The Terms and Conditions set forth in this Agreement shall apply to and govern the business and services relationship by and between Advance 2000, Inc., (to be referred to as “A2000”, or “We”, as the context may so apply) and Customer (to be referred to as “Customer” or “You”, as the context may so apply).
The Scope of the Terms and Condition: shall apply to and govern the Customer’s use of: (1) the Advance 2000 Cloud products, including without limitation its services, virtual and physical desktops, servers, backups, telephony and other services provided by A2000 (separately and collectively, the “Services”); (2) on-site Labor and; (3) colocation services; (4) A2000 equipment and rentals. For purposes of this Agreement, You and We may be referred to as “Us”.
Service 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 CUSTOMER BY EITHER POSTING A NOTICE OF THE CHANGE ON THE A2000 WEBSITE OR CUSTOMER PORTAL, OR SENDING AN EMAIL OR 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 A2C, 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 CUSTOMER. 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 owner of the data generated by You, as such data may be processed or stored by the Services.
Security: You and We shall use reasonable technical and organizational measures to ensure the security and confidentiality of each party’s proprietary and confidential information in order to prevent, among other things, accidental, unauthorized or unlawful destruction, modification, disclosure, access or loss. You and We shall immediately inform one another of any security breach involving proprietary and confidential information, where “security breach” means any event involving an actual, potential or threatened compromise of the security, confidentiality or integrity of the data, including but not limited to any unauthorized access or use.
You and We shall protect the other party’s proprietary information by employing the same standard of care and safeguards as You and We use to protect our own proprietary information. You shall not use the proprietary information of A2000 for the benefit of You, or for the benefit of any other person or party and We shall not use the proprietary information of You for the benefit of A2000 or any other person or party. You and We shall not disclose any proprietary information to any other person or party, unless as We deem necessary to provide the Services, or as may be authorized in advance and in writing between Us. This Agreement does not grant either of Us any rights, titles, interests or licenses, whether stated, implied or otherwise, to the other’s proprietary information.
For all 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 which is not returned to A2000. You shall not remove or relocate any equipment from the principal office of the Customer or from such other locations as may be approved by A2000 without the prior written approval of A2000. As may be requested from time to time, You shall inform A2000 in writing of the physical location of all said equipment in the Customer’s possession. Any said equipment delivered to You by A2000 shall be returned to A2000 upon demand. You shall be responsible for the costs and expenses to ship or otherwise transport, fincluding delivery and return equipment referenced herein. You shall allow A2000 to enter the premises where the said equipment is located, placed, stored or used at all reasonable times so that We may inspect the operation and condition of the equipment. Upon reasonable request by A2000, You agree to insure the equipment 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. If You are in default of any Agreement with A2000 or You breach any of the Terms and Conditions of this Agreement, without limitation on its rights and remedies, A2000, and its agents, may elect at any time to enter the premises where the said equipment is placed, located, stored or used and to recover the same. All costs, fees and expenses, including, but not limited to, attorney and court costs, moving, storage and repossession expenses shall be and remain the obligation of the Customer. 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 Customer to make the rental payments owed by You to A2000 when the same are due, or upon Customer filling 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 guaranty 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 any piece of rented equipment fails to operate in accordance with the manufacturer’s specifications and operation instructions, provided, however, that the failure to operate is not caused by the acts or omissions of You. Any replacement of rented equipment hereunder shall be completed by A2000 as soon as practicable after You provide notice and You return the rented equipment that has failed to operate in a normal manner.
On-site Labor Services:
• Purchasing Agreements; Statements of Work. Customer will order Labor Services by executing one or more written Statements of Work or Purchasing Agreements as applicable. A2000 shall not be obligated to deliver such Services until Customer and A2000 enter into one or more (a) written statements of work (each a “Statement of Work”) specifically identifying the Services to be delivered by A2000 in connection with the applicable Purchasing Agreement, unless otherwise agreed to by the parties in the applicable Addendum or (b) Purchasing Agreements identifying the applicable Services to be performed. If applicable, a Statement of Work shall identify the Services that Customer requests A2000 to provide, the duration of the Services, the fees payable by Customer for the Services, and the payment structure. To be effective, each Addendum, Purchasing Agreement and/or Statement of Work (as applicable) must be subject to all relevant Terms and Conditions herein and be agreed to in writing by an authorized representative of A2000 and Customer, and once so agreed upon will be incorporated herein by reference Additional or different terms of Customer’s purchase order shall not apply.
