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RagingWire Telecommunications, INC. Master Services Agreement

Consulting Services Agreement

RagingWire Telecommunications, INC. Master Services Agreement | Document Parties: PHOTRONICS INC | RagingWire Telecommunications, INC You are currently viewing:
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PHOTRONICS INC | RagingWire Telecommunications, INC

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Title: RagingWire Telecommunications, INC. Master Services Agreement
Governing Law: California     Date: 1/8/2010
Industry: Semiconductors     Sector: Technology

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EXHIBIT 10.1

RagingWire Telecommunications, INC.

Master Services Agreement #1001.0.1

     This Master Services Agreement( "Agreement" ) is entered into effective as of January 11, 2002, ( "Effective Date" ) by and between RagingWire Telecommunications, Inc., a Nevada corporation ( "RagingWire" ) and Photronics, Inc., a Florida corporation ( "Customer" ). In consideration of the mutual covenants contained in this Agreement, RagingWire and Customer agree as follows:

1.     PURPOSE OF AGREEMENT

     This Agreement sets forth the terms and conditions by which RagingWire will provide to Customer, and Customer shall accept and pay for, certain Services.  Each such Service will be specifically identified and described in a Service Level Agreement ( "SLA" ) executed by the Parties and delivered by them to each other, which refer to this Agreement.  RagingWire contemplates that Customer may contract for additional Services from time to time, and in each such case a new SLA will be executed, specifically identifying and describing such additional Services and referencing this Agreement.  Any equipment sales and/or leases shall be covered in a written agreement separate from this Agreement.

2.     DEFINITIONS

     The following capitalized terms used in this Agreement have the meanings specified in this Section 2.

     2.1      Applicable Rate   "Applicable Rate" means one and one-half percent (1½%) per month, or the highest rate allowed by applicable law, whichever is lower.

     2.2      Confidential Information   "Confidential Information" is defined in Section 6.1.1 ("Non-Disclosure").

     2.3      Customer Area   "Customer Area" means the portion(s) of the Data Centers made available to Customer for the placement of Customer Equipment and use of the Services.

     2.4      Customer Equipment   "Customer Equipment" means Customer's computer hardware, not including stored data, and other tangible equipment or other tangible personal property placed by Customer in the Customer Area.  If RagingWire is undertaking any managed services with respect to the Customer Equipment such equipment shall be identified on RagingWire's standard Customer Equipment List completed by Customer and accepted by RagingWire, as amended in writing from time to time by the Parties.

     2.5      Customer Registration Form   "Customer Registration Form" means a collective reference to the separate documents that contain the name and contact information (e.g., pager, e-mail and telephone numbers) for each of the Representatives authorized by Customer to enter the Data Centers and Customer Area, as delivered by Customer to RagingWire and amended in writing from time to time by Customer.  The documents referred to herein include, without limitation, the Customer Information Form , the Use Administrator Form , and the Individual Registration Form .

     2.6      Customer Technology   "Customer Technology" means Customer's proprietary technology and processes, including, but not limited to, Customer's Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, inventions, trade secrets and any related Intellectual Property Rights (whether owned by Customer, controlled by or licensed to Customer by a third party) and also including any derivative works, improvements, enhancements or extensions of the foregoing conceived, invented, reduced to practice, expressed in a tangible medium,

     2.7      Data Center(s   "Data Center(s)" means any of the facilities used by RagingWire to provide the Services to Customer.

     2.8      Initial Term "Initial Term" is defined in Section 4.2 ("Initial Term").

     2.9      Intellectual Property Rights   "Intellectual Property Rights" mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing throughout the universe (a) rights associated with works of authorship, including but not limited to copyrights, moral rights, and mask-works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents, design rights, and other industrial property rights; (e) all other intellectual and industrial property rights of every kind and nature and however designated (including logos, "rental" rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; (f) all registrations and applications (whether for patent, copyright or similar right), including all continuations, continuations-in-part, and divisionals thereof; (g) all renewals, extensions, reissues, and re‑examinations of such patents now or hereafter in force; and (h) all rights in any of the foregoing.

