IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU ARE OVER THE AGE OF EIGHTEEN (18) AND POSSESS THE LEGAL CAPACITY TO BIND YOURSELF TO ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS ORGANIZATION OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO BIND THAT ENTITY TO THIS AGREEMENT. THE PERSON OR ENTITY ENTERING INTO THIS AGREEMENT WITH PROVIDER SHALL HEREAFTER BE REFERRED TO AS THE “CUSTOMER.”
This Agreement governs Customer’s purchase and use of the Services ordered by Customer that, when accepted by Provider, Provider provides to Customer (the “Services”). This Agreement incorporates the following additional documents by reference: (i) Provider’s Acceptable Use Policy posted at gic.capitalonline.net.com (“Acceptable Use Policy” or “AUP”); and (ii) the Service Levels set forth in Appendix 1 hereto.
The term of this Agreement (“Term”) will begin when the first of the following occurs: (i) Customer completes the online account registration process and accepts the terms and conditions of this Agreement, or (ii) Customer uses the Services. The Term will continue until terminated by either party in accordance with the provisions of this Agreement.
Provider warrants that it will perform the Services using commercially reasonable care and skill. THESE ARE THE EXCLUSIVE WARRANTIES FROM PROVIDER AND REPLACE ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. The warranty for Services ends when the Services end. These warranties will not apply if there has been misuse, modification, damage not caused by Provider, or failure to comply with Provider’s instructions. ANY THIRD PARTY SERVICES THAT MAY BE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, THOUGH THIRD PARTIES MAY PROVIDE THEIR OWN WARRANTIES TO CUSTOMER DIRECTLY.
Each party to this Agreement is responsible for complying with: i) all laws and regulations applicable to its business and content, including, without limitation, any local filing, monitoring licensing, permitting, or reporting requirements (such as, without limitation, ICP registration in China), and ii) import, export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Customer is responsible for its use of the products and services of Provider and of any third parties. Without limiting the foregoing, Customer is responsible for all activities that occur under Customer’s account(s), regardless of whether the activities are undertaken by Customer, any end users, Customer’s employees, or some other third party (including Customer's contractors or agents) and, except to the extent caused by Provider’s breach of this Agreement, Provider and its affiliates are not responsible for unauthorized access to Customer’s account. Customer will contact Provider immediately if Customer believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen. Customer shall ensure that its end users’ use of the Services is not illegal, unlawful, or in violation of the Acceptable Use Policy. Customer will be solely responsible for any penalties or liabilities incurred as a result of Customer’s noncompliance with the provisions of this Section 3. Customer shall not use the Services for unlawful, obscene, offensive or fraudulent content or activity, in any jurisdiction for any user, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly. Customer may only have one account.
4.1 Customer is solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all content. Provider may immediately (and without prior notice) block access to any content (i) that Provider believes violates the law, misappropriates or infringes the intellectual property rights of a third party, or violates the terms and conditions of this Agreement; or (ii) pursuant to the Digital Millennium Copyright Act, a subpoena, or an order issued by a court or government agency.
4.2 Customer is responsible for obtaining all necessary permissions to use, provide, store and process content in or with the Services and grants Provider permission to do the same. Customer is responsible for adequate content back-up. Some of Customer’s content may be subject to governmental regulation or may require security measures beyond those specified by Provider for an offering. Customer will not input or provide such content unless Provider has first agreed in writing to implement additional required security measures.
4.3 Customer must use reasonable security precautions (including, without limitation, keeping its password and other account details secret) in connection with its use of the Services. Customer is responsible for use of the Services by any person who accesses the Services with Customer’s account credentials. NEITHER PROVIDER NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY UNAUTHORIZED ACCESS (E.G., HACKING) INTO PROVIDER’S SERVERS OR SERVICES, OR CUSTOMER’S TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO CONTENT, PROGRAMS, PROCEDURES, OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW. Provider will give Customer notice of any unauthorized third party access to Customer’s content of which Provider becomes aware and will use reasonable efforts to remediate identified security vulnerabilities. If content is lost or damaged, Provider will assist Customer in restoring it to the Services from Customer’s last available backup copy in compatible format.
