Master Service Agreement ESignature Confirmation

Signet Interactive, LLC

1.  Overview.

This Agreement states the terms and conditions by which SI will deliver and Customer will receive any or all of the services provided by SI, including hosting, bandwidth, managed services, design and development services, professional/support services and content delivery. Each Order Form (with exhibits attached as applicable) submitted, accepted and executed by both parties is hereby incorporated by reference hereto and is a part of this Agreement.  This Agreement is intended to cover any and all Services ordered by Customer and agreed to and provided by SI. Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.

2.  Delivery of Services; Terms; Fees.

2.1  Delivery of Services.

By submitting an Order Form, Customer agrees to take and pay for all (i) Service(s) during the Initial Term and any Renewal Term, as applicable; and (ii) certain limited services and equipment needed by Customer on a “one-off,” “change request,” or on an emergency basis (collectively, “Supplemental Services”), where such services are not included within the scope of the Services as described in the applicable Order Form.  Customer agrees to pay SI all fees as charged by SI for such Supplemental Services, and hereby authorizes SI to perform such services on its behalf on a case by case basis, as requested by Customer.  ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with SI’s current policies and prices.

2.2  Term.

(a)  Term. The initial term of this Agreement will commence on the effective date and for one year thereafter.  Each individual Service Term shall be defined in the applicable Order Form and will commence on the dates listed therein.

(b)  Renewal Term(s). Upon expiration of the Initial Term, the term shall be extended automatically for a period of one year (“Renewal Term”), unless either party gives the other thirty (30) days’ written notice of a termination prior to the expiration of the applicable Term. The termination of any Service will not affect Customer’s obligations to pay for such Service(s) pursuant to the obligations of each Order Form.

(c)  This Agreement may be terminated by either party upon giving thirty (30) days’ prior written notice of termination. Any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been satisfied by payment in full.

3.  Fees and Payment Terms.

3.1  Fees and Expenses.

Customer will pay all fees due according to the pricing and terms listed in the applicable Order Form and any other fees incurred by Customer related to: Supplemental Services; Professional Services; and reinstatement of service fees and/or fees for switching or upgrading servers. All such fees shall be paid in accordance with the current SI pricing and policies pursuant to this Agreement.

3.2  Payment Terms.

On the Service Commencement Date for each Service, Customer will be billed (the “Initial Bill”) in an amount equal to: (i) all non-recurring charges indicated in the Order Form(s) and (ii) the monthly recurring charges for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur on the first day of each calendar month of the Service Term. Monthly recurring charges for all months will be billed (the “Recurring Bill”) in advance of the applicable Services. All other charges for Services received and expenses incurred for Supplemental or Professional Services during a month (e.g., development or change fees) will either be billed immediately, or at the end of the month in which the Services were provided. Payment for all fees is due upon receipt of each SI invoice. All payments will be made in U.S. Dollars. Notwithstanding anything to the contrary in this Agreement, SI expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including but not limited to the date on which such billing will occur, and the types of charges that will be included in such bills.

3.3  Late payments.

Any payment not received within fifteen (15) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a “Payment Default”) will accrue interest at one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer also shall pay to SI all expenses incurred by SI in exercising any of its rights under this Agreement, or applicable law with respect to a Payment Default or other breach by Customer, including but not limited to reasonable attorneys’ fees and any fees generated as a result of collection efforts engaged by SI.

3.4  Taxes.

Customer will be responsible for, and will pay in full, all sales tax and similar fees now in force or enacted in the future that could be imposed on the transaction and/or the delivery of Services.

4.  Ownership of Intellectual Property.

This Agreement does not confer any right, title, or interest in and to any SI Technology.   All rights of ownership will remain exclusively with SI. This Agreement does not confer any right, title, or interest in and to any Customer Technology.  All right, title and interest in and to Customer Technology will remain solely owned by Customer.  SI and Customer agree that neither party will directly or indirectly: reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.  All such Intellectual Property will also be subject to all Confidentiality provisions contained herein.

5.  Limited Warranties.

5.1  Limitation.

Each of the guarantees in the Order Form(s) is null and void if Customer fails to follow SI’s Rules and Regulations (as further described below) and other policies or otherwise breaches the Agreement in any respect.

