MASTER SERVICES AGREEMENT between Wakefly, Inc. (“we” or “Wakefly”) and the customer who signs our Hosting Agreement (“you”).
1. HOW THIS AGREEMENT WORKS You will be asked to sign our Hosting Agreement that lists the services you have chosen and the related fees. The agreement will incorporate this Master Services Agreement and an Acceptable Use Policy. It may also incorporate an addendum to this Master Services Agreement if you are purchasing services for which we have special legal terms. When we use the term “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the agreement
2. DEFINITIONS For purposes of this Agreement, the following terms have the meanings specified below: (a) “Agreement” means each contract created between Company and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service. (b) “Customer Content” means all data, graphics, text, names, marks, logos, hypertext links to other websites and other information incorporated in, transmitted through or published or displayed on the Customer website. (c) “Customer website” means Customer’s site on the World Wide Web portion of the Internet that Company hosts under this Agreement. (d) “End User” means any Person who accesses or uses the Customer website via the Internet. (e) “Company Technology” means Company’s proprietary technology, including, without limitation, Company services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Company Technology conceived, reduced to practice or developed during the term of this Agreement by either party. (f) “Person” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof. (g) “Proprietary Information” means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof. (h) “Order” means the Order submitted by the Customer to Company for Services, whether such Order is submitted online through Company’s website, telephone or written order form. (i) “Terms of Service” means these Terms of Service, as the same may be modified, altered or amended from time to time by Company. (j) “Service” means either Hosting Service or Optional Service. “Hosting Service” means the Service provided by Company in response to an Order whereby Company provides the Customer with specified connectivity, storage space and bandwidth for the hosting of a Customer website as more particularly described in the applicable Service Description. “Optional Service” means any additional Service (other than Hosting Service) Company may provide in response to an Order, as more particularly described in the applicable Service Description. (k) “Service Description” means the applicable documents made available by Company to Customer to describe the applicable Services at the time the Order is accepted by Company. (l) “Term” means the duration of any Agreement between Company and Customer. With respect to Hosting Services, the “Initial Term” is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 6. With respect to Optional Services, the “Term” begins when Company accepts the Order and ends on the first to occur of (i) Company’s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.
3. YOUR OBLIGATIONS You must use reasonable security precautions in light of your use of the Services, including encrypting any personal identifiable information (PII) transmitted to or from, or stored on, the servers or storage devices you use. You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with Wakefly’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement.
4. WAKEFLY DOES NOT PROMISE a) We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property. b) We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen. Unless otherwise agreed, all Supplemental Services are performed on an “AS IS, AS AVAILABLE” basis. c) We do not promise to retain the data backup for longer than the agreed data retention period.
5. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES Wakefly is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Wakefly’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
6. TERM AND TERMINATION (a) Hosting Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive one month periods unless the Order is earlier terminated in accordance with its terms or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term. (b) Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets. (c) Company may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to Customer, if Company determines in good faith that Customer’s use of the Customer website or the Customer Content violates the Acceptable Use Policy. (d) Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled. (e) Within 30 days after the termination of this Agreement, Customer will pay the Company an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term (“Termination Charge”) to Company unless (i) Company terminated the Order under Section 6(c). The parties agree that the Termination Charge constitutes consideration for Company’s time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If Customer terminates the Order in accordance with Section 6(b), or if Company terminates the Order under Sections 6 (c)(i), Company shall return to Customer, and Customer shall accept, as Customer’s sole and exclusive remedy for Company’s breach of the Order, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination.
7. FEES a) Following expiration of the initial term; we may increase the fees for the Service on thirty days advance written notice unless you have agreed to a fixed renewal term. b) Fees are due on receipt of invoices. Wakefly may suspend all Services (including Services provided pursuant to any unrelated Service Order or other agreement we may have with you) if payment of any invoiced amount is overdue, and you do not pay the overdue amount within seven Business Days of our written notice to your billing contact. You agree that if your Service is reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. Wakefly may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty days and Wakefly brings a legal action to collect, you must also pay Wakefly’s reasonable costs of collection, including attorney fees and court costs. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law.
8. CHANGES TO THE ACCEPTABLE USE POLICY We may change our Acceptable Use Policy to add restrictions on your use of the Services provided that any new restrictions are reasonable and consistent with hosting industry norms. Any changes to the AUP made during the term of your Agreement will become effective as to you upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Service Order for your configuration that incorporates the revised AUP by reference, or (iii) thirty days following our notice to you describing the change. If a change to the AUP materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty days following the date the change became effective as to you. We will not charge you an early termination fee for a termination on such grounds. If you terminate your Service because we have modified our AUP in a way that adversely affects you, we may decide to waive that change as to you and keep your Agreement in place for the remainder of the term.
9. SUSPENSION OF SERVICES You agree that we may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Wakefly network or our other customers, or (iv) if required by law. We will give you advance notice of a suspension under this paragraph of at least twelve Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Wakefly or its other customers from imminent and significant operational or security risk.
10. TERMINATION FOR BREACH We may terminate the Agreement for breach if we discover that the information you provided to us for the purpose of establishing the Services is materially inaccurate or incomplete, or the individual signing the Agreement did not have legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, your payment of any invoiced amount is overdue and you do not pay the overdue amount within seven Business Days of our written notice, or you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty days of our notice to you describing the failure. We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation.
11. EARLY TERMINATION FEE If you terminate the Agreement for convenience or we terminate the Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term.
12. PUBLICITY You agree that we may publicly disclose that we are providing services to you and may include your name in promotional materials including press releases and on our Website. Neither of us may publicly use the other party’s logo or other trade or service mark without permission.
13. LIMITATION ON DAMAGES a) We are not liable to you for failing to provide the Hosting Service unless such failure results from a breach of the deployment guaranty stated in the Hosting Agreement or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. The dollar credits stated in the Hosting Agreement are your sole and exclusive remedy for our failure to meet those guaranties for which dollar credits are provided unless such failure is due to Wakefly’s willful misconduct. b) Neither of us (nor any of our employees) is liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages. c) We are liable to you for lost data as you purchase data backup services from Wakefly and we fail to provide the backup services as agreed. You release Wakefly from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup. d) Notwithstanding anything in the Agreement to the contrary, except for claims based on our willful misconduct, the maximum aggregate monetary liability of Wakefly and any of its employees under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed six times the monthly recurring fee payable under the Hosting Agreement(s) in effect for the configuration at the time of the occurrence of the event(s) giving rise to the claim.
14. WHO MAY USE THE SERVICE Wakefly hosting service is provided solely for the use of your company. You may not resell the hosting service.
15. OWNERSHIP OF INTELLECTUAL PROPERTY Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by Wakefly during the performance of the Services shall belong to Wakefly unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
16. OWNERSHIP OF OTHER PROPERTY You do not acquire any ownership interest in or right to possess the servers or other hardware we provide for your use, and you have no right of physical access to the hardware. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your Wakefly servers or other devices. On termination of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name) and agree that we may take steps to change or remove any such IP addresses.
17. FORCE MAJEURE Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry. The Agreement is the complete and exclusive agreement between you and Wakefly regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.