ARGUS HOSTING SERVICES AGREEMENT Terms

Transcription

1 ARGUS HOSTING SERVICES AGREEMENT Terms These Terms and all Addenda hereto form the complete agreement ( Agreement ) between ARGUS ( Company ) and the undersigned client ( Client ), effective as of the day last signed below. The parties agree as follows: 1. Access. Company will provide Client with access to the hosting and consulting services (the Services ) as set forth in a Hosting Services Sales Order ( HSSO ), applicable Exhibits and Addendums, each of which upon full execution shall become Addendums to these Terms. Company will provide support for the Services in accordance with the Service Level Agreement and Services Process. 2. Client Obligations. Client will secure communication services, including but not limited to, bandwidth, etc., and equipment from its communications provider. The Company uses Internet access as a means of connecting with the Client. Unless specified by Client or the Company in an addendum, there are no specialized or direct requirements for VPNs, MPLS or PTP s. Therefore, the Client is responsible for establishing and maintaining connectivity to the internet. Company is not responsible for interruptions, failures, errors, defects, downtime, packet loss, transmission speed, lost productivity, or other problems related to communications services caused by Client s communication provider or for any other issue not directly attributable to Company; and Client and Company each warrant to the other that each has secured and will keep in effect throughout the Term of the applicable HSSO, all of the necessary software licenses for the Services. a. Use of Services: All users of Company systems and the Services by Customer and its End Users will comply with Company Acceptable Use Policies ( AUP ), which is included herein by reference. Company may make reasonable changes to the AUP at any time and such change will be effective upon posting to Company website or other notice to Customer. Company may suspend the Services or otherwise restrict access to Company systems without notice if Company learns of an AUP violation that, in its reasonable discretion, is unlawful or is likely to cause loss or liability for Company or any other party. Any such suspension or restriction will be on the most limited basis as Company determines is reasonably practical under the circumstances in order to address the underlying violation. Customer will indemnify, defend, and holds Company and its contractors harmless from any and all third party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys fees and court costs, or liabilities arising from or related to the use or resale of the Service, including, without limitation, any violation of this Section. b. Responsibility for Message Content: You are solely responsible for all content that you make available on or through our Services. You guarantee that all such content will not infringe on, or contain any content that infringes on, or otherwise violates any P a g e 1

2 copyright, patent or any other right held by a third- party and that all such content will not violate any applicable law, rule, regulation or industry standard. 3. Permitted Use. Client will not access unauthorized areas of Company s systems and will not engage in any hacking, reverse engineering, security breaches, sending unsolicited s, causing denial of service attacks or any other harmful activity on Company s systems. In the event that Company detects unpermitted use by Client, Company will notify Client and Client will immediately cease such unpermitted use. If Client fails to cease unpermitted uses immediately, Company may suspend Service to Client until Client prevents such unpermitted use. If unpermitted use does not cease in its entirety after notification, Company may terminate the applicable HSSO or this Agreement without penalty or refund due to Client. In the event Client becomes aware of unpermitted access to Company s system, Client will immediately cease such access and send an to support@argushostingllc.com indicating the unauthorized use. 4. Fees. Client will pay the fees as set forth in each HSSO and addendums. Client will be invoiced (which may be via or mail to Client s billing contact) no later than the 16th day of each month for all recurring Services. Client will be billed on the next Service month invoice upon any changes or support ( or receipt of a change order; or a MACD (move, add, change, delete) for all changes or additions to the Services. Company reserves the right that all new addendums to the HSSO will be co-terminus. Payment is due for all undisputed amounts no later than the last day of the month. Client s first billing will commence upon receipt of a fully signed HSSO. If any payment exceeds 5 days past due, Company may suspend Service until outstanding payment is received. Starting on the 6th day past due, late fees may be assessed at the rate of 1.5% or $ per month whichever is greater. In the event Company fails to meet the Service Availability Percentage as defined in the Service Level Agreement and Services Process, Client shall provide notice of such failure within ten days of the date of first occurrence of the failure, including facts sufficient to enable Company to verify such failure. Any credits due Client in accordance with Paragraph 5 below will be applied against the monthly fee for the next Service month. a. True-Up Billing: At all times the Company puts forth its best effort to bill for all services provided under the HSSO. In the event the Company inadvertently does not bill for services as defined in the HSSO, the Company has every right to perform a True-Up Billing. A True-Up Billing is defined by determining the date in which the services were not billed, determining the most current month, and billing for the services as defined in the HSSO. The Client agrees to submit payment upon receipt of the True-Up Billing invoice. b. Microsoft SPLA licensing increases: If during the Term of the HSSO the Microsoft SPLA Licensing prices increase to the Company, the Company will increase the monthly recurring prices to the Client without notice. P a g e 2