• Performance of Services. A2000 will perform the Services using such resources as A2000 deems necessary in accordance with the terms and conditions herein and of each applicable Purchasing Agreement and Statement of Work and on-line “Onsite Service Response”. The Services shall be performed solely in relationship to the licenses to the Licensed Product granted by A2000 to Customer under the Agreement. All terms of the Agreement and Purchasing Agreement that are not specifically amended herein will remain in full effect. Nothing in this Agreement grants Customer any rights to the Licensed Product other than as explicitly stated herein. If A2000 personnel are working on Customer’s premises: (a) Customer 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 are applicable to Customer’s employees and of which Customer notifies A2000 in writing and in advance of the commencement of any Services hereunder.
• Customer Responsibilities. Customer will provide A2000 with access to Customer’s sites and facilities during Customer’s normal business hours as reasonably required by A2000 to perform the Services. Customer will also make available to A2000 any data, information and any other materials reasonably required by A2000 to perform the Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Customer Materials”).
• Relationship of the Parties. A2000 is performing the Services as an independent contractor, not as an employee, agent, joint venturer or partner of Customer. A2000 acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees.
• Fees and Expenses. As consideration for the Services, Customer will pay A2000 fees in accordance with the terms set forth in the applicable Purchasing Agreement. Unless otherwise stated in the applicable Purchasing Agreement, all Services are provided on a time and materials basis. In addition, Customer 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 in accordance with the terms set forth in the Statement of Work upon being provided with receipts and other documentation for all such expenses.
• Ownership. Material and associated intellectual property rights developed by a party prior to or outside of the scope of a Statement of Work (“Pre-Existing Material”) shall be, as between the parties, owned by the developing party. A2000 shall own all rights, title and interest in all scripts, methodologies, processes, and documentation, and all intellectual property rights therein, developed during the provision of the Services involving (i) implementation or installation of products of A2000 (the “Licensed Product”) into Customer’s environment, (ii) configuration of workflow or reporting capabilities of the Licensed Product, and (iii) optimization of the use of the Licensed Product in Customer’s environment (collectively, the “A2000-Owned Work Product”).
• Labor Services Warranty. A2000 warrants that, for a period of ninety (90) days from the completion of the Services (the “Warranty Period”) the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. If during the Warranty Period, A2000 receives from Customer a written notice of the Service’s non-conformance with the provisions set forth in this Section, A2000 will, as Customer’s sole and exclusive remedy and A2000’ entire liability for any breach of the foregoing Labor Services warranty, at its sole option and expense, promptly re-perform the non-conforming Services or refund to Customer the fees paid for the non-conforming Services. THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO THE WARRANTY for ON-SITE LABOR SERVICES.
Managed Colocation Services:
• A2000 Managed Services refers to the operation and maintenance of a Customer’s infrastructure, equipment, facilities, programming, data files, software, services and resources, as specified in an Order. Managed Services may include improving the performance, availability and security of Customer’s applications, including leased hardware and software and managed services for security, server availability, storage, backup and recovery services, server management and maintenance services, software upgrades and patches, hardware upgrades and replacements, data recovery services, load balancing services, backup services, monitoring, optimization, storage, professional services, capacity management services, network intrusion detection, firewalls, VPN services, remote hands and vulnerability scanning.
• A2000, at the customer’s option, can provide network monitoring, physical infrastructure and servers and applications on a 24 x 7 basis as described below:
• A2000 will provide professional services on a time and materials basis. Professional services can include project management of the installation and configuration of a Customer’s new environment, application consulting and management, security consulting, engineering services, network consulting, storage consulting, server clustering and Customer-caused fault repair.
• Customer shall provide to A2000, in the format and within the timeframe set forth in the schedule provided by A2000 for implementing the Managed Hosting Service, any material that is required for A2000 to perform the Managed Services, including, as such is applicable, computer files, images, logos, icons and other information (the “Managed Hosting Material”). A2000 shall not be liable for any delay due to Customer’s inability to respect the timeframe indicated in any implementation schedule or to perform one of the covenants of this Agreement. To the best of Customer’s knowledge the Managed Hosting Material is free from any design and operational defect as well as from any virus. Customer warrants and represents to the best of Customer’s knowledge that the Managed Hosting Material does not infringe on any third party patent, copyright, trademark or trade secret. Customer shall provide, upon request, the proof of its right or title to or interest in any patent, copyright, trademark or other intellectual property right related to the Material.
