This legally binding Master Services Agreement (the “MSA” or “Agreement”) is by and between Ti Dimensie AG, a Liechtenstein based limited liability company providing services on a “As-Is Basis” under the name “TD Web Services” hereinafter and elsewhere known as (“TD Web Services”), and the Customer purchasing the agreed upon services (“Services”) hereinafter known as (“Customer”) and is effective as of the date Customer purchases Services from TD Web Services.
By purchasing the Services, Customer acknowledges and agrees that Customer has read, understands, acknowledges and agrees to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that TD Web Services may establish and post on its website from time to time without obtaining any prior consent from the Customer.
TD Web Services and Customer enter this Master Services Agreement (“MSA” or “Agreement”) as of the Effective Date. The Parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:
1.1. “Account Information” means any billing information, contact information, payment information and such other information provided to TD Web Services by Customer.
1.2. “Attachment” means (i) any document, including but not limited to an initial invoice for services, a service order, executed quotation for Services, an online or TDWS Portal order for services, or statement of work, that refers or relates to this Master Services Agreement, (ii) any written order for the Services or additional Services accepted by TD Web Services through its website (including the TDWS Portal), and (iii) any document hyperlinked from within this Agreement. The term “Attachment” includes but is not limited to statements of work, exhibits, addenda, schedules and amendments.
1.3. “Customer” means that entity so identified at the beginning of this Master Services Agreement or in an applicable Attachment.
1.4. “Customer Data” means all data, software and information, including, without limitation, data, text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Party Affiliates.
1.5. “Customer End User” means a Third Party which is an end user of a Customer Offering.
1.6. “Customer Offering” means any services provided by Customer to Third Parties, that in any manner use or rely upon the Services.
1.7. “Due Date” means the recurring date on which Fees are due as set forth in the applicable Attachment.
1.8. “Effective Date” means the date TD Web Services accepts this Agreement.
1.9. “Fees” means those amounts due to TD Web Services in exchange for the performance of the Services, as provided in an applicable Attachment.
1.10. “Flow-Through Provisions” means the terms of agreements for services provided by Third Parties which are included in the Services as required by providers of Third Party services.
1.11. “Parties” means TD Web Services and Customer, each individually a “Party.”
1.12. “Party Affiliate” means any person, corporation, or other entity that now or in the future, directly or indirectly, controls, is controlled with or by or is under common control with a Party. For purposes of the foregoing, “control” will mean, with respect to: (a) a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors thereof or, for purposes of foreign corporations, if less than fifty percent (50%), the amount allowed by applicable law; and (b) any other entity, the power to direct the management of such entity.
1.13. “Service Level Agreement” or “SLA” means that service level agreement pertaining to the Services described in Section 8 of this Agreement.
1.14. “Services” means those services TD Web Services will provide to Customer as set forth in any applicable Attachment or added by the customer in the future via any method, and includes Utility Billed Services.
1.15. “TD Web Services” means a wholly owned Business Unit of Ti Dimensie AG, a Liechtenstein based limited liability company providing services on a “As-Is Basis” under the name “TD Websevices”.
1.16. “TD Web Services Parties” means TD Web Services and its subsidiaries, parents, Party Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns, and providers of Third Party services, and those parties’ respective subsidiaries, parents, Party Affiliates, shareholders, directors, officers, employees, agents, licensors, contractors, successors and assigns.
1.17. “TDWS Portal” means that online interface TD Web Services provides to Customer for communication and management activities.
1.18. “Site” means a specific TD Web Services datacenter location.
1.19. “SLA Credits” mean the credits for applicable qualifying events as described in the Service Level Agreement.
1.20. “Third Party” means any person or entity other than the Parties and their Party Affiliates.
1.21. “Utility Billed Services” means those Services provided under this Agreement that are billed on the basis of actual usage of the Services by Customer, the cost for which will be calculated by multiplying a fixed unit by a rate set forth in an applicable Attachment.
1.22. “Payment Method” means the instrument acceptable to TD Web Services for payment of Fees to TD Web Services.
