PRIVATE CLOUD SERVER AGREEMENT
THIS PRIVATE CLOUD SERVER AGREEMENT (the “Agreement”) is by and between MARTEC360 LLC (“MT360”) and the undersigned customer of [company name] ( “Customer”), and is effective as of the later-dated signature at the end of this Agreement (the “Effective Date”).
- DEDICATED / PRIVATE CLOUD SERVER SERVICES. This Agreement sets forth the terms and conditions of Customer’s use of server space within a MT360 and Total Server Solutions LLC (TSS) data center (the “Cloud Server”), server computers and hardware, operating system, Internet connectivity, and the following computer, hardware, and software monitoring, maintenance, and management services: (collectively, the “Private Cloud Services”). By executing this Agreement, or otherwise by using the Cloud Services, Customer will be bound by all of the terms and conditions herein, along with any new or additional terms and conditions (including the MT360 Acceptable-Use Policy, which is incorporated herein by reference) that MT360 may establish from time to time.
- SCOPE OF PRIVATE CLOUD SERVICES. MT360 will provide the following Cloud Services to Customer:2.1 Private CLoud Server Set-Up and Management. MT360 will configure the Private Cloud Server, so as to create a fully functional Internet presence. Customer will be solely responsible for providing, updating, uploading, securing, and maintaining Customer’s server content and all supporting data files and data structures (collectively, “Customer Data”) onto the Private Cloud Server computers. After the Private Cloud Server is loaded, set up with the Customer Data, and is fully operational, MT360 will not be responsible for Customer Data residing on the Private Cloud Server. Customer is ultimately and solely responsible for the backup, security, and management of all of Customer Data stored on Customer’s Private CLoud Server, and Customer bears full risk of loss and damage to Customer Data. In no event will MT360 have any liability to Customer or any other person for loss, damage, or destruction of any of Customer Data. Upon termination of this Agreement, Customer will be responsible for moving Customer Data off the Private Cloud Server.2.2 Availability of Service. MT360 will provide connection of the Private Cloud Server to the Internet, including all telecommunications equipment and connections for the Private Cloud Server to provide the Cloud Services on a 24-hour-a day, 7-day-a-week basis; provided, however, that the Cloud Services from time to time may be inaccessible or inoperable for any reason, including, without limitation, equipment malfunctions; periodic maintenance procedures or repairs, or causes beyond MT360’s control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches. In addition, the Cloud Services may be inaccessible from time to time for scheduled upgrades or downgrades to the Private Cloud Server.2.3 Maintenance Services. MT360 will perform periodic maintenance services as MT360 determines reasonably necessary to maintain the continuous operation of the Private Cloud Server. MT360 shall use commercially reasonable efforts to ensure that the Customer receives uninterrupted and continuing service throughout the term of the Agreement. MT360 may need to carry out routine maintenance or urgent maintenance or Private Services may become unavailable for reasons not within MT360 control. In such case, MT360 shall use commercially reasonable efforts to inform the Customer of any downtime and restore Domo access as soon as reasonably practicable. MT360 business hours are 9:00 a.m. to 5:00 p.m., Monday through Friday. Any support services not related to maintenance services outside of standard business hours will be considered emergency support. MT360 will provide prior notice of the maintenance downtime, except when circumstances beyond its control limit its ability to do so.2.4 Domain Names and IP Addresses. Customer is responsible for the registration, renewal and control of Customer’s domain names. MT360 will provide Customer with IP Addresses. Customer will not own and cannot take any IP addresses with Customer after the termination of this Agreement. As a normal course of its business, MT360 may find it necessary to migrate its servers, in which event Customer may be assigned different IP numbers and addresses. MT360 maintains and controls ownership of all IP numbers and addresses that may be assigned to Customer, and MT360 reserves, in its sole discretion, the right to change or remove any and all IP numbers and addresses.
2.5 Hardware, Equipment and Software. Customer is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access the Cloud Services. MT360 makes no representations, warranties, or assurances that Customer’s equipment will be compatible with the Cloud Services.