     2.10      Notice of Service Commencement   "Notice of Service Commencement" means the written notice provided by RagingWire to Customer which sets forth each Service to be provided pursuant to a SLA and the date such Service commenced.

     2.11      Parties or Party   "Parties" means RagingWire and Customer collectively; "Party" means either RagingWire or Customer, as the case may be, individually.

     2.12      Professional Service(s)   "Professional Service(s)" means any professional or consulting services provided by RagingWire to Customer, including without limitation any project based or one-time services.  Any provision of Professional Services shall be governed by a written Professional Services Agreement separate from this Agreement.

     2.13      RagingWire Supplied Equipment   "RagingWire Supplied Equipment" means the computer hardware, software, computer code and other tangible equipment to be provided by RagingWire to Customer pursuant to a SLA.

     2.14      RagingWire Technology   "RagingWire Technology" means RagingWire's proprietary technology and processes, including, without limitation, the Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, inventions, trade secrets and any related Intellectual Property Rights (whether owned by RagingWire or licensed to RagingWire from a third party) and also including any derivative works, improvements, enhancements or extensions of the foregoing conceived, invented, reduced to practice, expressed in a tangible medium or developed by RagingWire (independently  during the Term.

     2.15      Renewal Term   "Renewal Term" is defined in Section 4.3 ("Renewal Term").

     2.16      Representative(s   "Representative(s)" means the individuals authorized by Customer in writing to enter the Data Center(s) and the Customer Area including, without limitation, any employees, contractors, or agents of Customer.  Each of the Representatives shall be identified in writing on an Individual Registration Form and shall have received a valid password from the Use Administrator to access the Data Center(s).

     2.17      Rules and Regulations   "Rules and Regulations" means RagingWire's general rules and regulations, as amended from time to time by RagingWire, governing access to the Data Center(s) and use of the Services by Customer and Customer's Representatives, including, without limitation, online conduct and the obligations of Customer and Customer's Representatives in the Data Center(s).

     2.18      Section   "Section" means a numbered paragraph section of this Agreement.

     2.19      Service(s)   "Service(s)" means the specific Services provided to Customer by RagingWire as described in each SLA executed by Customer and RagingWire, as amended from time to time; each of which is incorporated herein by reference.

     2.20      Service Commencement Date   "Service Commencement Date" means the date RagingWire begins providing Services to Customer, as indicated in a Notice of Service Commencement delivered by RagingWire to Customer.

     2.21      Service Level Goals   "Service Level Goals" is defined in Section 7.2 ("Service Level Goals").

     2.22      Service Outage   "Service Outage" is defined in the applicable SLA.

     2.23      Service Level Agreement (SLA)   "Service Level Agreement" or "SLA" means a separate written Service Level Agreement between Customer and RagingWire that provides a description of each Service to be provided by RagingWire to Customer.  A SLA may contain additional information and provisions related to the Services and shall reference this Agreement.  All SLA's executed by Customer and RagingWire from time to time are incorporated herein by reference and all Services provided pursuant to all SLA's are subject to the terms and conditions of this Agreement.  To the extent any terms herein apply solely to a Service not specified in a SLA, such terms shall not apply to Customer.  

     2.24      Supplemental Emergency Services   "Supplemental Emergency Services" is defined in Section 3.2 ("Supplemental Emergency Services").

     2.25      Term   "Term" means the Initial Term plus all Renewal Terms as defined in Section 4 ("Term").

     2.26      Use Administrator   "Use Administrator" is defined in Section 8.3.1 ("Use Administrator").

3.     DELIVERY OF SERVICES  

     3.1      Delivery of Services .  By executing this Agreement, RagingWire agrees to provide, and Customer agrees to accept and pay for, the Services described in each SLA during the Term.  Except as provided in a separate SLA, all Services shall be deemed delivered, and the Parties' respective obligations under this Agreement shall be deemed performed, in Sacramento County, California.

