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NETRACKservers Managed Hosting Master Services Agreement

This Master Services Agreement is between DS Managed Solutions inc., a Ontario, Canadian Incorporation d.b.a. NETRACKservers Managed Hosting ("NETRACKservers") and the person (individual or legal person) whose name appears above the signature line of this Master Services Agreement or who signs any document that incorporates the Agreement by reference ("Customer") and is effective on the Effective Date.
1. Defined Terms.

Capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of the Agreement:

"Agreement" means the Service Order Form(s), this Master Services Agreement, the Service Level Agreement, any addendum to this Master Services Agreement agreed by the parties, and the TOU, collectively. Any conflict between the documents shall be resolved by reading the documents in the foregoing order of precedence.

"TOU" means NETRACKservers's Terms Of Use Policy, posted on the Effective Date, as it may be amended from time to time in accordance with Section 6 (TOU) below.

"Business Day" means Monday through Friday, 8:00 a.m. to 5:00 p.m., Eastern U.S./Canada time, excluding any federal public holiday.

"Effective Date" means the day that Customer accepts the Agreement, either by signing a NETRACKservers Service Order Form or this Master Services Agreement, or by using the Service.

"Managed Hosting Service" means the provision of the servers and other devices and services described in the Service Order Form(s) and Service Level Agreement, and Support.

"Protected Information" means any (i) "non-public personal information", (ii) "protected health information", (iii) all information that identifies an individual, such as name, social security number or other government issued identification number, date of birth, mother's maiden name, unique biometric data, unique electronic identification number, address, or telecommunication number, and (iv) all other information that is the subject of special legal or regulatory security requirements, both in effect as of the Effective Date and as subsequently enacted.

"Service Commencement Date" means the date NETRACKservers generates an e-mail message to Customer that provides access codes and passwords for use in connection with the Managed Hosting Service.

"Service Level Agreement" means the Service Level Agreement incorporated by reference in the Service Order Form, as it may be amended from time to time by written agreement of the parties. If there is more than one Service Order Form for a configuration, then the Service Level Agreement incorporated by reference in the most recently executed Service Order Form shall govern the entire configuration.

"Service Order Form" means a NETRACKservers Service Order Form that incorporates this Master Services Agreement by reference and that has been accepted by Customer, as it may be amended from time to time in accordance with the Agreement.

"Service" or "Services" means the Managed Hosting Service and any Supplemental Service(s) (as defined in Section 2) provided by NETRACKservers to Customer pursuant to the Agreement.

"Supplemental Services" means the services described in Section 2(b).

"Support" means: (i) management of the Services by a service delivery team that includes a team leader, account manager, and support specialists with training and experience in hosting systems, (ii) availability of live support twenty four hours per day, seven days per week, year round; and (iii) use of the NETRACKservers Customer portal.

"Term" means the Initial Term and any Renewal Term or Extended Term, collectively.

2. Services.

(a) Managed Hosting Services. Contingent upon Customer's satisfaction of NETRACKservers's credit approval requirements and on NETRACKservers's verification of the information provided by Customer for the purpose of establishing the Service, NETRACKservers agrees to provide the Managed Hosting Service in accordance with the terms of each Service Order Form entered into pursuant to the Agreement and the other terms of the Agreement.

(b) Supplemental Services. In addition, NETRACKservers may from time to time perform certain additional services on an hourly or fixed fee basis, such as customization of the Managed Hosting Service at Customer's request, and other professional technical services. Supplemental Services will be performed only on Customer's advance written approval and will be invoiced at NETRACKservers's published rates or other rates approved in advance in writing by Customer. NETRACKservers may also perform services as described in the TOU for the fees stated in the TOU as necessary to remediate problems caused by TOU violations without obtaining advance Customer consent.

3. Term.

This Master Services Agreement shall remain in effect for so long as any Service Order Form incorporating this Master Services Agreement is in effect. The term of each Service Order Form begins on the Service Commencement Date for that Service Order Form and continues for the period stated in that Service Order Form (the "Initial Term"). NETRACKservers and Customer may agree to one or more additional terms having a fixed number of months to follow the expiration of the Initial Term (each a "Renewal Term"). If upon expiration of the Initial Term no Renewal Term has been established by agreement of the parties, the Service Order Form shall automatically renew for successive extended terms of thirty (30) days each (each an "Extended Term") until NETRACKservers or Customer provides the other with thirty (30) days advance written notice of non-renewal.

