Master Services Agreement

This legally binding Master Services Agreement (the “MSA” or “Agreement”) is by and between Dwarkadhish Technologies, a Dwarka based limited liability company providing services on a “As-Is Basis” under the name “Geek Crunch Hosting” hereinafter and elsewhere known as (“Geek Crunch Hosting”), and the Customer purchasing the agreed upon services (“Services”) hereinafter known as (“Customer”) and is effective as of the date Customer purchases Services from Geek Crunch Hosting.

 

By purchasing the Services, Customer acknowledges and agrees that Customer has read, understands, acknowledges and agrees to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that Geek Crunch Hosting may establish and post on its website from time to time without obtaining any prior consent from the Customer.

 

Geek Crunch Hosting and Customer enter this Master Services Agreement (“MSA” or “Agreement”) as of the Effective Date. The Parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:

 

 

1.1.         “Account Information” means any billing information, contact information, payment information and such other information provided to Geek Crunch Hosting by Customer.

 

1.2.         “Attachment” means (i) any document, including but not limited to an initial invoice for services, a service order, executed quotation for Services, an online or GCH Portal order for services, or statement of work, that refers or relates to this Master Services Agreement, (ii) any written order for the Services or additional Services accepted by Geek Crunch Hosting through its website (including the GCH Portal), and (iii) any document hyperlinked from within this Agreement. The term “Attachment” includes but is not limited to statements of work, exhibits, addenda, schedules and amendments.

 

1.3.         “Customer” means that entity so identified at the beginning of this Master Services Agreement or in an applicable Attachment.

 

1.4.         “Customer Data” means all data, software and information, including, without limitation, data, text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Party Affiliates.

 

1.5.         “Customer End User” means a Third Party which is an end user of a Customer Offering.

 

1.6.         “Customer Offering” means any services provided by Customer to Third Parties, that in any manner use or rely upon the Services.

 

1.7.         “Due Date” means the recurring date on which Fees are due as set forth in the applicable Attachment.

 

1.8.         “Effective Date” means the date Geek Crunch Hosting accepts this Agreement.

 

1.9.         “Fees” means those amounts due to Geek Crunch Hosting in exchange for the performance of the Services, as provided in an applicable Attachment.

 

1.10.      “Flow-Through Provisions” means the terms of agreements for services provided by Third Parties which are included in the Services as required by providers of Third Party services.

 

1.11.      “Parties” means Geek Crunch Hosting and Customer, each individually a “Party.”

 

1.12.      “Party Affiliate” means any person, corporation, or other entity that now or in the future, directly or indirectly, controls, is controlled with or by or is under common control with a Party. For purposes of the foregoing, “control” will mean, with respect to: (a) a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting  power to elect directors thereof or, for purposes of foreign corporations, if less than fifty percent (50%), the amount allowed by applicable law; and (b) any other entity, the power to direct the management of such entity.

 

1.13.      “Service Level Agreement” or “SLA” means that service level agreement pertaining to the Services described in Section 8 of this Agreement.

 

1.14.      “Services” means those services Geek Crunch Hosting will provide to Customer as set forth in any applicable Attachment or added by the customer in the future via any method, and includes Utility Billed Services.

 

1.15.      “Geek Crunch Hosting” means a wholly owned Business Unit  of Dwarkadhish Technologies, a Dwarka based partnership firm providing services on a “As-Is Basis” under the name “Geek Crunch Hosting”.

 

1.16.      “Geek Crunch Hosting Parties” means Geek Crunch Hosting and its subsidiaries, parents, Party Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns, and providers of Third Party services, and those parties’ respective subsidiaries, parents, Party Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns.

 

1.17.      “GCH Portal” means that online interface Geek Crunch Hosting provides to Customer for communication and management activities.

 

1.18.      “Site” means a specific Geek Crunch Hosting datacenter location.

 

1.19.      “SLA Credits” mean the credits for applicable qualifying events as described in the Service Level Agreement.

 

1.20.      “Third Party” means any person or entity other than the Parties and their Party Affiliates.

 

1.21.      “Utility Billed Services” means those Services provided under this Agreement that are billed on the basis of actual usage of the Services by Customer, the cost for which will be calculated by multiplying a fixed unit by a rate set forth in an applicable Attachment.

