Master Services Agreement
This Master Services Agreement (the "Agreement") between The Newline LLC ("The Newline") and the client which is a signatory hereto ("Client") is made effective as of the date indicated below the Client signature on the Development Order Form or the initial Service Order Form ("Order Form") submitted by Client and accepted by The Newline.
This Agreement states the terms and conditions by which The Newline will deliver and Client will receive any or all of the development and/or hosting services provided by The Newline, including bandwidth, managed services, professional/support services and content delivery. Each Order Form (with exhibits attached) submitted, accepted and executed by both parties is hereby incorporated by reference herein. This Agreement is intended to cover any and all Services ordered by Client and provided by The Newline. Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.
2. Delivery of Services; Terms.
2.1 Delivery of Services.
By submitting an Order Forms(s), Client agrees to take and pay for (i) the Service(s) during the Initial Term and for any Renewal Term, (ii) the Development Costs and Services outlined in the Development Order Form, and (iii) certain limited services needed by Client on a "one-off" basis ("Supplemental Services") where such services are not included within the scope of the Services as described in the Order Forms(s). Client agrees to pay The Newline the fees charged by The Newline for Supplemental Services, and hereby authorizes The Newline to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with newline Creation's current policies and prices.
(a) Term Commencement. The term for each Service will commence on the Service Commencement Date. (b) Renewal Term(s). Upon expiration of the Initial Term, the term shall be extended automatically for a period of thirty (30) days ("Renewal Term"), unless and until either party gives the other no less than thirty (30) days' written notice of a termination. The termination of any Service will not affect Client's obligations to pay for other Service(s).
3. Fees and Payment Terms.
3.1 Fees and Expenses.
Client will pay all fees due according to the prices and terms listed in the Order Form(s) and all other fees incurred by Client related to Hosting Services, Development Services, reinstatement of service fees and fees for upgrading account(s), all in accordance with then current The Newline prices and policies.
3.2 Payment Terms.
On the Service Commencement Date for each Service, Client will be billed (the "Initial Bill") an amount equal to a minimum of (1) month's reoccurring fees.
- 50% of all non-recurring (Development) charges indicated in the Order Form(s) and 50% of the remaining non-recurring charges within (30) days of Web solution deployment.
- The monthly recurring charges for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur within the first week of each calendar month of the term. Monthly recurring charges for all months will be billed (the "Recurring Bill") in advance of the provision of Services. All other charges for Services received and expenses incurred for Supplemental or Professional Services during a month (e.g., consulting fees or custom development fees) will either be billed immediately or at the end of the month in which the Services were provided. Payment for all fees is due within (30) days of the client receipt of each The Newline invoice (NET 30 Terms). All payments will be made in U.S. Dollars. Notwithstanding anything to the contrary in this Agreement, The Newline expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
3.3 Late payments.
Any payment not received within thirty (30) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a "Payment Default") will be subject to a late payment fee of $15 per month. Client also shall pay to The Newline all expenses incurred by The Newline in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Client, including, but not limited to, reasonable attorneys' fees and the fees of any collection agency retained by The Newline.
Client will be responsible for and will pay in full, except for taxes on The Newline net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
4. Intellectual Property Ownership.
This Agreement does not transfer from The Newline to Client any The Newline Technology, and all right, title and interest in and to The Newline Technology will remain solely with The Newline. This Agreement does not transfer from Client to The Newline any Client Technology, and all right, title and interest in and to Client Technology will remain solely with Client. The Newline and Client each agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.
5. Limited Warranties.
Each of the guarantees in the Order Form(s) is null and void if Client fails to follow newline Creation's Rules and Regulations and other policies or otherwise breaches the Agreement in any respect.
5.2 No Other Warranty.
The Newline DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS FACILITIES. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CLIENT'S OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CLIENT'S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS PROVIDED IN THE ORDER FORM, The Newline DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. The Newline DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
The Newline DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM The Newline'S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CLIENT'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). The Newline CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY The Newline DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
6. Client Obligations.
6.1 Warranties of Client.
(a) General. Client represents and warrants that
- Client is at least eighteen (18) years of age;
- Client possesses the legal right and ability to enter into this Agreement, and
- the performance of its obligations and use of the Services (by Client, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other The Newline clients' use of The Newline services. Client assumes all risks related to processing of transactions related to electronic commerce.
(b) Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, The Newline will have the right, in its sole discretion, to suspend or terminate immediately any Services.
6.2 Compliance with Law and Rules and Regulations.
Client agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the Rules and Regulations, as updated by The Newline from time to time. The Rules and Regulations are incorporated herein and made a part hereof by this reference. The Newline may change the Rules and Regulations upon fifteen (15) days' notice to Client, which notice may be provided by posting such new Rules and Regulations at the The Newline Web site www.thenewline.com/policies/aup. Client may request a current copy of the Rules and Regulations by sending or faxing a request to The Newline. Client agrees that it has received, read and understands the current version of the Rules and Regulations.
