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 and as the context may apply, Advance2000 shall be referred to as “A2000” or “We” and the Customer shall be referred to as “You” or “Your” and both parties shall be referred to as the “Parties” or “Us”.
This Agreement shall govern all services provided by A2000 including and not limited to: cloud, compute, telephony, virtual and physical desktops, servers, backups, colocation, equipment rentals, on-site Labor, remote support 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 EITHER 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 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.
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 rented equipment without the prior written approval of A2000. Any 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, including 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 You. 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 the rental payments owed by You to A2000 when the same are 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 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.
- Statements of Work. Labor can be purchased from A2000 by executing a written Statements of Work as applicable in Your Agreement.
- A2000 will perform the Services as deems necessary in accordance with the terms and conditions herein, agreed upon Statement of Work and “Onsite Response”. 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 are applicable 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 are 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. As consideration for the Services, You will pay A2000 fees in accordance with the terms set forth in the applicable in Your Agreement. 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 in accordance with the terms set forth 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 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.
- Labor Warranty. A2000 warrants that, for a period of 5 (5) days from the completion of the Services (the “Warranty Period”). If during the Warranty Period, A2000 receives from You a written notice of the Services non-conforming with the provisions set forth in this Section, A2000 will at its option, re-perform the non-conforming Services. THE FOREGOING STATES YOUR SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO THE WARRANTY for ON-SITE LABOR SERVICES.
- A2000 Colocation Services 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 Managed Services is subject to the technical limitations of the devices being managed.
- If A2000 contracts with a third-party to procure licenses. Such licenses will be owned and maintained by A2000 unless separately agreed by Us.
- 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 Your back-up preferences. Under no circumstances will A2000 have any liability or responsibility for the loss of back-up 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 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, corrupted data, ransomware or malicious activity.
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 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 support 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 party on your behalf in connection with, related to or arising from the Services.
Start Date: Agreement Start Date term shall start from the date specified on Your first MRC invoice sent to you by A2000 and not from the signature date stated on Your agreement. For illustration purposes only: if You sign a 3-year agreement on January 1, 2020 and Your first MRC invoice is dated March 1, 2020, then the Your agreement shall end in March 1, 2022.
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 Your request, A2000 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 Your data in the normal course of operations. You consent to and authorize the storage, transfer and/or processing of Your 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 Your judgment, You should take such actions as You deem necessary or appropriate to protect the authentication keys and security credentials of You. You are hereby advised that any actions taken by You or any third persons or parties using or employing authentications and/or Your credentials 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:
- 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 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:
- Unauthorized probes and port scans for vulnerabilities.
- Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems.
- Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.
- 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 and or any 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 any increases or decreases and adjust your monthly billing as 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 amount less than Your Minimum Monthly Commitment (MMC), You will be billed the MMC as Your new MRC until such time when the resources You are consuming total an amount that exceed the MMC. When Your server consumption of storage reaches a threshold of 95% usage, A2000 shall automatically expand Your storage to a 90% usage to maintain Your data’s integrity. You further agree that all of this is not a material change to the Services provided to You.
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, You will be billed the MMC of $8,000 (Your new MRC), even so the cost of 50 desktops amount 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 prior to the term selected, such term or period may be more specifically set forth on the applicable schedule of Your Agreement and 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 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.
- 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 if applies, 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. 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 of a Month-to-Month (MTM) rate.
For illustration purposes only:
Example 1. If You have a 3 Year Agreement, Your MTM rate is $2,000, Your outstanding invoices are $1,200, MRC is $1,500 and You elect to terminate Your agreement after 16 months. Your Early Termination Fee shall be (($2,000 – $1,500) X 16) + $1,200) = $9,200.
Example 2. If You a 5 Year Agreement, Your MTM rate is $2,000, Your outstanding invoices are $1,200, Your MRC is $1,000 and You elect to terminate Your agreement after 16 months. Your Early Termination Fee shall be (($2,000 – $1,000) X 16) + $1,200) = $17,200.
- A2000 shall provide You with an invoice 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.
- 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.
- 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 Your data from its system without recourse or liability to You.
- If your agreement goes beyond its term, 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 that go beyond their term and shall remain in effect until a new agreement with A2000 is implemented.
Termination or Suspension by A2000: We 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 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 Your 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 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 thereafter with respect to the Services; and (c) all of Your 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 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 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 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 noncompliance 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. 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.” 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 AND UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY 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 be allowed to rent and use certain software (included 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 prices of the Rented Microsoft Software or other rented software are subject to change without notice to You, though such prices will be available to You on A2000’s website at Rented Microsoft Software. With reference to Microsoft Software Products, You hereby agree to comply with Microsoft’s terms and conditions which pertain to the general use of Microsoft software and the specific Rented Microsoft Software You may be using, and to otherwise use the Rented Microsoft Software only as authorized by Microsoft. You shall be compliant with Microsoft’s licensing terms and shall solely assume all cost associated 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 payment.
Audit by Microsoft. In the event an audit by the Microsoft Corporation discovers You have been using unlicensed or improperly licensed Microsoft software, (1) You shall reimburse A2000 for any costs A2000 may incur as a result of Your unlicensed or improper use, (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.
Bring Your Own. If any unlicensed or improperly licensed software is used, then within 30 days of Your knowledge of such unlicensed or improper use or notification of such unlicensed or improper use by A2000, (1) You must order sufficient licenses which corresponds to Your then current use and (2) You shall reimburse A2000 for the cost of the licenses which You would have incurred had You obtained proper licensing for the Microsoft software plus any expenses incurred by A2000 due to Your use of unlicensed software.
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.
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 with regard to 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 consent 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). This Section will not, however, apply to your payment obligations under this agreement.