4. Payments.

(a) Fees. Customer agrees to pay the fees stated in the Service Order Form and fees for any Supplemental Services as described in Section 2(b) above. NETRACKservers's first invoice under a Service Order Form shall include set up fees and a prorated part of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. NETRACKservers may require payment in full of its first invoice before beginning the Service. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance on or around the first day of each calendar month, and are due on receipt. Invoices for Supplemental Services, excess data transfer, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due on receipt. Following expiration of the Initial Term, unless NETRACKservers and Customer have agreed to a Renewal Term as described in Section 3 above, NETRACKservers may modify the monthly recurring fees for the Managed Hosting Service on thirty (30) days advance written notice. Fees not disputed within one hundred eighty (180) days of due date are conclusively deemed accurate. Payments must be made in United States dollars.

(b) Collections. NETRACKservers may suspend any or all Services on four (4) Business Days' advance notice to Customer if payment for any Service is overdue. Customer agrees to pay NETRACKservers's then current reinstatement fee following a suspension of Service for non-payment. NETRACKservers may charge interest on amounts that are overdue by ten (10) days or more at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Customer agrees to pay NETRACKservers's reasonable costs of collection of overdue amounts, including collection agency fees, attorneys' fees and court costs.

(c) Early Termination. Customer acknowledges that the amount of the monthly recurring fee for the Managed Hosting Service is based on Customer's agreement to pay the monthly recurring fees for the entire Term. Without limiting any other remedy available to NETRACKservers arising from an early termination of the Agreement, in the event NETRACKservers terminates the Agreement for Customer's breach of the Agreement in accordance with Section 13(b) (i) - (iii) (Termination), or Customer terminates the Managed Hosting Service other than in accordance with Section 13(a) (i) - (iii) (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining part of the Term, are due thirty (30) days following termination of the Managed Hosting Service.

(d) Taxes. Customer shall remit to NETRACKservers all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on NETRACKservers) regardless of whether NETRACKservers fails to collect the tax at the time the related Services are provided. Customer will provide such information and documentation reasonably requested by NETRACKservers to determine whether NETRACKservers is obligated to collect sales tax including but not limited to municipal, provincial, federal and VAT from Customer.

5. Customer Obligations.

Customer agrees to do all of the following at its expense:

(a) Security Precautions. Use reasonable security precautions in connection with its use of the Services (including encrypting any Protected Information transmitted to or from, or stored by Customer on, the servers or storage devices used by Customer) and, if Customer resells NETRACKservers's Services, require its customers and end users to use reasonable security precautions;

(b) Law, TOU. Comply with all legal requirements applicable to Customer's use of the Services and with the TOU, and if Customer resells NETRACKservers's Service, require its customers and end users to comply with applicable legal requirements and the TOU; and

(c) Investigation of TOU. Cooperate with NETRACKservers's reasonable investigation of any suspected violation of the TOU.

6. TOU.

Customer agrees that NETRACKservers may, in its reasonable commercial judgment, amend the TOU from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the TOU are effective on the earlier of NETRACKservers's notice to Customer that an amendment has been made, or the beginning of any Renewal Term or Extended Term. However, if: (i) the amendment would materially and adversely affect Customer, (ii) Customer provides NETRACKservers with a written notice describing its objection to the amendment in reasonable detail within five (5) Business Days of the effective date of the amendment, and (iii) NETRACKservers does not agree to waive the amendment as to Customer within five (5) Business Days of Customer's notice, then Customer may terminate the Agreement without liability as provided in Section 13 (a)(iii) (Termination).

