CloudScale365, Inc. Terms of Service
By execution of a CloudScale365 Group, Inc. (“CS365”) Service Order, the party identified as the customer/client on the signature page to the Service Order (“Client”) accepts and agrees to, and intends to be legally bound by, these Terms of Service (also referred to as the “Agreement”).
CS365 may change these Terms of Service from time to time, effective upon notice to Client that an updated version is available on https://www.cloudscale365.com.
1. Managed Services. During the term of this Agreement, CS365 shall provide to Client the services described in the Service Order that accompanies this Agreement (together with any other Service Orders entered into by the parties each, a “Service Order” and, collectively, “Service Orders”) (any CS365 services set forth as such in a Service Order or otherwise ordered or used by Client from time to time, the “Services”). The Services include the technical support services and other technical services described in Exhibit A.
2. Charges and Payment Terms. In consideration for the Services, Client shall pay to CS365 the charges set forth in the Service Order (together with any and all charges in the Service Orders or otherwise payable by Client under this Agreement, “Charges”). All Setup Fees and One-Time Charges, together with the Monthly Charges for the month of Service commencement, shall be due upon execution of this Agreement (and in any event in advance of Service provisioning). Monthly Charges (other than usage based or hourly Charges) shall be invoiced by CS365 in advance for each month and shall be paid by Client within thirty (30) days of the invoice date. All other Charges (including usage based or hourly Charges) shall be paid as invoiced by CS365. Charges shall be paid by Client without setoff or deduction. In addition to any other rights or remedies, CS365 may charge and collect a late fee on any unpaid amount due equal to one and one-half percent (1 and 1/2 %) of such amount for each month or partial month (or, if less, the maximum lawful interest rate). Client shall be liable for all costs and expenses (including reasonable attorney fees) incurred by CS365 in connection with collecting any Charges or enforcing its rights under this Agreement. In the event CS365 provides any addition or modification to the Service requested or put in use by Client, Client shall pay Charges for such addition or modification determined by CS365.
3. Taxes. The Charges set forth on the Service Order do not include any applicable sales, use, utility or other taxes, or regulatory or governmental taxes, however designated. CS365 may charge Client, and Client shall pay as invoiced by CS365, all applicable taxes that CS365 may be required or permitted to collect or pay (other than taxes based on CS365’s net income). CS365 may also pass-through to Client for payment or reimbursement any regulatory or government taxes. Any delay by CS365 in charging or collecting any such tax shall in no way release Client of its obligations under this Section 3.
4. Expenses. Client shall pay directly or reimburse CS365, at CS365’s election, for all reasonable expenses, including goods and services obtained through third parties (which shall be paid by or invoiced to Client at CS365’s cost), incurred by CS365 in performing the Services, including travel expenses required to provide Services at Client’s location(s).
5. Client Responsibilities
- General. Client shall have the additional responsibilities, and the parties shall comply with and perform the covenants and provisions, set forth in Exhibit B.
- Client Data
- Client will have sole responsibility and liability for all aspects of Client Data (defined below), including its accuracy, quality, integrity, legality, reliability, appropriateness, use and copyright. CS365 will not be responsible or liable for any such matters, and Client acknowledges that CS365 will exercise no control whatsoever over Client Data. “Client Data” means data or information that, through Client’s or its users’ use of the Services or otherwise from Client’s systems, software or applications, is provided to or on, or posted, transmitted, received or stored through, CS365 Infrastructure (defined below), including through third party applications hosted by CS365. For clarity, Client Data does not include information that originates in the Services, including metadata or analytics, or that is based on or derived by CS365 from Client Data, so long as such information does not include information that identifies an individual (“System Data”). “CS365 Infrastructure” means software, applications, facilities, servers and other products, equipment or services utilized by CS365 to provide the Services, including those of third parties (including data centers, cloud computing platforms, other web services, and applications provided by third parties).
- Client acknowledges that Client Data will be collected by Client and provided by Client and its users to the CS365 Infrastructure or third party applications hosted by CS365 as part of the Services. Client grants to CS365 the right to use, process, transmit, and subcontract the processing of Client Data for the purpose of CS365’s provision of the Services, including by providing Client Data to or through third party providers of applications, facilities or services in connection with the Services, or for any other purpose reasonably related to CS365’s business.
- System Data is and will be the property of CS365. CS365 will have exclusive ownership of all intellectual property (and related intellectual property rights), materials, technology, ideas, inventions or other work product or information that are conceived or developed by CS365 in the course of providing the Services. Client assigns to CS365, without further consideration, all right, title and interest of Client in or to any of the foregoing and in or to any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its users relating to the Services.
- Equipment Warranty. All equipment procured by or through CS365 is provided “as is”, and CS365 makes no warranties with respect to any such equipment. Client acknowledges and agrees that its use of such equipment shall be exclusively subject to and controlled by the terms of any manufacturer’s or supplier’s warranty, and Client agrees that the manufacturer or supplier (and not CS365) shall be responsible for all mechanical, service and other claims. Client will use the equipment solely for Client’s own, internal business purposes and in compliance with the manufacturers or supplier’s suggested guidelines.
- Service Level Warranty. Subject to the terms and conditions set forth in this Agreement, including those set forth in Exhibit C, CS365 warrants that the Services set forth as Warranty Services in Exhibit C (the “Warranty Services”) will perform in accordance with the standards set forth in Exhibit C. CS365 makes no warranty regarding any of the Services that are not Warranty Services. Other than as expressly set forth in Exhibit C, CS365 makes no warranty with regard to Service Performance (defined below). “Service Performance” means any performance or nonperformance of any Service or any component thereof, or any downtime, outage, interruption, availability, malfunction, error or system failure relating to any Service or any component thereof, or any inability to use or access all or part of the Services, or any loss, compromise, corruption or inaccuracy of data.
