Advance2000 Terms and Conditions Agreement

Advance2000 Terms and Conditions Agreement

This Terms and Conditions Agreement (“Agreement”) governs the business relationship between Advance2000 (“A2000”), a private cloud provider, and the Customer (“You” or “Your”). Collectively, A2000 and You are referred to as the “Parties.”

All services provided by A2000, including but not limited to private cloud computing, telephony, virtual and physical desktops, servers, backups, colocation, equipment rentals, labor, remote support, custom software development, and installations (collectively, the “Services”). The Services may include third-party providers such as Microsoft, Sophos, NVIDIA, VMware, Broadcom, BMWare, Omnissa, DUO, Lumen, AT&T, Verizon, and similar providers (“Third-Party Components”).

1. INCORPORATION BY REFERENCE

1. Entire Agreement. This Agreement, together with all documents expressly incorporated herein, constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous understandings, representations, or agreements, whether written or oral.
2. Incorporated Documents. The following documents are incorporated herein by reference and form part of this Agreement (as amended from time to time by A2000)

a. Terms of Use (https://www.advance2000.com/terms-of-use/)

b. All written purchase orders, quotes, order forms, or statements of work issued by A2000 and accepted by You

c. All executed DocuSign documents (Master Service Agreements, Order Forms, Addenda, Amendments)

d. Mutual emails that expressly confirm or amend pricing, scope, or terms

e. Service Level Agreement (SLA) (https://www.advance2000.com/service-response-sla/)

f. Privacy Policy (https://www.advance2000.com/privacy-policy/)

g. Cloud Availability Policy (https://www.advance2000.com/cloud-availability/)

h. All Exhibits, Schedules, Appendices, or Attachments

3. Order of Precedence. In case of conflict:

1. 1. 1. This Agreement
      2. Signed DocuSign or manually signed documents
      3. SLA, Terms of Use, Privacy Policy, Cloud Availability Policy, other policies 

4. Updates. A2000 may update any incorporated document (other than signed DocuSign documents or POs) by posting the revised version and providing notice. Continued use constitutes acceptance.

2. THIRD-PARTY COMPONENTS

You acknowledge and agree to the following:

1. Third-Party Components are governed by their own “Third-Party Terms.”
2. A2000 has no control over third-party pricing, availability, or functionality.
3. You are responsible for reviewing and complying with all Third-Party Terms.
4. A2000 is not liable for any changes, interruptions, or discontinuations of Third-Party Components.
5. A2000 will use commercially reasonable efforts to notify You of material third-party changes.

3. THIRD-PARTY SOFTWARE

1. Licensing. Third-Party Software is licensed directly between You and the third-party provider under its “Third-Party License Terms.”
2. Pricing. All pricing and terms for Third-Party Software are set solely by the provider and may change without prior notice.
3. Compliance and Retroactive Charges. You are responsible for proper licensing and will pay any retroactive fees if unlicensed use is discovered.
4. Audits. A2000 and/or the third-party provider may audit Your use. You must cooperate.
5. Indemnification. You agree to indemnify, defend, and hold harmless A2000 from all claims related to Your use or misuse of Third-Party Components or Software.

4. SERVICE MODIFICATIONS

A2000 may modify, update, suspend, or discontinue any aspect of the Services (“Modifications”) at any time.

1. Modifications may occur without prior notice except for material changes.
2. A2000 will use commercially reasonable efforts to notify You of any material change.
3. Your sole remedy for a material change is termination of the Services.
4. A2000 is not liable for any damages arising from modifications.
5. Your Continued use constitutes acceptance.