 

1.22.      “Payment Method” means the instrument acceptable to Geek Crunch Hosting for payment of Fees to Geek Crunch Hosting.

 

1.23.      “Website” means https://geekcrunchhosting.com (or such other location as Geek Crunch Hosting may designate from time to time without obtaining any prior consent from the Customer).

 

  1. Order of Precedence. The Parties hereby incorporate all Attachments into this Agreement by reference. In the event of inconsistency between any Attachment and this Agreement, unless the Attachment expressly provides that it prevails, the relevant provisions of this Agreement will prevail.

 

  1. Geek Crunch Hosting will provide the Services to Customer according to the specifications and timeframes set forth in the applicable Attachment. Subject to Customer’s compliance with the terms and conditions of this Agreement, Geek Crunch Hosting grants to Customer a nonexclusive, nontransferable, nonsublicenseable (except to the extent required to exercise rights under Section 3(b)), revocable right solely to: (a) use and access the Services for Customer’s internal business purposes; and (b) use the Services to create, offer and provide Customer Offerings. Geek Crunch Hosting reserves the right to modify or relocate its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services, and such activities will not adversely affect the provision of Services.

 

  1. Fees and Payment. The following provisions govern Customer’s payment of Fees to Geek Crunch Hosting:

 

4.1.         Customer will pay Geek Crunch Hosting the Fees for the Services as set forth in any and all applicable Attachments. Unless provided otherwise in an applicable Attachment, all Fees are due monthly in advance of Customer’s receipt of the Services. Customer will pay the Fees to Geek Crunch Hosting in the amounts set forth in the applicable Attachments, no later than the Due Date, in U.S. Dollars. All provided Services will be listed in a detailed line item invoice provided to Customer. Customer acknowledges and agrees that any service not listed on an applicable invoice will not be considered deployed or otherwise provided by Geek Crunch Hosting, and Geek Crunch Hosting will have no responsibility to provide any Services not so listed, nor any liability whatsoever for failure to provide such Services. If any portion of the Fees remains overdue for at least 5 days (including the Due Date), then Geek Crunch Hosting may suspend the Services pursuant to section 6.1(v) of this Agreement. If any portion of the Fees remains overdue for 10 days or greater (including the Due Date), then Geek Crunch Hosting will have the right to terminate this Agreement and any applicable Attachment pursuant to Section5.1 of this Agreement. In the event of termination or suspension for non-payment of Fees, Customer will remain liable for all Fees that would have been paid had the Services not been suspended, or had the Agreement or any applicable Attachment not been terminated. Any portion of Fees remaining unpaid 30 days or more beyond the Due Date will be subject to interest of 2% per month or the maximum permitted by law, whichever is less.

 

4.2.         Utility Billed Services as set forth in an applicable Attachment will be billed on the basis of consumption and in intervals set forth in an applicable Attachment. Each unit of a Utility Billed Service consumed by Customer will be rounded up to the next whole unit. A base rate and overage rate for the Services may be established by Geek Crunch Hosting and communicated to Customer in an applicable Attachment. Customer will be solely responsible for the tracking and controlling of its usage of the Utility Billed Services, and Geek Crunch Hosting will have no responsibility to notify Customer pertaining to any usage. Customer may view usage and manage the Services inside of the GCH Portal and it will be Customer’s sole responsibility to do so. Customer will remain responsible for payment for all resources consumed. Professional services will be provided on an hourly basis at Geek Crunch Hosting’s then current rates or otherwise as agreed by the Parties. All Services unless otherwise noted are billed on a monthly basis.

 

