These are the terms and conditions (the “Terms”) which apply to and govern the Company’s provision of the Services (as defined below) to any person, firm or corporation (the “Customer”) who/which buys and/or uses any of the Company’s service or services, software, website or sites (individually a “Service” and collectively the “Services”).
Unless otherwise expressly agreed in writing by the Customer and the Company, subject to the terms set out in any agreement specifically negotiated and entered into between the Company and a particular customer, any agreement the Customer enters into for the purchase or use of a Service shall be deemed to be upon and subject to these Terms, which are incorporated by reference into any such agreement.
Wherever used in these Terms, the “Company” includes the Company’s subsidiaries and affiliates and the “Customer” includes the Customer’s subsidiaries and affiliates, and each party represents and warrants that it has the legal power and authority to enter into the Terms. No joint venture, partnership, employment, or agency relationship exists between the Customer and the Company as a result of the Terms or use of the Services.
Use of the Services
The Company grants the Customer a non-exclusive, worldwide, non-transferrable, license to access and use the Services in accordance with the Terms hereunder. The Customer agrees that it will only use the Services for the purposes permitted by (a) the Terms, (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from any relevant countries), and (c) the annual service limits specified on the Order Form.
The Customer may have one or more login account associated with the Services (each an “Individual Account”). As such, the Customer’s employees or affiliates are not permitted to share their username and/or password of an Individual Account with any other person, firm or corporation.
The Customer understands that it may not gain access to or attempt to gain access to any Services by any means other than through the interface that is provided by the Company unless it specifically has been permitted to do so in a separate agreement with the Company. The Customer specifically agrees not to gain access or attempt to gain access to any of the Services using or through any automated means including, without limitation, using web crawlers or scripts or otherwise. The Customer agrees not to engage in any action or activity which interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
Unless and until the Customer has been specifically allowed to do so in a separate agreement with the Company, the Customer agrees with the Company that it will not reproduce, duplicate, copy, sell, transfer, trade, dispose of, exchange or resell a Service or the Services for any purpose and agrees that it alone is responsible for (and that the Company has no responsibility to the Customer or to any third party for) any breach of its obligations under the Terms and for the consequences (including any loss or damage which the Customer or any other person, firm or corporation may suffer) resulting from any such breach.
The look, feel, and function of the Service is copyrighted. The Customer may not duplicate, copy, or reuse any portion of the Service, including without limitation, any visual design element or concept without express written permission from the Company. The Customer will not (and will not permit or direct any third party under its control to), directly or indirectly for whatever purpose, (a) analyze, reverse engineer, decompile, disassemble or otherwise attempt to discover any part or parts of the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data (“Software”) related to the Services for any purpose(s), (b) access the Services to monitor the Services’ availability, or functionality, or for any other benchmarking or competitive purpose(s), and/or (c) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted or authorized by the Company).
The Customer acknowledges that the Company’s ability to deliver and to continue to deliver the Services in a timely manner may be dependent upon the Customer’s ongoing reasonable cooperation and assistance, as advised by the Company to the Customer. Accordingly, the Customer agrees to supply to the Company, on a timely basis, all information, material and assistance which the parties mutually agree is necessary for the Company to be able to deliver, or continue to deliver, as the case may be, the Services to the Customer including obtaining content and any additional information, material, or assistance identified by the Company and, if applicable, by the Customer.
In the case of information and/or assistance provided by the Company to the Customer, or by the Customer to the Company, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or other information relating to the Disclosing Party’s business that are marked, or by their nature and/or by the circumstances under which they are disclosed would indicate to a reasonable person that they are considered to be, confidential or proprietary (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes, without limitation, non-public information regarding features, functionality, and performance of the Services. Proprietary Information of the Customer includes, without limitation, non-public information, data, content, reports or other materials stored in connection with, or input into or transmitted by or through, or prepared through the use of, or processed using the Services or provided by the Customer to the Company to enable the provision to the Customer by the Company of the Services (collectively, the “Customer Data”). The Receiving Party agrees: (i) to protect the Discloser’s Proprietary Information against unauthorized access, use, disclosure or loss using at least the same degree of care that the Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care that includes at a minimum those technical, physical and administrative security and other safeguards and controls required by any applicable laws, (ii) not to use (except in the performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information other than to Permitted Parties (as defined below) who are bound by confidentiality obligations at least as restrictive as those set forth herein and (iii) promptly notify the Disclosing Party of any breach of Receiving Party’s obligations herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was lawfully in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) the Disclosing Party has expressly agreed in writing with the Receiving Party that the Receiving Party may release or make known. As used herein, “Permitted Parties” means Receiving Party and its respective employees and contractors.
