Interliant
This agreement is between INTERLIANT, INC. (the "Service Provider") a
Delaware corporation with an xxxxxx xx Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, XX
00000 and; the Customer, as identified in the Service Order(s) to this
Agreement.
1. Definitions and Interpretation.
"Agreement" or "Interliant" Services Agreement shall mean these Interliant
Service Terms and Conditions and all terms and conditions set out in service
order(s) attached hereto ("Service Order"), which are hereby incorporated into
the Agreement by reference.
"Interliant Services" shall mean the managed electronic data and mail
transmission services to be provided by the Service Provider for the Customer as
further described in the Service Order(s) of this Agreement.
"Content or Applications" shall mean the Customer's database(s), HTML
documents, applications or other forms of content provided by the Customer to be
hosted on, distributed, or made available to Users via the Interliant Services,
as further described in the Service Order(s).
"Users" shall mean (i) those companies and individuals authorized by the
Customer to utilize the Interliant Services to communicate and/or replicate, and
(ii) those companies and individuals able or authorized to access the Content or
Applications via the Interliant Services.
"Term" shall mean the term described in the Service Order(s). "Parties"
shall mean the Service Provider and the Customer; "Party" shall mean either the
Service Provider or the Customer, as the context requires.
2. Scope of Agreement
These Terms and Conditions set forth the terms and conditions upon which
the Service Provider shall provide and the Customer shall obtain the use of
Interliant Services and shall govem the Agreement between the Parties. Unless
otherwise agreed to by the parties, this Agreement shall apply to all Interliant
Services provided by the Service Provider to the Customer as requested from time
to time and as are described in the Service Order(s).
3. Term and Termination.
3.1 Any services provided hereunder shall be provided to the Customer for
the Term set out in the Service Order describing the service. Subject only to
Sections 3.2 and 3.3 below, this Agreement shall continue in force for such
Term(s).
3.2 Either party may, at its option, terminate any Service Order by written
notice to the other forthwith in any of the following events:
3.2.1 if the other Party breaches any of its material obligations hereunder
and does not remedy the same (if it is capable of remedy) within thirty (30)
days of notice of such failure or breach being given by the non-defaulting
party, or such longer period as may be required to correct such breach if,
within said thirty (30) days, the defaulting party shall commence the correction
of such breach and thereafter diligently pursue the correction thereof;
3.2.2 if an order is made or an effective resolution is passed for the
dissolution or winding up of the other Party except for the purposes of an
amalgamation, merger or reconstruction;
Interliant Services Agreement Terms and Conditions
3.2.3 if an encumbrancer takes possession or a receiver is appointed over
all or substantially all of the assets of the other;
3.2.4 if the other becomes insolvent or makes any special arrangements or
any special assignment for the benefit of its creditors; or
3.2.5 upon the failure of the other party to make a payment hereunder
within 90 days after written notice that such payment is past due.
3.3 Unless Term renewal is explicitly addressed in the Service Order, at
the expiration of the Term of the Service Order, such Service Order shall
automatically renew for a period of the same length as the first Term unless, at
least 30 days prior to such renewal, either Party provides written notice to the
other of its intention not to renew that Service Order.
3.4 Should any Service Order expire or be terminated for any reason,
neither Party will be liable to the other because of such expiration or
termination for compensation, reimbursement or damages on account of the loss of
prospective profits, anticipated sales, goodwill or on account of expenditures,
investments, leases or commitments in connection with the business of the
Service Provider or the Customer, or for any other reason whatsoever flowing
from such termination or expiration. Termination or expiration of any Service
Order shall not release either party from its liability to pay the other party
any fees owing to such other party under the terms of this Agreement.
3.5 Upon termination or expiration of any Service Order:
3.5.1 the Service Provider will immediately return to the Customer any of
the Customer's data related to that Service Order that is stored on Service
Provider's system;
3.5.2 the Customer shall (i) return to the Service Provider all copies of
source code, executable program files, documentation, flowcharts, diagrams, and
related materials provided by the Service Provider to the Customer pursuant to
the Service Order (hereinafter the "Software"), including any copies of computer
programs on magnetic media and any written materials, and (ii) delete from all
computer systems all copies of the Software; and
3.5.3 the Customer shall turn over to Service Provider all modem(s),
hardware, or accessories (herein "Equipment"), documents, and materials which
were provided to the Customer by the Service Provider pursuant to the Service
Order, unless otherwise expressly agreed by the Parties, and the Customer agrees
to reimburse the Service Provider for any damage which has been sustained by the
Equipment while in the Customer"s possession.