• Customer acknowledges and agrees that: (i) the performance of any Managed Services is subject to industry best practices, the technical limitations of the devices being managed and the equipment and infrastructure of Customer; (ii) certain Managed Services may expose vulnerabilities and could result in the disruption of services in some circumstances.
• A2000 will contract with third-party vendors to procure the requisite number of server-side licenses. Such licenses will be owned and maintained by A2000 unless separately agreed to by A2000 and Customer in writing. Customer agrees to adhere to the terms and conditions of the manufacturer’s software license agreement (available upon request.) A2000 provides no warrantees or guarantees with respect to third party software.
• The Service may only be used for lawful purposes and the content of the Managed Hosting Material shall comply with all applicable laws. Customer shall not knowingly post, permit access or display information containing any defamatory, offensive, threatening, obscene or otherwise illegal content or material protected by copyright, trade secret, patent or any other intellectual property laws. A2000 reserves its right to terminate the Agreement and cease providing the Service in the event that it determines that the Managed Hosting Material violates any applicable law or regulation.
• If back-up services are included in the Managed Services offering or are included on an Order, A2000 will use reasonable efforts to comply with Customer’s back-up preferences. Under no circumstances will A2000 have any liability or responsibility for the loss of back-up data, content, or other information, unless caused by the negligence or willful misconduct of A2000. In addition, Customer grants to A2000 a non-exclusive royalty-free, worldwide right and license to digitize, convert, make copies of, and archive Customer’s data, content and information for the purpose of performing their obligations under this Agreement.
• Under no circumstances is A2000 liable or responsible for security breaches, viruses, hacked servers, worms, lost or stolen data, or corrupted data, unless caused by the negligence or willful misconduct of A2000.
• Remote Hands off Support. At the request of Customer, A2000 may assist Customer in performing light duties or correcting minor problems which may include:
o Rebooting of equipment.
o Pressing of reset or other readily accessible buttons or switches.
o Reconfiguration of non-restricted cables with push-on type connectors.
o Following Customer instructions in attempt to bring a system online where customer can access it remotely if possible.
• Remote Hands service is provided Free of Charge as a courtesy to Customer. Remote Hands service is limited to 30 minutes per month and will be confined to assisting Customer execute tasks when remote execution of such task is not possible. After 30 minutes the Customer will be charged pursuant to customer’s choice of support plan.
• Support Fees are waived if problem is solely due to A2000 Network or Datacenter facility and if it is found the Customer Equipment were not cause or reason for existence of the problem. A2000 provides Network and Connectivity Guarantees outlined in A2000. SLA (Service Level Agreement) which is available to you by sending request to Suppor@A2000.com, no other Guarantees or Warrantees are provided or promised to Customer. The SLA outlines the only remedy provided to Customer in the event of any outage.
