Terms and Conditions – CamTechnologies, LLC (CamTech)
This License Agreement (“License”) is a legal agreement between you (End User or you) and HORNETSECURITY LIMITED, a limited liability company organized and existing under the laws of Malta, located at Hornetsecurity Limited, Block LS3 (Digital Hub), Level 1, Malta Life Sciences Park, San Gwann Industrial Estate, San Gwann, SGN3000, Malta
(Hornetsecurity, Licensor, us or we). These terms shall regulate the use of Hornetsecurity’s product and software solution that are listed in the relative order form, or otherwise accompany this EULA (“the Licensed Software”), and our respective rights and obligations.
BEFORE YOU SELECT THE “I ACCEPT” BUTTON AT THE BOTTOM OF THIS WINDOW, CAREFULLY READ EACH PROVISION OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR DOWNLOADING OR INSTALLING THE LICENSED SOFTWARE YOU WARRANT AND REPRESENT THAT:
• YOU ARE OVER THE AGE OF 18, YOU ARE OF THE LEGAL AGE REQUIRED IN YOUR STATE, PROVINCE, JURISDICTION OR RESIDENCE AND YOU ARE LEGALLY CAPABLE OF ENTERING INTO THIS AGREEMENT;
• YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE IS BEING PURCHASED, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT;
• ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED
REPRESENTATIVE OF THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE WAS PURCHASED, AS APPLICABLE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT;
• YOU ARE A BUSINESS USER AND THAT YOU ARE ACTING IN A BUSINESS OR PROFESSIONAL CAPACITY. YOU ARE NOT ABLE TO USE OUR LICENSED SOFTWARE IF YOU ARE DEEMED TO BE A CONSUMER IN TERMS OF CONSUMER LAWS.
IF ANY OF THE FOREGOING WARRANTIES AND REPRESENTATIONS DO NOT APPLY TO YOU OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU ARE LEGALLY BOUND TO CHOOSE THE “I DECLINE” BUTTON. IN SUCH CASE, YOU MAY NOT RECEIVE,
INSTALL OR USE THE LICENSED SOFTWARE. ANY USE OF THE LICENSED SOFTWARE OTHER THAN PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IS A VIOLATION OF COPYRIGHT LAWS AND CONVENTIONS.
IF YOU QUALIFY AS A CONSUMER FOR THE PURPOSES OF THE CONSUMER AFFAIRS ACT (CHAPTER 378 OF THE LAWS OF MALTA), YOU ACKNOWLEDGE THAT UPON DOWNLOADING THE LICENSED SOFTWARE ONTO YOUR CHOSEN MEDIUM YOU RELINQUISH YOUR RIGHT TO WITHDRAW FROM THE CONTRACT ACCORDING TO LAW. BY CLICKING THE “I AGREE” BUTTON BELOW YOU ARE ACCEPTING THIS LIMITATION TO YOUR RIGHT TO WITHDRAW FROM THE CONTRACT UPON DOWNLOADING THE LICENSED SOFTWARE. IF YOU DO NOT DOWNLOAD THE LICENSED SOFTWARE IMMEDIATELY, YOUR RIGHT TO FREELY WITHDRAW FROM THIS AGREEMENT IS LIMITED TO FOURTEEN (14) DAYS FROM CLICKING THE “I ACCEPT” BUTTON BELOW.
IF YOU CHOOSE THE “I DECLINE” BUTTON, OR IF YOU ARE A CONSUMER AND YOU WITHDRAW FROM THIS AGREEMENT AS EXPRESSLY AUTHORISED AS PER THE ABOVE, YOU MAY RETURN THE LICENSED SOFTWARE TO THE AUTHORISED RESELLER OR DEALER FROM WHOM YOU OBTAINED IT FOR A FULL REFUND, OR CONTACT THE LICENSOR THROUGH ITS CUSTOMER CARE PROCEDURE ON ITS WEBSITE, PROVIDED THAT YOU DO SO WITHIN THIRTY (30) DAYS FROM THE DATE OF YOUR PURCHASE AND THE LICENSED SOFTWARE IS ACCOMPANIED BY ALL ORIGINAL DOCUMENTATION, PACKAGING MATERIALS AND PROOF OF PURCHASE.
OPERATING SYSTEM REQUIREMENTS: The Licensed Software will only operate on hardware and systems that meet certain requirements as indicated and listed on the Licensor’s website at https://www.altaro.com/support.php These requirements may be changed from time to time. It is in your interest to ensure that your operating system meets the published requirements at all times.
1. Preamble. The Licensed Software is proprietary to the Licensor and is protected by copyright and intellectual property laws and treaties. This software product and the accompanying documentation is licensed, not sold to you pursuant to the terms and conditions of the End User License Agreement (“EULA”). The Licensor will remain the owner of the Licensed Software and documentation at all times.
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2. Grant of License Rights
2.1. Production License – Subject to your payment of the applicable license fee and full compliance with this Agreement, the Licensor grants to you the following rights:
(a) A non-exclusive and non-transferable license to install and use a single copy of the executable code version of the Licensed Software, including any modifications, corrections or updates supplied to you by Licensor upon installation or under a Maintenance/Support program and all associated user manuals, release notes, installation notes, and other materials delivered with the Licensed Software in printed or electronic formats (“Documentation”) on a single workstation or server, without restriction to the number of individual “stand alone” backup drives (e.g., tape drives, optical drives, etc.) connected to said single workstation or server unless your purchased Production license expressly stipulates that it provides you with additional features;
(b) The above right shall be perpetual, save for (i) termination as a result of your breach of these terms and (ii) the case where you are licensed under a Service Provider License Agreement (“SPLA”), where the duration of the right will be limited to the subscription period or as may be further regulated under the SPLA terms of the specified solution;
(c) The right to make a single copy of the Licensed Software and Documentation for archival purposes, back-up or business continuity, provided you reproduce all the original Licensed Software’s proprietary matter including without limitation copyright notices, warnings, labels, trademarks and trade names (“Proprietary Matter”) contained in the original copy of the Licensed Software and Documentation and a notice that it will not be used for transfer, distribution or sale.
2.2. Software Evaluation and Beta License
(a) We may make the Licensed Software, a part or feature thereof available as a pre-release or beta version (“Beta Version”). You expressly acknowledge that by their nature, such Beta Versions are work-in-progress and as a result they may
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contain bugs, cause systems to crash or result in data loss. You agree to stop using such Beta Versions when we request you to do so.
(b) Notwithstanding anything to the contrary contained in this EULA, if you are using a Beta or an Evaluation / Trial version of the Licensed Software and Documentation, your rights to use the Licensed Software and Documentation shall be subject to the following limitations:
i. your non-exclusive, non-transferable right to use and evaluate the Licensed Software and Documentation shall terminate thirty (30) days from the date of your initial installation of the Licensed Software (the “Evaluation License Period”) or as alternatively defined within the Beta or Early Access program;
ii. the Licensed Software and Documentation are furnished to you “AS IS” without warranty of any kind, including, but not limited to, implied warranties of quality and fitness for a particular purpose;
iii. the Licensed Software and Documentation may be used solely for Non Commercial / Non-Production evaluation by you;
iv. the Licensed Software and Documentation are licensed to you without fee only for the Evaluation License Period;
v. no rights of ownership, copyright or other intellectual property in the Licensed Software are being transferred to you;
vi. at no time shall you transfer the Licensed Software or Documentation to any third party; and,
vii. you agree to and do hereby indemnify, defend and hold harmless the Licensor and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and authorized re-sellers from any and all claims, losses, damages and expenses (including reasonable attorneys’ fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the Licensed Software and Documentation for evaluation purposes, your negligent or wrongful acts, and/or your violation of any applicable laws.
(c) All terms and conditions of this EULA not specifically modified by clauses 2.2 (a) and 2.2 (b) above shall apply to Software licensed under an Evaluation or Beta License.
2.3 Free license
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(a) On occasions, we may designate that a version of the Licensed Software is provided for free (i.e. without payment of any license fee) (“Free Version”).
(b) The use of a Free Version is subject to any terms that are outlined in the respective software description page or solution terms made available by the Licensor.
(c) Without prejudice to the aforementioned, a Free Version can be used in your own production environment in accordance with the terms and conditions of this Agreement and notwithstanding anything to the contrary contained in this EULA, a Free Version shall be subject to the following limitations:
i. the Free Version and Documentation are furnished to you “AS IS” without warranty of any kind, including, but not limited to, implied warranties of quality and fitness for a particular purpose;
ii. the Free Version and Documentation are licensed to you without fee; iii. you may not use the Free Version to provide services to third parties, integrate with third party software, or to process third party data. Free license versions can be used without additional purchase.
iv. no rights of ownership, copyright or other intellectual property in the Free Version are being transferred to you;
v. you are not entitled to support and maintenance or that Licensor provide any assistance regarding Free Version;
vi. you agree to and do hereby indemnify, defend and hold harmless the Licensor and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and authorized re-sellers from any and all claims, losses, any direct, actual or indirect damages and expenses (including reasonable attorneys’ fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the Free Version and Documentation, your negligent or wrongful acts, and/or your violation of any applicable laws.
(d) All terms and conditions of this EULA not specifically modified by clause 2.3 (a), (b) and (c) above shall apply to Free Versions.
2.4 “Not for Resale” license
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(a) We may also choose to make Licensed Software or certain features thereof available for demonstration, test or internal use only purposes labeled as “Not for Resale” (collectively “NFR Software”). The license granted under an NFR License shall be for a term of one (1) year (the “Demonstration Period”) unless otherwise altered by Licensor, limited specifically for demonstration, test or internal use only purposes. Notwithstanding anything to the contrary contained in this EULA, if you acquired the NFR Software and Documentation, your rights to use the NFR Software and Documentation shall be subject to the following limitations:
i. you agree not to use NFR Software for resale purposes or to offer the solution for your customers;
ii. you may not use the NFR Software to provide services to third parties, integrate with third party software, or to process third party data. iii. no rights of ownership, copyright or other intellectual property in the NFR Software are being transferred to you;
iv. you agree to and do hereby indemnify, defend and hold harmless the Licensor and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and authorized re-sellers from any and all claims, losses, any direct, actual or indirect damages and expenses (including reasonable attorneys’ fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the NFR Licensed Software and Documentation, your negligent or wrongful acts, and/or your violation of any applicable laws.
(b) All terms and conditions of this EULA not specifically modified by clause 2.4 (a) above shall apply to NFR Software.
(a) The Licensed Software may include software components licensed to the Licensor by third-parties, which may be subject to terms and conditions that are different than those outlined herein. [If you would like to receive a full list of such components, please get in touch with Altaro (Clause 17)]. You shall be required to comply with any and all such third-party terms that apply.
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(b) Notwithstanding the terms and conditions of this EULA, all or any portion of the Licensed Software which constituted non-proprietary software provided under public licenses by third parties (“Freeware” or “Open Source”), is licensed to you subject to the terms and conditions of the software license agreement accompanying such Freeware or Open Source software whether in the form of a discrete agreement, shrink wrap license or electronic license terms accepted at the time of download. Use of the Freeware or Open Source software by you shall be governed entirely by the terms and conditions of such license.
(c) You shall not do or permit others to do any of the following:
i. copy the Licensed Software and Documentation except as provided in clause 2 above modify, translate, rent, lease, copy, re-sell, transfer, assign, sub-license, distribute, merge, vary or modify the Licensed Software and Documentation or any part thereof to any person or entity;
ii. make alterations to, or modifications of, the whole or any part of the Licensed Software or permit the Licensed Software or any part of it to be combined with, or become incorporated in, any other programs or software solutions without a written approval from Us.;
iii. save where you are expressly authorized to do so under a SPLA and within the limitations of such SPLA, use the Licensed Software or Documentation in connection with a service bureau or similar activity whereby you operate or use the Licensed Software or Documentation for the benefit of a third party who has not purchased a copy of the Licensed Software;
iv. remove Proprietary Matter from the Licensed Software and Documentation or modify, alter or obscure Proprietary Matter thereon; v. to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Software in whole or in part except as permitted by law. Provided that where you require the aforementioned information and/or code in order to achieve the interoperability of a computer program independently created by yourself, you shall first request the Licensor to provide such information (at the then applicable commercial rates). Any information and/or code so obtained (whether provided by the Licensor or independently procured) shall not: 1. be used for purposes other than to achieve the interoperability of the computer program independently created by you;
2. be given to other persons, except when necessary for the interoperability of the independently created computer program;
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3. be used for the development, production or marketing of a computer program substantially similar in its expression to the original program or for any other act which infringes copyright;
4. provide, or otherwise make available, the Licensed Software in any form, in whole or in part (including but not limited to, program listings, public sharing website, object and source program listings, object code and source code) to any person other than your
employees without prior written consent from us;
5. use the Licensed Software via any communications network or by means of remote access;
6. fail to comply with all applicable technology control or Export Restrictions (Clause10)
(d) If you are a corporation or other business entity, you shall use your best efforts to prevent your employees, customers, contractors, subcontractors and agents from engaging in any of the above prohibited activities and to supervise and control the use of the Licensed Software by the said persons and ensure that the Licensed Software is used by such employees, customers, subcontractors and agents in accordance with the terms of this License.
(e) Although you own the media on which the Licensed Software and Documentation are recorded, the Licensor and/or its suppliers retain all rights, title and interest in and to (i) the Licensed Software and Documentation (including, without limitation, images, photographs, animations, video, audio, music, text and so-called “applets”), (ii) all copies, improvements, enhancements, modifications and derivative works of the Licensed Software or Documentation, and (iii) all patents, copyrights, trade secrets, trademarks and other intellectual property rights subsisting in the Licensed Software and Documentation and copies, improvements, enhancements, modifications and derivative works thereof.
(f) Your rights to use the Licensed Software and Documentation shall be limited to those expressly granted in clause 2 above. All rights not expressly granted to you are retained by Licensor and/or its suppliers. You agree to refrain from any action that would diminish such rights of the Licensor or would call such rights
into question. The rights granted herein are limited to the Licensor’s copyright in the Software and do not include any other patents or intellectual property rights of the Licensor or third parties.
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(g) You hereby agree to, and do, indemnify, save and hold harmless the Licensor, its agents, suppliers, distributors and authorized resellers from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees, legal expenses and court costs) arising out of or connected with any claim, demand or proceeding which relates in any way to your use of the Licensed Software and Documentation in a manner not explicitly authorized by this EULA.
(h) Any failure to comply within clause 3 or any other term or condition contained in this EULA shall result in the automatic termination of this license and the reversion of the rights granted hereunder to the Licensor.
4. Limited Warranties.
(a) Subject to the limitations and exclusions of liability below, the Licensor warrants that the Licensed Software as delivered by the Licensor and when used in accordance with the Documentation shall substantially conform with the functions described in the Documentation for a period of ninety (90) days from initial Licensed Software purchase. Licensor does not warrant that the Licensed Software will meet all of Your requirements or that the use of the Licensed Software will be uninterrupted or error-free. The warranty shall not apply if the Licensed Software fails to operate in accordance with the said warranty as a result of use in breach of these terms, accident, misuse, unauthorized repair, modification, enhancement, misapplication or failures that are caused by other software or hardware products.
(b) For any Licensed Software that does not operate as warranted in clause 4(a) above, the Licensor shall, at its sole discretion, promptly repair the Licensed Software, replace the Licensed Software with software of substantially the same functionality, or terminate the license and refund the relevant license fee paid for such non-compliant Licensed Software, provided that you return the Licensed Software to the Licensor or its authorized reseller from whom you obtained it, together with the purchase receipt within the warranty period. This obligation of the Licensor is subject to your obligation to make available all information requested and that may be necessary to help the Licensor to remedy the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
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(c) The Licensor shall not be obliged to provide any updates for the Licensed Software, unless expressly agreed otherwise.
(d) You are to take all such measures as are reasonable to avoid and reduce potential damages, such as by taking regular backups.
(e) Subject to clause 4(a) above, the software is provided to you “AS IS”. THE LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE SOFTWARE OR SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED WARRANTY.
(f) SAVE FOR AS PROVIDED IN clause 4 (b) ABOVE, SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
(g) IF YOU ARE A CONSUMER AND THE ABOVE LIMITATIONS ON OUR WARRANTIES ARE STATUTORILY NOT APPLICABLE IN FULL, THE RIGHTS GRANTED TO YOU AT LAW BEYOND THAT WHICH IS WARRANTED BY US ABOVE, SHALL BE INTERPRETED AS RESTRICTIVELY AS THE LAW ALLOWS FOR.
