Terms of Service
Last Updated: May 20, 2019
This Agreement applies only to the Service specified here.
Welcome, and thank you for your interest in hubPitch, LLC and our website at www.hubpitch.com, services at app. Bundle.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND HUBPITCH’s PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY HUBPITCH AND BY YOU TO BE BOUND BY THESE TERMS.
MASTER SOFTWARE AS A SERVICE AGREEMENT
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
“Affiliate” means any person or entity, controlling, controlled by or under common control with Client or Service Provider, as applicable.
"Authorized User" means each of the individuals authorized to use the Services pursuant to the terms and conditions of this Agreement.
"Customer Data" means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
"Customer Systems" means the Customer's information technology infrastructure, including, all computers, software, hardware, databases, electronic systems (including database management and telecommunications systems) and networks, whether operated directly by Customer or through the use of third-party services used under this Agreement.
"Documentation" means any manuals, instructions or other documents or materials that the Service Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Service Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Service Provider Systems as intended by this Agreement. Harmful Code does not include any Service Provider disabling device.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance carriers.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content.
"Representatives" means, with respect to a party, that party's (and its Affiliates') employees, officers, directors, and legal and financial advisors.
“Services” means, the services described in the attached Schedule A and in the applicable Documentation, including all Service Provider Materials (collectively, the "Services"). Services includes management, operation and maintenance of the Services.
"Service Provider Materials" means the Service Software, Documentation and Service Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Service Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Service Provider Systems.
"Service Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Service Provider or any Subcontractor.
"Service Provider Systems" means the information technology used by or on behalf of Service Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Service Provider or through the use of third-party services.
"Service Software" means the Service Provider software applications and platform and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Service Provider provides remote access to and use of as part of the Services.
"Specifications" means the specifications for the Services set forth in the Documentation.
"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Service Provider.
2. Services. In accordance with the terms and conditions of this Agreement, Service Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services set forth in Schedule A.
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Service Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Service Provider Materials, including the: (i) Service Provider Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of Service maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Service Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Service Provider; (ii) results obtained from any use of the Services or Service Provider Materials; and (iii) conclusions, decisions or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of Service Provider, shall be provided solely from within, and on computers, systems, networks and other infrastructure located in the United States.
2.3 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.4 Changes. Service Provider reserves the right, in its sole discretion, to make any changes to the Services and Service Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Services, (ii) the competitive strength of or market for Service Provider's Services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Laws. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in writing. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services pursuant to Section 3.3.
2.5 Subcontractors. Service Provider may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
2.6 Suspension or Termination of Services. Service Provider may, directly or indirectly, and by use of a Service Provider disabling device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Service Provider Materials, without incurring any resulting obligation or liability, if: (a) Service Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Service Provider to do so; or (b) Service Provider believes, in its reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Service Provider's other rights or remedies, whether at law, in equity or under this Agreement.
3. Authorization. Subject to and conditioned on Customer's timely payment of all applicable fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Service Provider hereby authorizes Customer to access and use, solely during the Term, the Services and such Service Provider Materials as Service Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications and the conditions and limitations set forth in this Agreement.
3.1 Reservation of Rights. Except as set forth herein, nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Service Provider Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Service Provider Materials and the Third-Party Materials are and will remain with Service Provider and the respective rights holders in the Third-Party Materials.
3.2 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Service Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Service Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Service Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Service Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Service Provider Materials or access or use the Services or Service Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Service Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Service Provider Systems or Service Provider's provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Service Provider Materials, including any copy thereof;
(h) access or use the Services or Service Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
(i) access or use the Services or Service Provider Materials for purposes of competitive analysis of the Services or Service Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Service Provider's detriment or commercial disadvantage;
(j) access or use the Services or Service Provider Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Service Provider Materials beyond the scope of the authorization granted under Section 3.1.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with all applicable Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Service Provider Personnel with such access to Customer's premises and Customer Systems as is necessary for Service Provider to perform the Services in accordance with the Availability Requirements and Specifications; and (c) provide all cooperation and assistance as Service Provider may reasonably request to enable Service Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Customer Failure or Delay. Service Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Service Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Service Provider of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Service Provider or any Subcontractor. In the event of a violation of this Section 4.4, Service Provider will be entitled to liquidated damages equal to the compensation paid by Service Provider to the applicable employee or contractor during the prior twelve (12) months.
5. Service Levels. Service Provider shall provide the Services in accordance with the service levels set forth in Schedule B, which is attached and incorporated herein by this reference and made part of this Agreement.
6.1 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Service Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives.
SERVICE PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
6.2 Use of Aggregate Data. Customer grants to Service Provider an unrestricted right and license to use aggregated Customer Data, such as by publishing a report on trends in the usage of the Service and using other data analytics tools.
6.3 Security. Service Provider will secure Service Provider Systems and protect Customer Data in accordance with industry standards.
6.4 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Service Provider Systems or any Service Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
7. Fees; Payment Terms. Standard Payment terms for subscription are Net-15 payments, unless otherwise noted. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service
7.1 Fees. Customer shall pay Service Provider the subscription fees set forth in Schedule 7 ("Fees") in accordance with this Section 7. All Fees are non-refundable, except as otherwise explicitly stated in this Agreement.
7.2 Fee Increases. Service Provider may increase Fees no more than once annually after the first contract year of the Initial Term, and any Renewal Term, by providing written notice to Customer at least 60 calendar days prior to the commencement of such Renewal Term, and Schedule A will be deemed amended accordingly.
7.3 Reimbursable Expenses. Customer shall reimburse Service Provider for out-of-pocket expenses incurred by Service Provider in connection with performing the Services ("Reimbursable Expenses").
7.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Service Provider's income.
7.5 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date set forth in Schedule A within thirty (15) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by electronic transfer. Customer shall make payments to the account specified in Schedule A or such other account as Service Provider may specify in writing from time to time.
7.6 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Service Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Service Provider for all reasonable costs incurred by Service Provider in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) If such failure continues for fifteen (15) days following written notice thereof, Service Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.7 No Deductions or Setoffs. All amounts payable to Service Provider under this Agreement shall be paid by Customer to Service Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
8.1 Services and Service Provider Materials. All right, title and interest in and to the Services and Service Provider Materials, including all Intellectual Property Rights therein, and all modifications, extensions, customizations, scripts or other derivative works of and to the Services provided or developed by Service Provider are and will remain with Service Provider and the respective rights holders in any Third-Party Materials. The rights granted to Customer under this Agreement do not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. Customer has no right, license or authorization with respect to any of the Services or Service Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1. All other rights in and to the Services and Service Provider Materials (including Third-Party Materials) are expressly reserved by Service Provider and the respective third-party licensors. Any Service Provider service marks, logos and product and service names are marks of Service Provider (the "Service Provider Marks"). Customer agrees not to display or use the Service Provider Marks in any manner without Service Provider’s express prior written permission.
8.2 Customer Data. As between Customer and Service Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Sections 6.3, 6.4 and 8.3.
8.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Service Provider, its Subcontractors and the Service Provider Personnel as are necessary or useful to perform the Services and in accordance with Sections 6.3 and 6.4 herein; and (b) to Service Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
9.1 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Service Provider Materials are the Confidential Information of Service Provider and the financial] terms and existence of this Agreement are the Confidential Information of each of the parties.
9.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for a period of five (5) years:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Term and Termination
10.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect for the length of the subscription program selected by Customer as set forth in Schedule A (the "Initial Term").
10.2 Renewal. This Agreement will automatically renew for additional one (1) year terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
10.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Service Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after Service Provider's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 7.3 (Prohibited Data) or Section 10 (Confidentiality).
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) All rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Service Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) promptly return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Service Provider directly or indirectly controls.
(c) Customer shall immediately cease all use of any Services or Service Provider Materials and (i) promptly return to Service Provider, or at Service Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Service Provider Materials or Service Provider's Confidential Information; and (ii) permanently erase all Service Provider Materials and Service Provider's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Service Provider in a signed and notarized written instrument that it has complied with the requirements of this Section 10.4(c)];
(d) Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; (ii) Service Provider may retain Customer Data in its then current state and solely to the extent and for so long as required by applicable Law; (iii) Service Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 10.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Service Provider may disable all Customer and Authorized User access to the Services and Service Provider Materials;
(f) if Customer terminates this Agreement pursuant to Section 10.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination.
(g) if Service Provider terminates this Agreement pursuant to Section 10.3(a) or Section 10.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Service Provider's invoice therefor.
10.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.4, Section 12, Section 13, Section 14 and Section 16.
11. Representations and Warranties.
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2 Additional Service Provider Representations, Warranties and Covenants. Service Provider represents, warrants and covenants to Customer that Service Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Service Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Service Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
11.4 DISCLAMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, SECTION 11.2 AND SECTION 11.3, ALL SERVICES AND SERVICE PROVIDER MATERIALS ARE PROVIDED "AS IS" AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SERVICE PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Service Provider Indemnification. Service Provider shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, successors and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or Service Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in] writing by Service Provider;
(b) modification of the Services or Service Provider Materials other than: (i) by or on behalf of Service Provider; or (ii) with Service Provider's written approval in accordance with Service Provider's written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Service Provider; or
(d) act, omission or other matter described in Section 12.2(a), Section 12.2(b), Section 12.2(c) or Section 12.2(d), whether or not the same results in any Action against or Losses by any Service Provider Indemnitee.
12.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Service Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Service Provider Indemnitee") from and against any and all Losses incurred by such Service Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Service Provider Indemnitee) to the extent that such Losses arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Service Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Service Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Service Provider;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.4 Mitigation. If any of the Services or Service Provider Materials are, or in Service Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Service Provider Materials is enjoined or threatened to be enjoined, Service Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Service Provider Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Service Provider Materials, in whole or in part, to seek to make the Services and Service Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Service Provider Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and Service Provider Materials or any specified part or feature thereof.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND SERVICE PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SERVICE PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL SERVICE PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 LIABILITY CAP. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF SERVICE PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAYABLE UNDER THIS AGREEMENT FOR THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.3 Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to Service Provider's obligations under Section 9 (Confidentiality) or liability for Service Provider's gross negligence or willful misconduct.
14. Force Majeure.
14.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 60 days or more.
14.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.1 Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Service Provider may, without Customer's consent, include Customer's name and logo in its lists of Service Provider's current or former customers of Service Provider in promotional and marketing materials.
15.4 Notices/Language. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party to the address set forth above (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4). Notices will be deemed given on the date received. All communications and notices made or given under this Agreement must be in the English language. If a translation of the English language version of this Agreement is provided to Customer, the English language version of the Agreement will control.
15.5 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Service Provider's prior written consent, which consent Service Provider shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Service Provider's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.10 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of the State of Washington in each case located in _____________. and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.13 Dispute Resolution. Any dispute arising under the express terms of this Agreement or the grounds for termination of any rights granted under this Agreement shall be resolved as follows: First, within forty-five (45) days from one party’s written request to the other, senior executives of both parties shall meet to attempt to resolve such dispute. If the senior executives cannot resolve the dispute within thirty (30) days, either party may then make a written demand for arbitration by tendering to the other party notice of the dispute and its intent to invoke the terms of Section 15.14.
15.14 Arbitration. [aDY1] The parties hereby agree to submit to mandatory binding arbitration any dispute, claim or controversy arising out of, relating to or connected with this Agreement or the Services provided to the Customer, including, but not limited to, claims of breach of contract (express or implied), breach of the covenant of good faith and fair dealing, fraud, tort claims of any kind, claims based upon any federal, state or local ordinance, statute or regulation, and claims for compensation of any kind (the “Arbitrable Claims”). Arbitration shall be final and binding upon the parties. Arbitration shall be the exclusive method by which to resolve all Arbitrable Claims, except that each party may, at its option, seek injunctive relief in a court of competent jurisdiction related to the improper use, disclosure or misappropriation of a party’s private, proprietary, confidential or trade secret information. Further, to the fullest extent permitted by law, the parties agree that no class or representative actions can be asserted in arbitration or otherwise. All claims, whether in arbitration or otherwise, must be brought solely in the Service Provider’s or the Customer’s individual capacity, and not as a plaintiff or class member in any purported class or collective proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS. The parties agree that a neutral arbitrator from the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) will administer any such arbitration(s) in ____________. The arbitrator shall issue a written decision with the essential findings and conclusions on which the decision is based. If, for any reason, any part or portion of this arbitration clause is held to be invalid or unenforceable, all other valid parts and portions shall be severable in nature, and remain fully enforceable.
