Master Services Agreement
Updated: February 10, 2010PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT
THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) IS A BINDING AGREEMENT BETWEEN TIER 3, LLC (“TIER 3”) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “CUSTOMER”). THIS AGREEMENT INCORPORATES BY REFERENCE: (1) THE PRIVACY POLICY tier3.com/legal/privacy (“PRIVACY POLICY”) POSTED ON THE WEBSITE, (2) THE ACCEPTABLE USE POLICY tier3.com/legal/aup (“AUP”) POSTED ON THE WEBSITE, AND (3) THE SERVICE LEVEL TERMS tier3.com/legal/sla POSTED ON THE WEBSITE, AS THESE POLICIES AND TERMS MAY BE MODIFIED BY TIER 3 OR ITS AFFILIATES FROM TIME TO TIME.
BY CLICKING THE “ACCEPT” BUTTON FOR THIS AGREEMENT OR ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “CUSTOMER” SHALL MEAN SUCH ENTITY. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST SELECT THE “DECLINE” BUTTON AND CUSTOMER MAY NOT USE THE SERVICES.
The Services. The services covered by this Agreement include all services provided by Tier 3 to Customer under this Agreement (“Services”), except for those services for which Tier 3 specifically provides under a separate customer agreement. Tier 3 Services include, but are not limited to those services listed on www.tier3.com (the “Website”).
Modifications to this Agreement. Customer agrees that Tier 3 may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version of the Agreement in the Client Management section of the Website (the “Control Panel”). If the revised terms are for (a) any Services which Tier 3 is adding at the time of revision, (b) the Privacy Policy, (c) the AUP, or (d) any other general terms and conditions applicable to the Services or the Website, then the revised terms shall be effective upon posting (unless otherwise expressly stated at the time of posting). If the revised terms are otherwise for any then-existing Services, then the revised terms shall be effective upon the earlier to occur of (x) fifteen (15) days after posting and (y) if Tier 3 provides a mechanism for Customer’s immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button. If any modification is unacceptable to Customer, Customer’s sole recourse is to terminate this Agreement.
Term and Termination. The term of this Agreement will commence, and Customer may begin using the Services, once Customer agrees to the terms and conditions of this Agreement by clicking the “Accept” button below and completes the registration process for Customer’s Services account. The Agreement will remain in effect until terminated by Customer or Tier 3 in accordance with this Section 3.
Customer may terminate this Agreement for any reason or no reason at all, at Customer’s convenience, by following the instructions for cancelling any individual Service or set of Services on the account management page of the Control Panel.
Tier 3 may suspend Customer’s right and license to use any or all of the Services, or terminate this Agreement in its entirety (and, accordingly, cease providing Services to Customer), for any reason or no reason, at Tier 3’s discretion at any time by providing Customer thirty (30) days’ advance notice.
Tier 3 may suspend Customer’s right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use all Services) for cause effective (i) immediately for breach of Section 6 or 8, below; (ii) fifteen (15) days following Tier 3’s notice to Customer if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to Tier 3 is invalid or charges are refused for such payment mechanisms, and Customer fails to cure such payment obligation default or correct such payment mechanism problem within such 15-day period; or (iii) five (5) days following Tier 3’s provision of notice to Customer if Customer breaches any other provision of this Agreement and fails, as determined by Tier 3, in its sole discretion, to cure such breach within such five-day period.
Effect of Termination. Upon termination of this Agreement for any reason: (i) Customer remains liable for all fees, charges and any other obligations Customer has incurred through the date of termination with respect to the Services; and (ii) all of Customer’s rights under this Agreement shall immediately terminate. The second paragraph of Section 6, the last sentence of Section 10, Section 12, Section 14, Section 15, Section 16, Section 17, Section 18, and Section 19 shall survive any termination or expiration of this Agreement.
Data Preservation. In the event of a suspension by Tier 3 of Customer’s access to Services for any reason other than for a cause suspension, during the period of suspension, (i) Tier 3 will not take any action to intentionally erase any Customer data or Customer software (collectively, “Data”) stored on the Services, and (ii) applicable Service Data storage charges, if any, will continue to accrue.
