 1. Defined Terms.
Capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of the Agreement:
"AUP" means Senpai IT Solutions' Acceptable Use Policy, posted on the Effective Date at http://www.senpai-it.com/aup.php, as it may be amended from time to time in accordance with Section 6 (AUP) of this Master Services Agreement.
"Business Day" means Monday through Friday, 8:00 to 16:00 GMT time, excluding weekends and bank holidays.
"Effective Date" means the day that Customer accepts the Agreement, either by signing a Senpai IT Solutions Service Order Form or this Master Services Agreement, or by using the Service.
"Unmanaged Hosting Service" or "Dedicated Servers" means the provision of the servers and other devices and services described in the Service Order Form(s) and Support.
"Protected Information" means all information that identifies an individual, such as name, social security number or other government issued identification number, date of birth, mother's maiden name, unique biometric data, unique electronic identification number, address, or telecommunication number, and all other information that is the subject of special legal or regulatory security requirements, either existing as of the Effective Date or that may be subsequently enacted.
"Service Commencement Date" means the date Senpai IT Solutions generates an e-mail message to Customer that provides access codes and passwords for use in connection with the Unmanaged Hosting Service.
"Service Level Agreement" means 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" means a Senpai IT Solutions Service Order Form that incorporates this Master Services Agreement by reference and that has been accepted by Customer, as it may be amended from time to time in accordance with the Agreement.
"Service" or "Services" means the Unmanaged Hosting Service and any Supplemental Service(s) (as defined in Section 3) provided by Senpai IT Solutions to Customer pursuant to the Agreement.
"Supplemental Services" means the services described in Section 2(b).
"Support" means: (i) management of the Services by a service delivery team that may include any 3rd party specialists that Senpai IT Solutions may find reasonable to hire, (ii) availability of email support during the working hours.
"Term" means the Initial Term and any Renewal Term or Extended Term, collectively.
All dates are in GMT with applied daylight saving changes. All dates are formatted yyyy-mm-dd hh:mm:ss using 24-hour clock time.
2. Services.
(a) Unmanaged Hosting Services. Contingent upon Customer's satisfaction of Senpai IT Solutions' credit approval requirements and on Senpai IT Solutions' verification of the information provided by Customer for the purpose of establishing the Service, Senpai IT Solutions agrees to provide the Unmanaged Hosting Service in accordance with the terms of each Service Order Form entered into pursuant to the Agreement and the other terms of the Agreement.
(b) Supplemental Services. In addition, Senpai IT Solutions may from time to time perform certain additional services on an quarter-hourly or fixed fee basis, such as customization of the Unmanaged Hosting Service at Customer's request, and other professional technical services. Supplemental Services will be performed only on Customer's advance approval and will be invoiced at Senpai IT Solutions' published rates or other rates approved in advance in writing by Customer. Senpai IT Solutions may also perform services as described in the AUP for the fees stated in the AUP as necessary to remediate problems caused by AUP violations without obtaining advance Customer consent.
3. Term.
The term of this Master Services Agreement begins on the Effective Date and continues for so long as any Service Order Form incorporating this Master Services Agreement is in effect. The term of each Service Order Form begins on the Service Commencement Date for that Service Order Form and continues for the period stated in that Service Order Form (the "Initial Term"). Senpai IT Solutions and Customer may agree to one or more additional terms having a fixed number of months to follow the expiration of the Initial Term (each a "Renewal Term"). If upon expiration of the Initial Term no Renewal Term has been established by agreement of the parties, the Service Order Form shall automatically renew for successive extended terms of thirty (30) days each (each an "Extended Term") until Senpai IT Solutions or Customer provides the other with three (3) days advance notice of non-renewal.
4. Payments.
(a) Fees. Customer agrees to pay the fees stated in the Service Order Form and Senpai IT Solutions' fees for Supplemental Services. Senpai IT Solutions' first invoice under a Service Order Form shall include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the same day of the next calendar month. Senpai IT Solutions may require payment in full of its first invoice before beginning the Service. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance on or around seven (7) days before the expiry of the contract term, and are due upon receipt. Invoices for Supplemental Services, excess data transfer, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due on receipt. Payments must be made in Euro or in an alternative currency at the rate that is set by Senpai IT Solutions at the day of payment. Fees not disputed within one hundred twenty (120) days of due date are conclusively deemed accurate.