15.15 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, Section 4.3 or Section 6.4, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
15.16 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
15.17 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
SERVICE LEVEL AGREEMENT
During the term of this Agreement Service Provider will make the Services available twenty-four (24) hours a day, seven (7) days a week, at least ____% of the time as measured on a monthly basis, excluding Excused Downtime. Terms used herein but not defined herein shall have the meaning set forth in the Agreement. Compliance with this Service Level Agreement is not an alternative to performance.
“Available” or “Availability” means the ability to access and use the Services or any portion thereof or where the Services or any portion thereof operate without defect.
“Excused Downtime” means where the Services are not Available due to Scheduled Maintenance.
“Noncompliant” or “Noncompliance” as such term is used herein, shall mean the occurrence of any one or more of the following with respect to a reported problem: Service Provider’s Response Time with respect to a reported problem exceeds the Response Times set forth in this Schedule;
“Resolve” means that the Services are made Available and the Services are returned to a usable and available state.
“Response Time” means the time from which Customer or any Authorized User places the call or email until Service Provider responds to the same.
“Scheduled Maintenance” means any scheduled outages or down-time for maintenance, upgrades, enhancements or changes to the Services.
“Service Interruptions” means that the Services are not Available.
(a) Telephone Support Requirements. Service Provider shall make available to Customer and its Authorized Users qualified personnel knowledgeable about the Services to: (i) provide advice and counsel on the configuration and use of the Services (ii) for Service Interruption and error reporting and (iii) troubleshooting purposes, 24 hours a day, 5 days a week (excluding holidays recognized by Customer) at telephone numbers designated by Service Provider from time to time.
(b) Other Support. Service Provider shall provide support to Customer and its Authorized Users. Standard support includes the following: (i) automatic product upgrades of the Services; (ii) maintenance updates of the Services; (iii) online self-help and training for Authorized Users designed to assist Authorized Users with implementation and use of the Services and (iv) status dashboard providing real-time publicly available status information for the Services. All Service Provider Systems trends are monitored real time 24 x7 to ensure peak performance.
(c) Notifications of Scheduled Maintenance. General updates to the Services hardware and software are included in the subscription package Fees. There will be maintenance windows that may require down time. Service Provider shall provide at least five (5) days’ notice of any Scheduled Maintenance to Customer. Scheduled Maintenance shall be performed during a maintenance window commencing at 3:00 AM central time and ending at 5:00 AM central; time. All emergency outages will be communicated to Customer and each of its Authorized Users.
(d) Service Level Measurement. Service Provider will have failed to meet the required Availability only if the Service fails to achieve the 99.9% Availability, as measured over an annual period. Any problem from an external source that could affect the up time will not be count as downtime; these include, but are not limited to: (i) Failure of Customer hardware, telecommunications systems, software, or performance monitoring tools; (ii) Network issues not within direct control of the service provider; (iii) Denial of service; and (iv_ Customer negligence or willful conduct; acts of God; war strikes; unavailability of telecommunications; inability to get supplies or equipment needed for the provisions of the Services.
(e) Service Level Remedies. In the event Service Provider fails to meet the required levels of Availability in any given calendar month, Customer shall receive, as its sole remedy, a credit equal to the corresponding percentage noted below (each, a “Service Credit”) to be credited within thirty (30) days.
(f) Service Interruption Response and Resolution Requirements. Upon being informed by Customer or an Authorized User of a Service Interruption not attributable to Excused Downtime, Service Provider will Resolve and Restore such Service Interruption pursuant to the requirements and within the target turnaround time indicated for its priority level (as outlined in the table below) and provide periodic status reports to Customer regarding the Service Interruption. Service Provider will use priority categories set forth below to provide a consistent classification of Service Interruptions, which allows for better communication with Customer regarding the nature of the Service Interruption.