5. SERVICE AVAILABILITY AND UPTIME

1. A2000 will provide the Services in accordance with the SLA.
2. Service credits under the SLA are Your sole and exclusive remedy.
3. A2000 is not liable for downtime resulting from:

• • • Your actions or misconfigurations
    • Third-party outages
    • Scheduled maintenance
    • Force majeure events
    • Termination and Suspension (see hereunder)
    • Emergency security modifications to address risk

6. CONFIDENTIALITY

1. A2000 IP and Confidential Information. A2000 retains all rights to its Intellectual Property and Confidential Information.
2. Your Obligations. You agree to maintain strict confidentiality, refrain from disclosure, and not reverse engineer or claim rights to A2000 IP.
3. Permitted Disclosure. Only to employees with a need to know and under binding confidentiality terms.
4. Compelled Disclosure. You must notify A2000 promptly if disclosure is legally required.
5. Return or Destruction. You must return or destroy all Confidential Information upon request or termination.
6. Equitable Relief. A2000 may seek injunctive relief without proving damages.

7. YOUR DATA

1. You retain full ownership of Your Data.
2. You grant A2000 the right to process Your Data solely to provide the Services.
3. You have 45 days after termination to export your data; after that, it may be deleted.
4. A2000 is not liable for deletion of data in accordance with this Agreement.
5. Obligations survive termination.

8. AUTOMATIC STORAGE EXPANSION

A2000 may automatically expand Your storage when usage exceeds 95%. Additional charges will apply.

9. SECURITY

1. Each Party must implement industry-standard security controls.
2. You must maintain MFA, antivirus, patches, endpoint protection, and follow A2000 security recommendations.
3. Security incidents must be reported immediately.
4. A2000 may perform security audits.
5. A2000 is not liable for security incidents caused by Your systems or actions.

10. DISASTER RECOVERY AND BUSINESS CONTINUITY

1. Redundant infrastructure is available only if purchased.
2. RTO/RPO commitments are only as set forth in the SLA or addendum.
3. A2000 is not liable for data loss except as specifically provided.
4. You are responsible for Your own DR planning and backups.
5. SLA service credits are Your exclusive remedy.

11. RENTAL OF A2000 EQUIPMENT

1. You must maintain and return rented Equipment in good condition.
2. You bear all risk of loss, damage, or theft.
3. You may not encumber or transfer Equipment.
4. A2000 may repossess Equipment upon breach.
5. Equipment is provided “AS-IS” with limited replacement warranty.

12. FEES AND PAYMENT

1. Fees are set forth in the applicable Order Form.
2. Disputes must be raised within 15 days; undisputed amounts must be paid by the Due Date.
3. Late payments accrue 10% monthly. A2000 may suspend or terminate Services.
4. You are responsible for all applicable taxes.
5. The Agreement Start Date is the date of Your first MRC invoice.

13. MINIMUM MONTHLY COMMITMENT (MMC)

1. You may increase or decrease Services, subject to billing adjustments.
2. Monthly charges shall never fall below the MMC stated in Your Order Form, quote, or executed DocuSign document.

14. TERMINATION AND SUSPENSION

1. Termination by Customer

You may terminate this Agreement for convenience by providing sixty (60) days’ prior written notice to A2000. Upon termination by You:

a. You shall pay an Early Termination Fee, calculated as:
(the number of remaining months in the then-current Term) × (Your Minimum Monthly Commitment “MMC”) + all outstanding balances due;
b. You shall return all A2000-owned equipment immediately at Your sole expense;
c. You shall have forty-five (45) days from the date of termination to retrieve Your Data; thereafter, it will be permanently deleted in accordance with this Agreement.

2. Termination or Suspension by A2000

A2000 may, in its sole discretion and without prior notice, immediately suspend or terminate the Services or this Agreement, in whole or in part, for any material breach by You, including but not limited to:

• • • non-payment of any undisputed amount;
    • breach of this Agreement or any incorporated policy;
    • violation of A2000’s Intellectual Property or Confidentiality rights;
    • misuse, abuse, unauthorized access, or security risk to the Services;
    • any activity that jeopardizes A2000’s systems, operations, reputation, or other customers.

A2000 may, but is not required to, grant a ten (10) day cure period at its sole discretion. Suspension does not waive or reduce any fees, which shall continue to accrue.

