CONDITIONS AND TERMS :
This Master Services Agreement is between Elite Facility, LLC., an Illinois limited Liability Company and the person (individual or legal 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:
shall mean the Hosting Proposal(s), this Master Services Agreement, the Service Level Agreement, any Elite Facility Addendum to this Master Services Agreement, and the Acceptable Use Policy, collectively. Any conflict between the documents shall be resolved by reading the documents in the foregoing order of precedence.
shall mean Elite Facility's Acceptable Use Policy, posted on the Effective Date at http://www.elitefacility.com, as it may be amended from time to time in accordance with Section 6 (AUP) of this Master Services Agreement.
shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., central U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
shall mean the day that Customer accepts the Agreement, either by signing Elite Facility's Hosting Proposal or by using the Service.
shall mean management of the Services by a service delivery team that includes a team leader, account manager, and support specialists with training and experience in hosting systems with availability of live support twenty four hours per day, seven days per week, year round.
"Managed Hosting Service"
shall mean the provision of the services described in the Hosting Proposal and Service Level Agreement.
"Service Commencement Date"
shall mean the date Elite Facility provides to customer via e-mail the access information to the server for use in connection with the Managed Hosting Service.
"Service Level Agreement"
shall mean the Service Level Agreement incorporated in the Hosting Proposal, as it may be amended from time to time by written agreement of the parties.
shall mean the Elite Facility Hosting Proposal accepted by Customer, as it may be amended from time to time in accordance with the Agreement, and any subsequent or additional Hosting Proposals that incorporate this Master Services Agreement by reference.
"Service" or "Services"
shall mean the Managed Hosting Service and any Additional Service(s) (as defined in Section 3) provided by Elite Facility to Customer pursuant to the Agreement.
The initial service term of the Agreement shall begin on the Service Commencement Date and continue for the period stated in the Hosting Proposal (the "Initial Term"). Elite Facility 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 and no Renewal Term has been established by agreement of the parties, the Agreement shall automatically renew for successive extended terms of thirty (30) days each (each an "Extended Term") until Elite Facility or Customer provides the other with thirty (30) days advance written notice of termination. The Initial Term applicable to any Hosting Proposal executed subsequent to the Effective Date shall begin on the Service Commencement Date stated in that Hosting Proposal and continue for the period stated in that Hosting Proposal.
Elite Facility agrees to provide the Managed Hosting Service in accordance with the terms of the Agreement. In addition, Elite Facility may from time to time perform certain Additional Services on an hourly fee basis at an agreed upon rate between Customer and Elite Facility. Additional Services is defined as any and all services that customer requests from Elite Facility and for which Elite Facility agrees to perform, provided, however, that Elite Facility may perform Additional Services for the fees stated in the AUP as necessary to remediate problems caused by AUP violations without obtaining advance Customer consent.
- (a) Fees.
Customer agrees to pay the monthly and set up fees stated in the Hosting Proposal and any agreed upon Additional Services, in accordance with Section 3 (Services). Elite Facility's first invoice shall include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. Elite Facility 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 the first day of each calendar month, and are due upon receipt. Invoices for Additional Services, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due upon receipt. Credits due under the Service Level Agreement may be given, at Elite Facility'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. Elite Facility may charge interest on amounts that are over due by thirty (30) days or more at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Elite Facility may suspend any or all Services on fifteen (15) Business Days' advance notice to Customer if payment for any Service is overdue. Fees not disputed within ninety (90) days of due date are conclusively deemed accurate. Customer agrees to pay Elite facility's then current reinstatement fee, not to be in excess of Customer's last full month invoice, following a suspension of service for non-payment or an AUP violation investigation. Customer agrees to pay Elite Facility reasonable costs for collection of overdue amounts, including collection agency fees, attorney fees and court costs.
- (b) Early Termination.
Customer acknowledges that the amount of the monthly recurring fee for the Managed Hosting Service is based on Customer's agreement to pay the fee for the entire Initial Term. In the event Elite Facility terminates the Agreement for Customer's breach of the Agreement in accordance with Section 14 (Termination), or Customer terminates the Managed Hosting Service other than for Elite Facility's breach in accordance with Section 14 (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the Initial Term, are due on the Business Day following termination of the Managed Hosting Service.
- (c) Taxes.
Customer shall remit to Elite Facility all sales tax, VAT, and any other applicable taxes imposed on the provision of the Services, regardless of whether Elite Facility fails to collect the tax at the time the related Services are provided. If Customer is located in the European Union, Customer will remit VAT at the appropriate rate unless Customer provides Elite Facility with a valid VAT number or evidence acceptable to Elite Facility that Customer is using the Services for a business purpose.
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 Elite Facility's services, require its customers and end users to use reasonable security precautions;
- (b) Data Back Up.
Notwithstanding any agreement by Elite Facility to provide data storage or back up services, Customer should create and maintain a current copy of all content (including software, data and other information) stored on the Customer's managed servers by Elite Facility and store the copy in a reasonably secure location other than an Elite Facility's server or location;
- (c) Law, AUP.
Comply with laws applicable to Customer's use of the Services and with Elite Facility's AUP, and if Customer resells Elite Facility's Service, require its customers and end users to comply with applicable law and Elite Facility's AUP; and
- (d) Investigation of AUP.
Cooperate with Elite Facility's reasonable investigation of any suspected violation of the AUP.
Customer agrees that Elite Facility 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 Elite Facility'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 Elite Facility with a written notice describing its objection to the amendment in reasonable detail within thirty (30) Business Days of the effective date of the amendment, and (iii) Elite Facility does not agree to waive the amendment as to Customer within thirty (30) Business Days of Customer's notice, then Customer may terminate the Agreement without liability as provided in Section 14 (a)(iv) (Termination).
7. Suspension of Service.
Customer agrees that Elite Facility may suspend Services to Customer without notice and without liability if: (i) Elite Facility reasonably believes that the Services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable Elite Facility 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 Elite Facility reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or (iv) as requested by a law enforcement or government agency. Information on Elite Facility's servers will be unavailable during a suspension of Services.
- (a) Reciprocal.
Elite Facility represents and warrants to Customer, and if Customer is not an individual, Customer represents and warrants to Elite Facility, 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 Elite Facility that he or she is at least 18 years of age.
- (b) Customer.
Customer represents and warrants to Elite Facility that the information Customer has provided and will provide to Elite Facility for purposes of establishing and maintaining the Services is accurate and that Customer will not use the Services for any unlawful purposes.
9. Unauthorized Use of Service.
Customer is generally responsible for the security of the servers provided pursuant to this Agreement, and Elite Facility agrees only to perform the specific security services described in the Hosting proposal, Amendments, 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 Elite Facility's failure to perform its obligations under the Agreement.
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) 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 from gross negligence or willful misconduct of the other party or 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.
- (b) Procedures.
A Party seeking indemnification pursuant to this Agreement shall (a) notify the indemnifying Party in writing within five (5) business days of such Party's receipt of the Third Party Claim or action upon which such claim for indemnification is based and tender the defense thereof to the indemnifying Party, (b) permit the indemnifying Party to direct the defense of, or to otherwise handle, such Third Party Claim or action at the indemnifying Party's expense, (c) provide the indemnifying Party with all information and assistance reasonably necessary to defend or handle same and (d) not enter into any settlement of the Third Party Claim or action without the indemnifying Party's written consent. Notwithstanding the foregoing, the Party seeking indemnification may, at its sole option and expense, participate in the defense of the Third Party Claim or action with additional counsel of its own choosing. Failure to comply with this section will not relieve a Party of its indemnification obligations unless such failure results in material prejudice to the indemnifying Party's defense of a Third Party Claim or action.
11. Disclaimer of Warranties.
ELITE FACILITY 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, ELITE FACILITY 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 ARE CUSTOMER'S SOLE REMEDIES FOR ELITE FACILITY'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, ELITE FACILITY 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 ELITE FACILITY'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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ELITE FACILITY 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 MANAGED 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) there are three (3) of more separate events creating a right to a credit under the Service Level Agreement during any rolling thirty (30) day period and Customer gives written notice of termination no later than forty-five (45) days following the occurrence of the third event; (ii) Elite Facility fails in a material way to provide the Managed 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, (iii) Elite Facility 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, (iv) 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 Elite Facility.
- (b) Elite Facility.
The Agreement may be terminated by Elite Facility prior to the expiration of the Initial Term, any Renewal Term, or Extended Term, without liability as follows: (i) upon fifteen (15) 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 fifteen (15) days of a written notice from Elite Facility describing the violation in reasonable detail; (iii) upon fifteen (15) 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 Elite Facility 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 Elite Facility, Elite Facility'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, Elite Facility'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) Elite Facility's Use of Customer's Name.
Elite Facility shall not publicly disclose that Elite Facility is providing services to Customer and may shall include Customer's name in promotional materials, including press releases and on Elite Facility's Web site, unless written permission is given by customer. 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 Elite Facility 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 Elite Facility 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. Elite Facility 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.
Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by Elite Facility. Customer may not reverse engineer, decompile, or disassemble any Elite Facility 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, Elite Facility 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. ELITE FACILITY 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.
Notices to Elite Facility under the Agreement shall be given in writing via first class mail or established and well-known express courier to Legal Counsel, Elite Facility LLC, at Elite Facility's principal office address posted on www.elitefacility.com, currently:
1413 Tonne Rd
Elk Grove Village,
Notices to Customer shall be given via electronic mail to the individual designated as the Contact on the Hosting Proposal 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) 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 Elite Facility shall own any intellectual property that it may develop in the course of performing the Services. Unless otherwise agreed to in writing, Customer does not acquire any ownership interest or rights to possess Elite Facility's server(s) or other hardware, and has no right of physical access to the hardware. Unless otherwise agreed to in writing, 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 Elite Facility may take steps to change or remove any such IP addresses.
- (b) Governing This Agreement shall be exclusively interpreted,
construed and enforced in all respects in accordance with the laws of the State of Illinois without reference to its choice of law rules. The Parties hereto agree that venue for any and all disputes hereunder, or action on any obligation hereunder, will be exclusively brought in an appropriate state court in Cook County, Illinois or in the United States District Court for the Eastern Division of the Northern District of Illinois, and the Parties irrevocably consent to the jurisdiction of such courts for any dispute hereunder or action on any obligation hereunder.
- (c) 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 written notice or electronic mail, and (iii) changes to the "Managed Hosting Service" or fees section of an existing Hosting Proposal 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 Hosting Proposal 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.
- (d) 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.
- (e) Counterparts.
Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original.
- (f) 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.
- (g) 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 or 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.
- (h) 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.
- (i) 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.
- (j) 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. Elite Facility may provide service to any person, including a competitor of Customer.
- (k) Assignment.
Neither party may transfer the Agreement without the other party's prior written consent.
- (n) Agreement.
Hosting Proposal(s), Service Level Agreement, Elite Facility's AUP, and any Elite Facility 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.