This Co-location Agreement ("Agreement") is by and between InfoQuest Technologies, Inc., a/an Pennsylvania corporation ("INFOQUEST"), and you and your heirs, assigns, agents and contractors (collectively, "You") and is effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of INFOQUEST's Co-location Server services (collectively, the "Co-location Services") and represents the entire agreement between You and INFOQUEST. By using INFOQUEST's Co-location Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies, including, but not limited to, the Universal Terms of Service that INFOQUEST may establish from time to time.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with INFOQUEST, whether or not the transactions were on Your behalf. You acknowledge that INFOQUEST’s acceptance of any application made by You for Services provided by INFOQUEST will take place at INFOQUEST’s offices located in Harrisburg, Pennsylvania, USA.
BACKGROUND
INFOQUEST is a provider of Internet access, network transport, and co-location services. You desire to obtain such services from INFOQUEST under the terms of this Agreement.
DEFINITIONS
As used in this Agreement, capitalized terms shall have the meaning ascribed to them, or as indicted below:
Agreement
This Internet Access and Co-location Agreement, together with the Order Form, and together with any and all other Exhibits, Order Forms, or schedules attached hereto; all of which are incorporated herein by reference, as any or all of the foregoing may be amended or extended from time to time.
INFOQUEST Network
The telecommunications network and network components owned, operated, used, or controlled by INFOQUEST, including INFOQUEST's fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by INFOQUEST to provide the Services. Where INFOQUEST services a building through its own facilities, the INFOQUEST Network includes those facilities. The INFOQUEST Network does not include Your premises equipment, telephony circuits ordered by You, and any networks or network equipment not operated and controlled by INFOQUEST.
Data Center
The facilities located in Harrisburg, Pennsylvania (or any other location specified by INFOQUEST) when the Space is made available to You.
Equipment
Your equipment, if any.
Force Majeure
Causes beyond a Party's control, including but not limited to: acts of God; fire; explosion; vandalism; cable cut; storms; flood or other similar occurrences; any law; order, regulation, direction, action or request of any government, including federal, state, provincial, municipal and local government clamming jurisdiction over a Party or the Service, or of any department, agency, commission., bureau, corporation, or other authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots; terrorist acts or wars (declared/undeclared); or strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays.
Initial Costs
Greater of (a) installation fees (if not paid); or (b) all third-party costs and charges to INFOQUEST on behalf of You for the Service, including but not limited to local loop fees, cross-connect charges, and wiring fees.
Initial Term
Initial length of term of the Services as specified by the Order Form commencing on the date the Order Form is executed.
Losses
Costs, fees, liabilities, losses, damages, or penalties, including reasonable legal fees.
Order Form
Form(s) completed through the INFOQUEST web site, identifying the specific Service(s) to be delivered.
Party or Parties
INFOQUEST and/or You
Renewal Term
Subsequent length of term for the Services, as specified by the Order Form, after completion of the Initial Term.
Services
Internet access, network transport services, or co-location services provided by INFOQUEST under this Agreement.
Service Date
Date Order Form is executed.
Space
Rack space in the Data Center which is rented from INFOQUEST.
Tax or Taxes
All taxes arising in any jurisdiction, including without limitation all: sales, sue, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on INFOQUEST or for which INFOQUEST is permitted to invoice You in connection with
INFOQUEST’s performance under this Agreement. Taxes do not include INFOQUEST’s income taxes.
Termination Charges
Single payment equal to any third-party cancellation charges and the total remaining dollar value of the applicable Service order through the Initial Term or any Renewal Term.
ARTICLE 1 SERVICES AND FEES
1.1) Pursuant to this Agreement, INFOQUEST will provide the Services to You for the Service charges specified in the Order Form. Your execution of the Order Form or use of the Service or INFOQUEST Network constitutes Your acknowledgement and agreement to be bound by this Agreement
1.2) You will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Tern, this Agreement will renew for successive Renewal Terms until terminated as provided herein.
