The Terms and Conditions set forth under this Agreement shall govern the business and relationship between Advance2000 and its Customers. For purposes of this Agreement, Advance2000 shall be referred to as “A2000” or “We”, the Customer shall be referred to as “You” or “Your,” and both parties shall be referred to as the “Parties.”
This Agreement shall govern all services provided by A2000, including but not limited to cloud, compute, telephony, virtual and physical desktops, servers, backups, colocation, equipment rentals, labor, remote support, custom software development, and installations. All services, separately and collectively, shall be referred to as the “Services.”
Services Modifications: YOU AGREE THAT A2000 MAY MAKE MODIFICATIONS TO THE SERVICES FROM TIME TO TIME IN THE EXERCISE OF ITS SOLE DISCRETION. IF A2000 MAKES A MATERIAL CHANGE TO THE SERVICES, A2000 WILL NOTIFY YOU BY POSTING A NOTICE OF THE CHANGE ON THE A2000 WEBSITE OR YOUR PORTAL OR SENDING AN EMAIL, OR BY CALLING YOU.
Confidentiality: YOU ACKNOWLEDGE AND AGREE THAT A2000 IS THE OWNER OF ALL INTELLECTUAL AND OTHER PROPRIETARY RIGHTS IN AND TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE A2000 CLOUD SERVICES, ITS SOURCE CODES, AND OPERATING SYSTEMS, ITS HARDWARE AND SOFTWARE COMPONENTS AND ALL NON-PUBLIC BUSINESS, TECHNICAL, FINANCIAL, KNOW-HOW, COMMERCIAL, AND OTHER INFORMATION WHICH IS CONFIDENTIAL AND OR PROPRIETARY AND OR TRADE SECRET TO A2000 AND SHALL BE DEEMED CONFIDENTIAL AND PROPRIETARY TO A2000 FOR ALL PURPOSES, WHETHER OR NOT IT IS LABELED OR IDENTIFIED AS SUCH AT THE TIME OF DISCLOSURE OR USE BY YOU. YOU FURTHER ACKNOWLEDGE AND AGREE THAT NOTHING CONTAINED IN THIS AGREEMENT OR BY THE USE OF THE SERVICES SHALL GRANT YOU ANY RIGHT, TITLE, INTEREST, OR LICENSE IN OR TO THE SERVICES.
Your Data: We acknowledge and agree that You are the sole owner of the data generated by You, as such data may be processed or stored by the Services.
Security: Both Parties shall use reasonable technical measures to ensure the protection and confidentiality of each other’s proprietary and confidential information to prevent accidental, unauthorized, or unlawful destruction, modification, disclosure, access, or loss of data. Both Parties shall inform one another of any security breach involving proprietary and confidential information. Where “security breach” means any event involving the actual or potential compromise of the data’s security, confidentiality, or integrity, including but not limited to any unauthorized access or use. You shall not use A2000 proprietary information for Your benefit or the benefit of any other person or party, and A2000 shall not use Your proprietary information for the benefit of A2000 or any other person or party.
The Parties shall protect each other’s proprietary information by employing the same standard of care and safeguards to protect their proprietary information. The Parties shall not disclose proprietary information not belonging to them to any other person or party unless authorized in writing between the Parties. This Agreement does not grant the Parties rights, titles, interests, or licenses to the other’s proprietary information, whether stated, implied, or otherwise.
A2000 Equipment, including Rentals:
- If You rent equipment: from A2000 for use in connection with the Services, You agree: (i) to keep all said equipment secure and safe from theft, vandalism, loss, or damage; (ii) to keep all subject equipment in a good state of repair, normal wear and tear expected; (iii) to pay to A2000 all costs and expenses incurred by A2000 for any lost or damaged said equipment or for the replacement of any equipment that You did not return to A2000. You shall return any equipment that We delivered to You upon our demand. You shall be responsible for the costs and expenses to ship or otherwise transport, including delivery and return equipment referenced herein. You shall allow A2000 to enter the premises where You placed the equipment to recover it. Upon request by A2000, You agree to ensure the equipment is in a commercially reasonable manner against loss, damage, theft, or vandalism and to be responsible for the payment of all premiums, costs, and expenses to maintain such insurance for so long as You remain in possession of said equipment from A2000. All costs, fees, and expenses, including, but not limited to, attorney and court costs, moving, storage, and repossession expenses, shall be and remain Your obligation. You shall pay all such costs, fees, and expenses upon demand. You shall not pledge, lien, or otherwise encumber the equipment in any way.
