Master Service Agreement
This WHOA MASTER SERVICES AGREEMENT (this “Agreement”) is made effective as of the date (the “Effective Date”) Customer executes or otherwise electronically agree to the WHOA Service Order (“SO”) by and between Whoa Networks, Inc. (“WHOA”) and Customer.
1.1 Services and Service Orders
Subject to the terms and conditions of this Agreement, the Service Level Agreement located at www.whoa.com (“SLA”), and Acceptable Use Policy located at www.whoa.com (“AUP”), during the term of this Agreement, WHOA will permit Customer to order and access various services and software described on the WHOA Service Order (collectively “SO”) attached hereto and incorporated herein (the “Services”), as well as order certain computer hardware and other equipment (the “Equipment”) as described more particularly on SO. Only Services and Equipment explicitly set forth on an SO agreed to by WHOA and the Customer are provided pursuant to this Agreement. Executed pricing agreements or proposals by Customer as contained in an SO take precedence over website pricing and Customer shall be bound to these terms and conditions, provided that the description of Services and Equipment shall be as set forth in the WHOA Services Guide or otherwise by WHOA, which is subject to change from time to time. This right to access the Services and use the Equipment is subject to Customer’s and its authorized users’ compliance with the terms and conditions set forth in this Agreement, the SLA, and the AUP. If Customer is ordering Services or Equipment on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services or Equipment and be bound to this Agreement. WHOA reserves the right to install software on Equipment including customer virtual machines for the purpose of acquiring system status and system health data.
1.2 PHI and BAA
In the event that the Services require WHOA to use or disclose personally identifiable patient information that is defined as Protected Health Information (“PHI”) in the Health Insurance Portability and Accountability Act of 1996 or its relevant regulations (“HIPAA”) such that WHOA is a “Business Associate” of Customer as defined in HIPAA, (a) WHOA and Customer shall enter into a Business Associate Agreement (“BAA”) substantially simultaneously with this Agreement, (b) until the BAA is entered into, WHOA shall have no obligations under this Agreement and shall not use, access, retain, or maintain any data of Customer, (c) deletion of data that is PHI shall be subject to the terms of the BAA rather than Section 8.5 of this Agreement, (d) confidentiality of PHI shall be governed solely by the terms of the BAA and not by Section 4 of this Agreement, (e) this Agreement shall terminate upon termination of the BAA, (f) to the extent that any term of this Agreement conflicts with the BAA as to the parties’ obligations for PHI, the terms of the BAA shall control, and (g) upon termination of this Agreement or the BAA, the terms of the BAA shall govern the return or destruction any PHI, and to the extent that WHOA retains any PHI following termination of this Agreement as permitted by the BAA, the terms of the BAA will survive any expiration or termination of this Agreement. Notwithstanding anything in this Agreement or the BAA to the contrary, Customer agrees that WHOA will only store ePHI (as defined in HIPAA) which is encrypted so that WHOA cannot view any ePHI, and that it is Customer’s sole responsibility to so encrypt Customer’s ePHI, to retain any encryption key(s) for such ePHI, and to authenticate access to ePHI. Customer acknowledges that WHOA is not responsible for any compliance failures that are due to the actions or inactions of Customer.
2.1 Customer will pay the fees for the Services and Equipment as set forth on the SO, or as otherwise provided by WHOA.
2.2 Upon execution of this Agreement by Customer, Customer shall pay to WHOA the initial setup fee (as set forth on the SO) and payment for (1) one month of usage prior to commencement of any Services. Fees for the Services shall be billed on a monthly basis in advance. In the event that Customer orders additional Services or additional Equipment to be covered by the Services, such additional Services or Equipment shall be provided at WHOA’s current pricing in an official client ticket or additional SO submitted by an authorized requestor and approved by WHOA; provided, however that any requests to reduce the amount of services or lower the monthly billing below the levels initially agreed upon by Customer in the original SO (or if applicable, amended SO) shall not be accepted without WHOA’s prior written consent. Any additional Services or Equipment will be added to the current term of the original, active SO signed by the Customer, unless the additional Services or Equipment is equal to or greater than 25% of the original active SO. In this event the addition of such Services or Equipment will begin a new term equal or greater to the original SO term and all previous SO’s will be extended to terminate concurrently with the additional SO.
