify Client from and against any damages, costs and expenses (including attorneys’ fees and expenses) (“Loss”) incurred by Client in connection with property and casualty damages caused directly by eighty8networks or its employees, subcontractors, agents or representatives while on Client’s premises; provided that such indemnification shall be owed only to the extent that the Loss does not result from the negligence, intentional actions or willful misconduct by Client or any of Client’s employees, contractors, personnel or other representatives.
6.2 Mutual Indemnification. Each Party shall defend, indemnify and hold the other Party, and each of its respective officers, directors, employees, shareholders, agents and permitted successors and assigns, harmless from and against any and all Claims resulting from a breach of Section 7.7 below.
6.3 Indemnification Procedures. Each Party’s obligations under this Section 6 shall arise only if: (i) the Party seeking to be indemnified (the “Indemnified Party”) promptly (but in any event within thirty (30) days) notifies the other Party (the “Indemnifying Party”) in writing of learning of any Claim for which indemnification is sought; (ii) the Indemnifying Party has sole control over the defense and settlement of such Claim at its own expense, with counsel of its own choosing (except that the Indemnifying Party shall not settle any Claim against the Indemnified Party unless it unconditionally releases the Indemnified Party from all liability), provided that the Indemnified Party shall have the right to participate in such defense or settlement with counsel of its selection at its own expense; and (c) the Indemnified Party fully cooperates with the Indemnifying Party in the defense of any Claim at the Indemnifying Party’s expense.
6.4 Sole Remedy. THE INDEMNIFICATION PROVIDED IN THIS SECTION 6 SHALL CONSTITUTE CLIENT’S SOLE REMEDY REGARDING ANY MATTER FOR WHICH AN INDEMNITY IS SOUGHT.
SECTION 7 – TERM AND TERMINATION
7.1 Term. This Agreement shall commence upon the Effective Date and continue until all of the SOWs entered into hereunder have terminated in accordance with their terms, or until earlier terminated by either Party in accordance with this Section 7 (the “Term”).
7.2 Termination for Breach. This Agreement and/or any SOW may be terminated by either Party upon written notice (“Breach Notice”) to the other Party in the event that the other Party has breached a material provision of this Agreement or the SOW, as applicable, and fails to cure such breach within thirty (30) days after receipt of written notice thereof. Any Breach Notice delivered by one Party to the other must state with specificity that is a notification of material breach and shall provide as much detail as practicable regarding the nature of the breach.
7.3 Termination for Bankruptcy/Insolvency. Either Party may terminate this Agreement effective upon written notice to the other Party if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any other voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any other 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 the initial filing; or (iii) the other Party ceases to do business or is liquidated or dissolved.
7.4 Effect of Termination. Termination of this Agreement shall automatically result in termination of any SOW then in effect. For the avoidance of doubt, termination pursuant to any individual SOW will not affect the continuing effectiveness of this Agreement.
7.5 Effect of Termination. Upon the effective date of expiration and non-renewal or termination of an applicable SOW (the “Termination Date”):
- eighty8networks will immediately cease providing the terminated Services, and Client’s access to, and use of, the terminated Services will cease.
- If this Agreement and/or the SOW, as applicable, is terminated by eighty8networks pursuant to Section 7.2, all payment obligations of Client under this Agreement and/or such SOW for the terminated Services (including, but not limited to, all invoices for Services, including retainer, overages, projects and procurement, and any retainer amounts remaining) will immediately become due (including payment for the remainder of the Term under any terminated SOW as liquidated damages).
- If this Agreement and/or SOW, as applicable, is terminated by eighty8networks pursuant to Section 1, or by Client pursuant to Section 7.2, eighty8networks will refund Client any prepaid fees covering the remainder of the term of all outstanding SOWs after the Termination Date. In no event will termination relieve Client of its obligation to pay any fees payable to eighty8networks for the period prior to the Termination Date.
- Upon full satisfaction of Client’s obligations set forth in Section 7.5(b) above, eighty8networks shall provide Client with all credentials, passwords and any other documentation relating to the terminated Services then held by eighty8networks (the “Transfer”). If Client desires that eighty8networks complete the Transfer prior to the Termination Date, then Client acknowledges that the Transfer could compromise Client’s technology environment due to activity conducted by Client or a third party engaged by Client (collectively, “Third- Party Activity”), potentially resulting in, among other things, performance problems, system unreliability or security vulnerability. Accordingly, Client hereby agrees to forever release, waive, covenant not to sue, indemnify and hold harmless eighty8networks, and all of its affiliates, officers, employees, contractors and agents from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or related to any loss, damage, or injury that may be sustained by Client or loss or damage to any property belonging to Client arising out of or related to any Third-Party Activity following any Transfer completed prior to the Termination
7.6 Treatment of Client Data upon Termination.
- “Support Data and Documentation” means Passwords and other operation information necessary for the provision of the Services, Runbooks, IT Documentation, IT Diagrams, Support Workflows and Processes, and any other associated items to the extent not specifically listed above.