2.6 Server Software. MT360 owns or has licensed all server software. In the event that MT360 elects, at its option, to provide custom software to Customer, this software will be licensed to Customer for Customer’s use only on the Private Cloud Server on a non-exclusive, royalty-free, fully-paid basis according to the terms of this Agreement.
2.7 Customer Support. MT360 will provide Customer with reasonable customer support during MT360’s standard customer support hours via email, and live online chat.
- PAYMENT TERMS. Customer agrees to the following payment terms in consideration for the services provided:3.1 Set-Up Fee. Customer will pay MT360 a one-time, non-refundable set-up fee of $0 on the Effective Date.3.2 Monthly Service Fee. Customer will pay MT360 a monthly service fee of [total amount] for the Cloud Services to be provided by MT360 under this Agreement. The monthly service fee will be billed to Customer and charged each month automatically to Customer’s credit card on file, unless Customer discontinue service with MT360 prior to renewal. The service fee is subject to prospective adjustment at any time by MT360 thirty (30) days notice to Customer.3.3 Taxes. Monthly service fees do not include any federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Cloud Services, all of which are Customer’s sole responsibility. Any sales or similar taxes on the sale of Customer’s products and services to Customer’s customers shall be Customer’s sole responsibility.3.4 Late Payments. MT360 reserves the right to charge a late fee of 1.5% per month (18% per annum), or the highest rate allowed by applicable law, whichever is lower, calculated from the date such fee(s) were due, if payment in full is not received within 5 days of the date due. Customer shall pay any costs of collection (including reasonable legal fees and costs) incurred in collecting any amounts due hereunder. If any invoice or portion thereof is past due and not disputed in writing and in good faith by Customer, MT360 may, in addition to receiving the above late-fee payments and any other remedies available under this Agreement or applicable law, restrict Customer’s access to the Cloud Services until such past-due invoice is paid in full. If MT360 ceases providing Cloud Services to Customer pursuant to this section, MT360 will resume power services within 24 hours of the receipt of payment of all past-due invoices; provided, however, that MT360 may charge a reinstatement fee equal to $50.00 multiplied by the number of circuits to be restored. MT360 will attempt to give Customer notice if Customer’s Private Cloud Server has been deactivated.
- USE OF THE CLOUD SERVICES
4.1 Compliance with Law. Customer shall comply with all applicable state, municipal and federal laws in the use and operation of the Private Cloud Server, including laws governing technology, software and trade secrets. Customer agrees to comply with rules and regulations of Customer’s domain name registrars and other Internet authorities.4.2 Customer Data. Customer Data shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising, or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person. Customer shall own all Customer Data and all proprietary or intellectual property rights therein or have express written authorization from the owner thereof to copy, use, and display the content on and within Customer’s server account. In no event shall the server content being hosted by MT360 be used in connection with any illegal activity.4.3 Use of Private Cloud Server. Customer shall be responsible for ensuring there is no excessive overloading of the Private Cloud Server. In the event Customer exceeds Customer’s allotted bandwidth and thereby overloads MT360’s servers, Customer shall be assessed any and all fees, costs, and penalties associated with such overloading. Customer may not use the Clpud Services as a source, intermediary, reply-to address, or destination address for mail bombs, internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited, and MT360 reserves the right to remove sites containing information about hacking or links to such information. Use of the Cloud Services as an anonymous gateway is prohibited as is use of the Cloud Services to restrict or inhibit any other user from using and enjoying the Internet. Customer acknowledges and agrees that MT360 has the right to remove Customer’s server content temporarily or permanently from the Private Cloud Server if MT360 is the recipient of activities that threaten the stability of its network.
- LIMITATIONS ON LIABILITY
5.1 Force Majeure. MT360 is not liable for failure to fulfill its obligations hereunder if such failure is due to causes beyond our reasonable control, including, without limitation, actions or failures to act by Customer or Customer’s customers, acts of God, fire, catastrophe, governmental prohibitions or regulations, viruses which did not result from the acts or omissions of MT360, its employees or agents, national emergencies, insurrections, riots or wars, or strikes, lockouts, work stoppages or other labor difficulties.5.2 Disclaimer of Warranties. MT360 MAKES NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT. CUSTOMER EXPRESSLY AGREES THAT USE OF THE PRIVATE CLOUD SERVER IS AT CUSTOMER’S OWN RISK. NEITHER MT360, NOR ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT ITS SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES MT360 MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ITS SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICED OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE CLOUD SERVICES, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.5.3 Limitations of Liability. Customer’s exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which Customer paid during the period during which the cause of action arose, or (b) include any incidental, consequential, or punitive damages of any kind, including without limitation, damages for loss of Customer Data, profits, goodwill, time, or revenue.5.4 LOSS OF BUSINESS REVENUE: MARTEC360 shall not be liable for any loss or damage (DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, LOSS OF USE OR LOSS OF ECONOMIC BENEFIT) which you may suffer which is in any way attributable to any delay in performance or completion of our contract, however that delay arises. MARTEC360 RESERVES THE RIGHT TO DISCONTINUE ALL SERVICES FOR NON-PAYMENT OF ANY ACCOUNT OVER 30 DAYS WHICH MAY CAUSE CUSTOMER SUBSTANTIAL OPERATIONAL DYSFUNCTION AND LOSS OF REVENUE.
- TERM AND TERMINATION. The following describes the effective date, duration and methods of termination:
6.1 Contract Length and Cancellation.
CHECK ONE:This Agreement will commence on the Effective Date and continue on a month-to-month basis at the month-to-month retail rate (detailed above), unless thirty (30) days’ written notice of cancellation is given prior to the end of any month. In the event Customer cancels Customer’s service, Customer will be charged in full for the entire month in which Customer canceled Customer’s service hereunder. The minimum contract period for the Cloud Services is one month.ORThis Agreement will commence on the Effective Date and continue for a period of month-to-month thereafter, unless earlier terminated as provided herein. At the end of the initial term hereof, this Agreement will automatically renew for a term equal to the initial term, unless thirty (30) days’ written notice of cancellation is given prior to the end of any month during the initial term. In the event Customer cancels Customer’s service, Customer will be charged in full for the entire month in which Customer canceled Customer’s service hereunder. In the event Customer cancels Customer’s service, Customer will be charged in full for the entire month in which Customer canceled Customer’s service hereunder. In the event the Customer needs to continue services after the initial term and has provided notice of cancellation within the allotted time-frame, pricing will default to the month-to-month retail pricing until either (a) the customer renews a new contract amendment or (b) the customer terminates use of services.6.2 Breach or Default. MT360 may terminate this Agreement immediately upon written notice to Customer if Customer breaches or fails to observe or perform any material term or condition of this Agreement. In the event MT360 terminates this Agreement pursuant to this Section 6.3, Customer will be charged in full for the remainder of the term year in which the breach occurred.
7.1 Governing Law. This Agreement will be interpreted and applied in accordance with the laws of the State of Florida, without regard to the conflicts of law provisions.7.2 Company/Individual. This agreement should only be signed, executed, and/or amended in writing by authorized representative of both parties. If Customer signee is an individual/natural person and not an authorized signer for a Company, Customer signee assumes responsibility individually for the terms of the contract.7.3 Age. If Customer is an individual/natural person, Customer certifies that Customer is at least 18 years of age.7.4 Transfer. Neither this Agreement nor any interest herein may be assigned in whole or in part, by Customer without the prior written consent of MT360.7.5 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior communications, understanding, and agreements.
7.6 Binding Effect. Subject to the limitations herein expressed, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns.
7.7 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions shall remain in full force and effect.
7.8 Notices. All notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission.
SERVICE LEVEL AGREEMENT
[COLOCATION; HOSTED; AND MANAGED SERVICES]
This Service Level Agreement (this “SLA”) is incorporated into and made a part of as if fully set forth therein the Master Services Agreement (together with this SLA and any other related Schedules, Order Forms, and amendments thereto between MT360 and Customer, the “Agreement”). Terms used herein but not defined herein shall have the meanings ascribed to them in the Agreement. If a provision of this SLA conflicts with another provision of the Agreement, the provision of this SLA shall control to the extent of such conflict. Four-Nines Uptime Service Level Guarantee MT360 shall make the Covered Services available for Customer 99.99% of the Term (“Service Level Guarantee”). “Covered Services” means colocation, hosting, MT360-provided connectivity and power, and managed Services as more particularly set forth in the Schedule or Order Form to which this SLA is attached; “available” means the Covered Services functioning as intended without significant interruption.
Customer shall report outages to MT360 via the MT360 online ticketing system. If the online ticketing system is unreachable, Customer shall start a ticket by calling the MT360 network operations Center (“NOC”). Additionally, to be eligible for a Service Level Credit, Customer must (i) make written request for credit via email to [email protected] within seven (7) days after Customer has experienced the downtime; and (ii) identify each applicable trouble-ticket number that the MT360 NOC issued which relates to the SLA for which Customer seeks credit.
For any billing month in which MT360 fails to meet the foregoing guarantee with respect to a given Covered Service, Customer will, subject to the Reporting Requirements and Restrictions hereof, receive as its sole and exclusive remedy and MT360’s sole obligation for such failure, credit to its account based on the chart set forth below and the actual duration of the interruption of such Service, as measured 10 minutes after Customer notification of a Covered Service interruption (evidenced by issuance of a ticket) to the restoration of the impacted Covered Service. MT360 will determine the end of downtime by a trace-route to Customer’s machine from outside the MT360 network. The amount of credit is stated below as a percentage of the minimum recurring fees due to MT360 for such interrupted Covered Service for the applicable calendar month.
Covered Services Availability* Credit
Uptime of 100% (less than 10 minutes of downtime) None
Uptime of 99.99% – 99.90% (between 10 and 43 minutes of downtime) 1%
Uptime of 99.89% – 99.0% (between 43 and 432 minutes of downtime) 2%
Uptime of 98.9% – 98.0% (between 432 and 864 minutes of downtime) 5%
Uptime of 97.9% – 97.0% (between 864 and 1,296 minutes of downtime) 10%
Uptime of 96.9% – 95.0% (between 1,296 and 2,160 minutes of downtime) 25%
Uptime of less than 95.0% (more than 2,160 minutes of downtime) 50%
The minimum recurring fee to which credits may be applied is the base monthly fee paid by Customer for a Covered Service, without additional charges and excludes all other fees which might be charged to Customer, including, for example and without limitation, charges relating to managed services, incremental bandwidth usage and fees for electricity when an additional fee is charged for such item, extra IP addresses, RAM, hard drives, setup fees, and Smarthands or other hourly support charges.
- If Customer has violated the Agreement (expressly including the Privacy and Acceptable Use Policies), Customer is not entitled to any credit.
- Customer is limited to receiving an aggregate Service Level Credit of 50% of the minimum fees due to MT360 for the applicable calendar month under all SLAs between Customer and MT360.
- Customer shall not receive any Service Level Credits under this SLA for any covered outage that, as determined by MT360 in its reasonable discretion, is caused by or associated with any of the following:
- any event or condition beyond MT360’s reasonable control, including, without limitation, acts of God or governmental bodies, natural disasters;
- failure of bandwidth to the MT360 network, unless such failure is caused solely by MT360;
- scheduled maintenance announced at least 48 hours in advance, up to an accumulated total of 8 hours per month and emergency maintenance announced at least 60 minutes in advance, up to an accumulated total of 2 hours per month;
- Domain Name Server propagation or issues outside the direct control of MT360;
- issues with FTP, POP, IMAP, or SMTP Customer access;
- false SLA breaches reported as a result of outages or errors of any MT360 measurement system;
- the negligence or willful misconduct or omissions of Customer or others Customer authorized to use the Covered Services or those who gained access to MT360’s network or Customer’s website at the request of Customer;
- e-mail or webmail delivery and transmission;
- any failures that cannot be corrected because Customer is inaccessible; or
- outages elsewhere on the Internet that hinder access to Customer’s account. MT360 is not responsible for browser or DNS caching that may make Customer’s site appear inaccessible when others can still access it. MT360’s SLA covers only those areas considered under the control of MT360, MT360 server links to the Internet, MT360’s routers, and MT360’s servers.