4.3.         Customer will pay all Fees using a Payment Method that is maintained on file with Geek Crunch Hosting, such as, but not limited to credit card, ACH electronic funds transfer, or such other method as approved by Geek Crunch Hosting from time to time. Customer hereby authorizes Geek Crunch Hosting to automatically charge Customer’s Payment Method on file with Geek Crunch Hosting on or before the applicable Due Date. Customer will provide and maintain valid and accurate billing information and contact information. Customer will be responsible for all fees, including processing fees, associated with making payment via wire transfer to Geek Crunch Hosting. Customer agrees to first contact Geek Crunch Hosting to attempt to resolve any billing disputes before contacting Customer’s bank or credit card company to dispute any charge under this MSA. Customer must provide written notification to Geek Crunch Hosting within 30 days after the date of any disputed charge. If no objection is made within such period of time, such charge will be deemed accepted and undisputed by Customer. Any dispute as to any charge not made within 30 days of date of the charge is hereby expressly waived. If customer violates this provision by not first attempting to resolve the payment issue with Geek Crunch Hosting before issuing a chargeback or doing so outside of the permitted period of time, then Customer will reimburse Geek Crunch Hosting for its administrative expenses incurred in connection with such chargeback not to exceed $350.00. Additionally, Customer will pay to Geek Crunch Hosting any fees and costs (including, but not limited to, reasonable actual attorney’s fees, court costs and collection agency fees) incurred by Geek Crunch Hosting connection with the collection of any past due Fees.

 

4.4.         Customer will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees (except for taxes based upon Geek Crunch Hosting’s net income) related to the Services imposed by any governmental authority. All Fees are exclusive of any such taxes, duties, levies, or fees.

 

4.5.         Credits under the Service Level Agreement, if issued to Customer’s account, will be used only to offset future Fees for certain Services as provided in the Service Level Agreement. Such credits may not be sold, converted to cash, or transferred to any Third Party or Party Affiliate, and will expire on the termination or expiration of this Agreement.

 

4.6.         In the event that Geek Crunch Hosting suspends or terminates any portion of the Services pursuant to Section 5, Geek Crunch Hosting may, in its sole discretion and as a condition for restoring the Services, require that Customer pay to Geek Crunch Hosting, in advance, a non-refundable reconnection fee of up to 50% of the Fees charged to customer during the month immediately preceding suspension or termination. The payment of such reconnection fee will be in addition to any Fees remaining due and owing to Geek Crunch Hosting.

 

4.7.         All Fees are non-refundable. Customer’s sole remedy for Geek Crunch Hosting’s non-performance of any Services will be a credit issued pursuant to any applicable Service Level Agreement.

 

4.8.         Customer is responsible for any fees and costs (including, but not limited to, reasonable actual attorney’s fees, court costs and collection agency fees) incurred by Geek Crunch Hosting in enforcing collection of Fees.

 

4.9.         Geek Crunch Hosting may adjust the Fees in proportion with any increase in or changes to Third Party costs that are related to providing the Services. Additionally, Geek Crunch Hosting may adjust its software offering and associated fees in accordance with Third Party vendor program releases, policies or requirements, including, but not limited to, Microsoft’s Service Provider Licensing Agreement (SPLA). Such adjustment may include retroactive Fees for any software provided. Upon written request, Geek Crunch Hosting will provide Customer with reasonable documentation evidencing the increase in Third Party costs that may be disclosed by Geek Crunch Hosting, or if Geek Crunch Hosting is prohibited from disclosing such information, a summary.

 

4.10.      In the event Geek Crunch Hosting receives a subpoena, court order or other valid legal process seeking information concerning Customer, Customer agrees to pay Geek Crunch Hosting’s reasonable costs incurred in connection with providing a response.

 

  1. Term and Termination.

 

5.1.         The term of this Agreement will begin on the Effective Date and, unless terminated earlier as provided in this Agreement or an applicable Attachment, will (i) continue until the last termination or expiration of any Attachment, or (ii) if no Attachment provides a term, continue on a month-to-month basis, such month-to‐month arrangement being terminable by either Party upon at least 3 days written notice. Either Party may terminate this Agreement or any Attachment for material breach, provided that the non-breaching Party has given the other Party at least 30 days written notice of and the opportunity to cure the breach, and such breach has not been cured within 30 days of the notice. In addition to the right  to terminate for  material breach as provided in this Section 5.1, and notwithstanding Service suspension under section 6.1(v), and notwithstanding any other provision of this Agreement, Geek Crunch Hosting may terminate this Agreement, or any applicable Attachment, such termination to be effective on written notice to Customer, for non-payment of Fees if any portion of the Fees becomes overdue and remains unpaid for 10 days past the Due Date (including the Due Date). In the event that Geek Crunch Hosting terminates this Agreement or any applicable Attachment pursuant to this Section 5.1, Customer will remain liable for all Fees that would have been paid in the remainder of the term of this Agreement.