- Backup and Recovery Warranty. If orders CS365 backup service, CS365 warrants that it will maintain CS365 Infrastructure for the backup and recovery aspects of such Services that is consistent with commercial practices of comparable service providers of similar services under similar conditions, designed to provide backup and recovery of Customer Data that is hosted through such Services in the event of a material disruption in Service Performance. Except for breach by CS365 of this Section 6.3, if applicable, or for CS365’s gross negligence or willful misconduct, CS365 makes no warranty, and will have no responsibility or liability, with regard to backup, recovery, loss, compromise, corruption or inaccuracy of Client Data.
- Data Security Warranty. CS365 warrants that it will maintain CS365 Infrastructure to host Microsoft or other third party services or applications that process or manage Client Data that is consistent with commercial practices for comparable service providers of similar services under similar conditions. CS365 does not warrant that the the CS365 Infrastructure, the Services, or any component thereof will prevent accidental, unauthorized or unlawful use, access to, or acquisition, disclosure, modification or loss of Customer Data (“Data Breach”). Except for breach by CS365 of this Section 6.4 or for CS365’s gross negligence or willful misconduct, CS365 makes no warranty, and will have no responsibility or liability, with regard to the security of Client Data or otherwise relating to or arising out of any Data Breach. Notwithstanding anything to the contrary, if a Data Breach results from CS365’s breach of this Section 6.4, then CS365 will be responsible for the costs of complying with applicable laws regarding or otherwise remediating the breach, subject to Section 16, and if the Data Breach did not result from CS365’s breach of this Section 6.4, then Client will be responsible for the costs complying with applicable laws regarding or otherwise relating to the Data Breach.
- Except for the express warranties stated in Section 6.1, Section 6.2, Section 6.3 and Section 6.4, CS365 does not make, and hereby disclaims, to the full extent permitted by law, any and all express or implied (by operation of law or otherwise) or statutory warranties, including warranties of merchantability, fitness for a particular purpose, noninfringement or title, and any warranties arising from a course of dealing, usage or trade practice. Except for such express warranties, the Services are provided on an “as is” and “as-available” basis, and Client’s use of the Services is at its own risk. CS365 does not warrant that the Services will meet Client’s requirements. There is no warranty of security or against interference with the use of the Services. CS365 disclaims all warranties and liability as to third party software, applications, facilities, servers and other products, equipment or services (other than any third-party services that are Warranty Services as set forth in Section 6.2), even if any may be included in the Services. CS365 may select, discontinue, add or substitute any third-party services to be included in the Services. Except for the express warranty for Warranty Services set forth in Section 6.2, CS365 shall have no liability arising out of any act or omission of any person or entity other than CS365. Without limiting the foregoing, CS365 will not be responsible or liable for any Data Breach arising out of any third party software, applications, facilities, servers and other products, equipment or services or any component of the CS365 Infrastructure that is not controlled by CS365. Client may not rely on any statement to the contrary by any person. Any oral or written representation or warranty not expressly contained in this Agreement shall not be enforceable by Client. Client hereby waives all Damages (defined below) based on any of the foregoing.
- The warranties in this Section 6 shall not apply and shall terminate immediately, without notice or other action by CS365, (i) if Client ceases to continue the applicable Warranty Service, (ii) if any modification, alteration or addition has been made to the Services or any of its components other than by CS365, (iii) in the event of use of the Services in any manner that is inconsistent with this Agreement, (iv) in the event of any breach of this Agreement by Client, and (v) in the event of circumstances not under the management and control of CS365, including force majeure, failure of Client equipment, software or supplied services,or any negligence or other act or omission of Client, its shareholders, members, directors, managers, officers, employees or other personnel, agents or representatives (“Representatives”) or any other person or entity.
7. Exclusive Remedies
- General. The express remedies stated in this Section 7 constitute Client’s sole and exclusive remedies under this Agreement or otherwise, to the full extent permitted by law. Except for CS365’s obligations under this Section 7 and Section 14.1 (indemnification), CS365 shall have no liability or obligation whatsoever to Client, and Client hereby waives all other rights, remedies and Damages it may have against CS365.
- Exclusive Remedy for Service Performance. Upon a breach of warranty set forth in Section 6.2 and written notice from Client thereof, Client’s sole and exclusive remedy shall be to receive the applicable credits set forth on Exhibit C. The foregoing shall constitute Client’s sole and exclusive remedy in connection with any System Performance (including any arising out of any act or omission of CS365), including System Performance of any Service or component thereof that is not a Warranty Service, provided that, Client shall have the right to terminate this Agreement as provided in Section 12.1(i).
