Master Services Agreement
THIS MASTER SERVICES AGREEMENT, together with all Exhibits, attached hereto and incorporated herein by this reference (collectively, “Agreement”), is entered into on the date of execution as specified on the first order form (“Effective Date”) by and between the NETRIPLEX, LLC, a North Carolina limited liability company (“NETRIPLEX”), and customer, the name and address as listed on the order form (“Customer”).
1.SERVICES. NETRIPLEX agrees to provide Customer with one or more of the following-definedservices, as ordered by Customer via the “Customer Order Form,” marked Exhibit A, attached hereto and incorporated herein by this reference:
“Managed Hosting Services.” Hosting one or more web sites, web applications and/or maintaining one or more physical, virtual or cloud servers owned by NETRIPLEX for customer use including internet service.
“Co-Location Services.” Providing Customer with space within the NETRIPLEX Premises, as defined herein (“Customer Area”), for the location of equipment owned by Customer (“Customer Equipment”). This service includes connectivity to the internet, power and Customer Area access.
“Professional Services.” Complex support services, including, but not limited to remote hands and eyes, software support, database consultation and hardware repair.
“Equipment Rental.” Rental of various types of Information Technology equipment and/or hardware to Customer, as ordered.
“Services” shall mean one or more of the services described herein and provided by NETRIPLEX to Customer pursuant to this Agreement.
2.TERM. The Term shall commence on the date that the ordered Service(s) are made available toCustomer and shall continue for a period (“term”) as outlined on the order form unless sooner terminated in writing by the parties or upon default. At the conclusion of the Term, the Service(s) shall automatically renew for successive periods equal to the initial Service Term, unless terminated by either party in writing at least sixty (60) days but not more than ninety (90) days prior to the expiration of the then-current Service Term. Such notice must be provided in accordance with Section 30 of this agreement.
3.DEPOSIT AND BILLING.
A.Deposit. Customer may be required to remit a deposit upon the execution of this Agreement, which deposit shall be held by NETRIPLEX as security for the faithful performance of duties of Customer. Said deposit shall be returned to Customer at the end of the term of this Agreement unless Customer breaches this Agreement. If NETRIPLEX does not require the payment of a deposit upon the execution of this Agreement, NETRIPLEX reserves the right to require the submission of a deposit during the term of this Agreement if Customer is more than ten (10) days late on any two payments, provides a payment that is returned or otherwise breaches this Agreement. In the event NETRIPLEX requires the submission of a deposit following the execution of this Agreement, said request shall be made in writing and Customer shall remit said deposit within ten (10) days of the mailing or delivery of the request by NETRIPLEX.
B. Billing; Payment. Unless otherwise indicated herein or on the Customer Order Form, charges will begin to accrue on the day Services are initially provided by NETRIPLEX to Customer (“Service Commencement Date”). Customer will be invoiced monthly for services provided. All payments are due within the terms specified on the Customer Order Form, or if not specified, within ten (10) days of the date of an invoice. Any invoice not paid within the terms specified on the Customer Order Form, or if not specified, paid within ten (10) days of the date of said invoice, shall accrue interest at the rate of one and one-half percent (1.5%) per month until paid in full. NETRIPLEX is not obligated in any way to provide notice to Customer of a late payment, but may do so as a courtesy. If Customer disputes any charge, it must notify NETRIPLEX of the dispute within thirty (30) days from the date of the invoice on which the charge appears.
NETRIPLEX reserves the right to change its rates at any time by notifying Customer at least sixty (60) days prior to effective date of the rate change. In the event that NETRIPLEX increases its rates, Customer shall have the right to terminate this Agreement without penalty upon thirty (30) days notice to NETRIPLEX in the immediate thirty (30) day period following such notice. Failure to provide notice of termination within the thirty (30) day period following any such notice by NETRIPLEX of a rate increase constitutes Customer’s acceptance.
4. MANAGED HOSTING SERVICES.
A. NETRIPLEX agrees to provide those Managed Hosting Services ordered by Customer, if any, as set forth on the Customer Order Form, attached hereto.