 

5.2.         Upon expiration or termination of this Agreement, Customer must immediately discontinue use of the Services. Which includes but not limited to, the immediate relinquish use of the IP addresses and server names assigned to Customer by Geek Crunch Hosting and any other materials provided to Customer by Geek Crunch Hosting in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. Geek Crunch Hosting will have no obligation to provide any transition services or access to data except as expressly provided in this Agreement or as otherwise agreed in writing by the Parties.

 

5.3.         Subject to any Third Party Agreements pertaining to Customer Data, and provided that Customer has paid all amounts due and owing, is in good standing and otherwise not in violation of this MSA, Geek Crunch Hosting will, at Customer’s sole cost and upon Customer’s written request delivered to Geek Crunch Hosting before the effective date of termination of this Agreement or the applicable Attachment to which Customer Data pertains, permit Customer to obtain a copy of Customer Data residing on Geek Crunch Hosting’s servers. Except as provided in this Section 5.3, the deletion of Customer Data is automatic upon termination or expiration of this Agreement or the applicable Attachment to which Customer Data pertains. Consequently, unless Geek Crunch Hosting determines otherwise, Customer will not have access to Customer Data, and Geek Crunch Hosting may immediately erase or delete all Customer Data from its computer infrastructure, after the effective date of termination or expiration of this Agreement or the applicable Attachment to which Customer Data pertains. Under no circumstances will Geek Crunch Hosting have any obligation to deliver to Customer any Customer Data.

 

5.4.         Upon termination of this MSA or any of its Attachments, all licenses granted under this MSA or such Attachment will likewise terminate.

 

5.5.         Certain circumstances will give rise to Geek Crunch Hosting’s right to terminate the Agreement and be entitled to certain remedies as set forth in Geek Crunch Hosting’s Acceptable Use Policy, which is incorporated by reference into this Agreement.

 

  1. Geek Crunch Hosting     may     temporarily     suspend provision of the Services as set forth in this section:

 

6.1.         Geek Crunch Hosting may suspend provision of Services to Customer without any liability whatsoever if: (i) Geek Crunch Hosting reasonably believes that the Services are being  used  (or  have  been  or  will  be  used)  by Customer in violation of this Agreement or any applicable law, court order, rule or regulation in any jurisdiction;

(ii) Customer does not cooperate with Geek Crunch Hosting’s investigation of any suspected violation of the Agreement or any applicable law, court order, rule or regulation in any jurisdiction;

(iii)  Geek Crunch Hosting reasonably believes that  Services provided to Customer have been accessed or manipulated by a Third Party without Customer’s consent or in violation of the Agreement;

(iv) Geek Crunch Hosting reasonably believes that suspension of the Services is necessary to protect Geek Crunch Hosting’s network or other Geek Crunch Hosting customers;

(v) A payment for the Services is overdue by more than 5 days including the Due Date;

(vi) The continued use of the Services by Customer may adversely impact the Services or the systems or content of any other Geek Crunch Hosting customer,

(vii) Geek Crunch Hosting reasonably believes that the use of the Services by Customer may subject Geek Crunch Hosting, its Party Affiliates, or any Third Party to liability; or

(viii) Suspension is required by law, statute, regulation, rule or court order;

(ix) Customer is in breach of the terms of this Agreement. Geek Crunch Hosting will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless Geek Crunch Hosting determines, in Geek Crunch Hosting’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Geek Crunch Hosting or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of any Flow-Through Provision will be treated the same as a violation of this Agreement for purposes of this provision.

 

6.2.         If Geek Crunch Hosting suspends Customer’s right to access or use any portion or all of the Service: (i) Customer remain responsible for all Fees Customer has incurred through the date of suspension;

(ii) Customer remains responsible for any applicable Fees for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-­‐process tasks completed after the date of suspension;

(iii) Customer will not be entitled to any credits under the Service Level Agreement for any period of suspension;

(iv) At Geek Crunch Hosting’s sole discretion, Geek Crunch Hosting may terminate Customer’s access to Customer Data stored in the Services during a suspension, and

(v) Geek Crunch Hosting will not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.

