This Hosting Master Services Agreement is between ATLANTIC.NET, Inc., a Delaware corporation (“ATLANTIC.NET”) and the organization or individual person whose name appears on the signature line of the Agreement or on any document that incorporates the Agreement by reference (“Customer”) and is effective on the Effective Date.
1. Defined Terms. Capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of the Agreement:
“Agreement” shall mean the Service Order Form(s), this Master Services Agreement, the Service Level Agreement, any ATLANTIC.NET Addendum to this Master Services Agreement, and the AUP, collectively. Any conflict between the documents shall be resolved by reading the documents in the foregoing order of precedence.
“AUP” shall mean ATLANTIC.NET’s Acceptable Use Policy, posted on Atlantic.Net’s website, as it may be amended from time to time in accordance with Section 6 (AUP) of this Master Services Agreement.
“Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Eastern Time, excluding any United States Federal Holiday.
“Effective Date” shall mean the day that Customer accepts the Agreement, either by signing ATLANTIC.NET’s Service Order Form or this Master Services Agreement, or by using the Service.
“Service Commencement Date” shall mean the date ATLANTIC.NET generates an e-mail message to Customer that provides access codes and passwords for use in connection with the Hosting Service.
“Service Level Agreement” shall mean the Service Level Agreement incorporated by reference in the Service Order Form, as it may be amended from time to time by written agreement of the parties.
“Service Order Form” shall mean the ATLANTIC.NET Dedicated Server Service Order Form accepted by Customer, as it may be amended from time to time in accordance with the Agreement, and any subsequent or additional Service Order Forms that incorporate this Master Services Agreement by reference.
“Service” or “Services” shall mean the Hosting Service and any Supplemental Service(s) (as defined in Section 3) provided by ATLANTIC.NET to Customer pursuant to the Agreement.
2. Term. The initial service term of the Agreement shall begin on the Service Commencement Date and continue for the period stated in the Service Order Form (the “Initial Term” ) and automatically renew for successive terms equal to the initial term unless canceled by either party in writing at least thirty days before the expiration of the current term (the “Term”). The Initial Term applicable to any Service Order Form executed subsequent to the Effective Date shall begin on the Service Commencement Date stated in that Service Order Form and continue for the period stated in that Service Order Form.
3. Services. Contingent upon Customer’s satisfaction of ATLANTIC.NET’s credit approval requirements and on ATLANTIC.NET’s verification of the information provided by Customer for the purpose of establishing the Service, ATLANTIC.NET agrees to provide the Hosting Service in accordance with the terms of the Agreement. In addition, ATLANTIC.NET may from time to time perform certain additional services on an hourly fee basis (the “Supplemental Services”), such as the customization of the Hosting Service at Customer’s request, services described in the AUP, and other professional technical services. Supplemental Services will be performed only on Customer’s advance approval and will be invoiced at ATLANTIC.NET’s published rates or other rates approved in advance in writing by Customer, provided, however, that ATLANTIC.NET may perform Supplemental Services for the fees stated in the AUP as necessary to remediate problems caused by AUP violations without obtaining advance Customer consent.
(a). AGREEMENT TO PROVIDE SERVICES AND PAY FEES; SERVICE LEVEL AGREEMENT. Pursuant to the Agreement, ATLANTIC.NET has agreed to provide certain services (“Services”) to the Customer, and the Customer has agreed to pay certain fees (“Fees”) to ATLANTIC.NET in consideration therefore. ATLANTIC.NET shall have the right to increase the Fees after 12 (twelve) months of service in proportion to increases in the Consumer Price Index and/or electricity costs applicable to the geographic area where the Building is located, plus two percent (2%). ATLANTIC.NET shall have the right to increase software license fees at any time for software in proportion to increases from owner of the product. Customer shall have the right to purchase additional Services offered by ATLANTIC.NET from time to time on terms and conditions to be agreed upon in writing.