- “Service Data” means PlatformBDR Data (Backups), PlatformCloud Data (VM’s), PlatformArmor Data (Security), Monitoring Data (Kaseya, Logic Monitor or other tools leveraged by eighty8networks), Backups (third-party managed service) or Third- Party Managed Services Procured and Managed by eighty8networks.
- Upon receipt of Client’s full payment of all outstanding payment obligations under the applicable SOW(s), eighty8networks will, at Client’s request and expense (at eighty8networks’ then-current rates), promptly export, transfer or migrate, as applicable and to the extent practicable, to Client: (i) all Support Data and Documentation (other than Support Data and Documentation that constitutes eighty8networks IP); (ii) Backups (PlatformBDR); (iii) Backups (third-party managed service); and (iv) Third Party Managed Services.
- eighty8networks shall hold any Support Data and Documentation stored on its servers for a period of thirty (30) days following the Termination Date. Thereafter, such Support Data and Documentation may be purged by eighty8networks at any time.
- eighty8networks shall hold any Service Data stored on its servers for a period of thirty (30) days following the Termination Date. Thereafter, upon Client’s written request, and provided that Client has satisfied all outstanding payment obligations under this Agreement and any SOW, eighty8networks shall continue to hold such Service Data at eighty8networks’ then-current eighty8networks shall invoice Client for such fees on a monthly basis until Client confirms in writing to eighty8networks that such Service Data may be deleted from eighty8networks’ servers. In the event that any such invoice is not timely paid, eighty8networks may delete such Service Data if such invoice remains unpaid ten (10) days following written notice thereof to Client from eighty8networks.
7.7 Non-Disparagement. From the date of termination, neither Party shall make, publish or communicate to any person or entity, or in any public forum, any comments or statements (written or oral) that denigrate or disparage, or are detrimental to, the reputation or stature of the other Party or its businesses, or any of its employees, directors and officers, and existing and prospective customers, suppliers, investors and other associated third parties. The Parties acknowledge that breach of this Section 7.7 may lead to an action for monetary damages, injunctive relief and/or any other remedy available to the aggrieved Party at law or equity.
SECTION 8 – AFFILIATES, SUBCONTRACTORS
8.1 eighty8networks may delegate the performance of certain Services to its Affiliates and may rely on subcontractors to fulfill certain of its obligations under SOWs in certain circumstances. eighty8networks will remain responsible to Client for the delivery of such Services and will be responsible for the actions and inactions of such Affiliates and subcontractors as if they were the actions or inactions of eighty8networks itself, and will be liable for any failure of any Affiliate or subcontractor to perform any and all assigned or delegated duties and obligations in compliance with the terms of this Agreement.
8.2 eighty8networks and its Affiliates, employees, contractors and sub-contractors shall perform all Services as independent contractors and not as employees, agents or representatives of Client. eighty8networks shall not be entitled to any privileges or benefits that Client may provide to its employees. Neither Party nor their respective affiliates, employees or agents shall be authorized to act or appear to act as a representative of the other Party, whether in performing Services or otherwise.
SECTION 9 – INTEGRATION; ORDER OF PRECEDENCE
9.1 This Agreement, including any SOWs executed pursuant hereto, constitutes the entire agreement of the Parties hereto with respect to its subject matter and supersedes all prior and contemporaneous representations, proposals, discussions and communications, whether oral or in writing. In the event of any conflict between the provisions of this Agreement and the specific provisions set forth in a SOW, the provision of the Agreement shall control, except to the extent the provisions in an SOW expressly provide otherwise. Any general or pre-printed terms appearing on the face or reverse side of any invoice, purchase order, acknowledgement or confirmation that are different from or in addition to the terms provided in this Agreement are not binding on the Parties, even if signed and returned.