3.6 The Service Provider may make or permit reasonable changes in the
Interliant Services provided under this Agreement. All discoveries,
improvements, adaptations, or developments relating to Interliant Services
provided by the Service Provider under this Agreement are and shall remain the
exclusive property of the Service Provider. If the Service Provider makes a
change which has a material adverse effect on the Customer"s operations, the
Customer may cancel this Agreement after written notice which states with
particularity the reason for termination, provided the Service Provider does not
cure or remedy this condition within one (1) month.
4. Charges and Payment
4.1 The Service Provider shall charge the Customer for the Interliant
Services in accordance with the prices set forth in the Service Order(s).
4.2 The Customer shall be financially responsible for any and all use of
the Interliant Services by the Customer's employees and Users.
4.3 The Customer shall payor reimburse the Service Provider for sales, and
value added taxes, where applicable, and any other governmental taxes, charges
and duties levied, imposed or assessed for the Interliant Services or arising
out of services rendered to the Customer under this Agreement, excluding,
however, ordinary personal property taxes, taxes based upon the Service
Provider"s net income, and corporate franchise taxes. The Service Provider shall
furnish the Customer with invoices showing the amounts due under this Section.
4.4 All monetary values set forth in this Agreement are in US Dollars
unless otherwise clearly stated.
4.5 Terms of payment on all charges are net thirty (30) days in US Dollars.
4.6 Failure to pay by the Customer according to the terms of this Agreement
shall entitle the Service Provider, without prejudice to its other rights and
remedies under this Agreement, to:
4.6.1 charge interest on a daily basis from the original due date at the
rate of 1.5% per month and/or,
4.6.2 suspend the provision of Interliant Services, following twenty- one
(21) days written notice, provided that the Customer has not remedied its
default within that time.
4.7 The Customer will reimburse the Service Provider for all reasonable
costs incurred by the Service Provider in collecting past due amounts. Such
costs may include, but are not limited to, wire transfer fees, collection agency
fees, reasonable attorney fees, and court costs.
4.8 The Customer acknowledges that the Service Provider relies upon some
vendor-supplied licenses to provide the Interliant Services. Moreover, the
Customer recognizes that such vendors may have the ability to alter the terms of
such licenses so as to make the provision of Interliant Services by the Service
Provider commercially unreasonable. Should any third party licenses upon which
the Service Provider relies to provide the Interliant Services to the Customer
materially change during the Term of a Service Order, the Service Provider may
notify the Customer of such change and provide the Customer with a corresponding
change in the description of service and pricing for each affected Service Order
("Licensing Change Notice"). If the Customer wishes to continue purchasing
Interliant Services under such altered description of service and pricing or if
the Customer fails to respond to the Licensing Change Notice within 10 days,
such Service Order will be deemed to be amended to reflect the new description
of service and pricing and shall continue, uninterrupted, pursuant to the Term
of that Service Order. If the Customer does not wish to purchase the Interliant
Services as so described and priced and the Customer provides 10 days written
notice to the Service Provider of its decision not to do so,then the Service
Order shall automatically terminate on the eleventh day following the Licensing
Change Notice.
4.9 Customer acknowledges that, in order to make use of the Interliant
Services, it may need to procure certain software licenses, hardware, and other
items not provided by Interliant as part of the Interliant Services. Customer
shall be solely financially responsible for any and all costs associated with
such items.
5. Use of Interliant Services.
5.1 The Service Provider shall implement reasonable security procedures to
protect the Customer"s computer data and transmissions via the Interliant
Services from unauthorized access. If the Service Provider adheres to such
reasonable security procedures, as the same may be revised from time to time,
there shall be a conclusive, irrebuttable presumption that the Service Provider
has satisfied the foregoing obligation.
5.2 The Customer is responsible for the accuracy, adequacy, and security of
computer equipment, programs and data it fumishes or transmits, for use of the
output it obtains, for maintaining procedures extemal to the Interliant Services
for reconstruction of lost data or programs, and for satisfying its requirements
for accuracy of system output.
5.3 The Parties agree that the Service Provider shall not, under any
circumstances, be held responsible or liable for situations where the security,
stability, or availability of the Customer"s Interliant Services is compromised
by the Customer directly, by software or programs provided to the Service
Provider by the Customer, or by actions the Service Provider undertakes at the
request of the Customer.