(b). PAYMENT OF FEES; DUE DATE; LATE CHARGE; DEFAULT INTEREST. Customer agrees to pay the monthly and set up fees stated in the Service Order Form and ATLANTIC.NET’s standard fees for Supplemental Services as described in Section 3 (Services) above. ATLANTIC.NET may require payment in full of its first invoice before beginning the Service. On or before the first (1st) day of each and every month during the Term hereof (each, a “Due Date”), Customer agrees to and shall pay the Fees to ATLANTIC.NET, in advance, for the Services to be rendered by ATLANTIC.NET to Customer during said month, without offset, deduction or credit of any kind and in good and drawable funds. If Customer for any reason fails to pay the Fees to ATLANTIC.NET by the Due Date of any month during the Term hereof, Customer will be assessed an administrative charge in the amount which is equal to five (5%) of the overdue Fees (“Administrative Charge”); in addition ATLANTIC.NET may charge interest on all due but unpaid Fees at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law (“Default Interest”) until paid in full. Customer agrees to and shall pay to ATLANTIC.NET for all costs of collection of the Fees, Default Interest and Late Charges plus ATLANTIC.NET’s attorneys’ fees, costs, expenses and court costs and fees paid or incurred in connection therewith. Customer’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of the Hosting Master Service Agreement. If Customer requests that Atlantic.Net provide services not specifically set forth herein and Atlantic.Net agrees to provide such services, Customer agrees to pay ATLANTIC.NET’s standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service. Invoices for Supplemental Services, excess data transfer, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due on receipt. Customer acknowledges that it is responsible for excess data transfer fees that may result from a denial of service or other attack on its ATLANTIC.NET servers. Credits due under the Service Level Agreement may be given, at ATLANTIC.NET’s option, against the invoice for the month in which the event(s) occurred or the invoice for the following month. Payments must be made in United States dollars. ATLANTIC.NET may suspend any or all Services to Customer if payment for any Service is overdue. A Reinstatement Fee equal to seventy-five dollars ($75.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate.
(c) Early Termination . Customer acknowledges that the amount of the monthly recurring fee for the Hosting Service is based on Customer’s agreement to pay the fee for the entire Initial Term. In the event ATLANTIC.NET terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 13 (Termination), or Customer terminates the Hosting Service other than for ATLANTIC.NET’s breach in accordance with Section 13 (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the Term, are due on the Business Day following termination of the Hosting Service.
5. Customer Obligations. Customer agrees to do all of the following at its expense:
(a) Security Precautions. Use reasonable security precautions in connection with its use of the Services and, if Customer resells ATLANTIC.NET’s services, require its customers and end users to use reasonable security precautions;
(b) Data Back Up. Notwithstanding any agreement by ATLANTIC.NET to provide data storage or back up services, Customer will create and maintain a current copy of all content (including software, data and other information) stored on Customer’s ATLANTIC.NET servers or otherwise provided to ATLANTIC.NET, and store the copy in a reasonably secure location other than a ATLANTIC.NET server or location;
(c) Law, AUP. Comply with laws applicable to Customer’s use of the Services and with ATLANTIC.NET’s AUP, and if Customer resells ATLANTIC.NET’s Service, require its customers and end users to comply with applicable law and ATLANTIC.NET’s AUP; and
(d) Investigation of AUP. Cooperate with ATLANTIC.NET’s reasonable investigation of any suspected violation of the AUP.
6. AUP. Customer agrees that ATLANTIC.NET may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of ATLANTIC.NET’s notice to Customer that an amendment has been made, or the beginning of any Renewal Term or Extended Term. However, if: (i) the amendment would materially and adversely affect Customer, (ii) Customer provides ATLANTIC.NET with a written notice describing its objection to the amendment in reasonable detail within five (5) Business Days of the effective date of the amendment, and (iii) ATLANTIC.NET does not agree to waive the amendment as to Customer within five (5) Business Days of Customer’s notice, then Customer may terminate the Agreement without liability as provided in Section 13 (Termination).
7. Suspension of Service. Customer agrees that ATLANTIC.NET may suspend Services to Customer without notice and without liability if: (i) ATLANTIC.NET reasonably believes that the Services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable ATLANTIC.NET investigation of any suspected violation of the AUP; (iii) there is a denial of service attack on Customer’s servers or other event for which ATLANTIC.NET reasonably believes that the suspension of Services is necessary to protect its network or its other customers; (iv) as requested by a law enforcement or government agency; or (v) payment for any Service is overdue. Information on ATLANTIC.NET’s servers will be unavailable during a suspension of Services.