5.2  No Other Warranty.

SI DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS NETWORK OR VENDOR FACILITIES. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THERE FROM IS AT CUSTOMER’S OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS MAY BE PROVIDED IN THE ORDER FORM(S), SI DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

5.3  Disclaimer of Actions Caused by and/or Under the Control of Third Parties.

SI DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM SI’S WEBSITES OR NETWORK OR VENDORS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). SI CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY SI DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

6.  Customer Obligations.

6.1  Warranties of Customer.

(a)  General. Customer represents and warrants that: (i) Customer is at least eighteen (18) years of age; (ii) Customer possesses the legal right and ability to enter into this Agreement; and (iii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other SI customers’ use of SI services. Customer assumes all risks related to processing of transactions related to electronic commerce.

(b)  Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, SI will have the right, in its sole discretion, to suspend or terminate immediately any Services without penalty.

6.2  Compliance with Law and Rules and Regulations.

Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with the terms of this Agreement, and the Terms of Use currently in effect for SI (the “Rules and Regulations”). Customer will comply at all times with all applicable laws and regulations and the Rules and Regulations, as updated by SI from time to time. The Rules and Regulations are incorporated herein and made a part hereof by this reference. SI may change the Rules and Regulations upon fifteen (15) days’ notice to Customer, which notice may be provided by posting such new Rules and Regulations at the SI Site. Customer may request a current copy of the Rules and Regulations by sending or faxing a request to SI. Customer agrees that it has received, read and understands the current version of the Rules and Regulations.

6.3  Third Party Rights.

Customer shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined in Section 7.4) or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

7.  Limitations of Liability.

7.1  Delays and Interruptions.

SI SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NON-DELIVERIES, MIS-DELIVERIES OR SERVICE INTERRUPTIONS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND SI SHALL HAVE NO LIABILITY THEREFORE. EXCEPT TO THE EXTENT OF SI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER SI NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO SI’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF SI’S OR ITS NETWORK SERVICE SUPPLIER’S NEGLIGENCE.

7.2  Consequential Damages.

EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.

7.3   Liability for Fees.

Notwithstanding anything else to the contrary contained in this Agreement, SI’s maximum aggregate liability to Customer for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Customer to SI for the prior three (3) months.

7.4  Use of Third Party Products and Services.

SI may provide Customer access to other third party software and/or services (“Third Party Products”) through reseller relationships SI has established with certain commercial vendors, including without limitation, Microsoft Corporation (“Third Party Vendors”). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by SI and not by the Third Party Vendor. Neither SI nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER’S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM SI OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SI NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND SI WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.

8.  Indemnification.

Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of: (i) any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributory caused by the other party) and (ii) any violation of or failure to comply with the Rules and Regulations. Customer further agrees to indemnify SI and its affiliates against any Losses which arise out of, or relate to any content provided by Customer or the customers/clients of Customer, and Customer will reimburse SI and its affiliates for all legal expenses, including reasonable attorneys’ fees, incurred by SI and its affiliates in connection with any such Losses.