If Receiving Party becomes compelled by a court of competent jurisdiction (by applicable law or regulation or by deposition, interrogatory, request for documents, order, subpoena, civil investigative demand or other legal or judicial process) to disclose any of the Disclosing Party’s Proprietary Information or the terms of this Agreement, Receiving Party will provide Disclosing Party prompt prior written notice of such requirement (to the extent permissible) so that the Disclosing Party may seek a protective order or other appropriate remedy, and Receiving Party shall provide all assistance reasonably necessary for the Disclosing Party to seek such order or remedy. In the event that Disclosing Party does not obtain such protective order or other remedy, then the Receiving Party may disclose only that portion of the Proprietary Information or terms of the Agreement that Receiving Party's counsel advises Receiving Party is legally required to disclose.
The Company shall maintain (and shall ensure that any third party responsible for the host server maintains) a data privacy and information security program that meets industry-accepted standards and practices, including physical, technical, administrative, and organizational safeguards that are designed to (a) ensure the security and confidentiality of the Customer Data, (b) protect against any anticipated threats or hazards to the security or integrity of the Customer Data, including without limitation accidental loss or destruction of, or damage to, the Customer Data, (c) protect against unauthorized disclosure, access to, or use of the Customer Data, (d) ensure the proper disposal of the Customer Data, and (e) ensure that access to the Customer Data is restricted to employees, agents, and contractors of the Company who have a business need to access the Customer Data, if any, and will comply with all of the foregoing. If the Company discovers or is notified of any: (1) unauthorized destruction, loss, alteration of or access to the Customer Data, or (2) actual breach of security of the Customer Data (each a “Security Incident”), the Company will in the most expedient time possible under the circumstances and without unreasonable delay, within forty-eight (48) hours after the Company has become aware of the Security Incident, (a) notify the Customer of such Security Incident by email or phone after the Company has become aware of the Security Incident, and (b) whether the Customer Data was in the Company or its third-party service provider’s possession at the time of the Security Incident. The Company shall (i) investigate, and take appropriate actions to remediate the effects of, and mitigate the risks associated with, the Security Incident, (ii) provide the Customer with a written report on the outcome of its investigation including any risk to the Customer or the Customer Data, the corrective action the Company will take, or has taken, to respond to the Security Incident, (iii) take all commercially reasonable actions to ensure the circumstances that gave rise to the Security Incident are resolved in the most expedient time possible under the circumstances, and (iv) provide the Customer with a final report once the Security Incident has been remedied, including steps taken to prevent a recurrence of the Security Incident.
To the extent required by applicable law, either party may disclose the occurrence of a Security Incident involving nonpublic personal information to customers, governmental authorities, law enforcement agencies, or any other notice required by law or deemed necessary or prudent in either party’s reasonable discretion including, as applicable, any substitute notice required by law (“Security Notifications”), but Company will never expressly mention the name of the Customer in Security Notifications unless agreed to by Customer in writing.
The Customer shall own and retain all right, title and interest (including all copyright and other intellectual property rights) in and to the Customer Data and/or to Customer Proprietary Information created by the Customer as a user of the Services, subject to the Company’s intellectual property rights in the Services as set forth below.
The Company or its licensors own and retain all right, title and interest in and to the Services and the software, applications, inventions or other technology developed in connection with the Services or support related to the Services, and all improvements, enhancements or modifications thereto, and all intellectual property rights related to any of the foregoing which subsist in the Services and wherever in the world those rights exist (excluding any Customer Data and/or Customer Proprietary Information contained therein).