B. Upon request and subject to availability, NETRIPLEX will use commercially reasonable efforts to secure domain names and assign internet address space for the benefit of Customer if ordered. Customer shall ensure that any domain name(s) registered or administered on its behalf will not violate an intellectual property right of a third party and shall comply with the rules and regulations of the applicable domain name registrars or other authorities. NETRIPLEX shall not be liable for damages associated with the assignment and/or use of domain names and Customer agrees to indemnify and hold harmless NETRIPLEX with respect to any such claims. IP addresses shall be allocated in compliance with ARIN guidelines. All IP addresses and space provided to Customer by NETRIPLEX are for Customer's sole use with the Service(s), and are non-portable and non-transferable. Neither Customer nor any of Customer’s end users will own or route an IP address or space provided by NETRIPLEX, and upon expiration or termination of this Agreement, Customer's access to IP addresses and space provided by NETRIPLEX will cease.
C. NETRIPLEX is not responsible for any event that adversely impacts the Service(s) whereby that event is caused by (a) an act or omission of Customer, its employees, customers, contractors or agents; (b) the failure or malfunction of equipment, applications or systems not owned or controlled by NETRIPLEX; (c) force majeure; (d) scheduled maintenance, alterations or implementation; (e) any deliberate suspension of Service(s) resulting from a breach of this Agreement by Customer; (f) the unavailability of required Customer personnel or the failure of Customer to provide current, accurate contact information of Customer personnel to NETRIPLEX.
5. CO-LOCATION SERVICES.
Upon request by Customer, NETRIPLEX may make available to Customer certain space within the NETRIPLEX Premises dedicated for the placement of Customer Equipment (“Customer Area”) to be used for the provision of other NETRIPLEX Services. In addition to a license for the use of the Customer Area, NETRIPLEX shall provide and maintain on-site power and internet access for Customer, if ordered. The size of the Customer Area is set forth in the Customer Order Form.
6. PROFESSIONAL SERVICES.
A. NETRIPLEX agrees to provide those Professional Services ordered by Customer, if any, as set forth on the Customer Order Form or via any other written instrument signed by an authorized representative of Customer.
B. Systems Administration Services shall consist of the provision of and service for Windows, Linux and Solaris operating systems, plus provision of and service for applications that are standard to the NETRIPLEX product portfolio or those used by customer.
C. Database Administration Services shall consist of the provision of and service for Oracle, MySQL, Postgres and Microsoft SQL server databases.
D. Remote Hands Services shall consist of services requested by Customer to perform basic hands-on tasks. Said services are available to Customer twenty-four (24) hours a day by contacting the NETRIPLEX Network Operations Center. NETRIPLEX will have on-site staffing at all times to assist with problem troubleshooting and issue resolution.
E. To obtain Professional Services from NETRIPLEX, Customer must request the service(s) in writing by forwarding an email request to NETRIPLEX or by submitting a ticket via the NETRIPLEX Customer Portal. Any request must be submitted by an authorized representative of Customer. Requests submitted by an unauthorized representative of Customer will be subject to verification.
F. The maximum liability of NETRIPLEX for any claim relating to Professional Services provided by NETRIPLEX shall not exceed the amount of the fee for the service provided on the occasion giving rise to the claim.
7. EQUIPMENT RENTAL. Customer may rent equipment and/or hardware from NETRPLEX as set forth on the Customer Order Form or by any other document executed by an authorized representative of Customer. Fees vary and are subject to change. Customer shall be responsible for damage to equipment not caused by NETRIPLEX, reasonable wear and tear excepted.
8. USE OF NETRIPLEX PREMISES.
Customers obtaining Co-Location Services from NETRIPLEX may be permitted access the NETRIPLEX Premises as provided for herein:
A. No alterations to the NETRIPLEX Premises or the Customer Area are allowed without the written authorization of NETRIPLEX.
B. Customer shall comply with all applicable rules and operating procedures, if any, for the NETRIPLEX Premises.
C. Customer must provide to NETRIPLEX a written list of employees and agents of Customer to have access to the NETRIPLEX Premises, which employees and agents must be approved by NETRIPLEX in writing, said approval not to be unreasonably withheld. Customer will provide NETRIPLEX an updated list of its employees and agents, as needed, additions to which must be approved by NETRIPLEX, as set forth herein.
D. Customer shall maintain the Customer Area in a safe and orderly condition and shall be responsible for the removal of trash, packaging and cartons from the Customer Area.
E. NETRIPLEX may enter a Customer Area and/or access Customer Equipment in a Customer Area only to the extent necessary to: (a) provide a service; (b) enforce compliance with the AUP; (c) tag equipment as necessary; or (d) otherwise enforce the terms of this Agreement. Customer shall obtain any third party permissions required in order to comply with this Section.