3 c. Citrix CSP licensing increases: If during the Term of the HSSO the Citrix CSP Licensing prices increase to the Company, the Company will increase the monthly recurring prices to the Client without notice. 5. Service Credits. Service Availability Percentage for Services is set forth in each HSSO and is based upon a full calendar year. Company reporting for monitoring, logs, outages reported by Client and uptime data is available upon request. a. Accounting for Outages: An Unplanned Outage is defined in section 4 of the Service Level Agreement and Services Process. In the event of an Outage the Client may submit a request to Company s billing department at billing@arguscloud.net for a credit if the SAP in a calendar month is not met due to an Unplanned Outage. After verification of an Unplanned Outage, and if it is determined that Client is due a credit, Company will within 30 days of the receipt of Client s request, issue a Service credit to be applied solely against future invoices. In the event that Client is unable to access the Services for reasons other than an Unplanned Outage the Company shall work diligently either independently or with third party vendors to resolve such outages on Client s behalf, but no credits shall be due. The amount of Service credit for a Service Month will be the lesser of (a) the month s charges or (b) the month s charges times the total number of outage hours divided by 1/10 of the number of hours in the Service Month. Client waives any claim for Service credits for Outages if it fails to submit a request within 30 days from the end of the Service Month in which the Outage occurred. Company s failure to maintain its hosting SAP due to four or more unplanned Outages in a month is a material breach. Client may, at its election, terminate this HSSO without penalty upon written notice to Company for an aggregate period of Outages totaling more than 20 business hours in a month. b. Exempt Events: The following events are not Outages: (1) Access or use problems caused solely by Company s provision of planned Scheduled Maintenance activities (Company will put forth it s best effort to schedule planned maintenance at least 24 hours in advance to minimize the impact on Client); or (2) Access or use problems solely related to the failure of the Client s administrators, computer hardware or software controlled solely by Client (including but not limited to firewalls, routers, computers and printers); or (3) Access or use problems associated with Client s failure to use the Services in accordance with any instructions, specifications and Company s Acceptable Use Policy; or access or use problems that are attributable to events solely beyond Company s control, including, without limitation, Client s failure to furnish necessary information requested by Company, delays caused by Client s customers or third parties other than agents or suppliers of Company, sabotage, P a g e 3

4 natural disasters, acts of government, failure or substitutions of equipment, lawsuits, accidents, shortages of fuel, extended power failure, fire, flood, acts of God, labor disputes, riots, or acts of war; or (4) Access or use problems that are attributable to local, regional or national carriers that provide transport or bandwidth services to Company or to Client; or (5) Access or use problems caused solely by software, patches, updates, or upgrades to the operating systems, subsystems, applications, or database software that were attributable to written instructions from Client or Client s agents; or (6) Access or use problems caused by software that is behind in revisions and not at current released levels supported or considered current by the software company. (7) Access or use problems caused solely by Client s users, representatives or employees; or (8) Incorrect, out-of-date, bad, wrong, or misinterpreted written or verbal information provided to Company by Client, Client Representative(s) or Developer of the software; or (9) Software installs done incorrectly or incorrect configuration settings done by the Client, Client Representative(s) or Developer of the software. 6. Confidentiality. All confidential information belonging to one party and disclosed to the other party shall remain solely the property of the disclosing party, and its confidentiality shall be maintained and protected by the recipient with the same effort used to protect its own confidential information, which degree of effort shall in any event be non-negligent. Company s pricing shall be the confidential information of Company. The parties agree further not to use each other s confidential information for any other purpose than as contemplated by this HSSO. Company will not claim any ownership in or rights to data, data integrity or content originated by Client or stored on Client s behalf on Company s equipment. The obligations of the parties set forth in this paragraph extend to any and all agents, representatives, employees, and subcontractors of either party. Confidential Information shall not include (a) information publicly available; (b) information previously known to the recipient without obligation of confidentiality; or (c) information required to be disclosed by law or court order. 7. Configurations. All Company confidential information pertaining to the creation, architecture, engineering, development, ongoing maintenance, updates, upgrades and improvements of the Client s designated environment, which consists of hardware, software and network configurations, is solely the information of the Company and referred to as The P a g e 4

5 Secret Sauce. The Company has no obligation whatsoever to share The Secret Sauce with the Client. At no time can the Client make claim to The Secret Sauce, and Company is under no obligation to ever disclose The Secret Sauce to the Client. 8. Access between Desktops. In some situations the Company will provide a Company Desktop as a means by which the Client can access applications. The Client users will have the ability to drag and drop or cut, copy and paste information from the Company Desktop to the Client s local device desktop. This feature is known as Drive Mappings and it is enabled as a default feature for all Client users who have a named account in Active Directory. If the Client determines the Drive Mappings feature should be disabled, the Client must submit a formal request in writing ( or letterhead) to the Company, specifically requesting the Drive Mappings feature to be disabled. This feature is companywide and not available on a user by user basis. The Drive Mapping feature is considered by the Company to be a possible threat to the security of the Clients confidential and non-confidential data and should be evaluated on a regular basis if left enabled. 9. Term. Unless stated otherwise in the HSSO, the initial term of each HSSO is 3 years (36 months) from the effective date of each HSSO. Company will provide notice to Client of any changes in price at least 30 days prior to the beginning of any renewal term, and unless a notice of termination is received by either party at least 30 days prior to the date of termination of the then-current term, this HSSO will automatically renew at the prices set forth in Company s notice to Client. 10. Termination for Cause. Either party may elect to terminate this HSSO in the event of a material breach by the other party, such termination effective 30 days after receipt of written notice of the breach by the breaching party, unless the breach is cured within the 30-day notice period. Company may terminate this HSSO or suspend Client s access at any time for cause, including governmental prohibition or required alteration of the Services to be provided or any violation of an applicable law, rule or regulation. 11. Termination Services. Commencing thirty days prior to termination of an HSSO, the Client can request non- production or older versions of their data for local testing and setup. Upon termination, all Client data will be transferred as agreed upon between the parties, and, if no agreement is reached, such data will be transferred within 24 hours of termination to a device supplied by Client and delivered to Client and returned to Client at Client s pre-paid expense. 12. Early Termination. Client may terminate the HSSO for convenience upon payment of all recurring fees due under the full term of the HSSO. The dismantling, removal and transfer of the environment and the data by Company shall be billed at Company s then-current hourly rates, the estimated amount of which must be pre-paid by Client. 13. Warranty and Disclaimer. Company warrants that the Services will be provided in accordance with the HSSO and the Services set forth in the Addendum(s) and that the Services will be provided in a good and workmanlike manner at least to industry standards; and that the P a g e 5