4.4 Customer represents and warrants to Provider that: (a) Customer or Customer’s licensors own all right, title, and interest in and to content provided by Customer or that Customer is authorized to use such content in accordance with this Agreement; (b) Customer has all rights in such content necessary to grant the rights contemplated by this Agreement; and (d) the information Customer provided in connection with Customer’s registration for, subscription to, and use of the Services is accurate and complete.
4.5 Customer may not use the Services for any application where a failure of those Services could result in death, serious injury, environmental damage, or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. Customer acknowledges that Provider makes no assurances that the Services are suitable for any high-risk uses.
5.1 Customer agrees to pay all applicable charges specified by Provider, charges for use in excess of authorizations, any customs or other duty, tax, levy, or fee imposed by any authority resulting from Customer’s activities under this Agreement, and any late payment fees. All fees for Services will be charged to Customer’s credit card or account without invoice. The calculation of all fees for Services will be based solely on Provider’s records and data. Any amounts due not received by Provider within thirty (30) days of the date that payment becomes due will be subject to interest at the lesser of 1.5% per month or the highest rate permitted by applicable law plus any attorneys' fees and costs incurred by Provider in collecting any such amounts.
5.2 For prepaid Services, in order to activate the Services, Customer shall deposit funds to Customer’s account in accordance with Provider’s instructions. The Services shall not be activated until Customer’s account contains sufficient funds. Provider shall decrement Customer’s account balance in increments that are rounded up to the nearest minute, reflecting Customer’s actual minutes of usage. For Customer’s convenience, provider will provide estimates of monthly/weekly/daily cost upon written request. Customer may, at Customer’s option, set up recurrent payments to avoid service interruption for non-payment. When the balance in the account is insufficient to cover amounts due, provider will push a low balance alert on Customer’s network management page. Provider will also send alerts to Customer via email or text messages if applicable. Customer shall replenish the account balance within 72 hours after receiving such alert. The Services will be suspended immediately when Customer’s account balance drops to zero. If Customer fails to timely replenish its account balance to levels sufficient to cover amounts due, Provider may immediately terminate this Agreement or the Services upon the expiration of the 72-hour period set forth above.
In the case that Customer is not obtaining prepaid Services, Customer’s credit card will automatically be charged at the end of each month without invoice. Customer may access and download invoices at any time from Provider’s web portal.
Upon termination of this Agreement or the Services, Provider may permanently delete data associated with Customer’s account, including, if applicable, any data of Customer’s users. Any amounts added by Customer to an insufficient balance shall first be applied toward delinquent payments.
5.3 Provider may change pricing for the Services on thirty (30) days’ prior notice.
5.4 Any prepaid balance remaining in Customer’s account upon termination of this Agreement will be refunded, provided, however, that Provider shall first deduct processing fees from such amount, so that any refund will be net of processing fees.
5.5 Fees that are not disputed within within thirty (30) days after of the date on which they are charged will be conclusively deemed to be accurate. Any billing disputes must be in writing, and include a detailed statement describing the nature and amount of the disputed charge(s) and the reason(s) why a credit or refund is being requested. Customer shall cooperate fully with Provider to promptly address and attempt to resolve the disputed charge(s). Irrespective of the foregoing, Customer shall pay the full amount of the invoice, including the disputed amounts, in a timely manner and in accordance with the payment terms set forth in this Agreement.
5.6 Customer agrees to pay all taxes on the Services that Provider is required by law to collect, including transaction, local, value-added, sales, and service taxes. All fees charged by Provider are exclusive of any such taxes, duties, levies or fees. In no event will Customer be responsible for any taxes on Provider’s income. If Customer is exempt from paying taxes on the Services, Customer agrees to promptly furnish to Provider reasonable written proof of Customer’s tax exempt status.
