Master Service Agreement

1. This Master Services Agreement
2. All Addendums and Attachments in the order of last signed (most current)
3. Each Service Order
4. The Acceptable Use Policy (AUP)

When used in this Agreement and its Addendums, the following definitions apply unless a specific definition is applied to and in any Addendum or attachment:

CWIE may provide some services such as reporting and tracking as a no charge service. CWIE reserves the right to stop providing these added services at any time for any reason. CWIE reserves the right to begin charging for these additional services at any time, and CWIE also reserves the right to offer new services that are not covered by this Agreement wherein additional charges could incur should the Client choose to use them.

Both parties own their own databases and nothing in this agreement is intended to transfer that ownership. CWIE reserves the right to transfer its database in the event of a change in CWIE’s ownership.

Any unauthorized attempt to gain access to CWIE’s database or systems by the Client, or anyone directly or indirectly associated or related to the Client, however remotely, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, CWIE may immediately terminate this Agreement, and the Client will immediately return to CWIE all copies of any information obtained by this access.

CWIE may terminate either (a) this Agreement, (b) any Addendums or (c) all, immediately, if the Client is the subject of a bankruptcy order, become insolvent, make any arrangement or composition with or assignment for the benefit of creditors, go into voluntary or compulsory liquidation, have a receiver or administrator appointed over the Client’s assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the Client.

The Client also agrees to abide by the Terms and Conditions of this Master Services Agreement, each Addendum, and CWIE’s Acceptable Use Policies (AUP). CWIE reserves the right to manually or electronically review Client’s website(s) to ensure there are no violations of the Terms and Condition or the AUP.

CWIE’s employees and those of related companies have entered into an agreement to protect the companies’ confidential and trade secret information even after their employment. The Client agrees that it would be difficult for CWIE to enforce this agreement if the Client were to hire an employee or a former employee and it would be difficult for the employee to abide by the terms of the agreement. The Client therefore agrees that the Client will not hire or enter into a contract of any kind with a current or former CWIE or related company employee for a period of 24 months following the effective date of that employee’s last date of employment with CWIE or any related company without CWIE’s written prior approval.

The Client understands that CWIE’s Privacy Policy. in part reads, “By using CWIE’s services, the Client agrees that we may release information obtained in the course of the client’s use of CWIE’s services when it is believed, in CWIE’s sole and absolute discretion, that the release is appropriate or otherwise necessary to comply with the law, enforce our Agreement, and/or protect the contract and other rights of our Clients”.

CWIE and the Client both agree to pay any and all taxes that are imposed on CWIE or the Client’s respective business. If CWIE is required to pay taxes for the Client, the Client will immediately reimburse CWIE for those taxes and any fines, penalties and interest, or the Client agrees that CWIE may deduct them from payments to the Client.

By signing this Agreement the Client is stating that the Client is the owner, operator, and/or a designated officer of the business, with the authority to enter in to this Agreement, and have obtained all the necessary licenses, copyrights and/or certificates required to perform the Client’s obligations. The Client will follow all laws and legal regulations that relate to the Client’s business regardless of where those laws and regulations originate, and will comply with any laws and regulations that may apply in the future.

CWIE WILL UTILIZE ITS BEST EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE, BUT CWIE MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, CWIE DOES NOT WARRANT THAT CWIE’s APPLICATIONS WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR, OR DEFECT; OR THAT ANY REVENUE TO CLIENT WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, CWIE DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED

CWIE cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. CWIE will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. CWIE will not be liable to the Client or any of the Client’s customers for any claims or damages which may be suffered by the Client or the Client’s customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the Client’s website as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by CWIE’s fault or negligence. CWIE will not be responsible for the Client’s venue not being accessible on the Internet due to circumstances not under CWIE’ direct control such as individual Internet user's own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations.

Upon ten (10) days notice to the Client CWIE may discontinue any service, or may require fulfillment of additional conditions CWIE may choose to impose as a prerequisite for continuing any service. However, CWIE may discontinue service immediately for fraud committed by the Client or the Client’s employees, illegal activity, or violations of its Acceptable Use Policies (AUP) and/or its other policies.

