|
Exhibit
10.34
SAVVIS MASTER SERVICES
AGREEMENT
THIS MASTER SERVICES AGREEMENT
(“MSA”) is by and between SAVVIS Communications
Corporation and its affiliates (“SAVVIS”) and
LookSmart, Ltd (“Customer”) and is entered into as of
this day of March, 2008 (“Effective Date”).
1. Services . SAVVIS will
provide the Services in accordance with the Agreement. The
“Agreement” means this MSA plus all applicable Service
Schedules, SAVVIS Service Guides, Service Orders, service level
agreements (“SLAs”) and any other documents that are
expressly incorporated herein (collectively “Service
Attachments”). SAVVIS may reject any Service Order and will
not be bound by such Service Order until accepted by SAVVIS.
Customer issued purchase orders will not modify the terms of the
Agreement. Any requests for ancillary services not described in the
applicable Service Attachments may be provided on an individual
case basis as agreed to in writing by the parties. SAVVIS will not
change the Service rates or SLAs during the initial Service term
specified in the Service Order, but may thereafter change the rates
and/or SLAs upon at least 60 days prior notice.
2. Term . The term of the
Agreement will commence on the Effective Date and continue until
the expiration of the last Service term, unless earlier terminated
in accordance with the Agreement (“Term”).
3. Payment . All payments
are due in full within 30 days after the date of the invoice
(“Due Date”). In addition to the Service charges,
Customer shall also pay all applicable Taxes and any third party
charges pre-approved by Customer (e.g., installation, local access,
utilities). Any amount not received by the Due Date will be past
due and subject to interest at the lesser of 1.5% per month or
the highest rate permitted by applicable law. Billing for each
Service shall commence on the “Billing Commencement
Date,” as defined in the applicable Service Schedule. Except
as otherwise set forth in the applicable Service Order,
(a) monthly recurring charges (“MRCs”) will be
billed monthly in advance, (b) varying or usage-based charges
will be billed monthly in arrears and (c) installation or
other non-recurring charges will be billed upon the Billing
Commencement Date. If SAVVIS is unable to deliver the Services on
time due to the delay of Customer or its End Users or agents,
SAVVIS may commence billing as of the date the Services would have
been ready for delivery but for such delay. SAVVIS may, upon 30
days prior notice, modify the payment terms or require a mutually
acceptable form of security (e.g., a deposit) if Customer has
repeatedly failed to pay its invoices by the Due Date or if there
has been a material, adverse change in its financial condition;
provided, however, that SAVVIS may not require a deposit or other
form of security that is more than two (2) times the amount of
the then-current monthly recurring revenue for which Customer is
responsible under this Agreement.
4. Customer Obligations .
All use of SAVVIS’ network and the Services by Customer and
its End Users will comply with the AUP, which is incorporated
herein by reference. SAVVIS may make reasonable changes to the AUP
at any time and such change will be effective upon posting to
SAVVIS’ website or other notice to Customer. SAVVIS may
suspend the Services or otherwise restrict access to the SAVVIS
network without notice if SAVVIS learns of an AUP violation that,
in its reasonable discretion, is unlawful or is likely to cause
loss or liability for SAVVIS or any other party. Any such
suspension or restriction will be on the most limited basis as
SAVVIS determines is reasonably practical under the circumstances
in order to address the underlying violation. Customer will
indemnify, defend and hold SAVVIS and its contractors harmless from
any and all third party claims, losses, damages, costs and
expenses, including, without limitation, reasonable
attorneys’ fees and court costs, or liabilities arising from
or related to the use or resale of the Service, including, without
limitation, any violation of this Section.
