Master Service Agreement (“MSA”)
- Welcome! We truly appreciate your business and look forward to a productive working relationship with you. This “Master Services Agreement” (the “MSA”) sets out the rights, responsibilities and legal obligations of the parties to it. The individual or entity placing an order for Services is referred to in this MSA as “Customer,” “you” or “your” and is the individual, or entity, designated as the “owner” in our records. The entity providing the services is referred to as “we,” “us” or “our.” The individual or entity using the Services, if different than the Customer, is referred to as the “End User.” The “Services” are the products, technologies and other items purchased by the Customer as set out on our web page describing them on the Effective Date (“Order Form”). The Effective Date of this MSA is the date you click “I accept” as that date is recorded by our servers.
- This MSA includes agreements incorporated by reference. This MSA includes the following documents, which you agree you have reviewed, and accept:
a. The web page on which you indicate which Services you agree to purchase from us. During the course of the parties’ relationship with each other, you may purchase additional Services from us using new Order Forms. Each of these is incorporated into this MSA. If you are purchasing Services on behalf of a third party, you represent and warrant to us that you have the authority to purchase those Services. For the purposes of this MSA, the Order Form may be our on-line ordering process.
b. Our Acceptable Use Policy (“AUP”) posted here: AUP
c. Our Service Level Agreement (“SLA”) posted here: SLA
e. This MSA, and each of the documents set out above, may change from time-to-time. We will provide you with written notice of any change, other than one to correct typographical errors. Notification will be provided by posting a notice on our control panel, our home page or by email to the contact email you have provided us. Changes, other than changes necessary to respond to an unforeseeable situation, or those required by law or a third party who provides services to us, will be effective thirty (30) calendar days from the date we post a notice on our control panel, home page or by email. If you have agreed to a “Term Commitment” as that term is defined below, and a change materially affects your ability to use a particular Service, you may terminate the affected Service as set out in the termination section below.
- The Services
b. The Services are provided as set out on the Order Form and as described on our website on the Effective Date. In order to use the Services, you may need to procure additional services, technology, equipment and/or materials. You may not terminate this MSA because you are required to procure these items. It may be necessary for you to assist us in our implementation of the Services. You agree to provide reasonable cooperation and assistance, and to cause any of your third party providers to do so as well.
c. Third parties may provide certain aspects of the Services to us. We will use commercially reasonable efforts to continue to have access to those components of the Services. However, should a third party change the services, make them economically prohibitive for us to provide to you, or discontinue them, our only obligation will be to attempt to find replacement components at a reasonable cost to us. If we are unable to do so, you may terminate those Services directly affected.
d. The Services are not static, and they may require that you install new versions of software, or other items to ensure their continued function (“Updates”). You agree to install these Updates within thirty (30) calendar days of the day they become available by your vendor or any third party. If you do not install the Updates, and doing so endangers the Service, or our network, you agree that we may suspend the Service until the issue is resolved.
e. The security of your passwords and other access devices is your responsibility. We shall be entitled to rely on the instructions, or operations, of any entity accessing the Service using your passwords and/or access devices. You agree to notify us immediately should any of these items become lost, stolen or compromised.
f. Our goal is to maintain the Services as set out in this MSA. To do so, we may need to interrupt them from time-to-time for maintenance. We agree to give you three (3) business days’ notice of our intent to suspend the Services for this reason. We will provide this notice to you by email to the address we have in our records. Our notice will, at a minimum, set out the reasons for the maintenance, the features to be affected, and the period of time the maintenance will take place. On infrequent occasions, we may be required to undertake emergency maintenance, and we will be unable to provide you with the notice set out in this paragraph. We will use reasonable efforts to ensure that maintenance does not interfere with your operations; however, in order to ensure the continued stability of our operational platforms, our maintenance activities may take precedence.
g. You agree and understand that Services and/or related support may not be available at certain times as a result of technical difficulties, equipment malfunctions, during scheduled maintenance, or as a result of circumstances beyond our reasonable control. You also understand and agree that we make no representation that Services and/or related support will be available on a continuous or uninterrupted basis.
h. We do not set limits on the amount of disk space you can use for your services as long as the contents do not violate our AUP. If your use exceeds the capacity of a particular service as defined in the product specifications or AUP then we reserve the right to modify the Services we provide to you or request you move to a different Service where additional charges may apply.