- A2000 may terminate: this Agreement immediately upon the failure of You to make payments to A2000 when due, or upon You filing for protection from creditors in any court of competent jurisdiction or upon a filing being made by creditors against You, or upon You ceasing to conduct business for any reason. A2000 makes no warranty or guarantee of any kind, whether express or implied, regarding the fitness or merchantability, condition, or use of said equipment, except to the limited extent that A2000 will replace any equipment with similar equipment if the equipment fails to operate per the manufacturer’s specifications provided that the acts or omissions of You do not cause the failure to operate. Any replacement of rented equipment hereunder shall be completed by A2000 as soon as practicable after You provide notice and return the rented equipment that has failed to operate.
- Statements of Work. Labor can be purchased from A2000 by executing written Statements of Work as applicable in Your Agreement.
- A2000 will perform the Services as deemed necessary by the terms and conditions herein, agreed-upon Statement of Work. If A2000 personnel are working on Your premises: (a) You will provide a safe and secure working environment for such personnel, and (b) A2000 will comply with all reasonable workplace safety and security standards and policies that apply to Your employees.
- The Parties Relationship. A2000 is performing the Services as an independent contractor, not as an employee, agent, joint venture, or partner of You. A2000 acknowledges and agrees that its personnel is not eligible for or entitled to receive any compensation, benefits, or other incidents of employment that You makes available to its employees.
- Fees and Expenses. You will pay A2000 fees per the terms outlined in Your Agreement as consideration for the Services. In addition, You will reimburse A2000 for all reasonable and customary travel, lodging, and other related expenses incurred by A2000 or its personnel in connection with the performance of Services following the terms outlined in the Statement of Work upon being provided with receipts and other documentation for all such expenses.
- Force Majeure Event. A2000 is not liable for any delay or failure of performance if a Force Majeure Event causes such delay or failure. Force Majeure Event means an event beyond a party’s reasonable control, including, without limitation, acts of God, fire, explosion, vandalism, cable cut by a third party, adverse weather conditions, governmental action, labor difficulties, and supplier failures.
- Labor Warranty. A2000 warrants that, for five (5) days from the completion of the Services (the “Warranty Period”). If A2000 receives from You written notice of the Services non-conforming with the provisions outlined in this Section during the Warranty Period, A2000 will, at its option, re-perform the non-conforming Services. THE PRECEDING STATES YOUR SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO LABOR.
- A2000 Colocation, if managed by A2000, can refer to the operation and maintenance of Your infrastructure, equipment, facilities, data files, software, services, and resources, as specified in Your Agreement.
- You acknowledge and agree that: The performance of any Service is subject to the technical limitations of the managed devices.
- Suppose A2000 contracts with a third party to procure licenses. Such licenses will be owned and maintained by A2000 unless separately agreed by the Parties.
- If you purchased a backup, A2000 would use reasonable efforts to comply with Your backup preferences. Under no circumstances will A2000 be liable or responsible for losing backup data, content, or other information. In addition, You grant A2000 a non-exclusive royalty-free right and license to digitize, convert, make copies of, and archive Your data, content, and information to perform their obligations under this Agreement.
- Under no circumstances is A2000 liable or responsible for security breaches, viruses, hacked servers, worms, lost or stolen data, corrupted data, ransomware, or malicious activity.