6 Services will not infringe the proprietary rights of a third party. EXCEPT AS STATED IN THIS Section 13, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH IN THIE AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO SUCH SERVICES, WHETHER ORAL OR WRITTEN AND WHETHER EXPRESS OR IMPLIED. 14. Limitation of Liability. COMPANY WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE SOLELY TO ANY FORCE MAJEURE CAUSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY SPECIAL, INDIRECT, INCIDENT OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS OR (C) ANY CLAIM THAT AROSE MORE THAN THE PERIOD OF TIME ALLOWED BY THE STATUTE OF LIMITATIONS APPLICABLE THERETO IN MINNESOTA PRIOR TO INSTITUTION OF SUIT THEREON, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY. 15. Indemnification. Client will hold Company harmless from, and defend and indemnify Company against, any and all claims, losses, damages and expenses, including reasonable attorneys fees, arising from a third party claim against Company to the extent that such third party claim is based on a breach of this Agreement due to Client s infringement of third party intellectual property rights through gross negligence or willful misconduct; and Company will hold Client harmless from, and defend and indemnify Client against, any and all claims, losses, damages and expenses, including reasonable attorneys fees, arising from a third party claim against Client to the extent that such third party claim is based on a breach of this Agreement due to Company s infringement of third party intellectual property rights through gross negligence or willful misconduct. 16. Force Majeure. Neither Company nor Client will be deemed to be in default of any provision of this Agreement for any failure in performance resulting from acts or events beyond the reasonable control of Company or Client, as the case may be, including, without limitation, acts of God, civil or military authority, civil disturbance, war, strikes, fires, other catastrophes, telecommunication outages, or other such major events beyond Company s or Client s reasonable control. 17. Governing Law. This Agreement is governed by and construed in all respects in accordance with the laws of the State of Georgia, without regard to conflicts of laws principles. 18. Security. Company shall use reasonable data center security practices consistent with industry standards. 19. General. The section headings in this Agreement are for convenient reference and are not a part of this Agreement. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing. This Agreement may P a g e 6

7 be modified or amended only by written agreement signed by the parties. If any provision is held to be illegal, invalid or unenforceable under present or future laws effective during the Term, the provision will be fully severable; and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement will remain in full force and effect. In the event of a conflict between the Terms, the HSSO or the Addendums, the Addendums shall control, then the HSSO, then Terms. This Agreement contains the complete agreement between the parties concerning the subject matter and supersedes all prior understandings, letters of intent, proposals or agreements, and all prior communications between the parties relating to the subject matter hereof. 20. Definitions AUP means Company Acceptable Use Policy located on its website. Confidential Information means any non-public information of the parties hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to, and received by, the other party pursuant to the Agreement. Confidential Information includes, but is not limited to, the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information. End Users means Customer s member, end-users, customer or any other third parties who utilize or access the Services or Company systems via the Services provided hereunder. Service means the service provided by Company and/or its licensors and contractors as set forth on the Service Order. HSSO means a Hosting Service Sales Order request submitted on a form issued by Company and signed by Customer that includes the type and details of the specific Services ordered by Customer. SLA Attachment means the attachment that sets forth the SLA applicable to each individual Service, if any, and which provides Customers sole and exclusive remedies for any Service deficiencies or failure of any kind, which Company may modify during a renewal term upon 60- days notice. TAXES means any applicable foreign, federal, state, or local taxes and charges assessed or incurred in connection with the Service, including without limitation, all governmental excise, use, sales, value-added, environmental assessments or charges, and occupational taxes and other fees, or similar surcharges and levies, but excluding any taxes based on Company net income. P a g e 7

8 HOSTED NAMED USER is defined as an individual authorized by you to access the hosted service, regardless of whether the individual is actively accessing the hosted service at any given time. P a g e 8

9 Signatures Company Client Signature Date Signature Date Print Full Name and Title Print Full Name and Title Argus Hosting, LLC 1640 Powers Ferry Road Building 3, Suite 300 Marietta, GA, P a g e 9