i. You specifically agree that you understand that Backup Services, as defined below, are not fool-proof, that they will not back-up all data, and that you will use a second source of back-up. Under no circumstance will we have any liability or responsibility for the loss of back-up data, content or other information, unless caused by our negligence or willful misconduct.
j. Backup Services are designed for disaster recovery and are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own back-up efforts. While we will use commercially reasonable efforts to ensure the effective operation of the Backup Services, you expressly agree that no back-up program or service is error-free or fail-safe. In the event of an interruption or failure of the Backup Service, our only obligation is to restore your server to operating condition. Our support team will do their best to restore your data without issues, but, it is your responsibility to restore the functionality of your website after backups are restored. You may wish to maintain an operating copy of your website for this purpose.
k. You must provide certain current, complete and accurate account information for your Services. You must maintain and update this information as needed to keep it current, complete and accurate.
l. We reserve the right to relocate the equipment used to provide the Service at any time. You will have no physical access to this equipment and no console/terminal/ssh access.
a. Payments for the Services, the due date, and all other information related to the assessment and collection of amounts owed are set out on the Order Form (“Fees”). If the Order Form does not contain a payment date, Fees are due monthly, or yearly, depending on agreement. Upon the renewal of a Service Term, the Fees will be set to our then standard fee for the particular Service. Discounts provided to new Customers may not be extended to Services you have already agreed to purchase. If we do not collect Fees immediately, your service may be suspended.
b. During the Term, we will only increase the Fees in the following circumstances: (i) you purchase additional Services and those Services have additional Fees; (ii) a regulated entity, such as a utility, increases their charges to us; or (iii) a vendor adds surcharges or additional fees based on your use of the Services. We agree to provide you with fifteen (15) calendar days written notice prior to any change in the Fees. Notice will be provided to the email address in our records
c. For services on a monthly billing, Fees are not refundable, unless you choose Services covered by a “30 day money back guarantee.”. For services using annual billing, we maintains a policy of refunding 25% of the remaining months, if one month remains, no refund is available. Charges assessed by third parties will be added to the Fees within fifteen (15) calendar days from the date we receive them. You agree to pay these charges regardless of the length of time that may have passed.
d. If you do not pay the Fees when due, we may suspend and or delete any and all Services. Following suspension of Services for non-payment, we are not required to reinstate Services until: (i) you have paid in full all Fees then due, including late fees, interest charges of one and a half (1.5) percent per month (or the highest rate permitted by the laws governing this MSA), collection costs (including fees charged by our collection agency and reasonable actual attorneys’ fees), and any cost of reinstating Services; and (ii) you provide us satisfactory assurance as requested by us (such as a deposit) of your ability to pay for the Services for the remainder of the applicable Service Term. If you fail to timely cure the non-payment within the timeframe specified by us, you will be deemed to have terminated the affected Services as of the effective date of Service suspension. Your failure to pay Fees when due shall be treated as termination for convenience by you subject to Early Termination Fees, if any, described in this MSA. You will not receive credits (including SLA credits) or other benefits during the period you have failed to pay any Fees, and you may not withhold payment of Fees during any dispute.
e. We understand that from time to time the parties may have disagreements about the Fees. To help resolve these disputes, each of the parties agrees to try to resolve these disagreements as set out in this paragraph. If you dispute any Fee, you must notify us in writing of this dispute before the Fee is due. In your notice, you agree to include sufficient information to allow us to investigate the dispute. We agree to complete this investigation within thirty (30) calendar days from the date your Fee is due and provide you a written discussion of our investigation, with sufficient facts for you to review. If we agree with your dispute, we will credit your account on your next billing cycle, or within sixty (60) calendar days if your billing cycle is not monthly. If we reject your dispute, you have thirty (30) calendar days to present us with a written rebuttal, again with sufficient information for us to understand your arguments. We will review this material within thirty (30) calendar days from our receipt. If the parties continue to disagree, they may pursue their remedies at law, consistent with this MSA. Fee disputes are Service specific, and you are required to pay Fees for other Services during the period of a dispute. You may not terminate this MSA, or any Service, based on a Fee dispute. We will not charge you interest on affected Fees during a dispute, provided that the dispute is bona fide.
f. We take every possible measure to secure online payment processing of your account. While our own payment processing systems are secure and PCI compliant, our hosting environments are not fully compliant with Payment Card Industry Data Security Standard (“PCI DSS”).