7. Suspension of Service.

Customer agrees that NETRACKservers may suspend Services to Customer without liability if: (i) NETRACKservers reasonably believes that the Services are being used in violation of the Agreement or applicable law; (ii) Customer fails to cooperate with any reasonable NETRACKservers investigation of any suspected violation of the TOU; (iii) there is a denial of service attack on Customer's servers or other event for which NETRACKservers reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or (iv) requested by a law enforcement or government agency. Information on NETRACKservers's servers will be unavailable during a suspension of Services. NETRACKservers shall give Customer written notice of a suspension under this Section, which notice shall be at least twenty four (24) hours in advance of the suspension unless a law enforcement or government agency directs otherwise or suspension on shorter or contemporaneous notice is necessary to protect NETRACKservers or NETRACKservers's other customers from an imminent and significant risk.

8. Representations and Warranties.

(a) Reciprocal. NETRACKservers represents and warrants to Customer, and Customer represents and warrants to NETRACKservers, that: (i) it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of the Agreement; and, (iii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents. If Customer is an individual, Customer represents and warrants that he or she is at least eighteen (18) years of age and has the legal capacity to enter into the Agreement.

(b) Customer. Customer represents and warrants to NETRACKservers that: (i) the information Customer has provided for the purpose of establishing an account with NETRACKservers is accurate; (ii) Customer will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, (iii) Customer shall perform its security and other obligations stated in Section 5 above.

9. Unauthorized Use of Service.

NETRACKservers agrees only to perform the specific security services described in the Service Order Form and other part of the Agreement. Customer is otherwise responsible for the security of the servers provided pursuant to this Agreement. Customer shall be responsible for unauthorized use of the Services by any person, unless such unauthorized use results from NETRACKservers's failure to perform its obligations under the Agreement.

10. Indemnification.

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.

(a) Customer. Customer agrees to indemnify and hold harmless NETRACKservers, NETRACKservers's affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, requests for injunctive relief, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) actual or alleged use of the Services in violation of: (A) the TOU, (B) any other part of the Agreement, or (C) applicable law, by any person regardless of whether such person has been authorized to use the Services by Customer, except for unauthorized use that results from NETRACKservers's negligence or failure to perform its obligations under the Agreement, (ii) actual or alleged breach by Customer of its obligations to its customers or end users; and (iii) any dispute between persons who claim to have authority to act for Customer in connection with the control of Customer's account with NETRACKservers.

(b) Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party's affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, requests for injunctive relief, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party's actual or alleged: (i) gross negligence, (ii) willful misconduct; and (iii) infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.

(c) Procedures. 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 qualified to defend the indemnified matter in the reasonable judgment of the indemnified party. The indemnifying party shall reimburse the indemnified party for actual fees and expenses incurred by the indemnified party to defend an indemnified matter, including the reasonable fees and expenses of outside counsel retained by the indemnified 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. Notwithstanding anything in this Section to the contrary, if NETRACKservers is indemnifying multiple customers 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.

11. Disclaimers.

a) NETRACKservers DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER'S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.

(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NETRACKservers DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, EXCEPT AS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT OR OTHER PART OF THE AGREEMENT.

(c) NETRACKservers WILL NOT BACK UP CUSTOMER'S DATA STORED ON ANY DEVICE UNLESS BACK UP SERVICES ARE PURCHASED.

12. Limitation of Damages.

The parties agree that the allocations of risk made in this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.

(a) THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT AND SERVICE ORDER FORM ARE CUSTOMER'S SOLE REMEDIES FOR NETRACKservers'S FAILURE TO MEET THE GUARANTIES STATED IN THOSE DOCUMENTS, UNLESS SUCH FAILURE IS DUE TO NETRACKservers'S INTENTIONAL BREACH OF THE AGREEMENT OR WILLFUL MISCONDUCT. THIS PROVISION DOES NOT LIMIT CUSTOMER'S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 13 (TERMINATION) BELOW IF SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THE AGREEMENT.

(b) EXCEPT FOR THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, NETRACKservers SHALL NOT BE LIABLE TO THE CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER'S USE OF THE SERVICES (AS SUCH TERM IS DEFINED IN SECTION 1 ABOVE) OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY NETRACKservers'S INTENTIONAL BREACH OF THE AGREEMENT, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

(c) CUSTOMER HEREBY RELEASES NETRACKservers FROM ANY LIABILITY FOR LOSS OF DATA TO THE EXTENT THAT THE DATA HAS CHANGED SINCE THE TIME THAT NETRACKservers WAS LAST REQUIRED BY THE AGREEMENT TO PERFORM A BACK UP.

