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These Terms of Service (this "Agreement") is by and between Verito Inc., a Delaware corporation (" Provider ") and (" Customer " or " You "). Provider and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."
Any individual or entity that directly or indirectly through another User: (a) accesses or uses Provider's Service or Remote Desktop Protocol (RDP) Application or access or uses a Users' content is herein referred to as an "End User." It is strictly prohibited for any employee, staff member, management or affiliate of any companies that could be deemed a competitor of Provider to submit such forms to gain access to Provider's systems. Any violation of this Agreement may be considered unlawful and shall be considered a breach of contract. These terms and conditions are subject to change at any time with or without prior written notice, in Provider's sole discretion.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the parties: (i) Provider has and will retain control over the operation, provision, maintenance, and management of the Provider's systems; and (ii) Customer has and will retain control over the operation, maintenance, and management of, and all access to and use of, the customer systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
(b) Authorized Users/Contacts Any person(s) listed on a Customer account as either an "Authorized User" or "Authorized Contact" shall be the only representation of the Customer allowed to make billable changes to their account with Provider. The authorized users/contacts have the ability to add additional authorized users/contacts by submitting the request directly to a representative of the Provider. These authorized users/contacts serve as the primary business contact between Provider and users, and they are responsible for ensuring that all users within their account are aware of contract renewal dates and Provider company policies and procedures.
(c) Statement of Work The Parties may enter into one or more Statements of Work ("SOW") for the provision of specific Services. Each SOW will be governed by and incorporate by reference the terms and conditions of this Agreement. By executing an SOW, whether by physical or electronic signature, Customer expressly agrees to be bound by the terms of this Cloud Hosting Terms of Service agreement in its entirety which can be found at "Terms and Conditions" and can be provided upon request. In the event of a conflict between the terms of an SOW and this Agreement, the terms of the SOW shall prevail relating to the terms concerning price, Fees, scope and description of services and term, but this Agreement controls for conflicts relating to all other terms.
(a) Provision of Access. Subject to and conditioned on Customer's payment of fees and compliance with all the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number as mentioned in the attached Quote and invoice for Services.
(b) Documentation License Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-transferable license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
(c) Unacceptable Use Provider reserves the right in its sole discretion to remove any content for any reason, including but not limited to, violation of any laws or the terms and conditions of this Acceptable Use Policy and the related use restrictions and limitations. The Acceptable Uses description below describes certain actions relating to the content and operation of the Website which Provider considers to be inappropriate and thus prohibited. The examples identified in this list are not an exhaustive list, but are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact a Provider representative. Provider's right to remove inappropriate content, suspend the account, terminate the account, and pursue other remedies under this Policy shall not place an obligation on Provider to monitor or exert supervision over the Customer.
(d) Use Restrictions Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that intentionally infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(e) End User License Agreements Customer shall not reverse engineer, decompile, translate, disassemble, attempt to discover the source code of, or in any other way manipulate any Provider service, RDP Application, or third party application in order to "break" or use it outside of this Agreement for that particular Application or software, or ask that Provider assist in or complete such actions on behalf of the Customer. Customer agrees that they are solely responsible for the content of any material posted to their Application, and that no End User will attempt to access programs, options, settings, services, files, applications, or servers not within their user rights. Customer is solely responsible for any damages, whether technically, virtually, physically, or financially to a software, application, or Provider service, that derives from tampering by an End User breaking or attempting to break the terms of acceptable use for a particular service, software, or application. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access Provider Services or third-party applications. All login credentials and license information should directly and accurately reflect the proper names, amounts, and versions of both the end users and software/applications being utilized by the Customer. If the Customer is found to be performing any of the aforementioned actions or soliciting the services of Provider in performing these actions, Provider reserves the right to cancel the existing contract with the Customer immediately with no refund.