(a) Reciprocal . ATLANTIC.NET represents and warrants to Customer, and if Customer is not an individual, Customer represents and warrants to ATLANTIC.NET, that: (i) it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of the Agreement; and, (iii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents. If Customer is an individual, Customer represents and warrants to ATLANTIC.NET that he or she is at least 18 years of age.
(b) Customer . Customer represents and warrants to ATLANTIC.NET that: (i) the information Customer has provided and will provide to ATLANTIC.NET for purposes of establishing and maintaining the Services is accurate; and (ii) Customer shall not provide access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations, which include as of August 2005 Cuba, Iran, Libya, North Korea, Sudan or Syria.
9. Unauthorized Use of Service. Customer is generally responsible for the security of the servers provided pursuant to this Agreement, and ATLANTIC.NET agrees only to perform the specific security services described in the Service Order Form or other portion of the Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use results from ATLANTIC.NET’s failure to perform its obligations under the Agreement.
10. Indemnification. The parties agree that the indemnification obligations defined in this Section shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
(a) Customer . Customer agrees to indemnify and hold harmless ATLANTIC.NET, ATLANTIC.NET’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to: (i) the actual or alleged use of the Services in violation of: (A) the AUP, (B) any other portion of the Agreement, or (C) applicable law, by any person regardless of whether such person has been authorized to use the Services by Customer, except for unauthorized use that results from ATLANTIC.NET’s failure to perform its obligations under the Agreement, or (ii) any dispute regarding the control of Customer’s account with ATLANTIC.NET. Without limitation of the foregoing, Customer shall pay ATLANTIC.NET $200.00 per hour for time reasonably spent by ATLANTIC.NET personnel to respond to third party complaints regarding Customer’s use or alleged use of the Services in violation of the AUP, including complaints under the Digital Millenium Copyright Act.
(b) Reciprocal . Each party agrees to indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark, or other proprietary right.
(c) Procedures . A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices the defense of the matter. The indemnified party will have the right to select counsel to defend it in respect of any indemnified matter under this Section; provided, however, that the counsel selected must be reasonably satisfactory to the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld. Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement.
11. Disclaimer of Warranties.
ATLANTIC.NET DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ATLANTIC.NET DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, EXCEPT AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER PORTION OF THE AGREEMENT.
12. Limitation of Damages. The parties agree that the allocations of risk made in this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.
THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT AND SERVICE ORDER FORM ARE CUSTOMER’S SOLE REMEDIES FOR ATLANTIC.NET’S FAILURE TO MEET THE GUARANTIES AND WARRANTIES STATED IN THOSE DOCUMENTS, PROVIDED THAT THIS PROVISION DOES NOT LIMIT CUSTOMER’S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 13 (TERMINATION) BELOW IF SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
EXCEPT AS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, ATLANTIC.NET SHALL NOT BE LIABLE TO THE CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER’S USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY ATLANTIC.NET’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ATLANTIC.NET AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE HOSTING SERVICE FOR THE THREE MONTHS PRIOR TO THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
NO CLAIM MAY BE ASERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
(a) Customer . The Agreement may be terminated by Customer prior to the expiration of the Initial Term, any Renewal Term, or Extended Term without liability (except for amounts due for Services through the effective date of termination) as follows: (i) ATLANTIC.NET fails in a material way to provide the Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail, (ii) ATLANTIC.NET materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer’s written notice describing the violation in reasonable detail, or (iii) as provided in Section 6 (AUP) upon thirty (30) days advance written notice in the event of an amendment to the AUP that materially and adversely affects Customer and that is not waived by ATLANTIC.NET.
(b) ATLANTIC.NET . The Agreement may be terminated by ATLANTIC.NET prior to the expiration of the Initial Term, any Renewal Term, or Extended Term, without liability as follows: (i) upon five (5) Business Days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from ATLANTIC.NET describing the violation in reasonable detail; (iii) upon one (1) Business Days notice if Customer’s Service is used in violation of a material term of the AUP more than once; or (iv) upon reasonable notice if ATLANTIC.NET is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.
