THIS MANAGED SERVICES AGREEMENT (the "MS Agreement" or "Agreement") is made and entered into by and between Verito Inc., a Delaware corporation ("Provider"), and the customer identified in the applicable Statement of Work ("Customer").
WHEREAS, Provider provides a bundle of IT management support capacity and related services (the "MS Services") as described in a Statement of Work signed or otherwise agreed to between the parties;
WHEREAS, Provider may, as part of the MS Services, host or require Customer to host the designated software; and WHEREAS, Customer wishes to purchase and use these MS Services outlined in the applicable Statement of Work. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, Provider and Customer agree as follows:
Provider shall provide to Customer the MS Services as described in the applicable SOW and in accordance with this MS Agreement.
General Services: Provide services outlined within the applicable SOW relating to the operation and maintenance of the software listed within the SOW. Provider reserves the right to change the configuration of its systems and change or delete equipment or software at any time, provided that, if the changes have a material impact on Customer, Provider will provide Customer reasonable notice for such changes.
Hours of Availability: Provider shall use commercially reasonable efforts to make Provider services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Provider reserves the right to suspend Customers access to any Software or remote applications or services provided herein (i) in the event that Customer fails to fulfill its obligations under this Agreement, (ii) for purposes of scheduled maintenance, or (iii) for purposes of emergency maintenance work as determined by Provider.
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.
Proactive Monitoring: Provide information as requested regarding server capacity and network bandwidth, including reports Customer may request showing saturation levels, Performance benchmarks, as changed from time to time, will be reasonable and appropriate.
Backup: Provide information regarding back-up procedures, security, and other functions as reasonably requested by Customer and Section 5 and as otherwise described on the exhibits referenced herein.
Security Software: Evaluate security services applicable and help with administration of security measures including measures aimed at protecting data, maintaining compliance with vulnerability management programs, implementing and complying with strong access control measures, and as more fully described in the applicable Statement of Work.
Optional Support Services: Provider, in its sole discretion, may provide Optional Support Services to Customer at the Customer’s request, at Provider's standard hourly rates then in effect. The terms and conditions of this Agreement govern the provision of any Optional Support Services delivered by Provider to Customer.
Limitations:
Notification: Customer shall immediately notify Provider of any Error and provide Provider with reasonable detail of the nature and circumstances of the Error.
Compliance: Customer shall comply with all terms and conditions of this Agreement and any Software License Agreement.
Use: Customer shall use the Software solely in accordance with the terms and conditions set forth in any Software License Agreement and this MS Agreement and the corresponding SOW.
Environment: Customer shall set up, maintain, and operate in good repair and in accordance with the specifications of Provider all environmental conditions and components, including all networks, systems, and hardware, in or through which: (a) the Software operates; and/or (b) the Customer accesses or uses any of the Services.
Access: In connection with the performance of the Services, Customer shall provide Provider and its agents with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Provider to perform its obligations (including the provision of the Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:
reasonable, uninterrupted access, both physical and virtual, to the Software and Customer's premises, systems, networks, and facilities;
a safe working environment;
reasonable access to the appropriate Customer personnel, including network, systems, operations, and applications personnel; and
all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.
Data Back-up: Unless it is otherwise agreed or stipulated, Customer agrees to back up all data, files, and information prior to the performance of any Services by Provider and hereby assumes sole responsibility for any lost or altered data, files, or information it had failed to backup.
Remote Services and License of Client Utilities Package: . To enable Customer to receive and use the MS Services, Provider grants Customer, and Customer accepts, a non-exclusive license to install, store, operate and use the object code version of the current release of the client utilities, including program routines or database features that may be provided by Provider (the "Client Utilities Package"). The Client Utilities Package is for Customer's use solely in connection with the Services. With prior written consent from Provider, Customer may assign its rights to Services under this Agreement to its affiliates with notice to Provider, provided that any such assignee, sublicensee, or successor shall, as a condition of such assignment, sharing, or sublicense, be bound by and subject to all applicable terms, conditions, and obligations of this Agreement. Customer shall remain responsible and liable for all acts and omissions of any such assignee, sublicensee, or successor related to their access to or use of the Services or their adherence to this Agreement, as if such acts or omissions were those of the Customer. Customer is responsible for installation of the Client Utilities.
Customer acknowledges and agrees that Provider utilizes Remote Services to assist Customer in analyzing and Resolve an Incident. Customer agrees to provide Provider with access to Customer's network/system/computers to install and use remote access software ("Remote Access Software") necessary for Provider to provide the remote services to Customer. The Remote Access Software may contain technological measures designed to collect and transmit to Provider certain diagnostic, technical, usage, and related information, including information about Customer's computers, systems, network, and any Third-Party Materials, relating to or derived from Customer's use of Software. Customer acknowledges and agrees that: (a) Provider may collect, maintain, process, and use this information in the course of performing the Services under this Agreement, provided that Provider shall only access, control, and gather such information that it reasonably believes to be necessary to assist in analyzing and Resolving an Incident; and (b) all or portions of the Remote Access Software may remain on Customer's network/system/computers after an Incident is Resolved.