- Term. This MSA shall begin on the Effective Date and continue until terminated by a party (“MSA Term”). Individual Services shall begin on their Effective Date and continue until terminated by a party (“Service Term”). The MSA Term and the Service(s) Term are collectively referred to as the “Term.” The initial Service(s) Term is set out on the Order Form. If the Order Form does not have a Service(s) Term, the Service(s) Term will be one (1) year. On the expiration of an initial Service(s) Term, the individual Services shall renew for the length of the initial Service(s) Term unless you notify us in writing no later than fifteen (15) calendar days prior to expiration of your intent to terminate them. Our required termination procedure is set out below. The MSA Term shall extend until the MSA is properly terminated.
- Termination. We hate to see you go, but here is how this MSA may be terminated.
a. You may terminate an individual Service by contacting us through your Client Area by opening a ticket or by e-mail, and notifying us of your intent to terminate your service (“Service Termination”). A Service Termination must be done no later than fifteen (15) calendar days before the Service Term will renew, does not apply to other Services we provide to you, and, unless the Services are the last Services we provide you, does not terminate this MSA. You acknowledge and agree that we require advance notice of your intent to terminate a Service Term, or this MSA, because of the long-term equipment and facilities commitments we are required to undertake in order to provide the Services to you.
c. Either party may terminate a particular element of the Service if there is a force majeure event, as defined in this MSA, that continues for more than thirty (30) calendar days, or the other party becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization, liquidation or dissolution proceeding in bankruptcy or under any other insolvency law, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due.
d. Upon termination of this MSA, it is your responsibility to ensure that you configure technical aspects of your business, such as mail, WHOIS, and items outside of our control, to ensure that those items are directed away from us. We have no responsibility to maintain backups following termination, nor to forward email to another provider or to point DNS for your domain names away from us.
- The Parties Own Their Intellectual Property. Each party retains the intellectual property owned by, or licensed to, them. To perform, and use, the Services the parties each grant to the other a limited license to use and distribute that intellectual property only as strictly necessary to provide or use the Service. Other than as set out in the prior sentence, or in this MSA, neither party grants to the other, and neither shall have, any right, title, claim or interest in, or to, the other party’s intellectual property, or that which is licensed to any party, nor will a party decompile, dissemble, or reverse engineer the other party’s intellectual property, or that which is licensed to a party. Suggestions provided to us used by us to improve the Service are our intellectual property.
- We Stand Up for Each Other.
a. We agree to indemnify, defend and hold you, your employees, directors and officers (“Your Indemnified Parties”) from any and all third party actions, liability, damages, costs and expenses (including, but not limited to, those attorneys’ fees and expenses charged to us) arising from, or relating to, personal injury or property damage resulting solely from our gross negligence or willful misconduct. You waive and release all claims against Our Indemnified Parties (as defined in section b), and agree that Our Indemnified Parties shall not be liable for injury to person or damage to property sustained by Your Indemnified Parties caused by the Services, or otherwise relating to this MSA, except if such injury or damage results solely from our gross negligence or willful misconduct.
b. You agree to indemnify, defend and hold us, third parties who provide aspects of the service to us, contractors, subcontractors, affiliates, employees, directors and officers (“Our Indemnified Parties”) from any and all third party actions, liability, damages, costs and expenses (including, but not limited to, those attorneys’ fees and expenses charged to us) arising from, or relating to (i) personal injury or property damage resulting from your acts, or inaction, or those of any individual or entity identified as Your Indemnified Parties below, as well as End Users; (ii) any claim by you, Your Indemnified Parties, or End Users, other than a claim based solely on our gross negligence or willful misconduct; (iii) any claim by your customers, including End Users, relating to, or arising out of, your, or any End Users’ services or the Services provided under this MSA; (iv) any claim that you have failed to fulfill a contractual obligation with a third party; (v) any claim resulting from your failure to obtain consents or licenses necessary for you, or your End Users, to use the Services; and (vi) any claim by a party claiming by, through, or under you, or an End User, to the extent that such a claim, if sustained would result in any greater obligation or liability to us than what we have undertaken to you in this MSA.