 

  1. Tortious or Unreasonable Conduct. Any abuse towards any Geek Crunch Hosting employee will not be tolerated. Customer and Customer’s representatives are expected to request and respond to support, billing and other issues in a professional manner, when emailing, calling or submitting online tickets to Geek Crunch Hosting. Any cursing, yelling, or further intentional disruptive behaviour aimed at Geek Crunch Hosting or its employees will be considered a violation of this Agreement. Any threat, whether orally, in writing, via E-mail, via live chat directed towards Geek Crunch Hosting or any of Geek Crunch Hosting’s employees, partners, staff, contractors, sub‐contractors, facilities, offices, etc. will be construed as a violation of this Agreement and, notwithstanding any other provision of this Agreement, will give Geek Crunch Hosting the right to immediately terminate this Agreement in its entirety, in which case Customer shall remain liable for all Fees incurred prior to, or in connection with, such a termination. Threats of physical violence will be directed to the proper authorities. No refunds will be given for termination of the Services for violation of these provisions. Geek Crunch Hosting reserves the right to immediately cancel, suspend or terminate any or all of the Services after receiving billing, sales or technical requests, which Geek Crunch Hosting, in its sole discretion, considers unreasonable or excessive. Geek Crunch Hosting may limit, at any time or without prior notice to Customer, the availability and type of billing support provided.

 

  1. User Control Considerations. Customer will:

 

8.1.         Delegate access to Customer employees via the GCH Portal.

 

8.2.         Assign and maintain a secure PIN to control access to sensitive information, such as, but not limited to, Customer passwords.

 

8.3.         Maintain and change passwords frequently and promptly upon providing access to Geek Crunch Hosting or any Third Party to perform maintenance activities on Customer’s behalf.

 

8.4.         Provide to Geek Crunch Hosting a primary notification point of contact to serve as Customer’s authorized representative to make technical and financial decisions.

 

8.5.         Trouble Tickets that have been abandoned by Customer (have not been updated by Customer for 48 hours or longer) may be closed automatically by Geek Crunch Hosting’s system.

 

8.6.         Customers have the right to notify Geek Crunch Hosting of any potential or suspected security issues or data breaches.

 

8.7.         Customers is responsible to contract for backups and can request failed backup notifications via the ticketing system. Customers should maintain a copy of their data and configurations in the event of catastrophic failure of backup media.

 

8.8.         Customers are responsible to create their own Disaster Recovery Plan and to contract specifically for Disaster Recovery services, as required. Customer is responsible for Disaster Declaration and notification to Geek Crunch Hosting.

 

8.9.         All deployed services are contained in a detailed line item invoice. It is the Customer’s responsibility to create a ticket to decommission, add or remove any service. Any service not listed on the invoice is not deployed.

 

8.10.      Geek Crunch Hosting’s phone queue may have substantial wait times. Customers are advised to log a ticket and request a call back and are not advised to wait on hold if the phone is not answered in a timely manner.

 

  1. Service Levels. Geek Crunch Hosting will provide the Services in accordance with the Service Level Agreement attached to this Agreement or, if no such Attachment exists, the Service Level Agreement found at https://geekcrunchhosting.com/sla/<<<<LINK TO SLA>>>> and Geek Crunch Hosting will provide SLA Credits according to the terms of the applicable Service Level Agreement.

 

  1. From time to time in Geek Crunch Hosting’s sole discretion, Geek Crunch Hosting may use one or more subcontractors to provide the Services or a portion of the Services. Unless otherwise agreed in writing, Geek Crunch Hosting will be solely responsible for any fees or charges incurred through use of subcontractors to the extent required to provide the Services as set forth in this Agreement, and subcontracting will not increase the Fees payable under this Agreement. Customer will pay any fees for subcontractors that Geek Crunch Hosting may retain to provide agreed-upon services in excess of the scope of the Services set forth in this Agreement.

 

  1. Backup and Security. Other than responsibility for physical security, and except as expressly provided in an applicable Attachment, Customer will be solely responsible for data maintenance, integrity, retention, security, and backup of Customer Data. Customer will be solely responsible for the development and implementation of an appropriate disaster recovery plan, and will be solely responsible for any disaster declaration and notice of same to Geek Crunch Hosting. Customer has the option to contract for managed backup services with Geek Crunch Hosting, or related services including notification of any failed backup attempts. Without limiting the foregoing, Customers who do not contract for Geek Crunch Hosting provided backup services will be solely responsible for undertaking measures to: (a) prevent any loss or damage to Customer Data; (b) maintain independent archival and backup copies of Customer Data; and (c) ensure the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Geek Crunch Hosting will have no liability whatsoever to Customer or any other person for loss, damage, integrity, usability, accessibility or destruction of any Customer Data except in the case of Geek Crunch Hosting’s gross negligence or wilful misconduct. Customer will use reasonable security precautions for providing access to the Services by its employees or other individuals to whom it provides access, whether in connection with Customer’s internal business purposes or as a Customer Offering. Customer will be solely responsible for ensuring the confidentiality and security of all account usernames and passwords, and for all user conduct in connection with such account credentials. Customer will implement internal protocols and procedures whereby terminated personnel will no longer be able to use any Customer username or password. All passwords used by Customer or its personnel must be smart, secure combinations of characters and not be comprised solely of dictionary words. Geek Crunch Hosting will comply with any law or regulation that may apply to it pertaining to data breach and notification of same. Customer will have the right, and hereby undertakes the obligation, to promptly notify Geek Crunch Hosting of any potential, suspected or actual security breach concerning the Services or Customer Data about which Customer becomes aware.

 

  1. License to Host. Solely for Geek Crunch Hosting’s internal business purposes of providing the Services, and not for any marketing or promotional efforts, Customer hereby grants to Geek Crunch Hosting a nonexclusive, royalty‐free, worldwide right and license to reproduce, display, distribute, and create derivative works of Customer Data.

 

  1. Customer’s Obligations.

 

13.1.      Customer agrees to do each of the following: (i) cooperate with Geek Crunch Hosting’s investigation of outages, security problems, and any suspected breach of this Agreement;

(ii) comply with all license terms or terms of use for any software, content, service or website (including Customer Data) which Customer uses or accesses when using the Services;

(iii) Give Geek Crunch Hosting true, accurate, current, and complete Account Information;

(iv) Keep Customer’s Account Information up to date;

(v) be responsible for the use of the Services by Customer and Customer End Users and any other person to whom Customer has given access to the Customer Offering;

(vi) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and immediately notify Geek Crunch Hosting of any known or suspected unauthorized use of Customer’s account, the Services or any other breach of security; and

(vii) Where the Customer provides a Customer Offering as permitted under this Agreement, enter into an agreement with Customer’s End Users containing relevant terms of this Agreement and releasing Geek Crunch Hosting from any and all liability for damages or losses Customer’s End Users may incur as a result of using the Customer Offering.

 

13.2.      Customer will not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Customer may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human  mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.

 

13.3.      Customer will not copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or, except as part of an authorized Customer Offering, allow Third Party access to the Services. Customer will not remove any proprietary notices or labels contained in or placed by the Services and will not use, post, transmit, or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Services. Customer will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services’ systems or networks, or any systems or networks connected to the Services.

 

13.4.      Customer will comply, and will ensure its Customer End Users comply, with Geek Crunch Hosting’s Acceptable Use Policy available at https://tdwebservices.com/legal/<<<<LINK to ALL THE LEGAL PAGE, where there are further links to Legal Pages>>> and will not otherwise use the Services for the distribution of any material that Geek Crunch Hosting considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise  objectionable.

 

13.5.      Customer will reasonably comply with any request by Geek Crunch Hosting to cooperate in connection with any third party audit, including but not limited to software audits.

 

  1. Customer may not resell any of the Services alone to any Third Party except as authorized and under the terms and conditions of such resale as set forth in an applicable attachment to this Agreement.

 

 

15.1.      Customer will defend, indemnify,  and hold  harmless  the  Geek Crunch Hosting  Parties  from  and against any and all liabilities, losses, damages, claims, costs, causes of action and expenses, including but not limited to the costs of defence and reasonable actual attorney’s fees, suffered, paid or incurred by any of the Geek Crunch Hosting Parties, whether or not suit is filed, arising out of, resulting from or connected with, in whole or in part:

 

(i) Customer’s use of the Services or Third Party services;

(ii) Any infringement or alleged infringement by the Customer Data of any Third Party intellectual property right;

(iii) Any breach or alleged breach by Customer of this Agreement, including any warranty contained in this Agreement;

(iv) Any violation or alleged violation by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, publication or other proprietary right;

(v) Any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services;

(vi) Any actual or alleged violation or noncompliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction, or

(vii) Customer’s resale of the Services.

