THIS HOSTED SERVICES AGREEMENT (THE “Agreement”) is entered by and between the parties indicated in an Order therefore. Upon execution of an Order, the terms and conditions of this Agreement shall be binding on the parties.
The definition of “Agreement” as used herein shall be deemed to include the terms of any Order Form executed by the Parties pursuant to this Agreement (“Order”) as well as any amendments thereto. The terms and conditions set forth in this Agreement shall control in the event that there are different or additional terms set forth in any other purchase order or acceptance form submitted by Customer. In the event of any conflict or inconsistency between the terms of the body of this Agreement and the terms of any Order, the terms of any Order shall govern.
1.1 Customer is a licensee of the TerraGo Edge product (“Product”) and has agreed to the terms and conditions of the End User License Agreement therefor. Customer agrees to purchase hosting services for the Product offered by TerraGo to Customer and described in any Order which is attached hereto and/or specifically references or incorporates by reference the terms of this Agreement (the “Service(s)”).
1.2 Customer may initiate a request for Services from time to time during the Term of this Agreement by executing an Order which will only be effective when accepted and countersigned by TerraGo and which will be governed by the terms and conditions of this Agreement.
1.3 Customer is responsible and liable for all activities that occur under Customer’s account, including all payments owed for any Order, regardless of whether such activities are conducted by Customer or a sublicensee or any other third party.
2.1 Invoicing for Services shall commence immediately upon the commencement of the provision of the specified Services. Customer agrees to pay the fees for the Services listed in the applicable Order (“Fees”) for the complete duration of the applicable Term stated in said Order. Fees shall be invoiced together with any applicable Taxes (as defined herein below) in advance at the beginning of each month during which the Services are to be provided.
2.2 Fees and all applicable Taxes shall be paid to TerraGo in US Dollars at its address first above written or at such other place as TerraGo may designate in writing. Payments are due net thirty (30) days from the date of TerraGo’s invoice. TerraGo may suspend performance or provision of the Services or terminate this Agreement for any late or nonpayment of Fees and Customer shall be fully liable for any attorneys or collection agency fees incurred by TerraGo in connection with any collection efforts initiated by TerraGo. If Customer is delinquent in its payments, TerraGo may, upon written notice to Customer, modify the payment terms to require full payment before the further provision of any Services or require other assurances to secure Customer’s payment obligations hereunder. Customer shall furnish financial information to TerraGo as TerraGo may, from time to time, reasonably request to maintain Customer’s credit status and such information shall be deemed Confidential Information as defined herein.
2.3 All Fees are exclusive of any taxes, duties, fees or surcharges that are imposed or authorized by regulatory or governmental entities, including but not limited to sales, use, gross receipts taxes, surcharges, franchise fees, occupational, excise, universal service (state and federal) taxes, duties, customs fees, levies, and surcharges (collectively “Taxes”) and Customer shall be solely responsible for the prompt payment of such Taxes to the complete exoneration of TerraGo. If Customer is required to make any deduction or withholding or to make any payment, on account of any Taxes in any jurisdiction, in respect of any amounts payable hereunder by Customer to TerraGo hereunder, such amounts will be increased to the extent necessary to ensure that after the making of such deduction, withholding or payment, TerraGo receives when due and retains (free from any liability in respect of any such deduction, withholding or payment) an amount equal to the full value of all amounts invoiced by TerraGo for the Services.
2.4 If Customer’s Service is disconnected due to nonpayment or late payment by Customer, Customer shall be responsible for all costs incurred by TerraGo resulting from such disconnection. Additionally, if Customer requests the restoration of the Services, Customer shall be responsible for an additional fee for such restoration.
3.1 Grant of Rights.Where applicable and stated in the Order, then upon payment of all applicable Fees and subject to the terms and conditions of this Agreement, TerraGo grants to Customer a limited, nonexclusive, non-transferable right to use the Services (including any proprietary information and/or technology provided therewith) solely for Customer’s own internal business operations during the term of the applicable Order. Without limiting the generality of the foregoing, Customer acknowledges and agrees that, subject to the license grant set forth in this Section, TerraGo owns all right, title and interest in and to the Services including but not limited to the specifications, technology, configurations, routing data and performance data related to the Services as well as any and all modifications, customizations, developments, enhancements, inventions, and/or derivative works thereto. Additionally, subject to the license grant set forth herein, TerraGo owns and retains all rights to the IP addresses provided hereunder. It is also understood that any performance data resulting from the Services is the sole and exclusive data of TerraGo and shall be deemed as the Confidential Information of TerraGo and used by Customer only in connection with this Agreement.