1.23. “Website” means https://tdwebservices.com (or such other location as TD Web Services may designate from time to time without obtaining any prior consent from the Customer).
4.1. Customer will pay TD Web Services the Fees for the Services as set forth in any and all applicable Attachments. Unless provided otherwise in an applicable Attachment, all Fees are due monthly in advance of Customer’s receipt of the Services. Customer will pay the Fees to TD Web Services in the amounts set forth in the applicable Attachments, no later than the Due Date, in U.S. Dollars. All provided Services will be listed in a detailed line item invoice provided to Customer. Customer acknowledges and agrees that any service not listed on an applicable invoice will not be considered deployed or otherwise provided by TD Web Services, and TD Web Services will have no responsibility to provide any Services not so listed, nor any liability whatsoever for failure to provide such Services. If any portion of the Fees remains overdue for at least 5 days (including the Due Date), then TD Web Services may suspend the Services pursuant to section 6.1(v) of this Agreement. If any portion of the Fees remains overdue for 10 days or greater (including the Due Date), then TD Web Services will have the right to terminate this Agreement and any applicable Attachment pursuant to Section5.1 of this Agreement. In the event of termination or suspension for nonpayment of Fees, Customer will remain liable for all Fees that would have been paid had the Services not been suspended, or had the Agreement or any applicable Attachment not been terminated. Any portion of Fees remaining unpaid 30 days or more beyond the Due Date will be subject to interest of 2% per month or the maximum permitted by law, whichever is less.
4.2. Utility Billed Services as set forth in an applicable Attachment will be billed on the basis of consumption and in intervals set forth in an applicable Attachment. Each unit of a Utility Billed Service consumed by Customer will be rounded up to the next whole unit. A base rate and overage rate for the Services may be established by TD Web Services and communicated to Customer in an applicable Attachment. Customer will be solely responsible for the tracking and controlling of its usage of the Utility Billed Services, and TD Web Services will have no responsibility to notify Customer pertaining to any usage. Customer may view usage and manage the Services inside of the TDWS Portal and it will be Customer’s sole responsibility to do so. Customer will remain responsible for payment for all resources consumed. Professional services will be provided on an hourly basis at TD Web Services’s then current rates or otherwise as agreed by the Parties. All Services unless otherwise noted are billed on a monthly basis.
4.3. Customer will pay all Fees using a Payment Method that is maintained on file with TD Web Services, such as, but not limited to credit card, ACH electronic funds transfer, or such other method as approved by TD Web Services from time to time. Customer hereby authorizes TD Web Services to automatically charge Customer’s Payment Method on file with TD Web Services on or before the applicable Due Date. Customer will provide and maintain valid and accurate billing information and contact information. Customer will be responsible for all fees, including processing fees, associated with making payment via wire transfer to TD Web Services. Customer agrees to first contact TD Web Services to attempt to resolve any billing disputes before contacting Customer’s bank or credit card company to dispute any charge under this MSA. Customer must provide written notification to TD Web Services within 30 days after the date of any disputed charge. If no objection is made within such period of time, such charge will be deemed accepted and undisputed by Customer. Any dispute as to any charge not made within 30 days of date of the charge is hereby expressly waived. If customer violates this provision by not first attempting to resolve the payment issue with TD Web Services before issuing a chargeback or doing so outside of the permitted period of time, then Customer will reimburse TD Web Services for its administrative expenses incurred in connection with such chargeback not to exceed $350.00. Additionally, Customer will pay to TD Web Services any fees and costs (including, but not limited to, reasonable actual attorney’s fees, court costs and collection agency fees) incurred by TD Web Services connection with the collection of any past due Fees.
4.4. Customer will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees (except for taxes based upon TD Web Services’s net income) related to the Services imposed by any governmental authority. All Fees are exclusive of any such taxes, duties, levies, or fees.
4.5. Credits under the Service Level Agreement, if issued to Customer’s account, will be used only to offset future Fees for certain Services as provided in the Service Level Agreement. Such credits may not be sold, converted to cash, or transferred to any Third Party or Party Affiliate, and will expire on the termination or expiration of this Agreement.