Fees and Payment: The fees, costs and expenses for the Services and for the rental equipment are set forth on Exhibits to this Agreement. Each Exhibit may be amended by Us from time to time, and each Exhibit is incorporated herein by this reference. You agree to pay in full all invoices by A2000 for the Services, rental equipment and other charges related to or generated by the Services within the time period specified on each invoice, as measured from the date of invoice. You agree that all invoices are presumed accurate and shall be binding on You, unless You provide a written notice of the disputed charge that is received by A2000 within fifteen (15) days from the date of the invoice for which a dispute may apply. If You dispute a charge in good faith, You may withhold payment of the specific charges in dispute, provided, that You: (i) pay all of the undisputed; and (ii) within fifteen (15) days of the payment due date under the applicable invoice, You provide A2000 with a written explanation of and documentary support for the dispute. You and We will cooperate and exercise good faith to resolve any disputed charges within thirty (30) days from the date of the invoice for which You may provide a written dispute and supporting information in a timely manner as set forth herein. Any written dispute that does not have supporting documents or information shall be deemed to be invalid, and You agree to pay the full amount due and owing under the applicable invoice. If We determine, in good faith, that the disputed charge is valid after review of the dispute notice and supporting documentation from You, We will notify You of the determination and, within five (5) business days thereafter, You agree to pay the charges in full for which the dispute by the due date. For illustration purposes, if an invoice for Services, equipment rentals and other fees and costs is dated January 1, a dispute must be made in writing and delivered to A2000 no later than January 16 and by January 22, A2000 will determine the validity of any dispute with payment to be made no later than January 30 (i.e. thirty (30) days from the date of the invoice). If the invoice is not paid on or before January 30, a notice will be provided to You and payment will be due no later than February 10 along with applicable interest and fees, costs and expenses for non-payment. Any non-payment by You shall be deemed to be a default and breach of this Agreement. If You fail to pay any invoice for Services, for equipment rentals, for costs, fees and expenses, including without limitation, interest, late charges and collections, then in addition to and not substitution for all other rights and remedies of A2000, A2000 may elect to discontinue Services upon notice to You, to demand the return of all equipment and property of A2000 and to cease providing help desk and other assistance related to the Services. You will remain responsible for the payment of all fees, costs, expenses (including collection costs and attorney fees) for the Services under this Agreement and for the payment of all fees, costs and expenses paid by A2000 to third persons or parties on your behalf in connection with, related to or arising from the Services.
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 any reduction or set off. If A2000 is obligated to collect or pay taxes, the taxes will be invoiced to You for payment in a timely manner, 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 an emergency or security issue is identified by A2000, We reserve the right and authority to automatically suspend the offending use or other logistics that may be causing the emergency or security issues until such time as 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 End User Account or the Services for any reason without prior notice to You, at Customer’s request, We will provide You the reasons for the suspension as soon as is reasonably possible.
Data Transfer: As part of providing the Services, A2000 may store, transfer and/or process Customer data in the normal course of operations. You consent to and authorize the storage, transfer and/or processing of Customer data by A2000.
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 neither A2000 nor any of its employees, agents, vendors and representatives shall be held responsible or liable to You or to any third person or party in any manner or for any purpose hereunder, and You are solely responsible and shall be and remain liable for Your content or for any actions arising or resulting therefrom. At the discretion of A2000, We may elect to track information regarding the use of 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 are and 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. In the exercise of the Customer’s judgment, You should take such actions as You deem necessary or appropriate to protect the authentication keys and security credentials of the Customer. You are hereby advised that any actions taken by You or any third persons or parties using or employing authentications and/or credentials of the Customers shall be deemed to 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 of Spam/Unsolicited email, including but not limited to:
1. Pyramid schemes;
2. Chain letters;
3. Sending any mail in contravention of the CAN SPAM Act of 2003 or other applicable state or federal laws and regulations; and Forgery: Altering or obscuring mail headers or assuming the identity of a sender 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:
1. Unauthorized probes and port scans for vulnerabilities;
2. Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems;
3. Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled;
4. Unauthorized network monitoring or packet capture;
5. Forged or non-standard protocol headers, such as altering source addresses, etc.;
6. Flooding; Denial of Service (DoS) of any kind; and
7. You may not operate network services such as:
• Open proxies.
• Open mail relays.
• Open, recursive domain name servers.
Services and Applications. The servers for the Services are hosted in locations designated by A2000 and are subject to all applicable federal, state and local laws. You are responsible for maintaining licenses and adhering to the license terms of any software You elect to run as part of the Services.
Asset Changes: You may increase the number of Assets (virtual desktops, servers and or phones. Memory and/or storage size) at any time. We will automatically account for any increases and adjust your monthly billing and setup fee as priced in your A2000 Cloud Agreement. Elections by You to increase the number of Assets shall be made to A2000 in writing and subject to A2000 approval. A request for a significant increase in the number of Assets may require the execution of a new A2000 Cloud Agreement and this shall be determined by A2000. You may also reduce the number of Assets by up to 20% from their highest amount reached. Whether in one reduction or by a series of reductions the number of Assets can never be below 20% of that highest amount reached.
For illustration purposes only:
Example 1. If Your initial A2000 Cloud Agreement is for 100 Assets, and You elect to increase the number of Assets by 50, Your total Assets is now 150. Reductions of Assets cannot be more than 30.