(b) Collections. Senpai IT Solutions may suspend any or all Services on at least one (1) Business Day's advance notice to Customer if payment for any Service is overdue. Customer agrees to pay Senpai IT Solutions' then current reinstatement fee following a suspension of service for non-payment. Senpai IT Solutions may charge interest on amounts that are over due by ten (10) days or more at the lesser of 3% per month. Customer agrees to pay Senpai IT Solutions' reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(c) Early Termination. The setup fee is non-refundable unless the Customer requested the the cancellation
before the day on which the server has been setup and the server login details emailed to the customer. Customer acknowledges that the amount of the monthly recurring fee for the Unmanaged Hosting Service is based on Customer's agreement to pay the monthly recurring fees for the entire Term. Without limiting any other remedy available to Senpai IT Solutions arising from an early termination of the Agreement, in the event Senpai IT Solutions terminates the Agreement for Customer's breach of the Agreement in accordance with Section 13(b) (i) - (iii) (Termination), or Customer terminates the Unmanaged Hosting Service other than for Senpai IT Solutions' breach in accordance with Section 13(a) (i) - (ii) (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the Term, are due thirty (30) days following termination of the Unmanaged Hosting Service.
(d) Taxes. Customer shall remit to Senpai IT Solutions all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on Senpai IT Solutions) regardless of whether Senpai IT Solutions fails to collect the tax at the time the related Services are provided. Customer will provide such information and documentation reasonably requested by Senpai IT Solutions to determine whether Senpai IT Solutions is obligated to collect VAT from Customer.
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 (including, without limitation, encrypting any Protected Information transmitted to or from, or stored by Customer on, the servers or storage devices used by Customer) and, if Customer resells Senpai IT Solutions' services, require its customers and end users to use reasonable security precautions;
(b) Law, AUP. Comply with all legal requirements applicable to Customer's use of the Services and with Senpai IT Solutions' AUP, and if Customer resells Senpai IT Solutions' Service, require its customers and end users to comply with applicable legal requirements and Senpai IT Solutions' AUP;
(c) Investigation of AUP. Cooperate with Senpai IT Solutions' reasonable investigation of any suspected violation of the AUP; and
(d) Verification of identity. When requested, provide the copies of the ID and other documents to Senpai IT Solutions in order to verify the identity of the Customer. The copies of the documents will be used by Senpai IT Solutions solely for the purpose for which such copies are requested.
6. AUP.
Customer agrees that Senpai IT Solutions may, in its reasonable commercial judgment, 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 Senpai IT Solutions' 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 Senpai IT Solutions 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) Senpai IT Solutions 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 (a)(iii) (Termination).
7. Suspension of Service.
(a) Customer agrees that Senpai IT Solutions may suspend Services to Customer without liability if: (i) Senpai IT Solutions reasonably believes that the Services are being used in violation of the Agreement or applicable law; (ii) Customer fails to cooperate with any reasonable Senpai IT Solutions 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 Senpai IT Solutions reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or (iv) requested by a law enforcement or government agency. Any data hosted on Senpai IT Solutions' servers will be unavailable during a suspension of Services, or available only from the IP-KVM console.
(b) Senpai IT Solutions reserves the right to suspend or cancel, at any time and at its sole discretion, any server if the activities that are carried out with the usage of that server which Senpai IT Solutions in its sole discretion deems to be (i) made in breach of this Agreement or (ii) are suspicious with regards to money laundering, distributions of malware, troyans and viruses, hosting of botnet command centers, supporting of terrorism, fraud, distribution of any kind of pornography, email and web spam, phishing, unauthorized access to information and private data, identity theft, infringement of copyright, or other illegal activities. Senpai IT Solutions will make reasonable efforts to inform the Customer of any measure unless Senpai IT Solutions is prohibited from doing so by law or under an order from a competent court or authority.
8. Representations and Warranties.
(a) Reciprocal. Senpai IT Solutions represents and warrants to Customer, and Customer represents and warrants to Senpai IT Solutions, 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.
(b) Customer. Customer represents and warrants to Senpai IT Solutions that: (i) the information Customer has provided for the purpose of establishing an account with Senpai IT Solutions is accurate; (ii) Customer will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles; (iii) Customer shall perform its security and other obligations stated in Section 5 above.