8. Confidentiality. Each party shall maintain in confidence, protect and safeguard information of the other party disclosed by such party (and not, for example, Client Data or any other information of Client that may be managed or secured by the Services or CS365 Infrastructure, which shall be governed by Section6.3 and Section 6.4) which is not generally known or available to the public or any competitor of such party or which is otherwise confidential, proprietary or trade secret information of such party (whether or not in written, tangible or electronic form or identified as confidential when disclosed), including the terms and conditions of this Agreement (“Confidential Information”). Each party shall not, directly or indirectly, (i) disclose, reveal or make available to any third party any Confidential Information, (ii) assist or enable any third party to access or use any Confidential Information, or (iii) use or exploit any Confidential Information for any purpose whatsoever, provided that, each party may disclose Confidential Information to its representatives, agents, employees, contractors and subcontractors for the purpose of providing the Services under this Agreement. Each party may disclose Confidential Information to the extent (and only to the extent) required by applicable law (including by request for information or documents through legal proceedings, subpoena, governmental investigation or any similar process) without liability hereunder, but only if prior to making such disclosure the other party has been given written notice of such required disclosure and a reasonable opportunity to seek a protective order or other appropriate assurance that confidential treatment will be accorded. All materials in which Confidential Information of a party may be contained shall remain the property of such party. Each party shall be entitled, in addition to monetary relief in the amount of the monetary damages established by reason of such breach and to other rights and remedies, to institute and maintain proceedings at law or in equity to obtain specific performance or a temporary or permanent injunction with respect to the provisions of this Section 8. Information shall not constitute Confidential Information, and Confidential Information shall cease to include information after it, (i) becomes available to the public (other than as a result of a breach hereof), (ii) becomes available on a nonconfidential basis from a third party that is not in breach of a duty (contractual, fiduciary or otherwise) to maintain the confidentiality of such information or (iii) is previously know or independently developed without any use of Confidential Information. Confidential Information does not include information of CS365 may retain copies of Confidential Information for record-keeping purposes, subject to the obligations of this Section 8.
9. Noncircumvention. During the term of this Agreement and for a period of one (1) year thereafter, Client shall not, directly or indirectly, contact, solicit, meet or engage in any employment or other business relationship with any of CS365’s employees, contractors or other personnel, or third party service providers. This Section 9 shall not apply if Client’s business relationship with such person or entity predated this Agreement (or, if earlier, the date the person was introduced to Client by CS365), as demonstrated by written exchanges specific to a transaction of like subject matter.
10. Insurance. Client shall obtain and maintain all insurance types, amounts and coverages reasonably required by CS365 from time to time. All policies of insurance obtained by Client shall name CS365 as additional insured. Client shall at all times bear risk of loss, damage, theft and destruction of its equipment and any other property of Client from any and every cause whatsoever. Client hereby waives and requires its insurers to waive any rights of subrogation or recovery that they may have against CS365. Client shall deliver certificates reflecting such insurance to CS365 upon reasonable request. The maintenance of insurance by Client shall not affect or limit the extent of Client’s liability under this Agreement.
11. Term. This Agreement shall commence and become effective upon approval and acceptance by CS365 and shall continue for the term (from the date of Service commencement, as determined by CS365 upon completion of Service provisioning) set forth on the Service Order. Thereafter, the term shall automatically renew (on the then-current terms hereof, subject to an escalation in Charges to CS365’s then-current published Charges) for consecutive 12-month periods, unless either party shall have provided termination notice to the other not less than ninety (90) days prior to the expiration of the then-current term.
12. Termination. In addition to any other available rights or remedies, (i) Client may, in its sole discretion, elect to terminate this Agreement upon and after the breach by CS365 of the warranty set forth in Section 6.2 for three (3) consecutive calendar months (computed and subject to the exceptions as set forth in Exhibit C) or the material breach by CS365 of the warranty set forth in Section 6.3 or Section 6.4, and (ii) CS365 may, in its sole discretion, elect to terminate this Agreement upon and after (a) Client’s failure to make timely payment in full of any Charges; (b) any breach or noncompliance by Client of any of the provisions of this Agreement; (c) any change in control of Client or attempted or purported assignment of Client’s rights to the Service or any component thereof without CS365’s prior written consent (which shall not be unreasonably withheld); or (d) Client’s failure to continue to function as a going concern or to operate in the ordinary course of business. Further, (A) this Agreement may be terminated by either party immediately upon notice to the other in the event that the other party shall commit an act of bankruptcy within the meaning of the federal bankruptcy laws, or bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings shall be instituted by or against a party and (B) this Agreement shall automatically terminate (without liability to CS365) upon the expiration or termination of any lease, sublease, license, contract, agreement or instrument of CS365’s with any third party in connection with the Services.
13. Consequences of Default and Termination
- Suspension of Service. Upon and after the occurrence of any of the events set forth in Section 12(ii) above, CS365 may, in its sole discretion, immediately or at any time thereafter (i) suspend the provision of all or any portion of the Services to Client (and may impose such requirements or Charges for reinstatement of Service as CS365 shall determine in its discretion), (ii) remove or disconnect Client (or Client’s equipment) from CS365’s systems or the Services, or (iii) prevent Client’s access to the Services (including the data therein).
- Early Cancelation Fee. Client’s obligation to pay the Charges shall remain in effect until the termination of this Agreement, notwithstanding the prior occurrence of any of the events set forth in Section 12(ii), the suspension of Service, the removal of Client or the restriction of Client access. Notwithstanding the termination of this Agreement, (i) Client shall remain obligated for any outstanding invoices or amounts due and for all Charges for Services rendered but not billed prior to termination, (ii) Client shall pay for any disconnection, early cancellation or termination costs or charges incurred by CS365, and (iii) if termination occurs prior to the expiration of the term (or any renewal thereof) other than as provided in Section 12(i), Section 12(A), solely with respect to CS365′ bankruptcy, or Section 12(B), Client shall pay to CS365 an early cancellation fee in an amount equal to the entire amount that Client would otherwise have been obligated to pay to CS365 over the remainder of the then-current term. Client agrees to pay such fee without any invoice or demand from CS365 within ten (10) days after termination of this Agreement. Client acknowledges that such payment is not a penalty but is in the nature of liquidated damages, to be paid in addition to other obligations of Client hereunder.