In the event of any termination by Tier 3 of any Service or any set of Services, or termination of this Agreement in its entirety, other than for a cause termination, (i) Tier 3 will not take any action to intentionally erase any of the Data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) Customer’s post termination retrieval of Data stored on the Services will be conditioned on Customer’s payment of Service Data storage charges for the period following termination, payment in full of any other amounts due Tier 3, and Customer’s compliance with terms and conditions Tier 3 may establish with respect to such Data retrieval.
Except as provided above, Tier 3 shall have no obligation to continue to store Data during any period of suspension or termination or to permit Customer to retrieve same. For the avoidance of doubt, for security and privacy reasons, Tier 3 may destroy all Customer Data after thirty (30) days following the effective date of termination, unless otherwise required by law.
Authorization and License to Use the Services. Subject to Customer’s acceptance and compliance with this Agreement and with the payment requirements for the Services that are set forth on the Control Panel (as such payment terms may be updated from time to time), Tier 3 hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under Tier 3’s intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
Customer will not nor will Customer allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Services; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Services; (iv) remove any proprietary notices or labels on the Services; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (vi) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of Tier 3; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Tier 3 other than in the name of Tier 3; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services. Customer will use the Services solely for Customer’s own internal use, and will not make the Services available for timesharing, application service provider or service bureau use. Customer will comply with all applicable laws and regulations in Customer’s use of and access of the Services.
Privacy Policy. Tier 3 will comply with the Privacy Policy.
Acceptable Use Policy. Customer may only use the Services in accordance with the AUP. In the event Tier 3 terminates this Agreement pursuant to Section 3 due to a breach by Customer of the AUP, in addition to Tier 3’s other rights under this Agreement, Tier 3 may impose a fee of $500 as liquidated damages for such breach.
Service Levels. Tier 3 will provide the Services in accordance with the applicable SLA. Tier 3’s SLA constitutes Customer’s sole and exclusive remedy for Tier 3’s provision of or failure to provide Services to Customer, except that Tier 3 shall have no obligation to compensate Customer under any SLA while Customer is in default or not current in its payment obligations under this Agreement unless such default is due to a bona fide dispute. Service credits, if any, as provided in the SLA will be issued to Customer’s account and shall be used to offset future billable services. Service credits shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. Service credits shall expire if Customer’s account is terminated.
Security. Tier 3 will use commercially reasonable efforts to ensure the integrity, backup, security and retention of Customer’s Data stored on the Services. However, Tier 3 cannot guarantee that Tier 3 will be successful at doing so given the nature of the Internet. Accordingly, Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer’s Data. Tier 3 has no liability to Customer for any unauthorized access or use, corruption, deletion, destruction or loss of any of Customer’s Data.
Fees and Payment. In consideration of Customer’s use of any of the Services, Customer agrees to pay applicable fees for Services in the amounts set forth on the Control Panel. Fees for any new Service or new Service feature will be effective upon posting by Tier 3 on the Control Panel for the applicable Service. Tier 3 may increase or add new fees for any existing Service or Service feature by giving Customer thirty (30) days’ advance notice. Such notice will be posted on the Website on the Control Panel. Customer agrees that Customer is responsible for checking the Website each month to confirm whether there are any new fees and their effective date(s). Customer shall pay any duties and taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under the Agreement, including penalties and interest, but specifically excluding taxes based on Tier 3’s assets or net income. When Tier 3 has the legal obligation to pay or collect taxes, the appropriate amount shall be charged to and paid by Customer unless Customer provides Tier 3 with a valid tax exemption certificate authorized by the appropriate taxing authority.
Fees for the Services shall be due and payable on the date that Customer places its order for such Services via the Control Panel. Payment obligations are non-cancelable and fees paid are non-refundable. Tier 3 may specify the manner in which Customer will pay any fees, and any such payment shall be subject to Tier 3’s general accounts receivables policies from time to time in effect. Except as set forth in Section 9, all amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without deduction or withholding.