     3.2      Supplemental Emergency Services .  Customer may request that RagingWire provide to Customer certain limited Services and/or equipment on a "one-time" or emergency basis ( "Supplemental Emergency Services" ) where such Services are not included within the scope of the Services described in the SLA's.  Supplemental Emergency Services may include, for example, replacing a faulty Customer server with a RagingWire server for a temporary period of time.  RagingWire will charge a reasonable fee for Supplemental Emergency Services, and Customer agrees to pay the fees for such Supplemental Emergency Services.  Charges for such Supplemental Emergency Services shall be billed separately.  RagingWire labor for Supplemental Emergency Services will be billed at the rates listed in Exhibit A, Basic Managed Services.  RagingWire has no obligation to provide or to continue to provide any Supplemental Emergency Services.  If, however, RagingWire agrees to provide any Supplemental Emergency Services upon request by Customer, such Services shall be provided subject to the availability of resources and personnel.  ALL SUPPLEMENTAL EMERGENCY SERVICES PROVIDED PURSUANT TO THIS SECTION 3.2 ARE PROVIDED ON AN "AS-IS" BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

4.    TERM

     4.1      Term Commencement .  The term for provision of and payment for each Service will commence on the Service Commencement Date indicated in the Notice of Service Commencement.

     4.2      Initial Term .  RagingWire will provide each Service to Customer for an initial term commencing on the Service Commencement Date and ending on the date specified in the SLA ( "Initial Term" ); provided however that in no event shall the Initial Term end on any day other than the last day of a calendar month.  In the event a SLA, or a notice termination by Customer, specifies that the Initial Term shall terminate on other than the last day of a calendar month then such Initial Term is hereby extended to the end of the calendar month at issue.

     4.3      Renewal Term .  Unless one of the Parties provides notice in accordance with Section 12 ("Termination"), RagingWire will automatically continue to provide each Service to Customer for additional periods of time equal to one (1) calendar year from the termination date of the Initial Term (as such may be adjusted pursuant to Section 4.2 ("Initial Term") or a Renewal Term, as applicable.  Each additional period of time for which RagingWire continues to provide Services after the Initial Term is referred to herein as a "Renewal Term . "

5.     FEES AND PAYMENT TERMS

     5.1      Fees .  Customer agrees to pay all fees due without set off or adjustment and in accordance with the prices for each Service listed in each SLA.  Except as provided otherwise in a SLA, the price for each Service listed in each SLA shall not be altered during the Initial Term.

     5.2      Payment Terms .  

               5.2.1      Security Deposit, Security Interest.   Upon execution of each SLA, Customer agrees to pay to RagingWire, as a security deposit, an amount equal to the monthly recurring charges set forth in the SLA.  The security deposit shall serve as a security for Customer's faithful performance of its obligations under this Agreement.  If Customer defaults under or materially breaches any provision of this Agreement, RagingWire may use, apply or retain all or any portion of said security deposit for the payment of any amount due to RagingWire, or to reimburse or compensate, RagingWire for any liability, expense, loss or damage which RagingWire may incur by reason of such default or material breach.  RagingWire shall not be obligated to keep the security deposit separate from its general accounts.  No part of the security deposit shall be considered to be held in trust, to bear interest or to be a prepayment for any monies to be paid by Customer to RagingWire.  Within thirty (30) days after the successful conclusion of this Agreement and the fulfillment of all of Customer's obligations hereunder, RagingWire shall return the deposit (less any offsets) to Customer. 

               5.2.2      Payment on Service Commencement .  On the Service Commencement Date for each Service, RagingWire will invoice Customer, and Customer agrees to pay to RagingWire within thirty (30) days of such invoice, an amount equal to the sum of:  (i) all non-recurring charges indicated in such SLA and (ii) the recurring charges for the remainder of the calendar month in which the Service Commencement Date occurs, prorated on the basis of a 30-day month.

               5.2.3      Recurring Charges .  After the month set forth in Section 5.2.2 ("Payment on Service Commencement") payment for monthly recurring charges for each successive full month will be due and payable on the first day of that month, and RagingWire will send Customer a courtesy invoice approximately two (2) weeks prior to the first day of the month for which such recurring Services are to be provided.  Payment for recurring charges not received by the tenth day of the month shall be considered late and the provisions of Section 5.3 ("Late Payments") shall apply.

               5.2.4      Variable and One-Time Charges .  Charges for Services not included in the monthly recurring charges (e.g., burstable Internet bandwidth charges) and charges for one-time Services (e.g., Professional Services, installation work, and Supplemental Emergency Services) shall be included in a separate invoice.  Payment for such Services shall be due no later than thirty (30) days after the date of such invoice.

     5.3      Late Payments .  Any delinquent payments shall accrue interest at the Applicable Rate from the date such payments are due. 

     5.4      Payment in U.S. dollars .  All payments shall be made to RagingWire in U.S. dollars, preferably by means of an automatic electronic funds transfer system.

     5.5      Taxes and Other Fees .  All fees charged by RagingWire for Services are exclusive of all taxes and similar fees, now in force or enacted in the future, imposed on the transaction and/or the delivery of Services.  Customer agrees that it will be responsible for and will pay in full all such taxes and similar fees, except for taxes based on RagingWire's net income.  For purposes of this Section 5.5 only, all Services shall be deemed provided at the Data Center where  such Services originated.

6.     CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE
         GRANTS

     6.1      Confidential Information .

               6.1.1      Non-Disclosure .  RagingWire and Customer acknowledge that each will have access to certain proprietary and/or confidential information of the other Party concerning, without limitation, the other Party's business, plans, customers, financials, technology, products, and other information held in confidence by the other Party, whether in oral, written, graphic or electronic form (collectively, "Confidential Information" ).  As used in this Agreement, Confidential Information will include, but not be limited to:  (i) all information in tangible or intangible form that is marked or designated as confidential; (ii) RagingWire Technology; (iii) Customer Technology; and (iv) the terms and conditions of this Agreement and any other agreements between the Parties.  RagingWire and Customer each agrees, on behalf of itself, its employees and other persons to whom disclosure of Confidential Information is permitted under this Agreement, that (i) it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party, any of the other Party's Confidential Information.

               6.1.2      Non-Confidential Information .  Notwithstanding Section 6.1.1 ("Non-Disclosure"), information will not be deemed Confidential Information under this Agreement if such information:  (i) is known to the receiving Party prior to receipt from the disclosing Party, as evidenced by the records of the receiving Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party, directly or indirectly, from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes part of the public domain or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without any breach of this Agreement.

               6.1.3      Protection and Preservation .  Each Party on behalf of itself, its Representatives, employees, agents, and contractors, agrees that it will receive and hold all Confidential Information in trust and confidence and that it will treat all Confidential Information with the same degree of care as it accords to its own confidential information of like sensitivity, but in no event less than a reasonable level of care.  Each Party shall:  (i) not sell, license, transfer, publish, disclose, display or otherwise make available the Confidential Information of the other Party; (ii) not reverse assemble or reverse compile in whole or in part any applicable Confidential Information; (iii) acknowledge and take commercially reasonable steps to preserve the other Party's ownership rights in and to such other Party's Confidential Information; (iv) hold in trust and confidence and not use any Confidential Information except as necessary to perform obligations set forth in this Agreement; and (v) similarly bind in writing necessary third parties to the confidentiality obligations of this Section 6.1.3.  Notwithstanding the foregoing, each Party shall have the right to disclose the other party's Confidential Information to its appropriate officers, directors, employees, auditors and attorneys on a "need to know basis".  Further, each Party may disclose the other Party's Confidential Information to the extent necessary to comply with an order of an administrative agency or court of competent jurisdiction, or to enforce a Party's rights under this Agreement.  As an express condition to the preceding sentence, the Party being required to disclose the information shall (i) take all reasonable steps to prevent such disclosure and (ii) provide prior written notice thereof to the other Party in sufficient time to enable the other Party to seek a protective order or otherwise contest such disclosure.  Each Party agrees that it will ensure that its Representatives, employees, agents and contractors will not make use of, disseminate, or in any way disclose any Confidential Information of the other Party to any person, firm or business, except as necessary to perform obligations set forth in this Agreement and then only under a written confidentiality agreement no less restrictive than this Section 6.1 ("Confidential Information").   The obligations of non-disclosure and non use shall apply to Confidential Information for a period of three (3) years from the date of disclosure.