6.3 Third Party Rights.
Client shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined in Section 7.4) or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7. Limitations of Liability.
7.1 Delays and Interruptions.
The Newline SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CLIENT SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND The Newline SHALL HAVE NO LIABILITY THEREFOR. EXCEPT TO THE EXTENT OF The Newline'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER The Newline NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO NEWLINE CREATION'S OR CLIENT'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CLIENT'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF The Newline'S OR ITS NETWORK SERVICE SUPPLIER'S NEGLIGENCE.
7.2 Consequential Damages.
EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
Notwithstanding anything else to the contrary contained in this Agreement, newline Creation's maximum aggregate liability to Client for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Client to The Newline for the prior three (3) months.
The Newline may provide Client access to other third party software and/or services ("Third Party Products") through reseller relationships The Newline has established with certain commercial vendors, including without limitation, Macromedia Corporation ("Third Party Vendors"). Unless otherwise notified, Client understands that product support for Third Party Products is provided by the respective manufacturer and not by The Newline. Neither The Newline nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CLIENT'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM The Newline OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER The Newline NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CLIENT AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CLIENT SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND The Newline WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of
- any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributory caused by the other party) and
- any violation of or failure to comply with the Rules and Regulations. Client further agrees to indemnify The Newline and its affiliates against any Losses which arise out of, or relate to any content provided by Client or the customers/clients of Client, and Client will reimburse The Newline and its affiliates for all legal expenses, including reasonable attorneys' fees, incurred by The Newline and its affiliates in connection with any such Losses.
9.1 Termination Without Cause During Renewal Term.
This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than thirty (30) days' prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 9.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
9.2 Termination For Cause.
In addition to any other rights it may have under this Agreement or applicable law, The Newline may immediately terminate this Agreement or suspend service, effective without notice, in the event of
- a Payment Default, or #Client's breach or failure to comply with any other obligation of Client under this Agreement including, but not limited to, its failure to comply with any of the terms of the Rules and Regulations or other policies of The Newline.
Client may terminate this Agreement if The Newline breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by The Newline under this Section 9.2, all remaining monthly recurring and other charges specified on the applicable Order Form(s) for the balance of the then current term shall immediately become due and payable. In addition to the foregoing, The Newline reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules and Regulations or which The Newline believes in its sole discretion to be illegal or potentially harmful to others or may expose The Newline to harm or liability.
9.3 No Liability for Termination.
Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
- "Client Technology" means Client's proprietary technology, including Client's Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Client or licensed to Client from a third party) and also including any derivatives, improvements, enhancements or extensions of Client Technology conceived, reduced to practice, or developed during the term of this Agreement by Client.
- "Initial Term" means the minimum term for which The Newline will provide the Service(s) to Client, as indicated on the Order Form(s).
- "Professional Services" means any non-standard professional, consulting or support service provided by The Newline to Client.
- "The Newline Technology" means newline Creation's proprietary technology, including The Newline Services, software tools, hardware designs, Web Site Presentation Designs, algorithms, software (in source and object 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 The Newline or licensed to The Newline from a third party) and also including any derivatives, improvements, enhancements or extensions of The Newline Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Client or that have general applicability in the art.
- "Renewal Term" means any service term following the Initial Term, as specified in Section 2.2.
- "Rules and Regulations" means the The Newline general rules and regulations governing Client's use of Services, including, but not limited to, online conduct and newline Creation's Acceptable Use Policy, which can be found at http://www.thenewline.com/policies/aup.
- "Service(s)" means the specific service(s) provided by The Newline pursuant to this Agreement.
- "Service Commencement Date" means the date The Newline
will begin providing the Service(s) to Client as indicated on the Order
11. Use of Client's Name for Marketing and Promotion.
Client agrees that during the term of this Agreement The Newline may publicly refer to Client, orally and in writing, as a Client of The Newline in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.
12. Miscellaneous Provisions.
The Newline shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Client resulting, directly or indirectly, from any unforeseen or force major event. The Newline and Client agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Client. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN PENNSYLVANIA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Client may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of The Newline, and any attempted assignment or delegation without such consent will be void. The Newline may assign this Agreement in whole or part. The Newline also may delegate the performance of certain Services to third parties, including newline Creation's wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. The Newline and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between The Newline and Client. Neither The Newline nor Client will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of The Newline and Client in accordance with this Section 12.
Authorized representatives of Client and The Newline have read the foregoing and all documents incorporated therein and, by executing the Order Form(s), agree and accept such terms effective as of the date indicated below the Client signature on the initial Development Order Form or Service Order Form.