(a) THE WARRANTIES SET FORTH IN CLAUSE 4 ABOVE ARE YOUR ONLY WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. THE LICENSOR EXPRESSLY DISCLAIMS ALL OTHER
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WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF STATUTORY NON-INFRINGEMENT. NO THIRD PARTY, INCLUDING, WITHOUT LIMITATION, THE LICENSOR’S AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RE-SELLERS, IS AUTHORIZED TO MODIFY ANY OF THE ABOVE WARRANTIES ON BEHALF OF THE LICENSOR.
(b) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
(c) YOU FURTHER ACKNOWLEDGE THAT THE LICENSED SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE LICENSED SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
(d) IF THE EXCLUSION OF ANY IMPLIED WARRANTIES IS RENDERED INAPPLICABLE AS A RESULT OF STATUTORILY MANDATED RULES, OR AS DEFINED BY SOME JURISDICTIONS, ANY SUCH IMPLIED WARRANTIES THAT ARE PRESCRIBED BY LAW, SHALL BE LIMITED TO THE BARE MINIMUM ALLOWED FOR BY THE SAME LAW AND SHALL NOT EXTEND IN DURATION BEYOND NINETY (90) DAYS FROM THE DATE OF PURCHASE OF THE LICENSED SOFTWARE OR TO THE MINIMUM PERIOD PRESCRIBED BY LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS EULA SHALL EXCLUDE OR LIMIT ANY LIABILITY OF THE LICENSOR WHICH, BY LAW OR REGULATION APPLICABLE TO THIS EULA, CANNOT BE EXCLUDED OR LIMITED. FOR WARRANTY ASSISTANCE, CONTACT THE LICENSOR OR THE AUTHORIZED RESELLER FROM WHOM YOU OBTAINED THE LICENSED SOFTWARE.
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(e) The Licensed Software may be used or utilized by technology providers, software providers or other third parties (each “the Service Provider”) to provide you with certain services, such as managed backup (“Managed Services”).
We are not a party to the agreement or understanding that you have with the Service Provider in relation to the provision of Managed Services.
The Service Provider shall be solely and fully responsible for providing you with the Managed Services and complying with the terms and conditions relating thereto, including any negligence, misconduct or breach.
You shall keep us free and fully indemnified from and against any claim that you may have in relation to the Managed Services or to any breach of the Service Provider’s obligations towards you or for anything done or omitted to be done by the Service Provider in providing the Managed Services.
6. Limitations on Liability.
(a)The Licensor shall not be liable whether in contract, (including for negligence or breach of statutory duty, howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
1. any loss (whether direct or indirect) of profits, savings, business, business opportunities, revenue, turnover, reputation or goodwill;
2. any loss or corruption (whether direct or indirect) of data or information;
3. any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
4. any indirect or consequential loss or liability.
(b) Unless excluded, the Licensor’s maximum aggregate liability for all loss, damage and expense arising under this Agreement shall not exceed €10.
(c) The Licensor does not exclude or limits liability for:
1. personal injury or death;
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2. fraud or fraudulent misrepresentation;
3. any other liability to the extent that the same cannot be excluded or limited by law.
7. Indemnification. You agree to and do hereby indemnify, defend and hold harmless the Licensor and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and authorized re-sellers from any and all claims, losses, damages and expenses (including reasonable attorneys’ fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the Licensed Software and Documentation, your negligent or wrongful acts, and/or your violation of any applicable laws.
8. Termination of Your Rights. Your rights to use the Licensed Software and Documentation as specified in clause 2 above shall terminate immediately and without notice to you if you fail to comply with any of the provisions of this EULA and/or any other agreement made in connection with this EULA, including a SPLA. Upon termination for any reason all rights granted to you under this License shall cease, you shall immediately discontinue the use of and destroy, delete or remove, the Licensed Software and Documentation, including, without limitation, any master copies, archival copies and all copies or portions thereof, that are in your possession or were installed on computer peripherals by you. Within ten (10) days of such termination you shall certify in writing to the Licensor that all such copies have been destroyed. You hereby also consent to the Licensor and/or its agents, or employees, inspecting your computer peripherals under your supervision, to ensure that the Licensed Software and Documentation has been so deleted and/or destroyed.
9. Compliance with Applicable Law. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this EULA.
10. Export Restrictions. You agree to comply with all applicable export control laws, including the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Licensed Software and Documentation, you represent and take full and sole responsibility that i) you are not located in or under the control of or a national or resident of any country or on any list which prohibit the exportation of the
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Licensed Software ii) to any person or entity who you know or have reason to know will utilize the Licensed Software or portion therefore in the design, development, production or use of nuclear, chemical or biological materials, facilities or weapons or iii) to any person or entity who has been prohibited from participating in U.S. by any federal agency of the U.S. government or EU export restrictions.
11. Intellectual Property Rights. The Licensed Software and related documentation are copyrighted works of authorship and are also protected under applicable database laws. The Licensor retains ownership of the Licensed Software, all subsequent copies of the Licensed Software and all intellectual property rights subsisting therein, regardless of the form in which the copies may exist. This EULA is not a sale of the original Licensed Software or any copies thereof.
12. Maintenance and Support. If the Licensed Software includes and grants you the right for maintenance and support as defined in clause 2, these services will commence upon the date your order is processed and the license file is generated. You will receive support for your Licensed Software and any updates, enhancements or improvements that are included or defined in the Maintenance Policies. Licensed Software updates cannot be applied to the Licensed Software with an expired Software Maintenance Agreement. If the Licensed Software is an upgrade from an earlier release or previously released version, you are hereby authorised to use the upgrade only in accordance with this EULA. Consequently, any prior agreements with respect to earlier or previous versions of the Licensed Software shall be deemed null and void and superseded in all respects by this EULA.
Updates and upgrades may be automatically downloaded and installed from time to time. These updates may consist of bug fixes, new features, or new versions. You expressly acknowledge and agree that updates or upgrades may not necessarily include all features of the previous version. You agree to receive such updates as part of the use of the Licensed Software. The terms of this EULA will govern such updates or upgrades, unless such update or upgrade is accompanied by a separate license in which case the terms of that license shall prevail.
13. Privacy. You acknowledge that the Licensor collects and process technical information for business purposes and improving the Licensed Software, as part
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of any product maintenance and support services provided to you, and any other technical information you provide to Licensor, provided that such information does not identify You, as a specific individual.
(b) The Licensed Software has the capability to collect and process technical information such as configuration, performance, usage, consumption data which may include the number of times you use the “restore” functionality, the size of the backup, hardware identification, operating system, application software, peripheral hardware, Internet Protocol Address, The Licensor shall under no circumstances ever collect or examine the contents of any files you are backing up or restoring, unless agreed to specifically between the two parties or required by specific circumstances, in which case you will be informed in advance.
(c) The Licensed Software also provides the ability to generate error report to the licensor technical support team. During this error report generation process, which is done through manual user intervention, application debug data files, configuration files, log files, system information and personal information (Name, Email, Phone Number) will be generated and submitted for automatic support case generation.
14. Compliance. During the period this EULA remains in effect and for three (3) years following the termination of your rights pursuant to clause 8, Licensor has the right to verify your compliance with this EULA on your premises during your normal business hours and in a manner that minimises disruption to your
business. The Licensor may use an independent auditor for this purpose with your prior approval which you shall not unreasonably withhold.
15. Feature and Capacity Limitations in Software – For certain Licensed Software, your use of the Licensed Software may be limited by the features and
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capacity purchased. In the event that you exceed the purchased capacity, the Licensed Software may not support certain features or process additional workloads beyond the maximum capacity until you purchase additional capacity or upgrade to another suitable version.
16. Community Forums or Blogs – Any information that you post on the Community Forums or Blogs is deemed non-confidential to you. Hornetsecurity has no obligation to manage or protect any information (confidential or personal) that you disclose on the Hornetsecurity / Altaro Community Forums or Hornetsecurity / Altaro Blogs.
17. Queries. If you have any queries regarding this EULA,
email email@example.com with the word ‘EULA’ as the subject line.
18. Governing Language. Any translation of this License from the English language is made solely for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.
(a) Unless you have entered into a separate, written and signed agreement with the Licensor for the supply of Licensed Software, this EULA is the complete and exclusive statement of the agreement between you and the Licensor with respect to the Licensed Software and Documentation and the subject matter covered by this EULA and supersedes any and all prior or contemporaneous communications, proposals, agreements, purchase orders or similar terms issued by or to you, whether oral or written. No modification, amendment, waiver, termination or discharge of this EULA or of any of the terms and conditions hereof shall be binding upon either you or the Licensor unless confirmed by a written instrument signed by you and by a duly authorized officer of the Licensor. No waiver by you or the Licensor of any provision of this EULA or of any default hereunder shall affect your or the Licensor’s respective rights thereafter to enforce such provision, or to exercise any right or remedy, in the event of any other default, whether or not similar.
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(b) If any provision of this EULA shall be held void, voidable, invalid or inoperative, no other provision of this EULA shall be affected as a result thereof and, accordingly, the remaining provisions of this EULA shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein.
(c) This EULA shall be governed by and construed exclusively in accordance with the laws of Malta and without regard to principles of conflicts of law. Any and all actions, suits and proceedings arising out of or relating to this EULA shall be brought only in the courts of Malta, and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and waive any objection that they may now or hereafter have with respect thereto.
(d) We may transfer our rights and obligations under this License to another organization. We will inform you of such an assignment. You may only assign your rights and obligations to another person if we agree in writing prior to the assignment taking place. A change of control shall constitute an assignment.
(e) Licensor will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God, industrial disturbances, labor disputes, earthquakes, storms or other elements of nature; systematic electrical, telecommunications or other utility failures; riots; acts of terrorism; war; embargoes or acts or orders of government;
(f) If we fail to insist that you perform any of your obligations under this License, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we
will only do so in writing, and that will not mean that we will automatically waive any later default by you.
PLEASE INDICATE YOUR ACCEPTANCE OR REFUSAL TO THE TERMS AND CONDITIONS OF THIS EULA BY SELECTING THE “I ACCEPT THE TERMS IN THE LICENSE AGREEMENT” OR THE “CANCEL” BUTTON TO ABORT INSTALLATION.
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The General Terms and Conditions (“General Terms”), together with all applicable Schedules (collectively, the “Agreement”) are a legal agreement between you, a legal entity (“Customer”), and Barracuda Networks, Inc. (“Barracuda”). If you are not legally able to be bound by the Agreement or do not want to consent to the terms of the Agreement, your use of the Products is strictly prohibited. Your use of the Products is subject at all times to this Agreement, as amended from time to time. If you do not unconditionally agree to the foregoing, discontinue the installation or use of the Products. If you proceed with use, you are (i) representing and warranting that you are authorized to bind the Customer; and (ii) agreeing to the Terms.
Order of Precedence . The General Terms are applicable to all Barracuda Products and set forth the terms under which the Customer may use Barracuda Products. Certain Products are subject to additional terms and conditions, which are set forth in the applicable “Schedule.” In the event of a conflict or inconsistency between any of the General Terms and a Schedule, the Schedule will govern.
GENERAL TERMS AND CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING A BARRACUDA PRODUCT. BY USING A BARRACUDA PRODUCT, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF CUSTOMER LIVES IN THE UNITED STATES, THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE WITH BARRACUDA. PLEASE READ IT CAREFULLY.
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1.1. “Barracuda Materials” means all Barracuda proprietary materials, including, but not limited to, Deliverables, Products and intellectual property related to Products and Documentation.
1.2. “Deliverables” means any written reports and materials that are created specifically for Customer as a result of Professional Services provided hereunder, as set forth in Schedule 6 (“Professional Services Terms”).
1.3. “Delivery” with respect to Hardware means the date of shipment, and with respect to Software and Hosted Services means when the Software or Hosted Service is made available by Barracuda.
1.4. “Documentation” means manuals or other materials provided by Barracuda related to the Products in electronic or other form, as amended from time to time by Barracuda.
1.5. “Effective Date” shall mean the date of Delivery of the Products. 1.6. “Hardware” means a physical appliance provided by Barracuda.
1.7. “Hosted Service” means the right to use a cloud system or platform hosted by Barracuda, which provides the services and functionality set forth in the applicable Specification.
1.8. “Hosted Service Term” means the length of time for which a Hosted Service is purchased.
1.9. “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals
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and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.10. “Product” means, collectively, any Hardware, Software, Subscriptions, Hosted Service, Services and any combination thereof.
1.11. “Order” means a written purchase order or similar ordering document, signed or submitted to Barracuda under which the Products are provided for Customer’s use.
1.12. “Professional Services” means consulting services provided by Barracuda under a Statement of Work and/or set forth on an Order.
1.13. “Software” means software embedded in Hardware, used to provide a Hosted Service or any software licensed to Customer as a Subscription, including any Updates thereto.
1.14. “Service” or “Services” means Professional Services and Support Services.
1.15. “Specification” means the functionality for the Product as documented in the Product data sheet.
1.16. “Statement of Work” or “SOW” means a document between Barracuda and Customer, describing Professional Services, rates and timelines for those Professional Services.
1.17. “Subscription” means a license provided by Barracuda for a Subscription Term under which Barracuda provides access to certain features and functionality, as described in the Specification, which is provided subject to the applicable Schedule, if any, and these General Terms.
1.18. “Subscription Term” means the length of time for which a Subscription is purchased.
1.19. “Support Term” means the length of time for which the Support Service is purchased.
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1.20. “Support Services” means the maintenance and technical support services provided by Barracuda with respect to each Product, as described in Schedule 5 (“Support Services Terms”).
1.21. “Update” means minor enhancements, error corrections and bug fixes to the Software.
2. Modification. Barracuda reserves the right to modify the Agreement at any time, in its sole discretion, without liability to Customer. The Agreement, as amended, will be effective upon use of the Products for all existing users immediately after any amended terms are posted online. If Customer has signed up for email updates, Barracuda will provide email notice to Customer of the update. Customer’s continued use of the Products shall be deemed acceptance of the modified terms.
3. Orders and Statements of Work.
3.1. Orders. Products will only be provided to Customer after Barracuda has received and accepted an Order for such Product. Orders are not binding upon Barracuda until accepted in writing by Barracuda. All Orders will be governed by this Agreement and are noncancelable and nonrefundable after Delivery, except as set forth in Section 5.2 (“Returns”).
3.2. Statements of Work. Each Statement of Work is governed by this Agreement. Barracuda will not be obligated to perform any Professional Services until a Statement of Work describing those Professional Services has been agreed upon by both parties or an Order listing those Professional Services has been accepted by Barracuda in writing.
4. Payment Terms.
4.1. Fees and Expenses. If Customer purchases directly from Barracuda, Customer will pay Barracuda the fees specified on the invoice associated with each Order or Statement of Work (“Fees”). If Customer purchases through a Barracuda authorized reseller, all fees
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and other procurement and delivery terms shall be agreed upon between Customer and the applicable reseller. Fees for usage in excess of amounts purchased will be billed by Barracuda in the next billing cycle and Customer acknowledges that such additional fees must be paid in accordance with the terms herein.
4.2. Payment. If Customer purchases directly from Barracuda, payment is due within thirty (30) days of the date of each invoice. Payment will be made by credit card, wire transfer or another prearranged payment method unless Barracuda has extended credit terms to Customer. All Fees described in an Order or Statement of Work will be fully invoiced in advance, unless otherwise agreed to in writing by Barracuda. If any payment is past due, Barracuda may, without limiting any remedies available to Barracuda, suspend performance until payment is made current. Customer will pay interest on all delinquent amounts at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law.
4.3. Increases. Barracuda reserves the right to increase prices for Products at any time, provided however that any price increase for Subscriptions, Hosted Services and Support Services will not go into effect until the end of the then-current term, as applicable.
4.4. Taxes. All Fees are exclusive of all sales, use, excise, value added, goods and services, withholding and other taxes, and all customs, duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale or use of the Products, which shall be invoiced to and paid by the Customer. If Customer is required by law to make any deduction or withholding on any payments due to Barracuda, Customer will notify Barracuda and will pay Barracuda any additional amounts necessary to ensure that the net amount Barracuda receives, after any deduction or withholding, equals the amount Barracuda would have received if no deduction or withholding had been required. Additionally, Customer will provide Barracuda with evidence, to the reasonable satisfaction of Barracuda, showing that the withheld or deducted amounts have been paid to the relevant governmental authority. For purposes of calculating sales and
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similar taxes, Barracuda will use the address set forth on the Order or Statement of Work, as applicable, for the jurisdiction to which Products and shipments are delivered unless Customer has otherwise notified Barracuda. Customer will provide tax exemption certificates or direct pay letters to Barracuda as applicable.