3.2 Conditions and Restrictions. Except for those rights expressly granted herein, all other right, title, and interest to the Services and the information, technology, software or other intellectual property contained or embodied therein (“Intellectual Property Rights”) remains solely and exclusively with TerraGo and or its suppliers. Customer agrees that it shall not, nor shall it permit others to: (a) alter, adjust, repair or circumvent any aspect of the Services; (b) copy, modify, decompile, reverse engineer or disassemble any aspect or component of the Services including but not limited to the performance data or any part thereof, or any of TerraGo’s proprietary technology or intellectual property provided or used with or in any way embedded or embodied in the Services provided hereunder; or (c) resell, pass-through, sublicense, rent, lease, timeshare or rebrand the Services or otherwise provide the Services to any employees, contractors, or third parties not within Customer’s enterprise and/or employee base.
3.3 Customer shall not use, nor shall it permit others to use the Services: (a) for any unlawful, invasive, infringing, defamatory, fraudulent or obscene purposes; (b) to send unsolicited, bulk email of any kind, regardless of the content or nature of such messages, post the same or similar message to one or more newsgroups or host or accept bulk replies resulting from such unsolicited email; (c) to forge IP address information or mail headers; (d) to send any virus, worm, trojan horse or harmful code or attachment; (e) to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database or network; (f) so as to interfere with the use of the TerraGo or connectivity partner network by other customers or authorized users; or (g) in violation of the acceptable use policies of TerraGo or its service providers, including its backbone providers. If Customer, or a third party through Customer, violates any of the foregoing prohibitions, TerraGo may immediately suspend the Services and/or terminate this Agreement without further liability or obligation to TerraGo.
4.1 Term. The term of this Agreement (“Initial Term”) shall commence upon the Effective Date and shall remain in effect unless and until terminated as provided hereunder. This Agreement shall automatically renew for successive periods equal to the Initial Term, unless either party provides written notice of termination to the other party within thirty days prior to the end of the then current term (each a “Renewal Term”). Together, the Initial Term and the Renewal Term are referred to herein as the “Term”. The Term of each Order shall commence on the date of execution of said Order for such Service and shall remain in effect for the period set forth in such Order unless otherwise terminated as provided for in said Order and/or this Agreement.
4.2 Termination for Cause. Either Party may immediately terminate this Agreement or any Order hereunder upon written notice if: (a) the other Party materially breaches this Agreement or the applicable Order and fails to cure such breach within five (5) days for payment breaches, and thirty (30) days for all other breaches, following receipt of notice of such breach; (b) the other Party becomes bankrupt or insolvent or fails to function as a going concern or to satisfy its debts as they become due or operate in the ordinary course; (c) there is an assignment by the other Party for the benefit of creditors; (d) there is a voluntary or involuntary bankruptcy filing by or against the other Party; or (e) the other Party breaches the confidentiality restrictions in Section 5.
4.3 Effect of Termination. Termination of this Agreement or any Order shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer. Upon expiration or termination of this Agreement or any Order: (i) the rights granted to Customer under this Agreement or the particular Order will cease immediately upon the effective date of such termination and be of no further force or effect; and (ii) each Party will promptly destroy or return to the other Party all Confidential Information belonging to such Party and certify in writing to the other Party that all such Confidential Information has been so destroyed or returned. Customer may request TerraGo to provide to Customer a copy of the archival data of Customer.
4.4 Termination for Convenience. Customer may elect to terminate this Agreement for convenience upon thirty (30) days’s prior written notice. Customer is not entitled to a refund of previous fees paid. If Customer requests to receive an archive copy of its data, Terrago reserves the right to charge a fee for the service.
5.1 In connection with this Agreement, the Parties may obtain information of the other Party which is either conspicuously labeled or marked as confidential or proprietary or which would be understood by a reasonable business person to be confidential to the provider of such information (“Confidential Information”).
5.2 The Parties agree: (i) to take all reasonable steps necessary to maintain the confidentiality of any such Confidential Information and not to disclose such Confidential Information without the other Party’s prior written consent; (ii) to not use or copy any Confidential Information for any purpose other than in direct furtherance of the purposes of this Agreement; and (iii) that their obligations under this Section shall survive the termination of this Agreement for a period of three (3) years. Notwithstanding the foregoing, each Party’s confidentiality obligations shall not apply to the extent that disclosed Confidential Information: (1) is already known to the other Party without an obligation of confidentiality; (2) becomes publicly available through no fault of the other Party; (3) is received from a third party rightfully and without restriction; (4) is independently developed without exposure to or use of the Confidential Information; or (5) is required to be disclosed by law, provided the disclosing Party is provided reasonable notice prior to the disclosure and the non-disclosing Party has made a reasonable effort to quash the legal requirement or otherwise prevent disclosure of its Confidential Information through legal means. The terms and conditions of this Agreement shall be deemed to be Confidential Information except that TerraGo may disclose and list Customer as a customer of the Services in connection with TerraGo’s advertising, publicity and promotion of the Services.