Fees and Payment: The Services’ fees, costs, and expenses are set forth on Exhibits to this Agreement. A2000 may amend each Exhibit from time to time, and each Exhibit is incorporated herein by this reference. You agree to pay all invoices by A2000 for the Services, rental equipment, and other charges related to or generated by the Services within the time specified on each invoice, as measured from the invoice date. You agree that all invoices are presumed accurate and shall be binding on You unless You provide A2000 with a written explanation and documentary support for the disputed charge. Only then may You withhold payment of the specific amount in dispute, provided that You: (i) pay the undisputed amount; and (ii) within fifteen (15) days of the invoice due date. In good faith, We will cooperate with You, review the dispute and notify You of the A2000 ruling concerning the dispute within thirty (30) days from the invoice due date. Within five (5) days after the A2000 ruling, You agree to pay the charges in full for the dispute. For illustration purposes, an invoice dated January 1, a dispute must be made in writing to A2000 no later than January 15. A2000 will determine the validity of the dispute by January 30 or any date after that. Suppose We notify You of our ruling on February 5; Your payment will be due no later than February 10. Any non-payment by You shall be a breach of this Agreement. Suppose You fail to pay A2000 for the Services. A2000 may elect to discontinue Services upon notice to You, demand the return of all equipment and property of A2000, and cease providing the Services. You will remain responsible for payments of all invoices, fees, costs, and expenses (including collection costs and reasonable attorney fees) for the Services under this Agreement and for the fees, charges, and expenses paid by A2000 to a third party on your behalf in connection with, related to or arising from the Services. Any late payments may incur an interest charge of 10% per month or the maximum legal rate allowed by law, whichever is less.
Start Date: The Agreement Start Date shall start from the date specified on Your first Monthly Recurring Charge (MRC or MRS) invoice sent to you by A2000 and not from the signature date stated on Your Agreement. For illustration purposes only: if You signed a 3-year agreement on January 1, 2020, and Your first MRC invoice is dated March 1, 2020, then the Your Agreement shall end on March 1, 2023.
Taxes, Fees, Licenses, and Other: You shall be and remain responsible for all sales and use taxes, licensing fees, permits, and other fees and expenses related to or resulting from the Services and the rental equipment. You agree to pay A2000 for the Services and the rental equipment without deduction or set off. Suppose A2000 is obligated to collect or pay taxes. In that case, the taxes will be invoiced to You for timely payment unless You provide A2000 with a valid tax exemption certificate authorized by the appropriate taxing authority. If You are required by law to withhold any taxes from payments to be made to A2000, You must provide A2000 with an official tax receipt or other appropriate documentation as We may so request to support such withholding.
Emergency Security Issue: If A2000 identifies an emergency or security issue, We reserve the right and authority to automatically suspend the offending use or other logistics causing the emergency or security issues until they may be remedied or resolved. Any suspension hereunder will be to the minimum extent and duration required for A2000 to address the emergency or security issue. If We elect to suspend an account or the Services for any reason without prior notice to You, A2000 will provide You the grounds for the suspension as soon as is reasonably possible.
Data Transfer: As part of providing the Services, You authorize A2000 to store, transfer, and process Your data in its daily operations.
Acceptable Use: Provided that You comply with the terms of this Agreement and our policies and procedures for the use of the Services, and You are not in default or breach, We will permit You to use the Services to store, retrieve and serve software applications, data and or content owned, licensed or lawfully obtained by You. You acknowledge that A2000 and its employees, agents, vendors, and representatives shall not be held liable to You or any third person or party in any manner or for any purpose hereunder. You are solely responsible and shall be and remain liable for Your content or any actions arising or resulting from there. At the discretion of A2000, We may elect to track information regarding using the Services by You. We will not sell, disclose or license the content owned or held by You, except as We may determine to be necessary or desirable to comply with the Agreement, or upon the request of any governmental or regulatory body, or by subpoenas or court orders, or for any other legal purposes. You shall remain responsible and liable for all applications running on and with traffic originating from the instances or activities You initiate as part of the Services. You shall exercise good judgment and take appropriate action that You deem necessary to protect Your security credentials. You are advised that actions taken by You or any third persons or parties using or employing authentications and/or Your credentials shall be actions taken by You for which You will remain accountable and liable.
Email Usage: All electronic communications must adhere to all applicable laws. Without limiting the foregoing, the following are strictly prohibited: Sending Spam/Unsolicited emails, including but not limited to:
- Pyramid schemes.
- Chain letters.
- Sending any mail in contravention of any state or federal laws and regulations, and Forgery: Altering or obscuring mail headers or assuming a sender’s identity without the explicit permission of that sender.