CWIE’ liability to the Client and any end user of the service or any other of its services is limited to the amount paid to and received by CWIE for service not accepted. In no event will CWIE be liable to the Client, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if CWIE has been advised of the possibility of such damage.

The Client agrees that CWIE is an Internet Service Provider ("ISP") under the Digital Millennium Copyright Act (DMCA) and understand that CWIE is required under the DMCA to remove and/or have the Client remove any material that another party claims is infringing once CWIE has received, in its sole judgment, a proper notification. The Client also agrees that if the Client does not comply with a request from CWIE to remove material under the DMCA or for any other reason, CWIE may at its discretion block access any or all services provided under this Agreement until such time as CWIE is certain that the material is removed. CWIE may, at its sole discretion, determine who is a “repeat infringer” and may terminate this Agreement and its Addendums without notice to the Client if CWIE believes the Client to be a repeat infringer.

The Client is solely responsible for the Client’s content, advertising and promotion, and that of anyone referring others to the Client’s website. The Client is also responsible for insuring that the Client is the rightful owner or licensee for any copyrighted material, trademarks, or items that appear on the Client’s website.

The Client will take all necessary measures to preclude CWIE from being made a party to any lawsuit or claim regarding the service provided to or by the Client, or any end user. The Client hereby agrees to indemnify CWIE and hold CWIE harmless from any and all claims of whatever nature brought by any anyone against CWIE in excess of the remedy set forth herein.

The Client hereby agree to reimburse CWIE for any and all expenses including legal fees associated with CWIE being involved with any civil, criminal, regulatory or investigatory actions brought by the Client or against the Client by anyone, including expenses associated with providing information that CWIE, in its sole discretion, believes it legally must provide or has been authorized by the Client to provide. The Client also understand and agree that CWIE will deduct those expenses from monies due to the Client and the Client agree to reimburse CWIE for any expense that exceeds what CWIE is able to deduct from the Client’s account.

Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Client will have no authority to make or accept any offers or representations on our behalf. The Client will not make any statement, whether on the Client’s site or otherwise, that reasonably would contradict anything in this Section. Neither party is the agent of the other and CWIE expressly disclaims responsibility for any conduct by the Client in violation of our terms of Agreement.

Client and CWIE mutually agree that:

Client agrees that payment terms for the various services provided under this agreement may vary from service. CWIE will strive to provide a single invoice each month that combines the charges for all of the services provided, but cannot guarantee that that can always be accomplished. Client agrees to pay all invoices within the time specified in the Addendum to this Agreement for each service provided by CWIE. Client also agrees that if Client utilizes CWIE’s Transaction Processing Service, CWIE may deduct payment for all services provided under this agreement from the weekly check from the transaction settlement or chargeback reserve before remitting the payment to client.

This Agreement will continue until terminated by either party under the provisions above. CWIE may terminate this Agreement immediately and without notice if the Client violates the terms of this Agreement, it’s Acceptable Use Policies (AUP), its policies, or the law. CWIE may, at its sole discretion, suspend or cancel services for the Client’s account if it stays inactive for any consecutive ninety (90) day periods. Reinstatement of the Client’s account, after suspension or cancellation, will require CWIE approval.

The parties’ obligations under this Agreement are subject to, and neither party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control (“Force Majeure Event”). Notwithstanding the aforesaid, if a Force Majeure Event takes place and a party is materially hindered in the performance of its obligations under this Agreement or its normal business operations are delayed or become impossible, then, without limiting the hindered party's rights, the hindered party shall have the option, by giving the other party written notice, to suspend its obligations hereunder for the duration of any such contingency provided that such hindered party shall promptly upon discovery of the Force Majeure Event, use its commercially reasonable efforts to recommence performance of the affected obligations or provide an acceptable alternative to such services, provided that no such suspension shall exceed three (3) months. If any such suspension exceeds three (3) months, the non-hindered party shall have the right to terminate this Agreement at any time on written notice to the hindered party. No Force Majeure Event shall relieve a party of its payment obligations of any outstanding invoices and for services rendered prior to any Force Majeure Event hereunder by CWIE.