5.4 The parties agree that the Service Provider shall not, under any
circumstances, be held responsible or liable for situations where data or
transmissions are accessed by third parties through illegal or illicit means,
including situations where the data or transmissions are accessed through the
exploitation of security gaps, weaknesses or flaws (whether known or unknown to
the Service Provider at the time) which may exist in any software, including
software or programs provided to the Service Provider by the Customer and any
other software utilized by the Customer in connection with the Interliant
Services, beyond the exclusive control of the Service Provider.
5.5 The Service Provider may provide the Customer with Equipment or
Software to be used by the Customer in accessing the Interliant Services. The
Customer shall properly use the Equipment or Software provided by the Service
Provider, and the Customer will provide facilities and security for proper
operation and maintenance of, and will not alter, move, connect, or disconnect
this Equipment or Software without first calling and obtaining oral approval
from the Service Provider. The Customer shall be solely liable for any loss or
damage to the Equipment or Software caused by the negligence or willful acts of
the Customer or its officers, employees, agents, or contractors, or for loss or
damage of the Equipment or Software through theft or vandalism on the Customer"s
premises. Moreover, in the event of any alteration, movement, connection or
disconnection of or any other tampering or adjustments to the Equipment or
Software by the Customer without the prior express approval of the Service
Provider,the Service Provider shall be completely released from any liability or
obligation (including any warranty or indemnity obligation) to the Customer
arising from or relating to the Equipment or Software that was affected by such
action of the Customer, and the Customer shall be liable to the Service Provider
for costs or damages incurred by the Service Provider .
5.6 The Service Provider shall not be responsible for the installation,
operation, or maintenance of equipment or software not provided by the Service
Provider; nor shall the Service Provider be responsible for the transmission or
reception of information by equipment or software not provided by the Service
Provider.
5.6.1 The Customer shall be responsible for the use and compatibility of
equipment or software not provided by the Service Provider. In the event that
the Customer uses equipment, software, or supplies not provided by the Service
Provider which impairs its use of the Interliant Services, the Customer shall
nonetheless be liable for payment for the Interliant Services or maintenance
needed as a result of equipment failure or performance problems caused by the
Customer"s use of equipment, software, or supplies not provided by the Service
Provider. Upon notice from the Service Provider that the equipment or software
not provided by the Service Provider is causing or is likely to cause hazard or
interference, the Customer shall eliminate the likelihood of hazard or
interference.
5.6.2 The Service Provider shall not be responsible if changes in any of
the Service Provider"s facilities, operations, procedures, or Interliant
Services causes equipment or software not provided by the Service Provider to
become obsolete, require modification or alteration, or otherwise affect the
performance of equipment or software not provided by the Service Provider.
5.7 The Customer agrees that its use of the Interliant Services will be in
a manner consistent with this Agreement and with all applicable laws and
regulations, including without limitation, copyright, trademark, and export
control laws prohibiting the use of telecommunications facilities to transmit
illegal, obscene, threatening, harassing, or other offensive messages. The
Customer acknowledges that the Service Provider is not responsible for any use
or misuse of the Interliant Services by the Customer or its Users. In
particular, the Customer shall not, nor shall it permit or assist others, to
abuse or fraudulently use the Interliant Services, including but not limited to
the following:
5.7.1 to obtain or attempt to obtain Interliant Services by any fraudulent
means or device with intent to avoid payments;
5.7.2 to access, alter, or destroy any information of another customer of
the Service Provider by any fraudulent means or device, or attempt to do so;
5.7.3 to use the Interliant Services so as to interfere with the use of the
Interliant Services by other customers or users;
5.7.4 to post, disseminate, or otherwise transmit copyrighted materials via
the Interliant Services without the permission of the owner(s) or person(s) they
specifically authorize. Copying, redistributing, or publication must be with the
express permission of the owners of such copyrighted materials; or
5.7.5 to use the Interliant Services to send unsolicited advertising or
promotional material (including unsolicited e-mail) to any third party,
including subscribers and users of the Interliant Services or to solicit third
parties, including subscribers or users of the Interliant Services to become
members of other competitive information or communication services. The Customer
agrees that Service Provider may, in its sole discretion, take steps to limit a
third party"s ability to send messages (including advertising or promotional
materials) to third parties, including subscribers or users of the Interliant
Services, and may do so with or without notice to the Customer.