5.7 Customer will i) maintain, and provide upon request, records, and system tools output, as reasonably necessary for Provider and its independent auditor to verify Customer’s compliance with this Agreement, and ii) promptly pay charges and liabilities determined as a result of such verification. These compliance verification obligations remain in effect during the Term and for two years thereafter.
6.1 Provider reserves the right to change or discontinue the Services, including changing or removing Services features or functionality, at any time and without advance notice.
6.2 Provider may change the AUP to add or modify restrictions on use of the Services, provided that the changes are reasonable and consistent with hosting industry norms. If Provider makes a change to the AUP, Provider will publish a revised version of the AUP at https://cdsglobalcloud.com/ If compliance with the revised AUP would adversely affect Customer’s use of the Services, and Customer gives Provider written notice of objection no later than thirty (30) days following the date that the revised AUP takes effect, Provider will not enforce the revision as to Customer until forty-five (45) days following the date the revision would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version of the AUP. During the forty-five (45) day period, Customer may elect to terminate this Agreement and any Services on these grounds by giving written notice to Provider. Provider will not charge Customer an early termination fee for a termination on these grounds. If Customer does not elect to terminate during the forty-five (45) day period, then the revised AUP will become effective as to Customer as of the end of the forty-five (45) day period. If Customer terminates under this Section, Provider may decide to waive that AUP change as to Customer and keep the Agreement and Services in place for the remainder of the term then in effect.
Provider may suspend, revoke or limit Customer’s or any end user’s use of the Services if Provider determines there is a material breach of Customer’s obligations, a security breach, or violation of law. Charges will continue to accrue for the Services during any suspension. If the cause of the suspension can reasonably be remedied, Provider will provide notice of the actions Customer must take to reinstate the Services. If Customer fails to take such actions within a reasonable time, Provider may terminate the Services and this Agreement.
8.1 Customer may terminate this Agreement for any reason by: (i) providing notice to Provider and (ii) closing Customer’s account for all Services for which Provider provides an account closing mechanism. Provider may terminate this Agreement for any reason by providing Customer 30 days’ advance notice. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement, provided the one who is not complying is given notice and reasonable time to comply. Failure to pay is a material breach. Upon any termination of this Agreement, Customer shall remain responsible for all fees and charges Customer has incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination. Upon termination of this Agreement, all Services charges accrued but unpaid as of the termination date and any out-of-pocket expenses incurred by Provider or imposed on Provider (e.g., ordered and non-cancellable equipment, licenses, termination charges) shall become immediately due and payable.
8.2 Customer agrees and acknowledges that, effective seventy-two (72) hours after the expiration or termination of this Agreement for any reason, Provider has the right, without liability or further obligation, to permanently erase all content and data stored by Provider.
“Confidential Information” means information disclosed by one party to the other that, due to its character, nature, or method of transmittal, a reasonable person under like circumstances would treat as confidential and proprietary, even in the absence of a "confidential" or "proprietary" designation on such information and the absence of any subsequent written confirmation or identification of such information¸ including, without limitation, Provider’s unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information Customer may observe on a tour of a data center), and other proprietary information or technology. Information that is independently developed by a party without reference to the other party’s Confidential Information, or that becomes available to a party other than through violation of this Agreement or applicable law, shall not be “Confidential Information” of the other party. Each party agrees not to use the other’s Confidential Information except in connection with the provision, performance or use of the Services, as applicable, the exercise of the parties’ respective legal rights under this Agreement, or as may be required by law. Each party agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to each of its service providers, contractors, agents, and representatives on a need to know basis, provided that such service providers, contractors, agents and representatives agree in writing to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) to a law enforcement or government agency if required, or if the party reasonably believes that the other’s conduct may violate applicable criminal law; (iii) as required by law; or (iv) in response to a subpoena or other compulsory legal process, provided that, if permissible to do so, each party agrees to give the other party prompt written notice prior to disclosing Confidential Information under this subsection, unless the law forbids such notice. The receiving party acknowledges that disclosure of the disclosing party’s Confidential Information could cause substantial harm to the disclosing party for which damages alone might not be a sufficient remedy and, therefore, that, upon any actual or threatened disclosure by the receiving party of the disclosing party’s Confidential Information, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10.1 PROVIDER WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, BUSINESS, VALUE, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
10.2 EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, PROVIDER’S ENTIRE LIABILITY FOR ALL CLAIMS RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER UP TO THE AMOUNTS PAID (IF RECURRING CHARGES, UP TO 12 MONTHS’ CHARGES APPLY WITH RESPECT TO THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM FOR DAMAGES FIRST AROSE) FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM, REGARDLESS OF THE BASIS OF THE CLAIM. THIS LIMIT APPLIES COLLECTIVELY TO PROVIDER, ITS PARENT, SUBSIDIARIES, AFFILIATES, CONTRACTORS, AND SUPPLIERS.