4.5. Payment Disputes. Customer must notify Barracuda of any billing problems or discrepancies within sixty (60) days of the applicable Barracuda invoice date. Customer must send such notification to Barracuda as indicated in Section 21 (“Notices”). If Customer does not bring such problems or discrepancies to Barracuda’s attention within such sixty (60) day period, Customer agrees that it waives the right to dispute such problems or discrepancies.
4.6. Offsets. Customer shall pay all amounts due and payable to Barracuda under this Agreement to Barracuda in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law and in compliance with Section 4.4 (“Taxes”).
4.7. Import/Export Fees. Customer is responsible for any import or export fees or duties associated with its purchase or use of the Products.
5. Title and Returns.
5.1. Title; Ownership.
5.1.1. Hardware. All Hardware is shipped from Barracuda’s designated manufacturing facility or point of origin (Exworks origin) (Incoterms 2010). Title to such Hardware and the risk of loss of or damage to Hardware shall pass to Customer at the time of shipment from Barracuda’s facility. Barracuda is authorized to designate a carrier pursuant to Barracuda’s standard shipping practices unless otherwise specified in writing by Customer. Customer must provide written notice to Barracuda within ten (10) days of Delivery of the Products of any non-conformity with the Order (e.g., Delivery of the wrong Product or
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incorrect quantities). Partial shipment is expressly permitted hereunder, and separate charges for shipping and handling will be charged on Barracuda’s invoice.
5.1.2. Software. Barracuda retains right, title and ownership to all Software, and Customer’s license and usage rights to Software as set forth in Schedule 1 (“Software Use and Restrictions”).
5.2. Returns. Customer may cancel all Orders for new Products (excluding renewals, upgrades and migrations) within thirty (30) days of the Effective Date of any Term (“Cancellation Period”).” After the Cancellation Period, all Orders are non-cancellable and the Fees paid to Barracuda are nonrefundable. Fees for installation or training provided by Barracuda are non-cancellable and nonrefundable once performance commences.
6. Third Party Products and Services. Third party products or services may contain features designed to interoperate with the Products. To use such features, customers must obtain access to such third-party apps from their respective providers. If Customer chooses to utilize such third-party apps, the following terms shall apply:
(i) All governing terms and conditions, including data processing terms, shall be entered into between Customer and the applicable third-party app provider;
(ii) Customer may be required to grant Barracuda access to Customer’s account on such third-party apps;
(iii) Customer instructs Barracuda to allow the third-party app provider to access Customer Data as required for interoperation with the Products; and
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(iv) In the event the operation of a third party app requires the processing of personal data to which the General Data Protection Regulation (“GDPR”) applies in a country that does not provide adequate data protection safeguards, then Customer and the third party app provider must put in place an adequate data transfer mechanism as set forth in Arts. 46 or 47 of the GDPR, including executing appropriate Standard Contractual Clauses, as needed. Barracuda shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third-party app providers. Third party app providers do not operate as sub processors to Barracuda. Barracuda is not liable for, and does not warrant or support, any such third-party apps. Barracuda cannot guarantee the continued availability of such third party apps, and may cease providing them without entitling Customer to any refund, credit or other compensation, if, for example, the provider of the third-party app ceases to make its product or service available in a manner acceptable to Barracuda.
7. Professional Services. If applicable, Professional Services will be provided in accordance with these General Terms and Schedule 6 (“Professional Services Terms”).
8. Support Services and Product Upgrades.
8.1. Support Services.
8.1.1. Support Services Purchase. Support Services may be purchased separately, or for Hosted Services, may be bundled into the price. Customers are not entitled to Support Services until Barracuda receives payment in full for such Support Services.
8.1.2. Support Services Entitlement. For Customers with active Support Services, the following shall apply:
184.108.40.206. Support Services will only be available for the specific Product for which the Support Services is purchased. Applying Updates or receiving Support Services on systems where no valid entitlement has been purchased is strictly forbidden and in violation of this Agreement.
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220.127.116.11. For Hardware, Customers are entitled to receive replacement of defective hardware as set forth in Schedule 5 (“Support Services Terms”).
18.104.22.168. For Software, Customers are entitled to Updates to Software. Barracuda shall provide Customers with all Updates, without additional charge, in accordance with Schedule 5 (“Support Services Terms”). Upon Delivery to Customer, each Update will constitute Software and will thereafter be subject to and governed by this Agreement, including without limitation the license and warranty terms.
22.214.171.124. Support Services for Software are required at all times for continued access to the full functionality and proper operation of the Product. Customer acknowledges that failure to pay for ongoing Support Services will limit or degrade the functionality of the Products.
8.2. Upgrades. Upgrades are not included in Support Services, and may be purchased separately from Barracuda.
9. Intellectual Property.
9.1. Ownership of Barracuda Materials; Restrictions. All Intellectual Property Rights in Barracuda Materials belong exclusively to Barracuda and its licensors. Customer will not (and will not allow any third party to): (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms in any Barracuda Materials (except to the limited extent that applicable law prohibits reverse engineering restrictions); (ii) sell, resell, distribute, sublicense or otherwise transfer the Barracuda Materials, or make the functionality of the Barracuda Materials available to any other party through any means (unless Barracuda has provided prior written consent); (iii) without the express prior written consent of Barracuda, conduct any benchmarking or comparative study or analysis involving the Barracuda Materials (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Products to interoperate with Customer’s internal computer systems; (iv) disclose or publish to any third party any Benchmarking or any other information related thereto;
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(v) use the Barracuda Materials or any Benchmarking in connection with the development of products, services or subscriptions that compete with the Barracuda Materials; (vi) use any Barracuda trademarks for any purpose not expressly granted by Barracuda in advance and in writing; or (vii) reproduce, alter, modify or create derivatives of the Barracuda Materials.
9.2. Feedback. Customer hereby grants Barracuda a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) that Customer communicates to Barracuda, without compensation, without any obligation to report on such use, and without any other restriction. Barracuda’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Section 12 (“Confidential Information”), Feedback will not be considered Customer’s Confidential Information. “Feedback” refers to any suggestion or idea for modifying any Products, including, without limitation, all Intellectual Property Rights in and to any such suggestion or idea.
10. Waiver of Consequential Damages and Limitation of Liability.
10.1. WAIVER OF CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
10.2. LIMITATION OF LIABILITY. THE TOTAL AGGREGATE LIABILITY OF BARRACUDA AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE
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TOTAL AMOUNTS OWED OR PAID BY CUSTOMER FOR THE RELEVANT PRODUCTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH LIABILITY.
10.3. APPLICABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE; (C) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (D) WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCTS, FROM INABILITY TO USE THE PRODUCTS OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT
EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
11. Export and Compliance with Laws.
11.1.1. The Products, including technical data, are subject to U.S. export control laws, including, but not limited to, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import
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Products. Barracuda provides multiple versions of Products targeted for specific geographic regions.
11.1.2. Customer shall not: (a) permit any third party to access or use the Products in violation of any U.S. law or regulation; (b) export the Products or otherwise relocate them unless such export and/or relocation is in full compliance with all applicable local and U.S. laws and regulations. Without limiting the foregoing, Customer shall not permit any third party to access or use the Products in, or export it to, a country subject to a United States embargo (currently, Cuba, Iran, North Korea, Sudan, the Crimea Region in the Ukraine and Syria); or (c) authorize the relocation of the Products to a prohibited entity, territory or country, or take any action otherwise in violation of any applicable restrictions or regulations.
11.2. Compliance with Laws. Customer agrees to comply with all applicable laws related to its performance of the obligations set forth in this Agreement, including, but not limited to, any applicable privacy laws.
11.2.1 If Customer is a United States Government agency, the Products and Documentation qualify as “commercial items”, as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R. 2.101), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Government end user will acquire the Products and Documentation with only those rights set forth in this Agreement. Use of either the Products or Documentation or both constitutes an agreement by the Government that the Products and Documentation are “commercial computer software” and “commercial computer software documentation”, and constitutes acceptance of the rights and restrictions herein.
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11.2.2. The Products are provided with Restricted Rights. Use, duplication or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Barracuda. Customer shall not remove or deface any restricted rights notice or other legal notice appearing on the Products or on any packaging or other media associated with the Products.
12. Confidential Information.
12.1. Definition. “Confidential Information” refers to the following information disclosed by one party (“ Discloser”) to the other (“Recipient”): (a) any document Discloser marks as “Confidential” or “Proprietary”; (b) any information Discloser orally designates as being “Confidential” at the time of disclosure, or which given the circumstances of the disclosure and the nature of the information would reasonably be considered confidential; (c) the non-public features and functions of the Products, Barracuda’s price lists, technology, trade secrets, marketing strategies, customer lists, mail lists and information concerning the design or methods of manufacture of the Products, for which Barracuda is Discloser; (d) this Agreement; and (e) any other nonpublic, sensitive information disclosed by Discloser. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure and not in violation of any confidentiality obligations; (ii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iii) is approved for release in writing by Discloser.
12.2. Maintenance of Confidentiality. Each party agrees that it shall: (i) take reasonable measures to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own
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confidential information of a similar nature; (ii) limit disclosure to those persons within Recipient’s organization who have a clear and well defined “need to know” and who have previously agreed in writing to obligations at least as stringent as the provisions hereof, either prior to receipt of Confidential Information as a condition of their employment or in order to obtain the Confidential Information; (iii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, Products or other tangible objects which embody the other party’s Confidential Information and/or which are provided to the party hereunder; and (iv) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations. Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of an Order or Statement of Work. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information.
12.3. Exceptions. The parties agree that the foregoing shall not apply to any information that Recipient can prove, through written evidence: (i) is or becomes publicly known and made generally available through no improper action or inaction of Recipient; (ii) was already in its possession or known by it prior to disclosure by Discloser to Recipient; (iii) is independently developed by Recipient without use of, or reference to, any of Discloser’s Confidential Information; or (iv) was rightfully disclosed to it by, or obtained from, a third party without an obligation of confidentiality. Recipient may make disclosures required by law or court order provided that Recipient: (a) uses diligent efforts to limit disclosure and to obtain, if possible, confidential treatment or a protective order; (b) has, to the extent legally permissible, given prompt advance notice to Discloser of such required disclosure.
12.4. Injunction. Recipient agrees that breach of this Section 12 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to seek injunctive relief against such
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breach or threatened breach, without proving actual damage or posting a bond or other security.
12.5. Return of Confidential Information. With respect to each item of Confidential Information, the obligations of Section 12.2 (“Maintenance of Confidentiality”) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof. Where permissible by law, Recipient may retain one copy of all written materials returned to provide an archive record of the disclosure, which remains subject to the confidentiality terms of this Section 12.
12.6. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title and interest in and to all of its Confidential Information.
12.7. Collection of Customer Data. Customer agrees to allow Barracuda to collect Customer Data from its Products in order to enhance its security products and to optimize and monitor the performance of the Product. Customer Data will be collected electronically and automatically. Customer Data will be kept private and will only be reported by Barracuda in the aggregate.
13. Term, Termination, and Survival.
13.1. Term. This Agreement will become effective on the Effective Date and will continue in effect for such time as Customer maintains use or possession of Products.
13.2. Termination for Cause. Either party may terminate this Agreement upon written notice of a material breach by the other party subject to a thirty (30) day cure period (“Cure Period”). If the breaching party has failed to cure the breach within the Cure Period after receipt by the breaching party of written notice of such breach, the non-breaching party may terminate this Agreement. This Agreement may be automatically terminated by Barracuda in the event Customer
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has breached any license restriction and, in Barracuda’s determination, that breach cannot be adequately cured within the Cure Period.
13.3. Support Services. Support Services will begin on the date of Delivery of the Products, and will continue in effect for the duration of the Support Term. Support Services will automatically renew at the end of any Support Term, at the then-current price, for an additional period equal to the length of the prior Support Term. Either party may provide notification of its intention to not renew at least sixty (60) days prior to the expiration of the then-current Support Term. Customer may terminate Support at any time, for its convenience, on thirty (30) days’ prior written notice to Barracuda; provided, however, that no refund shall be owed and Customer is obligated to pay any remaining Fees owing for the remainder of the then-current Support Term within thirty (30) days of the effective date of the termination.
13.4. Subscriptions. The term of each Subscription will begin on the date of Delivery of the Products, and will continue in effect for the duration of the Subscription Term. Subscriptions will automatically renew at the end of any Subscription Term, at the then-current price, for an additional period equal to the length of the prior Subscription Term. Either party may provide notification of its intention to not renew at least sixty (60) days prior to the expiration of the then-current Subscription Term. Customer may terminate a Subscription at any time, for its convenience, on thirty (30) days’ prior written notice to Barracuda; provided, however, that no refund shall be owed and Customer is obligated to pay any remaining Fees owing for the remainder of the then-current Subscription Term within thirty (30) days of the effective date of the termination.
13.5. Hosted Services. The term of each Hosted Service will begin on the date of Delivery, and will continue in effect for the duration of the Hosted Service Term. Hosted Services will automatically renew at the end of any Hosted Service Term, at the then-current price, for an additional period equal to the length of the prior Hosted Service Term. Either party may provide notification of its intention to not renew at
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least sixty (60) days prior to the expiration of the then-current Hosted Service Term. Customer may terminate a Hosted Service at any time, for its convenience, on thirty (30) days’ prior written notice to Barracuda; provided, however, that no refund shall be owed and Customer is obligated to pay any remaining Fees owing for the remainder of the then-current Hosted Service Term within thirty (30) days of the effective date of the termination.
13.6. Professional Services; Statements of Work. The term of each SOW will be as set forth in the applicable SOW. If no term is expressed in a SOW, then the term of that SOW will begin upon commencement of the Professional Services and will continue until the Professional Services described in that SOW are complete or the SOW is earlier terminated as set forth herein. Unless otherwise stated in a SOW, Customer may terminate a SOW at any time for its convenience by providing at least thirty (30) days’ prior written notice to Barracuda; provided, however, that no refund will be owed and Customer is obligated to pay any amounts owing for Professional Services and Deliverables provided or performed under that SOW up to and including the date of termination.
13.7. Effect of Termination. Except for termination of this Agreement by Barracuda for Customer’s breach, no termination of this Agreement shall impact any active Subscription, Hosted Service, Support Services or SOW that extends beyond such termination, and this Agreement shall continue to govern and be effective until expiration or termination of such Subscription, Hosted Service, Support Services or SOW. The provisions of Section 4 (“Payment Terms”), Section 10 (“Waiver of Consequential Damages and Limitation of Liability”), Section 11 (“Export and Compliance with Laws”), Section 12 (“Confidential Information”), Section 14 (“Governing Law, Venue and Dispute Resolution”), and Schedule 2 (“Limited Warranty”) and any other terms which by their nature should survive termination shall survive termination of this Agreement.
14. Governing Law, Venue and Dispute Resolution.
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14.1. GOVERNING LAW AND VENUE. THESE TERMS AND THE USE AND PROVISION OF PRODUCTS WILL BE GOVERNED SOLELY BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO: (A) ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD APPLY THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION TO THE PARTIES’ RIGHTS OR OBLIGATIONS; (B) THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS; OR (C) OTHER INTERNATIONAL LAWS. THE PARTIES CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
14.2. DISPUTE RESOLUTION . IF CUSTOMER LIVES IN THE UNITED STATES, THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE CUSTOMER MAY HAVE WITH BARRACUDA. PLEASE READ IT CAREFULLY.
The parties will attempt to resolve any claim, dispute or controversy (whether in contract, tort or otherwise) against Barracuda, its agents, employees, successors, assigns or affiliates (collectively for purposes of this paragraph, “Barracuda”) arising out of or relating to this Agreement, the Barracuda Materials, Barracuda advertising, or any related purchase (a “Dispute”) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non Administered Arbitration. The Arbitration will be conducted before one (1) independent and impartial arbitrator. The arbitration hearing shall take place in Cupertino, California and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrator shall base his or her award on the terms of
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this Agreement and will follow the law and judicial precedents that a United States District Court Judge sitting in the county of Santa Clara, California would apply to the Dispute. The arbitrator shall render his or her award in writing and will include the findings of fact and conclusion of law upon which his or her award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence, content and results of any negotiation, mediation or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph.
THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
15. Permission to Use Logo. Customer grants Barracuda permission to use Customer’s name and/or logo on the Barracuda website, or any other marketing material when referring to Customer. Customer will retain all titles and rights in its name and logos.
16. Changes to Products. Barracuda reserves the right at any time to modify, suspend or discontinue providing the Products or any part thereof and to alter prices, features, Specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases in its sole discretion, without prior notice.
17. Relationship of the Parties. The parties intend that the relationship created between them by virtue of this Agreement shall be
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that of an independent contractor, and nothing herein shall be construed to create an agency, joint venture, partnership or other form of business association between them. Barracuda and its agents, employees and servants shall not be deemed to be an employee, agent or servant of Customer or its affiliated entities, if any. Barracuda is not to be considered an agent or employee of Customer for any purpose, and none of the benefits provided by Customer or its employees are available to Barracuda or Barracuda’s employees, agents or servants. Barracuda shall be solely and entirely responsible for Barracuda’s acts and for the acts of Barracuda’s agents, employees, servants and subcontractors during the performance of this Agreement.
18. Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and this Agreement will not be construed in favor of or against either party by reason of authorship. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
19. Force Majeure. Except with respect to payment of Fees, neither party shall be liable for any failure to timely perform any of its obligations under this Agreement if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including, without limitation, fire, flood, strikes, hurricanes, and other industrial disputes, failure of raw material, failure of transport, accidents, wars, riots, insurrections, acts of God or orders of any government department or agency.
20. Severability. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
21. Notices. Barracuda may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such
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notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Barracuda at 3175 South Winchester Blvd., Campbell, CA 95008, Attn: Legal Department, and such notices will be deemed received 72 hours after they are sent.
22. Entire Agreement, Waiver and Assignment.
22.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral. If any term or condition in this Agreement conflicts with any term or condition in any Order, invoice or similar supplementary document submitted by Customer, the term or condition set out in this Agreement shall prevail. Unless otherwise expressly and mutually agreed in writing by the parties, under no circumstances shall any Order, invoice or similar supplementary document issued by Customer in connection with the Products supersede the terms of this Agreement. Any such documentation shall be solely for Customer’s internal business purposes, and in no event shall any terms and conditions, or other charges of any such document modify or become a part of this Agreement or become binding on Barracuda, even if signed by Barracuda.
22.2. Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
22.3. Assignment. Customer may not assign or transfer any of its rights or obligations under this Agreement without Barracuda’s prior written consent. Barracuda may freely assign its rights and obligations under this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void. Except to the extent forbidden in
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this section, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
IMPORTANT–READ CAREFULLY: THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY) AND SYNOLOGY, INC. (“SYNOLOGY”) FOR THE SYNOLOGY SOFTWARE INSTALLED ONTO THE SYNOLOGY PRODUCT PURCHASED BY YOU (THE “PRODUCT”), OR LEGALLY DOWNLOADED FROM WWW.SYNOLOGY.COM, OR ANY OTHER CHANNEL PROVIDED BY SYNOLOGY ( “SOFTWARE”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY USING THE PRODUCTS CONTAINING THE SOFTWARE, INSTALLING THE SOFTWARE ONTO THE PRODUCTS OR DEVICE CONNECTED TO THE PRODUCTS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE PRODUCTS CONTAINING THE SOFTWARE OR DOWNLOAD THE SOFTWARE FROM WWW.SYNOLOGY.COM, OR ANY OTHER CHANNEL PROVIDED BY SYNOLOGY.INSTEAD, YOU MAY RETURN THE PRODUCT TO THE RESELLER WHERE YOU PURCHASED IT FOR A REFUND IN ACCORDANCE WITH THE RESELLER’S APPLICABLE RETURN POLICY.
Section 1. Limited Software License. Subject to the terms and conditions of this EULA, Synology grants you a limited, non-exclusive, non-transferable, personal license to install, run and use one copy of the Software loaded on the Product or on your device connected to the Product solely relating to your authorized use of the Product.
Section 2. Documentation. You may make and use a reasonable number of copies of any documentation provided with the Software; provided that such copies will only be used for internal business purposes and are not to be republished or redistributed (either in hard copy or electronic form) to any third party.
Section 3. Backup. You may make a reasonable number of copies of the Software for backup and archival purposes only.
Section 4. Updates. Any software provided to you by Synology or made available on the Synology website at www.synology.com (“Website”) or any other channel provided
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by Synology that updates or supplements the original Software is governed by this EULA unless separate license terms are provided with such updates or supplements, in which case, such separate terms will govern.
Section 5. License Limitations. The license set forth in Sections 1, 2 and 3 applies only to the extent that you have ordered and paid for the Product and states the entirety of your rights with respect to the Software. Synology reserves all rights not expressly granted to you in this EULA. Without limiting the foregoing, you shall not authorize or permit any third party to: (a) use the Software for any purpose other than that in connection with the Product; (b) license, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software; (c) reverse engineer, decompile, disassemble or attempt to discover the source code of or any trade secrets related to the Software, except and only to the extent that such conduct is expressly permitted by applicable law notwithstanding this limitation; (d) adapt, modify, alter, translate or create any derivative works of the Software; (e) remove, alter or obscure any copyright notice or other proprietary rights notice on the Software or Product; or (f) circumvent or attempt to circumvent any methods employed by Synology to control access to the components, features or functions of the Product or Software. Subject to the limitations specified in this Section 5, you are not prohibited from providing any services hosted by Synology NAS server to any third party for commercial purpose.
Section 6. Open Source. The Software may contain components licensed to Synology under the GNU General Public License (“GPL Components”), currently available at http://www.gnu.org/licenses/gpl.html. The terms of the GPL will control solely with respect to the GPL Components to the extent that this EULA conflicts with the requirements of the GPL with respect to your use of the GPL Components, and, in such event, you agree to be bound by the GPL with respect to your use of such components.
Section 7. Audit.Synology will have the right to audit your compliance with the terms of this EULA. You agree to grant Synology a right to access to your facilities, equipment, books, records and documents and to otherwise reasonably cooperate with Synology in order to facilitate any such audit by Synology or its agent authorized by Synology.
Section 8. Ownership. The Software is a valuable property of Synology and its licensors, protected by copyright and other intellectual property laws and treaties.
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Synology or its licensors own all rights, titles and interests in and to the Software, including but not limited to copyright and any other intellectual property rights.
Section 9. Limited Warranty.Synology provides a limited warrant that the Software will substantially conform to Synology’s published specifications for the Software, if any, or otherwise set forth on the Website, for a period required by your local law. Synology will use commercially reasonable efforts to, in Synology’s sole discretion, either correct any such nonconformity in the Software or replace any Software that fails to comply with the foregoing warranty, provided that you give Synology written notice of such noncompliance within the warranty period. The foregoing warranty does not apply to any noncompliance resulting from any: (w) use, reproduction, distribution or disclosure not in accordance with this EULA; (x) any customization, modification or other alteration of the Software by anyone other than Synology; (y) combination of the Software with any product, services or other items provided by anyone other than Synology; or (z) your failure to comply with this EULA.
Section 10. Support. During the period specified in the Section 9, Synology will make available to you the support services. Following the expiration of the applicable period, support for Software may be available from Synology upon written request.
Section 11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. SYNOLOGY AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE AND NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, SYNOLOGY DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS.
Section 12. Disclaimer of Certain Damages. IN NO EVENT WILL SYNOLOGY OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
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OTHER THEORY EVEN IF SYNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 13. Limitation of Liability. SYNOLOGY’S AND ITS SUPPLIERS’ LIABILITY ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT REGARDLESS OF THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing disclaimer of warranties, disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this EULA, the exclusions and limitations set forth above may not apply to you.
Section 14. Export Restrictions. You acknowledge that the Software is subject to U.S. export restrictions. You agree to comply with all applicable laws and regulations that apply to the Software, including without limitation the U.S. Export Administration Regulations.
Section 15. Termination. Without prejudice to any other rights, Synology may terminate this EULA if you do not abide by the terms and conditions contained herein. In such event, you must cease use of the Software and destroy all copies of the Software and all of its component parts.
Section 16. Assignment. You may not transfer or assign your rights under this EULA to any third party, except for that pre-installed in the Products. Any such transfer or assignment in violation of the foregoing restriction will be void.
Section 17. Applicable Law. Unless expressly prohibited by local law, this EULA is governed by and construed in accordance with the laws of the country, in accordance with which Synology Inc. was organized without regard to any conflict of law principles to the contrary.
Section 18. Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this EULA will be resolved exclusively and finally by arbitration conducted by
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three neutral arbitrators in accordance with the procedures of the Arbitration Law and related enforcement rules of the country in which Synology Inc. was organized. In such cases, the arbitration will be limited solely to the dispute between you and Synology. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The arbitration shall take place in Taipei and the arbitration proceedings shall be conducted in English or, if both parties so agree, in Mandarin Chinese. The arbitration award shall be final and binding on the parties and may be enforced in any court having jurisdiction. You understand that, in the absence of this provision, you would have had a right to litigate any such dispute, controversy or claim in a court, including the right to litigate claims on a class-wide or class-action basis, and you expressly and knowingly waives those rights and agrees to resolve any disputes through binding arbitration in accordance with the provisions of this Section 18. Nothing in this Section shall be deemed to prohibit or restrict Synology from seeking injunctive relief or seeking such other rights and remedies as it may have at law or equity for any actual or threatened breach of any provision of this EULA relating to Synology’s intellectual property rights.
Section 19. Attorneys’ Fees. In any arbitration, mediation, or other legal action or proceeding to enforce rights or remedies under this EULA, the prevailing party will be entitled to recover, in addition to any other relief to which it may be entitled, costs and reasonable attorneys’ fees.
Section 20. Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this EULA will remain in full force and effect.
Section 21. Entire Agreement. This EULA sets forth the entire agreement of Synology and you with respect to the Software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral.
No amendment, modification or waiver of any of the provisions of this EULA will be valid unless set forth in a written instrument signed by the party to be bound thereby.
This Customer Agreement is entered into by Infrascale, Inc. (“Infrascale”) and the person or entity agreeing to these terms (“You” or “Your”) and consists of (a) the
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terms contained herein, (b) the Additional Terms (as defined below), and (c) any Infrascale Order (as defined below) (collectively, this “Agreement”). This Agreement governs Your use of the Infrascale Service Offerings (as defined below). BY EXECUTING AN INFRASCALE ORDER THAT REFERENCES THIS AGREEMENT, USING INFRASCALE SERVICE OFFERINGS OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND (B) YOU AGREE, ON BEHALF OF SUCH ENTITY, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE AN INFRASCALE ORDER, CREATE AN ACCOUNT, USE THE INFRASCALE SERVICE OFFERINGS OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT.
1.1. “Account Information” means information about You and Users that You provide to Infrascale in connection with the creation or administration of Your Account, and may include names, usernames, phone numbers, email addresses and billing information associated with Your Account.
1.3. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
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1.4. “Confidential Information” means all nonpublic information that one party or its affiliate (the “Discloser”) discloses to the other party (the “Recipient”) under this Agreement that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Notwithstanding the foregoing, Infrascale Confidential Information shall include (a) nonpublic information relating to the technology, customers, pricing, product plans, marketing activities, finances and other business affairs of Infrascale, its affiliates, suppliers, or licensors, (b) third party information that Infrascale is obligated to keep confidential, and (c) the nature, content and existence of any discussions or negotiations between You and Infrascale or its affiliates. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) was known to the Recipient at the time of the Recipient’s receipt hereunder, (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act, or (iv) is independently developed by the Recipient.
1.5. “Content” means software, data, text, files, audio, video or images.
1.6. “Documentation” means Services support material, if any, made available by or on behalf of Infrascale, which may include product guides, manuals, specifications, and knowledge base articles, each as may be updated from time to time.
1.7. “Fees” means (a) applicable fees for each Service as set forth in the Order or, if an Order is not executed or the fees are not set forth in the Order, as set forth in the then-current Infrascale price list, (b) applicable fees for Hardware, if any, (c) applicable support fees, (d) transportation fees and related charges, (e) applicable overage fees pursuant to the Overage Billing Policy, and (f) all additional fees as mutually agreed upon by the parties.
1.8. “Hardware” means all computer and computer-related physical equipment, if any, provided by Infrascale for use with the Services and/or Software.
1.9. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
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1.10. “Infrascale Content” means Content made available by or on behalf of Infrascale in connection with the Services or on the Infrascale website at http://infrascale.com (the “Site”) to allow access and use of the Services, including without limitation APIs, Documentation, Creatives, software libraries, templates, and other related technology.
1.11. “Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
1.12 “Order” means (a) a written quote or other ordering document prepared by Infrascale and either (i) executed by Your authorized representative, (ii) referenced in a purchase order issued by You, or (iii) otherwise agreed to by Your authorized representative; or (b) Your or a User’s registration for and/or enablement of the applicable Services via Your Infrascale Dashboard. Your acceptance of a quote or ordering document or registration for and enablement of Services in accordance with any of the foregoing shall constitute Your execution of the Order for purposes of this Agreement.
1.14. “Service” means each of the services made available by or on behalf of Infrascale, including those services described in the Terms of Service. Services do not include any Third-Party Product.
1.15. “Service Offerings” means the Services, Infrascale Content, Software, Infrascale Brand Features, Hardware, and any other product or service provided by or on behalf of Infrascale under this Agreement. Service Offerings do not include any Third-Party Product.
1.16. “Service Term” or “Order Term” means, with respect to each subscription for any Service, the Initial Service Term (as defined below) plus any Renewal Term(s) (as defined below).
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1.17. “Software” means the software, if any, identified in an Order, as well as other software made available to You hereunder by or on behalf of Infrascale, including any applications, utility programs, and interfaces.
1.18. “Support” means the support services described in the Support Policies, which support services are provided by or on behalf of Infrascale for the applicable Services purchased by You.
1.19. “Support Policies” means the Service Level Agreement, Hardware Warranty Policy, Statement of Support and any other support policies for Services located at infrascale.com/legal.
1.20. “Suspend” or “Suspension” means disabling or limiting access or use of the Service Offerings.
1.21. “Termination Date” means the effective date of termination provided in accordance with Section 7, in a written notice from one party to the other.
1.22. “Third-Party Product” means any Content made available to You by any third party on the Site or in conjunction with the Services, including any non-Infrascale branded software and services licensed to You pursuant to Third Party Terms. Infrascale reserves the right to suspend or terminate any Third-Party Product at any time. In the event of a conflict between these Terms and any Third Party Terms, the Third Party Terms will prevail with respect to the Third-Party Product that is the subject matter of such terms.
1.23. “Trial Service” shall have the meaning ascribed to such term in the Terms of Service.
1.24. “User” means any individual or entity authorized by You or on Your behalf to access or use Your Content or the Service Offerings under Your Account.
1.25. “Your Content” means all Content that You or any User (or Infrascale, when acting on Your instructions) transfers to Infrascale for processing, storage, or hosting by the Services in connection with Your Account. Your Content does not include Account Information.
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2.1. Training. Following Your purchase of a subscription to a Service, Infrascale will provide You initial technical training with respect to such Service via webinar or as otherwise agreed upon by Infrascale. After the initial technical training has been completed, any further training may be provided by Infrascale for a fee.
2.2. Support. Subject to the terms and conditions of this Agreement, Infrascale will provide Support to You for the Services in accordance with the then-current Support Policy.
2.3. Advertising and Marketing. Infrascale may provide You access to the Infrascale “Partner Resource Center”, which contains advertising and other creative materials that promote the Services. Such materials may include Infrascale Brand Features, Documentation, graphics, download buttons, banners, and related materials (individually and collectively, “Creatives”). Subject to the terms and conditions of this Agreement, You may use, reproduce, modify and/or distribute the Creatives solely in connection with Your promotion of Services and strictly in accordance with guidelines (if any) included in the Partner Resource Center. You agree that You shall not modify, remove, or otherwise affect the Infrascale Brand Features. You represent and warrant that any modifications made to the Creatives by or on Your behalf shall not (a) infringe or misappropriate the intellectual property rights of Infrascale or any third party, (b) portray the Service Offerings or Infrascale in a false light, (c) contain any inaccurate statements or misrepresentations regarding the Service Offerings or Infrascale, or (d) contain any defamatory, scandalous, libelous, or unlawful matter.