- System Transition. CS365 will not permit Client to access or remove any data from the Service or CS365’s systems at any time unless and until all Charges and other amounts due and owing hereunder shall have been paid in full and, upon expiration or termination of this Agreement, any equipment of or provided by CS365 shall have been returned to CS365. Subject to the foregoing, in the event of termination of this Agreement and receipt of such payment, (i) CS365 will make available to Client for download a file of Client’s data, as it then exists on CS365’s systems, within five (5) days after Client’s written request, and (ii) at Client’s election and expense, CS365 will provide other data or system deconversion services at CS365’s then current rates. Other than the foregoing, CS365 will have no obligation to assist or support Client in reinstalling, transitioning, administering, maintaining, supporting or otherwise operating its data or systems, including copying or providing any data backup. CS365 will have no liability in connection with such data or system deconversion, and Client waives and releases CS365 from all such liability. In any event, CS365 will have no obligation to retain any Client data for more than thirty (30) days after termination of this Agreement, and CS365 may delete any/all Client date anytime thereafter.
- Indemnification of Client. CS365 agrees to indemnify, defend and hold harmless Client and Representatives from and against any and all Damages, subject to the exclusive remedies, limitations on liability and maximum liability provided in this Agreement, arising out of any (i) any misrepresentation, breach of covenant or other breach of this Agreement by CS365 and (ii) any intentionally wrongful or grossly negligent act or omission of CS365.
- Indemnification of CS365. Client agrees to indemnify, defend and hold harmless CS365 and its Representatives from and against any and all Damages arising out of (i) any misrepresentation, breach of covenant or other breach of this Agreement by Client, (ii) Client’s use of the Service or any component thereof (including Client’s business and the provision or use of services to or by its employees and end-users), (iii) all applicable federal, state and local taxes (and penalties and interest thereon) relating to the Services, and (iv) any other act or omission of Client, its affiliates or any of their Representatives or users (including Damages relating to any matter for which Client expressly has responsibility under this Agreement, infringement and third party claims, Client provided items, and personal injury or damage to property).
- Third Party Claims. Promptly (and in any event within five business days) after receipt of actual notice that a third party is commencing a lawsuit, arbitration or other action (a “Third Party Action”) against a party hereto (the “Indemnified Party”) based on allegations which, if proven, would entitle the Indemnified Party to indemnification pursuant to Section 14.1 or 14.2 of this Agreement, the Indemnified Party shall give written notice of the pending or threatened Third Party Action to the party that would be obligated to provide such indemnification (the “Indemnifying Party”). Delay in notifying the Indemnifying Party shall relieve the Indemnifying Party from liability only to the extent the Indemnifying Party shall have been materially prejudiced by such delay. As a condition to its right to indemnification hereunder, the Indemnified Party shall give the Indemnifying Party the right (without prejudice to the right of the Indemnifying Party to contest its obligation to indemnify the Indemnified Party with respect to any claims made in the Third Party Action) to assume control of the defense of the Third Party Action, including through the selection and engagement of counsel reasonably satisfactory to the Indemnified Party. The party hereto not in control of the defense of a Third Party Action shall have the right to participate in the Third Party Action through its own separate counsel at such party’s own expense; except, however, even if the Indemnifying Party assumes the defense of a Third Party Action, the Indemnifying Party shall be liable for the fees and expenses of the Indemnified Party’s separate counsel if the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to the Indemnified Party which may conflict with or be inconsistent with those available to the Indemnifying Party. No party shall be liable for or bound by any settlement of an action effected without such party’s written consent, which shall not be unreasonably withheld, delayed or conditioned. In addition, neither party will settle, compromise or consent to the entry of a judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional release of the Indemnified Party from all claims arising out of such action.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL CS365 BE LIABLE TO CLIENT, ITS REPRESENTATIVES OR END-USERS, OR ANY OTHER PERSON OR ENTITY, FOR DAMAGES ARISING IN ANY MANNER OUT OF (I) CLIENT’S USE OF THE SERVICES OR ANY COMPONENT THEREOF, (II) ANY SYSTEM PERFORMANCE, CLIENT DATA BACKUP OR RECOVERY, OR DATA BREACH, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, (III) CLIENT’S INABILITY TO ACCESS OR INTERACT WITH OTHERS OR THEIR SERVICES THROUGH THE INTERNET, OTHER NETWORKS OR OTHER INTERNET USERS, OR OTHER RESOURCES AVAILABLE THROUGH THE INTERNET OR CLIENT’S NETWORK, OR (IV) ANY ACT OR OMISSION OF ANY PERSON OR ENTITY OTHER THAN CS365 (INCLUDING UNAUTHORIZED ACCESS TO, DISCLOSURE OR USE OF OR ALTERATION TO CLIENT’S NETWORK, EQUIPMENT OR DATA). WITHOUT LIMITING THE FOREGOING, CS365 SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY COROLLARY DAMAGES (DEFINED BELOW) EVEN IF CS365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORESEEABILITY OF COROLLARY DAMAGES. “DAMAGES” MEANS ANY AND ALL LOSSES, CLAIMS, CHARGES, CREDITS, OFFSETS, OBLIGATIONS, LIABILITIES, COMMITMENTS, ACTIONS, SUITS, PROCEEDINGS, DEMANDS, JUDGMENTS, SANCTIONS, ASSESSMENTS, PENALTIES, PAYMENTS, COSTS, EXPENSES (INCLUDING COURT COSTS, AMOUNTS PAID IN SETTLEMENT, JUDGMENTS, AND REASONABLE ATTORNEY FEES AND OTHER EXPENSES, INCLUDING ANY INCURRED IN CONNECTION WITH INVESTIGATING, PREPARING, PURSUING OR DEFENDING ANY CLAIM GIVING RISE TO A RIGHT OF INDEMNIFICATION UNDER THIS AGREEMENT), AND DAMAGES OF ANY KIND, NATURE OR DESCRIPTION WHATSOEVER. “COROLLARY DAMAGES” MEANS INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, RELIANCE, INCIDENTAL AND CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CLIENTS, LOSS OF GOODWILL, CREDITS FOR SERVICE OUTAGES OR LOST, DELAYED, NONDELIVERED, MISDELIVERED OR INTERRUPTED TRAFFIC OR DATA.
