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Master Services Agreement

(Last updated March 28, 2012)

The Master Services Agreement is between PEER 1 (“we,” “us” or “our”) and the customer who orders PEER 1 products and services (“you,” “your” or “Customer”).

This Master Services Agreement governs your purchase and use of all Services offered by PEER 1, as may be further described in this Agreement or any Order. This Agreement applies to you and your employees, agents, contractors, or other users who obtain Services from PEER 1 (each such person or entity being a “User”). You must register with PEER 1 and accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.

This Agreement is the complete and exclusive agreement between you and PEER 1 regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.

Your use of PEER 1 Services is governed by this Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, and the terms of your Order. When we use the term “Agreement” in any of the Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, or an Order, we are referring to all of them collectively. If there is any inconsistency or conflict between the provisions of any these documents, then the documents will be given precedence in the following order: (a) the Master Services Agreement, (b) the Acceptable Use Policy, (c) the Services Level Agreement, and (d) the terms of your Order.

GENERAL TERMS


1   Definitions

2   Obligations, Rights and Responsibilities
    2.1    PEER 1 Obligations.
    2.2    Your Obligations.
    2.3    Acceptable Use Policy.
    2.4    Intellectual Property Rights.
    2.5    IP Numbers.
    2.6    Third Party Products.
    2.7    Additional Requirements for Using Microsoft Software.
    2.8    Security.
    2.9    Confidentiality.

3   Term and Payment for Services
    3.1    Term.
    3.2    Termination.
    3.3    Termination Liability.
    3.4    Payment.
    3.5    Refund and Disputes.
    3.6    Data Retention / Server Reclaim Policy.

4    Modification

5    Limitation of Liability and Indemnity
    5.1    Monitoring User Activity.
    5.2    Interruption of Service.
    5.3    Warranty Disclaimer.
    5.4    Limitation of Liability.
    5.5    Customer Indemnity.
    5.6    PEER 1 Indemnity.

6   Governing Law
    6.1    Services Rendered in Canada.
    6.2    Services Rendered in the United States.
    6.3    Services Rendered in the United Kingdom.

7   Miscellaneous Provisions

1   Definitions

 “Acceptable Use Policy” means PEER 1’s Acceptable Use Policy found at http://www.peer1.com/aboutus/legal.php as of the date you sign or submit your Order.

“ACH” means Automated Clearing House.

“Business Day” means 8:00 a.m. – 8:00 p.m. Eastern Standard Time (EST), Monday through Friday, excluding federal public holidays in the United States and Canada for Services provided in North America, and 8:00 a.m. – 5:00 p.m. Greenwich Mean Time (GMT) Monday through Friday for Services provided in the United Kingdom.

“Cancellation Date” is defined based on the Cancellation Request, product line and contract term. Accordingly, for:
“Cancellation Request” means a written based service cancellation request submitted via support ticket. The following sets the Cancellation Request requirements based on the product line and contract term:
  • (i) Managed Hosting Services – Cancellation Request should be submitted to PEER 1 at least 14 days in advance of the requested Cancellation Date;
  • (ii) Dedicated Hosting (ServerBeach) Services – Cancellation Request should be submitted to PEER 1 at least 24 hours in advance of the Cancellation Date; and
  • (iii) Colocation and Network Services – Cancellation Request should be submitted to PEER 1 at least 30 days in advance of the Cancellation Date.
  • (i) Managed Hosting Services – Cancellation Request should be submitted to PEER 1 at least 14 days in advance of the requested Cancellation Date;
  • (ii) Dedicated Hosting (ServerBeach) Services – Cancellation Request should be submitted to PEER 1 at least 14 days in advance of the requested Cancellation Date; or
  • (iii) Colocation and Network Services – Cancellation Request should be submitted to PEER 1 at least 30 days notice in advance to the Cancellation Date.
  • (iv) Cloud Services (Zunicore) – Cancellation requests can be submitted to Zunicore at any time for processing.
“Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation: (a) for you, all information transmitted to or from, or stored on, PEER 1’s systems, (b) for PEER 1, unpublished prices and other terms of service, audit and security reports, product development plans, datacenter designs (including without limitation non-graphic information you may observe on a tour of a datacenter), server configuration designs, and other proprietary information or technology, and (c) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either party on its own, without reference to the other’s Confidential Information, or that becomes available to either party other than through breach of the Agreement or applicable law, will not be considered “Confidential Information” of the other party.

“EFT” means Electronic Fund Transfer.

“Order” means either: (a) the online order that you submit to PEER 1 via the PEER 1 Website, or (b) any other written order (either in electronic or paper form) provided to you by PEER 1 for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.

“PEER 1” is defined conditionally as Peer 1 Network Enterprises, Inc., Peer 1 Network (USA), Inc., and Peer 1 (UK) Ltd. as dependent upon the country in which the Services are initially provided to you as indicated in the Order, the respective countries being Canada, The United States of America, and The United Kingdom.

“PEER 1 Website” means PEER 1’s websites located at http://www.peer1.com and http://www.serverbeach.com and http://www.zunicore.com

“Cloud Resource Pools” means the collection of resources (CPU, RAM, SAN Disk Space, Bandwidth, Autoscale CPU Cores, Autoscale Memory, and Private Net) purchased through Zunicore.

“Services” means those PEER 1 products or services described in the Order.

“Service Level Agreement” means PEER 1’s Service Level Agreement located at http://www.peer1.com/whypeer1/sla.php as of the date you sign or submit the Order.

“Third Party Products” means third party software or products that PEER 1 may provide to you under this Agreement.