F. NETRIPLEX Equipment shall be used only for interconnection to NETRIPLEX network services and Customer shall only use that NETRIPLEX Equipment provided for use by Customer.
G. Unless otherwise provided for herein, Co-Location Customers may access the Customer Area of the NETRIPLEX Premises at any time, when escorted by NETRIPLEX personnel. Co-Location Customers who have been granted 24x7 key-card access may access the Customer Area of the NETRIPLEX Premises unescorted, subject to the key-card terms and conditions.
H. NETRIPLEX may make changes to the NETRIPLEX Premises and/or Customer Area from time to time. If alterations or improvements made by NETRIPLEX impact Customer, NETRIPLEX shall provide advance notice to Customer.
I. In the event NETRIPLEX requires the Customer Equipment to be moved within the NETRIPLEX Premises, Customer will cooperate with NETRIPLEX to complete the relocation. NETRIPLEX will use reasonable efforts to minimize interruptions to any affected Services. NETRIPLEX will be responsible for any transportation, storage, or other relocation charges, and shall be responsible for any and all damage to Customer Equipment, if relocated by NETRIPLEX. If need for Customer Equipment relocation is the result of additional needs of Customer, Customer shall be responsible for transportation, storage, damage and all other costs of the relocation.
J. Unless otherwise agreed to in writing, within five (5) days of the expiration or termination of this Agreement, Customer shall remove from the NETRIPLEX Premises all Customer Equipment and return the Customer Area to the same condition as it was on the Service Commencement Date, normal wear and tear excepted. If Customer does not remove all Customer Equipment within five (5) days, NETRIPLEX may move and store the Customer Equipment in an environmentally uncontrolled area and Customer shall be responsible for the cost of said removal and storage. If Customer does not remove the Customer Equipment as provided for herein, or pay all costs associated with returning it to Customer from storage, within thirty (30) days of the expiration or termination of this Agreement, NETRIPLEX may sell the Customer Equipment in any reasonable manner and retain the proceeds to the extent of any debt owed by Customer. To the extent the sale of the Customer Equipment exceeds the total amount due from Customer (for removal, storage and/or breach of this Agreement), NETRIPLEX shall remit the balance to Customer.
9. CUSTOMER EQUIPMENT.
In the event Customer obtains Co-Location Services from NETRIPLEX, the following terms shall apply:
A. Except as otherwise provided, Customer is responsible for the installation, maintenance, compatibility and performance of Customer Equipment
B. Customer will provide NETRIPLEX with a list of all Customer Equipment located within the NETRIPLEX Premises and update this list when equipment is added or removed. Customer must obtain written authorization from NETRIPLEX to place, install or move Customer Equipment within the NETRIPLEX Premises. This authorization can be obtained via the Netriplex Customer Portal.
C. All Customer Equipment, and any related materials, used in connection with the services provided by NETRIPLEX shall comply with all applicable manufacturer specifications, applicable laws, regulations and industry standards, including, but not limited to, those relating to proper installation, power consumption and ventilation/power dissipation.
D. NETRIPLEX may demand that Customer rectify, disconnect or remove Customer Equipment that is unauthorized, noncompliant with the terms herein, or otherwise presents any risk of harm to NETRIPLEX, its employees, agents, contractors, or customers, or the NETRIPLEX Premises. If Customer fails to take appropriate action within a reasonable time after receiving such demand, NETRIPLEX may affect the needed remedy, including the disconnection and removal of Customer Equipment.
E. If NETRIPLEX stores Customer Equipment at a NETRIPLEX location prior to the Service Commencement Date, said storage will be considered incidental to the service for which the equipment is used. If this storage continues for more than thirty (30) days without installation by Customer, NETRIPLEX may return, at Customer's expense, the stored Customer Equipment to Customer. The risk of loss for Customer Equipment prior to or subsequent to a service term shall be solely upon Customer.
F. Customer may only connect Customer Equipment to NETRIPLEX equipment located at a NETRIPLEX Premises and Customer may only use network services provided by or through NETRIPLEX.