(d) NEITHER PARTY (NOR ITS EMPLOYEES, AGENTS, SUPPLIERS OR AFFILIATES) SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.

(e) NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, EXCEPT FOR CLAIMS BASED ON NETRACKservers'S WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF NETRACKservers AND ANY OF ITS EMPLOYEES, AGENTS SUPPLIERS, OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED THREE TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE ORDER FORM(S) IN EFFECT AT THE TIME OF THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.

(f) NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION FOR WHICH A CLAIM ACCRUED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.

13. Termination.

(a) Customer. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or Renewal Term without liability (except for amounts due for Services through the effective date of termination) as follows: (i) NETRACKservers fails in a material way to provide the Managed Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail; (ii) NETRACKservers materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer's written notice describing the violation in reasonable detail; or (iii) upon thirty (30) days advance written notice in the event of an amendment to the TOU that materially and adversely affects Customer and that is not waived by NETRACKservers as provided in Section 6 (TOU).

(b) NETRACKservers. The Agreement may be terminated by NETRACKservers prior to the expiration of the Initial Term or Renewal Term, without liability as follows: (i) upon four (4) Business Days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the TOU, and fails to cure the violation within thirty (30) days of a written notice from NETRACKservers describing the violation in reasonable detail; (iii) upon one (1) Business Days notice if Customer's Service is used in violation of a material term of the TOU more than once; or (iv) upon reasonable notice of at least ninety (90) days if NETRACKservers is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.

14. Confidentiality.

(a) Confidential Information. "Confidential Information" means all information disclosed by one party to the other, whether before or after the execution of the Agreement, that the recipient should reasonably understand to be confidential including: (i) for NETRACKservers, NETRACKservers's unpublished prices and other terms of service, audit and security reports, server configuration designs, data center designs (including non-graphic information observed by Customer on a tour of a data center), and other proprietary technology, (ii) for Customer, content transmitted to or from, or stored by Customer on, NETRACKservers's servers, and (iii) with respect to both parties, other information that is conspicuously marked as "confidential" or if disclosed in non-tangible form, is verbally designated as "confidential" at the time of disclosure and confirmed as confidential in a written notice given within thirty (30) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party's written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement.

(b) Use and Disclosure. Each party agrees not to use the other party's Confidential Information except in connection with the performance or use of the Services, or the exercise of its rights under this Agreement, or to disclose the other's confidential information to any third party except as provided in subsection (d) below and to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement.

(c) NETRACKservers's Use of Customer's Name. Customer agrees that NETRACKservers may publicly disclose that NETRACKservers is providing services to Customer and may include Customer's name in promotional materials, including, press releases and on NETRACKservers's Web site. Neither party may publicly use the other party's logo or other trade or service mark without that party's permission.

(d) Disclosure of Confidential Information. Notwithstanding anything to the contrary above, Customer agrees that NETRACKservers may, without notice, (i) report to the appropriate authorities any conduct by Customer (or Customer's customers or end users) that NETRACKservers reasonably believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Customer or its customers or end users that it is required by law or regulation to disclose, or in response to a formal or informal request from a law enforcement or government agency. NETRACKservers 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.

15. Software.

Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by NETRACKservers. Customer may not reverse engineer, decompile, or disassemble any NETRACKservers provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation and then following at least ten (10) days advance written notice, or is permitted by the terms of any "open source" license that governs the use of the software. If the Service Order Form indicates that NETRACKservers uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software that appear athttp://www.NETRACKservers.com/information/legal/microsoftlicense.php, and agrees that if it resells the Services it will require each of its customers to agree to those terms.

16. Third Party Products.

As a convenience to Customer, NETRACKservers may from time to time, either as part of its Integrated Solution Partner Program or otherwise, arrange for Customer's purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. NETRACKservers MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN NETRACKservers AND CUSTOMER SUCH SERVICES ARE PROVIDED "AS IS." Customer's use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party.