6.1 Subject to the limitations contained herein, TerraGo warrants that all Services shall be provided in a good and workmanlike manner.
6.2 TERRAGO DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TERRAGO DOES NOT MAKE, AND HEREBY DISCLAIMS TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, TERRAGO DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND CUSTOMER’ S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK.
7.1 Customer’s sole and exclusive remedy and TerraGo’s entire liability for any Service outage, Services performance deficiency, or breach of warranty or any claim related to the Services shall be either the repair or replacement of such Services.
7.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER TERRAGO OR CUSTOMER BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA, INTERRUPTION OR CORRUPTION OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. FOR THE AVOIDANCE OF DOUBT, UNDER NO CIRCUMSTANCES SHALL TERRAGO BE LIABLE, EITHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR UNDER ANY STATUTE, REGULATION OR ANY OTHER THEORY FOR: (A) UNAUTHORIZED ACCESS, ALTERATION, THEFT, CORRUPTION, OR DESTRUCTION OF OR TO CUSTOMER’S OR ITS CUSTOMER’S DATABASES, OR (B) THE CONTENT, ACCURACY OR QUALITY OF THE DATA TRANSMITTED THROUGH THE SERVICES.
7.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TERRAGO’S TOTAL LIABILITY TO CUSTOMER IN THE
AGGREGATE FOR THE ENTIRE TERM (AND REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEYS’ FEES), WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE SUBJECT CLAIM AROSE. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO ANY AND ALL CLAIMS AND CAUSES OF ACTION WHATSOEVER, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
Customer will indemnify and hold TerraGo harmless from and against all loss, liability, damage and expense, including reasonable attorneys fees, either brought or caused by Customer’s officers, employees, agents, vendors, partners, representatives, or contractors, arising from claims or demands: (a) arising from data transmitted, received or stored on or over TerraGo’s network by or through Customer; (b) for infringement of a third party’s proprietary rights based on any Customer information, data, or materials; or (c) relating to the use by Customer of any Services provided under this Agreement.
9.1 Equitable Remedies. The Parties acknowledge that any threatened or actual breach of TerraGo’s Intellectual Property Rights or either Party’s Confidential Information and other proprietary rights by the other Party will constitute immediate, irreparable harm, for which equitable remedies including injunctive relief may be awarded by a court of competent jurisdiction.
9.2 Severability and Waiver. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of TerraGo’s proprietary rights, no action, regardless of form, arising out of this Agreement may be brought by either Party more than one year after the cause of action has accrued.
9.3 Assignment. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Customer, and any such attempted assignment shall be void and of no effect, without the advance written consent of TerraGo.
9.4 Force Majeure. Neither Party shall be liable for any delay or failure in performance due to war, acts of terror, riots, embargoes, strikes, accidents, fire, acts of God, supplier or vendor failure, outage or malfunction of local or longhaul telecommunications services or facilities, utility outage or other occurrence beyond such Party’s direct control (each, a “Force Majeure Event”). The non-performing Party shall notify the other Party of a Force Majeure Event, and if a Force Majeure Event continues for more than sixty (60) days, TerraGo or Customer may cancel this Agreement with no further liability (except for any amounts due and not paid by Customer) as a result of such Force Majeure Event.
9.5 Attorneys Fees. The prevailing party in any action to enforce the terms of this Agreement will be entitled to reasonable attorneys’ fees and other costs and expenses incurred by it in connection with such action.
9.6 Successors and Assigns. All provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of TerraGo and Customer.
9.7 Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth in the relevant Order and to the attention of the signatories of the relevant Order, or to such other address or individual as the parties may specify from time to time by written notice to the other Party.
9.8 Survivability. Upon expiration or termination of this Agreement, the following Sections will continue and survive in full force and effect: Sections 2, 4.3, 5, 6, 7, 8, 9.
9.9 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Virginia, excluding its conflict of laws provisions. The Parties hereby irrevocably consent to the sole and exclusive jurisdiction of and venue in the state or federal courts located in Fairfax County Virginia.
9.10 Compliance with Laws. In its performance of its respective obligations hereunder and utilization of the Services each Party hereto shall comply with all applicable laws of the jurisdiction in which such Services are rendered as well as all applicable federal, state, and local laws of the United States of America.
9.11 Entire Agreement. This Agreement is the entire and complete agreement between the Parties with respect to the Services and subject matter hereof and supersedes any prior or contemporaneous agreements or understandings between the Parties, whether written or oral, and may not be modified in any way unless in writing, signed and dated by the duly authorized representatives of the Parties. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.