Example 2. If Your initial A2000 Cloud Agreement is for 200 Assets and You elect no increases in Assets, Your maximum allowable Asset reduction(s) total shall not exceed 40.
Termination by Customer: You may elect to terminate this Agreement prior to the expiration of the term You selected (as such term or period may be more specifically set forth on the applicable schedule to this Agreement) subject to the following conditions and the payment of the Early Termination Fee:
1. You shall provide A2000 with at least sixty (60) days advance notice in writing of the election by You to terminate the Agreement (the “Termination Notice”).
2. On the sixty-first (61st) day after A2000 receives the Termination Notice, all Services being provided by A2000 under this Agreement shall cease and be discontinued 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 effective termination date.
3. 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 equipment, proprietary information and other property of A2000 to the principal office of A2000, or as otherwise reasonably directed by A2000.
4. 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. The Early Termination Fee shall be calculated by A2000 by multiplying the number of months Services were provided to You up to the effective date of termination by an amount equal to the applicable Monthly Recurring Cost for the period You selected for the Agreement minus the MRC for a Month-to-Month period. For illustration purposes only, if You elected to have a 3 Year Agreement with A2000 at a MRC of $1,500.00 and You elect to terminate effective 12 months into the 3 Year period with the Month-to-Month MRC in effect at the date notice is received from You to terminate being $2,000 at the time of termination, then the Early Termination Fee would be $6,000.00 [$2,000 – $1,500 = $500.00 X 12 months = $6,000.00]. If You elected a 5 Year period, the methodology for the calculation of the Early Termination Fee shall apply, but the numbers will be adjusted to reflect the applicable dollar amounts and time periods.
5. A2000 shall provide You with an invoice or other statement for the Early Termination Fee and for 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. If additional fees, costs, usage charges and other expenses related to or resulting from the Services and the termination of the Services are incurred by A2000 after the Termination Invoice is prepared and provided to You, You agree to pay any additional fees, costs, charges and expenses within thirty (30) days of receipt of any additional or supplement invoice or statement from A2000.
6. Upon payment of the Termination Invoice as required above in subsection 5, A2000 will provide You with a period of thirty (30) days to allow You to export or otherwise transfer the data maintained or stored for You as part of the Services, as You may so designate and determine, provided that any such export or transfer is made by remote access only and consistent with the policies and procedures of A2000. You shall be responsible for the payment of all fees, costs and expenses for the export or transfer of the data.
7. Notwithstanding the provisions of subsection 6 above, on the thirty-second (32nd) day from the date of the Termination Invoice, A2000 will permanently delete all Customer data from its system without recourse or liability to You.
8. If we have amended the length of an existing agreement, then Your Termination invoice shall be equal to the sum of all the months remaining under the existing agreement in addition to length of the amended portion in addition to any termination fees as stated hereunder. For illustration purposes only, If Your agreement is for 36 months and the original agreed Monthly Recurring Cost (MRC) was reduced to $1,500 from the month-to-month rate of $2,000 and in the 30th month, We agree to extend the agreement for 12 month (anything different than our month to month, 36 month or 60 month) making the agreement a 48 month agreement and you elect to terminate Your agreement on month 35 then your termination invoice shall be (48 – 35) 13 months times $1,500 ($19,500) in addition to any past due invoices or other fees owed to A2000.
9. If your agreement goes beyond its term, then the MRC shall default to month-to-month amount. For illustration purposes only if You have a 36 month agreement and Your MRC is $1,500 and the MRC amount for month-to-month was $2,000 at the time your contracted with A2000, then your new MRC starting on month 37 shall be $2,000 and ongoing until an new agreement with A2000 is implemented.
Termination or Suspension by A2000: We may elect to terminate this Agreement, suspend or discontinue the Service “For Cause”, as defined below. For cause, shall mean: (a) immediately if You attempt a denial of service attack or commit other acts that are detrimental or potentially damaging to the Services, including the A2C, 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 service 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 Customer, failure to continue the business of Customer, assignment for the benefit of creditors of Customer, 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 event of breach or default, except for events where We reserved the right for immediate termination hereunder. If You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to Us is invalid or charges are refused for such payment mechanism, and You fail to cure such payment obligation default or correct such payment mechanism problem within such ten (10) day period, at the discretion of A2000, We may suspend Customer’s right and license to use the Services, or terminate this Agreement in its entirety, and all Services thereunder.