5.8 The Service Provider stores and facilitates the transmission of private
electronic communications pursuant to the Electronic Communications Privacy Act
of 1986 (18 U.S.C. 2510, et. seq.). Electronic communications on this system are
private, and only under situations where explicitly required or allowed by law
will such communications be accessed, intercepted, disclosed, or used without
the consent of at least one of the parties to the communication. The Service
Provider agrees that in the event that it is required by any court or govemment
order or applicable law to disclose the contents of data, the Service Provider
will provide the Customer with advance notice of any such disclosure to the
extent practicable. Although Service Provider will not systematically monitor
the content which is disseminated via the Interliant Services, the Service
Provider reserves the right to (a) disable access to or delete any information,
software, or other content which it determines in its sole discretion (such
discretion to be exercised in good faith) to be illegal, obscene, threatening,
harassing, or otherwise offensive, and (b) disable access to or delete any other
information, software, or other content, under justified exigent circumstances,
as such circumstances are determined in good faith by Service Provider,
regardless of whether it violates the standards for content laid out in section
5.7.
6. Interliant Services Availability
Except as otherwise expressly stated in the Service Order(s), the Service
Provider warrants it will use reasonable care in providing Interliant Services
under this Agreement. Except for maintenance and periods of shut-down caused by
equipment, system or power failure, or other causes beyond the reasonable
control of the Service Provider, specifically including periods of shut-down
caused by software or programs provided to the Service Provider by the Customer,
the system will be operational twenty-four (24) hours a day, seven (7) days a
week.
7. Intellectual Property Rights
7.1 The Service Provider represents that all rights in all intellectual
property, including Software, provided by the Service Provider to the Customer
in relation to the Interliant Services, if any, are either licensed to or the
property of the Service Provider and that the Service Provider has the right to
permit the Customer to use such intellectual property rights in accordance with
this Agreement. Nothing contained herein shall be deemed to convey title or
ownership interest in such intellectual property to the Customer. The Customer
agrees that neither the Customers nor its employees or Users will, directly or
indirectly, (i) sell, lease, assign, sublicense, or otherwise transfer; (ii)
duplicate, reproduce, or copy (except to make one backup copy), (iii)disclose,
divulge, or otherwise make available to any third party, (iv) use except as
authorized under this Agreement, or (v) decompile, disassemble, or otherwise
analyze for reverse engineering purposes the Software, including all trade
secrets and confidential information therein.
7.2 Customer agrees that Interliant may publicly refer to the Customer as a
customer of Interliant. Interliant agrees that it will not make any other public
use of the Customer"s name without the written consent of the Customer .
7.3 The Customer grants to the Service Provider non-exclusive,
non-transferable, worldwide licenses during the term of this Agreement to copy
and otherwise deal with the Customer"s Content or Applications to the full
extent reasonably required for the Service Provider to fulfill its obligations
to the Customer under this Agreement and to manage the Interliant Services (the
"License"). The License herein granted does not in any way affect the ownership
of the Customer"s Content or Applications.
7.4 The Customer represents and warrants that it is authorized to grant the
License set out in the preceding section, that the Content or Applications do
not infringe any copyright or other proprietary right of third parties and that
the Service Provider"s exercise of such License will not infringe any copyright
or other proprietary or license right of any third party.
8. Confidentiality.
The Service Provider and the Customer acknowledge that they will receive
confidential information and trade secrets ("Confidential Information") from
each other in connection with this Agreement. Confidential information shall be
deemed to include all the information each Party receives from the other Party ,
except anything designated as not confidential. The Service Provider and the
Customer agree to maintain the secrecy of the Confidential Information and agree
neither to use it (except for the purposes of performing hereunder) nor to
disclose it to anyone outside the Service Provider and the Customer or to anyone
within the Service Provider and the Customer who does not have a need to know it
in order to perform under this Agreement. Items will not be considered to be
Confidential Information if (i) available to the public other than by a breach
of an agreement with the disclosing party; (ii) rightfully received from a third
party not in breach of any obligation of confidentiality; (iii) independently
developed by one party without access to the Confidential Information of the
other; (iv) known to the recipient at the time of disclosure; or (v) produced in
compliance with applicable law or a court order, provided that other party is
given reasonable notice of such law or order and an opportunity to attempt to
preclude or limit such production.