2.3 Prior to each service month, WHOA will send an invoice in an amount equal to the fees set forth in the SO. Payment of all fees will be due within twenty five (25) days of the date of each WHOA invoice. All payments will be made in U.S. dollars. If Customer for any reason fails to pay the fees to WHOA by the due date of any month during the Term hereof all late payments hereunder will accrue Interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. If in its reasonable judgment WHOA determines that Customer is not creditworthy or is otherwise not financially secure, WHOA may, upon written notice to Customer, modify the payment terms to require full payment before the provision of the Services or other assurances to secure Customer’s payment obligations hereunder. Customer will be liable for all costs of collection (including reasonable attorney’s fees) incurred by WHOA in collection of any outstanding invoices as well as the enforcement of any agreement between Customer and WHOA. In the event of that WHOA brings any action or suit or counterclaims against Customer for Customer’s breach of this Agreement, WHOA shall be entitled to recover from Customer all costs and expenses of the action or suit, reasonable attorneys’ fees, witness fees and any other professional fees resulting therefrom through trial and any appeal in connection therewith.
2.4 Suspension Or Interruption Of Service
WHOA reserves the right to suspend Customer’s account and the Services provided to Customer in the event (a) Customer’s account becomes past due for more than twenty (20) days, (b) of a violation of the AUP or (c) of a failure to comply with any investigation into violation of this Agreement or the AUP or (d) of any law, regulation or court order, that compels WHOA to suspend services. In the event of such suspension, interruption or disconnection Customer will be required to bring their account current and may be required to subscribe to an auto-payment method.
WHOA will give Customer five (5) days advance notice prior to an account suspension and a chance to cure the grounds on which the suspension are based within such five (5) day period, unless WHOA determines, in WHOA’s reasonable commercial judgment, that a suspension on shorter notice or contemporaneous suspension is necessary to protect WHOA or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body.
Customer will still be responsible for any and all applicable fees and charges incurred before, during and after the date of suspension, and Customer will not receive any credit for the time its account was suspended. WHOA will not be responsible for any losses or damages that may occur as a result of such suspension.
All payments required by this Agreement are exclusive of all national, state, municipal or other governmental excise, sales, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, all of which Customer will be responsible for and will pay in full, except for taxes based on WHOA net income.
2.6 Price Adjustments
On no less than 30 days prior notice to Customer, WHOA reserves the right to increase or decrease monthly fees, and with respect to any Services at any time.
3. Customer Obligations.
Customer will comply, and if Customer resells WHOA’s services (which requires WHOA’s consent), Customer will require its customers and end users to comply, at all times with all applicable laws and regulations and WHOA policies relating to its provision of the Services, as updated by WHOA from time to time, including, without limitation, the AUP. Customer shall be solely responsible to comply with all laws, regulations, and industry standards applicable to its business, operations and systems, including without limitation, all laws, regulations, and guidance of governmental agencies applicable to the privacy and security of any data or information collected, maintained, used or disclosed by Customer, including compliance with the PCI Data Security Standard and rules and regulations of each card association by Customer’s systems if applicable. Customer acknowledges that WHOA exercises no control whatsoever over, and is under no obligation to control, the content of the information passing through its Equipment, server(s) or other hardware, and that it is the sole responsibility of Customer to ensure that the information it transmits and receives complies with all applicable laws and regulations.
3.2 Costs and Equipment
Customer will be fully responsible for any charges, costs, expenses (other than those included in the Services), and third party claims that may result from its use of, or access to, the Services or Equipment. Customer is responsible for providing all equipment and/or software necessary to access the Equipment and Services provided by WHOA. Upon request, WHOA will assist Customer by providing information as to equipment and/or software compatibility with WHOA’s network.
3.3 Reimbursement for Expenses of Litigation and Investigation
Except for indemnification by WHOA pursuant to Section 7.2, Customer agrees to promptly and fully reimburse WHOA for any costs and expenses (including reasonable attorneys’ fees and costs) incurred by WHOA, and promptly and full compensate WHOA for its time spent (at the same hourly rates and payment terms as are applicable to this Agreement) in connection with litigation, subpoenas or other legal process, investigations, or audits involving Customer or its employees or affiliates or to which WHOA is subject as the result of services provided pursuant to this Agreement, including for any preparation and giving of testimony, production of records, and other cooperation.