Notwithstanding anything to the contrary, the Customer hereby grants to the Company a non-exclusive, limited, revocable, nontransferable right and license, solely during the Term of the Services, to store, host, and reproduce the Customer Data solely for purposes of making the Services, as well as such Customer Data, available to Customer and for no other purpose. Notwithstanding the foregoing, Company may (i) collect usage information of Customer’s users of the Services (“Users”) solely in an aggregated, anonymized and de-identified form for the sole purpose of enhancing and improving its products and services and (ii) use, collect, and store usage information of Customer’s Users solely to the extent necessary to fulfill its obligations for support under the Agreement including, without limitation, using information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other offerings.
Customer shall have the right to immediately terminate Company’s right to use any or all Customer Data at any time by notifying Company in writing (including email or other electronic communication), in which case Company shall (and shall cause all employees and subcontractors of Company (collectively referred to herein as “Company Personnel”) to immediately cease all use of such Customer Data. No other rights or licenses are granted except as expressly set out herein.
The Customer can electronically retrieve or delete Customer Data through the options provided by the Services. Despite this, the Customer’s Customer Data may still be stored by the Services, backup tapes, drives, and/or other backup media, subject to the terms set forth herein. The Company has no responsibility to attempt to recover any Customer Data deleted by Customer.
In using the Services, the Customer agrees that it will not engage in any unauthorized use of any intellectual property (including without limitation any trade name, trademark, logo) of any other firm or corporation or use any such intellectual property in a way which does or may cause confusion as to the identity of the owner or authorized user of such intellectual property and which does not expressly provide any proper and required copyright and other attribution. The Customer recognizes, acknowledges and agrees that the Company does not pre-screen any content which the Customer may input or provide in relation to the Customer’s use of the Services.
The Company does not knowingly permit copyright infringing activities and infringement of intellectual property rights on its website, or in the use of its Services and the Company will remove all content and third-party submissions if properly notified that such content or third-party submission infringes on another’s intellectual property rights in accordance with the Company’s Digital Millennium Copyright Act Policy (“DMCA Policy”). The Customer agrees that the Company, in its sole discretion, has the right to refuse or remove any such infringing content which is available in relation to the Services, without any liability to the Customer for so doing. The Customer recognizes and agrees with the Company that Customer will indemnify, defend and hold harmless the Company from and against any cost, loss or damage (including reasonable court costs and legal fees and related costs) which the Company may suffer or incur or be required to pay to the extent that it arises out of a third-party claim that the Customer Data, or the use of the same, infringes any intellectual property right of any third party or constitutes misuse or misappropriation of a trade secret of any third party. Customer’s indemnification obligations set forth herein shall not apply to the extent a claim is caused by Company’s use of the Customer Data for a purpose or in a manner not expressly set forth in this Agreement. The Company does not endorse any third-party submission, or any opinion, recommendation, or advice expressed therein, and the Company expressly disclaims any and all liability in connection with third-party submissions.
Software Updates and Service Level
The Software which the Customer uses may automatically download and install updates from time-to-time from the Company. These updates are designed to improve, enhance and further develop the Services and may take any form, including without limitation, bug fixes, enhanced functions, new software modules, and completely new versions. Customer agrees to receive such updates (and permit the Company to deliver the updates to them) as part of their use of the Services.
The Company shall use reasonable efforts consistent with prevailing industry standards to provide the Services in a manner which minimizes errors and interruptions with at least 99.5% availability excluding time for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail to the Customer of any scheduled service disruption it experiences. In addition to the foregoing, the Services will conform in all respects with the services levels (“Service Levels”) set forth in Exhibit B.
Prices, Payments, Cancellations, and Refunds
Services are billed to and payable in advance by the Customer, for the length of term, which is applicable to the Customer’s purchase of Services and is set out in the Order Form. The Customer will pay the Company’s then-applicable service fees (the “Fees”) for the Services in accordance with the terms set out on or in the Order Form which together with these Terms govern the Customer’s use of the Services.