(f) Piracy Customer shall not license, sub-license, distribute, or disclose the use of their Application(s) to any third party, or use their Application(s) for any purpose other than accessing the Customer's own data in accordance with this Agreement. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access Provider services or third-party applications. All login credentials and license information should directly and accurately reflect the formal names, amounts, and versions of both the end users and software/applications being utilized by the Customer. If the Customer is found to be performing any of the aforementioned actions or soliciting the services of Provider in performing these actions, Provider shall view these actions as piracy and can cancel the existing contract with the Customer immediately with no refund.
(g) No High-Risk Use Customer acknowledges that the Services are not fault-tolerant and are not guaranteed to be error-free or to operate uninterrupted. You shall not use the Services in any application or situation where the Services' failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage ("High Risk Use"). High Risk Use does not include utilization of the Services for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. Customer agrees to indemnify and hold harmless Provider from any third-party claims arising out of Customer's use of the Services in connection with any High-Risk Use.
(h) Customer Liability Customer is solely responsible for damages resulting from their actions relating to the use of the Provider's Services under this Agreement, and those damages will be subject to the obligations of indemnification set forth in Section 14 & 15. Our hosting of any software solution Services or Customer Data does not relieve You of Your responsibility or obligation to indemnify Provider pursuant to the terms of this Agreement and any Service Level Agreements.
(i) Reservation of Rights Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(j) Suspension Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized End User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized End User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized End User is prohibited by applicable law; or (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any Third Party services or products required to enable Customer to access the Services. Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer before any Service Suspension and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. This Section does not limit any of Provider's other rights or remedies, whether at law, in equity, or under this Agreement. Please see Sections 18 & 19 for additional terms and conditions related to terminating or suspending services.
(k) Third Party Products Provider may from time to time make Third Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
(l) Third Party Application Hosting Virtual Server contracts are issued with a set number of third-party applications, each additional application that Customer would like installed on the server will be billed according to the following criteria:
(m) System Requirements. This information may change from time to time and can be found at Provider's website.
(a) General Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Consequences for Breaching Restrictions or Obligations Customer agrees that they are solely responsible for the content of any material posted to their Application, and that no end-user will attempt to access programs, options, settings, services, files, applications, or servers not within their user rights. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access Provider Services or third-party applications. All login credentials and license information should directly and accurately reflect the proper names, amounts, and versions of both the end users and software/applications being utilized by the Customer. If the Customer is found to be performing any of the aforementioned actions or soliciting the services of Provider in performing these actions, Provider reserves the right to cancel the existing contract with the Customer immediately with NO refund.
(c) Security Customer shall adhere to the following security protocols:
(a) Service Levels Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the contracted Services available at least ninety-nine and percent (99.999%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section and in other related sections, (the "Availability Requirement"). "Service Level Failure" means a material failure of the Services to meet the Availability Requirement. "Available" means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. Please see Exhibit B for a breakdown of Service Level calculations.
(b) Exceptions For purposes of calculating the availability requirement, the following are "Exceptions" to the availability requirement, and neither the Services will be considered unavailable nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Services by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, which does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer's or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services permitted by the terms of this Agreement.
(c) Service Level Failures and Remedies In the event of a Service Level Failure, Provider may issue a credit to Customer for the Services lost due to the Service Level Failure occurred (each a "Service Credit"), subject to the following:
(a) General Subject to the terms and conditions of this Agreement, Provider, or its designee (which may include but is not limited to its affiliates and its employees), shall remotely host the Provider ("RDP Application") for the purpose of providing Customer with access through the Internet. Provider does not guarantee any third-party applications and Customer must have proper licenses for access to third party applications and provide those license numbers to Provider when requested, except that Provider shall ensure any integrations made by Provider to any third-party applications function as intended.
(b) Hours of Availability Provider shall use commercially reasonable efforts to make the RDP services available twenty-four (24) hours per day, seven (7) days a week. Notwithstanding the foregoing, Provider reserves the right to suspend Customers access to the RDP Application (i) in the event that Customer materially fails to fulfill its obligations under this Agreement, (ii) for purposes of scheduled maintenance, or (iii) for purposes of emergency maintenance work at any time as deemed appropriate by Provider.