9. Exemptions and Limitations of Liability.
9.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, THE SERVICE
PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PROGRAMS OR
GOODS OR SERVICES TO BE SUPPLIED TO THE CUSTOMER, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS"FOR A PARTICULAR PURPOSE. THE
INTERLIANT SERVICES ARE PERFORMED AND DISTRIBUTED ON AN .AS IS. BASIS.
9.2 IN THE EVENT THAT DATA FURNISHED BY THE CUSTOMER OR ANY CLIENT, WHETHER
TRANSMITTED VIA THE INTERLIANT SERVICES OR OTHERWISE, IS LOST OR DESTROYED OR
DAMAGED BY THE SERVICE PROVIDER, THE SERVICE PROVIDER"S AGENTS OR EMPLOYEES, THE
CUSTOMER"S SOLE REMEDY SHALL BE THE REPAIR OR REPLACEMENT BY THE SERVICE
PROVIDER OF SUCH LOST, DESTROYED OR DAMAGED DATA, PROVIDED HOWEVER THAT SUCH
REPAIR OR RESTORATION CAN REASONABLY BE PERFORMED BY THE SERVICE PROVIDER AND
PROVIDED, FURTHER, THAT THE CUSTOMER FURNISHES THE SERVICE PROVIDER WITH ALL
SOURCE DATA, IN MACHINE READABLE FORM, NECESSARY FOR SUCH REPAIR OR RESTORATION.
9.3 THE PARTIES ACKNOWLEDGE THAT, SEPARATE AND DISTINCT FROM THE INTERLIANT
SERVICES, THERE EXIST MATERIALS POSTED OR ORIGINATED BY THIRD PARTIES AND
SUBSEQUENTLY ARCHIVED VIA THE INTERLIANT SERVICES, WHICH MAY BE DISPLAYED,
DUPLICATED, DISTRIBUTED, OR MADE AVAILABLE THROUGH THE INTERLIANT SERVICES (THE
"THIRD PARTY CONTENT"). THE SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER
REGARDING THE THIRD PARTY CONTENT, AND UNDER NO CIRCUMSTANCES WILL THE SERVICE
PROVIDER BE LIABLE FOR, OR WILL ANY INDEMNIFICATION RIGHTS ARISE OUT OF OR IN
CONNECTION WITH SUCH THIRD PARTY CONTENT. THIS DISCLAIMER OF WARRANTY
SPECIFICALLY RELATES TO WHETHER OR NOT THE THIRD PARTY CONTENT DOES OR WILL
INFRINGE ANY TRADEMARK, SERVICE XXXX, COPYRIGHT, RIGHT TO PUBLICITY, RIGHT OF
PRIVACY , OR OTHER INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY, CONSTITUTE
FALSE, DECEPTIVE, OR UNFAIR ADVERTISING OR DISPARAGEMENT UNDER APPLICABLE LAW,
OR FAIL TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS (INCLUDING, FOR EXAMPLE,
LICENSING REQUIREMENTS AND ADMINISTRATIVE OR PROFESSIONAL RULES).
9.4 THE SERVICE PROVIDER, INCLUDING ITS OFFICERS, EMPLOYEES, AGENTS, AND
DIRECTORS, SHALL NOT HAVE ANY LIABILITY OF ANY KIND, DIRECT OR INDIRECT, TO THE
CUSTOMER FOR ANY DAMAGES OTHER THAN ACTUAL DAMAGES DIRECTLY AND PROXIMATELY
RESULTING FROM THE , FAILURE, DELAY, OR NONPERFORMANCE OF THE INTERLIANT
SERVICES. THE MAXIMUM LIABILITY OF THE SERVICE PROVIDER FOR SUCH DAMAGES SHALL
BE LIMITED SOLELY TO THE AMOUNT PAID BY THE CUSTOMER TO THE SERVICE PROVIDER FOR
THE INTERLIANT SERVICES DURING SUCH PERIOD OF FAILURE, DELAY, OR NONPERFORMANCE.
THE LIABILITY , IF ANY, OF THE SERVICE PROVIDER, INCLUDING ITS OFFICERS,
EMPLOYEES, AGENTS, AND DIRECTORS, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING
OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT
IN ANY EVENT INCLUDE LIABILITY FOR LOSS OF PROFITS, LOSS OR INACCURACY OF DATA,
OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
9.5 THE SERVICE PROVIDER WARRANTS THAT THE INTERLIANT SERVICES WILL BE
"YEAR 2000 COMPLIANT" BY DECEMBER 31, 1999. THE CUSTOMER"S SOLE REMEDY IN THE
EVENT OF A BREACH OF THIS WARRANTY SHALL BE EITHER (I) A CREDIT FOR FEES
ASSOCIATED WITH THE CUSTOMER"S USE OF THE INTERLIANT SERVICES, BUT ONL Y TO THE
EXTENT THE CUSTOMER"S USE OF SUCH INTERLIANT SERVICES IS AFFECTED BY THE BREACH,
OR (II) TERMINATION OF THE AFFECTED SERVICE ORDER. FOR PURPOSES OF THIS SECTION
9.5, "YEAR 2000 COMPLIANT" MEANS THE ABILITY TO ACCURATELY PROCESS DATA FROM,
INTO, AND BETWEEN THE TWENTIETH AND TWENTY-FIRST CENTURIES, AND TO ACCURATELY
PERFORM LEAP YEAR CALCULATIONS.
10. Indemnities
10.1 The Service Provider shall indemnify and hold harmless the Customer,
its directors, officers, and employees from and against any and all third-party
claims and resulting liabilities, losses, damages, costs and expenses,
(including reasonable attorneys fees) of whatever nature or kind arising out of
or incidental to or in any way resulting from the illegal, malicious, or grossly
negligent acts or omissions of the Service Provider or the Service Provider"s
officers, employees (while acting within the scope of their employment), or
agents acting in their performance of this Agreement.
10.2 The Service Provider shall (i) defend, at its expense, and pay any
costs and damages finally awarded against the Customer in any action brought
against the Customer to the extent that it is based on a claim as set forth in
Section 10.1, and (ii) reimburse the Customer for attomeys" fees and other costs
reasonably incurred in connection with such an action. The obligations set out
in this Section 10.2 shall only apply provided that the Customer:
10.2.1 notifies the Service Provider promptly in writing of any such claim;
10.2.2 allows the Service Provider to fully control the defense of any such
claim; and
10.2.3 does not agree to any settlement of any such claim without the
Service Provider"s consent.
10.3 The Customer shall indemnify and hold harmless the Service Provider,
its directors, officers, and employees from and against any and all third-party
claims and resulting liabilities, losses, damages, costs and expenses,
(including reasonable attorneys fees) of whatever nature or kind arising out of
or incidental to or in any way resulting from the acts or omissions of the
Customer or the Customer"s officers, employees (while acting within the scope of
their employment), or agents and any third-party claim brought against the
Service Provider based on the Service Provider"s acts or omissions related to
the provision of the Interliant Services to the Customer unless such acts are
adjudged to be illegal, malicious, or grossly negligent. THIS INDEMNITY SHALL
INCLUDE CLAIMS BROUGHT BY THIRD- PARTIES ALLEGING THAT THE SERVICE PROVIDER IS
SOLELY NEGLIGENT IN THE PROVISION OF THE INTERLIANT SERVICES TO THE CUSTOMER.
10.4 The Customer shall (i) defend, at its expense, and pay any costs and
damages finally awarded against the Service Provider in any action brought
against the Service Provider to the extent that it is based on a claim as set
forth in Section 10.3, and (ii) reimburse the Service Provider for attorneys"
fees and other costs reasonably incurred in connection with such an action. The
obligations set out in this section 10.4 shall only apply provided that the
Service Provider:
10.4.1 notifies the Customer promptly in writing of any such claim; 10.4.2
allows the Customer to fully control the defense of any such claim; and
10.4.3 does not agree to any settlement of any such claim without the
Customer's consent.
11. General Provisions
11.1 Force Majeure. No delay or default in performance of any obligation by
either party, excepting all obligations to make payments hereunder, shall
constitute a breach of this Agreement to the extent caused by force majeure.
11.2 Assignments and Subcontracts. This Agreement may not be assigned,
sublicensed or otherwise transferred by either party, whether by operation of
law or otherwise, without the other"s prior written consent, except that either
party may assign this Agreement upon notice to other in instances in which such
assignment is to an entity which acquires all or substantially all of the
business of that party, whether by merger, consolidation, or acquisition of
assets, provided further that such assignee is not directly or indirectly
controlled by a competitor of the remaining original Party.