Effect of Suspension or Termination by A2000:
1. Suspension. Upon any suspension of Customer’s 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 thereafter with respect to the Services; and (c) all of Customer’s rights with respect 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 be incurred after the date of termination with respect to 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 Us, destroy all A2000 proprietary and confidential Information and any A2000 Information then in possession of Customer, 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 a period of three (3) years thereafter not to solicit or to hire, directly or indirectly, any employees or agents 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 prior written consent of an officer of Advance 2000, which consent may be withheld for any or no reason. If You breach the provisions of this Section, A2000 may assess as liquidated damages an amount equal to the greater of: (i) the total fees paid by You for the Services for the trailing twenty-four (24) month period immediately preceding the month when the breach was identified by A2000 or (ii) the total amount of the base salary of the subject employees or individuals for which the breach relates, plus the costs of all medical, dental and other benefits paid or incurred by A2000 for such employees or individuals. You agree that such amounts are a reasonable estimate of damages A2000 will suffer as a result of a breach by You hereunder; and are to be assessed as liquidated damages and 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, actions or proceedings concerning: (a) any Customer or end users’ use of the Services (including any activities under your A2000 account and use by Customer’s employees and personnel); (b) any breach of this Agreement or violation of applicable law by You or any end user; (c) Customer’s content or the combination of Customer content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer’s content or by the use, development, design, production, advertising or marketing of Customer’s content; or (d) a dispute between You and any end user. If We or any Related Parties are obligated to respond to a third party subpoena or other compulsory legal order or process described above, You will also reimburse A2000 or any Related Parties for reasonable attorneys’ fees and court costs, as well as for 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 in United States Dollars. All amounts owing under this Agreement are in United States Dollars. All amounts denominated in other currencies shall be converted in the United States Dollar equivalent amount in accordance with the applicable exchange rate in effect on the date of calculation.
Disclaimers: THE SERVICES ARE PROVIDED “AS IS.” WE AND OUR RELATED PARTIES (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 AND OUR RELATED PARTIES WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR RELATED PARTIES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMERS INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMERS 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 SLAS, 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 CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S 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 CUSTOMER’S CONTENT OR OTHER DATA. IN ANY CASE, THE AGGREGATE LIABILITY OF A2000 AND OUR RELATED PARTIES UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 4 MONTHS PRECEDING THE CLAIM.
Using Microsoft Software: As part of the Services, You may be allowed to use certain software (included related documentation) developed and owned by Microsoft Corporation or its licensors. This software is neither sold nor distributed to You and You may use it solely as part of the Services. You may not transfer it outside the Services. Microsoft is not responsible for providing any support in connection with the Services. A2000 may change the prices charged to Customer for such Microsoft Software Products on thirty (30) days prior written notice due to increases in the prices charged by vendor. With reference to Microsoft Software Products, Customer hereby agrees to comply with all terms and conditions set forth in the “Customer License – Terms Notice Regarding Use of Microsoft Software Products” as of the date hereof with respect to such Microsoft Software Products as found at http://www.microsoft.com/licensing/, and to otherwise cooperate with A2000 to use the Microsoft Software Products only as authorized by Microsoft. Customer may request a copy of the Microsoft terms from A2000 at any time. Customer acknowledges that the following detail may change based on changes to the services solution or unidentified requirements associated with custom solutions. Customer shall be compliant with Microsoft’s licensing terms and shall solely assume all cost associated with out of compliance penalties if incurred.
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 portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
Governing Law: This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of New York and shall be adjudicated in the County of Erie in the State of New York.
A2C use Restrictions: You may use the Service 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 Service; (b) reverse engineer; (c) access or use the Service 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 Customer with regard to the patents, trademarks, copyrights and trade secrets of A2000.
Interpretation: Any reference to Customer 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 Customer. Customer may not assign this agreement without the consent of A2000.
Force Majeure: Neither party is liable for any delay or failure of performance if such delay or failure is caused by a Force Majeure Event. Force Majeure Event means an event beyond the reasonable control of a party, 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.
Entire Agreement: This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and shall be deemed to supersede all prior and contemporaneous agreements, representations, and understandings, whether written or oral, all of which shall be deemed to have been merged into this Agreement.