               6.1.4      Method of Disclosure .  Information disclosed in written form or electronically transmitted shall be considered Confidential Information only if it contains the legend "Confidential."  Information disclosed in other-than-written form shall be Confidential Information only if the disclosing Party states that the disclosure is confidential at the time it is made and sends the recipient of the information a written summary, with an appropriate confidentiality legend, of the information so disclosed within thirty (30) days thereafter.

               6.1.5      Return of Confidential Information .  Upon termination or expiration of this Agreement, or upon written request of the other Party, each Party shall promptly return to the other all documents and other tangible materials representing the other's Confidential Information and all copies thereof, and shall permanently erase or destroy all Confidential Information stored by or for it in electronic, optical, mechanical, or other storage medium, and shall certify, in writing, the completion of the foregoing to the other Party.

     6.2      Intellectual Property .

               6.2.1      Ownership .  Except for the rights expressly granted pursuant to Section 6.3.1 ("Grant By RagingWire"), (i) this Agreement does not transfer from RagingWire to Customer any RagingWire Technology and (ii) all right, title and interest (including, without limitation, Intellectual Property Rights) in and to the RagingWire Technology will remain solely with RagingWire.  Except for the rights expressly granted pursuant to Section 6.3.2 ("Grant By Customer"), (i) this Agreement does not transfer from Customer to RagingWire any Customer Technology and (ii) all right, title and interest (including, without limitation, Intellectual Property Rights) in and to the Customer Technology will remain solely with Customer.

               6.2.2      General Skills and Knowledge .  Notwithstanding anything to the contrary in this Agreement, Customer will not at any time prohibit or enjoin RagingWire from using any concepts, skills, knowledge and techniques relating to information technology that is or are acquired during the course of providing the Services, including, without limitation, skills, knowledge and information publicly known or available, generally applicable in the trade (or art), or that could reasonably be acquired in similar work performed for other customers of RagingWire.  For example, and without limitation, if, during the Term, RagingWire and/or Customer working with RagingWire jointly develops a computer program or algorithm that may be generally applicable in the art, RagingWire shall have the right to use and/or modify such computer program or algorithm, at no compensation to Customer, to provide Services to [other customers of RagingWire. ]  The Joint Development shall be jointly owned by RagingWire and Customer and each shall be afforded such rights as are available under applicable law, including federal copyright law.

     6.3      License Grants .

               6.3.1      Grant by RagingWire .  RagingWire hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, without the right to grant sub licenses during the Term, to use the RagingWire Technology solely for the purpose of receiving the Services.  Customer shall have no right to use the RagingWire Technology for any purpose other than receiving the Services.

               6.3.2      Grant by Customer .  Customer agrees that if, in the course of providing the Services, it is reasonably necessary for RagingWire to access Customer Equipment and use Customer Technology, RagingWire is hereby granted and shall have a non-exclusive, non-transferable, royalty-free license, without the right to grant sub licenses during the Term, to use the Customer Technology solely for the purpose of providing the Services to Customer.  Subject to Section 6.2.2 ("General Skills and Knowledge"), RagingWire shall have no right to use the Customer Technology for any purpose other than providing the Services.

      6.4      Restrictions .  The RagingWire Technology shall be used by Customer, its Representatives and agents only in a manner consistent with the rights granted in Section 6.3.1 ("Grant By RagingWire").  Customer agrees to  use its best efforts to ensure that no portion of the RagingWire Technology is displayed outside the Data Center(s) or distributed in any way to any third party.  Customer shall not rent, lease, license, distribute, transfer, reproduce, display, modify, publicly perform or timeshare the RagingWire Technology, or any portion thereof, or use such as a component of or a basis for products or services prepared for sale, license, lease, access or other marketing or distribution.  Neither Customer nor any of its Representatives or agents shall prepare any derivative work based on the RagingWire Technology or other materials provided to Customer by RagingWire.  Though not authorized to do so, should Customer or any Representative or agent create any derivative works of the RagingWire Technology, Customer, on behalf of itself and its Representative and/or agent, hereby assigns any and all right, title and interest (including, without limitation, Intellectual Property Rights) in such derivative works to RagingWire.  Neither Customer nor any of its Representatives or agents shall translate, reverse engineer, decompile or disassemble the RagingWire Technology.  Customer shall not allow any third party or unlicensed user or computer system to access or use the RagingWire Technology.  Customer agrees not to demonstrate or disclose the results of any testing or bench-marking of the RagingWire Technology, to any third party, without RagingWire's prior written permission.