9. Unauthorized Use of Service.
Senpai IT Solutions agrees only to perform the specific security services described in the Service Order Form and other portion of the Agreement. Customer is otherwise responsible for the security of the servers provided pursuant to this Agreement. Customer shall be responsible for unauthorized use of the Services by any person, unless such unauthorized use results from Senpai IT Solutions' 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 Senpai IT Solutions, Senpai IT Solutions' affiliates, and each of their respective officers, directors, attorneys, agents, employees, outsource staff, freelancers, and sub-contractors from and against any and all claims, requests for injunctive relief, 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 any of the following: (i) 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 Senpai IT Solutions' negligence or failure to perform its obligations under the Agreement, (ii) actual or alleged breach by Customer of its obligations to its customers or end users; and (iii) any dispute between persons who claim to have authority to act for Customer in connection with the control of Customer's account with Senpai IT Solutions.
(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, employees, outsource staff, freelancers, and sub-contractors from and against any and all claims, requests for injunctive relief, 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 qualified to defend the indemnified matter in the reasonable judgment of the indemnified party. The indemnifying party shall reimburse the indemnified party for actual fees and expenses incurred by the indemnified party to defend an indemnified matter, including the reasonable fees and expenses of outside counsel retained by the indemnified 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 Senpai IT Solutions is indemnifying multiple customers 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.
(a) SENPAI IT SOLUTIONS 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.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, SENPAI IT SOLUTIONS 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.
(a) CUSTOMER HEREBY RELEASES SENPAI IT SOLUTIONS FROM ANY LIABILITY FOR LOSS OF DATA TO THE EXTENT THAT THE DATA HAS CHANGED SINCE THE TIME THAT SENPAI IT SOLUTIONS WAS LAST REQUIRED BY THE AGREEMENT TO PERFORM A BACK UP.
(b) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL 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. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.
(c) NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, EXCEPT FOR CLAIMS BASED ON SENPAI IT SOLUTIONS' WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF SENPAI IT SOLUTIONS AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED ONE TIME THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE ORDER FORM(S) IN EFFECT AT THE TIME OF THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
(d) NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED MORE THAN SIX (6) MONTHS PRIOR TO SUCH CLAIM BEING ASSERTED.
13. Termination.
(a) Customer. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or Renewal Term without liability (except for amounts due for Services through the effective date of termination) as follows: (i) Senpai IT Solutions fails in a material way to provide the Unmanaged Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) working days of Customer's written notice describing the failure in reasonable detail; (ii) Senpai IT Solutions 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) 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 Senpai IT Solutions as provided in Section 6 (AUP).
(b) Senpai IT Solutions. The Agreement may be terminated by Senpai IT Solutions prior to the expiration of the Initial Term or Renewal Term, without liability as follows: (i) upon one (1) 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; (iii) Customer issues a termination request of the Unmanaged Hosting Service provided by Senpai IT Solutions within less than 7 (seven) days before the contracted expiry date of the service, in which case Senpai IT Solutions reserves the right to terminate the service at any time following the cancellation request; or (iv) upon reasonable notice of at least one (1) day if Senpai IT Solutions 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.
14. Confidentiality.
(a) Confidential Information. Confidential Information is all information disclosed by one party to the other that the other, whether before or after the execution of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Senpai IT Solutions, Senpai IT Solutions' unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology, (ii) for Customer, content transmitted to or from, or stored by Customer on, Senpai IT Solutions' 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 thirty (30) 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.
(b) Use and Disclosure. Each party agrees not to use the other party's Confidential Information except in connection with the performance or use of the Services, or the exercise of its rights under this Agreement, or to disclose the other's confidential information to any third party except as provided in subsection (d) below and 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.
(c) Senpai IT Solutions' Use of Customer's Name. Customer agrees that Senpai IT Solutions may publicly disclose that Senpai IT Solutions is providing services to Customer and may include Customer's name in promotional materials, including press releases and on Senpai IT Solutions' Web site. Neither party may publicly use the other party's logo or other trade or service mark without that party's permission.
(d) Requests for Customer Information. Notwithstanding anything to the contrary above, Customer agrees that Senpai IT Solutions 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 Senpai IT Solutions 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. Senpai IT Solutions 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 Senpai IT Solutions. Customer may not reverse engineer, decompile, or disassemble any Senpai IT Solutions 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. If the Service Order Form indicates that Senpai IT Solutions uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software, and agrees that if it resells the Services it will require each of its customers to agree to those terms.