3.4 Unauthorized Use of Service
Customer is responsible for the security of the servers provided pursuant to this Agreement, and WHOA agrees only to perform the specific security services described in the SO or other portion of the Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use results from WHOA’s material failure to perform its obligations under the Agreement (subject in all events to Section 6).
Customer is responsible for all activities that occur under its account, regardless of whether the activities are undertaken by Customer, its employees or a third party (including Customer’s contractors or agents) and, except to the extent caused by WHOA’s material breach of this Agreement (and subject in all events to the terms of Section 6), WHOA and its affiliates are not responsible for unauthorized access to Customer’s account. Customer will contact WHOA immediately if it believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen.
Customer is responsible for Customer’s applications negatively impacting other entities.
3.5 Acceptable Uses
Customer shall at all times adhere to the AUP, which is subject to change from time to time and which shall be located at www.whoa.com. Notwithstanding anything to the contrary contained herein, WHOA may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of possible violation by Customer of the AUP. In the event WHOA takes corrective action due to a violation of the AUP, WHOA shall not refund to Customer any fees paid in advance of such corrective action, provided however, that if such corrective action is a result of a change in the AUP, then WHOA shall refund any fees paid by Customer in advance of the notice of such change for Services not provided to Customer as a result of the corrective action.
3.6 Security Precautions
Customer will use reasonable security precautions in connection with its use of the Services and, if Customer resells WHOA’s services (which requires WHOA’s consent), require its customers and end users to use reasonable security precautions.
3.7 Data Content
Notwithstanding any agreement by WHOA to provide data storage, Customer will create and maintain a current copy of all content (including software, data and other information) stored on Customer’s WHOA servers or otherwise provided to WHOA, and store the copy in a reasonably secure location other than a WHOA server or location.
3.8 Investigation of AUP
Customer will cooperate with WHOA’s reasonable investigation of any suspected violation of the AUP.
Customer will promptly notify WHOA of any change in Customer’s mailing and/or billing address, telephone, e-mail or other contact information.
Customer is solely responsible to obtain and maintain any insurance coverage that they want desire or need for their data, software, and equipment associated with the Services. WHOA does not provide any insurance for Customer and their data, software, and equipment.
3.11 Customer Permission
Customer expressly grants WHOA and WHOA’s third party service providers for the purpose of providing the Services, the right to access the Customer Cloud Infrastructure provided by WHOA.
Customer may only use the Services to process and manage its own data. Customer will not, in whole or in part, (a) copy the Services or distribute copies of the Services to any third party; (b) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works or improvements based on the Services except as otherwise permitted by law; (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Services to third parties; (d) permit any of the Services to be utilized for the provision of any services by Customer to third parties that compete with WHOA cloud services, without WHOA’s prior written consent; (e) access the Services if Customer is direct competitor, except with WHOA’s prior written consent; or (f) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Service. WHOA is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by WHOA. WHOA assumes no responsibility for the reliability or performance of any connections as described in this Section.
3.14 Licensing Verification
Upon request of WHOA, Customers shall provide evidence of ownership or other rights to use vendor software, and shall comply with such vendor’s licensing requirements. Customer further represents that it has obtained all license or other rights necessary to install or use any software or products in conjunction with Customer’s use of the Services. Customer may not copy any software WHOA provides for Customer’s use unless expressly permitted by the Agreement. Customer may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software WHOA provides for Customer’s use. Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software WHOA provides for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to WHOA. In addition to the terms of this Agreement, Customer’s use of any Microsoft or other third party software is governed by such software’s license terms, and any use restrictions on Customer’s use of such software, such as a limitation on the number of users. If Customer uses any non-WHOA provided software on Customer’s WHOA-hosted system, Customer represents and warrants to WHOA that Customer has the legal right to use the software in that manner. On WHOA’s request Customer will certify in writing that Customer is in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement, and will provide evidence of such as reasonably requested. If WHOA has agreed to install, patch or otherwise manage software in reliance on Customer’s license with a software vendor (rather than WHOA’s license with the software vendor), then Customer represents and warrants that it has a written license agreement with the vendor that permits WHOA to perform these activities. Customer agrees to provide WHOA with evidence of licensing as WHOA may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the license. If Customer fails to provide the required evidence of licensing WHOA may, at its option, either (i) delay the deployment date for the Customer’s hosted system that was to include such software until the evidence is provided, (ii) deploy the hosted system in reliance on WHOA’s licensing agreement with the vendor, and charge Customer WHOA’s standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate the Agreement. Customer agrees that WHOA will not be in breach of the SLA or other obligation under this Agreement that would not have occurred but for a delay resulting from WHOA’s agreement to use Customer’s licensed software. If WHOA is subjected to any fines, fees, costs, or expenses as a result of Customer’s failure to provide evidence of licensing, Customer shall immediately fully reimburse such amounts to WHOA.
3.15 Licenses Not Owned
Customers acknowledges and agrees that WHOA licenses are not property of Customer, and once Services are terminated, Customer may not take such licenses or use WHOA licenses for any purpose other than which it was provisioned.
4.1 Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software and customer information. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Upon termination or expiration of this Agreement or upon request of the other party, each party will return all Confidential Information of the other party, including all copies or summaries thereof, in its possession or control to the other party.
4.2 Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party, (iv) is independently developed by the receiving party.
4.3 WHOA’s Use of Customer’s Name. Customer agrees that WHOA may publicly disclose that WHOA is providing services to Customer and may include Customer’s name in promotional materials, including press releases and on WHOA’s web site. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s permission.
4.4 Requests for Customer Information. Notwithstanding anything to the contrary above, Customer agrees that WHOA may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that WHOA believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or government agency. WHOA may provide any information, including Confidential Information, it has about Customer or its customers or end users in response to a formal request in a civil action that on its face meets the requirements for such a request.
5. Warranties and Disclaimers
5.1 Warranties by Customer
(a) Customer represents and warrants that: (i) it has full legal authority to enter into this Agreement; (ii) it has read and understands this Agreement; (iii) it agrees to all of the terms of this Agreement, the SLA, and AUP; and (iv) it will comply with all applicable laws and regulations in connection with its use of the Services and Equipment.
(b) In the event of any breach, or reasonably anticipated breach, of any of the foregoing warranties, in addition to any other remedies available at law or in equity, WHOA will have the right to immediately, in WHOA sole discretion, suspend any of the Services or exclude or remove from any of WHOA’s Equipment, server(s) or other hardware or to restrict access to any material or data of Customer which WHOA determines may violate or infringe any law or third party rights or which may expose WHOA to any civil or criminal liability.
5.2 Warranties and Disclaimers by WHOA
(a) WHOA’s service commitment and remedy for interruption of service are detailed in its SLA located at www.whoa.com. Customer has read, understood, and agrees to the SLA. THIS WARRANTY DOES NOT APPLY TO ANY SERVICES THAT EXPRESSLY EXCLUDE THIS WARRANTY (AS DESCRIBED IN A SO). THIS SECTION 5.2(a) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY WHOA TO PROVIDE THE SERVICES. WHOA’s SLA constitutes Customer’s sole and exclusive remedy for WHOA’s provision of or failure or deficiency of the Services for any reason, except that WHOA shall have no obligation to compensate Customer under any SLA while Customer is in default or not current in its payment obligations under this Agreement. WHOA shall be under no obligation to provide support services under the SLA at any time Customer’s account is not in good standing with WHOA.
(b) EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN SUBSECTION (a) ABOVE, THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER’S USE OF THE SERVICES AND EQUIPMENT IS AT ITS OWN RISK. WHOA DOES NOT MAKE, AND HEREBY DISCLAIMS. ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, REASONABLE CARE, DURABILITY, ACCURACY OR QUALITY OF INFORMATIONAL CONTENT OR OTHERWISE, QUIET ENJOYMENT, TITLE, NONINFRINGEMENT, VALIDITY, EXCLUSIVITY, CONDITION, SECURITY, TIMELINESS, AVAILABILITY, COMPLETENESS, RELIABILITY, SUSTAINABILITY, ARISING FROM A COURSE OF DEALING, A COURSE OF PERFORMANCE, OR USAGE OF TRADE, OR UNDER ANY ENACTMENT OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AND ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. WHOA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES.
(c) Service and Equipment Limitations. The Services and Equipment may be temporarily unavailable from time to time due to required maintenance as defined in the SLA, telecommunications interruptions, or other disruptions. WHOA may also make improvements and/or changes in the Services and Equipment at any time without notice. Customer agrees that WHOA will not be in breach of this Agreement if its failure to provide the Services and Equipment is due to maintenance windows as defined in the SLA, network and utility outages, and other force majeure events set forth in this Agreement, or under any circumstance where down-time and/or service outages were caused or facilitated by Customer or Customer’s agents for any reason. WHOA will not be responsible for any damages that Customer may suffer arising out of use, or inability to use, the Services or Equipment. WHOA will not be liable for unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method. It is hereby acknowledged that it is Customer’s responsibility to validate for correctness all output and to protect Customer’s data from loss by maintaining backups of all data and routinely updating such backups. Customer hereby waives any damages occasioned by lost or corrupt data, incorrect output or incorrect data files resulting from a programming error, operator error, equipment or software malfunction, or from the use of third-party software.
6. Limitations of Liability
6.1 WHOA ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS RELATING TO, CUSTOMER’S BUSINESS, EQUIPMENT, OR DATA RESULTING FROM ANY CAUSE WHATSOEVER, OTHER THAN, SUBJECT IN ALL EVENTS TO THE LIMITATIONS OF SECTION 6.2 BELOW, FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF WHOA OR A MATERIAL BREACH OF THIS AGREEMENT BY WHOA. TO THE EXTENT WHOA IS LIABLE FOR ANY DAMAGE TO, OR LOSS OF, THE CUSTOMER’S EQUIPMENT FOR ANY REASON (WHETHER DUE TO WHOA’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR MATERIAL BREACH OF THIS AGREEMENT), SUCH LIABILITY WILL BE LIMITED SOLELY TO THE THEN-CURRENT REPLACEMENT COST OF THE CUSTOMER’S EQUIPMENT SO DAMAGED.
6.2 IN NO EVENT WILL WHOA BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR CUSTOMER’S BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY OTHER EXHIBITS, SCHEDULES OR ATTACHMMENTS TO THIS AGREEMENT OR ANY OTHER AGREEMENTS REFERENCED HEREIN OR ENTERED INTO BETWEEN WHOA AND CUSTOMER, AND IF APPLICABLE, THE BAA) WHOA’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY OTHER EXHIBITS, SCHEDULES OR ATTACHMMENTS TO THIS AGREEMENT OR ANY OTHER AGREEMENTS REFERENCED HEREIN OR ENTERED INTO BETWEEN WHOA AND CUSTOMER, AND IF APPLICABLE, THE BAA) WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO WHOA HEREUNDER FOR THE PRIOR SIX (6) MONTH PERIOD. WHOA HAS SET ITS PRICES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT SUCH LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS ARE FUNDAMENTAL ELEMENTS, AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND WHOA. WHOA WOULD NOT BE ABLE TO OFFER THE SERVICES AT THE PRICES AND TERMS OFFERED WITHOUT SUCH LIMITATIONS.
The parties agree that the indemnification obligations defined in this Section shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
7.1 Customer. Customer agrees, at its cost and sole expense, to defend, indemnify and hold free and harmless WHOA, WHOA’s affiliates, and WHOA’s successors and assigns, and each of their respective officers, directors, shareholders, attorneys, agents, and employees from and against any and all liability, losses, costs, expenses, judgments, and damages (including, but not limited to, all fines, forfeitures, and reasonable attorneys’ fees, costs, and expenses, including court or arbitral costs) incurred by any of them in connection with, as a result of, or arising from any third party demand, claim, action, suit, or proceeding (including assertion of the foregoing or settlement thereof) either actually or allegedly arising from (i) (a) Customer’s failure to comply with applicable laws and regulations, (b) Customer’s breach of this Agreement, (c) the actual or alleged use of the Services in violation of any WHOA policies relating to its provision of the Services, as updated by WHOA from time to time, including, without limitation, the AUP, by any person regardless of whether such person has been authorized to use the Services by Customer, except for unauthorized use that results from WHOA’s material failure to perform its obligations under the Agreement, or (d) negligent, fraudulent, or intentional acts or omissions of Customer, including bodily injury (including death) or damage to property, or (ii) any dispute regarding the control of Customer’s account with WHOA. Without limitation of the foregoing, Customer shall pay WHOA $200.00 per hour for time reasonably spent by WHOA personnel to respond to third party complaints regarding Customer’s use or alleged use of the Services in violation of any WHOA policies including the AUP, including complaints under the Digital Millennium Copyright Act. Customer agrees to hold WHOA and its affiliates harmless for all activities that occur under its account, regardless of whether the activities are undertaken by Customer, its employees or a third party (including Customer’s contractors or agents) and, except to the extent caused by WHOA’s material breach of this Agreement, and in all events subject to the limitations of Section 6, WHOA and its affiliates are not responsible for unauthorized access to Customer’s account. Customer will contact WHOA immediately if it believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen.