G. NETRIPLEX SHALL NOT BE LIABLE FOR ANY DAMAGE OR LOSS OF ANY CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN THE NEGLIGENCE OF NETRIPLEX. TO THE EXTENT NETRIPLEX AND/OR ITS AFFILIATES ARE LIABLE FOR ANY DAMAGE TO OR LOSS OF CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY SHALL NOT EXCEED THE THEN-CURRENT REPLACEMENT VALUE OF THE AFFECTED CUSTOMER EQUIPMENT, SPECIFICALLY EXCLUDING LOST DATA, SOFTWARE AND FIRMWARE.
10. INTERNET SERVICES. NETRIPLEX may provide Internet service for Customers obtaining Managed Hosting Services or Co-Location Services from NETRIPLEX. The Internet is not owned, operated, managed by, or in any way under the control of NETRIPLEX or any of its affiliates. Customer agrees to use the Internet at its own risk. Interruptions to Internet access beyond the edge of the Netriplex Network may occur from time to time without notice or credit to Customer, unless otherwise provided for herein.
11. CUSTOMER CONTENT.
Customer is solely responsible for the content of its web site(s), including, but not limited to data, text, images, graphics, audio and video files, software and applications (“Content”). NETRIPLEX exercises no control whatsoever over the Content used by Customer or the end users of Customer. NETRIPLEX has no ownership interest in Customer’s Content and shall take no action to obtain an ownership interest in the same.
12. POWER. NETRIPLEX will use commercially reasonable efforts to provide constant AC power, A/B configuration on redundant UPS & Generator and/or single feed (A only) configuration on a single UPS & Generator as ordered by Customer. Customer agrees that in order to conform to the National Electric Code (NEC) and for electrical safety, use of any one side of an A/B circuit will not exceed 40%. Use of any single feed (A only) circuit will not exceed 80%. Remedies for loss of power are provided for exclusively in the applicable Service Level Agreement (SLA).
13. MAINTENANCE. Routine maintenance and periodic system repairs, upgrades, and reconfigurations may result in temporary interruptions to NETRIPLEX services. As a result, NETRIPLEX does not guarantee continuous or uninterrupted services and reserves the right from time to time to temporarily reduce or suspend these services. NETRIPLEX shall provide no less than twenty-four (24) hours notice to Customer of a scheduled maintenance. Unless otherwise agreed, such maintenance, repairs, upgrades, and configurations will occur between the hours of midnight and 6:00am GMT -5.
14. MONITORING AND DATA EXAMINATION
NETRIPLEX reserves the right to monitor Customer’s network activity for purposes of assessing network utilization, reliability and performance. This monitoring does not include examination of Customer data unless (i) such examination is deemed necessary to troubleshoot a Customer issue at Customer’s request; or (ii) such examination is made pursuant to a judicial order, search warrant, or statutory requirement, in which case NETRIPLEX shall provide notice thereof to Customer, to the extent said judicial order, search warrant, or statutory requirement permits, with sufficient time for Customer to take the appropriate steps to contest disclosure.
15. SERVICE LEVEL AGREEMENTS.
Customer may be eligible to certain performance or availability guarantees as outlined in one or more applicable Service Level Agreements (“SLA”). Each Service has its own Service Level Agreement and Customer is only eligible to receive the benefits of any SLA if Customer is paying for a Service and Customer’s account is not in default, monetary or otherwise, at the time of the incident, as outlined in section 3(B), and if customer is not in default of this agreement. Customer’s sole and exclusive remedy for NETRIPLEX’s failure to provide certain performance or availability guarantees is provided for in the applicable SLA.
16. THIRD PARTY SOFTWARE.
If any third party software, including corresponding documentation, is provided to Customer by NETRIPLEX in connection with the services provided by NETRIPLEX, Customer agrees to be bound by any additional licensing terms and conditions applicable to the third party software. Customer will use all third party software strictly in accordance with the terms and conditions required by the third party and within NETRIPLEX Premises only. NETRIPLEX makes no representations or warranties whatsoever with regard to any third party software.
17. TERMINATION OF RELATED SERVICE.
In the event Customer terminates a service without cause or NETRIPLEX terminates a Service for cause, and NETRIPLEX cannot continue to provide an additional related service as a result of the termination, then the related service shall be deemed terminated for cause by NETRIPLEX and any applicable termination or cancellation charges shall apply. A related service is one which can only be provided if another service is also provided.
