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Overview
This Agreement states the terms and conditions by which Pugmarks will deliver and Customer
will receive any or all of the services provided by Pugmarks, including dedicated servers,
bandwidth, managed services and professional services. The specific services and/or products to
be provided hereunder are identified in the order Form or First Invoice are applicable to this
agreement. Pugmarks will provide the customer the services and/or products as described in the
order form or First invoice at the usage prices mentioned in Invoice.
Delivery of Services; Terms; Fees
By submitting an Order Form, or by verbally asking Pugmarks to provide services Customer
agrees to take and pay for, and, by accepting the Order Form / not disputing the first invoice
within 1 week of invoice date, Pugmarks agrees to provide, the Service's described in the order
form or the first invoice.
Supplemental Services: The purpose of this provision is to enable Pugmarks to provide Customer
with certain limited services and equipment needed by Customer on a one-off or emergency
basis (Supplemental Services) where such services are not included within the scope of the
Services as described in the order form / First invoice. All requests for Supplemental Services
should be made via the Pugmarks support system. Pugmarks will quote for the associated
charges and seek customer’s approval before providing any Supplemental Services. Customer
agrees to pay Pugmarks the fees charged by Pugmarks for Supplemental Services. Customer will
be charged for Supplemental Services upon delivery of such serives. Pugmarks will use
commercially reasonable efforts to provide Supplemental Services, provided that Pugmarks has
no obligation to determine the need for or provide Supplemental Services. All Supplemental
Services provided pursuant to this paragraph 2.1(b) are provided on an as-is basis and exclude
warranties of any kind, whether express or implied.
Term
Unless otherwise mentioned on the Order Form / First Invoice, all services are provided on a
month-to-month basis.
Payments
(a) Acceptable Payment Methods: Pugmarks accepts payments via:
Checks,Money Order and Banker’s Checks: Drawn in favor of Pugmarks. Checks should led to Accounts Receivable, Pugmarks, 1717 Park Street, Suite 110, Naperville, IL
60563.
Credit Cards: Pugmarks accepts American Express, Discover, Visa and Master Card.
Please note that on your credit card statement, charges would appear as either Pugmarks, Inc. or Pugmarks.
(b) Payment Terms:
All payments towards monthly services are due and payable on first day of each month. For
the new orders received on or before 15th of any month, prorated fee for the remainder of
that month along with setup charges (if any) would be due and payable on the day order is
placed. For the new orders received by Pugmarks after 15th of any month, prorated fee for
the remainder of that month, full fee for the next month and the setup charges (if any) would
be due and payable on the day order is placed.
All other charges for Services received and expenses incurred for Professional Services
during a month (e.g., bandwidth usage fees, server administration tasks) will be billed either
on the day service is delivered or at the end of the month in which the Services were
provided. Payment for all fees is due upon receipt of each Pugmarks invoice.
All payments should be made in US Dollars.
Late Payments:
Any payment not received within seven (7) days of the due date will be considered late and
would result in service interruption. Services interrupted due to late payments would be reinstated
only after receiving the overdue amounts in full, a re-connection fee of $50.00 and a
late fee of $25.00 or half (0.5%) of the outstanding amount whichever is higher.
Payments not received within fifteen (15) days would result in suspension of services. Upon
suspension of services, Pugmarks will have rights to decommission the equipment.
Pugmarks would not be responsible for any loss of data that may occur due to suspension of
services. Reactivation of suspended services would result in a charge of $100.00 or one (1%)
of the outstanding amount. Pugmarks reserves right not to reactivate a suspended account.
(c) Refunds and Disputes:
All payments to Pugmarks are nonrefundable. This includes the one time setup fee and
subsequent charges regardless of usage. All overcharges or billing disputes must be reported
within 60 days of the time the dispute occurred. If you dispute a charge to your credit card
issuer that, in Pugmarks sole discretion is a valid charge under the provisions of the TOS,
you agree to pay Pugmarks an "Administrative Fee" of not less than $50.00 and not more
than $150.00.
(d) Failure to Pay:
Pugmarks strongly suggests that to cancel your account, you follow the
Termination process. Pugmarks reserves the right to report any default in payment to a
collection agency.
Termination
Either party may terminate this Agreement by providing a written notice, at least thirty (30) days
but not more than sixty (60) days in advance to the other party. The Customer may send termination notice to Pugmarks either by:
Mailing the written request to Customer Service, Pugmarks, 1717 Park Street, Suite 110,
Naperville, IL 60563 Faxing the request to attention of Customer Service, Pugmarks at +1-630-579-1256 Submitting a ticket by logging on to the Customer’s area on the Pugmarks support system.
Neither party will be liable to the other for any termination or expiration of any Service or this
Agreement in accordance with its terms. However, if Customer terminates this Agreement, under
the terms that are not in accordance with the terms of this Agreement, Customer would be liable
to pay the balance monies payable to Pugmarks for the remaining term of the Agreement.
Taxes
All fees charged by Pugmarks for Services 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 Services, all of which
Customer will be responsible for and will pay in full, except for taxes based on Pugmarks net
income.
Title
The Pugmarks Supplied Equipment shall always remain the personal property of Pugmarks.
Customer shall have no right or interest in or to the Pugmarks Supplied Equipment except as
provided in this Agreement and shall hold the Pugmarks Supplied Equipment subject and
subordinate to the rights of Pugmarks. Customer will, at its own expense, keep the Pugmarks
Supplied Equipment free and clear from any liens or encumbrances of any kind (except any
caused by Pugmarks) and will indemnify and hold Pugmarks harmless from and against any loss
or expense caused by Customer's failure to do so. Customer shall give Pugmarks immediate
written notice of any attachment or judicial process affecting the Pugmarks Supplied Equipment
or Pugmarks ownership. Customer understands and agrees that Pugmarks does not guarantee
and will not be responsible for any performance related issues Customer my experience by using
Pugmarks Supplied Equipment.
Security Breach
Customer agrees that the security of its account is solely its own responsibility. Customer
understands that Internet and other various networking communication medium are not secure,
unless explicitly specified as such, and may be subjected to interception or loss. Pugmarks
makes no warranties of any kind, express, implied or statutory concerning the data or information
available through the Pugmarks' network. In no event will Pugmarks be liable to the customer for
any indirect, incidental or consequential damages arising out of the services or any products
provided under this agreement, even if the company has been advised of the possibility of such
damages. Customer further agrees that if it believes the security of its account has been
compromised in any way, it will notify Pugmarks immediately by telephone at 630-579-1256 and
in writing by registered mail return receipt requested to Pugmarks Inc , 1717 Park Street, Suite
110, Naperville, IL 60563. Customer shall be held fully responsible for any misuse or compromise
to its account for which Pugmarks is not properly notified. Customer agrees that if any security
violations are believed to have occurred in association with its account, Pugmarks has the right to
suspend access to the account pending an investigation and resolution. Customer also agrees
that Pugmarks has the right to co-operate in any government or legal investigation regarding any
aspect of its services, including services sold to Customer.
In case of customer being delinquent on its payment for services provided by Pugmarks,
Pugmarks has full right to deny access to, stop services and posses / assume title of Customer's
equipment and its contents and sell it to recover the payable amount to Pugmarks.
Limitations of Liability.
In no event will Pugmarks would be liable or responsible 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.
The parties acknowledge that Pugmarks 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.
Indemnification
Customer will indemnify, defend and hold the other harmless from and against any and all costs,
liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees)
(collectively) resulting from any claim, suit, action, or proceeding (each, an "Action") brought by
any third party against the other or its affiliates alleging
- the infringement or misappropriation of any intellectual property right relating to the
delivery or use of the Service's (but excluding any infringement contributory caused by
the other party); and,
- any violation of or failure to comply with the Rules and Regulations. Customer will
indemnify, defend and hold Pugmarks, its affiliates and customers harmless from and
against any and all Losses resulting from or arising out of any Action brought against
Pugmarks, its affiliates or customers alleging any damage or destruction to the Customer
Area, the Internet Data Centers, Pugmarks equipment or other customer equipment
caused by Customer, its Representative's or designees.
Miscellaneous Provision
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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, 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 Pugmarks).
- Marketing: Customer agrees that during the term of this Agreement Pugmarks may publicly
refer to Customer, orally and in writing, as a Customer of Pugmarks. Any other reference to
Customer by Pugmarks requires the written consent of Customer.
- Non-Solicitation: During the Term of this Agreement and continuing through the first
anniversary of the termination of this Agreement, Customer agrees that it will not, and will
ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment
any persons employed by Pugmarks or contracted by Pugmarks to provide Services to
Customer.
- No Third Party Beneficiaries: Pugmarks and 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 Customer.
- Governing Law; Dispute Resolution: This Agreement is made under and will be governed by
and construed in accordance with the laws of IL USA. 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. 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. 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 Chicago, USA.
Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment
remedies, and claims for Customer's failure to pay for Services in accordance with this
Agreement may be brought in a court of law over the subject matter and parties.
- Severability Waiver: 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.
- Assignment: This Agreement shall not be assignable by Customer without Planet’s prior
written consent. Planet may assign the Agreement in whole or in part. This Agreement shall
be binding upon and accrue to the benefit of any permitted assignee, and any such assignee
shall agree to perform the obligations of the assignor.
- Notice: Any notice or communication required or permitted to be given hereunder may be
delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or
mailed by registered mail, return receipt requested, postage prepaid, in each case to the
address of the receiving party as listed on the latest invoice or at such other address as may
hereafter be furnished in writing by either party to the other party. Such notice will be deemed
to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is
earlier.
- Relationship of Parties: Pugmarks and Customer are independent contractors and this
Agreement will not establish any relationship of partnership, joint venture, employment,
franchise or agency between Pugmarks and Customer. Neither Pugmarks 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.
Authorized representatives of Customer and Pugmarks have read the foregoing and all
documents incorporated therein and agree and accept such terms effective as of the date
first above written.
CUSTOMER
Signature: Not required if the order form is signed or the first invoice is not disputed in writing
by the customer.
Name:
Title:
Date:
PUGMARKS
Signature: Not required if the order form is signed or the first invoice is not disputed in writing
by the customer.
Name:
Title:
Date:
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