4.6. In the event that TD Web Services suspends or terminates any portion of the Services pursuant to Section 5, TD Web Services may, in its sole discretion and as a condition for restoring the Services, require that Customer pay to TD Web Services, in advance, a nonrefundable reconnection fee of up to 50% of the Fees charged to customer during the month immediately preceding suspension or termination. The payment of such reconnection fee will be in addition to any Fees remaining due and owing to TD Web Services.
4.7. All Fees are nonrefundable. Customer’s sole remedy for TD Web Services’s nonperformance of any Services will be a credit issued pursuant to any applicable Service Level Agreement.
4.8. Customer is responsible for any fees and costs (including, but not limited to, reasonable actual attorney’s fees, court costs and collection agency fees) incurred by TD Web Services in enforcing collection of Fees.
4.9. TD Web Services may adjust the Fees in proportion with any increase in or changes to Third Party costs that are related to providing the Services. Additionally, TD Web Services may adjust its software offering and associated fees in accordance with Third Party vendor program releases, policies or requirements, including, but not limited to, Microsoft’s Service Provider Licensing Agreement (SPLA). Such adjustment may include retroactive Fees for any software provided. Upon written request, TD Web Services will provide Customer with reasonable documentation evidencing the increase in Third Party costs that may be disclosed by TD Web Services, or if TD Web Services is prohibited from disclosing such information, a summary.
4.10. In the event TD Web Services receives a subpoena, court order or other valid legal process seeking information concerning Customer, Customer agrees to pay TD Web Services’s reasonable costs incurred in connection with providing a response.
5.1. The term of this Agreement will begin on the Effective Date and, unless terminated earlier as provided in this Agreement or an applicable Attachment, will (i) continue until the last termination or expiration of any Attachment, or (ii) if no Attachment provides a term, continue on a month-to-month basis, such month-to‐month arrangement being terminable by either Party upon at least 3 days written notice. Either Party may terminate this Agreement or any Attachment for material breach, provided that the non-breaching Party has given the other Party at least 30 days written notice of and the opportunity to cure the breach, and such breach has not been cured within 30 days of the notice. In addition to the right to terminate for material breach as provided in this Section 5.1, and notwithstanding Service suspension under section 6.1(v), and notwithstanding any other provision of this Agreement, TD Web Services may terminate this Agreement, or any applicable Attachment, such termination to be effective on written notice to Customer, for nonpayment of Fees if any portion of the Fees becomes overdue and remains unpaid for 10 days past the Due Date (including the Due Date). In the event that TD Web Services terminates this Agreement or any applicable Attachment pursuant to this Section 5.1, Customer will remain liable for all Fees that would have been paid in the remainder of the term of this Agreement.
5.2. Upon expiration or termination of this Agreement, Customer must immediately discontinue use of the Services. Which includes but not limited to, the immediate relinquish use of the IP addresses and server names assigned to Customer by TD Web Services and any other materials provided to Customer by TD Web Services in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. TD Web Services will have no obligation to provide any transition services or access to data except as expressly provided in this Agreement or as otherwise agreed in writing by the Parties.
5.3. Subject to any Third Party Agreements pertaining to Customer Data, and provided that Customer has paid all amounts due and owing, is in good standing and otherwise not in violation of this MSA, TD Web Services will, at Customer’s sole cost and upon Customer’s written request delivered to TD Web Services before the effective date of termination of this Agreement or the applicable Attachment to which Customer Data pertains, permit Customer to obtain a copy of Customer Data residing on TD Web Services’s servers. Except as provided in this Section 5.3, the deletion of Customer Data is automatic upon termination or expiration of this Agreement or the applicable Attachment to which Customer Data pertains. Consequently, unless TD Web Services determines otherwise, Customer will not have access to Customer Data, and TD Web Services may immediately erase or delete all Customer Data from its computer infrastructure, after the effective date of termination or expiration of this Agreement or the applicable Attachment to which Customer Data pertains. Under no circumstances will TD Web Services have any obligation to deliver to Customer any Customer Data.