16. LIABILITY MAXIMUM. IN THE EVENT CS365 SHALL BE LIABLE TO CLIENT NOTWITHSTANDING LIABILITY LIMITATIONS, OR SECTION 15, OR THE EXCLUSIVE REMEDIES HEREIN, CS365’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE) ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING CS365’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14.1 OR ARISING OUT OF A DATA BREACH), THE CS365 INFRASTRUCTURE, THE SERVICES OR ANY COMPONENT THEREOF SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO CS365 UNDER THIS AGREEMENT FOR THE THREE (3) MONTHS PRECEDING THE CIRCUMSTANCES THAT RESULTED IN SUCH LIABILITY.
17. SURVIVAL AND CLAIMS PERIOD. SECTIONS 7, 14, 15, AND 16 SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY (AND THE SEVERABILITY OF SUCH PROVISIONS), AND THE LIMITATIONS THEREIN SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF LIMITED REMEDY. NO ACTION OR PROCEEDING AGAINST CS365 SHALL BE COMMENCED MORE THAN ONE YEAR AFTER THE EVENT GIVING RISE TO THE CLAIM.
18. Incorporated Provisions. The Exhibits, including the Miscellaneous Provisions set forth in Exhibit D, to this Agreement are hereby incorporated and made a part of this Agreement. The Service Order(s) (now attached hereto or subsequently entered into by the parties), each as completed, are also hereby incorporated and made a part of this Agreement. Service Orders delivered electronically by Client shall be deemed executed by and binding upon Client upon acceptance by CS365, which may be made electronically. In the event any Service(s) ordered by Client cannot be provided by CS365, CS365 will so notify Client and such notice shall constitute a rejection of the Service Order. Capitalized terms used but not otherwise defined in this Agreement shall have meanings determined by reference to such terms in the Service Order.
A1. Client Support (Help Desk). CS365 will provide technical support to Client pursuant to the contact information, hours of availability and response guidelines set forth below. CS365 will provide assistance only at the request of persons CS365 reasonably believes to be authorized Client representatives in accordance with Section A2.
- Contact Information
|Critical Server Support or Emergency Help (24 Hours)*|
|Phone||302-428-1300 Leave a voicemail message to page an engineer|
|7 a.m. – 11 p.m. Eastern Standard Time (Mon-Fri)||All Call Types|
|After-hours and weekends||Priority 1 calls only (see below)|
3. Response Priorities (as assigned by CS365) and Guidelines
|Priority 1||Complete System Failure – Most critical and highest priority, characterized by the following: |
– Issues that keep Client from operating its business
– Have a large detrimental impact on the business
– No alternative work around exists
– Examples include total failure or inoperability of critical Supported Applications
|– 1 hour initial response from initial contact (2 hours after hours and weekends) |
– Technical support staff will work continuously until the issue is resolved
– Account Management is notified of issue within 15 minutes of confirming issue
– Follow-up calls made every 2 hours by Account Management until issue is resolved
|Priority 2||Inoperable Business Function – Negative impact on a large business function or a substantial number of system users, characterized by the following: |
– Temporary work-around is a reasonable option
|– 2 hour initial response from initial contact (4 hours after hours and weekends) |
– CS365 will endeavor to resolve the issues within 2 business days
– Issue is escalated to Account Management within 4 hours
Account Management will update Client on status once/day
|Priority 3||Business Function Limitation – Narrow functional limitiations and situations that do not currently impair the Client’s business activities, characterized by the following: |
– Narrow functional focus
– Impaired function is used daily
– Issue adversely affects business performance
– Temporary work-around is available
– Impacts a subset of the user-base
|– 24 hour initial response from initial contact |
– CS365 will endeavor to respond as soon as commercially reasonable
A2. Technical Service Representatives. All requests for support or Additional Services must be made by either of the two (2) Client employees designated by Client as technical support. Such Client technical support contacts should be knowledgeable in the use of the Services and the Client’s operating environment. Client shall be permitted to replace such contacts upon written notice to CS365. Client’s initial technical support contacts shall be defined in writing.
A3. Additional Services. Services that may be available through CS365 in addition to those included on the Service Orders will be available to Client, if provided by CS365, at Client request and in accordance with a schedule determined by CS365. CS365 will provide assistance-only at the request of persons CS365 reasonably believes to be authorized Client representatives in accordance with Section A2. Except as otherwise set forth in the Service Order, Charges to Client for additional Services shall be determined and invoiced by CS365. Unless otherwise indicated by CS365 in advance of providing Service, Charges for additional Services will be billed on the basis of time (at $125/hour billed in 15 minute increments) and materials (plus 20%).