      Customer Technology shall be used by RagingWire, its representatives and agents only in a manner consistent with the rights granted in Section 6.3.2 ("Grant By Customer").  Ragingwire agrees to use its best efforts to ensure that no portion of Customer Technology is displayed outside the Data Center(s) or distributed in any way to any third party.  RagingWire shall not rent, lease, license, distribute, transfer, reproduce, display, modify, publicly perform or timeshare the Customer Technology, or any portion thereof, or use such as a component of or a basis for products or services prepared for sale, license, lease, access or other marketing or distribution.  Neither RagingWire nor any of its representatives or agents shall prepare any derivative work based on the Customer Technology or other materials provided to RagingWire by Customer.  Though not authorized to do so, should RagingWirer or any representative or agent create any derivative works of the Customer Technology, RagingWire, on behalf of itself and its representative and/or agent, hereby assigns any and all right, title and interest (including, without limitation, Intellectual Property Rights) in such derivative works to Customer.  Neither RagingWire nor any of its representatives or agents shall translate, reverse engineer, decompile or disassemble the Customer Technology.  RagingWire shall not allow any third party or unlicensed user or computer system to access or use the Customer Technology.  RagingWire agrees not to demonstrate or disclose the results of any testing or bench-marking of the Customer Technology, to any third party, without Customer's prior written permission.

7.     RAGINGWIRE'S WARRANTIES AND SERVICE LEVEL GOALS

     7.1      RagingWire Warranties .  RagingWire represents and warrants that it has the legal right to enter into this Agreement and perform its obligations hereunder. In the event of a breach of the warranties set forth in this Section 7.1, Customer's sole remedy shall be termination pursuant to Section 12 ("Termination"), except as provided elsewhere in this Agreement.

     7.2      Service Level Goals"Service Level Goals" means the service level goals applicable to the Services provided by RagingWire as set forth in the applicable SLA.  If Customer experiences any Service performance issues, such as Service Outages, described in an applicable SLA, as a result of RagingWire's failure to provide the Services, the remedies and credits described in the applicable SLA shall apply.

               7.2.1      Liquidated Damages .  Except as provided elsewhere in this Agreement to the contrary, the Parties acknowledge and agree that because of the unique nature of the Services contemplated by this Agreement, it is difficult or impossible to determine with precision the specific amount of damages that might be incurred by Customer as a result of a failure of RagingWire to meet the Service Level Goals, or the specific amount that should be the responsibility of RagingWire in such circumstances.  It is further understood and agreed by the Parties that Customer shall be damaged by such failure of RagingWire to meet the Service Level Goals, that it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, that any credits that become payable under this Section 7.2 ("Service Level Goals") are in the nature of liquidated damages, and not a penalty, and are fair and reasonable under the circumstances, and such payments represent a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from RagingWire's failure to meet the Service Level Goals.

               7.2.2      Sole Remedy and Liability .  In recognition of Section 7.2.1 ("Liquidated Damages") and the other provisions hereof, and notwithstanding any other provisions of this Agreement, the Parties acknowledge and agree that, as an essential part of this Agreement, the liquidated damages payable under Section 7.2.1 ("Liquidated Damages") shall be the sole and exclusive measure of damages and remedy for Customer, and the sole and exclusive liability and obligation of RagingWire, arising out of or in any way relating to RagingWire's failure to meet the Service Level Goals or any other failure or default by RagingWire in any way relating to the Services (including any Supplemental Emergency Services) or RagingWire's failure to perform or provide any Services hereunder.  The Parties further acknowledge and agree that the pricing and other terms contained in this Agreement reflect and are based upon the intended allocation of risk between the Parties as reflected in this Section 7.2 ("Service Level Goals") and elsewhere in this Agreement, and form an essential part of this Agreement.

               7.2.3      Maintenance .  RagingWire will conduct scheduled maintenance of the Data Center(s) and Services.  In addition, RagingWire may be required to perform emergency maintenance if an urgent, mission-critical, or other serious maintenance situation arises.  RagingWire and Customer agree to cooperate to minimize adverse impacts to the other Party during such scheduled and emergency maintenance.

               7.2.4      Limitations .  THE SERVICE LEVEL GOALS SET FORTH IN THIS SECTION 7.2 ("SERVICE LEVEL GOALS") SHALL APPLY ONLY TO THE SERVICES PROVIDED BY RAGINGWIRE PURSUANT TO A SLA AND DO NOT APPLY TO (1) ANY SUPPLEMENTAL EMERGENCY SERVICES, AND (2) ANY SERVICES THAT EXPRESSLY EXCLUDE THE SERVICE LEVEL GOALS (AS STATED IN THE APPLICABLE SLA).  Except as stated ELSEWHERE in this Agreement to the contrary, THIS SECTION 7.2 ("SERVICE LEVEL GOALS") STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY RAGINGWIRE TO PROVIDE SERVICES AND/OR THE PROVISION OF DEFECTIVE SERVICES.

     7.3      Selection of RagingWire Supplied Equipment; Manufacturer Warranty .  CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS SELECTED THE RAGINGWIRE SUPPLIED EQUIPMENT BASED UPON ITS OWN REVIEW AND EVALUATION OF SUCH EQUIPMENT AND CUSTOMER HAS NOT IN ANY WAY RELIED UPON ANY RECOMMENDATIONS OR REPRESENTATIONS WHICH MAY HAVE BEEN MADE BY RAGINGWIRE.  RAGINGWIRE DISCLAIMS ANY STATEMENTS MADE BY RAGINGWIRE RELATING THERETO.  EXCEPT WITH RESPECT TO ANY EXPRESS WRITTEN WARRANTIES MADE IN THIS AGREEMENT BY RAGINGWIRE FOR SERVICES RELATED TO RAGINGWIRE SUPPLIED EQUIPMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER'S USE AND POSSESSION OF THE RAGINGWIRE SUPPLIED EQUIPMENT SHALL BE SUBJECT TO AND CONTROLLED BY THE TERMS OF ANY MANUFACTURER'S OR, IF APPROPRIATE, SUPPLIER'S WARRANTY AND INDEMNITY, AND CUSTOMER AGREES TO LOOK SOLELY TO THE MANUFACTURER OR, IF APPROPRIATE, SUPPLIER (AND NOT TO RAGINGWIRE) WITH RESPECT TO ALL MECHANICAL, ELECTRICAL, SERVICE AND OTHER CLAIMS, INCLUDING, WITHOUT LIMITATION, WARRANTY AND INDEMNITY CLAIMS.  THE RIGHT TO ENFORCE ALL WARRANTIES AND INDEMNITIES MADE BY SUCH MANUFACTURER OR SUPPLIER IS HEREBY, TO THE EXTENT RAGINGWIRE HAS THE RIGHT, ASSIGNED TO CUSTOMER FOR THE DURATION OF CUSTOMER'S USE OF THE RAGINGWIRE SUPPLIED EQUIPMENT.  RAGINGWIRE PROVIDES NO WARRANTY OR INDEMNITY FOR ANY RAGINGWIRE SUPPLIED EQUIPMENT, FOR PERSONAL INJURY, PROPERTY DAMAGES, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

     7.4      No Other Warranty .  Except for the express warranties set forth in this SECTION 7 or in a sla ("Ragingwire's warranties AND SERVICES LEVEL GOALS"), the Services and the Ragingwire supplied equipment are provided on an "as is" basis, and customer's use of the Services and/or the ragingwire supplied equipment is at CUSTOMER'S own risk.  RagingWire does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage or trade practice.  RagingWire does not warrant that the Services and/or USE OF the ragingwire supplied equipment will be uninterrupted, error-free, completely secure, OR THAT ALL ERRORS WILL BE CORRECTED.