 

15.2.      In connection with any claim, action, suit, proceeding, or investigation for which a Party seeks indemnification (being in such case, the “Indemnified Party”) from the other Party (the “Indemnifying Party”) under this Agreement, the Indemnified Party: (i) will give the Indemnifying Party prompt written notice of the claim, action, suit, proceeding, or investigation; provided, however, that failure to provide such notice will not relieve the Indemnifying Party from its liabilities or obligations under this Agreement, except solely to the extent of any material prejudice as a direct result of such failure;

(ii) will cooperate with the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, in connection with the defence and settlement of the claim, action, suit, proceeding, or investigation; and

(iii) will permit the Indemnifying Party to control the defence and settlement of the claim, action, suit, proceeding, or investigation; provided, however, that the Indemnifying Party may not settle the claim, action, suit, proceeding, or investigation without the Indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed, in the event such settlement materially adversely impacts the Indemnified Party’s rights or obligations. Further, the Indemnified Party, at its cost and expense, may participate in the defence of the claim, action, suit, proceeding, or investigation through counsel of its own choosing. Notwithstanding the foregoing, in no event may Customer settle any claim under this Agreement unless such settlement completely and forever releases Geek Crunch Hosting from any and all liability with respect to such claim and such a settlement is not prejudicial to Geek Crunch Hosting’s interests or require Geek Crunch Hosting to take, or cease taking,  an action,  or unless Geek Crunch Hosting provides its prior, written consent to such settlement. This section will survive the expiration or termination of this Agreement.

 

  1. Intellectual Property. Customer represents and warrants that the Customer Data and Customer’s use of the Services will not infringe the intellectual property or other proprietary rights of Geek Crunch Hosting or any Third Party.

 

Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of Geek Crunch Hosting are owned by Geek Crunch Hosting and/or its licensors. Unless otherwise specifically provided in this Agreement, Customer will have no right, title, claims or interest in or to Geek Crunch Hosting’s intellectual property. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute Geek Crunch Hosting intellectual property in any manner without the prior written consent of Geek Crunch Hosting. Geek Crunch Hosting may, in appropriate circumstances and at its discretion, disable and/or terminate Customer accounts of the accounts of Customer End Users who may be repeat infringers. Allegations of infringement will be handled pursuant to Geek Crunch Hosting’s DMCA Notice Policy as amended from time to time.

 

  1. DISCLAIMER OF WARRANTIES. EXCEPT AS REQUIRED BY LAW, CUSTOMER’S USE OF THE WEBSITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE WEBSITE AND SERVICES ARE FURNISHED BY Geek Crunch Hosting “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. Geek Crunch Hosting: (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-­‐FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS AND CUSTOMER END USERS’ USE OF THE SERVICES.

 

  1. DISCLAIMER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT AS REQUIRED BY LAW, IN NO EVENT WILL Geek Crunch Hosting BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT  LIMITED  TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS,  OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF Geek Crunch Hosting HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW, Geek Crunch Hosting WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE WEBSITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, Geek Crunch Hosting IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHATSOEVER, WHICH ARISES UNDER  OR  IN CONNECTION    WITH    THE    SERVICES,    Geek Crunch Hosting’.

 

TOTAL CUMULATIVE LIABILITY TO CUSTOMER WILL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO Geek Crunch Hosting’ LIABILITY.

 

  1. ALLOCATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH Geek Crunch Hosting WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. Geek Crunch Hosting’ PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.

 

  1. Each Party agrees that information relating to the other that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence and will not be disclosed or used except to the extent that such disclosure or use is necessary to the performance of the Services. The obligations of confidentiality in this section will not apply with respect to information that is independently developed by either Party, lawfully becomes a part of the public domain, or of which the other Party gained knowledge or possession free of any confidentiality obligation. Geek Crunch Hosting may disclose information, including information that Customer, or Customer End Users, may consider confidential, in  order to comply  with  a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request. Geek Crunch Hosting assumes no obligation to inform Customer, or a Customer End User, that information has been provided pursuant to such a request. In some cases Geek Crunch Hosting may be prohibited by law from giving such notice. Geek Crunch Hosting may also disclose such information when it is necessary for it to protect its business, or others, from harm. Customer is required to assist Geek Crunch Hosting with any investigation it conducts about a violation of its AUP.

