OUTSERV.NET, INC.
STANDARD MASTER SERVICES AGREEMENT

 General Information

OutServ.net, Inc. offers Services, as defined below, according to the Terms and Conditions specified in individual contractual agreements in place with each Customer. These agreements include a "Master Services Agreement" (MSA) that defines the general terms and conditions applicable to all products and services, "Order Forms" that describe the specific services ordered along with the associated fees, and any other customer-specific "Amendments."

If a Customer purchases Services from OutServ.net, Inc. without first entering into a separate legal agreement, those products and services will be delivered according to the Terms and Conditions specified in this Agreement, the "OutServ.net, Inc. Standard Master Services Agreement."

As used in this Agreement, the following terms shall have the meanings set forth below:

“OutServ.net” shall mean OutServ.net, Inc., a Delaware Corporation with a principal place of business at the address listed below:

OutServ.net, Inc.
305 N Heatherwilde Blvd Ste 455
Pflugerville, TX  78660-4199

“Customer” shall mean the individual or other legal entity that has submitted a request to purchase one or more Services (as defined below) from OutServ.net but has not entered into a customer-specific Master Services Agreement.

Before this Agreement can become effective, the Customer agrees to provide OutServ.net with all necessary legal and contact information necessary to fulfill, bill for, collect payment for, and to satisfy any legal requirements associated with the delivery of the requested Services.

This Agreement, by and between OutServ.net and the Customer, consists of the included Terms and Conditions, one or more “Orders” (Order Forms, Purchase Orders or other written purchase requests) submitted by the Customer, and the written acceptance of the Order(s) by OutServ.net. This Agreement shall be valid and binding with an “Effective Date” of when OutServ.net accepts the Order(s) and agrees to provide the associated Services under the terms of this “Standard Master Services Agreement.”

OUTSERV.NET, INC.
STANDARD MASTER SERVICES AGREEMENT

Terms and Conditions

These Terms and Conditions indicate the terms and conditions by which OutServ.net will deliver and the Customer will receive the Service(s) provided by OutServ.net. The specific Service(s) and/or products to be provided hereunder are identified in the attached Order Form(s) submitted by the Customer and accepted by OutServ.net.

DEFINITIONS.  As used in this Agreement, the following terms shall have the meanings set forth below.  Capitalized terms used and not defined herein have the same meanings set forth in the Master Services Agreement Cover Page.

(a)          "Customer Technology" means the Customer’s proprietary technology, including the Customer’s operational plans, hardware designs, algorithms, software (in source and object forms), user interface designs, technology architecture, documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by the Customer or licensed to the 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 the Customer.

(b)          “Expected Start Date” means the date indicated in an Order Form on which OutServ.net expects to begin providing the specified Service(s) and on which the Customer agrees to begin receiving the specified Service(s).

(c)          "Initial Term" means the initial period of time during which OutServ.net will provide a Service to the Customer, as specified in Section 2 below.

(d)     "Management Information" means the performance, availability, utilization, problem, capacity and other such data that resides in the OutServ.net data warehouse and is collected by OutServ.net during the course of performing the Service(s).

(e)          "Order Form" means the documents subject to this Agreement describing the Service(s) and the charges for the Service(s) that are ordered by the Customer from OutServ.net.

(f)           "Renewal Term" means any service term following the Initial Term, as specified in Section 2 below.

(g)          "Service(s)" mean the specific service(s) to be provided by OutServ.net as described in the Order Form(s).

(h)          “Service Initiation Date” means the later of the Expected Start Date or the actual date on which a Service is provisioned by OutServ.net and is ready for use by the Customer, regardless of whether the Customer has started using the Service.

(i)            “Service Level Agreements” mean the descriptions incorporated in whole or by reference in the Order Form(s) that set forth OutServ.net’s obligations as they relate to the performance of the specified Service(s) and specific remedies available to the Customer if the indicated service levels are not received.

(j)            “OutServ.net Proprietary Technology” means the Services, software tools, operational plans, hardware designs, algorithms, software (in source and object forms), user interface designs, technology architecture, documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world and also including any derivatives, improvements, enhancements or extensions of OutServ.net Proprietary Technology conceived, reduced to practice, or developed during the term of this Agreement by OutServ.net. OutServ.net Proprietary Technology also includes any and all third-party proprietary technology licensed to OutServ.net and used to provide the Service(s).

 

AGREEMENT.  In exchange for the covenants and promises set forth herein, which the parties agree are sufficient consideration, the parties hereby agree as follows.

  1. SERVICES.  By submitting an Order Form, the Customer agrees to receive and pay for the Service(s) set forth in such Order Form, and by accepting the Order Form, OutServ.net agrees to provide the Service(s) set forth in the Order Form, during the Initial Term and any Renewal Term(s), as specified in Section 2 below.
  2. TERM.
  1. Initial Term.  The Initial Term of each Service will commence on the applicable Service Initiation Date and will continue for the length of time specified in the applicable Order Form.
  2. Renewal Term(s).  Unless otherwise specified in the applicable Order Form, each Service will continue automatically for additional terms ("Renewal Terms") equal to the Initial Term unless either party notifies the other party in writing at least thirty (30) days prior to the end of the Initial Term or a Renewal Term, as applicable, that it has elected to allow such Service to expire, in which case such Service shall expire at the end of such term.  The expiration of any Service will not affect the Customer’s obligations to pay for other Service(s).  Notwithstanding the foregoing, OutServ.net may change or increase the prices it charges the Customer for any Service at any time after the Initial Term effective sixty (60) days after providing notice to the Customer, provided, however, that if the Customer does not agree with such increased prices it may send OutServ.net written notice of its non-acceptance at any time during such sixty (60) day period, in which event, the Service(s) shall expire on the date on which the price change was to have become effective.
  3. Term of Agreement.  The term of this Agreement will commence on the Effective Date and will continue through the end of the Initial Term(s) and any Renewal Terms of the Service(s).
  1. FEES AND PAYMENT TERMS.
  1. Fees.  The Customer will pay OutServ.net all charges for the Service(s) provided under this Agreement.  The prices listed in the Order Form(s) will remain in effect during the Initial Term indicated in the Order Form(s) and will continue thereafter, unless modified in accordance with Section 2.2 above.  The Customer’s obligation to pay the applicable charges for a Service shall accrue from the Service Initiation Date.
  2. Taxes.  All fees charged by OutServ.net for the Service(s) are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of the Service(s), all of which the Customer will be responsible for and will pay in full, except for taxes based on OutServ.net’s income or due to OutServ.net’s ownership or use of its real or personal property, except to the extent that such property is part of the Service(s) provided hereunder.  If OutServ.net is required to collect and remit any such tax, the Customer will promptly pay to OutServ.net the amount of tax specified on the invoice.
  3. Billing.  Unless otherwise specified in the applicable Order Form(s), OutServ.net will invoice the Customer as follows.
  1. Billing in Advance.  Services are invoiced in advance, except for hourly or usage-based Services that are invoiced in advance at the minimum amount and, as applicable, are adjusted on subsequent invoices based on actual usage.
  2. Initial Invoice.  On the Service Initiation Date, OutServ.net will invoice the Customer for any initial nonrecurring charges, the recurring charges for the first full month of Service(s) and, if applicable, the prorated recurring charges for the first partial month of Service(s).
  3. Monthly Invoices.  After the Initial Invoice, OutServ.net will invoice the Customer on a monthly basis for any nonrecurring charges, billing adjustments for usage-based Services, and recurring charges for the then current month.
  1. Payment Terms.  All payments for undisputed charges (pursuant to Section 3.6 below) are due upon receipt of the OutServ.net invoice and become past due if not paid within thirty (30) days after the date of the invoice. All payments shall be made in the United States in U.S. dollars.
  2. Late Payments.  Any payment for undisputed charges not received within thirty (30) days of the invoice date will accrue interest at a rate of one and one-half percent (1½%) per month, or the highest rate allowed by applicable law, whichever is lower. If the Customer is delinquent in its payments, OutServ.net may, at its sole discretion and without limiting or restricting any other rights it has, upon written notice to the Customer, modify the payment terms to require full payment before the delivery of any Service(s), or require other assurances to secure the Customer’s payment obligations hereunder.
  3. Disputed Charges.  In the event that the Customer disputes, reasonably and in good faith, any charges or portion of charges specified on an OutServ.net invoice (the “Disputed Charge”), the Customer may withhold payment of the Disputed Charge provided that the Customer pays the undisputed portion in a timely manner and gives OutServ.net written notice of, and the basis for, such Disputed Charge within fifteen days after receiving the invoice.  OutServ.net and the Customer will work together in good faith to resolve any Disputed Charge.  If the parties mutually determine that the Customer owes any Disputed Charge, the Customer shall pay OutServ.net such amount, including interest accrued from the date the payment was originally due to OutServ.net pursuant to Sections 3.4 and 3.5 above.  If the parties are unable to resolve the Disputed Charge within ten days of the Customer’s notice of the same, OutServ.net shall be entitled to pursue its remedies hereunder.
  1. RIGHTS AND OBLIGATIONS.
  1. Compliance with Law and Rules and Regulations. The Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement.  The Customer will comply at all times with all applicable laws and regulations.  The Customer acknowledges that OutServ.net exercises no control whatsoever over the content of the information passing through the Customer’s systems and that it is the sole responsibility of the Customer to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations.
  2. Restrictions on Use of Services.  The Customer shall not, without the prior written consent of OutServ.net (which may be withheld in its sole discretion), resell or assign the Service(s) to any third parties.
  3. Emergency Contacts.  The Customer shall designate to OutServ.net, in writing, one or more emergency contacts, including name, address, telephone, pager and/or email addresses, who will be the primary emergency contact(s) to be notified in the event of an emergency related to the Service(s).  The Customer may modify its contact, address, and notification methods periodically with written notice of such modification to OutServ.net.
  1. INSURANCE.
  1. Minimum Levels of Insurance.  During the term of this Agreement, both parties will keep in full force and effect insurance policies covering: (i) commercial general liability insurance in an amount not less than one million dollars per occurrence for bodily injury and property damage; (ii) workers’ compensation insurance in an amount not less than that required by applicable law; and (iii) property insurance covering each party’s own property and equipment, including but not limited to electronic computer equipment for the perils customarily insured, but in no event more restrictive than  “special perils” property insurance, in the amount of its full replacement cost at the time of the loss.  The Customer acknowledges that OutServ.net has no obligation whatsoever to insure any Customer property.  OutServ.net acknowledges that the Customer has no obligation whatsoever to insure any OutServ.net property.  The insurance policies required in this Agreement will be issued by financially secure insurance companies authorized to issue insurance in the state where the Service(s) is/are to be delivered.
  2. Waiver of Subrogation.  Neither party, nor its officers, directors, shareholders, employees, agents or invitees, will be liable to the other party or to any insurance company insuring the other party (by way of subrogation or otherwise) for any loss or damage to its equipment, or for loss of business revenue or extra expense arising out of or related to its equipment or property, if a party is required in Section 5.1 above to maintain insurance for such loss or damage or expense.
  1. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS.
  1. Confidential Information.  
  1. Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party ("Confidential Information"). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential.  Confidential Information will also include, but not be limited to, OutServ.net Proprietary Technology, Customer Technology, the terms and conditions of this Agreement and all documents related to the provision of the Service(s).  Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information.
  2. Exceptions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.  The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
  3. Termination.  Within thirty (30) days of the expiration or termination of this Agreement, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.  Each party’s obligation under this Section 6.1 will survive for a period of two (2) years following the expiration or termination of this Agreement.
  1. Intellectual Property.
  1. Ownership.  Except for the rights expressly granted herein and the assignment expressly made in paragraph 6.3(a), this Agreement does not transfer from OutServ.net or any third party licensor to the Customer any OutServ.net Proprietary Technology, and all right, title and interest in and to OutServ.net Proprietary Technology will remain solely with OutServ.net and the third party licensors. Except for the rights expressly granted herein, this Agreement does not transfer from the Customer to OutServ.net any Customer Technology, and all right, title and interest in and to Customer Technology will remain solely with the Customer.  OutServ.net and the Customer each agree that it will not, directly or indirectly, reverse engineer, decompile, modify, translate, disassemble or create derivative works or otherwise attempt to derive source code or other trade secrets from the other party or its licensors.
  2. General Skills and Knowledge.  Notwithstanding anything to the contrary in this Agreement, OutServ.net will not be prohibited or enjoined at any time by the Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Service(s), including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of OutServ.net.
  1. License Grants.  
  1. By OutServ.net.  OutServ.net hereby grants to the Customer a nonexclusive, royalty-free license, during the term of this Agreement, to use the OutServ.net Proprietary Technology solely for purposes of receiving the Service(s).  The Customer shall have no right to use the OutServ.net Proprietary Technology for any purpose other than receiving the Service(s).
  2. By the Customer.  The Customer agrees that if, in the course of performing the Service(s), it is necessary for OutServ.net to access and use Customer Technology, OutServ.net is hereby granted and shall have a nonexclusive, royalty-free license, during the term of this Agreement, to use the Customer Technology solely for the purposes of delivering the Service(s) to the Customer. OutServ.net shall have no right to use the Customer Technology for any purpose other than providing the Service(s).
  3. Management Information.  The Management Information is owned by the Customer and OutServ.net is hereby granted a perpetual, paid-up license to use, copy, modify, distribute and demonstrate the Management Information, provided, however, that any Confidential Information including, but not limited to, the identity of the Customer, that is part of the Management Information shall not be disclosed pursuant to Section 6.1 of this Agreement.
  1. SERVICE LEVEL AGREEMENTS.  Except as otherwise set forth within this Agreement, the Service Level Agreement(s), if applicable, constitute the Customer’s sole and exclusive remedy for OutServ.net’s provision of or failure to provide Service(s) to the Customer, except that OutServ.net shall have no obligation to compensate the Customer under any Service Level Agreement while the Customer is in Default or not current in its payment obligations under this Agreement.  OutServ.net may amend the Service Level Agreement(s) provided that: (i) the Customer is informed at least thirty (30) days in advance of any such amendment; and (ii) the amendment(s) do/does not materially and adversely alter the provision of the Service(s) hereunder.  If the Customer reasonably and in good faith believes that an amendment to the Service Level Agreement(s) materially and adversely alters the provision of the Service(s) hereunder, the Customer may provide written notice to OutServ.net within ninety (90) days of the effective date of the amendment, setting forth in reasonable detail the Customer’s basis for such belief.  OutServ.net shall have thirty (30) days to address the Customer’s concern and reach a mutually agreed upon resolution.  If mutual resolution is not achieved, the previous version of the applicable Service Level Agreement(s) will remain in effect for the remainder of the then current term as to the Customer’s use of the applicable Service(s).
  2. REPRESENTATIONS AND WARRANTIES.
  1. Warranties by Customer.  The Customer represents and warrants that: (i) it has the legal right and authority, and will continue to maintain the legal right and authority, to enter into this Agreement and perform its obligations hereunder; (ii) the performance of its obligations and use of the Service(s) (by the Customer, its customers and users) will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties.
  2. Breach of Customer Warranties.  In the event of any breach of any of the foregoing warranties set forth in Section 8.1, in addition to any other remedies available at law or in equity, OutServ.net will have the right, in its sole reasonable discretion, to suspend immediately any related Service(s) if deemed reasonably necessary by OutServ.net to prevent any harm to OutServ.net and its business.  OutServ.net will provide notice and opportunity to cure if practicable depending on the nature of the breach.  Once cured, OutServ.net will promptly restore the Service(s).
  3. Authority and Performance of OutServ.net.  OutServ.net represents and warrants that: (i) it has the legal right and authority, and will continue to maintain the legal right and authority, to enter into this Agreement and perform its obligations hereunder; and (ii) the performance of its obligations and delivery of the Service(s) to the Customer will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties.  In the event of a breach of the warranties set forth in this Section 8.2 the Customer’s sole remedy is termination pursuant to Section 11 of the Agreement.
  4. No Other Warranty.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8 OR IN THE SERVICE LEVEL AGREEMENTS, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND THE CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK.  OUTSERV.NET 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, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. OUTSERV.NET DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
  1. LIMITATIONS OF LIABILITY.
  1. Consequential Damages Waiver.  EXCEPT FOR A BREACH OF SECTION 6.1 ("CONFIDENTIAL INFORMATION") OF THIS AGREEMENT, 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), STRICT LIABILITY OR OTHERWISE.
  2. Limitation of Actual Damages.  If OutServ.net becomes liable to the Customer for actual damages under this Agreement for any reason, then the damages recoverable against OutServ.net for all events, acts, delays or omissions shall not exceed in the aggregate the monthly price paid or payable to OutServ.net pursuant to this Agreement for the three (3) months immediately preceding the events, acts, delays or omissions for which damages are claimed, unless such damage is due to the gross negligence or willful misconduct of OutServ.net.
  3. Basis of the Bargain; Failure of Essential Purpose.  The parties acknowledge that OutServ.net has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
  1. INDEMNIFICATION.
  1. Indemnification.  OutServ.net shall defend, indemnify and hold the Customer, its officers, agents and employees harmless from and against any and all liability, loss, expense (including reasonable attorneys' fees) or claims for injury or damages arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of OutServ.net, its officers, agents or employees.  The Customer shall defend, indemnify and hold OutServ.net, its officers, agents and employees harmless from and against any and all liability, loss, expense (including reasonable attorneys' fees) or claims for injury or damages arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the Customer, its officers, agents or employees.
  2. Notice.  Each party’s indemnification obligations hereunder shall be subject to: (i) receiving prompt written notice of the existence of any Action; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the indemnified party to participate in the defense of any Action; and (iv) receiving full cooperation of the indemnified party in the defense thereof.
  1. DEFAULT AND REMEDIES.
  1. Default by OutServ.net.  The occurrence of any of the following will be a “Default” by OutServ.net: (i) OutServ.net fails to perform or observe any of its obligations under this Agreement after a period of thirty (30) days after receiving notice from the Customer of such failure; or (ii) OutServ.net's insolvency or liquidation as a result of which OutServ.net ceases to do business; or (iii) the material breach of any representation or warranty made by OutServ.net in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by OutServ.net within thirty (30) days after receiving written notice from the Customer of such breach.  A violation of any Service Level Agreement is expressly not a breach of a representation or warranty and is not a Default hereunder.
  2. Default by Customer.  The occurrence of any of the following will be a “Default” by the Customer: (i) Customer fails to pay, when due, any fees or charges owing to OutServ.net under this Agreement, provided that the first such nonpayment in any calendar year shall not be a Default unless Customer fails to pay such amount within five (5) business days after notice from OutServ.net of such nonpayment; or (ii) the material breach of any representation or warranty made by Customer in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by Customer within thirty (30) days after receiving written notice from OutServ.net of such breach; or (iii) Customer fails to perform or observe any of its other obligations under this Agreement after a period of thirty (30) days after receiving notice from OutServ.net of such failure; or (iv) Customer's insolvency or liquidation as a result of which Customer ceases to do business.
  3. Customer’s Remedies for Default by OutServ.net.   Remedies for failure to deliver the Service(s) in accordance with any Service Level Agreement(s) are addressed entirely in the Service Level Agreement(s).  If OutServ.net commits a Default, the Customer will be entitled, at its election, to terminate this Agreement or seek any available remedies at law or in equity.  The Customer’s right of recovery for any such Default will be limited as elsewhere provided in this Agreement.
  4. OutServ.net’s Remedies for Default by Customer.  If the Customer commits a Default, OutServ.net will be entitled, at its election, to exercise any one or more of the following remedies, then or at any time thereafter:  (i) to exercise any remedy for such Default set forth elsewhere in this Agreement; (ii) to pursue any remedy available at law or in equity, (iii) to terminate this Agreement; (iv) to suspend Service(s); and (v) to accelerate the payment obligations hereunder.
  1. TERMINATION OR EXPIRATION.
  1. No Liability for Termination.  Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
  2. Effect of Termination or Expiration.  Upon the effective date of termination of this Agreement or of the expiration of any Service(s) provided hereunder:
  1. OutServ.net will immediately cease providing the affected Service(s);
  2. if the Agreement or Service(s) is/are being terminated by OutServ.net for the Customer’s Default, the unpaid portion of the total contract price for the affected Service(s) will immediately become due.
  1. Survival.  The respective obligations of OutServ.net and the Customer, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation, the obligations regarding confidentiality, limitation of liability, and indemnification, shall survive the termination or expiration of this Agreement.
  1. OTHER PROVISIONS.
  1. Force Majeure.  Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war (declared or undeclared) including terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet (not resulting from the actions or inactions of OutServ.net), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its commercially reasonable efforts to correct such failure or delay in performance.  If OutServ.net is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may terminate the Service(s).
  2. Marketing.  The Customer agrees that, during the term of this Agreement, OutServ.net may publicly refer to the Customer, orally and in writing, as a customer of OutServ.net.  The Customer agrees to give access to OutServ.net to the Customer's logo for use in digital and printed media and also agrees to participate in a mutually agreed upon press announcement describing the relationship. Any other reference to the Customer by OutServ.net requires the prior written consent of the Customer.
  3. Non-Solicitation.  During the Term of this Agreement and continuing through the first anniversary of the termination or expiration of this Agreement, both parties agree that they will not, and will ensure that their affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by the other party.
  4. Relationship of Parties.  OutServ.net and the Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between OutServ.net and the Customer.  Neither OutServ.net nor the 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. 
  5. No Third-Party Beneficiaries.  OutServ.net and the Customer agree that, except as otherwise expressly provided in this Agreement, 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 the Customer.
  6. Assignment. The Customer may assign this Agreement in whole as part of a corporate reorganization, acquisition, consolidation, merger, or sale of substantially all of its assets subject to OutServ.net’s advance approval which shall not be unreasonably withheld.  The Customer may not otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of OutServ.net, and any attempted assignment or delegation without such consent will be void.  OutServ.net may assign this Agreement in whole or part. OutServ.net also may delegate the performance of certain Services to third parties, including OutServ.net’s wholly owned subsidiaries, provided OutServ.net controls the delivery of such Services to Customer and remains responsible to the Customer for the delivery of such Services.  This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
  7. Governing Law; Dispute Resolution.  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.  The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement.  Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules (and if Customer is a non-U.S. entity, the International Arbitration Rules) of the American Arbitration Association ("AAA").  There will be three (3) arbitrators (the "Arbitration Tribunal"), the first of which will be appointed by the claimant in its notice of arbitration, the second of which will be appointed by the respondent within thirty (30) days of the appointment of the first arbitrator and the third of which will be jointly appointed by the party-appointed arbitrators within thirty (30) days thereafter.  The language of the arbitration shall be English.  The Arbitration Tribunal will not have the authority to award punitive damages to either party.  Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration Tribunal and the AAA.  This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction.  The arbitration will be held in Austin, Texas, USA.  Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for the Customer’s failure to pay for Services in accordance with this Agreement may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.
  8. Notice.  Except where other means of communication are expressly provided for in this Agreement, all notices provided for under this Agreement shall be in writing, and shall be delivered as follows, with notice deemed to be given as indicated: (i) by personal delivery, when delivered personally; (ii) by overnight courier service, upon verification of delivery by the courier service; (iii) by registered or certified mail, return receipt requested, upon verification of receipt; or (iv) by facsimile transmission or electronic mail, upon acknowledgement of receipt by the receiving party.  All such notices shall be furnished with delivery or postage charges prepaid addressed to the Customer at the Customer Notice Address or to OutServ.net at the OutServ.net Notice Address.  The initial Notice Address for each party is set forth on the Master Services Agreement Cover Page.  Either party may change its address for notices hereunder by notice to the other party.
  9. Severability; Waiver.  In the event any provision of this Agreement is held by an arbiter or a court with jurisdiction over the parties 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.
  1. ENTIRE AGREEMENT; MODIFICATIONS; GOVERNING DOCUMENT.
  1. Attachments Incorporated.  The Master Services Agreement Cover Page, AUP, SLAs, all Order Forms, and any applicable Addenda, (each an “Attachment”) are incorporated and made a part hereof as if fully set forth herein.
  2. Entire Agreement; Counterparts; Originals.  This Agreement, including all documents incorporated herein, 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.  Any additional or different terms in any purchase order or other response by the Customer shall be deemed objected to by OutServ.net without need of further notice of objection and shall be of no effect or in any way binding upon OutServ.net.  Order Forms may be executed in two 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 the Order Form and this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original.
  3. Amendments.  OutServ.net and the Customer may periodically agree to execute one or more modifications, supplements, or amendments to this Agreement (collectively “Amendments”) which, when fully executed by both parties shall modify this Agreement and become a part hereof.
  4. Governing Document.  In the event of a conflict between or among the terms in this Agreement, the Attachments, and any Amendments, this Agreement shall govern, unless expressly states otherwise in the specific Attachment or Amendment.