Provider will comply with the procedures and protocols described in its security procedures with respect to the MS Services. Provider represents and warrants that its security procedures will be in substantial compliance with: (i) industry standards for businesses similar to Provider's; (ii) Customer's reasonable security procedures and requirements (including identification badges) as are promulgated by Customer from time to time, provided such rules have been provided to Provider with sufficient advance notice to reasonably permit Provider's compliance; and (iii) applicable law and industry standards.
In providing the MS Services, Provider personnel shall not attempt to access, or permit unauthorized access to, any Customer Data (as defined in the Agreement) except as required to perform its obligations under this MS Agreement. If unauthorized access occurs (or is reasonably suspected), Provider shall immediately report such incident to Customer and describe in reasonable detail the information that was accessed. In the event that Provider becomes aware of (or reasonably suspects) that any Customer data (or any information or material that can be used to access Customer data) that is stored or processed by Provider or its contractors has been compromised, each such event, an "Information Security Breach"), Provider shall promptly notify Customer in writing (which may be by email) and provide commercially reasonable assistance in providing requested information about the event. For purposes of this obligation, "compromise" should be read to include, without limitation: (i) any unauthorized access to Customer data, (ii) any inadvertent disclosure of Customer data, (iii) any known or suspected misuse of Customer data, (iv) any suspected use of Customer data by any person outside of the scope of that person's authority (even if such use does not result in harm to the individual data subject), and (v) any known or suspected loss, alteration or destruction of Customer data other than as required (or permitted) by the Services.
All data provided by Customer or its authorized users pertaining to its or their business, personnel, clients or accounts processed by or stored in Provider's systems shall be kept confidential by Provider, shall be used only to carry out this Agreement, and may not be disclosed to anyone except employees, agents, and contractors of Provider who have a "need to know" the same in order for the administration and performance of the Services. All such data shall be and remain the property of Customer or the authorized users. Provider may use such information, during and after the Term of this Agreement, for administrative, monitoring, investigative and back-up. Provider shall provide Customer with additional assurances or evidence of compliance regarding the confidentiality of such matters as Customer considers necessary or appropriate to comply with applicable laws and regulations, audit inquiries, or privacy policies Customer may adopt in the future.
Provider shall return to Customer all of Customer's information, data, and files in such form as Customer may reasonably request. Provider may charge Customer its standard rates for such services and any related expenses incurred to provide such services.
Provider represents and warrants that it has established, and agrees it will maintain throughout the Term, a disaster recovery plan and business continuity plan (the "Contingency Plan") that is designed to enable Provider to recover from a disaster or major system failure and continue providing Services to customers, including Customer, within the recovery time objectives set forth in the Contingency Plan. An executive summary or comprehensive description of the current Plans, which may change from time to time, shall be provided to Customer at its request. Provider will test the operation and effectiveness of the Contingency Plan at least annually. On each anniversary date of the Service Commencement Date, Customer shall have the right to review Consultant's then current Plans.
Provider represents and warrants that (i) the Services shall perform materially in accordance with the specifications provided to Customer, (ii) the functionality of the Services will not be materially decreased during a subscription term, and (iii) the Service will not contain or transmit to Customer any malicious code (meaning viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs).
Provider represents and warrants that it has the right to provide Customer and its affiliates with the services without violating the rights of any other person or entity and that the Services do not infringe the intellectual property rights of any other person or entity.
Customer represents and warrants that (i) Customer's access to and use of the MS Services, Software, Deliverables, and the provision of Customer Data and any other materials to Provider, will at all times comply with all applicable terms and conditions of this Agreement, any applicable SOW, all Documentation, and all applicable laws and regulations; (ii) Customer has, and will maintain all necessary rights, licenses, and consents to provide Customer Data and any other materials to Provider for the purpose of receiving the Services and for Provider to perform the Services as contemplated by this Agreement, without infringing, misappropriating, or otherwise violating any intellectual property rights or other rights of any third party; (iii) that all information, data, and materials, including Customer Data, provided by Customer or its Authorized Users to Provider are accurate, complete, and do not contain any malicious code; (iv) Customer will provide Provider with all necessary cooperation, assistance, and access to its premises, systems, networks, and personnel as reasonably requested by Provider to perform the Services hereunder; and (v) Customer will monitor and be responsible and liable for all acts and omissions of any assignee, sublicensee, or successor related to their access to or use of the MS Services and their adherence to this Agreement.