3.1. Users. You are responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the Service Offerings. You will ensure that all Users comply with all terms and conditions of this Agreement and that the terms of Your agreement with each User are consistent with this Agreement. You will be deemed to have taken any action that You permit, assist, or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for Users’ use of Your Content and the Service Offerings and are liable for Users’ acts
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and omissions. If You become aware of any violation by any User, You will immediately suspend that User’s access to Your Content and the Service Offerings. Infrascale is not obligated to provide Support to Users unless Infrascale has a separate agreement with You or a User obligating us to provide such Support.
3.2. Representations and Warranties. You represent and warrant that (a) You have full capacity, right and authority to enter into this Agreement, (b) You will comply with all applicable laws in Your performance of this Agreement, (c) any modifications of the Service Offerings made by You or on Your behalf shall not infringe or misappropriate any intellectual property, proprietary, or other rights of any third party, where such infringement or misappropriation would not have occurred but for such modification(s), and (d) Your entry into this Agreement and performance of Your obligations do not breach any of Your obligations to any third party, or breach any contract, agreement, or order by which You are bound.
3.3. Insurance. For the Term of this Agreement, You shall maintain commercial general liability insurance with limits of at least $1,000,000 per occurrence and an annual aggregate of at least $2,000,000. Such insurance may not be changed or canceled without at least thirty (30) days’ prior written notice to Infrascale.
3.4. Non-Solicitation of Customers. Infrascale agrees that with respect to each of Your customers who (a) purchases a subscription to an Infrascale Service from You, and (b) continues to maintain an active subscription to such Service through You (each, an “Infrascale Service Customer”), Infrascale will not knowingly sell any Services to such Infrascale Service Customer other than through You; provided, however, the foregoing obligation is strictly subject to Your provision of a current and accurate Customer List (as defined below) to Infrascale in which the applicable Infrascale Service Customer has been identified. The foregoing Infrascale obligation shall not apply if (i) Infrascale was already in a contractual relationship with, or in active negotiations towards a contractual relationship with, such Infrascale Service Customer prior to You furnishing a Customer List with such Infrascale Service Customer identified, or (ii) You are in breach of any term of this Agreement. A “Customer List” shall mean a written notice to Infrascale that identifies those current Infrascale Service Customers who satisfy the conditions described in (a) and (b) above. For the avoidance of doubt, You are not required to provide a Customer List to Infrascale, however the obligation of Infrascale set forth above shall apply only with respect to those Infrascale Service Customers accurately identified on a current Customer List. Except as expressly set forth in this Section, Infrascale
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retains the absolute and unrestricted right to market, distribute, sell and otherwise transact in the Services through any third party or directly with any customer by itself, without Your involvement or participation or any obligation to You in respect thereof (including, without limitation, any payment obligation).
(a) Delivery; Loss. If You are entitled to receive Hardware for use in connection with Infrascale Disaster Recovery (“IDR”) or Infrascale Backup & Disaster Recovery (“IBDR”) , delivery of the Hardware shall be made DAP (Delivered at Place, Incoterms® 2020) at Your designated facility (the “Designated Facility”) in accordance with the delivery schedule mutually agreed upon by the parties. Unless expressly agreed to otherwise, You are responsible for and shall pay all transportation fees as specified in the Order, as well as all duty, customs clearance and other charges related to delivery to an international destination. You will ensure that You have all necessary rights, certifications, and licenses for the delivery, installation, maintenance, use, and removal of the Hardware at the Designated Facility. From the time the Hardware is delivered to Your Designated Facility until its return to us, You are responsible for any loss, theft, damage to, or destruction of the Hardware, except to the extent caused by us. If You breach these Terms, we may terminate Your and Your User’s right to use the Hardware and we may remove the Hardware.
(b) Title. Except as otherwise expressly agreed in writing by us, (i) we will make Hardware available to You to support Your or Your User’s use of the IDR or IBDR Service, (ii) Infrascale and/or its suppliers are the owner of the Hardware and will retain title thereto; and (iii) You will not, and will not purport to, assign, grant, or transfer the Hardware or any interest in the Hardware to any individual or entity, and any such purported assignment, grant, or transfer is void.
(c) Installation; Customization. We will reasonably assist You with the installation of the Hardware on a mutually agreeable date. Except as expressly set forth in an Order, all branding requests, integration, API development and non-standard deployments which require any custom engineering work by us will be quoted separately and subject to a separate agreement between You and us.
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(d) Facility Assessment. You will ensure that the Designated Facility at which the Hardware is located meets the minimum requirements reasonably necessary to support the installation, maintenance, use, and removal of the Hardware.
(e) Access to Hardware. You will ensure that personnel designated by Infrascale are provided prompt and reasonable access to the Designated Facility as necessary to deliver, install, inspect, maintain, and remove the Hardware. You will not require the designated personnel to sign, accept, or otherwise agree to any documentation as a condition of accessing the Designated Facility (other than a standard visitor’s log), and You agree that the terms of any such documentation are void even if signed by the designated personnel. You will ensure that no one modifies, alters, reverse engineers, or tampers with the Hardware, and that no one accesses, moves, or repairs the Hardware other than (i) personnel designated by us, (ii) as permitted in writing by us in connection with the maintenance of Hardware, or (iii) as necessary due to a situation involving imminent injury, damage to property, or an active fire alarm system. You acknowledge that the Hardware may be equipped with tamper monitoring.
(f) Services and Security. There are inherent differences between Services running on Hardware at Your Designated Facility and those Services running at Infrascale operated facilities, since the Hardware is physically located at the Designated Facility where You are responsible for physical security and access controls, as well as all power, networking, and environmental conditions. Due to these differences, any Infrascale obligations or commitments in these Terms that depend on our operation of physical security and access controls, or power, networking, or environmental conditions, do not apply to Hardware or any IDR or IBDR Services running on Hardware not located at an Infrascale operated facility.
(g) Import/Export. You are responsible for complying with all applicable import, re import, export, and re-export control laws with respect to the Hardware and any included Software, including any applicable license requirements and country specific sanctions programs. You are responsible for serving as the exporter and importer of record (as applicable) for the Hardware, and You accept that we will not participate in the export or import procedure.
4.Ordering And Payment Terms.
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4.1. Purchases. You may purchase a subscription for the right to access and use the Service Offerings by entering into an Order with Infrascale. Purchase of a subscription to the Service Offerings includes Your right to access applicable Support during the Service Term.
4.2. Payment. Your right to access and use the Service Offerings is subject to Your timely payment of Fees. Following each billing period, Infrascale will issue an invoice to You for Fees due based on (a) Your purchase of Services (for those Services not provided under a consumption-based license model), (b) Your and Users’ use of consumption-based Services during the previous billing period, (c) Your and Users’ excess usage of the Services pursuant to the Overage Billing Policy, and (d) any other fees due hereunder. Overage fees due pursuant to the Overage Billing Policy will be invoiced in arrears. Payment shall be made by debit card, credit card, or ACH/direct debit. You authorize Infrascale to charge Your payment method for all amounts due under this Agreement. If You purchase a multi-year subscription or a multi-year renewal for any Service, Your purchase is for the full value of all years of the subscription, even if the required payments are made in installments (e.g., monthly or annually). Except as otherwise provided in this Agreement or applicable law, Your obligation to pay all Fees is non-cancellable and the measurement by Infrascale of Your and Users’ use of consumption-based Services and excess usage of any Service is final. All Fees will be paid to Infrascale without setoff or counterclaim and are non-refundable.
4.3. Delinquent Payments. If any payment is more than thirty (30) days past due (including if payment is late due to a credit card expiration or chargeback or insufficient funds), Infrascale may, without limiting any remedies available to it hereunder and notwithstanding the opportunity to cure set forth in Section 7.2, (a) Suspend all or part of Your and Users’ use of the Service Offerings until payment is made current, or (b) immediately terminate this Agreement and/or any specific Order(s) for breach. Infrascale may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for any and all costs of collection incurred by Infrascale in collecting such late or past due payments, including reasonable attorney’s fees and litigation costs.
4.4. Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party
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upon or with respect to the transactions and payments under this Agreement. All Fees payable by You are exclusive of Indirect Taxes. Infrascale may charge and You will pay applicable Indirect Taxes that Infrascale is legally obligated or authorized to collect from You. You will provide such information to Infrascale as reasonably required to determine whether Infrascale is obligated to collect Indirect Taxes from You. Infrascale will not collect, and You will not pay, any Indirect Tax for which You furnish us a properly completed exemption certificate or a direct payment permit certificate for which Infrascale may claim an available exemption from such Indirect Tax. All payments made by You to Infrascale under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, You will pay such additional amounts as are necessary so that the net amount received by Infrascale is equal to the amount then due and payable under this Agreement. Infrascale will provide You with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
4.5. Invoice Disputes & Refunds. You must submit any invoice disputes prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Infrascale, Infrascale will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Infrascale will apply the credit memo amount to the disputed invoice and You will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, You waive all claims relating to Fees unless claimed within sixty (60) days after charged (this does not affect any of Your rights with Your credit card issuer).
4.6. Overages. The Services are subject to usage limits specified in this Agreement, the Order, and the Overage Billing Policy. You acknowledge that use of the Services in excess of the usage limits may result in additional fees and agree to pay such fees in accordance with the Overage Billing Policy.
4.7. Initial Service Term and Renewals. Your subscription will be in effect for the initial service term identified on the Order or selected in Your Account, as applicable (the “Initial Service Term”). Your subscription (including subscriptions for consumption-based services) is auto-renewing, and Your purchase constitutes Your agreement to the auto-renewal of Your subscription for successive one (1) year
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terms, provided that if the Initial Service Term of Your subscription is monthly, the subscription shall auto-renew for successive one (1) month terms (each term of a renewal, the “Renewal Term”). Notwithstanding the foregoing, Infrascale may impose limits on the number of Renewal Terms for certain subscriptions based on the age of the Hardware or other factors. You maintain the right to give email notice of non-renewal to Infrascale at firstname.lastname@example.org at least thirty (30) days prior to the end of the then-current term. Each consumption model invoice shall constitute an auto-renewal notice under consumption models. All Orders, including for renewals, are subject to acceptance by Infrascale at its discretion.
5.1. Obligations. The Recipient shall maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The Recipient shall not use the Discloser’s Confidential Information for any purpose except as required or necessary for performance of this Agreement. Without limiting the foregoing, the Recipient will not disclose the Discloser’s Confidential Information except to affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to maintain its confidentiality on terms at least as restrictive as those contained herein. The Recipient will ensure that those people and entities use the Discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. The Recipient shall promptly return to the Discloser, or destroy, as the case may be, the Discloser’s Confidential Information following the termination or expiration of this Agreement or earlier upon written request of the Discloser.
5.2. Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the Recipient may also disclose the Discloser’s Confidential Information to the extent required by a government body, court of law, or other valid legal authority provided that the Recipient uses commercially reasonable efforts to: (a) promptly notify the Discloser in advance of such disclosure, and (b) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the Recipient determines that complying with (a) and (b) could (i) result in a violation of the legal order requiring disclosure, and/or (ii) obstruct a governmental
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investigation. As between the parties, You are responsible for responding to all third-party requests concerning Your and Users’ use of the Service Offerings.
6.1. Generally. Infrascale may Suspend Your or any User’s right to access or use all or any portion of the Service Offerings if Infrascale determines:
(a) Your or any User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact Infrascale systems, the Service Offerings, or the systems or Content of any other Infrascale customer, (iii) could subject Infrascale, its affiliates, or any third party to liability, or (iv) could be fraudulent;
(b) You or any User is in breach of this Agreement, or any User is in breach of the Terms of Service or other applicable terms;
(c) You fail to take necessary actions as described in the Terms of Service; (d) It is required to Suspend to comply with applicable law;
(e) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(f) Infrascale wishes to Suspend a Trial Service pursuant to the Terms of Service.
Infrascale will eliminate any such Suspension once the circumstances giving rise to the Suspension have been resolved. At Your request, unless prohibited by applicable law, Infrascale will notify You of the basis for the Suspension as soon as is reasonably possible.
6.2. Effect of Suspension. If Infrascale Suspends Your or any User’s right to access or use all or any portion of the Service Offerings:
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(a) You remain responsible for all Fees and charges You incur during the period of Suspension; and
(b) You will not be entitled to any service credits under the Service Level Agreement for any period of Suspension.
7.1. Term. This Agreement will become effective upon the earlier of (a) Your execution of an Order, (b) Your or any User’s use of any Service, or (c) when You indicate Your acceptance of this Agreement (during Account creation or otherwise) and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect until the date on which Your last active subscription to a Service expires. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.
7.2. Termination for Cause.
(a) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and, to the extent curable (other than a default in payment), such material breach remains uncured for a period of thirty (30) days from receipt of written notice by the other party.
(b) By Infrascale. Infrascale may also terminate this Agreement immediately upon notice to You for cause (i) if Infrascale has the right to Suspend under Section 6.1(a e), (ii) if the agreement between Infrascale and a third-party partner who provides software or other technology Infrascale uses to provide the Service Offerings expires, terminates, or requires Infrascale to change the way it provides the software or other technology as part of the Services, or (iii) in order to comply with applicable law or requests of governmental entities.
7.3. Effect of Termination.
(a) Service Term. Upon expiration or termination of a Service Term:
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(i) all of Your and Users’ rights under the specific Order terminate immediately, and You and Users will not be able to access Your Content provided in connection with the specific Order except as expressly set forth in Section 7.3(c);
(ii) You remain responsible for all Fees and charges You have incurred under the specific Order through the date of expiration or termination of such Order and are responsible for any Fees and charges You incur during the post-termination period described in Section 7.3(c); and
(iii) You will immediately obtain possession of all Hardware provided under the specific Order by or on behalf of Infrascale (whether provided to You or Users) and return such Hardware, along with all accessories, to Infrascale in the same condition as that in which it was provided (less reasonable wear and tear). In the event the Hardware is not immediately returned in the above-described condition, You agree You shall promptly pay to Infrascale the actual cost of the Hardware less Depreciation. “Depreciation” shall be calculated by multiplying the actual cost of the Hardware on the date of delivery by the Decline in Value, where the “Decline in Value” is equivalent to twenty-five percent (25%) per full year of Your Service Term for each of the first three (3) years following delivery of such Hardware, not to exceed seventy-five percent (75%). By way of example only, if Hardware is delivered on June 1, 2021 and returned to Infrascale on March 1, 2023, the Depreciation for such Hardware shall be calculated by multiplying the actual cost for such Hardware by twenty-five percent (25%).
(b) Agreement. Upon termination of this Agreement:
(i) You will immediately return or, if instructed by Infrascale, destroy all Infrascale Content in Your possession and cause all Users to do the same;
(ii) upon request, each party will return or destroy all Confidential Information of the other party; and
(iii) the following Sections shall survive termination: Sections 1, 3.2, 3.5 (a-b), 4.2-4.6, 5, 7.3, and 8 through 11.
(c) Post-Termination. Unless Infrascale terminates a specific Order or this Agreement for cause, during the forty-five (45) days immediately following
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termination of the specific Order or this Agreement, whichever occurs first (the “Retrieval Period”), Infrascale will not take action to remove any of Your Content from the Infrascale systems as a result of the termination and will allow You to retrieve Your Content from the specific Services; provided, the Retrieval Period for Infrascale Cloud Application Backup (“ICAB”) shall be five (5) days following termination of the ICAB Service Terms. Infrascale is not responsible for the availability or accessibility of Your Content following the expiration of the Retrieval Period. You’re solely responsible for managing the download of Your and Your end users’ Content, and Infrascale will have no liability if You fail to download such Content prior to termination or during the Retrieval Period.
For clarity, termination of this Agreement also results in the termination of all Orders. Further, termination or expiration of this Agreement or any Order(s) will not release You from the obligation to make payment of all amounts accrued or due and payable to Infrascale under the specific Order(s) prior to the effective date of termination or expiration, and upon termination for any reason other than due to an uncured breach by Infrascale, all future amounts due under all terminated Orders shall be accelerated and become due and payable immediately (including amounts due for all years of a multi-year subscription or multi-year renewal), regardless of whether previously invoiced. For any use of the Services after termination of the specific Order, the terms of this Agreement will apply and You agree to pay the Fees applicable to such use except solely with respect to Your authorized access to download Your Content under such specific Order.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, (B) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND QUIET ENJOYMENT, AND (II) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY
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CONTENT, DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES, (D) YOU AND USERS ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR CONTENT, AND (E) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. IN NO EVENT WILL INFRASCALE, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO YOUR CONTENT. YOU ACKNOWLEDGE THAT INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.Limitation Of Liability.
INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FURTHER, NEITHER INFRASCALE NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR ANY USERS’ INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR AN ORDER, OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, (II) DISCONTINUATION OF ANY
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OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE OFFERINGS, OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 10.2, THE AGGREGATE LIABILITY OF INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY INFRASCALE UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 9 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.1. General. You will defend, indemnify, and hold harmless Infrascale, its affiliates, suppliers and licensors, and each of their respective employees, officers, directors, and representatives (collectively, the “Infrascale Indemnified Parties”) from and against any Losses arising out of or relating to any third-party claim concerning (a) Your or any Users’ access or use of the Service Offerings (including any activities under Your Account and use by Your employees and personnel), (b) breach of this Agreement or violation of applicable law by You, Users, or Your Content, (c) Your and Users’ acts or omissions, or (d) a dispute between You and any User. You will reimburse Infrascale for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (c) above at its then-current rates.
10.2. Intellectual Property.
(a) Infrascale will defend You and Your employees, officers, and directors (collectively, “Your Indemnified Parties”) against any third-party claim to the extent based solely on an allegation that the Services or Infrascale Brand Features infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement. Notwithstanding the
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foregoing, Infrascale will have no obligations or liability under this Section or otherwise with respect to any claim or award to the extent arising from (i) a combination of the Services or Infrascale Brand Features with any other product, service, software, data, method, or content, including Your Content, (ii) use of the Services for a purpose or in a manner not permitted by this Agreement, or in a manner for which the Services were not designed, (iii) any modification of the Services or Infrascale Brand Features made without express written approval by Infrascale, (iv) Your or any Users’ use of non-current or unsupported versions of the Services or Infrascale Brand Features, (v) breach of this Agreement by any of Your Indemnified Parties, or (vi) any Trial Service. In addition, Infrascale will have no obligations or liability arising from Your or any User’s use of the Services after Infrascale has notified You to discontinue such use.
(b) You will defend and indemnify the Infrascale Indemnified Parties against any third-party claim alleging that any of Your Content or Your Brand Features infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) If the Services become, or in the opinion of Infrascale may become, the subject of a third-party infringement or misappropriation claim, then Infrascale may, at its sole option and expense (i) procure the right for You to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing, functionally equivalent alternative. If Infrascale believes none of the foregoing remedies are commercially reasonable, then Infrascale may Suspend or terminate Your and all Users’ right to access and use the impacted Services. In the event of termination, Infrascale will refund any pre-paid Fees (less any discounts provided and without consideration of any prepayment discount applied) for the Services prorated for the remaining Service Term.
(d) The remedies provided in this Section 10.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services, either party’s Brand Features, or Your Content.
10.3. Process. The obligations under this Section 10 will apply only if the party seeking defense or indemnity (the “Indemnified Party”) (a) provides the other party (the “Indemnifying Party”) prompt written notice of the claim, (b) provides the Indemnifying Party with sole control over the defense and settlement of the claim,
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and (c) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim. In no event will the Indemnifying Party agree to any settlement of any claim that requires the Indemnified Party to admit liability or pay money without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned, or delayed.
10.4. Indemnity for Third-Party Products. To the extent required or permitted by agreements between Infrascale and the providers of Third-Party Products, Infrascale will pass through to You rights to indemnification received with respect to Third-Party Products, if any. Notwithstanding the foregoing, You acknowledge that Infrascale is not responsible for the fulfillment of any Third-Party Product indemnities or for issues attributable to use of Third-Party Products.
11. General Provisions.
11.1. Publicity. Infrascale may use Your name and logo on the Site and marketing materials solely to identify You as an Infrascale customer and provided such use does not reveal any of Your Confidential Information.
(a) Generally. Notwithstanding any other provisions in this Agreement, and except as otherwise set forth in this Section, if either You or Infrascale has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Service Offerings, including any claim regarding the applicability, interpretation, enforceability, scope, validity, or formation of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between You and Infrascale, then such Legal Claim will be settled by confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules of the AAA (the “AAA Rules”). The award of the arbitrator shall be accompanied by a reasoned opinion. Judgment on the award may be entered in any court of competent jurisdiction. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The arbitrator shall award to the prevailing party, if any, the costs and
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attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. This Section shall not preclude either party from seeking (i) equitable relief in accordance with the Terms of Service; or (ii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction.
(b) Process. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Fairfax County, Virginia or any other location that is mutually agreed upon by You and Infrascale. A single arbitrator will be mutually selected by You and Infrascale and shall be (i) a practicing attorney licensed to practice law in Virginia or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in finance, technology, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and Infrascale cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules.
11.3. Governing Law. Except as otherwise expressly provided herein, all claims shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, exclusive of conflict or choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply.
11.4. Modifications. Infrascale may modify this Agreement at any time, in our sole discretion. If we make any material modifications to this Agreement, we shall inform You by posting the modified terms
at https://www.infrascale.com/legal/customer-agreement/. It is Your responsibility to check periodically for modifications to this Agreement. The modified Agreement will be effective upon Your next subscription renewal following posting of the updated terms. Your continued access or use of the Service Offerings after such
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renewal confirms Your consent to be bound by this Agreement, as amended. If You do not agree to be bound by the modified terms, then You may not continue to use the Service Offerings.
11.5. Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, representations, warranties, proposals, negotiations, discussions, understandings, or agreements (whether oral, written, implied, or otherwise) between the parties with respect to the subject matter hereof. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty, except those expressly set out in this Agreement. The terms located at any URL referenced in this Agreement and an Order are incorporated by reference into this Agreement. After this Agreement is effective, Infrascale may provide an updated URL in place of any URL in this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order, the terms at any URL, and this Agreement. Any additional or conflicting terms contained in any purchase order, proposal, or other document provided by You shall be deemed rejected by Infrascale without need of further notice of objection, even if such document is acknowledged or accepted by Infrascale, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Infrascale. Except as otherwise expressly set forth herein, any amendment to this Agreement must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
11.6. Third-Party Beneficiaries. Infrascale shall be a third-party beneficiary of any contract between You and Users with respect to the Service Offerings, and shall be entitled to enforce the obligations therein. Other than as expressly provided herein, no third-party beneficiaries are intended or will be construed as created by this Agreement.
(a) To You. Infrascale may provide any notice to You under this Agreement by (i) posting a notice on the Infrascale Site or Dashboard, or (ii) sending a message to the email address then associated with Your Account. Notice Infrascale provides by posting on the Infrascale Site or Dashboard will be effective upon posting and
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notice Infrascale provided by email will be effective when the email is sent. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when Infrascale sends the email, whether or not You actually receive the email.
(b) To Infrascale. To provide Infrascale notice under this Agreement, You must do so via personal delivery, overnight courier or registered or certified mail to Infrascale, Inc., 12110 Sunset Hills Road, Suite 600, Reston, VA 20190, Attention: Legal Department. Infrascale may update its address for notice by providing notice of such change pursuant to subsection (a) above. Notice provided by personal delivery will be effective immediately. Notice provided by overnight courier will be effective one (1) business day after it is sent. Notice provided registered or certified mail will be effective three (3) business days after it is sent.
11.8. Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the Service Offerings, including Your transfer and processing of Your Content, the provision of Your Content to Users, and the geographic region in which any of the foregoing occur. You represent and warrant that You and any party that owns or controls You are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
11.9. U.S. Government Rights. The Service Offerings are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If You are using the Service Offerings on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with Federal law, You will
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immediately discontinue Your use of the Service Offerings. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
11.10. Questions. If You have any questions regarding this Agreement, please contact Infrascale at email@example.com.
Tulsa Connect –
Terms and Conditions of Private Cloud Hosting Service
I. Private Cloud Host Management. Private Cloud host servers provided by TC are managed to the extent
detailed below. Every Private Cloud host server includes basic managed services including initial operating
system / hypervisor installation, hardware maintenance when required, basic monitoring, basic troubleshooting
support for the operating system / hypervisor, patch management for the host (pursuant to an established maintenance schedule), and remote reboot services. Additional managed services may be provided as outlined
in the Private Cloud Hosting Order Form.
a. Operating system / hypervisor setup and testing – TC will perform a standard operating system / hypervisor installation and test the configuration of that installation.
b. Hardware maintenance – TC will provide hardware replacements for failed components on TC provided hardware at no charge under the provisions of the applicable policies of the hardware vendor. Any operating system / hypervisor reinstallation required due to failed hardware replacement will be performed at no charge. Please see the section entitled “Backup and data recovery” for information on data recovery after any required system reinstallation.
c. Basic monitoring – Private Cloud host servers will be monitored by TC monitoring systems. By default, a server will be queried to determine up/down status via ICMP ping or other method. Notifications of failed tests may optionally be sent to an E-mail address provided by the Customer. In addition, notifications will be dispatched to TC support personnel in the event of a service failure. d. Backup and data recovery – TC recommends the nightly backup of all critical Customer data. If backups are performed by TC as part of this Service Agreement and a restore is necessary, TC will make commercially reasonable efforts to restore Customer data from the latest full backup, but does not warrant that any such restoration will be successful, complete or accurate. Customer assumes all liability associated with backup and data recovery and acknowledges that it is not relying on TC for providing redundancy. As with all data processes, TC cannot guarantee the viability or availability of any backup performed via automated or manual processes.
II. TC Chargeable Services
a. All services provided outside the scope of this Service Agreement are chargeable to the Customer. These out of scope services include software installation or configuration not included in this Service Agreement, or additional hardware that is requested to be installed in the Private Cloud host server. b. All such additional services will be billed at our then-current hourly rates. Emergency service after hours
required for any reason other than failure of hardware or basic TC infrastructure may result in premium service charges. All such premium charges will be communicated to the Customer prior to performing the service.
III. Software Installation, Licensing, and Usage Compliance
a. Software Installation – With the exception of software provided by TC as part of this Service
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Agreement, Customer is responsible for the procurement and installation of all software installed on Customer Private Cloud infrastructure.
b. Software Licensing and Usage – Customer is responsible for complying with the software licensing and usage agreements for all software installed on Customer Private Cloud host servers and associated virtual machines (VMs), including but not limited to, those set forth by the software vendor. Customer is liable for payment of all fines and/or penalties assessed against it or against TC for violation of any software licensing or usage agreements with respect to software installed on Customer Private Cloud host servers and associated VMs.
IV. Server Security
a. Host Servers – TC maintains reasonable security practices for software on the Private Cloud host servers. TC performs security patch management, updates, and configuration changes for the Private Cloud host servers in accordance with industry best practices. TC will schedule these activities with Customer to minimize impact on uptime of the environment.
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b. Virtual Machines
i. Security Practices – Customer must maintain reasonable security practices for the software services running on Customer Private Cloud VMs. Unless otherwise specified in this Service Agreement, Customer is responsible for applying all security patches, updates, and configuration changes within the VMs in accordance with industry best practices to maintain proper security. Without limiting the foregoing, Customer will immediately respond to any remotely exploitable flaws that will grant unauthorized administrative access to Customer infrastructure to ensure that the environment is not compromised. If TC attempts to contact the Customer regarding any such security issues and receives no response, TC reserves the right, without obligation or liability of any kind, to apply all patches/remedies which in its discretion TC determines necessary or appropriate to mitigate such security issues whenever TC deems it necessary, including, without limitation, during Customer’s regular business hours.
ii. Compliance – Customer is responsible for complying with applicable security and privacy laws and regulations related to the software services running on Customer Private Cloud VMs.
iii. Monitoring – Unless security monitoring service is specifically contracted in this Service Agreement, the Customer is solely responsible for monitoring security issues for the software services running on Customer Private Cloud VMs. While TC may, as a courtesy, provide security and vulnerability alerts from time to time, the Customer is solely responsible for obtaining and responding to security updates for the services it provides.
c. Definition – As used in this Service Agreement, “reasonable security practices” include, without limitation, access controls, harm detection, security auditing, physical protections, maintenance of privacy and confidentiality, and recovery plans.
d. Security Compromise – If a security compromise is either suspected or detected, Customer must contact TC support immediately for threat assessment. Customer must provide TC support with all requested information about the potential or actual security compromise, including without limitation, the number of individuals whose information was impacted, organized by state of residency, how and when the Customer became aware of the security compromise, and the steps taken to remediate the issue. V. Service Level Commitment
a. TC will use commercially reasonable effort to make the Private Cloud Services available to Customer at all times. If the Services are unavailable to Customer, Customer: (i) must contact TC and outline service deficiency with supporting data; (ii) must allow TC a reasonable amount of time to cure alleged service deficiency; and (iii) may request a credit as provided in Section C below.
b. If after 30 days TC has failed to correct a mutually recognized service deficiency, Customer may terminate any affected component of this Service Agreement, without liability, by giving written notice to TC.
c. Credit for Service Interruption – Subject to the below Exceptions, upon Customer’s request, TC will issue a credit to Customer for outages in an amount equal to one day’s worth of the monthly services fee paid by Customer, for each 4 hour period in any day that such outages occurs during a particular month.
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In no case will the total credit issued exceed the Customer’s monthly services fee. i. Exceptions: (1) circumstances beyond TC’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software; (2) failure of access circuits to the TC Network, unless such failure is caused solely by TC; (3) scheduled and emergency maintenance and upgrades; (4) DNS or Internet routing issues outside the direct control of TC.
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Terms and Conditions of Co-Location Service
VI. Software Installation, Licensing, and Usage Compliance
a. Software Installation – With the exception of software provided by TC to Customer under the Agreement or pursuant to an agreement contemplated thereby, Customer is solely responsible for the procurement and installation of all software installed on Customer equipment.
b. Software Licensing and Usage – Customer is responsible for complying with the software licensing and usage agreements for all software installed on Customer equipment including, without limitation, those set forth in the Agreement and those required by Customer’s software vendor. Customer is liable for payment of all fines and/or penalties assessed against it or against TC for violation of any software licensing or usage agreements with respect to software installed on Customer equipment. VII. Server Security
a. Unless security monitoring service is specifically contracted in a separate agreement between Customer and TC, the Customer is solely responsible for monitoring security issues for the software services running on Customer equipment. While TC may, as a courtesy and without further obligation or liability, provide security and vulnerability alerts from time to time, the Customer is solely responsible for obtaining, implementing, applying and responding to security updates for the services it provides. b. Customer must maintain reasonable security practices for the software services running on Customer equipment. Customer is also responsible for complying with all applicable security and privacy laws and regulations related to the security of the software services running on Customer equipment, including all Compliance Standards. “Reasonable security practices” the Customer must maintain for software services running on Customer equipment include, without limitation, access controls, harm detection, security auditing, maintenance of privacy and confidentiality, and recovery plans. c. If a security compromise is either suspected or detected, Customer must contact TC support immediately for threat assessment. Customer must provide TC support with all requested information about the potential or actual security compromise, including without limitation, the number of individuals whose information was impacted organized by state of residency, how and when the Customer became aware of the security compromise, and the steps taken to remediate the issue.
VIII. Service Level Commitment
d. TC will use its reasonable commercial efforts to make the Services available to Customer at all times. If the Services are unavailable to Customer, Customer: (i) must contact TC and outline service deficiency with supporting data; (ii) must allow TC a reasonable amount of time to cure alleged service deficiency; and (iii) may request a credit as provided in Section C below.
e. If after 30 days TC has failed to correct a mutually recognized service deficiency, Customer may terminate any affected component of this Service Agreement, without liability, except for payment of all amounts otherwise due to TC hereunder and under the Agreement by giving written notice to TC. f. Credit for Service Interruption – Subject to the below Exceptions, upon Customer’s request, TC will issue a credit to Customer for outages in an amount equal to one day’s worth of the monthly services fee paid by Customer hereunder during the month(s) in which the outage(s) occurred, for each 4 hour period in any day that such outages occurs during a particular month. In no case will the total credit issued exceed the Customer’s monthly services fee for that month.
ii. Exceptions: (1) circumstances beyond TC’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software; (2) failure of access circuits to the TC Network, unless such failure is caused solely by TC; (3) scheduled
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and emergency maintenance and upgrades; (4) DNS or Internet routing issues outside the direct control of TC.
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GENERAL SERVICES AGREEMENT
This General Services Agreement (“Agreement”), dated as of the date of the last signature below (the “Effective Date”), is between MBO Data LLC, d/b/a TulsaConnect (“TC”), and the customer identified on the signature page (“Customer”).
(a) TC will provide service (“TC Service”) to Customer subject to the terms and conditions of this Agreement.