SECTION 10 – INSURANCE
10.1 Throughout the term of this Agreement, each Party shall, at its own expense, secure and maintain in force broad form general liability insurance, with competent and qualified insurance providers, with minimum limits of not less than US$1,000,000.00 per occurrence for personal injuries, wrongful death, survival, loss of consortium and/or loss or damage to property. Each Party shall also carry such insurance as will protect it from all claims under any worker’s compensation laws in effect that may be applicable to it. Upon reasonable request, each Party shall provide the other Party with evidence of the insurance policies required under this Section 10.
SECTION 11 – PRESS RELEASES, ADVERTISEMENTS AND PROMOTIONS
11.1 Neither Party shall issue any press release concerning this Agreement or the Services provided hereunder, or use in any way, for any purpose, the other Party’s name, logo, photograph or other representations or material in any advertising, promotion or publicity without obtaining such other Party’s prior written approval.
SECTION 12 – ACCEPTABLE USE POLICY; CLIENT RESPONSIBILITIES
12.1 Client’s use of the Services, Products and eighty8networks property (including all content transmitted via the Services and Products) shall comply with all applicable laws and regulations. The Services or Products provided by eighty8networks act only as a conduit for transmission of data, and, therefore, eighty8networks is not subject to the Health Insurance Portability and Accountability Act, or Gramm-Leach-Bliley Act. Therefore, Client is solely responsible for complying with such statutes, rules and regulations.
12.2 Additionally, and without limitation of the foregoing, Client covenants that it shall not use the Services or any eighty8networks Property to:
- engage in activity intended to or that may foreseeably interfere with the service of another user, host or network;
- distribute software, programs that may impair the performance of or otherwise damage data and/or computer systems;
- forgo or misrepresent a message header of an electronic transmission originating or passing through eighty8networks’ network;
- transmit unsolicited e-mail to multiple recipients, send large amounts of e-mail repeatedly or send email that annoys, harasses or threatens another person or entity, attempt to use eighty8networks servers as a mail drop or name server for SPAM, send unsolicited bulk e-mail from another internet service provider’s network advertising or implicating any service hosted or provided by eighty8networks, including without limitation e-mail, web hosting, FTP and DNS services, or send e-mail in an attempt to bypass Bayesian filters;
- post messages to newsgroups/blogs/services that are irrelevant, blanket post messages to multiple newsgroups/blogs/services, the post of annoying, harassing and/or threatening messages, violate of any rules, policies or charters posted online by any search engine, subscription web service, chat area, web page;
- engage in any fraudulent activities, including without limitation, the dissemination of intentional misrepresentations or misleading statements, writings or activities made with the intent that the person receiving it will act upon it, obtaining services with the intent to avoid payment, dissemination or collection of pirated software, or hosting of phishing websites;
- attempt to illegally or without authorization access other computers, accounts, or networks, access or attempt to access computer resources belonging to another Party, penetrate or attempt to penetrate security measures of other systems;
- use eighty8networks Services or eighty8networks property without authorization, use the Services, Products or eighty8networks property in a manner that encumbers disk space, processors or other system resources beyond amounts allowed by the specific type of Service or eighty8networks property, or interfere with a Service or eighty8networks property, overload a Service or eighty8networks property, or attempt to disable a host not assigned to Client.
12.3 If eighty8networks determines in its sole and reasonable discretion that Client has violated any of the terms of this Section, eighty8networks may (1) send a warning to Client followed by suspension or termination of the applicable SOW if Client does not immediately cease the violation and/or (2) immediately suspend or terminate Service with or without notice. eighty8networks will enforce this Section in its sole discretion according to the severity of the offense and Client’s history of prior breaches of the terms of this Section. Severe and/or repeated offenses will result in immediate termination of Services. eighty8networks shall not be liable for damages of any nature suffered by Client, any end-user or any third-party resulting in whole or in part from eighty8networks exercising its rights under this Section.
12.4 Client represents that its policies and procedures: (1) require its employees and contractors to use Client’s information technology systems solely for appropriate business purposes; (2) provide for the physical protection of equipment and devices under Client’s control; and (3) provide for the reasonable safeguarding and protection of critical or sensitive technology system information.
12.5 Client shall be solely responsible for purchasing and maintaining all end user software licenses unless eighty8networks has expressly and specifically agreed to purchase a particular software license as part of its work under an SOW.
12.6 Client acknowledges that, in order for eighty8networks to provide satisfactory Services hereunder and pursuant to any SOWS executed between the parties, eighty8networks may require periodic or regular access to such individual(s) within Client’s organization who oversee Client’s IT department (if any) or, if Client does not have IT personnel on staff, an executive- level employee with Client who has decision-making authority with respect to IT-related matters. Accordingly, Client agrees to use commercially reasonable efforts to provide eighty8networks with such access upon eighty8networks’ request.