(c) License During the Term and subject to the terms and conditions of this Agreement, Provider hereby grants to Customer a non-exclusive, non-transferable license, royalty-free, to have its employees or Clients access the RDP Application.
(d) Support Provider has support staff available twenty-four hours, seven days a week. The support staff will accept inquiries by telephone and electronic mail from those users designated by Customer to make inquiries. Provider will use its best efforts to respond to all the inquiries in a timely manner.
(e) Protection of Customer Data and Confidential Information Provider will use commercially reasonable efforts to ensure that its facilities, computer systems, and networks are maintained in a secure environment as to protect Customer Data and Confidential Information against unauthorized access, use, or disclosure. Such efforts shall, at a minimum, use protections generally accepted by industry standard and comply with all Applicable Data Protection Laws.
(a) Fees Customer shall pay Provider the fees ("Fees") as set forth in Exhibit A or applicable SOW. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge a fifty dollar ($50) late fee if the payment is overdue for more than a month; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including reasonable attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income
(c) Auditing Rights and Required Records Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of at least six months after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest. Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of six months after the termination or expiration of this Agreement.
(a) Scope of Confidential Information From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third party confidential information, Personal Data, Customer Information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or written or electronic form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall take all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information including, at a minimum, those taken by receiving Party to protect their own Confidential Information which, in no event, shall be less than a reasonable standard of care and in compliance with all applicable data security and privacy laws. The receiving Party will not permit the use of any trade secrets or Confidential Information in any way to compete (directly or indirectly) with disclosing party or any affiliate or in any other manner adverse to disclosing party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. In both such scenarios, the Party compelled to make such disclosure must take reasonable actions to minimize the disclosure, and only disclose that which is legally required. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law or meets the definition for Confidential Information as that term is defined herein.
(b) Third party Providers Some components of the Services or the Provider Materials may be provided through or licensed from third parties. Customer's use of all such components is subject to the terms of this Agreement. Provider, and not those third parties, will provide any and all technical support related to the Services, including support related to those third-party components. However, under certain circumstances, pursuant to the terms of applicable third-party license or services agreements, Provider may be obligated to provide certain information to those third parties regarding the Services and/or regarding your identity. In such instances, Provider will obtain written consent of the Customer before making such disclosures.
(c) Customer Information means all personally identifiable financial information (as defined by the Gramm-Leach-Bliley Financial Services Modernization Act of 1999, including its related regulations (the "GLB Act")), and listings, descriptions or other groupings of such information, about the clients or customers of each Party or its Affiliates which: (i) may be provided by the Customer to Provider; or (ii) is collected or acquired by the Provider in connection with this Agreement. Provider acknowledges and agrees that Customer Information is highly confidential and private in nature and shall comply, and shall direct that its Representatives comply, with the customer information requirements of the GLB Act, and all applicable privacy laws and regulations. The Parties agree that Customer Information shall be considered Confidential Information which shall be protected for as long as it is in the possession or control of Provider and shall not be subject to the five year limitation in section (a) hereto. Provider acknowledges that any disclosure or use of Customer Information shall be made only in strict compliance with all applicable federal, state, and local laws and regulations and the terms of this Agreement. The Parties agree to take all actions reasonably necessary to protect its confidentiality, including following all applicable data privacy and protection laws and industry data security standards, and using no less than the standards it takes to protect its own confidential information, and shall ensure that all representatives comply with the confidentiality restrictions hereto. Provider acknowledges and agrees that Customer Information is highly confidential and private in nature and shall comply, and shall direct that its representatives comply, with the customer information requirements of the GLB Act, and all applicable privacy laws and regulations. Provider acknowledges that any disclosure or use of Customer Information shall be made only in strict compliance with all applicable federal, state, and local laws and regulations and the terms of this Agreement. The obligation not to disclose under this Agreement shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, nor by a trustee in bankruptcy, or as a debtor-in-possession or the equivalent of any of the foregoing under local law.