Network: You may make network connections from the A2000 Cloud to other servers only with the permission and authorization of the destination servers and networks. Examples of unacceptable network traffic include but are not limited to:
- Unauthorized probes and port scans for vulnerabilities.
- Unauthorized penetration tests, traffic that circumvents authentication, or attempts to gain entry into systems.
- Open web crawling or any traffic that impairs or otherwise disrupts servers.
- Unauthorized network monitoring or packet capture.
- Forged or non-standard protocol headers, such as altering source addresses, etc.
- Flooding; Denial of Services (DoS) of any kind or malicious activity.
- You may not operate network Services such as:
- Open proxies.
- Open mail relays.
- Open, recursive domain name servers
- Unsecured connectivity.
- Unsecured FTP
Changes of Services: You may increase or decrease the number of Services to any number or size at any time. We will automatically account for increases or decreases and adjust your monthly billing per Your A2000 Agreement. Requests for a significant increase or decrease in the number of resources may require the execution of a new A2000 Agreement and shall be determined solely by A2000. If You reduce the resources to less than Your Minimum Monthly Commitment (MMC), You will be billed the MMC as Your new MRC until the resources You are consuming total an amount that exceeds the MMC. When Your server storage consumption reaches a threshold of 95% usage, A2000 shall automatically expand Your storage to 90% usage to maintain Your data’s integrity. You further agree that this is not a material change to the Services provided to You. Your MMC amount shall be 80% of the executed MRC amount on Your signed Agreement.
For illustration purposes only:
Example 1. You have 100 desktops at $100 per unit, and Your MMC is $8,000. If You reduce Your desktop count to 50, We will bill You an MMC of $8,000 (Your new MRC). Even so, the cost of 50 desktops amounts to $5,000.
Example 2. You have 100 desktops at $100 per unit, and Your MMC is $8,000. If You increase Your VDI count to 150, Your MRC will be $15,000.
Termination by You: You may elect to terminate this Agreement before the end of the term You selected or decide not to renew Your Agreement beyond its term, shall be subject to the following:
- You shall provide A2000 a minimum of sixty (60) days advance notice in writing of the election by You to terminate the Agreement (the “Termination Notice”).
- On the sixty-first (61st) day after A2000 receives the Termination Notice, all Services provided by A2000 under this Agreement shall cease, and A2000 shall have no duty, responsibility, or other obligation to provide or continue any of the Services. This date may be referred to as the Termination Date.
- On or before, but not later than, the sixty-first (61st) day after A2000 receives the Termination Notice, at your cost and expense, You will return all rental equipment, proprietary information, and other property of A2000 to the principal office of A2000, or as otherwise reasonably directed by A2000.
- You shall be responsible for and shall pay an Early Termination Fee in addition to any other fees, costs, usage charges, and other expenses related to or resulting from the Services and the Termination of the Services. A2000 shall calculate the Early Termination Fee by multiplying the months remaining under your Agreement with Your MMC amount and adding any outstanding invoices due to A2000.
For illustration purposes only:
Example 1. If You have a 3 Year Agreement, Your MMC is $2,000, Your outstanding invoices are $1,200, and You elect to terminate Your Agreement after 16 months. Your Early Termination Fee shall be ($2,000 X 20) + $1,200) = $41,200.
Example 2. If You have a 5 Year Agreement, Your MMC rate is $2,000, Your outstanding invoices are $1,200, and You elect to terminate Your Agreement after 38 months. Your Early Termination Fee shall be ($2,000 X 22) + $1,200) = $45,200.
- A2000 shall provide You with an invoice for the Termination and all other fees, costs, usage charges, and other expenses related to or resulting from the Services and the Termination of the Services (the “Termination Invoice”). You shall pay the Termination Invoice within thirty (30) days of the date of the Termination Invoice. Suppose additional fees, costs, usage charges, and other expenses related to or resulting from the Services and A2000 incurs the Termination of the Services after the Termination Invoice is prepared and provided to You. In that case, You agree to pay any additional fees, costs, charges, and expenses within thirty (30) days of receipt of any other or supplement invoice or statement from A2000.
- You shall be responsible for paying all fees, costs, and expenses for the export or transfer of Your data. Upon payment receipt of the Termination Invoice, A2000 will provide You a thirty (30) day period to transfer Your data via remote access.