5. Termination . Customer
may terminate the Agreement upon 30 days notice in the event of a
material breach of the Agreement by SAVVIS, if such breach is not
cured within that period. SAVVIS may suspend Service or terminate
the Agreement: (a) upon ten (10) days notice in the event
of any payment default, if such default is not cured within that
period; (b) upon notice in the event of any AUP violation; or
(c) upon 30 days notice in the event of any other material
breach of the Agreement by Customer, if such breach is not cured
within that period (unless a different notice period expressly set
forth in the Agreement applies). If Customer terminates an ordered
Service prior to its delivery, cancellation fees will apply as set
forth in the Service Schedule. If, after the delivery of Service
but prior to the conclusion of the applicable Service term, the
Service or this Agreement is terminated either by SAVVIS for cause
or by Customer for any reason other than cause, then Customer shall
be liable for: (a) an early termination charge equal to 50% of
the MRCs for the affected Services multiplied by the number of
months remaining in the Service term; (b) Service charges
accrued but unpaid as of the termination date; and (c) any
third party provider charges or out-of-pocket expenses incurred by
SAVVIS (e.g., cancellation charges or annual software license
fees). The parties agree that any cancellation fees and early
termination charges set forth in the Agreement constitute
liquidated damages and are not intended as a penalty. If a
particular Service is terminated by Customer without cause or by
SAVVIS for cause, and SAVVIS advises the Customer in writing that
in SAVVIS’ good faith judgment provision of a related Service
is impractical or impossible (“Related Service”) as a
result of such termination, then the Related Service shall be
deemed terminated for cause by SAVVIS and any applicable
termination charges will apply.
6. Disclaimer of
Warranties . THE SERVICES AND ANY RELATED EQUIPMENT,
SOFTWARE AND OTHER MATERIALS PROVIDED BY SAVVIS IN CONNECTION WITH
THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR REPRESENTATIONS
OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY,
COMPLETENESS OR ANY RESULTS TO BE ACHIEVED HEREFROM. SAVVIS MAKES
NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF
SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM.
THESE DISCLAIMERS SHALL NOT LIMIT CUSTOMER’S ABILITY TO SEEK
ANY APPLICABLE SLA REMEDIES.
7. Limitation on Liability
. NEITHER PARTY, NOR ITS AFFILIATES, CONTRACTORS, SUPPLIERS OR
AGENTS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA,
DAMAGES TO SOFTWARE OR FIRMWARE, OR COST OF PROCURING OR
TRANSITIONING TO SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL
THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF
WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH
LIABILITY; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT EITHER
PARTY’S
|
|
|
|
|
|
|
Page 1 of 4 |
|
SAVVIS Confidential Information |
SAVVIS MASTER SERVICES
AGREEMENT
LIABILITY FOR ITS INDEMNIFICATION
OBLIGATIONS HEREUNDER. EXCEPT FOR SAVVIS’ INDEMNIFICATION
OBLIGATION, THE TOTAL AGGREGATE LIABILITY AND OBLIGATIONS OF
SAVVIS, ITS AFFILIATES, CONTRACTORS, SUPPLIERS OR AGENTS ARISING
FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL NET
PAYMENTS PAID BY CUSTOMER TO SAVVIS FOR THE AFFECTED SERVICE WHICH
GIVES RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES. EXCEPT
FOR CUSTOMER’S INDEMNIFICATION OBLIGATION; A BREACH BY
CUSTOMER AND/OR END USERS OF SECTION 4 AND/OR THE AUP;
CUSTOMER’S PAYMENT OBLIGATIONS; AND ANY LIABILITY AND/OR LOSS
ARISING OUT OF THE CUSTOMER, ITS AUTHORIZED REPRESENTATIVES,
CUSTOMER MATERIAL AND/OR CUSTOMER EQUIPMENT IN OR ABOUT ANY SAVVIS
PREMISE, INCLUDING BUT NOT LIMITED TO ANY EQUIPMENT AND/OR ANY
OTHER PROPERTY, THE TOTAL AGGREGATE LIABILITY AND OBLIGATIONS OF
CUSTOMER ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED
TO THE TOTAL NET PAYMENTS PAID OR PAYABLE BY CUSTOMER FOR THE
APPLICABLE SERVICE DURING THE TWELVE MONTH PERIOD IMMEDIATELY
PRECEDING THE DATE IN WHICH THE CLAIM ARISES,
8. Confidentiality .
Neither party shall, without the prior written consent of the other
party, use or disclose the Confidential Information of the other
party during the Term of this Agreement and for 2 years following
the expiration or termination hereof. Each party will take all
reasonable precautions to protect the other
party’s
|