(a) Security Generally Provider has hardware firewall and Trend Micro Deep security installed on the server level. Provider also employs a strong password policy and password expiration policy. Provider will use any other commercially reasonable efforts to employ measures it deems appropriate to endeavor to mitigate security risks with respect to its Services, but does not guarantee that any Service, or the use thereof, or any Customer Material stored, transferred, disseminated or otherwise used through or using a Service, will be secure, including against accidental or unlawful loss, access or disclosure.
(b) Customer Control and Responsibility Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
(c) Access and Security Responsibilities of Customer Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data.
(d) Cooperation Customer, Customer's client, or any End User shall reasonably cooperate with Provider in transferring any local copy of data to Provider if requested so as to maintain data integrity. Customer, Customer's client, or any End User shall reasonably cooperate with Provider in instances of data breach, hacking attempts, privacy or data loss before any litigation is filed or authorities notified, notwithstanding any legal obligations under state or federal law. Additionally, Customer, Customer's client, or any End User shall reasonably cooperate with Provider in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Provider may reasonably request from the Customer, Customer's client, or any End User. Customer, Customer's client, or any End User shall reasonably cooperate with Provider by maintaining a local copy of all data before uploading or storing data to the Provider RDP Application.
(e) Investigations If Customer requests Provider to investigate any anomalies in the RDP Application, including but not limited to data breach, hacking attempts, privacy or data loss, Customer will be charged at Provider's then prevailing hourly rate. Customer shall pay such charges on its then applicable monthly invoice, and payment will be subject to the Payment and Late Payment terms described in this Agreement.
(a) Scheduled Maintenance Generally The maintenance protocols will be hosted and updated as needed on the Provider's website. If there are any inconsistencies between the maintenance protocols described herein and the protocols described on the website, the protocols on the website shall be controlling. In order to keep Provider infrastructure up-to-date and performing optimally, Provider will perform scheduled maintenance from time to time. Provider performs system maintenance every Sunday night midnight EST from 00:00 hours Monday - 00:15 hours. Outside of the regular schedules maintenance, should there be any updates that are necessary, or system reboots, or other software adjustments not regularly scheduled, Provider will inform the Customer via email and will request the customers preferred time to employ these, but is not obligated to conform the customer's request. Provider is not responsible for the loss of hours in connectivity for the Customer or the Customers' Customers during scheduled maintenance, and a reasonable effort will be made by Provider to schedule all maintenance during off-peak, or weekend hours in order to minimize the impact to our Customers.
(b) Unscheduled Maintenance The Provider's maintenance protocols may change from time to time and the Provider will keep the most updated protocol on the Provider's website. If there are any conflicts or inconsistencies between the maintenance protocols on the website and the protocols herein, the website's descriptions shall be controlling. In the event of unforeseen outages, service impacting issues, and other emergency maintenance that Provider deems necessary, unscheduled maintenance may need to be performed in order to restore services, or repair underlying hardware and software. Provider will make every reasonable effort to limit the amount of time that the Customer's services are unavailable, up to the time allowed for by our Service Level Agreement, and proper updates and notifications will be provided as deemed necessary by Provider. After any such unscheduled maintenance is performed, Provider will provide a Post Incident Report to the affected Customers that will give a brief summary of the cause and the resolution of the unscheduled maintenance.
(c) Backup Provider will maintain and follow a recovery plan designed to minimize disruption to Customer's access to the information contained on the RDP Application, comprised of internal procedures to recover the Provider environment in the event of a disaster. Daily back-ups are stored for sixty days. Provider is not responsible for corrupt files within the network. Customer must maintain its own local copy of all data uploaded or stored to the Provider RDP application. Provider is not responsible for Customer's lost or corrupted data for failure of Customer to maintain a local copy of all data. Customer acknowledges that it is Customer's responsibility to execute frequent and routine back-ups and frequent and routine test-restores of data and that Provider is not liable for any loss of data by Customer resulting from or relating to any action taken by Provider pursuant to this Agreement.
(a) Generally If You are not fully satisfied with your purchase of the Provider RDP Application and/or Services, You can get your money back upon the Refund Conditions set forth below. However, we believe that most refunds can be avoided if you seek professional assistance from our qualified staff.
(b) Standard Refund Conditions The setup fee is non-refundable. If the contract is cancelled pursuant to the terms of this Agreement within the first seven (7) days of service, 100% of subscription amount will be refunded within fifteen days of Customer's cancellation. Other than that, Annual clients can cancel their subscription within the first sixty (60) days to get a partial pro-rata refund, otherwise no refund after that period. We highly encourage our Customers to evaluate our Provider RDP Application and/or Services by using the available free trial prior to placing any order. After the trial period is over, Customer must cancel the Provider Service Pursuant to cancellation procedure set forth below, and seek a refund pursuant to the refund procedures set forth below.
Exceptional Circumstances and Refund Procedure Refunds requests that are past the above stated time period of seven (7) days and partial refunds within the first sixty (60) days must be submitted to our Customer Help Desk. Refund requests must be made within a thirty-day period of customer cancellation. Requests made via e-mail, problem ticket, or by voicemail are not acceptable. You must speak directly to our Support Staff to use our refund procedure for claiming unsatisfactory services, or else we may refuse to process the claim.
Provider IP Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third party Products, the applicable third party providers own all right, title, and interest, including all intellectual property rights, in and to the Third party Products.
Customer Data Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
Provider warrants that the Services will conform in all material respects to the service levels described within this agreement when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified within the Service Levels provision above. The remedies set forth in this agreement are the Customer's sole remedies and Provider's sole liability under the limited warranty set forth in this Section.
BOTH PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF ASP APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. PROVIDER MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THIRD PARTY SOFTWARE. ALL PROVIDER SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Provider Indemnification Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs ("Losses") incurred by Customer resulting from any third party claim, suit, action, or proceeding ("Third Party Claim") that the Services, or any use of the Services in accordance with this Agreement, (i) resulted in unauthorized disclosure of Customer's Confidential Information; or (ii) infringes or misappropriates such third party's US intellectual property rights, US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data; or (D) Third party Products.
Customer Indemnification Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third party Claim or to participate in the defense thereof by counsel of its own choice.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
No Breach or Default In no event will either Party be liable or responsible to another party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
Sole Remedy THIS SETS FORTH THE PARTIES' SOLE REMEDIES AND LIABILITIES AND OBLIGATIONS FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, PROVIDER'S AGGREGATE LIABILITY FOR SUCH CLAIMS SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID TO PROVIDER BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term The initial term of this Agreement unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until the agreed upon end date, or if not provided, until there is a proper request for termination of services and the completion of the termination process by both Parties.
Automatic Renewal This Agreement will automatically renew unless an end date is provided or this agreement is terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty days prior to the expiration of the then-current term.
Termination Generally In addition to any other express termination right set forth in this Agreement:
Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 7 days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under this agreement.
ii. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section (4) and any other relevant provisions, and Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination.
Right to Terminate For any reason set forth herein or in the event that Customer breaches any term of this agreement, Provider may suspend or terminate Customer's account by deactivating any access to any information contained on the Provider servers related to Customer's account. Suspension hereunder shall specifically include the disabling of Customer's access to Provider's Services or any access to information or data related to Customer's account. Service charges will continue to accrue on suspended accounts and Customer continues to remain responsible for the payment of any such charges during the period of suspension.
Consequences of Termination on third parties. If Customer's or Customer's clients use of the Services is paid for by or through a third party, Customer or Customer's clients understand and agree that the third party has the right to have Customer or Customer's clients account suspended or terminated at any time for any reason and that their failure to pay for services that Customer or Customer's clients use could result in termination or suspension of Customer or Customer's clients access to the services and/or Customer or Customer's clients hosted data.
Early Termination Customer or Provider may terminate services at their discretion upon thirty (30) days' written notice
Survival This Section and Sections 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, and 20 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Generally After thirty days from date of termination, Provider has the right to permanently remove all Customer data from Provider's infrastructure, including live and archived data for Customer, and all live and archived data for Customer's Customers. Provider will not be responsible for any losses of sensitive data after thirty days from Customer termination date. It is the Customer's responsibility to request or perform a backup of all personal data on Provider's infrastructure within this thirty day period. Customer has right to request backup of personal and Customer data for a period of thirty days from date of termination, but will be assessed a fee.
Upon Termination Date Customer will not be allowed access to Provider infrastructure, and all data will be archived for no longer than thirty days from date of termination.
CUSTOMER AGREES AND ACKNOWLEDGES THAT PROVIDER IS NOT OBLIGATED TO RETAIN ANY CUSTOMER DATA FOR LONGER THAN THIRTY (30) DAYS AFTER TERMINATION THIRTY (30) DAYS IS REPRESENTED AS THIRTY CALENDAR DAYS, INCLUDING ALL WEEKENDS, HOLIDAYS OR DAYS PROVIDER IS CLOSED. MONTHS THAT INCLUDE AN ADDITIONAL DAY, (DECEMBER), OR MONTHS THAT ARE FEWER THAN THIRTY (30 DAYS) (FEBRUARY) WILL STILL BE TREATED AS THIRTY FROM DATE OF TERMINATION.
This Agreement and any applicable Statement of Work, and all matters arising out of or relating to those agreements, are governed by and construed in accordance with the substantive laws of the State of Florida, without regard to its conflict of laws principles.
Any dispute, controversy, or claim arising out of or relating to this Agreement or SOW, or breaches thereof, shall be required to be brought and resolved through binding arbitration administered by the American Arbitration Association (AAA). The arbitration shall take place in Orange County, Florida, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The parties irrevocably and unconditionally agree that any action to compel arbitration, to enforce an arbitration award, or seeking injunctive or other equitable relief (if such relief is explicitly not available through arbitration) arising out of or relating to this Agreement shall be brought and litigated exclusively in the federal and state courts sitting in Orange County, Florida. The parties hereby consent to the exclusive jurisdiction and venue of such courts and waive any objection to such jurisdiction or venue based on inconvenient forum or any other ground.
The parties hereby waive any right to a trial by jury or to participate in a class action.
Complete Understanding This Agreement, together with any Statements of Work executed hereunder, constitutes the complete and exclusive agreement of the Parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof.
Subcontracting Provider may subcontract any work under this Agreement to any third party without Customer's prior written consent; provided however, the subcontractors who gain access to Customer Data and/or Customer Information will be subject to confidentiality terms as least as stringent as those set forth in Section 8.
Severability If any provision of this Agreement is held to be invalid or unenforceable under the circumstances, such provisions application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.
Non-assign ability and Binding Effect Customer shall not assign this Agreement to any third party without the prior written consent of Provider which will not be unreasonably withheld, except that either Party may, without prior written consent, assign this Agreement to any successor of all or substantially all of its stock or assets.
Notices All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses first listed above or at such other address for a party as shall be specified by like notice. In addition to those names specified above.
Amendment and Modification; Waiver No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment, rescission, termination, or discharge of this Agreement; and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
State or Federal Tax Code Provider is not responsible for Customer's obligations under State or Federal Tax Code, procedures, or regulations related to maintaining electronic or hard copies of tax returns. Customer is solely responsible for its compliance with its obligations under State or Federal Tax Code, procedures, or regulations and its relation to maintaining electronic or hard copies of Customer information or tax returns.
QUOTE ATTACHED
FEES: FEES AND CORRESPONDING SUBSCRIPTION PERIOD LENGTH, PAYMENT REQUIREMENTS, INCLUDING INVOICING AND ANY RENEWAL FEE NOTIFICATION PROCESS OR RENEWAL FEE INCREASE LIMITATIONS.
AUTHORIZED USERS:
- Issue affecting entire system or single critical production function
- System down or operating in materially degraded state
- Data integrity at risk
- Material financial impact
- Declared a Critical Support Request by the Customer
- Widespread access interruptions
- Primary component failure that materially impairs its performance
- Data entry or access is materially impaired on a limited basis