Subject to earlier termination as provided in these Terms, which length of term is applicable to the Customer’s purchase of Services as specified in the Order Form (“Initial Service Term”), shall be automatically renewed for an additional period of one (1) year (each a “Renewal Term”), unless Customer requests termination at least thirty (30) days prior to the end of the then-current term by written notice actually given to the Company. Upon termination, cancellation or expiration of the Customer’s right to Services, if the Customer does not enter into a longer-term agreement, the Company will provide the Customer with the ability to export the Customer Data in any format which the Company’s Services support for thirty (30) days from the time of such termination, cancellation or expiration, and any of the Customer Data that is exported may be used at no additional cost to the Customer, and the Company shall convey, at no additional cost to the Customer, all rights necessary for the Customer and its affiliates to have indefinite use of the Customer Data. After that thirty (30) days, the Company may, but is not obligated to (unless requested by the Customer in writing), delete all the Customer Data from the Company’s records and/or storage, and the Customer will not be able to access the Customer Data.
All Fees are exclusive of any applicable taxes whether federal, state, provincial, national, withholding and/or VAT taxes and applicable customs duties or tariffs (collectively “Taxes”). The Customer is responsible for the payment of all Taxes applicable to the Services. If the Company has the legal obligation to pay or collect any Taxes for which the Customer is responsible under the Terms, the Company will invoice the Customer for the applicable amount which the Customer hereby agrees to pay or reimburse to the Company forthwith unless the Customer provides the Company with a valid tax exemption certificate issued by the applicable and competent taxing authority.
Unless otherwise provided in the Order Form, the Company shall bill Customer through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing or transmission date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all expenses of collection and may result in immediate termination by the Company of the Services.
Unless otherwise described in the Terms, all transactions between the Company and the Customer are final and all payments by the Customer to the Company are final. Except as otherwise agreed to in writing, the Company does not issue refunds for transactions or Services that have been paid for by the Customer.
Either party may terminate their agreement with the other upon written notice, if (a) the other party materially breaches or fails to perform any of its obligations under the Terms herein and has not cured the breach in accordance with the Terms effective thirty (30) days after the breaching party’s receipt of written notice from the non-breaching party, or (b) it becomes insolvent or ceases to carry on business. In the case of any such termination, the Customer will pay the Company immediately and in full for the Services up to and including the last day on which the Services are provided to the Customer. Company shall repay, on a pro rata basis, all fees, expenses, and other amounts paid in advance for any Services that Company has not performed as of the effective date of such expiration or termination, as applicable, with respect to Services required to be performed under the terminated or expired Order Form(s).
In addition to any other remedies it may have, the Company may terminate its agreement with the Customer, upon thirty (30) days written notice if the Company is required to do so by law (for example, if its provision of the Service or Services to the Customer of the Services is, or becomes, unlawful and the Company for any reason no longer can offer a Service or no longer can offer the Services in the Customer’s country of residence). In the case of any such termination, the Company will provide a refund to the Customer for any prepaid fees covering the remainder of the term of their agreement.
When this Agreement comes to an end, whether through cancellation, expiration or otherwise, all of the legal rights, obligations and liabilities that the Customer and the Company have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation. All sections of the Terms which create or impose rights to payment, confidentiality obligations, indemnification obligation, warranty disclaimers, and limitations of liability and any other rights or obligations, which by their nature are intended to survive, shall survive the termination, cancellation or expiration of this Agreement.
Exclusion of Warranties
SUBJECT TO ANY APPLICABLE LAW WHICH LIMITS THE COMPANY’S EXCLUSION OR LIMITATION OF WARRANTY OR LIABILITY FOR LOSSES, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE CUSTOMER ACKNOWLEDGES TO AND AGREES WITH THE COMPANY THAT ITS USE OF THE SERVICE OR SERVICES IS AT ITS OWN AND SOLE RISK AND THAT THE SERVICES ARE FIT FOR THE CUSTOMER’S PURPOSES OR WILL MEET ITS REQUIREMENTS. THE COMPANY AND ITS LICENSORS MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIM ALL WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE, AND AS SUCH, THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE COMPANY TO ANY THIRD PARTY.
Compliance with Laws
Each party represents and warrants that it will comply with all applicable laws, rules and regulations, including export control laws, anti-bribery laws, data privacy laws, and anti-corruption laws.