- Each of Us Stands Behind this MSA.
a. Each party warrants to the other that it has the power, authority and legal right to enter into this MSA and to perform its obligations set out in it, and pursuant to any provisions or agreements incorporated into it.
b. You warrant that you either own, or have licensed the right to use, the technology necessary to use the Services, the data transmitted using the Services, and any technology you place on our network. You agree to provide us with evidence of these licenses or rights on our reasonable request, and to procure similar warranties from your End Users. In particular, you represent and warrant that the material placed on, or transmitted through, the Services does not infringe any third party patent, copyright, trademark or trade secret right, and that you have used commercially reasonable efforts to ensure that the material is free from viruses and is not being placed on our Services to enable access to them by parties other than you.
c. NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN US AND YOU ABOUT OR IN CONNECTION WITH THE SERVICES, EXCEPT AS EXPRESSLY STATED IN THIS MSA OR IN ANY DESCRIPTION OF OUR PRODUCTS, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUB-CONTRACTORS OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INTERRUPTION, NON-INTERFERENCE, NON-INFRINGEMENT, OR THAT THE SERVICES ARE COMPLETELY SECURE OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS MSA, THE SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THIS MSA ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
- Our Liability is Limited.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE SERVICES TO YOU FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE). THIS LIMITATION APPLIES EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. OUR MAXIMUM LIABILITY SHALL BE ONE (1) MONTH’S FEES (OR THE EQUIVALENT THEREOF) ACTUALLY RECEIVED BY US DURING THE MONTH PRIOR TO YOUR CLAIM. IF THIS DISCLAIMER IS PROHIBITED BY THE LAW GOVERNING THIS MSA, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT ALLOWED BY LAW. AS FURTHER LIMITATION, OUR MAXIMUM LIABILITY RELATING TO ANY SERVICE THAT HAS A NON-RECURRING CHARGE WILL EQUAL THE AMOUNT OF THE NON-RECURRING CHARGE FOR SUCH SERVICE ON THE OCCASION GIVING RISE TO THE CLAIM. OUR OBLIGATION TO INDEMNIFY YOU, WHICH IS SET OUT IN PARAGRAPH 9, IS NOT LIMITED BY THIS PARAGRAPH.
- Keep Certain Information Confidential.
b. Each of the parties agree that if one party (“Disclosing Party”) provides Confidential Information to the other party (“Receiving Party”), that Confidential Information shall be held in confidence, and the Receiving Party shall give the Confidential Information the same care and protection as it gives generally to its own confidential and proprietary information, but no less than reasonable care, in order to avoid disclosure to, or unauthorized use by, any third party. All Confidential Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party, and shall be used by the Receiving Party only for its intended purpose. All Confidential Information, including all copies of it, shall be either returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired, or upon the request of the Disclosing Party, each at the option of the Disclosing Party. The provisions of this paragraph shall not apply to any Confidential Information which: (i) becomes publicly available, other than through disclosure by the Receiving Party; (ii) is required to be disclosed by any governmental authority, applicable law, or by court order; (iii) is independently developed by the Receiving Party; (iv) becomes available to the Receiving Party without restriction from a third party; or (v) becomes relevant to the settlement of any dispute or enforcement of either party’s rights under this MSA. If any Confidential Information is required to be disclosed based on this paragraph, the party required to make such a disclosure shall, where legally permitted, immediately inform the other party of the requirements of such a disclosure to enable the Disclosing Party to take protective measures to preserve the confidentiality of such Confidential Information as fully as possible in the context of such a permitted disclosure. It is not a violation of this paragraph for a party to disclose Confidential Information to its employees or agents, its legal, financial and accounting advisors, and to its lenders which need to know that Confidential Information, provided that the Disclosing Party notifies any recipient of its confidential and proprietary nature.
- We Take Security Seriously. We take the security of the Services seriously, and we will use industry standard methods to secure them. However, many of the resources associated with the Services are co-managed with you. You are solely responsible for the security of those aspects of the Services that are co-managed, and you agree to manage them in a way that does not impact the security of our network as a whole. The Services are configured for standard deployment. This configuration may not meet your security needs. It is your responsibility to configure the Services to meet your Security needs. We are not responsible for the manner in which you customize the configuration to suit your needs or its results. Should we determine that there has been unauthorized access to the Services (“Breach”), we may consult with a professional security agency to determine our best course of action and if advised, we agree to notify you in writing as soon as we have determined our course of action with regard to a breach (“Breach Notification”). We may take action, including suspending all, or part of the Services, to isolate and mitigate the cause of a Breach. We have no liability to you for the effects of that suspension. The Breach Notification may contain preliminary and unconfirmed information; however, it is provided to you to assist in your efforts to mitigate the effects of a Breach. To the extent you rely on a Breach Notification, you do so at your own risk. We each agree to reasonably cooperate with each other to investigate the facts and circumstances involved in a Breach. To the extent our cooperation requires us to devote time and resources above and beyond those extended by us in conjunction with a typical Breach investigation, or should we be asked to cooperate with a governmental investigation, you will be billed at our standard consulting Fees. Any information we provide to you in conjunction with a Breach, including the Breach Notification, shall be our Confidential Information.