Upon termination by A2000 for cause:

a. You remain fully liable for all outstanding invoices, fees, and charges accrued up to the effective date of termination;
b. You shall pay an Early Termination Fee, calculated as:
(the number of remaining months in the then-current Term) × (Your MMC) + any outstanding balance due;
c. All such amounts become immediately due and payable upon issuance of A2000’s termination invoice.

3. Damages for Breach and Misuse of A2000 Intellectual Property

If A2000 determines, in its reasonable discretion, that You, Your employees, agents, contractors, or any party acting on Your behalf have:

• • • accessed A2000 source code, scripts, backend tools, system configurations, proprietary cloud architecture, or automation without authorization;
    • attempted to reverse-engineer, copy, replicate, decompile, or derive works from any A2000 software, systems, algorithms, or Intellectual Property;
    • disclosed, transferred, downloaded, or otherwise misused A2000 Confidential Information or Intellectual Property; or
    • facilitated, aided, or failed to prevent such actions, whether intentionally or negligently,

then, in addition to all other remedies:

a. A2000 may terminate the Services and this Agreement immediately and without notice;
b. You shall be liable for all damages incurred by A2000, including but not limited to:

• • • the full commercial value of the stolen, misused, or compromised Intellectual Property;
    • investigation, forensic analysis, and incident-response costs;
    • costs to secure, repair, rebuild, or redesign affected systems;
    • loss of revenue, loss of competitive advantage, and reputational harm;
    • statutory damages and penalties;
    • reasonable attorneys’ fees, expert fees, court costs, and collection costs;

c. All such damages shall become immediately due and payable upon issuance of A2000’s invoice;
d. A2000 may seek injunctive relief under Section 6.6 without proving damages, and You acknowledge that IP misuse constitutes irreparable harm.

4. Post-Termination Data and Obligations

Following termination for any reason:

a. A2000 shall have no obligation to maintain, store, restore, or make available any of Your Data after the applicable retention period;
b. A2000 shall not be liable for deletion of Your Data performed in accordance with this Agreement;
c. All confidentiality and IP obligations survive termination;
d. This entire Section 14 is cumulative and does not limit any other rights or remedies available to A2000 at law or in equity.

15. ACCEPTABLE USE

1. You may use the Services only in compliance with this Agreement and A2000’s Acceptable Use Policy.
2. A2000 is not responsible for Your content or activities.
3. Prohibited activities include spam, illegal activity, malware, DoS attacks, unauthorized access, etc.
4. You are responsible for account security.
5. Violations may result in suspension, termination, or other enforcement actions.

16. NON-SOLICITATION

1. For 2 years after termination, You may not solicit or hire A2000 employees or contractors.
2. Liquidated damages:

• • • 24 months of fees paid by You, or
    • 200% of the individual’s annual compensation

1. A2000 may seek additional remedies.
2. This section survives for 3 years.

17. DISCLAIMERS

All Services are provided “AS IS” and “AS AVAILABLE.” A2000 disclaims all warranties, including merchantability, fitness for a particular purpose, non-infringement, and error-free operation.

18. LIMITATION OF LIABILITY

A2000 is not liable for indirect, incidental, consequential, special, or punitive damages.

Total liability shall not exceed the amount paid by You in the four (4) months preceding the claim.

19. CYBERSECURITY INSURANCE

You are strongly encouraged to maintain cybersecurity insurance. A2000 is not liable for losses that insurance could have covered.

20. DISPUTE RESOLUTION AND GOVERNING LAW

This Agreement is governed by the laws of the State of New York.

Exclusive jurisdiction lies in the state and federal courts of Erie County, New York.

21. SEVERABILITY

If any provision is unenforceable, it shall be modified to the minimum extent necessary to remain valid.

22. FORCE MAJEURE

Neither Party is liable for delays caused by events beyond reasonable control (excluding Your payment obligations).

23. SURVIVAL

Provisions relating to Confidentiality, Your Data, Payment, Indemnification, Disclaimers, Limitation of Liability, Dispute Resolution, and any other section naturally surviving termination shall continue in full force.