SECTION 13 – GENERAL.
13.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement, together with all rights and obligations hereunder, to any successor in interest upon written notice to the non-assigning Party in the event of a sale of all or substantially all of a Party’s voting rights or assets. Any attempted or purported assignment without such required consent shall be void and a material breach of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties hereto.
13.2 Survival. The obligations of the Parties set forth in Sections 3, 4, 5, 6, 7, 9, 11 and 13 shall survive termination or expiration of this Agreement.
13.3 Choice of Law; Jurisdiction. This Agreement, all SOWs issued pursuant thereto, and all matters arising out of or relating to this Agreement or any SOW, are governed by, and shall be construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any suit, action, or proceeding arising out of or relating to this Agreement or any SOW issued pursuant thereto shall be instituted in the federal court or state court located in Norfolk County in the Commonwealth of Massachusetts. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13.4 Attorneys’ Fees and Costs. If any Party institutes any suit, action, or proceeding (“Action”) against the other Party arising out of or relating to this Agreement or any SOW executed pursuant thereto, including, but not limited to, contract, equity, statutory, and tort claims, the prevailing Party in such Action shall be entitled to receive, and the non-prevailing Party shall pay, in addition to all other damages or remedies to which the prevailing Party may be entitled, the costs incurred by the prevailing Party in conducting the Action, including reasonable attorneys’ fees and court costs. This also includes fees relating to costs of collection of unpaid invoices.
13.5 No Solicitation. During the term of this Agreement and for twelve (12) months thereafter, neither Party shall, directly or indirectly, for such Party’s benefit or on behalf of any other person or business entity, solicit, recruit, entice or persuade any employee, former employee or contractor of the other Party who had contact with the first Party or is or has been, directly or indirectly, involved in providing Services to Client hereunder. An employee or contractor of a Party shall be deemed covered by this Section while so employed or under contract and for a period of twelve (12) months thereafter. Recognizing that compensatory monetary damages resulting from a breach of this Section would be difficult to prove, the Parties agree that such breach will render the breaching Party liable to the non-breaching Party for liquidated damages in the amount of two hundred fifty thousand dollars ($250,000.00) for each such individual.
13.6 Force Majeure. Neither Client nor Eighty8networks shall be liable to the other for any failure to fully or partially perform or for interruption of Services resulting from acts of God, labor strike, civil disorder, terrorism, disaster, interruption of transportation services, governmental actions or regulation, other emergency making it unsafe, commercially unreasonable or illegal to perform under the Agreement, or any other cause beyond the reasonable control of the Party affected. In such event, the time for performance shall be extended for any period during which performance is so prevented.
13.7 Independent Contractor. Eighty8networks is an independent contractor of Client and nothing herein shall be construed to establish the Parties as partners, joint ventures, or agents of each other in any way whatsoever. Neither Party shall have the authority to make any warranties or representations, or assume or create any obligations, on the other’s behalf. Each Party shall be solely responsible for the actions of its respective employees, agents and representatives.
13.8 Amendment; Waiver. Neither this Agreement nor any SOW may be modified, waived, supplemented or amended except in a writing duly signed by authorized representatives of each Party. A waiver with respect to one event shall not be construed as a continuing waiver with respect to the subject matter thereof, or as a bar to or waiver of any right or remedy as to subsequent events.
13.9 Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be reformed in a manner that reflects the intentions of the Parties without further action by the Parties to the extent necessary to make such provision valid and enforceable, and no other provisions hereof shall be affected or impaired thereby.
13.10 Notices. Any notices to be given hereunder to a Party shall be delivered in person, by email or by a nationally recognized overnight courier to such Party’s address given below. Each Party may change its address and representative for notice by giving notice of such change in the manner provided in this Section 13.10. Notice shall be deemed given when delivered to or refused at the address above or such other address as a Party may give notice of from time to time.
13.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A manual signature on this Agreement, which image is transmitted electronically, will constitute an original signature for all purposes. The delivery of this Agreement, including signature pages, by any electronic means intended to preserve the original graphic and pictorial appearance of a document, including sending in portable document format (“PDF”), will have the same effect as physical delivery of the paper document bearing the original signature. Further, the parties agree that this Agreement and any Order Form may be signed by means of an electronic signature, provided that such signature and any related signing process comply fully with all applicable laws (including without limitation the U.S. federal ESIGN Act and any applicable state laws).