- Compliance with Laws. Each party agrees that it will obtain and maintain all permits, licenses or certificates that are required by any regulatory body for the provision or use of the Services. Each party will comply with all applicable laws in performing its obligations, and exercising its rights under this MSA. Unless specifically set out in your Order Form, we do not warrant, nor have we represented to you that the Services meet any particular industry standard.
- We own the IP addresses used by the Services. Upon termination, they must be relinquished by you. The Services will have either a shared or dedicated IP address. We cannot guarantee this IP address will never change. We make a reasonable effort to avoid IP address changes but due to many factors, including network configuration changes, you will be given advance e-mail notification of such a change.
- General Provisions
a. Neither you, nor any End Users, may remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Services or products used to provide the Services. Any license provided to you is provided with “Restricted Rights” applicable to private and public licensees, including restrictions on use, duplication or disclosure by the U.S. Government as set forth in this MSA.
b. This MSA will be construed and controlled by the laws of the State of New Jersey, and each party consents to exclusive jurisdiction and venue in the federal courts sitting in Colonia, New Jersey, unless no federal subject matter jurisdiction exists, in which case the parties consent to exclusive jurisdiction and venue in state courts in Rahway, New Jersey. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action or suit to enforce any right or remedy under this MSA or to interpret any provisions of this MSA, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
c. The fact that one party fails to exercise, partially exercises, or delays exercising a right, remedy or power available to it in this MSA is not a waiver or preclusion of a right to do so in the future. The waiver by a party of time for performance, or extension of the time to do so, shall not constitute a waiver of the act or condition itself.
d. This MSA, together with all documents incorporated by reference, states the entire agreement between the parties. Except for pre-existing obligations of confidentiality, non-disclosure and non-competition, with respect to the subject of this MSA, it supersedes all previous proposals, negotiations and other written or oral communications between the parties.
e. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation, acts of God, telecommunications interruptions, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by the Force Majeure shall notify the other party as soon as possible, but in no event less than ten (10) days from the beginning of the Force Majeure event.
- Services to Customers. Our fully managed hosting Services are included in our packages listed on our website. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
a. Managed Services refers to the operation and maintenance of the infrastructure used to provide the Services as set out in the Order Form.
b. We agree to monitor the network, physical infrastructure, servers and applications on a 24x7x365 basis. You acknowledge and agree that (i) the performance of the Managed Services is subject to industry best practices, the technical limitations of the devices being managed and the equipment and infrastructure of the Customer; and (ii) certain Managed Services may expose vulnerabilities and could result in the disruption of Services in some circumstances.
c. Your acceptance of this MSA authorizes us to log in and access your server as necessary for installing and configuring the Managed Services, for general server maintenance, and for other purposes reasonably required by us to provide the Managed Services to you.
d. Any type of administrative access to the servers used to provide Services are not given to customers under any circumstance, access to SSH, Console, Terminal, are not allowed
e. We only provide hosting for websites and not e-mails, therefore, we don’t have an e-mail server available for Customers to use
f. We will monitor, install and update any third-party software that we support and have installed on the servers as part of running the Services provided.
g. When a new version of WordPress Core files becomes available we will perform the necessary tests and push the updates to all Customers.
h. Customer is responsible for reviewing their own source codes, making sure it’s secure, as well as updating their own website(s) and plugin(s) as soon as an update becomes known.
i. We will select all your initial firewall settings for Services. By default we have port 80 opened. You may request changes to your initial firewall settings by submitting a ticket. If approved, your initial firewall settings will be changed within one (1) business day after our receipt of your ticket.
By using iForce Networks, LLC. you agree to the above terms of service.