18. CANCELLATION FEE.
If Customer terminates an ordered Service prior to the Service Commencement Date, Customer agrees to pay a pre-delivery cancellation fee including all out-of-pocket costs or expenses incurred by NETRIPLEX (e.g. labor, ordered equipment, licenses etc.) or imposed on NETRIPLEX by any third party in connection with such terminated Service. In addition, Customer shall remit payment for one (1) month's charge per terminated Service. Customer is only entitled to cancel a Service prior to the Service Commencement Date if NETRIPLEX has failed to deliver the Service within ninety (90) days from receipt of a Customer Order Form, unless Customer has failed to provide required information to begin configuration of any Service (e.g. payment, payment information, account contact information etc.) in which case Customer is not entitled to cancellation.
19. COMPLIANCE WITH APPLICABLE LAWS AND ACCEPTABLE USE.
A. Services provided by NETRIPLEX may only be used in accordance with this Agreement and all applicable laws and regulations. Customer will comply with the Acceptable Use Policy (“AUP”) of NETRIPLEX, available on the netriplex.com website and incorporated herein by this reference. Customer is responsible for the compliance of its end users with the terms the AUP and all applicable laws and regulations. Breaches and/or violations include, but are not limited to, unauthorized use of a copyright, trade secret or other proprietary information, use of threatening or obscene material, use of or making available for public viewing or download of illegal content including child pornography, terrorist or phishing sites, or use of material deemed by NETRIPLEX, in its sole discretion, to be inappropriate, including unsolicited commercial e-mail messages.
B. NETRIPLEX may suspend or block access to one or more Services (a “Service Suspension”) without notice to Customer for any of the following reasons: (a) violation of a law, regulation, court order, valid governmental request or order requiring immediate action by Customer or an end user of Customer; (b) to prevent interference with, damage to, or degradation of NETRIPLEX’S network; or (c) a violation of the AUP. Customer shall not be relieved of its payment obligations under this Agreement during a Service Suspension. NETTRIPLEX shall restore service upon remediation of the cause of suspension.
C. NETRIPLEX reserves the right to immediately terminate this Agreement in the event Customer breaches this Agreement, any other agreement with NETRIPLEX, the UAP or any applicable law or regulation.
A. NETRIPLEX shall maintain a General Liability and Errors and Omissions insurance policy insuring loss up to the amount of Two Million Dollars ($2,000,000.00) per occurrence and One Hundred Thousand Dollars ($100,000.00) per Customer. Said policy of insurance shall insure loss due to the negligence of NETRIPLEX resulting in interruptions to or deficiencies in services, damages to Customer Equipment and personal injury caused by the negligence of NETRIPLEX. Customer may request and receive a copy of the insurance policy.
B. Customer shall maintain a policy of insurance insuring loss up to the amount of One Million Dollars ($1,000,000.00) per occurrence, naming NETRIPLEX as an Alternate Insured. Said policy shall insure loss to NETRIPLEX and Customer due to the negligence of Customer, its officers, directors, employees, members, contractors or agents, said loss including, but not being limited to property damage, personal injury, loss of use of NETRIPLEX Premises, loss of business, damages to other users of NETRIPLEX customers, and copyright or intellectual property rights infringement. Customer shall provide a copy of the insurance policy upon request by NETRIPLEX.
21. DISCLAIMERS OF WARRANTY.
A. UNLESS OTHERWISE INDICATED HEREIN OR IN ANY OTHER AGREEMENT WITH NETRIPLEX, SERVICE(S) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND NETRIPLEX MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND CONCERNING THE SERVICE(S), SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THROUGH USE OF THE SERVICE(S), SOFTWARE OR EQUIPMENT. NETRIPLEX DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTIBILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ALL IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. USE OF ANY INFORMATION OBTAINED THROUGH THE USE OF NETRIPLEX’S NETWORK IS AT CUSTOMER’S OWN RISK. NETRIPLEX SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION PROVIDED BY THIRD PARTIES OBTAINED THROUGH ITS SERVICE(S).
B. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A SERVICE OUTAGE, INTERRUPTION OR DEFICIENCY OF SERVICE(S) OR FAILURE BY NETRIPLEX TO MEET THE TERMS OF AN APPLICABLE SERVICE ARE PROVIDED FOR HEREIN. ANY MONENTARY CREDIT TO BE GIVEN TO CUSTOMER WILL FIRST BE APPLIED TO ANY BALANCE OWED BY CUSTOMER TO NETRIPLEX.