A4. Service Enhancements. CS365 may modify the Service and/or any component thereof. CS365 will provide Client with at least 30 days prior notice of the availability of any system enhancements that specifically affect Client’s operating environment, including applicable overview documentation and reference documentation.
Additional Client Responsibilities
1. Client will at all times obtain and utilize equipment, software, data communications (including redundant high speed connectivity between Client and CS365 facilities or the Services) and other technology that meets the requirements of CS365 from time to time, provided that CS365 will procure equipment, if any, for Client as set forth in the Service Orders. CS365 will have no responsibility to implement or provide any Services unless and until all such requirements have been satisfied by Client. CS365 will have no responsibility or liability with respect to any such equipment, software or technology whatsoever.
2. Client will operate its business and will use the Services (and will not permit or assist any other person or entity, including its affiliates, Representatives and end-users, to use the Services other than) at all times in compliance with (i) this Agreement and any policies, requirements, recommendations or protocols issued by CS365 to Client and generally accepted rules of Internet practices, conduct and etiquette, as reasonably interpreted by CS365, (ii) all applicable local, state, federal and international laws, regulations, and conventions, including without violating any rights, including privacy rights or copyright, of any third party or user, and (iii) not in aid of any unlawful, inappropriate or improper act or in any manner that, in CS365’s reasonable discretion, could adversely affect CS365’s public image, goodwill, reputation or contractual relations, or could subject it to liability, or could threaten or put at risk CS365’s or its third-party provider’s services, technology or facilities. CS365 reserves the right to monitor Client’s systems.
3. Client will not, and will ensure that its users will not (and will not permit or assist any other person or entity to) (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Services, CS365 technology or any component thereof, (ii) copy, modify, adjust, adapt, decompile, reverse engineer, generate source code, attempt to duplicate or make derivative works based any of the Services or any component thereof, (iii) commercially exploit any of the Services or any component thereof in any way, other than for Client’s own internal business purposes, (iv) alter, remove or obscure (and will prevent third parties from altering, removing or obscuring) any trademark, copyright or other proprietary or restricted rights notices, or any associated disclaimers, that may appear in or through use of the Service or any component thereof, or (vi) use any Services for any purpose other than that for which it is intended. Client shall use the Services only to process its own data and data of its end-users. Client will establish access requirements for its users and will be responsible for any and all use of, and activities, data, transactions or administration conducted through or that occur under, Client’s or its users’ accounts, whether or not authorized by Client or the user.
4. Unless expressly included in the Services, Client shall be solely responsible for (and CS365 shall have no liability arising out of), at Client’s sole cost, all matters and circumstances relating to (i) the network (including any loss of data in transmission, improper transmission by Client, or failure by Client or any third party to act on any communication transmission to or by Client through the Services), equipment (including its selection, configuration, installation, hosting, physical security, licensing, operation, performance, support and maintenance), and software utilized by Client, (ii) domain name services, registrations, maintenance and taxes, and IP addressing, (iii) data storage, data back-up and archival history with respect to Client’s equipment and data therein (notwithstanding Client’s utilization of the Service), (iv) all aspects of Client’s business or Client’s business decisions, whether utilizing the Services, data or information produced by the Services, or otherwise, including the use of the Services by Client or any of its employees or end-users, whether for the purpose for which it is intended or otherwise, and the provision of services and data to its employees and end-users, (iv) content and data provided or passed by Client or any of its employees or end-users (including the privacy and security thereof), whether through the Services or otherwise, and the manner in which the Service may be used by Client or any of its employees or end-users, and (v) the selection, training, direction, supervision and employment of appropriate Client personnel. CS365 shall have no ownership, control, responsibility or liability whatsoever with respect to any of such matters, and, notwithstanding any judgment, recommendation or requirement of CS365, Client disclaims any reliance on CS365 with respect thereto (including if CS365 provided or arranged for any such matter to or on behalf of Client).
5. Client hereby grants CS365 the authority (without subjecting it to any liability) to suspend Client’s use of the Services if, in the sole discretion of CS365, there arises any hazardous condition, unsafe practice, emergency situation, interference with the Services or another CS365 customer or other reason to do so. Client shall not have access to, and shall not enter, CS365’s facilities or systems. At its sole expense, Client shall provide, and shall provide CS365 access upon request by CS365 to, such equipment, personnel, data and resources as CS365 may reasonably request in order for it to provide the Services. CS365 will provide Service security solely by providing Client with access to the Services through a combination of user names and passwords. Client is responsible for any and all use of, and activities, transactions and administration conducted through or that occur under, Client’s user accounts and/or passwords, whether or not authorized by Client.
6. Client will permit, and hereby authorizes, CS365 to remotely access Client’s systems and, without limiting the foregoing, to install such software and/or applications on Client servers, workstations, networking devices and other equipment as determined by CS365 in order for CS365 to provide the Services, and to access certain Client equipment and facilities (and Client will provide all required passwords). CS365 will not be liable or responsible for adverse affects or interruptions caused by any such software, applications or access; however, at Client’s request, and as Client’s sole and exclusive remedy arising out of the installation, use or performance of any such software or applications, CS365 will remove the software or application from the effected device.
