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SAVVIS MASTER SERVICES AGREEMENT

Consulting Services Agreement

SAVVIS MASTER SERVICES AGREEMENT | Document Parties: LOOKSMART LTD | SAVVIS Communications Corporation You are currently viewing:
This Consulting Services Agreement involves

LOOKSMART LTD | SAVVIS Communications Corporation

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Title: SAVVIS MASTER SERVICES AGREEMENT
Governing Law: New York     Date: 5/12/2008
Industry: Computer Services     Sector: Technology

SAVVIS MASTER SERVICES AGREEMENT, Parties: looksmart ltd , savvis communications corporation
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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


 
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