10.3 PROVIDER DOES NOT WARRANT UNINTERRUPTED, COMPLETELY SECURE OR ERROR-FREE OPERATION OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION, CONTENT, AND PROPERTY. THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS”, “AS AVAILABLE” AND “WITH ALL FAULTS.”
10.4 CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM CUSTOMER’S FAILURE TO MAINTAIN ACCURATE CONTACT OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S FAILURE TO RECEIVE CRITICAL INFORMATION ABOUT THE SERVICES.
11.1 Customer will defend, indemnify, and hold harmless Provider , Provider’s affiliates, contractors, and licensors, and each of their respective employees, officers, directors, and representatives from and against any claim, damage, loss, liability, cost, and expense (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or any end user’s use of the Services (including any activities under Customer’s account and use by Customer’s employees, agents, contractors, and personnel); (b) Customer’s or any end user’s negligence, willful misconduct, breach of this Agreement (including, without limitation, any fines or penalties imposed on Provider as a result of Customer’s noncompliance with Section 3 of this Agreement), or the violation of any applicable law by Customer or any end users; (c) content or the combination of content with other applications, content, or processes, including any claim involving alleged infringement, or misappropriation of third party rights by content or by the use, development, design, production, advertising or marketing of content; (d) a dispute between Customer and any end user or other third party; (e) Customer’s relationship with the manufacturer, licensor, or distributor of any software installed or stored on or through the Services; (f) the actions or omissions of any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions and measures. If Provider or any of its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process relating to the above, Customer will also reimburse Provider for reasonable attorneys’ fees and expenses, as well as Provider’s employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Provider’s then-current hourly rates.
11.2 Customer may: (a) Use counsel of Customer’s own choosing to defend against any such claim; and (b) settle the claim as Customer deems appropriate, provided that Customer obtains Provider’s prior written consent before entering into any settlement, which consent shall not be unreasonably delayed or denied.
11.4 Provider has no responsibility for claims based in whole or part on non-Provider products and services, items not provided by Provider, or any violation of law or third party rights caused by content, materials, designs, or specifications.
12.1 Customer may not copy any software provided for Customer’s use unless expressly permitted by this Agreement. Customer may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software or documentation provided for Customer’s use. Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software provided for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to Provider . If Customer uses any software provided by a third party on or in connection with Customer’s hosted system, software and/or technology, Customer represents and warrants to Provider that Customer has the legal right to use the software in that manner. On Provider’s written request, Customer will certify in writing that Customer is in compliance with the requirements of this paragraph and any other software license restrictions that are part of this Agreement, and will provide evidence of Customer’s compliance as Provider may reasonably request.
12.2 If Provider has agreed to install, patch or otherwise manage software in reliance on Customer’s license with a software vendor or any third party (rather than Provider’s license with the software vendor), then Customer represents and warrants that Customer has a written license agreement with the vendor or third party that permits Provider to perform these activities. Customer agrees that Customer will provide Provider with evidence of licensing as Provider may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the license.