1.3) If agreed upon by INFOQUEST, You may order additional Services or locations in North America through additional Order Forms, which will be governed by this Agreement. Your account must be current in order to make changes to Services or order additional Services
ARTICLE 2 CO-LOCATION SERVICES
2.1) Except for INFOQUEST's assistance in identifying the Space and applicable rack(s), You, at Your own expense, are solely responsible for Yourself, or Your third party agents, to order, deliver, unpack, and install the Equipment for use in the Space. You are required to provide INFOQUEST with at least 24-hours notice of the expected delivery and installation date.
2.2) Under this Agreement INFOQUEST, grants You a non-exclusive license to install, operate, maintain and access the Equipment in the Space as of the Service Date. INFOQUEST reserves all rights not specifically granted to INFOQUEST under such licenses, including the right to access the Space in emergency situations. As approved in advance in writing by INFOQUEST, You shall provide INFOQUEST with at least twenty-four (24) yours prior written notice of its intentions to gain access to the Space, together with the names of the authorized individuals who will have access. No photo equipment, video or voice recording equipment, food or drink, or hazardous material shall be brought into any Data Center. Use of such items may result in a suspension or termination of access rights.
2.3) INFOQUEST shall limit access to the Space and take reasonable security efforts to prevent access to the Space. Authorized representatives may need to be accompanied. Such escorting may result in standard escort charges. Your authorized representatives found in unauthorized areas may have access rights suspended or terminated. The Data Center is staffed 24 x 7 x 365, and all INFOQUEST Data Centers have biometric access, access documentation, and surveillance cameras.
2.4) INFOQUEST provides, two (2) per full rack or one (1) per half rack, continuous 24 x 7 non-switchable, single phase, 3 wire individually fused circuits, 120 VAC, 60 Hz, 20 Ampere. All racks are backed up by fully redundant Uninterruptable Power Supply (UPS) system that condition power and protect servers from short-term power outages and surges. The INFOQUEST Data Centers have diesel-powered generators that provide a minimum of three (3) days auxiliary power in the event of a major power failure, and may be refueled while operating. The INFOQUEST Data Center fire suppression control include smote detection, gas suppression, and dry-pipe (2-state) sprinkler systems. The INFOQUEST Data Center air conditioning uses HVAC cooling systems.
2.5) Notwithstanding the provisions of Section 2.4 of this Agreement, You shall at all times before, during and after the term of this Agreement bear the entire risk of loss, damage, or destruction of the Equipment or data or any part thereof, from any and every cause whatsoever, excluding gross negligence or willful misconduct by INFOQUEST.
2.6) In the event of an emergency that presents a substantial risk of a service outage, or damages to equipment or data belonging to INFOQUEST, a third party, the Data Center, or to any persons or property present therein, INFOQUEST may rearrange Your Equipment (with the same care used by INFOQUEST in rearranging its own equipment) as is reasonably necessary to respond to the emergency; and only as necessary, INFOQUEST may disconnect Equipment if the emergency requires such disconnection to avoid damage. INFOQUEST shall use commercially reasonable efforts to notify You prior to rearranging the Equipment or disconnecting the Equipment, and in any case will notify thereafter. INFOQUEST will return the Equipment to the original Space (if rearranged) or re-connect the Equipment as soon as reasonably practicable given the emergency.
2.7) If You request relocation of the Equipment to another part of the Data Center, such relocations must be approved by INFOQUEST and performed by You or Your agent at Your own expense. INFOQUEST is not responsible for network access disruptions caused by Equipment relocation requirements. Further, should You request additional co-location Space after the initial order, and should You require that the original Space ordered and the new Space order be contiguously located (i.e., the two Spaces are next to each other), You may be required to move Equipment to a different location within the Data Center, at Your own expense.
2.8) Except as provided below, You must remove from the Data Center all items of Equipment located in the Space within ten (10) days of the date of termination of this greement. In the event the Equipment is not removed, such Equipment will be considered abandoned, and INFOQUEST may, without liability to You, remove the Equipment and charge You for such secured storage costs, plus any past due Service charges. Acknowledging that INFOQUEST is providing Services in expectation of payment, in the event of Your default and refusal to pay liquidated damages, or following any termination for non-payment of Service charges, INFOQUEST may deny You access to the Space, and itself remove Equipment. If payment of amounts owed is not made within a thirty (30) day period, INFOQUEST may exercise all rights of ownership over such Equipment
2.9) You shall provide proof of insurance prior to installation of Equipment in the Space and maintain such insurance at all times during the Initial Term and any Renewal Term of this Agreement and during any ten (10)-day removal period of the Equipment. Proof of insurance shall be provided by delivery of certificates of insurance to INFOQUEST showing the following types of insurance, in the following minimum amounts, which insurance shall be issued by companies which have a Best’s Key Rating of at least A-1: (a) Worker’s compensation insurance complying with the law of the state in which each Space used by You is situated, regardless of whether You are required by such law to maintain worker’s compensation insurance, and employer’s liability insurance with the limit of $1 million per occurrence; (b) Occurrence form commercial general liability insurance including coverage for personal injury, bodily injury, death, contractual liability and broad form property damage, including loss of use of property, occurring in the course of or in any way related to Your operations, in the amount not less than 1 million combined single limit per occurrence; (c) Standard form property and casualty insurance insuring against the perils of fire, vandalism, and malicious mischief extended coverage (all risk) covering Equipment located in the Space in an amount not less than its full eplacement value; (d) Professional liability insurance (including Multimedia Errors and Omissions insurance) including coverage for losses attributable to damage, destruction, and/or fraudulent modification of electronic data; and (e) Excess or umbrella liability coverage with a combined single limit of $1 million per occurrence to be excess of (a) and (b). INFOQUEST and its landlord for each Data Center shall not insure or be responsible for any loss or damage to property of any kind owned or leased by You or Your employees, servants, and agents, including but not limited to the Equipment. The maintenance of insurance by You shall not affect or limit the extent of Your liability under this Agreement. INFOQUEST, except in the case of worker’s compensation insurance, shall be named as an additional insured on the policies required above. The certificates of insurance shall show that the insurance is prepaid, and in full force and effect and that such insurance shall not be cancelled, non-renewed or decreased, during the Initial Term or any Renewal Term of the Agreement or during any ten (10)-day removal period, without at least thirty (30) days written notice to INFOQUEST. Any insurance policy covering the Equipment against loss or physical damage shall provide that such insurance shall be rimary and noncontributing with any other insurance available to INFOQUEST.
ARTICLE 3 SERVICE CHARGES AND BILLING
3.1) Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a prior Service location remains installed after a new Service location is installed, You will be responsible for Service charges for both Service locations until terminated as provided for each Service.
3.2) Invoices are sent monthly in advance. You agree to pay all charges and applicable Taxes for the Service upon receipt of the invoice without counterclaim, set-off or deduction. A late charge shall be added to Your past due balance of the lesser of 1.5% per month or the maximum legal rate. INFOQUEST may change the specifications, provisions of this Agreement, or charges for the Service for ny Renewal Term by providing You at least thirty (30) days advance notice. You agree that Your obligation to pay the Service charges and Taxes under this Agreement shall survive the termination of this Agreement.
3.3) If You claim tax exemption, You must provide INFOQUEST with a properly executed exemption form.
ARTICLE 4 SERVICE USE AND INTERRUPTION
4.1) Your use of INFOQUEST’s Services or INFOQUEST Network may only be for lawful purposes, and You shall at all times comply with applicable laws. Transmission of any material in violation of any law or regulation is strictly prohibited. Access to other networks connected to INFOQUEST’s Network must comply with such other networks’ rules.
4.2) You shall not engage in any of the following activities or practices (collectively, the Use Policies): (a) posting, transmission, re-transmission, or storing materials on or through any of INFOQUEST’s products or services, if in the sole judgment of INFOQUEST such posting, transmission, re-transmission or storage is (i) in violation of any local, state, federal, or non-United States law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations), (ii) threatening or abusive; (iii) obscene; (iv) indecent; or (v) defamatory; (b) installation or distribution of “pirated” or other software products that are not appropriately licensed for use by You; (c) resale of INFOQUEST’s products and services without the express prior written consent of INFOQUEST; (d) deceptive marketing practices; (e) actions that restrict or inhibit anyone – whether a customer of INFOQUEST or otherwise – in his or her use or enjoyment of INFOQUEST’s products and services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of Internet services; (f) introduction of malicious programs into the INFOQUEST Network or servers or other products and services of INFOQUEST (e.g., viruses, Trojan horses and worms); (g) causing or attempting to cause security breaches or disruptions of Internet communications (such as, for example, accessing data of which You are not an intended recipient, or logging into a server or account that You are not expressly authorized to access, port scans, flood pings, packet spoofing, and forged routing information); (h) executing any form of network monitoring that will intercept data not intended for You; (i) circumventing user authentication or security of any host, network or account; (j) interfering with or denying service to any user other than Your host (e.g., denial of service attack); (k) using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session; (l) failing to comply with INFOQUEST’s procedures relating to the activities of Your on INFOQUEST-owned facilities; (m) furnishing false or incorrect data on the Order Form, including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document “use” of INFOQUEST’s products or services; (n) sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of Yours or with whom You do not have an existing business relationship (e.g., E-mail “spam”); or distributing, advertising or promoting software or services that have the rimary purpose of encouraging or facilitating unsolicited commercial E-mail or spam; (o) harassment, whether through language, frequency, or size of messages; (p) unauthorized use or forging of mail header information; (q) solicitations of mail or any other E-mail address other than that of the poster’s account or service, with the intent to harass or collect replies; (r) creating or forwarding “chain letters” or other “pyramid schemes” of any type; (s) use of unsolicited E-mail originating from within the INFOQUEST Network or networks of other Internet service providers on behalf of or to advertise any service hosted by INFOQUEST or connected via the INFOQUEST Network; and (t) exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United States or without all required approvals, licenses and exemptions. No failure or delay in exercising or enforcing these Use Policies shall constitute a waiver of the Use Policies or of any other right or remedy. If any provision of the Use Policies is deemed unenforceable due to law or change in law, such a provision shall be isregarded and the balance of the Use Policies shall remain in effect. The Use Policies may be modified by INFOQUEST at any time without notice to You.
ARTICLE 5 TERMINATION, RESTRICTION OR SUSPENSION
5.1) Prior to the Service Date, INFOQUEST may terminate this Agreement if not approved by INFOQUEST corporate management (including credit check). INFOQUEST also may restrict, suspend or terminate this Agreement, Your use of or access to any Service, or both, at any time if (a) You are in material breach of this Agreement (including but not limited to the Use Policies) and, in INFOQUEST’s sole judgment, an immediate restriction or suspension is necessary to protect the INFOQUEST Network or INFOQUEST’s ability to provide services to other customers; or (b) Your account is unpaid forty-five (45) days after date of invoice; (c) INFOQUEST's facilities are unavailable (i.e., no connectivity and building access); or (d) INFOQUEST’s agreement(s) with its Internet access service, network transport services, or co-location services provider is amended, restricted, suspended, or terminated.
5.2) Either Party may terminate this Agreement: (a) at the end of an Initial Term or Renewal Term by providing the other Party with at least thirty (30) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20th is effective June 1st); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same.
5.3) If the Service is terminated prior to the Service Date, You shall pay INFOQUEST for all Initial Costs for Your Service order. If the Service is terminated after the Service Date, You shall pay INFOQUEST (a) for the Service up through the date of termination; and (b) except in the case of termination by You as provided in Section 5.2 above, or by INFOQUEST due to loss of connectivity or building access at INFOQUEST’s building(s) under Section 5.1(c) above, the Initial Costs (unless already paid) and the Termination Charge. You acknowledges that because actual damages to INFOQUEST caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to You at INFOQUEST’s then-prevailing rates.
5.4) If You defaults in any of Your payment obligations under this Agreement, You agree to pay INFOQUEST’s reasonable expenses, including but not limited to legal and collection agency fees, incurred by INFOQUEST in enforcing its rights. All termination notices by You must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to INFOQUEST’s address as indicated on the InfoQuest, marked, “Attn: President.”
ARTICLE 6 DISCLAIMER OR WARRANTY AND LIMITATION OF LIABILITY
6.1) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER INFOQUEST NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS AGREEMENT OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. INFOQUEST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. INFOQUEST DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY YOU OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
6.2) WITHOUT PREJUDICE TO OR LIMITING OF INFOQUEST’S RIGHT TO RECEIVE PAYMENT FOR SERVICES, INFOQUEST’S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN YOU AND INFOQUEST, AND THE PROVISION BY INFOQUEST OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY YOU FOR THE SERVICE AT ISSUE IN THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) FIFTY THOUSAND DOLLARS ($50,000.00) IN TOTAL; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY INFOQUEST, OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED UNDER APPLICABLE LAW.
6.3) YOU RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO INFOQUEST’S CONTROL. YOU AGREE THAT INFOQUEST SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO INFOQUEST’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF YOUR INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. INFOQUEST SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF YOU OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). INFOQUEST IS NOT LIABLE FOR ANY BREACH OF SECURITY ON YOUR NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE THAT YOU WILL NOT HOLD INFOQUEST RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM INFOQUEST MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, INFOQUEST IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT YOU WILL NOT HOLD INFOQUEST RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST INFOQUEST FOR DAMAGES, (B) LOSS OF OR DAMAGE TO YOUR RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO YOU ASSOCIATED WITH THE INOPERABILITY OF YOUR EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE INFOQUEST NETWORK. YOU AGREE TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST INFOQUEST, AND WAIVE ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
6.4) NEITHER INFOQUEST NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO YOU, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
6.5) NO ACTION OR PROCEEDING AGAINST INFOQUEST MAY BE COMMENCED BY YOU MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND YOU ACKNOWLEDGE THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.
ARTICLE 7 INDEMNITY
7.1) You will indemnify, defend and hold harmless INFOQUEST and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance or breach by You with respect to Your obligations under this Agreement; (b) from any and all claims by any of Your customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that You will have no obligation to indemnify and defend INFOQUEST against claims for damages for bodily injury or death caused by INFOQUEST’s gross negligence; or (c) from claims of copyright, patent, trademark or service mark infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement or violation of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by You or by any of Your customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by You or by any of Your customers or authorized end users, or (iii) the use of Service(s) by You in any manner inconsistent with the terms of this Agreement, including without limitation the Use Policies.
ARTICLE 8 ADDITIONAL PROVISIONS
8.1) Except as to payment obligations of You, neither Party shall have any claim or right against the other Party for any failure of performance due to Force Majeure.
8.2) Neither Party is the agent or legal representative of the other Party, and this Agreement does not create a partnership, joint venture or fiduciary relationship between INFOQUEST and You. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This Agreement confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, Your subscribers or end users.
8.3) This Agreement for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its choice of law principles. Any action arising out of or related to this Agreement shall be brought in the District or Federal courts located in the Commonwealth of Pennsylvania, and You consent to the jurisdiction and venue of such courts.
8.4) Notices, if required, must be sent in writing by e-mail, courier or first class mail (postage prepaid) to the appropriate contact point indicated in this Agreement , and are considered made when received at that address. In the event of an emergency, INFOQUEST may only be able to provide verbal notice first; such verbal notice will be followed by written notice. You are responsible for accuracy of Your information on the Order Form.
8.5) You may not assign this Agreement without INFOQUEST’s prior written consent, which consent shall not unreasonably be withheld. Any such assignment without INFOQUEST’s prior written consent shall be void.
8.6) The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this agreement, shall survive the termination of this Agreement.
8.7) The INFOQUEST Network is owned by INFOQUEST, or its licensors, and is protected by copyright, patent, trademark and service mark, and other intellectual property laws. You agree that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by INFOQUEST. You shall be entitled to only such rights with respect to the Service as are specifically granted herein.
Revised: 11/16/2007