5.4. Upon termination of this MSA or any of its Attachments, all licenses granted under this MSA or such Attachment will likewise terminate.
5.5. Certain circumstances will give rise to TD Web Services’s right to terminate the Agreement and be entitled to certain remedies as set forth in TD Web Services’s Acceptable Use Policy, which is incorporated by reference into this Agreement.
6.1. TD Web Services may suspend provision of Services to Customer without any liability whatsoever if: (i) TD Web Services reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of this Agreement or any applicable law, court order, rule or regulation in any jurisdiction;
(ii) Customer does not cooperate with TD Web Services’s investigation of any suspected violation of the Agreement or any applicable law, court order, rule or regulation in any jurisdiction;
(iii) TD Web Services reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer’s consent or in violation of the Agreement;
(iv) TD Web Services reasonably believes that suspension of the Services is necessary to protect TD Web Services’s network or other TD Web Services customers;
(v) a payment for the Services is overdue by more than 5 days including the Due Date;
(vi) the continued use of the Services by Customer may adversely impact the Services or the systems or content of any other TD Web Services customer,
(vii) TD Web Services reasonably believes that the use of the Services by Customer may subject TD Web Services, its Party Affiliates, or any Third Party to liability; or
(viii) suspension is required by law, statute, regulation, rule or court order;
(ix) Customer is in breach of the terms of this Agreement. TD Web Services will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless TD Web Services determines, in TD Web Services’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect TD Web Services or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of any Flow-Through Provision will be treated the same as a violation of this Agreement for purposes of this provision.
6.2. If TD Web Services suspends Customer’s right to access or use any portion or all of the Service: (i) Customer remains responsible for all Fees Customer has incurred through the date of suspension;
(ii) Customer remains responsible for any applicable Fees for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-‐process tasks completed after the date of suspension;
(iii) Customer will not be entitled to any credits under the Service Level Agreement for any period of suspension;
(iv) At TD Web Services’s sole discretion, TD Web Services may terminate Customer’s access to Customer Data stored in the Services during a suspension, and
(v) TD Web Services will not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
8.1. Delegate access to Customer employees via the TDWS Portal.
8.2. Assign and maintain a secure PIN to control access to sensitive information, such as, but not limited to, Customer passwords.
8.3. Maintain and change passwords frequently, and promptly upon providing access to TD Web Services or any Third Party to perform maintenance activities on Customer’s behalf.
8.4. Provide to TD Web Services a primary notification point of contact to serve as Customer’s authorized representative to make technical and financial decisions.
8.5. Trouble Tickets that have been abandoned by Customer (have not been updated by Customer for 48 hours or longer) may be closed automatically by TD Web Services’s system.
8.6. Customers have the right to notify TD Web Services of any potential or suspected security issues or data breaches.
8.7. Customers is responsible to contract for backups and can request failed backup notifications via the ticketing system. Customers should maintain a copy of their data and configurations in the event of catastrophic failure of backup media.
8.8. Customers are responsible to create their own Disaster Recovery Plan and to contract specifically for Disaster Recovery services, as required. Customer is responsible for Disaster Declaration and notification to TD Web Services.
8.9. All deployed services are contained in a detailed line item invoice. It is the Customer’s responsibility to create a ticket to decommission, add or remove any service. Any service not listed on the invoice is not deployed.
8.10. TD Web Services’s phone queue may have substantial wait times. Customers are advised to log a ticket and request a call back and are not advised to wait on hold if the phone is not answered in a timely manner.
13.1. Customer agrees to do each of the following: (i) cooperate with TD Web Services’s investigation of outages, security problems, and any suspected breach of this Agreement;
(iii) give TD Web Services true, accurate, current, and complete Account Information;
(iv) keep Customer’s Account Information up to date;
(v) be responsible for the use of the Services by Customer and Customer End Users and any other person to whom Customer has given access to the Customer Offering;
(vi) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and immediately notify TD Web Services of any known or suspected unauthorized use of Customer’s account, the Services or any other breach of security; and
(vii) where the Customer provides a Customer Offering as permitted under this Agreement, enter into an agreements with Customer’s End Users containing relevant terms of this Agreement and releasing TD Web Services from any and all liability for damages or losses Customer’s End Users may incur as a result of using the Customer Offering.