- Notwithstanding the provisions of subsection six above, on the thirty-second (32nd) day from the date of the Termination Invoice, A2000 will permanently delete all Your data from its system without recourse or liability to You.
- If your Agreement goes beyond its term, and You don’t renew for another term or execute a new Agreement, Your MRC shall increase by a multiple of 1.3 over Your existing MRC (1.3 X existing MRC).
For illustration purposes only: a. if You have a 3 Year agreement and Your MRC is $1,500, and Your Agreement with A2000 expires, then Your new ongoing MRC amount shall be (1.3 X $1,500) $1,950 for month 37 and beyond. b. If Your Agreement is for 60 months and Your MRC was for $1,000, then Your new ongoing MRC shall be (1.3 X $1,000) $1,300 for month 61 and beyond. The multiple of 1.3 increase shall apply to all agreements beyond their term and remain in effect.
Termination or Suspension by A2000: A2000 may elect to terminate this Agreement, suspend or discontinue the Services “For Cause,” as defined below. For cause, shall mean: (a) immediately if You attempt a denial of Services attack or commit other acts that are detrimental or potentially damaging to the Services, or acts or omissions by You cause emergency or security issues; (b) You seek to hack or break any security mechanism; (c) We otherwise determine in our sole discretion that use of the Services by You poses a security or Services risk that may subject A2000 or any third party to liability, damages or danger; (d) You otherwise use the Services in a way that disrupts or threatens the Services; (e) You are in default of payment obligations to A2000; (f) We determine, in our sole discretion, there is evidence of fraud with respect to the account maintained for You; (g) We receive notice or We otherwise determine, in our sole discretion, that You may be using the Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (h) We determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason or subject to applicable law, upon liquidation, commencement of dissolution proceedings or disposal of assets of You, failure to continue the business of You, assignment for the benefit of creditors of You, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
If You are in breach or default, We will provide notice to You and a ten (10) day period to cure the breach or default, except for events where We reserved the right for immediate Termination. If You are in default of any payment obligation for any of the Services or if any payment mechanism You have provided to A2000 is invalid, or We refuse charges for such payment mechanism, and You fail to cure payment obligation, breach, default, or correct such payment mechanism problem within such ten (10) day period, at the discretion of A2000, We may suspend Your right and license to use the Services, or terminate this Agreement in its entirety, and all Services thereunder.
Effect of Suspension or Termination:
1. Suspension. Upon any suspension of Your use of any Services, in whole or in part, for any reason, then: (a) all fees, costs, charges, and expenses will continue to accrue for any Services that are still in use by You, notwithstanding the suspension (including continued storage of data on the Services during the period of suspension and Wide Area Network); (b) You remain liable for all fees, costs, charges, expenses, invoices, and any other obligations You have incurred, or will incur, through the date of suspension or after that concerning the Services; and (c) all of Your rights to the applicable Services shall be discontinued, suspended or terminated during the applicable period.
2. Termination. Upon Termination of this Agreement for any reason by A2000: (a) You remain liable for the payment of all fees, charges, expenses, invoices, and any other obligations You have incurred through the date of Termination or will incur after the date of Termination concerning the Services; (b) all of the rights under this Agreement for the Services shall immediately terminate; and (c) You shall immediately return, or if instructed by A2000, destroy all A2000 proprietary and Confidential Information and any A2000 Information then in possession of You, and You shall return all rented equipment, as more specifically provided for in this Agreement; (d) You shall pay A2000 outstanding invoice(s) including the total amount on the termination invoice, plus any reasonable attorney fees, court costs and expenses of collection incurred by A2000.
Non-Solicitation: You agree during the term of this Agreement and for three (3) years after that not to solicit or to hire, directly or indirectly, any employees of A2000 or to engage or acquire the personal Services of any A2000 current or prior employees who were employed by A2000 during the term of this Agreement, including contracted employees of A2000, without the prior written consent of a C-Level officer of A2000, which consent may be withheld for any or no reason. In case of such breach, You agree that A2000 can terminate the Services, and damages incurred by A2000 by Your breach shall be liquidated to an amount equal to the greater of (i) the total fees paid by You for the Services for the trailing twenty-four (24) months preceding the date We identified the breach or (ii) the annual employee salary plus benefits, and other costs incurred yearly by A2000 of the employee for which the breach relates. You agree that such amounts are a reasonable estimate of damages A2000 will suffer due to a breach and are to be assessed as liquidated damages, not as a penalty. A2000’s resort to liquidated damages does not preclude A2000’s right to other remedies, damages, and choices.