 

  1. Export laws and regulations of the Dwarka and any other relevant local export laws and regulations apply to the Services. Customer agrees that such export laws govern its use of the Services and any deliverables provided under this Agreement. Customer will comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from the Services (including any Customer Offering) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

 

  1. Customer hereby grants to Geek Crunch Hosting a non-exclusive, worldwide, royalty-­‐free, fully paid-up license during the Term to use Customer’s trademarks, marks, logos or trade names in connection with Geek Crunch Hosting’ provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by Geek Crunch Hosting or its designees. The license granted in this section will include the right of Geek Crunch Hosting to sublicense its Party Affiliates and any Third Parties providing all or part of the Services on behalf of Geek Crunch Hosting to achieve the foregoing.

 

  1. Press Releases and Publicity. After execution of this Agreement, the Parties may issue a joint press release announcing the Parties’ relationship under this Agreement. The timing and content of any press release will be subject to the approval of each Party, which approval may not be unreasonably withheld. Except as required by law, and as provided in paragraph 22, neither Party will make any public statements, press releases or other public announcements regarding the Parties’ relationship without the prior written approval of the other Party. Either Party may not use the other Party’s trademarks or company name except as may be expressly agreed in writing between the Parties.

 

  1. Force Majeure. With the exception of Customer’s payment obligations, neither Party will be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions or other acts or causes reasonably beyond the control of that Party.

 

  1. Governing Law and Choice of Forum. This Agreement will be governed in all respects by the laws of the Dwarka as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions. Both Parties agree that any claim or dispute between them must be resolved exclusively by a state or federal court located in Dwarka, except as otherwise agreed by the Parties. Both Parties agree to submit to the personal jurisdiction of the courts located within Dwarka for the purpose of litigating all such claims or disputes, and hereby waive all claims of forum non-convenes.

 

  1. Compliance With Laws. Each Party will comply with all federal, state and local laws and regulations applicable to it (“Laws”). If, after the Effective Date of this Agreement any Law becomes effective which substantially and materially alters the ability or cost of either Party to perform its obligations under this Agreement in whole or part, the Parties will renegotiate the provisions of this Agreement to the extent necessary to reflect the effect of such Law. If renegotiations do not result in terms agreeable to both Parties, the Party that would bear the altered cost due to the change in the Law will have the right to terminate this Agreement without penalty upon thirty (30) days’ written notice to the other Party.

 

  1. Limitations of Actions. No action, regardless of form or substance, arising out of this Agreement or the performance or non-performance of any of the Parties’ obligations hereunder may be brought more than one (1) year after a Party knew or should have known of the occurrence of the event giving rise to such cause of action.

 

  1. Customer may not assign this Agreement without the prior written consent of Geek Crunch Hosting. Geek Crunch Hosting may assign this agreement without prior notice to or consent of Customer. The rights and obligations of this Agreement will bind and benefit any permitted successors or assigns of the Parties.

 

  1. No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer upon any person other than the Parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.

 

  1. No Waiver. The waiver by either Party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing, and signed by the Party waiving its rights.

 

  1. All notices or other communications that are required or permitted under this Agreement must be in writing and will be sufficient if delivered personally or sent by nationally-­‐recognized overnight courier or by certified mail, postage prepaid, return receipt requested, to the addresses set forth at the beginning of this Agreement, or to any other address provided pursuant to this section.

 

  1. Relation of the Parties. The Parties agree they are acting as independent contractors and under no circumstances will any of the employees of one Party be deemed the employees of the other for any purpose. Except as otherwise expressly agreed by the Parties, this Agreement will not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the Parties.

 

  1. If any provision of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.

 

  1. Survival of Obligations. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.

 

  1. Unless otherwise stated in this Agreement, a reference to the singular includes the plural and vice versa.

 

  1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning its subject matter and supersedes all other agreements, proposals, negotiations, representations or communications relating to its subject matter. Both Parties acknowledge they have not been induced to enter this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the Parties performed in preparation for and anticipation of the execution of this Agreement. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of the Parties.