Each party agrees, at its cost and sole expense, to defend, indemnify and hold free and harmless the other party, the other party’s affiliates, successors and assigns, and each of their respective officers, directors, shareholders attorneys, agents, and employees from and against any and all liability, losses, costs, expenses, judgments, and damages (including, but not limited to, all fines, forfeitures, and reasonable attorneys’ fees, costs, and expenses, including court or arbitral costs) incurred by any of them in connection with, as a result of, or arising from any third party demand, claim, action, suit, or proceeding (including assertion of the foregoing or settlement thereof) either actually or allegedly arising from the indemnifying party’s infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark, or other proprietary right.
A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices the defense of the matter. The indemnified party will have the right to select counsel to defend it in respect of any indemnified matter under this Section; provided, however, that the counsel selected must be reasonably satisfactory to the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement.
8. Term and Termination
8.1 This Agreement shall be for the term specified by Customer on the SO, as applicable (the “Initial Term”) and then concurrently as additional SO are signed by Customer, unless earlier terminated according to the provisions of this Section 8. Upon completion of the Initial Term, this Agreement will automatically renew for successive terms equal to the Initial Term at pricing then in effect unless otherwise terminated in accordance with Section 8.2 below. The Initial Term and all extensions thereof are collectively referred to herein as the “Term” of this Agreement. After the agreement is signed, the Term will start on the first full calendar billing month after services are provisioned.
8.2. Either party will have the right to terminate this Agreement immediately upon written notice of termination from such party if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from WHOA and upon one (1) business day notice if Customer’s Service is used in violation of a material term of the AUP more than once. Additionally, Customer will have the right to terminate this Agreement prior to the conclusion of the Initial Term provided that a 90-day written notice is accompanied with full payment for the remainder of the initial Term, regardless of whether the Services are to be used or not.
CUSTOMER UNDERSTANDS THAT ITS RATES AND FEES ARE BASED UPON ITS BINDING COMMITMENT TO PURCHASE SERVICES FOR THE TERM OR RENEWAL TERM. CUSTOMER ACKNOWLEDGES THAT WHOA INCURS SIGNIFICANT COSTS TO PROVISION THE SERVICE AND ANY CANCELLATION PRIOR TO INITIAL TERM END DATE, FOR ANY REASON, WILL CAUSE A FINANCIAL HARDSHIP FOR WHOA. IF CUSTOMER TERMINATES THIS AGREEMENT OR ANY SERVICES PROVIDED HEREUNDER AFTER INSTALLATION DURING THE INITIAL OR RENEWAL TERM FOR ANY REASON OTHER THAN FOR MATERIAL BREACH DIRECTLY RELATED TO THE SLA WHICH IS NOT CURED BY WHOA WITHIN A THIRTY (30) DAY PERIOD, IT SHALL PAY TO WHOA AS DAMAGES, NOT A PENALTY, AN AMOUNT EQUAL TO THE NUMBER OF MONTHS REMAINING IN THE THEN- CURRENT TERM OR RENEWAL TERM.
8.3 Additionally, a party may terminate this Agreement immediately upon written notice in the event that (a) the other party is the subject of a petition for bankruptcy, reorganization, or arrangement, whether voluntary or involuntary, and the same is not dismissed within sixty (60) days thereof, (b) a receiver or trustee is appointed for all or a substantial portion of the assets of the other party, or (c) the other party makes an assignment for the benefit of its creditors.
8.4 Any and all Equipment included in the Services provided by WHOA shall remain the property of, and in the possession of, WHOA. Customer shall have no further liability with respect to such dedicated Equipment.