(a) The Internet is not a secure network. Confidential or sensitive information should not be transmitted over the Internet unprotected. TC is not responsible for loss or theft of information transmitted over the Internet. TC encourages Customer to employ VPN, SSL, SSH, or other data encryption technologies when conducting business over the Internet. (b) TC will employ reasonable security measures on TC devices, including but not limited to routers, switches, servers and the like, including any necessary security patches, IP access lists, and associated services. TC will not be responsible for security on Customer Provided Equipment (as defined in Section 7(b)(i)) or equipment rented to Customer by TC unless TC is specifically contracted to do so by the Customer as part of a Service Agreement (as defined in Section 6(a)). If at any time TC determines that security measures, including, without limitation, patches, are necessary to protect the integrity of the TC Service, TC may implement such security measures without communicating in advance with the Customer and without liability to Customer. TC will use reasonable commercial efforts to inform Customer of such security measures.
(c) TC performs scanning of inbound e-mail messages destined for TC owned e-mail servers for spam, viruses, other malware, and may scan mail destined for Customer Provided Equipment (as defined in Section 7(b)(i)) or servers rented to Customer by TC if specifically contracted to do so. TC may implement scanning of outbound e-mail messages upon notice to Customer via TC’s standard notification procedures. TC makes no warranties as to the effectiveness of inbound or outbound scanning and accepts no liability should Customer devices become infected. Customer is responsible for employing industrystandard anti-malware and intrusion prevention software on Customer devices.
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Access to our facilities is limited to those who have a TC escort. When possible, access to TC data center facilities outside of business hours will be scheduled with TC personnel in advance.
(e) Customer shall provide updated contact information for approved technical personnel any time there is a modification of such information. TC shall be entitled to rely on information provided by Customer without the obligation of further investigation. Before providing
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access to TC’s data center facilities, TC will use reasonable efforts to verify the identity of any person purporting to be an authorized representative of Customer and verify that the Customer has designated such person as an authorized representative. (f) Depending upon what industry Customer is operating within or what type of data Customer processes or handles (e.g., medical or financial), there may be various security and related laws, regulations and standards with which Customer is obligated to comply, including, without limitation, HIPAA (Health Insurance Portability & Accountability Act), SOX (Sarbanes Oxley Act), (GLBA) Gramm Leach Bliley Act, HITECH (Health Information Technology for Economic & Clinical Health), and PCI DSS (Payment Card Industry Data Security Standard) (collectively, “Compliance Standards”). While TC may provide certain TC Services designed to assist Customer with compliance with certain Compliance Standards, actual compliance with Compliance Standards is solely Customer’s responsibility and TC is not responsible for ensuring that Customer’s systems operating in conjunction with the TC Services or TC equipment are compliant with the Compliance Standards. Additionally, the Compliance Standards include many features that are out of TC’s control including, without limitation, Customer’s network and business processes. ACCORDINGLY, TC DISCLAIMS ANY AND ALL WARRANTIES AND
REPRESENTATIONS THAT THE TC SERVICES, EQUIPMENT, SYSTEMS, NETWORK OR PROCESSES ARE COMPLIANT WITH ANY COMPLIANCE STANDARD AND TC DOES NOT REPRESENT THAT TC WILL UNDERTAKE ANY EFFORTS TO ACHIEVE SUCH COMPLIANCE IN THE FUTURE. [TC will use its reasonable commercial efforts to cooperate with Customer in Customer’s efforts to meet its obligations under the Compliance Standards, but without any further obligation.] Determinations of TC compliance or verification of TC compliance with any applicable rule, law, or standard requires a separate agreement.
(g) Customer is responsible for compliance, compliance costs and legal costs associated with unauthorized access, breaches, suspected or detected security compromises related to this Agreement, including without limitation, notification to regulators, consumers, consumer credit card companies, media, and law enforcement.
3. IP Address and Domain Name Services.
(a) All IP addresses that may be required for the TC Service shall be provided solely by TC. If Customer leaves TC Service, all IP addresses must be returned to TC for reallocation to other Customers within 48 hours and will not be available for continued use by departing Customers.
(b) TC will host Customer domain name(s) on its servers when contracted to do so by Customer. In the event Customer also elects to have TC register a domain name on behalf of Customer with an approved domain name registrar, TC may do so but TC will not be responsible for the ownership, control, and use of the domain name. If a Customer is no longer using any other TC Service, Customer will be responsible for moving the domain name to a new registrar or establishing a “domain registration” only account with TC. TC shall have no liability for Customer’s failure to maintain registration of any domain name. Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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4. Software Installation, Licensing, and Usage Compliance.
(a) Customer is responsible for the procurement and installation of all Software, as that term is hereinafter defined, installed on Customer Provided Equipment (as defined in Section 7(b)(i)) or equipment rented to Customer by TC unless otherwise specified in a Service Agreement (as defined in Section 6(a)).
(b) Customer is responsible for complying with the software licensing and usage agreements for all software installed on Customer Provided Equipment (as defined in Section 7(b)(i)) or equipment rented to Customer by TC (“Software”) as set forth by the software vendors (“Vendors”). Customer is liable for payment of all fines and/or penalties assessed against it or against TC for violation of any software licensing or usage agreements with respect to Software installed on Customer Provided Equipment (as defined in Section 7(b)(i)) or equipment rented to Customer by TC.
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(i) Customer must not remove, modify, or obscure any copyright, trademark, or patent notice, or any other notice of proprietary rights from any Software. Customer must not reverse engineer, decompile, disassemble, or modify any Software. Customer must not make any copies of or distribute the Software.
(ii) Customer must notify TC of any changes to, additions, or removals of active user licenses related to TC Service, active user accounts or this Agreement. An “active user” is a user that has the ability to log into a system. Licenses based on active user accounts include, but are not limited to, Microsoft Remote Desktop SAL, Microsoft Office, Microsoft Visio, Microsoft Exchange Basic Mailbox SAL, and Microsoft Exchange Standard Mailbox SAL. Notifications must be made via email to firstname.lastname@example.org within 24 hours of the change, addition, or removal. (iii) Customer must notify TC of any changes in quantity to licenses that are physical processor or virtual processor based related to this Agreement and TC Service. Licenses based on physical processor or virtual processor include, but are not limited to Microsoft Windows Server and Microsoft SQL Server. Notifications must be made via email to email@example.com within 24 hours of the change, addition, or removal. Without limiting any of the foregoing, Customer shall provide to TC satisfactory proof of a current, valid and enforceable license for any software (e.g. Customer’s own Office 365 or other service providers) that Customer intends to run concurrently with TC’s SPLA licenses within twenty-four hours after Customer begins running such licensed software.
(iv) Customer must keep records relating to all use and distribution of products by Microsoft affiliated with TC Service, and Microsoft has the right, at its expense, to verify compliance with their products’ license terms.
(v) Customer is required to report Customer’s usage of or compliance with Software licenses.
(vi) If verification or self-audit reveals any unlicensed use of Microsoft products, then within 30 days (1) Customer must order sufficient licenses to cover its use, and (2) if unlicensed use is 5% or more, Customer must reimburse TC for the costs incurred in verification and acquire the necessary additional licenses at 125% of the price, based on the then-current price list and customer price level. The unlicensed use percentage is based on the total number of licenses purchased for current use compared to the actual installed base.
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(vii) The Software is not fault-tolerant and is not guaranteed to be error-free or to operate uninterrupted. Customer must not use the Software in any application or situation where the Software’s 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 Software 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. These noncontrolling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. In addition to the indemnification obligations set forth elsewhere in this Agreement, Customer agrees to indemnify and hold harmless TC and the Vendors from any third-party claim arising out of Customer’s use of the Software in connection with any High Risk Use.
(a) Customer is responsible for notifying TC if Customer is a “covered entity” or “business associate” of a covered entity under HIPAA or HITECH. Customer may not use a TC Service to create, receive, maintain, or transmit protected health information on behalf of itself or any covered entity unless and until Customer has notified TC and the parties have entered into a business associate agreement. Customer is responsible for notifying TC if
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Customer intends to process any cardholder data as that term is defined in the PCI-DSS or is required to be PCI-DSS-compliant or to meet any other Compliance Standards related to the use or processing of cardholder data. Customer may not use a TC Service to create, receive, maintain, or transmit cardholder data on behalf of itself or any other person unless and until Customer has notified TC and the parties have entered into a separate agreement regarding such Compliance Standards.
(b) Customer represents and warrants that Customer is not a resident of any country or affiliated with any organization prohibited to do business within the United States. (c) Customer further represents and warrants that Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business.
(d) Without limiting the foregoing, Customer agrees to comply with all applicable U.S. and non U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. Customer shall be responsible for determining what laws or regulations are applicable to Customer’s use of the TC Services. Customer shall, upon the request of TC, provide TC assurance of Customer’s compliance with those laws.
(e) TC is headquartered in the United States and currently our services are only intended for individuals located in the United States. If you are located outside of the United States, be advised that any information you provide to TC will be transferred to and stored in the United States and that, by submitting information to TC, you explicitly authorize its transfer and storage within the United States. We will protect the privacy and security of personal information according to TC policies. If Customer is providing information that is subject other security and privacy laws that require specific measures by TC, Customer will notify TC, and Customer will be responsible for obtaining any necessary separate agreements. Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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6. Service Agreements.
(a) Customer may submit to TC a request for a TC Service using TC’s standard service agreement form, a valid TC Service proposal, or other such documents (each a “Service Agreement”). If TC accepts the Service Agreement, TC will provide the TC Service to Customer upon the rates, terms, and conditions specified herein and in the applicable Service Agreement. Each Service Agreement submitted by Customer for a TC Service shall incorporate and be subject to the terms and conditions of this Agreement. To the extent that the terms contained herein vary from or conflict with the terms of any Service Agreement, the terms of the Service Agreement shall control. Notwithstanding the absence of Customer’s signature, an electronic Service Agreement shall be binding on Customer if Customer has otherwise indicated acceptance of the Service Agreement. TC reserves the right not to accept a Service Agreement under this Agreement at any time. (b) Certain services may be provided by one or more third parties (“Third Party Services”), as indicated on the applicable Service Agreement. TC’s right to provide or resell Third Party Services remains subject to its agreements with the third party provider. Customer’s use of Third Party Services may be subject to the third party’s terms and conditions, as indicated on the applicable Service Agreement, and any third party terms and conditions will apply solely with respect to Third Party Services. Unless directed otherwise by TC, Customer shall interface and communicate directly with TC with respect to Third Party Services.
(c) The effective date of the TC Service (the “Service Agreement Effective Date”) shall be the date on which data packets can be sent to Customer (in the case of co-location, cloud hosting, or dedicated / managed server) or the date that Customer domain name is installed on TC DNS and web servers (in the case of web hosting). Notwithstanding the
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above, the date shall not be later than 60 days from the date of the Service Agreement unless otherwise agreed to by TC. If Customer cancels a Service Agreement, or any component of a Service Agreement, before the Service Agreement Effective Date, Customer shall pay TC all reasonable, directly associated, documented and otherwise unrecoverable costs and expenses incurred by TC in connection with cancellation. (d) Unless otherwise specified in a Service Agreement, if Customer terminates a Service Agreement after the Service Agreement Effective Date other than by reason of TC’s default, Customer shall (A) provide at least 30 days’ written notice to TC of its intent to terminate and (B) be liable for 100% of the remaining contract value. Specific early termination fees may be contained within a Service Agreement.
(e) TC reserves the right to add, delete, or otherwise change its list of service offerings during the term hereof. TC may cancel a TC Service provided to Customer under a Service Agreement if (i) TC no longer has the legal or contractual right to provide the TC Service (including, but not limited to, software license rights), (ii) TC ceases for any reason to provide such TC Service, or its services generally, to the general public, or (iii) Customer breaches the terms of this Agreement. TC may increase its software license or rental rates so long as TC has provided 30 days advance written notice. If TC raises the rate for a particular TC Service, Customer may terminate any affected component of a Service Agreement, without liability, by giving written notice at least 10 days before the effective date of the rate increase. Customer’s continued use of a Service after notice of a rate increase shall constitute Customer’s acceptance of the new rate.
(f) Upon expiration of the term of a Service Agreement, the Service Agreement terms, conditions, and rates shall continue on a month to month basis until Customer or TC terminates the Service Agreement.
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(g) In addition to Services identified in a Service Agreement, TC may provide, upon Customer’s request, technical support services (“Technical Services”) in connection with Services provided to Customer under a Service Agreement. Technical Services include, but are not limited to, remote or on-site technical support and phone or email support to upgrade software or troubleshoot local network or equipment issues. Technical Services are provided by TC (or third parties designated by TC) and not by Software Vendors. Onsite Technical Services are limited to Customer locations within the Tulsa and Oklahoma City metro areas. Remote Technical Services may be available in additional areas. Technical Services are billed on a time and materials basis at TC’s then-current hourly rates and are subject to the payment terms set forth in Section 8 below. Technical Services may not be available in all circumstances. TC may decline to provide Technical Services if: (i) Customer is not current in payments due under this Agreement or any Services Agreement, (ii) Customer is otherwise in breach of any provision of this Agreement or any Services Agreement, (iii) TC, in its reasonable discretion, determines that it is not practicable to provide Technical Services to Customer under the circumstances. For onsite Technical Services, Customer shall provide TC’s representatives with a safe working environment and access to the worksite and equipment necessary for TC to provide the Technical Services. Customer acknowledges that remote Technical Services will require TC representatives to temporarily access and control Customer’s workstations. Customer is responsible for backing up and maintaining the privacy of any data or files on the workstation before providing TC representatives access to the workstation for the provision of any Technical Services.TC cannot and will not be held responsible or liable for any issues related to Technical Services.
(h) To be eligible for Technical Services, Customer must adhere to TC’s security requirements as made in this Agreement, Service Agreements and our security requirements in our other policies. This includes, but not limited to, restricting open TCP/UDP ports by IP address or VPN access, the use of complex passwords, appropriate user access level (least privileged concept), established maintenance schedules, installing patches deemed urgent by TC in a timely manner, etc. Failure to do so may result in the termination of Technical
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Services, the removal of after-hours availability for technical services, and other chargeable items.
7. Equipment and Installation.
(a) TC Provided Equipment
(i) TC, or its agent, shall provide, install, maintain, repair, operate and control TC’s equipment based on the terms in the Service Agreement. Unless specifically provided for herein, or in any Service Agreement, TC shall pay the cost of purchasing and installing TC’s equipment and TC’s equipment shall be and remain the sole property of TC.
(ii) Customer shall make TC’s equipment located on Customer’s premises available for maintenance in a timely manner. Except as otherwise provided herein or in a Service Agreement, TC shall provide reasonable notice before entering Customer’s premises to install, maintain or repair any of the equipment. Customer shall provide power, heating, cooling, security, and other environmental considerations to TC’s equipment located on Customer’s premises in accordance with this Agreement, the applicable Service Agreement, and equipment documentation. TC is not responsible for any malfunction or interruption of service attributable to Customer’s failure to maintain the environmental considerations. (iii) Customer shall be liable for any loss or damage, including theft, to TC’s equipment arising from Customer’s or a Customer authorized third party’s negligence, intentional act, willful misconduct, unauthorized maintenance or other cause. In Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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the event of any loss or damage to TC’s equipment pursuant to this paragraph, Customer shall reimburse TC for the reasonable cost of repair of TC’s equipment, or the replacement thereof, in TC’s sole discretion, within 30 days after receipt by Customer of a written request for reimbursement. If TC does not receive reimbursement of the cost of repair of TC’s equipment, or the replacement cost, TC may, at its option, without liability, suspend TC Services until such amounts are paid in full, or terminate this Agreement or any Service Agreement and avail itself of its remedies hereunder, at law or in equity.
(iv) TC’s equipment shall remain the sole and exclusive property of TC, and nothing contained herein shall give or convey to Customer, or any other person, any right, title or interest whatsoever in TC’s equipment unless otherwise specified in the Service Agreement. TC’s equipment shall at all times be and remain personal property, notwithstanding that it may be, or become, attached to, or embedded in, realty. Customer shall not tamper with, remove or conceal any identifying plates, tags or labels identifying TC’s ownership interest in TC’s equipment. Customer shall not permit or cause any lien or encumbrance to be placed on TC’s equipment, and Customer shall immediately cause any such lien or encumbrance to be removed upon TC’s demand.
(b) Customer Provided Equipment
(i) “Customer Provided Equipment” means any server, switch, or other equipment provided by Customer, including equipment owned by Customer or owned by a third party and leased to Customer. TC shall have no obligation to install, maintain or repair Customer Provided Equipment unless otherwise specified in a Service Agreement. If, on responding to a Customer-initiated support request, TC determines that the cause of the service deficiency was a failure, malfunction or the inadequacy of equipment other than TC’s equipment, Customer shall compensate TC for services performed at its standard hourly rate, plus the cost of any materials expended.