16. Third Party Products.
As a convenience to Customer, Senpai IT Solutions may from time to time arrange for Customer's purchase or license of third party software, services, hardware, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Senpai IT Solutions 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 Senpai IT Solutions under the Agreement shall be given in writing via electronic mail or established and well-known express courier to
legal@senpai-it.com
Senpai IT Solutions
Unit 10, College Court
Lower Kevin Street
Dublin 8
Ireland
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 of amendments to the AUP may be given by posting a notice of the amendment on the Customer Service section of Senpai IT Solutions' website. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
18. Miscellaneous.
(a) Solicitation of Senpai IT Solutions Employees. Customer agrees that it shall not solicit any Senpai IT Solutions 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 Senpai IT Solutions who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. In the event of a violation of this provision, in addition to any other right Senpai IT Solutions may have at law or in equity, Customer shall make a one-time payment to Senpai IT Solutions 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 Senpai IT Solutions 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 Senpai IT Solutions' and/or its affiliate(s)'s server(s) or other hardware, and has no right of physical access to the hardware. Upon ermination 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 Senpai IT Solutions may take steps to change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue, Restrictions. The Agreement shall be governed by the laws of the Republic of Ireland. 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 COURTS IN DUBLIN CITY, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. Customer agrees that it shall not bring or participate in any class action lawsuit against Senpai IT Solutions, its affiliates or any of their respective officers, directors, agents, employees, outsource staff, freelancers, or sub-contractors.
(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, and (ii) 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. Facsimile signatures or signatures on an electronic image, such as .pdf, .jpg, .gif, .png, .bmp or .tiff format, shall be deemed to be original signatures.
(h) Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations and any provision that is made the basis of a claim for indemnification, 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. Customer may authorize its subsidiaries and affiliates to use the Services, provided that no such person shall be a third party beneficiary of the Agreement or otherwise be in privity of contract with Senpai IT Solutions, and Customer shall be responsible for use of the Services by its affiliates and subsidiaries to the same extent as if Customer had been using the Service itself.
(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. Senpai IT Solutions may provide service to any person or legal entity, including a competitor of Customer.
(m) Assignment. Customer may not transfer the Agreement without Senpai IT Solutions' prior written consent. Senpai IT Solutions' approval for assignment is contingent on the assignee meeting Senpai IT Solutions' credit approval criteria. Senpai IT Solutions may assign the Agreement in whole or in part.
(n) Notice of Changes to Documents. Customer represents that it has not made any change to the final signed Service Order Form or other documents constituting the Agreement that have not been brought to the attention of Senpai IT Solutions via a redlined document, e-mail correspondence or other means reasonably calculated to put Senpai IT Solutions on notice of the change.
(o) Language. Les parties aux presentes conferment leur volonte que cette convention de meme que tous les documents y compris tout avis qui shy rattache, soient rediges en langue anglaise. (Translation: "The parties confirm that this agreement and all related documentation is and will be in the English language.")
(p) Agreement. The Service Order Form(s), Service Level Agreement, Senpai IT Solutions' AUP, and any Senpai IT Solutions 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.
(q) Traffic. The usage of traffic is free and unlimited. However the connection speed will be reduced to 10 mbps if the limit of 10 terrabytes transfer per calendar month per server is reached. You can then request a permanent 100 mbps paid bandwidth with the first 10 terrabytes per month for free. Once the server is switched to the paid bandwidth, it can not be switched back to the free bandwidth unless the full setup fee for the given server plan is paid. All payments for the traffic overusage must be made upfront in the matter of deposit; once the traffic usage reaches the paid amount of the traffic for the given month, another prepayment must be made. The current cost for the traffic overusage is 9 euro per terrabyte or part thereof. The threshold for the AMD-based servers is 5 terrabytes instead of 10. The prices are not VAT inclusive.
19. Risks Acknowledgment.
Offered goods and services are not provided on order of a person or company, who runs WebMoney Transfer System. We are an independent entity providing services and making decisions about pricing and offers ourselves. Companies, running WebMoney Transfer System do not receive any commission, interest fees or any other awards/refunds for the provided goods or services and are not liable for our activities. Verification done by WebMoney Transfer System only confirms the accuracy of our contact details and prove the identity. Verification is performed on our own intention and doesn't mean or show our connection with WebMoney System operators sales.
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