9.  Confidentiality and Non-Disclosure.

9.1 Confidential Information.  In consideration of disclosure by SI of confidential information to Company, Company agrees that it will maintain in strict confidence all information of a competitively sensitive or proprietary nature that Company receives in connection with the work performed by SI pursuant to this Agreement, including but not limited to data, documents, internet website designs, names and concepts, reports, analyses, testing methods, specifications, charts, business plans, drawings, models, ideas, schemes, correspondence, communications, lists, manuals, computer programs, software, technology, techniques, methods, processes, services, routines, systems, procedures, practices, operations, security codes, know-how, modes of operation, configuration of business apparatus and equipment, business opportunities, customer and vendor information, and trade or other secrets (collectively, whether verbal, written or existing, stored or communicated in any other form or medium, together with all copies thereof, the “Confidential Information”).  Company further agrees that Company, its officers, directors, partners, employees, affiliates, agents or representatives (collectively, the “Representatives”) shall not, without the prior written consent of SI, disclose any Confidential Information, in any manner whatsoever, in whole or in part, and shall not be used by Company or any its Representatives other than in connection with matters agreed in writing by SI (the “Approved Uses”).  Moreover, Company agrees to transmit the Confidential Information only to such of its Representatives who need to know the Confidential Information for the sole purpose of assisting Company in Approved Uses, who are informed of the confidential nature of such information, and who agree to be bound by the terms of confidentiality as if a party to this Agreement.  In any event, Company shall be fully liable for any breach of this Agreement by its Representatives and agrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information. SI and Company recognize and agree that nothing contained in this Agreement shall be construed as SI granting any rights, by license or otherwise, to any Confidential Information. Notwithstanding anything to the contrary, Confidential Information shall not include: (i) information generally available to the public through no wrongful act of Company or an affiliate or representative thereof; (ii) information approved for release by written disclosure of SI; or (iii) information wholly and independently developed by Company or its personnel without reliance in any way on other protected information of SI as established by dated documentation.  Notwithstanding the foregoing restrictions, Company and its personnel may use and disclose any information to the extent required by an order of any court, subpoena, or other government authority; provided however, prior to any such disclosure pursuant to a court or governmental order or subpoena, Company agrees (x) to notify SI immediately of the existence, terms, and circumstances surrounding such law or request; (y) to consult with SI on the advisability of taking legally-available steps to resist or narrow such request or disclosure obligation; and (iii) if disclosure of such Confidential Information is required to prevent Company from being held in violation of law, contempt or subject to other penalty, to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to SI, it is legally compelled to disclose and to exercise Company’s best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.  All terms of this Agreement, including, without limitation, provisions relating to compensation, are also hereby designated as Confidential Information and shall not be shared with any third party without mutual, written consent.  In addition to any other remedy to which SI may be entitled at law or in equity, SI shall be entitled to injunctive or other equitable relief to prevent breaches or threatened breaches of this Section 9.1, and that neither Company nor its Representatives will oppose the granting of such relief.

9.2  IP Addresses.

Upon expiration, cancellation or termination of this Agreement, Customer shall relinquish any Internet protocol (“IP”) numbers, addresses or address blocks assigned to Customer by SI or its network services supplier (but not the URL or top level domain connected therewith). SI reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.

10.  Definitions.

(a)  “Customer” is given the meaning referenced in the opening paragraph above.  Notice to Customer shall be delivered to the physical and/or email address provided by the Customer to Signet’s representative.

(b)  ”Customer Technology” means Customer’s proprietary technology, including Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed during the term of this Agreement by Customer.

(c)  ”Professional Services” means any non-standard professional, consulting or support service provided by SI to Customer, including, without limitation, those services and fees indicated on the SI website.

(d)  ”SI Technology” means SI’s proprietary technology, including SI Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by SI or licensed to SI from a third party) and also including any derivatives, improvements, enhancements or extensions of SI Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the art.

(e)  ”Renewal Term” means a service term following the Initial Term, as specified in Section 2.2.

(f)  ”Rules and Regulations” means the SI general rules and regulations governing Customer’s use of Services, including, but not limited to, online conduct and SI’s Acceptable Use Policy, which can be found on the website or upon request.

(g)  ”Service(s)” means the specific service(s) provided by SI pursuant to this Agreement.

(h)  ”Service Commencement Date” means the date SI will begin providing the Service(s) to Customer as indicated on the Order Form(s).

(i)  “Service Term” means the minimum term for which SI will provide the Service(s) to Customer, as indicated on the Order Form(s).

(j)   “SI” means Signet Interactive Technologies, LLC.  Notices to SI shall be sent to:

11152 Westheimer, #684, Houston, TX 77042.

11. Use of Customer’s Name for Marketing and Promotion.

Customer agrees that during the term of this Agreement SI may publicly refer to Customer, orally and in writing, as a current Customer of SI in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.

12.  Miscellaneous Provisions.

SI shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Customer resulting, directly or indirectly, from any unforeseen or force major event. SI and Customer agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN HARRIS COUNTY TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. 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. Customer may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of SI, and any attempted assignment or delegation without such consent will be void. SI may assign this Agreement in whole or part. SI also may delegate the performance of certain Services to third parties, including SI’s wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall 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. SI and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between SI and Customer. Neither SI nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of SI and Customer in accordance with this Section 12.

13.    Survival.

The following provisions will survive any expiration or termination of this Agreement: Sections 3, 4, 5, 6, 7, 8, 9, 11, and 12.

14. Notice.  All notices and consents shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States Mail, overnight courier service facsimile or by email to the contact information set forth in the Definitions section above.  A Party may change its address by providing notice of same, in accordance hereto.

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Authorized representatives of Customer and SI have read the foregoing and all documents incorporated therein and, by executing the Order Form(s), agree and accept such terms effective as of the date indicated below the Customer signature on the initial Service Order Form.


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