8.5 Unless Services are renewed, Customer will remove all of Customer’s data on the WHOA infrastructure on or before the expiration of the Term. Customer will not have access to the Services or Equipment following termination of this Agreement, a Service or SO, unless coordinated by the Customer in advance of termination and agreed to by WHOA. WHOA may permanently delete all applicable instances of Customer’s Services and any of Customer’s data on the WHOA infrastructure as WHOA deems fit, complying with any legal or regulatory requirements (a) upon or after termination of this Agreement, a Service or SO, or (b) in the event that Customer fails to pay WHOA all amounts owed to WHOA under this Agreement when due, and Customer’s account remains past due for more than five (5) days after suspension of Services in accordance with Section 2.4. Customer agrees WHOA will not be responsible for any losses or damages that may occur as a result of permanently deleting any or all of Customer’s data.
8.6 The following provisions will survive any expiration or termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9.1 Force Majeure
Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
9.2 No Lease
This Agreement is a service agreement and is not intended to and will not constitute a lease of, or a grant of any interest in, any real or personal property of WHOA. Customer acknowledges and agrees that it has been granted only a license to use the Services and any Equipment provided by WHOA in accordance with this Agreement.
During the period beginning on the Effective Date and ending on the first anniversary of the termination or expiration of this Agreement in accordance with its terms, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons or consultants employed by WHOA during the Term of this Agreement who provided Services to Customer, provided, however, this shall in no way restrict Customer from placing advertisements from employment that may indirectly result in the solicitation of employment of WHOA employees or consultants.
9.4 Governing Law; Waiver of Jury Trial; Severability
The Agreement shall be solely governed by the laws of the State of Florida, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE JURISDICTION AND VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN BROWARD COUNTY, FLORIDA, WITHOUT REGARD TO CONFLICT OF LAWS UNDER ANY JURISDICTION, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. BY ENTERING INTO THIS AGREEMENT THE PARTIES ALSO AGREE TO WAIVE THE RIGHT TO A JURY TRIAL AS TO ANY CLAIMS EACH PARTY MAY CLAIM TO HAVE AGAINST THE OTHER. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
Customer may not transfer the Agreement without WHOA’s prior written consent, including by operation of law. WHOA’s approval for assignment is contingent on the assignee meeting WHOA’s credit approval criteria. WHOA may assign the Agreement in whole or in part, including by operation of law. All terms and conditions of this Agreement will be binding up, inure to the benefit of, and be enforceable by such permitted successors or assigns.
9.6 Relationship of Parties
WHOA and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between WHOA and Customer. Neither WHOA nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property, and that WHOA shall own any intellectual property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess WHOA’s Equipment, server(s) or other hardware, and has no right of physical access to the foregoing. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Services (but not any URL or top level domain or domain name) and agrees that WHOA may take steps to change or remove any such IP addresses.
All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for WHOA is WHOA Networks Inc., PO Box 840137 Pembroke Pines FL 33084; and the notice address for Customer is the address specified on the SO, which Customer may update from time to time after the Services have been established. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail, (ii) in the case of overnight courier or hand delivery, upon delivery, (iii) and in the case of a notice sent from WHOA to Customer by email to the email address provided by Customer at the time of registration or as updated from time to time by Customer through the Services. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
9.9 No Waiver
Waiver of any breach will not be construed to be a waiver of any other breach. All waivers must be in writing, and signed by the party waiving its rights. No delay or omission by WOA in the exercise or enforcement of any of the terms of this Agreement will constitute a waiver.
9.10 Entire Agreement; Counterparts
This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Each party acknowledges and agrees that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Neither party shall be considered the drafter of this Agreement, or any provisions of this Agreement, for the purpose of any statute, case law, or rule of interpretation or construction that would or might cause any provision to be construed against the drafter. This Agreement may be executed in any number of counterparts (via execution of a SO) and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto.
WHOA reserves the right to amend or modify this Agreement, the AUP, the SLA or any descriptions of the Services, by notifying Customer in accordance with this Agreement or posting such changes to www.whoa.com, which changes will take effect immediately upon sending or posting, whichever occurs first. Customer’s continued use of WHOA’s Services shall constitute Customer’s acceptance of such changed terms. Any renewal of Services or of this Agreement shall be subject to the current posted version of this Agreement.
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