Customer and IOFirm agree that the terms and conditions on the Service Order and these terms and conditions constitute the complete Agreement for the provision of selected Services as designated on the Service Order.
Any entity that controls is controlled by or is under common control with IOFirm.
These terms and conditions and the Service Order Agreement executed by Customer.
Data storage device attached to a local area network on Customer premise.
The operating company that owns and/or operates the Cloud system.
- IOFirm Equipment
Any and all facilities, equipment or devices (including the Appliance) provided by IOFirm or its authorized contractors at the Service Location(s) used to deliver the Services.
- Confidential Information
All information regarding either party’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance), invoices and the parties’ communications regarding such items.
- Custom Services
Services, maintenance, support and other activities requested by Customer and agreed in writing by IOFirm that are outside the scope of this Agreement.
The customer as named on a IOFirm Service Order.
- Customer-Provided Equipment
Any and all facilities, wiring, equipment and devices supplied by Customer for use in connection with the Services.
- Licensed Software
Computer software or code provided by IOFirm or required to use the Services, including without limitation, associated documentation and all updates thereto.
A reference to IOFirm or the Customer; and in the plural, a reference to both companies.
The Services provided by IOFirm to Customer as purchased in one or more Service Orders. All Services are for commercial use only.
- Service Start Date
The date on which IOFirm first makes Service available for use by Customer. A single Service Order containing multiple Service Locations and/or Services may have multiple Service Start Dates.
- Service Order
A request for IOFirm to provide the Services to Service Location(s) submitted by Customer (a) on a then-current IOFirm form designated for that purpose or (b) if available, through a IOFirm electronic order processing system designated for that purpose.
- Service Order Agreement
The agreement under which all Service Orders are submitted to IOFirm.
- Service Location(s)
The Customer location(s) where IOFirm provides the Services.
- Service Term
The duration of time that IOFirm will provide Services to Customer commencing from the Service Start Date as specified in a Service Order.
- Termination Charges
If Service is terminated prior to the end of the then-current Service Term, IOFirm may charge as follows:
- If IOFirm terminates Services for cause, charges shall be one hundred percent (100%) of the remaining monthly fees that would have been payable under the Service Order to the end of the Service Term.
- If Customer terminates Services without cause, charges shall be seventy-five percent (75%) of the remaining monthly fees that would have been payable under the Service Order to the end of the Service Term.
In addition, any and all fees for Custom Services are immediately due and termination activities must be accomplished per Section 5.3 (Effect of Expiration or Termination of the Agreement or Service Order).
2 SERVICES DELIVERY
Customer shall submit to IOFirm a properly completed Service Orders to request Services at one or more Service Locations. A Service Order becomes binding on the parties when it is specifically accepted by IOFirm either electronically or in writing. When effective a Service Order becomes part of and subject to the Agreement.
No representation or guarantee is made regarding the speed of the Cloud Service. Actual speeds depend on the Customer environment. Many factors affect speed including t h e bandwidth purchased, number of workstations using a single connection or ISP congestion.
If agreed under Custom Services, Customer, upon reasonable notice from IOFirm shall secure and maintain all necessary rights of access to Service Location(s) for IOFirm or its authorized personnel to install and provide the Custom Services at no cost. IOFirm’s employees and authorized contractors require free ingress and egress into and out of the Service Location(s) in connection with the provision of Custom Services and will abide by Customer’s reasonable security rules and requirements.
- Service Start Date
IOFirm shall notify Customer when the Services are available for use. This date may be prior to Appliance delivery. Any failure or refusal on the part of Customer start the Services on the Service Start Date shall not relieve Customer of its obligation to pay applicable Service charges from this date.
- Customer Responsibilities
- Provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the IOFirm Equipment used to provide the Services within the Service Location(s).
- Use reasonable commercial efforts to isolate problems and reproduce any identified errors or malfunctions prior to contacting IOFirm support.