17. Notices.

Notices to NETRACKservers under the Agreement shall be given in writing via electronic mail or established and well-known express courier to

legalnotice@netrackservers.com
General Counsel
DS Managed Solutions Inc.
d.b.a. NETRACKservers?805 Middlefield Road, Suite 208
Toronto, Ontario M1V 4Z6

Notices to Customer shall be given via electronic mail to the individual designated as the Contact on the Service Order Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices of amendments to the TOU may be given by posting a notice of the amendment on the Customer's NETRACKservers Support portal. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered. Notices must be given in the English language.

18. Miscellaneous.

(a) Solicitation of NETRACKservers Employees. Customer agrees that it shall not solicit any NETRACKservers employee with whom Customer has had direct contact in connection with this Agreement for employment with Customer or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, Customer shall not be precluded from (i) hiring an employee of NETRACKservers who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. In the event of a violation of this provision, in addition to any other right NETRACKservers may have at law or in equity, Customer shall make a one-time payment to NETRACKservers in the amount of fifty percent (50%) of the employee's base salary for one year.

(b) Ownership. 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 NETRACKservers 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 NETRACKservers's server(s) or other hardware, and has no right of physical access to the hardware. 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 Service (but not any URL or top level domain or domain name) and agrees that NETRACKservers may take steps to change or remove any such IP addresses.

(c) Governing Law, Jurisdiction, Venue, Restrictions. The Agreement shall be governed by the laws of the Province of Ontario, exclusive of its choice of law principles, and the laws of Canada, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE PROVINCIAL OR FEDERAL COURTS IN City of Toronto, Ontario, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. Customer agrees that it shall not bring or participate in any class action lawsuit against NETRACKservers, its affiliates or any of their respective officers, directors, agents or employees.

(d) Modifications. Except for the following, the Agreement may be amended only by a formal written agreement signed by both parties: (i) amendments of the TOU as described in Section 6, above, and (ii) changes to the "Server Specifications," "Software and Services," and fees sections of an existing Service Order Form may be made by an exchange of correspondence (including electronic mail) that includes both parties' express consent to the change. The terms on either party's purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.

(e) Non-Waiver. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.??(f) Construction. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The use of the word "including" in the Agreement shall be read to mean "including without limitation."

(g) Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original. Facsimile signatures or signatures on an electronic image, such as .pdf or .jpg format, shall be deemed to be original signatures.

(h) Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations and any provision that is made the basis of a claim for indemnification, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.

(i) 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 significant failure of a part 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.

(j) No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may authorize its subsidiaries and affiliates to use the Services, provided that no such person shall be a third party beneficiary of the Agreement or otherwise be in privity of contract with NETRACKservers, and Customer shall be responsible for use of the Services by its affiliates and subsidiaries to the same extent as if Customer had been using the Service itself.

(k) Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining part 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.

(l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive. NETRACKservers may provide service to any person, including a competitor of Customer.

(m) Assignment. Customer may not transfer the Agreement without NETRACKservers's prior written consent. NETRACKservers's approval for assignment is contingent on the assignee meeting NETRACKservers's credit approval criteria. NETRACKservers may assign the Agreement in whole or in part.

(n) Notice of Changes to Documents. Customer represents that it has not made any change to the final signed Service Order Form or other documents constituting the Agreement that have not been brought to the attention of NETRACKservers via a redlined document, e-mail correspondence or other means reasonably calculated to put NETRACKservers on notice of the change.

(o) Language. Les parties aux pr?sent?s conferment leur volont? que cette convention de m?me que tous les documents y compris tout avis qui shy rattach?, soient redig?s en langue anglaise. (Translation: "The parties confirm that this agreement and all related documentation is and will be in the English language.")

(p) Agreement. The Service Order Form(s), Service Level Agreement, NETRACKservers's TOU, and any NETRACKservers Addendum to this Master Services Agreement accepted by Customer are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.

June 1st, 2007 revision
NETRACKservers Proprietary