(a) FROM PROVIDER. Except as otherwise provided herein, notices Provider sends to Customer under this Agreement must be sent by email to the email address included in Customer’s account profile at the time the notice is sent. Customer is responsible for keeping its email address current and accurate at all times. Any notice sent to the then-current email address will be deemed to be received when it is sent even if Customer does not actually receive it. (b) FROM CUSTOMER. Except as otherwise provided herein, notices Customer sends to Provider under this Agreement must be in writing and sent at Customer’s own cost either (i) by email firstname.lastname@example.org; or (ii) by certified mail, return receipt requested, or nationally recognized courier (e.g., FedEx or U.P.S.) with a signature required to the following address: 10000 N. Central Expressway, Suite 447, Dallas, TX 75231. (c) WHEN EFFECTIVE. A notice under this Agreement is effective when received. An email notice under this Agreement will be deemed received when sent. All other notices will be deemed received when signed for as indicated by the signed delivery receipt.
14.1 Except as otherwise expressly set forth in this Agreement, this Agreement does not convey to either party any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets. Each party retains all right, title and interest in and to its respective trade secrets, inventions, copyrights, and other intellectual property. Customer acknowledges that Provider or its licensors or vendors own all right, title and interest in and to the Services, all copies thereof, and all proprietary rights therein, including copyrights, patents, trademarks, logos, domain names, or other brand features of Provider. Any intellectual property developed by Provider during the performance or provision of the Services shall belong to Provider. The Services may include various utility and deployment scripts, customizations to templates, code extending the functionality of third party applications licensed to Provider, printed and electronic documentation, and other data that Provider has or may develop at its expense before and while this Agreement is in effect (the “Provider Content”). Subject to Customer’s compliance with this Agreement, Provider grant to Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, worldwide, royalty-free license to use Provider Content while the Agreement is in effect solely to access and use the Services in accordance with the terms and conditions of this Agreement. Customer may not translate, reverse engineer, decompile, disassemble, rent, lease, assign, transfer, redistribute, or sublicense any Provider Content.
14.2 If Provider or any of its customers are faced with a credible claim that any portion, component, or element of the Services infringes the intellectual property rights of a third party, and Provider is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Provider may, in its sole discretion, terminate the Services on reasonable written notice of at least ten (10) business days, and will not have any liability on account of such termination except to refund amounts prepaid by Customer for Services not received as of the time of termination.
Customer may not assign this Agreement or resell the right to use the Services without Provider’s prior written consent. Provider may assign this Agreement at any time. Provider may use third party service providers and contractors to perform and/or provide all or any part of the Services, but Provider remains responsible to Customer under this Agreement for Services performed and/or provided by its third party service providers to the same extent as if Provider performed the Services itself. Any subcontractor will be deemed to be an independent contractor and not Provider’s partner, agent, or employee. Provider may collect and report information regarding Customer’s use of the Services to its subcontractors, licensors or suppliers as required to provide Customer with the Services.
Both parties agree to the application of the laws of the State of Texas, without regard to conflict of law principles. The parties agree that the state and federal courts located in Dallas County, Texas shall have exclusive jurisdiction with regard to any claim, action, suit or proceeding arising out of or otherwise relating to this Agreement and hereby further irrevocably and unconditionally waive and agree not to plead in any such court that any such claim, action, suit or proceeding brought in any such courts has been brought in an inconvenient forum. Neither party will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP.
17.1 Except as provided in this Section 17.1, no amendment to this Agreement will be effective unless it is in writing signed by both parties. Provider may modify this Agreement (including any Policies) at any time by posting a revised version on Provider’s website or by otherwise notifying Customer in accordance with Section 13. Amendments to this Agreement will become effective upon the earlier to occur of (i) Customer’s acceptance of the amended terms by clicking an online confirmation or acceptance button, or by clicking an acceptance link provided in an email sent to Customer; or (ii) thirty (30) days after Provider provides Customer with notice of the amendment in accordance with the notice provisions in Section 13. Customer’s continued use of the Services after the effective date of an amendment to this Agreement will be deemed to be Customer’s acceptance of that amendment.
17.2 If any provision of this Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.
17.3 If there is a conflict between the terms of any of the documents that comprise this Agreement, the documents will govern in the following order: this Agreement, and the Acceptable Use Policy.