- Not remove, attempt to repair, or otherwise tamper with any IOFirm Equipment or permit others to do so, and shall not use the IOFirm Equipment for any purpose other than that authorized by the
- IOFirm Equipment
IOFirm Equipment is and shall remain the property of IOFirm regardless of where installed and shall not be considered a fixture or addition to the land or any Service Location. IOFirm may remove or change IOFirm Equipment in its sole discretion at any time. IOFirm shall maintain IOFirm Equipment in good operating condition during the term of this Agreement, provided however, that such maintenance shall be at IOFirm’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the IOFirm Equipment. Customer is responsible for damage to, or loss of, IOFirm Equipment caused by its acts or omissions, accident, vandalism, negligence, abuse or misuse including failure to operate incompliance with IOFirm’s specifications, and its noncompliance with this Section, or by fire, theft or other casualty at a Service Location, unless caused by the negligence or willful misconduct of IOFirm. Customer agrees not to take any action that would directly or indirectly impair IOFirm’s title to the IOFirm Equipment, or expose IOFirm to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following IOFirm’s discontinuance of the Services to the Service Location(s), IOFirm retains the right to timely removal of its Equipment including, but not limited to, that portion of the IOFirm Equipment located within the Service Location(s).
- Customer-Provided Equipment
IOFirm has no obligation to install, operate or maintain Customer-Provided Equipment. Customer alone is responsible for providing maintenance, repair, operation and replacement of all Customer-Provided Equipment at the Service Location(s) and in ensuring full compatibility of its Equipment with the Services. If IOFirm agrees in advance to troubleshoot, maintain, or repair Customer-Provided Equipment, Customer is responsible for payment of all reasonable charges for such work when performed by IOFirm’s employees or authorized contractors.
- Administrative Web Site
IOFirm may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). IOFirm may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer is exclusively responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify IOFirm if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer is solely responsible for all use of the Administrative Web Site. IOFirm shall be entitled to rely on all Customer uses of and submissions to the Administrative Web Site as authorized by Customer. IOFirm shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Web Site or any information on the Administrative Web Site. IOFirm may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site and are posted on the site.
3 CHARGES, BILLING AND PAYMENT
Customer shall pay IOFirm for any Custom Services per the terms in the Custom Services Agreement. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable Service Order(s) or invoiced by IOFirm. These charges may include, but are not limited to installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of IOFirm Equipment, per-usage charges, storage charges, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). All charges and payments are made in US Dollars without setoff or deduction.
- Third-Party Charges
Customer may incur charges from third party service providers that are separate and apart from the amounts charged by IOFirm. These may include, without limitation, charges resulting from accessing on-line services, purchasing or subscribing to other offerings via the internet or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
- Invoice Payment
Except as otherwise indicated herein or on the Service Order(s), IOFirm will invoice Customer in advance on a monthly basis for all monthly recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall make payment to IOFirm for all invoiced amounts within thirty (30) days of the invoice date. Any amounts not paid to IOFirm within such period will be considered past due. If a Service Start Date is not the first day of a billing period, Customer’s next monthly invoice shall include a pro-rated charge for the Services, from the Service Start Date to the first day of the new billing period.
- Partial Payment
Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by IOFirm. No acceptance of partial payment(s) by IOFirm will constitute a waiver of any rights to collect the full balance owed under the Agreement.
- Payment by Credit Card
By providing IOFirm with a credit card number, Customer authorizes IOFirm to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior written notice to stop charging the credit card. Customer agrees to provide IOFirm with updated credit card or alternate payment information on a timely basis prior to the expiration or termination of the credit card on file or in the event that Customer’s credit card limit is or will be insufficient to cover payment. If IOFirm is unable to charge Customer’s credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by IOFirm. Lack of payment constitutes breach and breach per section 5.2. IOFirm may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
- Credit Approval and Deposits
Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide IOFirm with all credit information reasonably requested by IOFirm. Customer authorizes IOFirm to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to IOFirm will be true and correct. IOFirm, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, IOFirm may require Customer to make a deposit (in an amount not to exceed an estimated two-month’s charge for the Services) as a condition to IOFirm’s provision of the Services, or as a condition to IOFirm’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by IOFirm as security for payment of Customer’s charges. If the provision of Service to Customer is terminated, or if IOFirm determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer’s account or will be refunded to Customer, as determined solely by IOFirm.
- Taxes and Fees
Customer is responsible for payment of any and all applicable local, state, and federal taxes and fees however designated. In addition, Customer is responsible to pay all Service fees, obligations and taxes that become applicable retroactively.
- Other Government-Related Costs and Fees
IOFirm reserves the right to invoice Customer who agrees to pay for any fees or payment obligations in
connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees (if any), regardless of whether IOFirm or its Affiliates pay the taxes directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. These obligations may include those imposed on IOFirm or its affiliates by an order, rule, or regulation of a regulatory body or a court of competent jurisdiction, as well as those that IOFirm or its affiliates are required to collect from the Customer or to pay to others in support of statutory or regulatory programs. This regulatory recovery fee is not a tax and it is not government-mandated. Taxes and other government-related fees and surcharges may be changed with or without notice.
- Amount Due Disputes
If Customer disputes any portion of an invoice or credit card charge, Customer must pay the undisputed portion and submit a written claim, including all documentation substantiating Customer’s claim, to IOFirm for the disputed amount of the invoice by the due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the parties fail to mutually resolve the dispute within sixty (60) calendar days after the dispute was submitted to IOFirm, all disputed amounts shall become immediately due and payable.
Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, Customer agrees to also pay all reasonable collection agency or attorney costs associated with past due collection and recovery of delinquent IOFirm-owned equipment. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to IOFirm under the Agreement or at law or in equity.
- Rejected Payments
Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that is rejected by a bank or other financial institution.
- Fraudulent Use of Services
Customer is responsible for all charges attributable to Customer even if incurred as the result of fraudulent or unauthorized use of the Services. IOFirm may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. IOFirm reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer
- Agreement Term
The Agreement starts with the earliest Service Start Date and terminates with latest Service Term. This Agreement terminates upon the expiration or other termination of the last active Service Order entered into under this Agreement. Unless otherwise stated in these terms and conditions, if a Service Order does not specify a term of service, the Service Term shall be one (1) year from the Service Start Date.
- Service Order Renewal
Upon the expiration of the initial Service Term, this Agreement and each applicable Service Order shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless otherwise stated in these terms and conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term, or in the case of Louisiana
Customers, notice of non-renewal is delivered to IOFirm within thirty (30) days following the expiration of the Service Term or the then current Renewal Term.
- Price Adjustments
Except as otherwise identified in the Agreement, IOFirm may adjust the charges for the Services subject to thirty (30) calendar days prior notice to Customer at the start of each renewal term. If a Service price increases, Customer has thirty (30) calendar days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this time frame or for price decreases, Customer will be deemed to have accepted the modified Service pricing.
5 TERMINATION OF AGREEMENT AND/OR SERVICE ORDER
- Termination for Convenience
Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Order or this Agreement in whole or part, at any time during the Service Term upon sixty (60) Days prior notice to IOFirm, and subject to payment to IOFirm of all outstanding amounts due for the Services, any and all applicable Termination and Custom Services Charges, and the timely and satisfactory return of any and all IOFirm Equipment.
- Termination for Cause
If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three
(3) or more occasions during any twelve (12) month period, IOFirm may, at its option, terminate this Agreement, terminate the affected Service Orders, suspend Service under the affected Service Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Service Orders as a condition of continuing to provide the Services. However, IOFirm will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the parties have reviewed the dispute and determined in good faith that the charge is correct.
If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after notice of default, the non-defaulting party may terminate for cause any Service Order materially affected by the breach.
A Service Order may be terminated by either party immediately upon notice if the other party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankruptcy, or been involved in an assignment for the benefit of its creditors. Termination by either party of a Service Order does not waive any other rights or remedies that it may have under this Agreement.
- Effect of Expiration or Termination
Upon the expiration or termination of a Service Order for any reason: (i) IOFirm may disconnect the applicable Service(s); (ii) IOFirm may delete all applicable data, files, electronic messages, voicemail or other information stored on IOFirm’s servers or systems; (iii) IOFirm may issue termination charges per section 1.17 (iv) Customer shall return IOFirm equipment as directed by IOFirm at IOFirm’s expense. If necessary, Customer shall permit IOFirm access to retrieve from the applicable Service Locations any and all IOFirm Equipment. However, if Customer fails to return Equipment or permit access or if the retrieved IOFirm Equipment has been damaged and/or destroyed other than by IOFirm or its agents, normal wear and tear excepted, IOFirm may invoice Customer for the full replacement cost of the relevant IOFirm Equipment at then-current rates, or in the event of minor damage to the retrieved IOFirm Equipment, the cost of repair, which amounts shall be immediately due and payable; and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return the Licensed Software to IOFirm.
- Regulatory and Legal Changes
The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. IOFirm may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change affects IOFirm’s ability to provide the Services herein.
6 LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY IOFIRM OR FOR TERMINATION CHARGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF IOFIRM AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE IOFIRM EQUIPMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, IOFIRM EQUIPMENT, OR LICENSED SOFTW ARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IOFIRM DOES NOT WARRANT THAT THE SERVICES, IOFIRM EQUIPMENT OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, IOFIRM EQUIPMENT OR LICENSED SOFTWARE WILL MEET CUSTOMER REQUIREMENTS, OR THAT THE SERVICES, IOFIRM EQUIPMENT OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
IOFIRM MAKES NO WARRANTIES N OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, IOFIRM EQUIPMENT OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
IN NO EVENT SHALL IOFIRM, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
- Disruption of Service
The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from High Risk Activities. IOFirm shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer-Provided Equipment; inability to obtain access to the Service Locations; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services.
Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state or province in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states or provinces, the liability of IOFirm and its affiliates and agents is limited to the maximum extent permitted by law.
Subject to Article 6, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts, arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) relating to: (i) any Claim of any third party resulting from the negligence or willful act or omission of Indemnifying Party arising out of or related to the Agreement, the obligations hereunder, and uses of Services, IOFirm Equipment, and Licensed Software; and (ii) any Claim of any third party alleging infringement of a U.S. patent or U.S. copyright arising out of or related to this Agreement, the obligations hereunder, and the use of Services, IOFirm Equipment, and Licensed Software.
The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of Article 7 hereof. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
8 SOFTWARE & SERVICES
If and to the extent Customer requires the use of Licensed Software in order to use the Services supplied under any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use the Licensed Software object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by IOFirm, including, without limitation, end-user license agreements for the Licensed Software. IOFirm and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of IOFirm; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
Customer acknowledges that the use of the Services may periodically require updates and/or changes to certain Licensed Software resident in the IOFirm Equipment. IOFirm may perform such updates and changes remotely or on-site, at IOFirm’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by IOFirm.
- Ownership of Numbers and Addresses
Customer acknowledges that use of the Services does not give it any ownership or other rights in any number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
- Intellectual Property Rights in the Service
Title and intellectual property rights to the Services and documentation are owned by IOFirm, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services or any documentation, in whole or in part, without express prior written consent from IOFirm or other owner of such material, is prohibited.
IOFirm shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that IOFirm and its agents shall, however, have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. IOFirm reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in IOFirm ’s sole discretion, is unacceptable, undesirable or in violation of this Agreement.
9 CONFIDENTIAL INFORMATION & PRIVACY
- Disclosure and Use
All Confidential Information shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information that:
(i) is already known to the receiving party without a pre- existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or
(v) is required to be disclosed by law or regulation.
Notwithstanding any other Article of this Agreement, the non-breaching party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
- CUSTOMER PRIVACY POLICIES
11 PRIVACY NOTE REGARDING INFORMATION PROVIDED TO THIRD PARTIES
IOFirm is not responsible for any information provided by Customer to third parties and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
12 PROHIBITED USES
Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
- Use Policies
Customer agrees that all uses of the IOFirm Equipment and/or the Services installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. IOFirm reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if IOFirm (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with IOFirm’s ability to provide the Services to Customer or others, or (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. IOFirm’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
Any breach of Article 12 shall be deemed a material breach of this Agreement. In the event of such breach, IOFirm shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of IOFirm, and then to notify Customer of the action that IOFirm has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
13 SERVICE LEVEL AGREEMENT
13.1.1 Service Level Agreement
Customer data in the IOFirm solution is more accessible than many competitors due to its two-tier structure: the combination of an Appliance at the Customer site and one or more cloud data centers.
126.96.36.199 IOFirm Cloud Availability
IOFirm Cloud will be available 99.9% of the time (43.8 minutes of downtime) in any given month, excepting outages for scheduled maintenance. Unavailability or “Service Interruption” shall mean a break in transmission that renders the Service unusable for transmission and reception. Actual availability to Customer data is higher since the local Appliance front-ends the cloud providing significant redundancy. Credit for missing this SLA is identified in the table in section 13.1.2.
188.8.131.52 Technical Support Response
Issues properly raised to IOFirm Cloud technical support will be responded to within 4 business hours or less.
13.1.2 Credit Allowances
IOFirm will allow a pro-rata credit against future payment of the net monthly recurring charge (exclusive of nonrecurring charges, other one-time charges, per call charges, measured charges, regulatory fees and surcharges, taxes, and other governmental and quasi- governmental fees) for a Service Interruption, except as specified below or as may otherwise be legally required (“Credit”). For the purposes of calculating a Credit allowance, the Service Interruption period begins when IOFirm confirms responsibility for a Customer reported interruption in the cloud portion of the Service. This will be noted in the Customer’s trouble ticket.
The Service Interruption ends when the affected portion of the Service has been restored and IOFirm has resolved the associated trouble ticket. Credits are calculated as follows:
|Total Cloud Service Interruption Duration within a Calendar Month||Amount of Monthly Fee Credit|
|Less than 40 minutes||None|
|Each 3 hour block in excess of the initial 40 minutes||1%|
The total credit shall not exceed the total monthly recurring charge for the affected Service. Credit allowances will not be made for less than $1.00USD, unless required under applicable law. To qualify, Customer must be in good credit standing with IOFirm, current on all invoices and payments and request the credit within 30 days of the Service interruption.
13.1.3 Exceptions to Credit Allowances
A Service Interruption shall not qualify for the Credits set forth herein if such Service Interruption is related to, associated with, or caused by: scheduled maintenance events; Customer actions or inactions; Customer- provided power or equipment; any third party not contracted through IOFirm, including, without limitation, Customer’s users, third-party network providers; any power, equipment or services provided by third parties; or an event of force majeure as defined in this Agreement, unless otherwise provided under applicable law. The remedies set forth in section 13 shall be Customer’s sole and exclusive remedy for any Service Interruption, outage, unavailability, delay or other degradation in the Services or any IOFirm failure to meet the objectives of the Services.
IOFirm shall maintain during the Initial and Renewal Terms commercial general liability insurance that covers its liability and obligations hereunder including property damage and personal injury.
The liability limits under these policies shall be, at a minimum, one million ($1,000,000) dollars per occurrence, with a combined single limit for bodily injury and property damage liability.
15 MISCELLANEOUS TERMS
15.1.1 Force Majeure
Neither party shall be liable to the other party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of- way, unavailability of services or materials upon which the Services rely, or other causes beyond the party’s reasonable control, except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive conditions are not force majeure events.
15.1.2 Assignment and Transfer
Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, IOFirm may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, IOFirm may partially assign its rights and obligations hereunder to any party that acquires from IOFirm all or substantially all of the assets of IOFirm through which the Services is deployed to Customer. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
15.1.3 Export Law and Regulation
Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by IOFirm, Customer also agrees to sign written assurances and other export-related documents as may be required for IOFirm to comply with U.S. export regulations.
Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt requested. Notices to Customer shall be sent to the Customer billing address; notices to IOFirm shall be sent to IOFirm, 15153 Technology Drive, Suite B, Eden Prairie, MN 55344, Attn: Director of Business Customer Operations. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
15.1.5 Entire Understanding
This Agreement constitutes the entire understanding of the parties related to the subject matter hereof and. supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the parties’ rights or obligations relating to the Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any purchase order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. Only specifically authorized representatives of IOFirm may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of IOFirm who has not been specifically authorized to make such modifications shall be binding upon IOFirm. No subsequent agreement among the parties concerning the Services shall be effective or binding unless it is executed in writing by authorized representatives of both parties.
In the event that any portion of this Agreement is held to be invalid or unenforceable, the parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the parties and the remainder of this Agreement shall remain in full force and effect.
The rights and obligations of either party that by their nature would continue beyond the expiration or termination of this Agreement or any Service Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Service Order.
15.1.8 Choice of Law
The domestic law of the state of Minnesota shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law.
15.1.9 No Third Party Beneficiaries
This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
15.1.10 No Waiver
No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).
15.1.11 Independent Contractors
The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
15.1.12 Article Headings
The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
15.1.13 Compliance with Laws
Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
The parties shall attempt in good faith to promptly resolve any controversy or claim arising out of or relating to the Service(s) delivery by negotiations between representatives of the parties. Neither party will file or otherwise initiate litigation against the other without providing the other party at least thirty (30) days prior written notice. The prevailing party in any litigation against the other party under this Agreement will be entitled to recover attorney fees.