In the event Customer seeks to resolve a billing error, Customer is instructed to open a ticket via the Control Panel or email billing@tier3.com. Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of US $150 and will be subject to collection by an authorized collection agency. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Tier 3 in enforcing collection.
Proprietary Rights. The Services, including all intellectual property rights in the Services, are and shall remain, the property of Tier 3. All rights in and to the Services not expressly granted to Customer in this Agreement are hereby expressly reserved and retained by Tier 3 and its licensors without restriction.
As between Tier 3 and Customer, Customer exclusively owns all right, title and interest in and to Customer’s Data. Tier 3 will not disclose Customer’s Data, except (i) if Customer expressly authorizes Tier 3 to do so in connection with Customer’s use of the Services; or (ii) as necessary to provide the Services to Customer, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.
In the event Customer elects, in connection with any of the Services, to communicate to Tier 3 suggestions for improvements to the Services (“Feedback”), Tier 3 shall own all right, title, and interest in and to the same, even if Customer has designated the Feedback as confidential, and Tier 3 shall be entitled to use the Feedback without restriction. Customer hereby irrevocably assigns all right, title, and interest in and to the Feedback to Tier 3 and agrees to provide Tier 3 such assistance as it may require to document, perfect, and maintain Tier 3’s rights to the Feedback.
Representations of Customer. Customer represents and warrants that Customer will not use the Services: (i) in a manner that infringes, violates or misappropriates any rights of Tier 3 or any third party; (ii) to engage in spamming or other impermissible advertising, marketing, or other activities, including, without limitation, the CAN SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms, or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
Customer further represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if Customer is registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries where Customer operates, (b) the individual clicking “Accept” on this Agreement and completing the registration for the Services meets the requirements in subsection (ii) above and is an authorized representative of Customer’s entity, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to this Agreement and all transactions conducted under Customer’s account.
Disclaimers. TIER 3 SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY TIER 3 OR TIER 3’S LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE OFFERINGS”) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TIER 3 AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, TIER 3 AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TIER 3 AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL MEET CUSTOMER’S REQUIREMENTS, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA CUSTOMER STORES WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
TIER 3 AND ITS LICENSORS WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM TIER 3 OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OFFERINGS IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Limitation of Liability. NEITHER TIER 3 NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF TIER 3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. TIER 3’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (X) ONE HUNDRED DOLLARS ($100) OR (Y) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TIER 3 HEREUNDER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSATION OF THE DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.
Indemnification. Customer agrees to indemnify, defend and hold Tier 3, its affiliates and licensors, and each of Tier 3’s and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third party claim based on (i) Customer’s use of the Services in a manner not authorized by this Agreement and/or in violation of the applicable restrictions, policies incorporated by this Agreement, and/or applicable law; (ii) Customer’s Data, or its combination with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Customer’s Data; (iii) Customer’s violation of any term of this Agreement or any applicable policies incorporated herein, including, without limitation, Customer’s representations and warranties; or (iv) Customer’s or Customer’s employees’ or personnel’s negligence or willful misconduct.
No Third Party Beneficiaries. Customer agrees that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to the Agreement.
Notice. Customer agrees that Tier 3 may provide notices required under this Agreement by email, regular mail, or postings on the Website. Any notices to Tier 3 must be sent to: Tier 3, LLC, 9594 First Avenue NE #510, Seattle, WA 98115, USA, via first class or air mail or overnight courier, and are deemed given upon receipt.
General. Tier 3 shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement incorporates by reference all policies and guidelines posted on the Website, including all policies listed in the first paragraph of this Agreement, and constitutes the entire agreement between Customer and Tier 3 regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between Tier 3 and Customer, whether written or oral, regarding such subject matter. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the state of Washington without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Washington law, rules, and regulations, Washington law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in King County, Washington. Notwithstanding anything to the contrary, Tier 3 may seek injunctive relief or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Tier 3’s or any third party’s intellectual property and/or proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. A waiver of any default is not a waiver of any subsequent default. Customer may not assign or otherwise transfer any of Customer’s rights hereunder without Tier 3’s prior written consent, and any such attempt is void. The relationship between Tier 3 and Customer is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