C. NETRIPLEX CANNOT CONTROL THE PERFORMANCE OF ANY DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY THIRD PARTIES. ACTION OR INACTION BY THIRD PARTIES CAN IMPAIR OR DISRUPT NETRIPLEX’S SERVICE(S). NETRIPLEX MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY ANY THIRD PARTY, INCLUDING THE PROVIDERS OF TELECOMMUNICATIONS OR NETWORK PRODUCTS OR SERVICES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF NETRIPLEX, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY NETRIPLEX, SHALL NOT BE THE RESPONSIBILITY OF NETRIPLEX.
A. By Customer. In the event of a breach of this Agreement by Customer, NETRIPLEX may immediately terminate this Agreement unless otherwise provided for herein. Default includes (a) the failure by Customer comply with any provision of this Agreement; and (b) insolvency of Customer. Customer may remedy a default resulting from the failure of Customer to make a payment within thirty (30) days of the mailing or delivery of a demand for payment from NETRIPLEX. In the event NETRIPLEX terminates this Agreement pursuant to a default by Customer, Customer shall be responsible for the payment of any outstanding amounts due as of the date of termination as well as all remaining amounts due through to the end of the Agreement term. As used herein, “Insolvency” shall refer to any one of the following events: (i) Customer files a voluntary petition in bankruptcy or an involuntary petition is filed against Customer; (ii) Customer is adjudged bankrupt; (iii) a court assumes jurisdiction of the assets of Customer under federal reorganization act; (iv) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of Customer; (v) Customer becomes insolvent or suspends business; or (vi) Customer makes an assignment of its assets for the benefit of its creditors. Termination by NETRIPLEX shall not preclude NETRIPLEX from pursuing any other rights or remedies available to it, at law or in equity.
In the event Customer breaches this Agreement or if the actions or omissions of Customer threaten the integrity or functionality of NETRIPLEX equipment and/or services, NETRIPLEX may suspend, without notice, any and all services provided by NETRIPLEX and/or restrict Customer's access to the NETRIPLEX Premises.
If Customer breaches this Agreement, which breach results in damages to NETRIPLEX, NETRIPLEX may take possession of any Customer Equipment and, in its sole discretion, store it at Customer's expense until Customer remits all amounts owed hereunder (including expenses related to such storage). In the event Customer fails to remit payment within sixty (60) days of the delivery of written demand, NETRIPLEX may sell Customer Equipment in a reasonable manner and credit the amount obtained to the total amount owed. If the amount obtained through the sale of Customer Equipment exceeds the amount owed, the balance of the amount obtained shall be remitted to Customer.
B. By NETRIPLEX. In the event of a breach of this Agreement by NETRIPLEX, Customer must provide to NETRIPLEX written notice of said breach and afford NETRIPLEX ten (10) days within which to cure said default. In the event NETRIPLEX fails to cure the default within the time prescribed, Customer may terminate this Agreement.
23. EMINENT DOMAIN or LEASEHOLD TERMINATION.
A. Eminent Domain. In the event the NETRIPLEX Premises become the subject of a taking by eminent domain, NETRIPLEX may terminate any or all of the Services provided to Customer after first providing Customer with thirty (30) days written notice. NETRIPLEX shall not be liable for early termination of this Agreement under this provision.
B. NETRIPLEX shall have the right to terminate this Agreement without liability if the termination occurs pursuant to the expiration or termination of the NETRIPLEX leasehold interest in the NETRIPLEX Premises.
24. HOLD HARMLESS AND INDEMNIFICATION. Customer shall indemnify, defend and hold harmless NETRIPLEX, its affiliates, officers, directors, members, managers, licensees and licensors harmless from any and all claims, losses, damages and expenses, including, without limitation, reasonable attorney’s fees and court costs, or liabilities arising from or related to (i) a violation of any provision of this Agreement; (ii) any claim of infringement of any intellectual property or other proprietary interest based on the possession or use of any Service(s), software or equipment furnished to Customer or Customer’s end-user(s) and/or customer(s); (iii) any claim that Content, or the manner in which Customer or Customer’s customer(s) and/or end user(s) make use of the Service(s), constitutes an infringement of any patent, copyright, trademark, trade secret, or other right of any third party; (iv) any acts or omissions of Customer, its employees, agents, contractors, invitees, licensees, visitors, and/or customer/end-users; and/or (v) any injury or damage to the person, property, or business of NETRIPLEX, its employees, agents, contractors, invitees, licensees, visitors, and/or customer(s)/end-user(s).