(a) Confidential Information . Confidential Information is: (i) with respect to ATLANTIC.NET, ATLANTIC.NET’s unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology, (ii) with respect to Customer, content transmitted to or from, or stored by Customer on, ATLANTIC.NET’s servers, and (iii) with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party’s written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement, or is required to be disclosed by law or regulation. Each party agrees not to disclose the other’s confidential information to any third party except to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement.
(b) ATLANTIC.NET’s Use of Customer’s Name . Customer agrees that ATLANTIC.NET may publicly disclose that ATLANTIC.NET is providing services to Customer and may include Customer’s name in promotional materials, including press releases and on ATLANTIC.NET’s Web site. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s permission.
(c) Requests for Customer Information . Notwithstanding anything to the contrary above, Customer agrees that ATLANTIC.NET may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that ATLANTIC.NET believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or government agency. ATLANTIC.NET may provide any information, including Confidential Information, it has about Customer or its customers or end users in response to a formal request in a civil action that on its face meets the requirements for such a request.
15. Software. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by ATLANTIC.NET. Customer may not reverse engineer, decompile, or disassemble any ATLANTIC.NET provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software.
16. Third Party Products. As a convenience to Customer, ATLANTIC.NET may from time to time arrange for Customer’s purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. ATLANTIC.NET MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND THEY ARE PROVIDED “AS IS.” Customer’s use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party.
17. Notices. Notices to ATLANTIC.NET under the Agreement shall be given in writing via first class mail or established and well-known express courier to Legal Counsel, ATLANTIC.NET HOSTING , at ATLANTIC.NET’s principal office address posted on www.ATLANTIC.NET, currently:
440 West Kennedy Blvd, Suite 3
Orlando , FL 32810
Notices to Customer shall be given via electronic mail to the individual designated as the Contact on the Service Order Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
(a) Solicitation of ATLANTIC.NET Employees . Customer agrees that it shall not solicit any ATLANTIC.NET employee with whom Customer has had direct contact in connection with this Agreement for employment with Customer or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, Customer shall not be precluded from (i) hiring an employee of ATLANTIC.NET who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. In the event of a violation of this provision, in addition to any other right ATLANTIC.NET may have at law or in equity, Customer shall make a one-time payment to ATLANTIC.NET in the amount of fifty percent (50%) of the employee’s base salary for one year.
(b) Ownership . Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property, and that ATLANTIC.NET shall own any intellectual property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess ATLANTIC.NET’s server(s) or other hardware, and has no right of physical access to the hardware. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name) and agrees that ATLANTIC.NET may take steps to change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue . The Agreement shall be governed by the laws of the State of Florida , exclusive of its choice of law principles, and the laws of the United States of America , as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN ORANGE COUNTY, FLORIDA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
(d) Modifications . Except for the following, the Agreement may be amended only by a formal written agreement signed by both parties: (i) amendments of the AUP as described in Section 6, above, (ii) a Renewal Term may be agreed by means of ATLANTIC.NET’s renewal process, and (iii) changes to the “Server Specifications,” “Software and Services,” or fees section of an existing Service Order Form may be made by an exchange of correspondence (including electronic mail) that includes both parties’ express consent to the change. The terms on either party’s purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.
(e) Non-Waiver . A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Captions . The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.
(g) Counterparts . Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original.
(h) Survival . The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
(i) Force Majeure . Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(j) No Third Party Beneficiaries . There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.
(k) Severability . In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
(l) Relationship Between the Parties . The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive. ATLANTIC.NET may provide service to any person, including a competitor of Customer.
(m) Assignment . Customer may not transfer the Agreement without ATLANTIC.NET’s prior written consent. ATLANTIC.NET’s approval for assignment is contingent on the assignee meeting ATLANTIC.NET’s credit approval criteria. ATLANTIC.NET may assign the Agreement in whole or in part.
(n) Agreement . The Service Order Form(s), Service Level Agreement, ATLANTIC.NET’s AUP, and any ATLANTIC.NET Addendum to this Master Services Agreement accepted by Customer are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
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