Indemnification: You will defend, indemnify, and hold harmless A2000, its parent and holding companies, affiliates, subsidiaries and licensors, and each of their respective employees, officers, directors, agents and representatives (“Related Parties”) from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third person or party claims or audits, actions or proceedings concerning: (a) You or end users’ use of the Services (including any activities under your A2000 account and use by Your employees and personnel); (b) any breach of this Agreement or violation of applicable law by You or any end user; (c) Your content or the combination of Your content with other applications, content or processes, including any claim involving alleged license non compliance or infringement or misappropriation of third-party rights by Your content or by the use, development, design, production, advertising or marketing of Your content; or (d) a dispute between You and any end user. Suppose We must respond to a third-party subpoena or other compulsory legal order or process described above. In that case, You will also reimburse A2000 or any Related Parties for reasonable attorneys’ fees, court costs, and the time and materials for responding to the third-party subpoena or other compulsory legal order or process at our then-current hourly rates.
Currency: Unless otherwise indicated, all dollar amounts referred to in this Agreement are United States Dollars. All amounts owing under this Agreement are in United States Dollars. All amounts denominated in other currencies shall be converted into United States Dollar equivalent amounts per the applicable exchange rate in effect on the date of calculation.
Disclaimers: THE SERVICES ARE PROVIDED “AS IS.” A2000 (as defined above) MAKE NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE SERVICES AND THE RENTAL EQUIPMENT OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICES, RENTED EQUIPMENT OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR RELATED PARTIES DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Limitation of Liability: A2000 SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF IT HAS BEEN ADVISED BY YOU OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, A2000 SHALL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES OR THE RENTED EQUIPMENT, (II) THE DISCONTINUATION, SUSPENSION OR TERMINATION OF ANY OR ALL OF THE SERVICES, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLA, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES OR THE RENTED EQUIPMENT; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, THE AGGREGATE LIABILITY OF A2000 WILL BE LIMITED TO THE AMOUNT YOU PAID UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 4 MONTHS PRECEDING THE CLAIM.
Using Microsoft Software: As part of the Services, You may rent and use specific software (including related documentation) developed and owned by Microsoft Corporation or its licensors from A2000 (“Rented Microsoft Software”). The Rented Microsoft Software is neither sold nor distributed to You, and You may use it solely as part of the Services. You may only use the Rented Microsoft Software in connection with the Services and may not otherwise transfer, use, sell, or license Microsoft software. Microsoft is not responsible for providing any support in connection with the Services. The Rented Microsoft Software or other rented software prices are subject to change without notice to You. However, such costs will be available to You on A2000’s website at Rented Microsoft Software or the Microsoft website. Regarding Microsoft Software Products, You agree to comply with Microsoft’s terms and conditions, the use of Microsoft software, and the specific Rented Microsoft Software You may be using and otherwise use the Rented Microsoft Software only as authorized by Microsoft. You shall comply with Microsoft’s licensing terms and assume all costs resulting from Your non-compliant, unlicensed, or improperly licensed use.
Remedies for non-compliance: If any unlicensed or improperly licensed software, including but not limited to Rented Microsoft Software, is used by You, (1) Your future MRC will be increased to an amount which reflects Your then-current usage and that which is necessary to obtain sufficient licenses and be compliant with Microsoft licensing in accordance with such usage, and (2) You will pay to A2000 an amount which corresponds to the amount You would have paid for the unlicensed or improperly licensed software had you obtained proper licensing from the Start Date of Your Services (the date reflected on Your first A2000 invoice). Such payment shall be due within 30 days of Your receipt of the invoice detailing such amount.