NETRIPLEX shall indemnify, defend and hold Customer, its affiliates, officers, directors, licensees, licensers, and vendors harmless from any and all claims, losses, damages and expenses, including, without limitation, reasonable attorney’s fees and court costs, or liabilities arising from or related to (i) a violation of any provision of this Agreement by NETRIPLEX; (ii) any claim of infringement of any intellectual property or other proprietary interest based on the possession or use of any Service(s), software or equipment furnished to Customer by NETRIPLEX; (iii) any claim that use of the Service(s) provided by NETRIPLEX, constitutes an infringement of any patent, copyright, trademark, trade secret, or other right of a third party.
25. GOVERNING LAW. This Agreement shall be governed by the laws of the State of North Carolina, Buncombe County.
26. ASSIGNMENT. Customer may not assign this Agreement or any portion hereof without prior written authorization from NETRIPLEX. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
27. LIMITATION OF LIABILITY.
A. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES PROVEN BY THE CLAIMING PARTY UP TO THE MAXIMUM LIMITS OF ANY APPLICABLE INSURANCE COVERAGE.
B. In no event shall NETRIPLEX be liable for any damages, whether in contract or tort, including, but not limited to, direct, consequential (including without limitation loss of profits), cost of substitute goods, special, exemplary, incidental and indirect damages, arising out of (a) compliance or attempted compliance with the United States Copyright Act or (ii) qualification or attempted qualification for the safe harbors designated in Section 512 of the Digital Millennium Copyright Act (“DMCA”).
28. CONFIDENTIALITY. Neither party shall disclose any of the terms or conditions of this Agreement or any non-public information (collectively “Confidential Information”) without the prior written consent of the other party hereto. Confidential Information shall not include information that is generally known or was in the possession of the party prior to disclosure from the disclosing party. If required to release Confidential Information by a court of law or government order, the releasing party will give sufficient notice to the disclosing party to allow the disclosing party to take action to contest disclosure, if such notice is legally allowed.
29. MODIFICATION. This Agreement may be modified only by a written instrument executed by both parties.
30. NOTICES. Any notice required to be given hereunder shall be in writing and shall be deemed to have been delivered when deposited in the United States mail (registered or certified mail), return receipt requested, with adequate postage affixed, or delivered to a national overnight courier service and addressed to the persons set forth herein. Notice for monetary default may be sent by e-mail, facsimile, or other written format.
Netriplex, LLC 100 Technology Drive Asheville, North Carolina 28803 Attention: Legal Notifications
31. FORCE MAJEURE. Except for the obligation to make payments for Service(s) rendered, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, acts of government, terrorist acts, failure of third party(ies), utility power failure, or failure of communication lines.
32. SEVERABILITY. In the event any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.
33. WAIVER. Either party’s failure to insist upon or to enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any other remedy available at law or in equity. Neither the course of conduct of the parties or trade practice shall act to modify any provision of this Agreement.
A. NETRIPLEX reserves the right to terminate the Agreement or any affected Service Addendum upon notice to Customer in the event that (i) NETRIPLEX cannot maintain, despite reasonable efforts to do so, its regulatory approval necessary to provide the Service(s) and/or enter into this Agreement; and (ii) NETRIPLEX’S underlying vendor is unable or unwilling to provide some or all of the Service(s) required for NETRIPLEX to continue this Agreement. Said termination shall not be a breach of this Agreement.
B. The following provisions will survive the expiration or termination of this Agreement: Indemnity (Customer’s indemnity of NETRIPLEX); Ownership of Intellectual Property; Confidential Information; Disclaimers of Warranties; Limitation on Liability; Governing Law; Payment; and Miscellaneous.
35. THIRD PARTY BENEFICIARIES. The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any third party, including without limitation, Customer’s end users.
36. PUBLICITY. Neither party shall use for publicity or advertising the name of the other party, its affiliates or any of its directors, officers, managers, employees, consultants or agents or any trade name, trademark, service mark, logo or symbol of such party or its affiliates, except with the express prior written consent of such party.
37. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties hereto. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original for all purposes hereof.