13.2. Customer will not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Customer may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
13.3. Customer will not copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or, except as part of an authorized Customer Offering, allow Third Party access to the Services. Customer will not remove any proprietary notices or labels contained in or placed by the Services and will not use, post, transmit, or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Services. Customer will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services’ systems or networks, or any systems or networks connected to the Services.
13.4. Customer will comply, and will ensure its Customer End Users comply, with TD Web Services’s Acceptable Use Policy available at https://tdwebservices.com/legal/ <<<<LINK to ALL THE LEGAL PAGE, where there are further links to Legal Pages>>> and will not otherwise use the Services for the distribution of any material that TD Web Services considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
13.5. Customer will reasonably comply with any request by TD Web Services to cooperate in connection with any third party audit, including but not limited to software audits.
15.1. Customer will defend, indemnify, and hold harmless the TD Web Services Parties from and against any and all liabilities, losses, damages, claims, costs, causes of action and expenses, including but not limited to the costs of defense and reasonable actual attorney’s fees, suffered, paid or incurred by any of the TD Web Services Parties, whether or not suit is filed, arising out of, resulting from or connected with, in whole or in part: (i) Customer’s use of the Services or Third Party services;
(ii) any infringement or alleged infringement by the Customer Data of any Third Party intellectual property right;
(iii) any breach or alleged breach by Customer of this Agreement, including any warranty contained in this Agreement;
(iv) any violation or alleged violation by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, publication or other proprietary right;
(v) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services;
(vi) any actual or alleged violation or noncompliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction, or
(vii) Customer’s resale of the Services.
15.2. In connection with any claim, action, suit, proceeding, or investigation for which a Party seeks indemnification (being in such case, the “Indemnified Party”) from the other Party (the “Indemnifying Party”) under this Agreement, the Indemnified Party: (i) will give the Indemnifying Party prompt written notice of the claim, action, suit, proceeding, or investigation; provided, however, that failure to provide such notice will not relieve the Indemnifying Party from its liabilities or obligations under this Agreement, except solely to the extent of any material prejudice as a direct result of such failure;
(ii) will cooperate with the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, in connection with the defense and settlement of the claim, action, suit, proceeding, or investigation; and
(iii) will permit the Indemnifying Party to control the defense and settlement of the claim, action, suit, proceeding, or investigation; provided, however, that the Indemnifying Party may not settle the claim, action, suit, proceeding, or investigation without the Indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed, in the event such settlement materially adversely impacts the Indemnified Party’s rights or obligations. Further, the Indemnified Party, at its cost and expense, may participate in the defense of the claim, action, suit, proceeding, or investigation through counsel of its own choosing. Notwithstanding the foregoing, in no event may Customer settle any claim under this Agreement unless such settlement completely and forever releases TD Web Services from any and all liability with respect to such claim and such a settlement is not prejudicial to TD Web Services’s interests or require TD Web Services to take, or cease taking, an action, or unless TD Web Services provides its prior, written consent to such settlement. This section will survive the expiration or termination of this Agreement.
Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of TD Web Services are owned by TD Web Services and/or its licensors. Unless otherwise specifically provided in this Agreement, Customer will have no right, title, claims or interest in or to TD Web Services’s intellectual property. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute TD Web Services intellectual property in any manner without the prior written consent of TD Web Services. TD Web Services may, in appropriate circumstances and at its discretion, disable and/or terminate Customer accounts of the accounts of Customer End Users who may be repeat infringers. Allegations of infringement will be handled pursuant to TD Web Services’s DMCA Notice Policy as amended from time to time.
TOTAL CUMULATIVE LIABILITY TO CUSTOMER WILL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO TD Web Services’ LIABILITY.