Cloud Services Hosting Agreement Markley PLEASE READ CAREFULLY - THIS IS A BINDING AGREEMENT. THIS MCS CLOUD PLAN HOSTING AGREEMENT ( AGREEMENT ) IS A BINDING AGREEMENT BETWEEN ONE SUMMER COLOCATION LLC, d.b.a. MARKLEY CLOUD SERVICES ( MCS ) AND YOU AS THE CUSTOMER AND, IF APPLICABLE, THE CUSTOMER OR LEGAL ENTITY THAT YOU REPRESENT (COLLECTIVELY, CUSTOMER, YOU OR YOUR ). THIS AGREEMENT INCORPORATES BY REFERENCE: (A) THE TERMS AND CONDITIONS OF MCS SERVICE LEVEL AGREEMENT ( SLA ); (B) THE TERMS AND CONDITIONS OF MCS ACCEPTABLE USE POLICY ( AUP ); AND (C) OTHER TERMS AND CONDITIONS AS MAY BE POSTED FROM TIME TO TIME ON WWW. MARKLEYCLOUD.COM (THE MCS SITE ) AND REFERENCED AS BEING APPLICABLE TO MCS CLOUD SERVICES / PLANS IN GENERAL. MCS MAY CHANGE THE TERMS AND CONDITIONS OF THE SLA AND/OR AUP FROM TIME TO TIME. BY CLICKING THE APPLICABLE ACCEPT BUTTON BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS DESCRIBED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DID NOT WISH TO BE BOUND BY THIS AGREEMENT, CLICK THE DECLINE BUTTON BELOW. 1. CUSTOMER S OBLIGATIONS. Customer agrees to do each of the following: (i) comply with applicable law and the terms of this Agreement (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of Customer s use of the Services, (iv) cooperate with MCS s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep Customer s billing contact and other account information up to date; and (vi) immediately notify MCS of any unauthorized use of Customer s account or any other breach of security. 1.1 Fees. Customer shall pay to MCS in U.S. Dollars, monthly Fees and all such other recurring fees, payable in monthly instalments as applicable to the Service Level (the Fees ). The Service Level is that level/package of services described within the MCS website which Customer indicates its desire to purchase by clicking the Accept after selection of services. Any amounts for which payment is not received within five (5) days after the due date of such payment will accrue interest on the unpaid sum at the lesser of (i) the highest legal rate of interest permitted under Massachusetts law or (ii) one and one-half percent (1.5%) per month. MCS may apply any payments received by MCS to any one of Customer s then outstanding charges. Continuing non-payment, including, but not limited to, any interests accrued or any additional charges, for more than three (3) calendar months after their due date shall result in a 5-day notice of disconnection. All payment failures must be cured within 5 days of notice, including any interests accrued thereon. Customer s failure to make payment within 5 days of such notice will result in interruption of the Services and a $100 reconnection fee. If any amount is overdue by more than thirty (30) days, and MCS brings a legal action to collect, or engages a collection agency, Customer must also pay MCS s reasonable costs of collection, including attorney fees and court costs. Customer may exercise a right of lien over Customer s equipment hosted in MCS premises to secure payment of any charges due and payable by Customer to MCS that remain unpaid after the due date. 1
1.2 Compliance. Customer shall comply at all times with all applicable laws and regulations relating to Customer Content and the Services. Customer acknowledges that MCS exercises no control whatsoever over the Customer Content and that it is Customer s sole responsibility to ensure that the Customer Content complies with all applicable laws and regulations. 1.3 Customer Content. Means all data and information, materials, images, files, or other content that Customer or any of its agents, representatives, contractors, users, employees or anyone on Customer s behalf or through Customer, provides or transmits to MCS, at any time. To the extent necessary for MCS to perform the Services, Customer grant to MCS a world-wide, royalty free license to all Customer Content. All information contained on any server shall be considered publicly accessible. Important and private information should be protected by Customer. MCS shall not be liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider, which Customer may use. MCS shall have no ownership, control or responsibility for any Customer Content used in connection with the Services. 1.4 Acceptable Use. Without limiting any other provision in this Agreement, Customer shall not use the Services nor any equipment used in connection with the Services in connection with any (a) infringement or misappropriation of any intellectual property rights; (b) defamation, libel, slander, obscenity, or violation of the rights of privacy or publicity; (c) spamming; or (d) other conduct that, MCS deems offensive, harassing or illegal. Customer and all its end users shall at all times comply with the AUP. Customer agrees that any suspension, termination or other interruption of Services pursuant to Customer s violation of the AUP shall not constitute a breach by MCS of this Agreement. 2. CREDIT REPORT. Customer authorizes MCS to obtain a credit report at any time during the term of the Agreement. 3. TERM. The term of this agreement, and the provision by MCS of the Services hereunder, is on a monthto-month basis and shall automatically renew on such month-to-month basis unless cancelled earlier by Customer or MCS pursuant to the express terms of this Agreement. Customer shall pay all Fees through the effective date of the end of the term on a pro-rated basis as necessary. 4. CHANGES. Customer agrees the MCS may amend the terms and conditions of this Agreement, or any other agreement, term or condition referenced in this Agreement at any time by posting a revised version of this Agreement or such other term or condition on the MCS Site. Any revisions will become effective thirty (30) days after we post them to the MCS Site. By continuing to use the Services after the revisions become effective, the Customer agrees to be bound by the revisions. 5. MAINTENANCE. MCS may periodically and temporarily discontinue one or more Services for the purpose of maintaining servers, the MCS network and any other property or system used by MCS to provide Services; provided, however, that any such discontinuation shall not occur more frequently or last for a duration longer than is reasonably necessary for MCS to perform such maintenance. Any such discontinuation shall not constitute a breach by MCS of this Agreement. 2