     7.5      Disclaimer of Actions Caused by and/or Under the Control of Third Parties .  RagingWire does not and cannot control the flow of data to or from RagingWire's network and other portions of the internet.  Such flow depends in large part on the PERFORMANCE of the internet Services provided or controlled by third parties.  At times, actions or inactions of such third parties can impair or disrupt customer's CONNECTIONS to the internet (or portions thereof).  Although RagingWire will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, RagingWire cannot guarantee that such events will not occur.  Accordingly, except for the negligence or willful misconduct on the part of RagingWire, RagingWire disclaims any and all liability resulting from or related to such events, AND CUSTOMER ACCEPTS SUCH DISCLAIMER WITHOUT LIABILITY TO RAGINGWIRE.

8.     CUSTOMER'S REPRESENTATIONS, WARRANTIES

     8.1      Warranties of Customer .

               8.1.1      Warranties .  Customer represents and warrants that:  (i) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder; (ii) it has the legal right and authority, and will continue to own or maintain the legal right and authority during the Term, to place and use any Customer Equipment as contemplated under this Agreement; (iii) the performance of its obligations and use of the Services (by Customer, its Representatives and customers) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other RagingWire customers' use of RagingWire Services; (iv) all equipment, materials and other tangible items placed by Customer at the Data Center(s) will be configured and used in compliance with all applicable manufacturer specifications including, without limitation, power outlet, power consumption and clearance requirements; and (v) each Representative will be assigned a unique password, and no password will be shared or otherwise utilized by two (2) or more individuals.

               8.1.2      Breach of Warranties .  If Customer breaches any of the warranties in Section 8.1.1 ("Warranties"), in addition to any other remedies available at law or in equity, RagingWire will have the right, in its sole discretion, to immediately suspend any or all Services to Customer; provided, however, prior to any exercise of a remedy RagingWire will provide notice as provided in Section 12 ("Termination") and an opportunity to cure to Customer.   If such breach is not cured within thirty (30) days, RagingWire  shall have the right to terminate services as provided in Section 12. Customer shall be obligated to pay for Services  provided due to suspension as a result of the breach. 

     8.2      Compliance with Laws; Rules and Regulations .  Customer agrees that it shall use the Services only for lawful purposes and in accordance with this Agreement.  Customer will comply at all times with all applicable laws and regulations and the Rules and Regulations, as amended by RagingWire from time to time.  RagingWire may change the Rules and Regulations upon reasonable notice to Customer of at least five (5) days, which notice may be provided by posting such new Rules and Regulations at the affected Data Center.  Customer acknowledges that Customer has received, read and understood the current version of the Rules and Regulations.  The Rules and Regulations contain restrictions regarding online conduct (including prohibitions against unsolicited commercial email) by Customer, its Representatives and its customers.  Customer agrees to comply with such restrictions and further agrees that a failure to comply with the same shall, atRagingWire's election, constitute a material breach of this Agreement.  Customer further acknowledges that RagingWire exercises no controlwhatsoever over the content of the information passing through the Customer Equipment and that Customer agrees that it is Customer's sole responsibility to ensure that the information transmitted and received by Customer, its Representatives and its customers comply with all applicable laws and regulations and the Rules and Regulations.

     8.3      Access and Security .

               8.3.1      Use Administrator .   Promptly after the Effective Date, Customer shall designate up to two individuals to serve as the use administrator(s) ( "Use Administrator" ) for Customer.  The Use Administrator shall be responsible for assigning passwords to Representatives, administering security profiles of Representatives, inputting data to the Individual Representative Form, and verifying the identity of Representatives when called upon by RagingWire to do so.  The Use Administrator(s) shall also serve as the primary contact between Customer and R


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