Indemnification, Limitation of Liability and Release
Notwithstanding anything to the contrary, the Company will defend the Customer, its affiliates and their respective officers, directors, and employees (collectively, the “Customer Indemnified Parties”) against any claim, demand, suit or proceeding made or brought against the Customer Indemnified Parties by a third-party alleging that the Services infringes or misappropriates or misuses such third-party’s intellectual property rights (the “Claim Against Customer”), and will indemnify and hold the Customer Indemnified Parties harmless from any damages, attorney fees and costs awarded against the Customer as a result of such claim, or for amounts paid by the Customer under a settlement approved by the Company and the Customer in writing of, the Claim Against Customer. If the Company receives information about an infringement or misappropriation claim related to the Services, the Company may in its discretion and at no cost to the Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching the Company’s warranties or degrading the Services in any material respect, (ii) obtain a license for the Customer’s continued use of the Services in accordance with the Terms, or if neither (i) or (ii) is available (iii) terminate the Terms and refund the Customer for any prepaid fees covering the remainder of the Term of the Agreement.
The Customer shall notify the Company of any actual or threatened suit, claim, demand, investigation, proceeding, cause of action, or action (collectively, “Action”) for which Customer seeks indemnification under this Agreement and give the Company authority, reasonable information and assistance (at the Company’s expense) for the defense of such Action. The Company shall not, without the Customer’s prior written consent, enter into any settlement agreement which (a) admits guilt, fraud, liability or wrongdoing of the Customer, (b) requires the Customer to commit to action or to refrain from action, or (c) provides for any damages other than money damages for which Customer is indemnified. The Customer reserves the right to participate in the defense at its cost.
EXCEPT IN CONNECTION WITH (I) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY, DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, (III) A PARTY’S BREACH OF APPLICABLE LAWS, RULES OR REGULATIONS OR (IV) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER THIS AGREEMENT, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS OR REVENUES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO COMPANY DURING THE TERM OF THIS AGREEMENT.
The Service or Services may include hyperlinks to other websites or content or resources. The Company may have no control over any websites or resources which are provided by companies or persons other than the Company. The Customer acknowledges and agrees that the Company is not responsible for the availability of any such external sites or resources, and does not endorse (and is not responsible in any way for or respecting) any advertising, products or other materials on or available from such websites or resources. The Customer acknowledges and agrees that the Company is not liable for any loss or damage which may be incurred by the Customer as a result of the availability of those external sites or resources, or as a result of any reliance placed by the Customer on the completeness, accuracy or existence of any advertising, services or other materials on, or available from, such websites or resources.
Changes to Terms and Conditions
The Company has the right, in its sole discretion, to change, modify, terminate, or discontinue these Terms, at any time and from time to time. The amended or new Terms will be available to the Customer on the Company’s website or, if applicable, on, within or through any applicable Service. If the Customer uses the Service or Services on or after the time and day on which the Company changes these Terms, that Service use by the Customer constitutes its acceptance of the amended or new Terms.
In the event that the Company is impeded or prevented from continuing to offer a Service or the Services as planned or intended by any event beyond the Company’s reasonable control, including, but not limited to, fire, flood, natural or manmade epidemic or crisis, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared), any federal, state, provincial, territorial or local government law, order or regulation, public health crisis, the order of any court or jurisdiction, or by any other cause not reasonably within the Company’s control, then subject to any governmental approval which may be required, the Company shall have the right to modify or suspend or terminate its offer of and provision of the affected Service or Services. The Company shall not be liable for any delay or failure to perform any of its obligations under these Terms if such delay or failure is due to causes beyond its control including, without limitation, the incidents and causes referred to in this Force Majeure provision of these Terms.
Fairness Non-discriminatory Practice Policy
The Company is committed to complying with all applicable laws respecting fairness and non-discrimination and, without limiting the generality of the foregoing, has a policy of equal opportunity and freedom from harassment, recognizes it is important to deal fairly and does not and shall not discriminate on the basis of race, color, religion (creed), gender, gender expression, age, national origin (ancestry), disability, marital status, or sexual orientation or, if and where applicable, military status, in any of its activities or operations.