Audit by Microsoft or A2000. In the event an audit by Microsoft or A2000 discovers You have been using unlicensed or improperly licensed Microsoft software or underbilled or not invoiced by A2000, (1) You shall reimburse A2000 for any costs A2000 may incur as a result of Your unlicensed or improper use or underbilled or not invoiced, (2) Your future MRC will be increased to an amount which is sufficient to purchase the licenses corresponding to Your use, and (3) You shall reimburse A2000 for the cost of the licenses which You would have incurred had You obtained proper licensing for the Microsoft software.
Software Licenses. If You bring Your software license to use within the Services, and it is discovered by A2000 that You have been using unlicensed or improperly licensed software, then within 30 days of such discovery, You must order sufficient licenses to correspond to Your current use, and You shall reimburse A2000 for the cost for all the licenses which You would have incurred had You obtained proper licensing from the software manufacturers, plus any expenses incurred by A2000 due to Your use of unlicensed software.
Custom Software Development: If You and A2000 agree to have A2000 develop custom software for You. In such an instance, A2000 will use commercially reasonable efforts to complete the Services in the scheduled timeline mutually agreed by the Parties. A2000 will own all intellectual property rights of its code, code libraries, and derivatives to generate any custom software. A2000 grants You an unlimited, worldwide, royalty-free license to use the custom software according to the proposal provided to You by A2000. A2000 shall not be liable for any consequential, indirect, special, punitive, or incidental damages arising from or related to this type of engagement or the use of the software by You or parties, whether in contract, tort, or otherwise. The total liability of either party shall be limited to the amount paid by You to A2000 to develop the software.
A2000 Customer Referral Program: As part of being an A2000 customer, You can apply to participate in the A2000 customer referral program. This program can be canceled or changed at any time and at the sole discretion of A2000. Once approved by A2000, You will be eligible to receive discounts on Your MRC invoice. For demonstration purposes only, let’s assume You refer company XYZ to A2000, XYZ becomes a client of A2000, and XYZ’s MRC with A2000 is $10,000, of which $8,000 is A2000 cloud computing virtual desktops/servers (VDI). The remaining $2,000 is for third-party marketplace items (software licenses, carrier circuits, and alike). A2000 will give You an $800 ($8,000 X 10%) MRC discount on the VDI portion of the XYZ MRC, and in a proportion of the amount paid by XYZ. If XYZ pays $7,000, your monthly discount will be $700. For further demonstration, if Your MRC invoice was $6,000 and XYZ paid $10,000, of which $7,000 amounts to VDI, the discount will be $700 ($7,000 X 10%), and Your MRC invoice for that month will now be $5,300 ($6,000 – $700). Discount to You will apply when XYZ pays its A2000 MRC in total, and You don’t have outstanding invoices with A2000. Discount to You will not apply if XYZ cancels its services with A2000, and in that case, all Your future MRC invoices from the point of the XYX cancelation of its services with A2000 will be due as if this referral program did not exist.
Severability: If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original part. If such construction is impossible, the invalid or unenforceable part will be severed from this Agreement, but the rest will remain in full force and effect.
Governing Law: This Agreement shall be interpreted, construed, and enforced following the laws of the State of New York and adjudicated in the County of Erie in the State of New York.
A2000 Cloud Services use Restrictions: You may use the Services in any manner only as expressly permitted by this Agreement. You may not attempt to (a) modify, alter, tamper with, share content, resell, or otherwise create derivative works of the Services; (b) reverse engineer; (c) access or use the Services in a way intended to avoid incurring fees. The use granted to you is conditional on your continued compliance with this Agreement and will immediately and automatically terminate if you do not comply with this Agreement.
No License: Nothing contained herein shall be construed as granting or implying any license or other rights to You concerning the patents, trademarks, copyrights, and trade secrets of A2000.
Interpretation: Any reference to You in this Agreement shall mean and include its parent and holding companies, affiliates, subsidiaries, predecessors, successors and assigns, and its directors, officers, employees, and representatives.
Assignability: A2000 may assign any of its rights, duties, or obligations hereunder, in whole or in part, without the prior written consent of You. You may not assign this Agreement without the permission of A2000.
Force Majeure: Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber-terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services). However, this Section will not apply to your payment obligations under this Agreement.