(ii) In some cases, TC may allow Customer to arrange for Customer Provided Equipment to be shipped directly to TC’s facility for temporary storage until the equipment is installed in the data center. In these cases, the delivery and storage of the equipment will be governed by a Short-Term Equipment Storage Contract
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entered into between TC and Customer before delivery. Customers may request that contract from their TC account representative.
(iii) Customer is solely responsible for Customer Provided Equipment that is located in a TC facility. Customer agrees to provide insurance that TC deems adequate in its discretion to protect Customer Provided Equipment from any and all events, which may damage Customer Provided Equipment whether caused by Customer representative, TC employee, any other party or an event who (which) may cause damage to Customer Provided Equipment. Except as provided in subparagraph (iv) of this Section 7 (b), in no case shall TC be liable for any damages, including, without limitation, consequential, indirect or incidental damages, suffered by Customer due to failure of Customer Provided Equipment for any reason. Customer agrees to indemnify TC for any claims that may arise as a result of Customer Provided Equipment being located in a TC facility.
(iv) TC shall be liable for only such loss or damage, including theft, to Customer Provided Equipment that arises from TC’s gross negligence, willful misconduct, or unauthorized maintenance. In the event of any loss or damage to any Customer Provided Equipment pursuant to this paragraph, TC shall reimburse Customer for the reasonable cost of repair of the equipment, or the replacement thereof, in TC’s Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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discretion, within 30 days after receipt by TC of a written request for
(c) Customer Storage Devices. Customers may arrange for hard drives, USB drives, or other storage devices (“Storage Devices”) to be shipped directly to TC’s facility. Upon notice from Customer, TC personnel will accept delivery of Storage Devices at the building delivery entrance. Customer is solely responsible for arranging, insuring and paying for shipment and for encryption of data on Storage Devices. TC is not responsible for (i) any mistake, error, or omission in inspecting the shipment and (ii) any damage to or loss of the shipment, any Storage Device, or data during shipment. Customer accepts all risk of loss during shipment. TC’s only obligations with respect to delivery are to accept delivery and notify Customer of the delivery. Upon delivery, TC personnel will connect the Storage Device to Customer’s Service environment for Customer to transfer data.
8. Payment Terms and Services Suspension / Termination.
(a) Payment Terms
(i) Customer shall pay TC all recurring and non-recurring charges for the TC Service at the rates set forth in each Service Agreement, or for Technical Services at TC’s then-current hourly rates, plus all Taxes and Additional Charges (such as bandwidth overage or other usage / consumption charges). Billing for the TC Service will commence on the Effective Date, regardless of acceptance by Customer.
(ii) TC will provide Customer with a monthly invoice for the TC Service and Customer shall pay TC in full upon Customer’s receipt of invoice. If TC does not receive full payment within 30 days after Customer received the invoice, TC may charge Customer interest on the unpaid balance at the rate of 1.5% per month or the highest lawful rate, whichever is lower. Customer shall pay all costs and expenses, including reasonable attorneys’ fees, incurred by TC in collecting past due balances.
(iii) Unless written notice of a dispute as to the charges for the Service is received by TC within 30 days after the statement date, such statement shall be deemed correct and payable in full by Customer. In the event of a billing dispute, Customer shall timely pay the undisputed amounts and shall provide detailed information regarding any such disputed amounts to TC.
(iv) If applicable, Customer shall keep on file with TC copies of its current tax exemption certificates.
(b) Suspension of Service; Termination of Service Agreement
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(i) TC may suspend or terminate the TC Service to Customer if Customer: (A) is more than 10 days past due in paying any TC invoice pursuant to its terms, excluding those amounts which Customer has notified TC as
reasonably being in dispute; or
(B) is past due in paying 2 or more consecutive monthly invoices that are not in dispute;
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of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law; or,
(D) is otherwise in breach of this Agreement.
(ii) If TC terminates a Service Agreement pursuant to this Section, TC shall have the right to (i) full payment for any amounts due TC for the TC Service rendered before the date of termination, (ii) 100% of the remaining contract value, plus (iii) any specific early-termination charges contained in the Service Agreement. (iii) Upon 30 days written notice following defaults other than those described above, the non-defaulting party may terminate a Service Agreement upon the other party’s failure to cure the alleged default within such 30 day period. In addition to the remedies set forth above, upon the default of a party, the other party may pursue all remedies available to it under the terms hereof and under any applicable law. (iv) Unless otherwise specified in a Service Agreement, if Customer terminates a Service Agreement after the Service Agreement Effective Date other than by reason of TC’s default, Customer shall (A) provide at least 30 days’ written notice to TC of its intent to terminate and (B) be liable for 100% of the remaining contract value. Specific early termination fees may be contained within a Service Agreement.
(v) Upon termination of this Agreement or a Service Agreement, Customer may elect to access and export its data within 30 days of the effective date of termination (“Transition Period”). Customer must notify TC thirty days before the termination effective date of its intent to utilize the Transition Period. If TC has received such a timely notice, TC will provide Customer access to, and the ability to export, Customer data during the Transition Period at TC’s then-current rates for the applicable TC Service. TC may require a deposit to secure payment for TC Services during a Transition Period. This Agreement and the applicable Service Agreement will govern the TC Services during the Transition Period. Customer may request transition assistance from TC personnel at TC’s then-current hourly rates for Technical Services. TC may require a deposit before providing transition assistance. Upon termination, TC may without liability whatsoever delete or overwrite Customer data (1) on the termination date if Customer has not provided notice of its intent to use the Transition Period or (2) at the conclusion of the Transition Period if Customer has elected to use the Transition Period. Customer is solely responsible for retrieving its data before the termination date or expiration of the Transition Period, as applicable.
(c) Lien for Nonpayment. So long as any fees or other monies are due to TC and unpaid by Customer, TC retains a lien on property of Customer in TC’s possession. Customer hereby grants to TC a security interest in and to all property of Customer that is in TC’s possession and shall execute all documents, instruments and agreements and do all things necessary
and appropriate to perfect TC’s security interest in such property. Even though this Agreement provides for a lien by TC for the performance of services and materials contemplated by this Agreement, this Agreement shall not be construed as a waiver by TC of the right to assert any statutory lien that may be available under applicable law. To the extent permitted by applicable law, Customer hereby waives any rights, statutory or otherwise, to retrieve or take possession of its property, though self-help or otherwise, that
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is subject to the lien and security interest provided herein on such property until any and all amounts due and owing to TC have been paid in full.
9. Taxes and Additional Charges. Any applicable federal, state or local use, excise, sales or privilege taxes, duties, franchise fees, right of way fees, and right of entry fees or similar liabilities Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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charged to or against TC or Customer because of Service furnished by TC (collectively, Taxes and Additional Charges), shall be paid by Customer in addition to the regular charges under each Service Agreement. Charges shall not include any taxes for which Customer has furnished a valid exemption certificate.
10. Disclaimers; Limitation of Liability.
(a) TC DOES NOT WARRANT THAT THE TC SERVICES OR TECHNICAL SERVICES WILL BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE TC SERVICES AND TECHNICAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND TC EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. CUSTOMER UNDERSTANDS AND AGREES THAT TC WILL NOT BE LIABLE FOR ANY TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE TC SERVICES, OR THE UNAUTHORIZED ACCESS (“HACKING”) BY ANY THIRD PARTY INTO TC’S SERVERS OR SYSTEMS, AND CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
(b) TO THE EXTENT PERMITTED BY LAW, TC DISCLAIMS FOR ITS VENDORS ALL WARRANTIES AND ANY LIABILITY TO CUSTOMER FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE TC SERVICES. (c) UNLESS OTHERWISE PROVIDED UNDER A SERVICE AGREEMENT, IT IS SOLELY CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND DATA. UNDER NO CIRCUMSTANCES WILL TC BE LIABLE TO CUSTOMER OR TO ANY PARTY CLAIMING BY OR THROUGH CUSTOMER FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA. (d) TC IS NOT LIABLE FOR: DELAYS IN INSTALLATION OR RESTORATION OF THE TC SERVICE HEREUNDER; MISTAKES, ACCIDENTS, OMISSIONS, INTERRUPTIONS, ERRORS OR DEFECTS IN THE ORDERING, PROCESSING, PROVISIONING, OR TRANSMISSION OF THE TC SERVICE; LOSS OR DAMAGE OCCASIONED BY ACTS OF GOD, FIRE, ELEMENTS, LABOR DISPUTES, SHORTAGES, UTILITY CURTAILMENTS, POWER FAILURES, EXPLOSIONS, CABLE CUT AND OTHER CAUSES BEYOND TC’S REASONABLE CONTROL; INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, ANY LOSS OF DATA, LOSS OF USE, OR INTERRUPTION OF BUSINESS); PUNITIVE DAMAGES ARISING FROM A BREACH OF THIS AGREEMENT, AND TO THE EXTENT ALLOWED BY LAW, FOR INJURY TO OR DEATH OF ANY PERSON AND FOR DAMAGE TO OR LOSS OF ANY PROPERTY ARISING OUT OF OR ATTRIBUTABLE TO ITS OPERATIONS AND PERFORMANCE UNDER THIS AGREEMENT. TC’S LIABILITY FOR ANY AND ALL CAUSES AND CLAIMS WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHERWISE SHALL IN NO EVENT EXCEED THE GREATER OF 1) AN AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE BY TC TO CUSTOMER FOR THE PERIOD OF SERVICE AFFECTED (NOT TO EXCEED 3 MONTHS), OR 2) IF APPLICABLE, THE REPLACEMENT VALUE OF ANY CUSTOMER PROVIDED EQUIPMENT WHICH IS LOST OR DAMAGED AS A RESULT OF TC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PROVIDING TC SERVICES OR PERFORMING TECHNICAL SERVICES. CUSTOMER ACKNOWLEDGES THAT THESE
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LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT SUCH LIMITATIONS TC WOULD NOT ENTER INTO THIS AGREEMENT.
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(a) Customer shall indemnify, defend and hold harmless TC, its affiliates and their respective directors, officers, employees, agents, successors, and assigns (the “Indemnified Parties”) from and against any and all claims, actions, proceedings, damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, arising from or related to Customer’s use of any TC Service, Technical Services or the performance of its obligations and duties under this Agreement except to the extent those damages, costs, expenses, and liabilities arise from the negligence or willful misconduct of TC. TC shall promptly notify Customer in writing of any such suit or claim.
(b) In addition to and not in limitation of the Customer’s obligations under subparagraph (a) above, Customer shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all claims, actions, proceedings, damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, incurred or likely to be incurred by any Indemnified Party arising from or related to Customer’s failure to comply with the terms of any third party software license or usage guidelines.
12. Subject to Laws. This Agreement, and each Service Agreement, is subject to all applicable federal, state, and local laws, and regulations, rulings, and orders of governmental agencies, and the obtaining and continuance of any required approval or authorization of any governmental body. TC may terminate its obligations under this Agreement without liability if ordered to do so by the final order or ruling of a court or other governmental agency or if such order or ruling would make it impossible or commercially infeasible for either party to carry out its obligations under this Agreement. In addition, if at any time during the Term of this Agreement, or any Service Agreement, the action of a governmental agency requires modification of the TC Service provided hereunder so as to impair service to Customer, Customer may terminate such TC Service upon 30 days written notice to TC.
13. Nondisclosure. “Confidential Information” means any business and technical information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation concepts, designs, documents, prototypes or samples), which is designated as “Confidential,” “Proprietary,” or some similar designation or is disclosed under circumstances which indicate its confidential nature. Confidential Information may also include third party confidential information. Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. Each party agrees not to use any Confidential Information of the other party for any purpose except to perform its obligations or exercise its rights under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees, except to those employees or consultants of the receiving party who are required to have the information. Nothing in this Section precludes either party from disclosing the other party’s Confidential Information as required by law or a legal process, provided that the party under a legal obligation to disclose such Confidential Information gives the party whose Confidential Information is subject to disclosure as much advance written notice of such potential disclosure as is possible in the circumstances so that such party may seek confidential treatment of such Confidential Information. Without limiting any of the foregoing, if the parties have signed a separate confidentiality, nondisclosure, or similar agreement (NDA), then such NDA is expressly incorporated herein by
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reference and is specifically amended to provide that confidential information is able to be used by Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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the parties for the purposes contemplated in this Agreement and the term of the NDA is extended to be coterminous with the term of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the State of Oklahoma. Any action under this Agreement shall be brought in the appropriate federal or state court located Tulsa County, Oklahoma, and each party hereby waives any objection to such jurisdiction. 15. Prevailing Party. If Suit is brought or an attorney is retained by either party to enforce the terms of this Agreement or to collect any money as due hereunder or to collect any money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the reimbursement for reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred in connection therewith.
16. Relationship of Parties. Nothing in this Agreement will be deemed or construed to create any relationship of principal and agent, partnership or joint venture between the parties. Solely to the extent Customer licenses any Microsoft or other third-party Software from or through TC, Microsoft and other third-parties are an intended third-party beneficiaries of the Service Agreement that applies to such licenses, and Microsoft or other third-parties may enforce the provisions of that Service Agreement and verify Customer’s compliance with it.
17. Further Assurances. Customer acknowledges and agrees that TC may amend this Agreement at any time for purposes of compliance with applicable law, regulations, and requirements from intended third-party beneficiaries including but not limited to Microsoft. Customer and TC agree to cooperate in good faith to make any such amendments to this Agreement.
18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Customer shall not assign, delegate, or transfer any of its rights or obligations hereunder without the prior written consent of TC, which shall not be unreasonably withheld. TC may assign this Agreement to an affiliate or to a purchaser of substantially all of the assets or equity of the business unit of TC responsible for the performance of this Agreement.
19. Additional Provisions.
(a) This Agreement (including all Service Agreements, appendices, exhibits, attachments and/or schedules attached hereto) constitutes the entire understanding between the parties relating to the rights herein granted and the obligations herein assumed and correctly sets forth the rights, duties, and obligations of each party to the other as of the date of this Agreement. Any prior agreements, promises, negotiations or representations regarding the subject matter of this Agreement are of no force or effect. This Agreement shall not, however, affect or modify the terms or applicability of any other agreement regarding other subject matters to which TC and Customer are parties. No alteration or variation of the terms of any provision shall be valid unless made in writing and signed by duly authorized representatives of TC and the Customer. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and shall remain in effect and be binding upon the parties. Service provided by TC is subject to the condition that it will not be used for any unlawful purpose. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any other breach or of the future performance of such provision.
(b) This Agreement commences on the Effective Date and continues until the expiration or termination of the last remaining Service Agreement between the parties. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive Doc ID: 068ac79d56e48b816b297d749ce457725638c920
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the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
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Client shall cooperate with CamTech in any way necessary for CamTech to carry out the services mentioned herein, including, but not limited to, providing access to client’s network and facilities.
Restrictions to Hire
Client agrees not to solicit, with the intent to hire, any CamTech staff or sub-contractors for employment at any time and for a period of six (6) months following last work performed for client. In the event client hires any CamTech employee or sub-contractor as a result of clients’s direct solicitation thereof, client agrees to reimburse CamTech an amount equivalent to six (6) months of the employee/sub- contractor’s compensation for business interruption. Notwithstanding anything to the contrary, nothing herein shall prohibit client from hiring any CamTech staff member or sub-contractor who applies to client or otherwise initiates employment with client.
Return of Confidential Information
All Confidential Information shall remain the property of the disclosing party. Upon the disclosing party’s request, or upon termination or expiration of this Agreement, the receiving party shall, at the disclosing party’s option and to the extent permitted by applicable law or court order promptly return to the disclosing party or destroy the Confidential Information of the disclosing party and upon request certify in writing that all such Confidential has been destroyed; any Confidential Information not destroyed or returned shall remain subject to the confidentiality restrictions set forth herein.
Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of proving actual harm or posting bond.
CamTech is an independent contractor. Neither CamTech nor Client are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation. Also, CamTech is responsible for providing, at CamTech’s expense, unemployment insurance, medical insurance, workers comp, and/or worker’s compensation insurance for CamTech’s employees and agents in appropriate amounts taking into account all potential risks and exposures.
Both parties agree that any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by submitting the controversy or claim to the Tulsa County District Court to be heard by a judge, thereby waiving all rights to a jury trial. If CamTech is the prevailing party, it shall be