Severability and Invalidity
The invalidity or unenforceability of any provision of these Terms or the Order Form shall not affect the validity or enforceability of any other provision. In the event that any provision is determined to be invalid or otherwise unenforceable or illegal, these Terms or the Order Form shall otherwise remain in effect and shall be construed in accordance with their terms as if the invalid or illegal provision were not contained herein. Headings and captions are used in these Terms and in the Order Form solely for ease of reference and shall not be deemed or considered to affect in any manner the meaning or intent of these Terms, of the Order Form, or any provision thereof.
All issues and questions concerning the construction, validity, interpretation and enforceability of these Terms and the Order Form or the rights and obligations as between the Customer and the Company in connection with the provision and use of the Services shall be governed by and construed and interpreted in accordance with the federal laws of the United States, and in accordance with the internal laws of the state of Texas, including the procedural provisions of those Texas laws, without giving effect to any choice of law or conflict of law rules or provisions that would cause or bring about the application of any other jurisdiction’s laws. The Company and the Customer and all other parties hereby attorn to the jurisdiction of the courts of the state of Texas, sitting in the city of Austin, Texas, in respect of the determination of any matter or dispute arising under or in respect of the Terms and the Order Form and agree that any such determination shall be brought solely and exclusively before such courts in the state of Texas.
Any notice given under or pursuant to the Terms must be in writing, and will be deemed to have been duly given when actually received by the party to whom the notice is being given, if personally delivered; when receipt by the party to whom the notice is being given is electronically confirmed as having been received, if transmitted by the party giving notice to the facsimile or e-mail address last known to the party giving the notice; and if sent by the party giving the notice, for next day delivery by recognized overnight delivery service, on that next day; and upon actual receipt by the party to whom the notice is being given, if sent by certified or registered mail, return receipt requested.
Services Levels & Support Services
The Company shall use best efforts to make Services accessible and operational twenty-four (24) hours a day, seven (7) days a week throughout the term of the Services. Customer understands from time to time that Services may be unavailable or inaccessible; however, Company shall meet or exceed a monthly availability of at least 99.5% (“Monthly Availability”).
The Company shall use best efforts to minimize any disruption, inaccessibility and/or inoperability of the Services during periods of scheduled and unscheduled downtime.
The Company shall provide notice to Customer within one (1) hour of an occurrence of unscheduled downtime that is anticipated to continue for more than one (1) hour.
The Company shall use best efforts to schedule scheduled downtime for routine maintenance, systems repair, and systems upgrades each week from 8:00AM Saturday to 8:00AM Sunday Central Time. Scheduled downtime shall not exceed eight (8) hours per month. The Company shall notify Customer of planned scheduled downtime, but in no event less than seventy-two (72) hours in advance. Company reserves the right to change scheduled downtime period with seventy-two (72) hours advance prior notice to Customer; provided, however, Company shall make every effort to schedule maintenance, systems repairs and systems upgrades during low utilization periods (typically nights, weekends and holiday periods) of the Services.
Service credits do not apply, and the Company is not responsible for, failure to meet level requirements if such failure results from:
(i) failure or deficient performance of power, equipment, services, or systems not provided by the Company or its subcontractors (inclusive of the Company’s hosting facility);
(ii) service interruptions, deficiencies, degradations or delays due to inability to access the internet;
(iii) misconduct and/or delays caused by the Customer and/or caused by Force Majeure.
Service Levels Credits and Remedies
In the event availability is less than 99.5%, the Customer shall be entitled to a service level credit equal to a pro rata reduction of the annual fee for Services during that time (“Service Level Credit”). All Service Level Credits shall be reflected in the next years’ billing for Service fees.
The Company shall provide maintenance and support services in support of the Services (collectively, "Support Services"). Services shall include Support Services and the Company shall not assess any additional fees, costs or charges for such Support Services. All Support Services are provided remotely by the Company.
The Company shall:
(a) correct all service errors, including providing defect repair, programming corrections, and remedial programing;
(b) provide unlimited live chat support and telephone support on an as needed basis between 9AM Monday and 5PM Friday Central Time.
(c) provide online access to technical support bulletins and other user support information and forums, to the full extent Company makes such resources available; and
(d) respond to and resolve support requests.
The Company shall maintain an incident tracking system of problems related to use of Services, and to measure performance of maintenance.