If any provision of this Agreement or its Addendums is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Client and CWIE agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.

This Agreement is governed by and construed under the laws of the State of Arizona and the United States of America. The federal and state courts of the State of Arizona will have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this Agreement.

A.	General. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled first, by good faith efforts of the parties to reach mutual Agreement, and second, if mutual Agreement is not reached to resolve the dispute, by final, binding arbitration as set out in paragraph (B) below.
B.	If there is a dispute, controversy, claim and/or disagreement concerning the interpretation, application or enforcement of or in any way arising under this Agreement or breach of this Agreement, CWIE and Client shall work together in good faith to resolve such disputes within thirty (30) days from the date of the disputed incident. If CWIE and Client fail to resolve a dispute within the aforementioned thirty (30) day period, either party may submit the dispute to arbitration. The arbitration will take place in Phoenix, Arizona before a single arbitrator under the auspices of the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules currently in effect at that time. Disputes must be submitted to arbitration prior to any state, federal or international court action. Arizona law will be applied in the arbitration and any other subsequent legal hearings.
C.	The arbitrator will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The arbitrator will render a written opinion setting forth the basis on which he or she arrived at the decision regarding each issue submitted to arbitration. The decision of each issue submitted to arbitration will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators, may be entered in any court having jurisdiction thereof.
D.	Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party will be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels.
E.	Injunctive Relief. The foregoing notwithstanding, each party shall have the right to seek injunctive relief in an applicable court of law or equity pending resolution of the dispute in accordance with the foregoing.

This Agreement and any Addendums and/or attachments and/or service orders hereto set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. The terms and conditions of this Agreement are posted at http://www.cavecreek.com/msa.php. CWIE reserves the right to change these terms and conditions by posting such changes at http://www.cavecreek.com. Continued use of CWIE’s service by Client following such changes constitutes acceptance by Client of the current terms and conditions.

Per applicable Service Order

Neither CWIE nor Client shall assign this Agreement or any interest therein, without the prior written consent of the other party, except in the event of the sale of all or the majority of either party’s stock or assets or in the event of other corporate reorganizations, which consent shall not be unreasonably withheld or delayed. Any assignment prohibited hereby shall be null and void.

For the Client’s own protection, the Client understands and agrees that CWIE will only accept changes and modifications to this Agreement or any Addendums that are in writing and signed by the individual(s) signing this Agreement.

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. We agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.

CWIE - Cavecreek Wholesale Internet Exchange
2353 W. University Dr.
Tempe, AZ 85281-7223

All orders are subject to acceptance by CWIE. You will receive email confirmation of CWIE’ acceptance of the Client’s order. CWIE may refuse to accept any order. Such refusal may not be unreasonable, however, and we agree to provide the Client with notice via email or fax of any intent to delay or decline the acceptance of any order.

You agree to pay all charges in advance for the service selected by the Client in the Customer Order Information form that is incorporated in these terms and conditions by reference including all monthly fees, additional product charges and optional charges incurred by the Client. Payment may be made by check, ACH, or credit card. You authorize us to automatically charge any amounts the Client owe to CWIE to any credit card provided by the Client. You also agree that if this Addendum becomes effective at any time after the 1st of the month, CWIE may prorate the next invoice to reflect a full month’s charges plus a sufficient number of days to have all subsequent billing periods start on the first of the month. Bandwidth usage above the minimum specified in the Customer Order Information Form is automatically billed for the month the usage occurs in the month following the usage. If CWIE provides notice of a price increase, the Client may cancel this Addendum if within the 30 day notification period, the Client notifies CWIE of the Client’s intent to cancel because of the increase.

Payment for service will be made in U.S. dollars to CWIE. The initial payment is due with this Addendum in the amount specified in Customer Order Information form. If payment in full of any invoice is not received by CWIE within thirty (30) days of invoice date, CWIE may impose a debt service charge amounting to one and one-half percent (1.5%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid or the maximum allowed by law which ever is lower. In the event that any amount remains unpaid for thirty (30) days after the date of the invoice, CWIE may at its discretion discontinue, withhold, or suspend service.

Shared Servers
CWIE will provide shared server hosting based on the information in the applicable Service Order Form and this Addendum. Your use of CWIE’s shared hosting services constitutes your agreement that you have read and agree to these Terms & Conditions and in the event of your breach of this agreement you agree that CWIE may take whatever actions necessary to satisfy any monies owed to CWIE including preventing the removal of any of your content residing on CWIE’s server

Dedicated (CWIE Owned) Servers
CWIE will provide its standard server configuration or, CWIE will build a server to the Client’s specifications as specified by the Client in the applicable Service Order. In either case, CWIE will charge the Client a one time lease fee based on CWIE’s cost of the components of the server as quoted to the Client at the time of the Client’s order. You do not own this server; however, the Client is responsible for the cost of maintaining and repairing the server. CWIE will pass on to the Client any component manufacturer’s warranties that may be applicable. CWIE may also charge the Client for its maintenance labor at the then prevailing hourly rate. You will be responsible for any component charges beyond manufacturer’s warranties required to repair the server. CWIE is not responsible for any down time or damages resulting from server maintenance or the lack there of. CWIE does not guarantee 24x7 maintenance and repair. CWIE is not responsible for monitoring the condition of the server, or automatically performing preventive maintenance of any kind. You are responsible for notifying CWIE of any server problems and must authorize CWIE to perform the required maintenance and repair. CWIE, at the Client’s request, may provide (but has in no obligation to do so) the Client with a quote before performing on call maintenance or repair. Additional servers not included on the applicable Service Order will be ordered on subsequent Service Orders which will become addendums to this agreement upon acceptance by both parties.



Co-located (Client Owned) Servers You will provide the Client’s own server or, CWIE may build (but has in no obligation to do so) a server to the Client’s specifications If CWIE builds the server, title will be transferred to the Client at the time the server is paid for. CWIE will pass on to the Client any component manufacturer’s warranties that may be applicable. You are responsible for the cost of maintaining and repairing the server. CWIE may charge the Client for any parts and maintenance labor at the then prevailing hourly rate if the Client requests service from CWIE. You will be responsible for any component charges beyond manufacturer’s warranties required to repair the server. CWIE is not responsible for any down time or damages resulting from server maintenance or the lack there of. CWIE does not guarantee 24x7 maintenance and repair. CWIE is not responsible for monitoring the condition of the server, or automatically performing preventive maintenance of any kind. You are responsible for notifying CWIE of any server problems and must authorize CWIE to perform the required maintenance and repair. CWIE at the Client’s request may provide (but has in no obligation to do so) the Client with a quote before performing on call maintenance or repair.

You also understand that for security reasons, CWIE has the right to enforce its own security polices which may exclude the Client from entering our data center facilities. In such cases, arrangements must be made in advance with CWIE to have the Client’s servers available at a place designated by CWIE. CWIE will cooperate with the Client to accommodate the Client’s needs to have access to the Client’s servers without compromising CWIE’s then existing security policies.

Additional servers not included on the initial Service Order will be ordered on subsequent Server Orders which will become addendums to this agreement upon acceptance by both parties.

CWIE will provide the service selected by the Client in the applicable Service Order.

CWIE will impose an Acceptable Use Policy regarding the Client’s use of its service. You agree to impose such policies on the Client’s customers to the extent necessary to ensure compliance. The current policy can be found at http://www.cavecreek.com/aup.php. CWIE may change any policy without prior notice to the Client. Violation of any provision of the Acceptable Use Policy (AUP) by the Client or the Client’s clients can result in the immediate termination of the Client’s service without notice.

This Addendum becomes effective upon acceptance the initial Service Order by CWIE It is for an initial term as specified in the applicable Service Order beginning from the date of CWIE’s acceptance. After the initial term this Addendum will automatically renew on its anniversary date for twelve (12) months. Either party may terminate this Addendum at the end of the initial term or each subsequent term by so notifying the other in writing no less than sixty (60) days prior to the renewal date.

All cancellations must be received in writing according to the above deadlines and the Master Services Agreement. On cancellation, the Client is responsible to remove the Client’s equipment and systems from the service.