“Third Party Vendors” means certain reseller and other relationships that PEER 1 has established with certain commercial vendors.

“Virtual Server” means any virtualized operating system and server purchased through Zunicore.

2   Obligations, Rights and Responsibilities

2.1   PEER 1 Obligations.

 For all Orders accepted by PEER 1 and subject to this Master Service Agreement, PEER 1 agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with PEER 1’s Service Level Agreement.

2.2   Your Obligations.

 You agree to do each of the following:

2.3   Acceptable Use Policy.

 By agreeing to the terms and conditions of this Agreement, you agree to PEER 1’s Acceptable Use Policy, which is expressly incorporated herein by reference.

2.4   Intellectual Property Rights.

 You warrant, represent, and covenant to PEER 1 that:

2.5   IP Numbers.

 PEER 1 will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. PEER 1 may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses.

2.6   Third Party Products.

 For your convenience, PEER 1 may provide you access to Third Party Products through certain Third Party Vendors. Neither PEER 1 nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and PEER 1 will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.

2.7   Additional Requirements for Using Microsoft Software.

 If Microsoft software is provided to you as part of the Services, then additional restrictions may apply, including but not limited to limits on the number of authenticated users of the Microsoft Windows Server Operating Systems under Microsoft Corporation’s licensing terms.

2.8   Security.

 PEER 1 is not responsible for any security breaches affecting servers or accounts under your sole control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify PEER 1 immediately, and PEER 1 will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.

2.9   Confidentiality.

 Any Confidential Information disclosed by one party (.Disclosing Party.) to the other party (.Recipient.) in connection with this Agreement that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of this Agreement and related internal administrative purposes. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, affiliates, or agents (including outside counsel and consultants) on a need to know basis in connection with the services, who are bound by confidentiality obligations no less stringent than these prior to any disclosure. Each party may disclose Confidential Information relating to the Services to providers of goods and services for the engagement to the extent such disclosure is necessary and reasonably anticipated. Confidential Information does not include information which: (i) is already known to Recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of the Recipient; (iii) is independently developed by Recipient without benefit of Disclosing Party’s Confidential Information; or (iv) is received from a third party which is not under and does not thereby breach an obligation of confidentiality. Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, but that disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.

3   Term and Payment for Services

3.1   Term.

 This Agreement will be for the “Initial Term” as further described in the Order. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month-to-month basis. If you do not wish to renew, then you must terminate your purchased Zunicore services by deleting Resource Pools prior to end of the term to avoid further invoices being generated. At PEER 1’s sole discretion, the balance of the services purchased will be applied as a credit to the account, transferred to other PEER 1 services, or retained.

3.2   Termination.

 This Agreement may be terminated in one of the following ways:

3.3   Termination Liability.

 If you terminate this Agreement before the end of the Initial Term other than for PEER 1’s material breach, then you will be required to pay:

3.4   Payment.

3.5   Refund and Disputes.

 Except where expressly provided in this Agreement, all payments to PEER 1 are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to PEER 1 within 60 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.

3.6   Data Retention / Server Reclaim Policy.

 PEER 1 makes no guarantees about retaining any data stored on PEER 1’s systems or servers following expiration or termination of this Agreement. PEER 1 will typically delete such data (a) seven days following termination of any PEER 1 Managed Hosting Services by either you or PEER 1 or (b) on your next billing date following termination of any PEER 1 Dedicated Hosting (ServerBeach) Services by either you or PEER 1 or (c) immediately upon deletion or cancellation of a Zunicore Resource Pool or Virtual Server service by either you or PEER 1. You will not have access to your data stored on PEER 1’s systems or servers during a suspension or following a termination.

4   Modification

 PEER 1 may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the PEER 1 Website. Your continued use of the Services following PEER 1’s posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to PEER 1 within 30 days of the posting of any modifications of this Agreement by PEER 1.

5   Limitation of Liability and Indemnity

5.1   Monitoring User Activity.

 Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. PEER 1 exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through PEER 1’s host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will PEER 1, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.

5.2   Interruption of Service.

 Except as set expressly provided in PEER 1’s Service Level Agreement, PEER 1 will not be liable for any temporary delay, outages, or interruptions of the Services. Further, PEER 1 is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). PEER 1 cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.

5.3   Warranty Disclaimer.

 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY PEER 1 OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER PEER 1, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. PEER 1, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5.4   Limitation of Liability.

 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PEER 1’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, PEER 1’S LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO PEER 1 UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY PEER 1 UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.

5.5   Customer Indemnity.

 You agree to indemnify, defend, and hold harmless PEER 1, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by PEER 1 arising out of any breach of this Agreement by you, your Users, or your customers.

5.6   PEER 1 Indemnity.

 PEER 1 agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Services as provided by PEER 1 infringe any third party’s intellectual property rights.

6   Governing Law

6.1   Services Rendered in Canada.

 With respect to Services rendered by PEER 1 in Canada, this Agreement will be governed by, and construed in accordance with, the laws of Canada and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the Province of British Columbia; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

6.2   Services Rendered in the United States.

 With respect to Services rendered by PEER 1 in the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the state of Washington and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the state of Washington; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

6.3   Services Rendered in the United Kingdom.

 With respect to Services rendered by PEER 1 in the United Kingdom, this Agreement will be governed by, and construed in accordance with, the laws of England and Wales and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in England; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

7    Miscellaneous Provisions

 You and PEER 1 are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and PEER 1. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of PEER 1, and any attempted assignment or delegation without such consent will be void. PEER 1 and you agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.

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