6. TERMINATION FOR CONVENIENCE. In order to cancel any Service, Customer must (i) send written notice of cancellation ( Cancellation Notice ) pursuant to this Agreement or email to billing@markleycloud.com at least thirty (30) days before its next monthly billing cycle and (ii) upon submission of the Cancellation Notice Customer must contact via telephone a customer service representative to confirm the information set forth on the Cancellation Notice, unless otherwise instructed in writing by MCS to do so otherwise. Customer acknowledges and agrees that Service will not be cancelled and Customer will continue to be billed for Services unless Customer confirms via telephone the information provided in the Cancellation Notice as provided in (ii) above. 7. TERMINATION FOR BREACH. MCS may terminate the Agreement for breach on written notice if: (i) Customer did not have the legal capacity to enter into the Agreement at the time Customer submitted the order for Service, (ii) MSC reasonably believes that the Services are being used in violation of this Agreement, MCS discovers that Customer is, or is affiliated in any manner with, a person who has used similar services abusively in the past; (iii) Customer doesn t cooperate with MCS s reasonable investigation of any suspected violation of the Agreement; (iv) MCS reasonably believes that the Services have been accessed or manipulated by a third party without Customer s consent, (v) MCS reasonably believes that suspension of the Services is necessary to protect MCS s network or MCS s other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law or (ix) a credit report indicates Customer no longer meet MCS s reasonable credit criteria. 8. ACCESS TO DATA. 8.1 Customer will not have access to Customer s data stored on the MCS system during a suspension or following termination. 8.2 MCS backs up the MCS systems on a periodic basis so that MCS is able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, MCS may destroy all but the most recent backup. These backups may not be available to Customer or, if available, may not be useful to Customer outside of the MCS Cloud systems. 8.3 Customer agrees that Customer will maintain at least one additional current copy of Customer s programs and data stored on the MCS system somewhere other than on the MCS system. 9. UNAUTHORIZED ACCESS OR USE OF THE SERVICES. MCS is not responsible to Customer for unauthorized access to Customer s data or the unauthorized use of the Services unless the unauthorized access or use results from MCS s failure to meet its security obligations stated in the Agreement. Customer is responsible for the use of the Services by any of its employees, any person to whom Customer has given access to the Services, and any person who gains access to Customer s data or the Services as a result of Customer s failure to use reasonable security precautions, even if such use was not authorized by Customer. 3
10. DISCLAIMERS. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer s privacy, Confidential Information, and property. MCS has no obligation to provide security other than as stated in this Agreement. MCS disclaims any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. Customer is solely responsible for the suitability of the service chosen. If Customer has not made the minimum financial commitment for support and SLA coverage, the Services are provided AS IS. Any voluntary services MCS may perform for Customer at Customer s request and without any additional charge are provided AS IS. 11. CONFIDENTIAL INFORMATION. Confidential Information shall include but is not limited to (a) the trade secrets, engineering specifications, customer identities and locations, customer issues, structural or equipment configurations or malfunctions, costs, financial information, customer information, marketing communication material, SAS70 or other audit reports and other information related to the business activities of MCS and Customer, regardless of any restrictive markings, which MCS and Customer learn or receive from each other; and (b) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by MCS or Customer which contain, reflect or are based on, in whole or in part, any Confidential Information furnished to Markley or Customer to each other pursuant hereto. MCS and Customer agree not to use the other s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of MCS s respective legal rights under the Agreement, or as may be required by law. MCS and Customer agree not to disclose the other s Confidential Information to any third person except as follows: 11.1.1 To MCS s respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement. 11.1.2 To law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other s conduct may violate applicable criminal law as required by law; or 11.1.3 In response to a subpoena or other compulsory legal process, provided that each MCS and Customer to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice. 12. DAMAGES. MCS s obligations to Customer are defined by this Agreement. MCS is not liable to Customer for failing to provide the Services unless the failure results from a breach of this Agreement, or results from MCS s gross negligence or willful misconduct. The dollar credits stated in the SLA are Customer s sole and exclusive remedy for unavailability of the Services. MCS (nor any of MCS s employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party s use of reasonable diligence, even if 4