17.4 Each party may enforce each of its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
17.5 Provider and its affiliates, and their subcontractors, may process and store business contact information of Customer personnel in connection with the performance of this Agreement wherever they do business. Provider may use personnel and resources in locations worldwide and third party suppliers to support the delivery of Services.
17.6 Provider is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of Customer’s regulatory obligations, or assume any responsibility for Customer’s business or operations. Each party is responsible for determining the assignment of its personnel and contractors, and for their direction, control, and compensation. Provider does not have a landlord-tenant relationship with Customer, and Provider is not Customer’s bailee or warehouseman with respect to any data or content.
17.7 Customer has no right to access Provider’s premises or data centers and no right to possess or own any IP address, software, server hardware or other equipment included in the Services.
17.8 Customer will be notified of scheduled maintenance.
17.9 The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
17.10 This Agreement will be construed and interpreted in a neutral manner. Should any provision of this Agreement require interpretation or construction, the parties agree that this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party who prepared this Agreement.
17.11 Any terms that by their nature extend beyond the termination of this Agreement remain in effect until fulfilled, and apply to successors and assignees.
17.12 Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control.
17.13 No right or cause of action for any third party is created by this Agreement or any transaction under it.
17.14 This Agreement is the complete and exclusive agreement between Customer and Provider regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
Provider will provide service availability of 99.9%, calculated on a calendar month basis. The service availability will be calculated as follows: [Total number of minutes service is available in a calendar month DIVIDED BY (Total number of minutes in a calendar month LESS Excused Downtime)]
“Excused Downtime” means downtime caused by:
(a) Customer environment issues affecting connectivity or interfering with the Services or any other Customer software or equipment, or operator error by Customer;
(b) scheduled outages;
(c) Customer’s violation of the Cloud Services Agreement including the Acceptable Use Policy, Customer-authored/initiated code, upgrades or other changes to the Services, interruptions or use that exceeds Customer’s plan capacity;
(d) third party attacks, including, without limitation, hacks, distributed denial-of-service attacks or any other third party actions intended to cause harm or disrupt the Services;
(e) emergency maintenance of the Services (for which Customer may not receive advance notice);
(f) force majeure events.
Provider will proactively ping the cloud server in 5 minute intervals. Upon receiving two consecutive “ping, no answers,” Provider will automatically open a trouble ticket after the second ping, no answer. Provider will then notify customer. The appropriate parties will be engaged and the necessary escalations will be executed in order to clear the trouble. If access to Customer’s equipment is required to assess the problem and clear the trouble and Provider is unable to access Customer’s equipment, Provider will not be responsible for clearing the trouble in a timely manner. All status updates are communicated to Customer via email from open to close of the trouble ticket.
Customer service is available 24 x 7. Email address: email@example.com
Technical support is available 365 days per year, 24 x 7. Support is provided with respect to general consultation with respect to technical problems with the Services, assistance with problems stemming from Customer’s server, and emergency notification. In order to allow Provider to provide support requiring access to Customer’s server, Customer must designate an individual who can authorize such access and whom Provider may contact with access requests. It is Customer’s responsibility to notify Provider of changes in the contact information of such designated individual. Authorization for server access will consist of the designated contact person’s signature, or, if signature cannot be obtained, by means of a call or mailing to a designated mailbox, with the authorizing individual providing such person’s ID number to confirm authorization.
Customer will receive a credit of five percent (5%) of Customer’s monthly fee for each hour in which Provider fails to meet the Service Availability for such month (“SLA CREDITS”). In order to receive SLA Credits, Customer must make a request in writing to Provider via Customer Support or to Customer’s account manager (if applicable) within 30 days of the event giving rise to such SLA Credits. SLA Credits are based on Provider’s monitoring, may not exceed the total amount of fees Customer has paid for the month in which Provider failed to meet the service availability, are forfeited at the expiration or termination of the Agreement, may not be aggregated, and will not be paid in cash.
Last updated April 25th, 2016
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