7. Client will maintain personnel that are adequately trained on the Services. Client will accept and incorporate all updates and make its Representatives available for training on the updates.
SERVICE LEVELS AND SERVICE CREDITS
1. Technical Support. In the event CS365 fails to respond in the manner set forth in Section B1.3 to an issue described in such Section identified by Client in accordance with this Agreement, Client shall be entitled to a credit equal to 1/30 of the Monthly Recurring Charges for the affected Services for each hour (or fraction thereof) after the required response by which CS365 fails to respond (up to a maximum credit of the entire Monthly Recurring Charge), so long as Client shall have notified CS365’s Help Desk in writing of the purported failure to respond within two hours of the failure.
2. Warranty Services
- Performance Standard. Each of the Warranty Services set forth below will have System Availability (defined below) for each calendar month during the term of this Agreement of not less than ninety-nine and nine-tenths percent (99.9%). “System Availability” means the percentage of time over the applicable month during which the Warranty Services are available for access and use by Client, as monitored and determined by CS365. Warranty Services are, as set forth on the Services Orders, Virtual Server Hosting, Security Services, Network Services and Backup/DR Services.
- Credit. In any month that Service Availability is below the performance standard above, Client shall be entitled to a credit equal to five percent (5%) of the Monthly Recurring Charges for the affected Warranty Service. Service level credits to which Client is entitled shall be credited to the next monthly recurring charge payment due. In order to be eligible for service level credit, Client shall request credit in writing within 72 hours after Client becomes aware of the event purported to give rise to the credit. Client will at all times cooperate with CS365 and third-party service providers to CS365 (and services providers, mobile network operators, etc. of such third parties) in testing, determining and verifying any System Performance that may occur. CS365 reserves the right to change or discontinue any or all of the SLA parameters detailed herein at any time and without notice to Client.
3. Exceptions. Client shall not be entitled to service level credit with respect to circumstances (and such circumstances shall not be included in the computation of System Availability) arising out of (i) acts or omissions of any person or entity other than CS365, (ii) scheduled system downtime (as reasonably determined and scheduled by CS365) and (iii) performance degradation during the Batch Window (defined below). “Batch Window” means the daily period from 7 p.m. to 7 a.m. Eastern Time, in which after hours batch processing will be performed pursuant to a schedule reasonably tailored to Client’s business requirements. Batch processing examples are mass importing and exporting of data such as database, email and website data that would incur a significant load on the server or services. In addition, this would include system updates, security patches or other similar work. Client may request to modify its Batch Window, in which event CS365 may change its System Availability guarantee in Section B5 and Service Level credits.
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT CLIENT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING THIRD-PARTY PROVIDERS OF SERVICES AND THAT CLIENT IS NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CS365 AND SUCH THIRD PARTY. IN ADDITION, CLIENT ACKNOWLEDGES AND AGREES THAT THE UNDERLYING THIRD PARTY AND ITS AFFILIATES AND REPRESENTATIVES SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CLIENT AND HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
D-1 Notices. Any notices to be given under the Agreement by either party to the other shall be deemed to be received by the intended recipient (a) when delivered personally or by facsimile or e-mail (provided that any notice given by facsimile or e-mail is also given as provided in (b) or (c) below), (b) the day following delivery to a nationally recognized overnight courier service, fees prepaid, with proof of delivery, or (c) three (3) days after mailing by certified mail, postage prepaid with return receipt requested, in each case addressed to the parties at the address set forth for such party on the account. Either party may change the address for notice by notifying the other party, in writing, of the new address.
D-2 Successors and Assignment. The Agreement shall be binding upon and shall inure to the benefit of the parties, their respective heirs, executors, administrators, and permitted successors and assigns. No party shall assign its rights and/or obligations under the Agreement without the prior written consent of each other party to the Agreement, except that (A) Client may assign its rights and obligations under this Agreement to any affiliate of Client, (B) CS365 may assign its rights and obligations under the Agreement (a) as part of a merger, consolidation or other transaction effecting an assignment by operation of law, (b) as part of a sale or transfer of substantially all of its assets, including its business and goodwill, in which case the successor entity shall confirm in writing at the time of such sale or transfer that such successor remains bound by the Agreement, (c) in connection with any transaction which is part of the initial public offering of membership interests of CS365, (d) to any affiliate of CS365, (e) as part of a collateral assignment of CS365 rights, or other grant of security interest, in connection with any financing, or (f) other transaction of similar nature and (C) CS365 may assign any Charges due hereunder to an affiliate for billing and collection purposes.
D-3 Public Announcements. Upon prior written consent and approval from Client, which shall not be unreasonably withheld, CS365 may use Client’s name in its client list, case studies, and in other promotional information, including press releases, brochures, reports, letters, white papers, and electronic media such as e-mails and web pages.
D-4 Entire Agreement; Amendment. The Agreement (including the provisions and documents incorporated therein) constitutes the entire understanding between the parties, and supersedes any and all other agreements, either oral or in writing, between the parties, with respect to the subject matter of the Agreement. The Agreement may only be changed or amended in writing signed by CS365 and Client. No amendment, supplement or termination of the Agreement shall affect or impair any rights or obligations that had previously matured under the Agreement.
D-5 Severability. If any provision of the Agreement shall be held by a court of competent jurisdiction to the contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of the Agreement will remain in full force and effect, unless to do so would result in either party not receiving the benefit of its bargain.
D-6 Status of Parties. In the performance of all work, duties and obligations under the Agreement, it is mutually understood and agreed that each party is at all times acting and performing as an independent contractor with respect to the other and that, except as expressly provided herein, no relationship of partnership, joint venture, agency or employment is created by the Agreement and that neither party shall have any power or authority to enter into any agreement, incur any obligation or otherwise bind the other.
D-7 Force Majeure. Except for Client’s payment obligations, neither party shall be deemed to be in default or breach of the Agreement if such party is prevented or delayed from performing any obligation hereunder for any reason beyond its control, including but not limited to, Acts of God, war, civil commotion, riot, explosion, fire, flood or casualty, labor difficulties (such as strike, lockout, work stoppage, etc.), delays or shortages of or inability to obtain labor, materials, equipment or transportation, governmental regulations or orders, restrictions, laws or orders, unusually severe weather, loss of power, interruption of carrier services, Internet service provider failures, communications line failures, utility curtailment, cable cut, vandalism, acts or omissions of a party’s vendors or sources (including the owner, lessor or sublessor of the co-location facility or its premises), pandemic or other similar occurrence. In any such case, the parties agree to negotiate in good faith with the goal of preserving the Agreement and the respective rights and obligations of the parties hereunder, to the extent reasonably practicable. Further, CS365 shall have the right, without liability and without affecting Client’s obligations hereunder, to stop providing Services hereunder, whenever and for so long as may be necessary, in any such event or in the event that equipment, system or network maintenance is required by CS365 or any third-party provider or operator of facilities used in the provision of Services.
D-8 Waiver. The waiver of any term, condition or breach of the Agreement shall not constitute or be construed as a waiver of any other term, condition or breach of the Agreement, and a waiver in any one instance or circumstance shall not constitute a waiver in any other instance or circumstance.
D-9 Further Actions. Each of the parties to the Agreement agrees that it shall hereafter execute and deliver such additional instruments and undertake such additional acts as may be required or useful to carry out the intent and purpose of the Agreement and as are not inconsistent with the terms hereof.
D-10 Interpretation. The terms “hereby,” “hereof,” “herein” and “hereunder” mean by, of, in and under this Agreement, respectively, and refer to this Agreement as a whole and not merely to the Section or provision in which such term is used. The term “or” shall be construed to be inclusive and have the meaning of “and/or”. All references herein to a particular statute, code, regulation or other legal requirement shall include references to all amendments thereto and legally-binding interpretations thereof and, in the case of the repeal of any such legal requirement, shall include any successor thereto enacted, promulgated or issued in replacement thereof. The term “include” (and correlative terms such as “includes” and “including”) shall not be construed as a term of limitation but shall be construed as if followed by the words “without limitation.” All references herein to the masculine gender shall also include the feminine and neuter, and vice versa, and all references to the singular form shall also include the plural, and vice versa, as the context may require. No provision herein shall be construed against a party merely because of the role of such party or its counsel in the drafting thereof.
D-11 Binding Agreement. Each of the parties to the Agreement represents and warrants that all necessary action has been taken to authorize such party’s execution, delivery and performance of the Agreement and that the Agreement is the valid and binding obligation of such party, enforceable in accordance with its terms.
D-12 Counterparts. The Agreement may be executed in one or more counterparts, each of which shall constitute an original Agreement but all of which together shall constitute one and the same instrument.
D-13 No Rights in Third Parties. The Agreement is not intended to, nor shall it be construed to, create any rights in any third parties.
D-14 Cumulative Rights and Remedies. Except as otherwise expressly provided in the Agreement, the rights and remedies of the parties under the Agreement (including the right to terminate the Agreement and the right to indemnification and the limitations on liability) shall be cumulative with and in addition to, not exclusive or in replacement of, any other rights or remedies that may be available under any other agreement between the parties, at law or in equity.
D-15 Governing Law. The Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to its principles of conflicts of laws.
D-16 Forum Selection for Disputes. Each of the parties to the Agreement hereby submits to the exclusive, personal jurisdiction of either the Federal District Court for the District of Delaware, the Court of Common Pleas of New Castle County, Delaware or any municipal or local court located in such county for all claims, disputes or controversies involving the parties and relating to the Agreement; provided, however, nothing herein shall prevent a party hereto from asserting a claim for indemnification or any other claim hereunder against the other party hereto in connection with a third party action in the same jurisdiction where a third party action has been brought. Each party hereby knowingly, intelligently and voluntarily waives its right to contest the jurisdiction or venue of either such court, whether on the grounds of inconvenience or otherwise, and each party hereto knowingly, intelligently and voluntarily waives its right to initiate a suit or action against the other party in any other court or forum, except as expressly provided above.
D-17 Waiver of Jury Trial. IRREVOCABLY AND UNCONDITIONALLY, EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES ITS RIGHTS TO DEMAND TRIAL BY JURY IN ANY LITIGATION, SUIT OR OTHER ACTION BROUGHT UNDER OR IN CONNECTION WITH THE AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED PURSUANT TO, OR IN CONNECTION WITH, THE AGREEMENT OR ANY PROVISION OF ANY OF THE FOREGOING OR ANY OTHER MATTERS INVOLVING BOTH OF THE PARTIES HERETO.
D-18 Survival. Sections 7, 8, 9 and 14-18 of the Agreement and these Miscellaneous provisions shall survive the termination of the Agreement for any reason whatsoever and remain in full force and effect indefinitely, and any other provisions of the Agreement that by their terms extend past the termination or expiration of the Agreement shall remain in full force and effect in accordance with such terms.