the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall MCS be liable to Customer for any punitive damages. Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of MCS and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the amount of fees Customer paid for the Services for the thirty day period prior to the occurrence of the event giving rise to the claim. 13. INDEMNIFICATION. If MCS, its affiliates, or any of its or their respective employees, agents, or suppliers (the MCS Indemnities ) are faced with a legal claim by a third party arising out of Customer s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, then Customer will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the MCS Indemnities as a result of the claim. Customer s obligations under this subsection include claims arising out of the acts or omissions of Customer s employees, any other person to whom Customer have given access to the Services, and any person who gains access to the Services as a result of Customer s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer. Customer must comply with MCS s reasonable requests for assistance and cooperation in the defence of the claim. Customer must pay expenses due under this Section as MCS incur them. 14. OWNERSHIP OF INTELLECTUAL PROPERTY. MCS and Customer each retains all right, title and interest in and to their respective trade secrets, inventions, copyrights, and other intellectual property any content provided in connection with the Services. Any intellectual property developed by MCS during the performance of the Services shall belong to MCS unless MCS has agreed with Customer in advance in writing that Customer shall have an interest in the intellectual property. MCS shall retain ownership of all hardware, software licenses and software provided by MCS as part of the Services. 15. IP ADDRESSES. MCS shall maintain and control ownership of all IP numbers and addresses assigned to Customer by MCS and MCS reserves, in its sole discretion, the right to change or remove any and all IP numbers and addresses so assigned. Customer is not permitted to use IP addresses not assigned to Customer by MCS in connection with any of its equipment, any Customer Content or any Services. Violations of this section shall give MCS the right to end the term of this Agreement and/or the right to charge Customer for engineering time required to rectify Customer s violation. Such time shall be billed at the rate of Three Hundred and Fifty Dollars ($350) per hour, billed in one hour increments. Upon expiration or termination of the Agreement, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by MCS in connection with Services, including pointing the DNS for Customer s domain name(s) away from MCS Services. Customer agree that MCS may, as it determines necessary, make modifications to DNS records and zones on MCS managed or operated DNS servers and services. In the event the Services are cancelled or terminated for any reason Customer retains no ownership, right, title or interest in the IP addresses provided by MCS in connection with the Services. 5
16. ASSIGNMENT/SUBCONTRACTORS. Customer may not assign the Agreement in whole or part. MCS may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of MCS s business, and MCS may transfer Customer s Confidential Information as part of any such transaction. MCS may use third party service providers to perform all or any part of the Services, but MCS remains responsible to Customer under this Agreement for work performed by its third party service providers to the same extent as if MCS performed the Services itself. 17. FORCE MAJEURE. Neither MCS nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry. 18. GOVERNING LAW, LAWSUITS. The Agreement is governed by the laws of the Commonwealth of Massachusetts. The Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Suffolk County, Massachusetts, and MCS and Customer each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts. Customer agrees that Customer will not bring or participate in any class action lawsuit against MCS or any of its employees or affiliates. Customer agrees that it will not bring a claim under the Agreement more than two years after the time that the claim accrued. 19. USE OF NAME. Customer grants to MCS the express right to use its name and/or logo in marketing, sales, financial and public relations materials and other communications. MCS grants Customer the express right to use MCS company name and logo solely to identify MCS as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party s names, marks, codes, drawings or specifications without the prior written permission of the other party. 20. NO VIOLATION. Customer hereby warrants and represents that neither its execution of nor performance under this Agreement shall cause Customer to be in violation of any agreement, instrument, contract, Law, rule or regulation by which Customer is bound, and Customer shall protect, defend, indemnify and hold MCS harmless from and against any and all Claims arising from Customer s breach of this warranty and representation. 6