Subject to earlier termination as provided herein, the initial term of this MS Agreement shall commence on the Effective Date defined in the applicable Statement of Work and shall continue for a period described in the applicable Statement of Work (the "Initial Term"). The first payment shall be due by the date described in the applicable Statement of Work.
Unless otherwise agreed in writing, upon expiration of the Initial Term, this MS Agreement shall automatically renew for additional one (1) year terms ("Additional Terms") unless either party gives the other party written notice at least ninety (90) days prior to the expiration of the then current term of such party's intent not to renew. The Initial Term and any applicable Additional Terms are referred to hereinafter as the "Term."
The parties acknowledge that Provider shall commence performance of the MS Services on a date to be mutually agreed upon in writing by the parties, but in all events no later than the Full Service Availability Date as defined in the applicable SOW.
This MS Agreement may be terminated for cause as follows:
If Customer fails to pay Provider any amounts owed when due hereunder, Provider may, within thirty (30) days after providing Customer written notice of such failure terminate this MS Agreement.
. If either party breaches any material term or condition of this MS Agreement or the Agreement and fails either to cure such breach within thirty (30) days after receiving written notice specifying the breach, or for those breaches which cannot reasonably be cured within thirty (30) days, promptly commence curing such breach and thereafter proceed with all due diligence to cure such breach, then the party not in breach may, by giving written notice to the breaching party, terminate this MS Agreement.
In the event of the termination of this MS Agreement by Provider for breach by Customer, Provider will provide transition assistance to Customer with respect to the terminated MS Services and Customer shall pay to Provider the regular recurring MS Fees for the lesser of three (3) months or the remainder of the Initial Term or Additional Term, as applicable.
Customer will pay a service fee in the amount specified in the applicable Statement of Work to Provider in consideration for Provider's providing of MS Services set forth in the applicable Statement of Work and for the Provider Software Products within the applicable Statement of Work. Unless otherwise stated in the applicable SOW, the first Service Fee is due on the Full Service Availability Date; subsequent monthly fees are due on the first calendar day of the month in which MS Services are provided; and Monthly Service Fees, including the first payment due shall be pro-rated for any partial month.
Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
except for the express limited warranties set forth in this agreement, the licensed software, the services, and the deliverables are provided "as is." provider hereby disclaims all warranties, whether express, implied, statutory, or other (including all warranties arising from course of dealing, usage, or trade practice), and specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. without limiting the foregoing, provider makes no warranty of any kind that the licensed software, the services, the deliverables, or any other goods, services, technologies, information, or materials, or any products or results of the use of any of them, will meet customer's or other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any other goods, services, technologies, information, or materials except if and to the extent expressly set forth in the documentation, or be secure, accurate, complete, free of harmful code, or error free. all open source components and other third-party materials are provided "as is" and any representation or warranty of or concerning any of them is strictly between customer and the third-party owner or distributor of such open source components or other third-party materials. this agreement does not amend, augment, or otherwise modify the provider's warranties under the software license agreement or any conditions, limitations, or restrictions thereof.
Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses incurred by Customer resulting from any direct action by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such losses arise solely from an allegation in such action that the core MS Services provided by Provider, in the form provided by Provider, infringe any U.S. patent, copyright, or trade secret. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any: Third-Party Materials; patent issued on a patent application published in the US after the Effective Date; negligence, abuse, misapplication, or misuse of the Software or any Deliverables other than by Provider Personnel; events or circumstances outside of Provider's commercially reasonable control (including any bugs, defects, or malfunctions of any third-party software, hardware, firmware, system, or network).
Customer shall indemnify, defend, and hold harmless Provider and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, including Provider, a "Provider Indemnitee") from and against any and all losses incurred by the Provider Indemnitee in connection with any Action by a third party to the extent that such Losses arise from any allegation in such Action:
that any Intellectual Property Right or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
modification of the Software or any Deliverables by Customer other than: (A) by Provider Personnel in connection with this Agreement; or (B) with Provider's express written authorization and in strict accordance with Provider's written directions and specifications;
incorporation, combination, operation, or use of the Software, Services, or any Deliverables by Customer with any good, service, technology, or other matter whatsoever (including any software, hardware, firmware, system, or network) that is neither provided by Provider Personnel nor expressly authorized by Provider in any applicable Software License Agreement, this Agreement or the SOW;
good, service, technology, or other matter whatsoever (including any software, hardware, firmware, system, or network) directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Software or any Deliverables;
use of the Software or any Deliverables by Customer after Provider's notice to Customer of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights; or
failure by Customer to timely implement any maintenance release, modification, update, or replacement of the Software or any Deliverables made available to Customer by or on behalf of Provider,
of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under any applicable License Agreement or this Agreement;
of or relating to negligence, abuse, misapplication, misuse, or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Software, the Services, the Deliverables, or otherwise in connection with this Agreement; or
of or relating to use of or other act relating to the Software, the Services, or the Deliverables by or on behalf of Customer that is: (i) outside the scope of Customer's license under the Software and any applicable License Agreement or the purpose, scope, or manner of use authorized by the Software and any applicable License Agreement, this Agreement or the Documentation; or (ii) in any manner contrary to Provider's instructions.