11.3 Entirety of Agreement.
This Agreement constitutes the entire agreement of the Parties and supersedes
all previous and contemporaneous communications, representations, or agreements
with respect to the subject matter hereof, with the exception of any previously
entered into Inter1iant, Inc. Confidentiality Agreement ("Confidentiality
Agreement"), which will continue in effect throughout the terms of this
Agreement. To the extent that there is a conflict between the language of this
Agreement and the Confidentiality Agreement, this Agreement will govern.
11.4 Applicable Law. This Agreement and all matters regarding the
interpretation and/or enforcement hereof, shall be governed exclusively by the
law of the State of New York, without reference to its conflicts of law rules,
except in so far as the federal law of the United States of America may control
any aspect of this Agreement, in which case federal law shall govern such
aspect.
11.5 Arbitration. If a
dispute arises out of (or relates to) this Agreement, or the breach thereof, the
Parties agree to submit said dispute to binding arbitration held in New York,
New York and administered by the American Arbitration Association, in accordance
with it guidelines and rules, and the parties further agree that any judgment or
award rendered by said arbitrators may be entered in any court having
jurisdiction thereof.
11.6 No Agency. The Service Provider will, in all matters relating to this
Agreement, act as an independent contractor. Neither is an agent, legal
representative, partner, joint venturer, franchisee, employee, or servant of the
other for any purpose. Neither Party will represent that it has any authority to
assume or create any obligation, express or implied, on behalf of the other
party, or to represent the other party in any capacity. Unless otherwise noted,
both parties shall be responsible for all expenses incurred by them in the
course of exercising any rights or responsibilities accepted by them under this
Agreement.
11.7 No Third Party Beneficiary .Any agreements contained, expressed, or
implied in this Agreement shall be only for the benefit of the Parties and their
respective legal representatives, successors and assigns, and such agreements
shall not inure to the benefit of the obligees of any indebtedness of either
Party, it being the intention of the Parties that no person or entity shall be
deemed a third party beneficiary of this Agreement.
11.8 Severability .If any provision of this Agreement is held to be
unenforceable, the parties shall substitute for the affected provision an
enforceable provision which approximates the intent and economic affect of the
affected provision.
11.9 Modifications. This Agreement shall not be modified, interpreted,
supplemented or amended or in any way revised or altered, except by an
instrument in writing signed by duly authorized representatives of the Parties
hereto.
11.10 No Waiver. No failure
or delay of either Party hereto in exercising any right, power, or privilege
hereunder (and no course of dealing between the Parties) shall operate as a
waiver of any such right, power, or privilege. No waiver of any default on
anyone occasion shall constitute a waiver of any subsequent default. No single
or partial exercise of any such right, power, or privilege shall preclude the
further or full exercise thereof.
11.11 Signatures. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereon and hereon were
upon the same instrument. Subject to the other provisions hereof, this Agreement
shall not become effective until copies hereof that, when taken together, bear
the signatures of each Party hereto have been received by each of such Parties.
11.12 Surviving Provisions. The Intellectual Property Rights,
Confidentiality, Exemptions and Limitations of Liability, Indemnification,
Applicable Law, and Arbitration Sections shall survive ten'l1ination of this
Agreement.
11.13 Notices. All
notifications under this Agreement shall be sent to the contact persons at
either their address or fax number as set out above in this Interliant Services
Ten"l1s and Conditions.
11.14 Non-Exclusivity .Nothing in this Agreement shall be read to prevent
the Service Provider from entering into similar arrangements with other
entities, including, without limitation, other infon"l1ation, content, or
applications providers, from providing other services via the Interliant
Services or otherwise, or from offering infon"l1ation services that exclude the
Content or Applications.
11.15 Non-Solicitation. The Service Provider and the Customer agree to
refrain from soliciting for employment, without the prior written consent of the
other, their respective employees during the ten"l1 of this Agreement, and for a
period of one (1) year following the ten"l1ination of this Agreement.
11.16 Section Headings. Section headings are for reference purposes only
and shall not affect the interpretation or meaning of this Agreement.
11.17 Conflicting Provisions. In the case of a conflict between a provision
in these Ten"l1s and Conditions and a provision in an executed Service Order,
such conflicting provision of the Service Order shall prevail over the
conflicting provision in these Ten"l1s and Conditions with regard to that
Service Order.