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice which is reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If the MS Services or Deliverables, or any part of thereof, are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of any of the Services or Deliverables is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
obtain the right for Customer to continue to use such Services and/or Deliverables, as applicable, as contemplated by this Agreement;
modify or replace such Services and/or Deliverables, as applicable, in whole or in part, to seek to make these non-infringing, while providing reasonably equivalent features and functionality, and such Services and Deliverables as so modified or replaced will constitute Services and Deliverables under this Agreement; or
by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and/or Deliverables, provided that, subject to Customer's compliance with applicable post-termination obligations.
SECTIONS 13, 14, 15, and 16 SET FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE MS SERVICES AND DELIVERABLES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Exclusion of Damages: IN NO EVENT WILL PROVIDER, ITS AFFILIATES, LICENSORS, PROVIDER PERSONNEL, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF USE, DATA, BUSINESS, REVENUE, PROFIT, GOODWILL, OR REPUTATION, (b) BUSINESS INTERRUPTION, INCREASED COSTS, OR DIMINUTION IN VALUE, OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY: IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS AFFILIATES, PERSONNEL, AND SUBCONTRACTORS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID TO PROVIDER BY CUSTOMER IN THE TWELVE (6) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
The exclusions and limitations above do not apply to obligations to indemnify or liability for gross negligence or willful misconduct.
In no event will Provider be liable or responsible to Customer or 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 Provider'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. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable/diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
This Agreement and the related SOW, 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 the breach thereof, shall be required to be brought and resolved through binding arbitration brought before the American Arbitration Association or a mutually agreed alternative. The arbitration shall take place in Orlando, 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 state courts located in Orange County, Florida, or the United States District Court for the Middle District of Florida (Orlando Division). 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.
The rights and obligations of the parties set forth in this Section 21 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. Without limiting the generality of the foregoing, the following sections shall survive the termination or expiration of this Agreement: Section 4 (Data Ownership and Security), Section 9 (Post-Termination Rights and Obligations), Section 10 (Fees, with respect to any fees owed as of the termination date), Section 11 (Representations and Warranties), Section 12 (Disclaimer of Warranties), Section 13 (Provider Indemnification), Section 14 (Customer Indemnification), Section 15 (Indemnification Procedure), Section 17 (Limitations of Liability), Section 20 (Governing Law), Section 22 (Conflict), Section 23 (Entire Agreement), and Section 24 (Scope of Work).
In the event an inconsistency exists between this MS Agreement and any SOW, the SOW shall control for the terms which specifically relate to the scope and description of the MS Services being provided, prices, and terms. All other terms will be controlled by this Agreement in case of a conflict.
This MS Agreement, including the initial paragraph and the recitals to this MS Agreement, together with each Statement of Work, constitutes the entire understanding of the parties and supersedes any prior agreements or understandings, written or oral, between the parties with respect to the subject matter of this MS Agreement.
Each SOW will be governed by and incorporates by reference the terms of this Agreement. By executing an SOW, whether by physical or electronic signature, Customer expressly agrees to be bound by this Agreement in its entirety. This Agreement, as may be amended from time to time, can be provided upon request and will be made available at a designated URL.
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:
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.
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.
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 [Link to Your Terms of Service Page] 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
System Requirements. This information may change from time to time and can be found at Provider's website.
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.
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.
Security Customer shall adhere to the following security protocols:
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.
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.
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:
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
This Verito Inc. Veritshield WISP Services Agreement (“Agreement”) is entered into by and between you (“you,” “your,” or “Customer” ) and Verito Inc. (“we,” “our,” “us,” or “Verito”). Verito and Customer may also be referred to herein each as a “Party” or collectively as the “Parties.”
This Agreement governs the provision and use of the Services (as defined below). If you are entering into this Agreement on behalf of a company, organization, or other legal entity, you acknowledge that you are agreeing to this Agreement on behalf of such entity and represent to Verito that you have the authority to bind such entity to this Agreement.
BY USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT HAVE THE REQUISITE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING TO BIND ANY APPLICABLE ENTITIES) OR YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT AND DO NOT USE THE SERVICES.
Now, therefore, in consideration of the mutual covenants hereinafter set forth, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby covenant and agree as follows:
