Azure Hosting Agreement
This AGREEMENT (the "Agreement") is entered into by and between FS Operations Corp. (DBA TAM Software) ("Host") and the client identified in the applicable order form ("Client") (each being referred to individually as a "Party" and collectively as the "Parties"). This Agreement becomes effective on the date Client executes an order form that incorporates this Agreement by reference (the "Effective Date").
Host offers Internet hosting services for websites and applications, and Client desires to engage Host to provide such services on the terms set forth in this Agreement.
By executing an order form that references this Agreement, or by using the Services, Client agrees to be bound by the following terms and conditions:
1. Services
1.1 Hosting Services
Subject to full and timely payment of all applicable fees due hereunder and Client's compliance with this Agreement, Host agrees to provide Client with services for hosting of a site or sites on the World Wide Web portion of the Internet (the "Web Site") as set forth or described in Schedule A hereto (the "Hosting Services"). Host reserves the right to modify the technical specifications and delivery methods for the Hosting Services at any time, provided that such modifications do not materially diminish the overall functionality of the Services. Host shall use commercially reasonable efforts to provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Client expressly agrees that Host is responsible only for providing the Hosting Services as specifically set forth in Schedule A, and Host has no obligation to provide any services or perform any tasks not specifically set forth in Schedule A. Host reserves the right to immediately suspend or limit the Services if Client fails to pay any fees when due, breaches any provision of this Agreement, or if Host reasonably believes that Client's use of the Services violates applicable law or may harm Host's systems or other clients. To the extent that Client wishes to receive from Host, and Host agrees to provide to Client, services other than the Hosting Services (collectively, the "Additional Services"), such Additional Services and the arrangements for their provision shall be set forth in a separate written addendum to this Agreement which is duly executed by both Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the "Services").
1.2 Client Content
Client shall provide to Host all materials comprising the Web Site, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the "Client Content"), which shall be in a format specified by Host. The Client Content shall be properly adapted and translated by Client for posting to the Host server (the "Host Server") so that the Web Site may be accessed via the Internet. Client is solely responsible for the accuracy, quality, legality, and suitability of all Client Content. Host has no obligation to review, monitor, or validate Client Content prior to posting, and Client acknowledges that Host is acting solely as a passive conduit for the distribution of Client Content.
1.3 Availability of Web Site
Host will use commercially reasonable efforts to make the Web Site accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week. However, Client acknowledges that the Services may be subject to interruption or unavailability due to scheduled maintenance, required repairs, upgrades, Force Majeure events, third-party service provider failures, Internet congestion or failures, telecommunications failures, Client's acts or omissions, security incidents, denial of service attacks, or any other causes beyond Host's reasonable control. In the event of any loss or interruption of Hosting Services that exceeds a continuous period of twenty-four (24) hours and is directly caused by Host's systems or infrastructure (excluding all causes described in the preceding sentence), Client's sole and exclusive remedy, and Host's sole and exclusive liability, shall be a credit against future Hosting Services fees equal to a pro-rata portion of the monthly Hosting Services fees for the period of such downtime. No credits will be provided for downtime of less than twenty-four (24) continuous hours. Client must request any credit in writing within thirty (30) days of the downtime occurrence or the right to such credit is waived. This credit remedy does not apply to any Additional Services.
1.4 Domain Name Registration
Client is solely responsible for providing Host with a registered domain name or for selecting and registering a domain name. If Client requests that Host register a domain name on Client's behalf, Host will do so as a convenience to Client, provided that such domain name is available for registration and does not violate any registration service's policies or any law or regulation. Client acknowledges that Host has no control over domain name availability, registration processes, or registration service policies. Client agrees to promptly reimburse Host for any fees paid by Host to any domain name registration service with respect to the registration, transfer, or maintenance of any domain name, plus an administrative fee of fifteen percent (15%). Host has no liability for any issues related to domain name registration, availability, disputes, or renewal.
1.5 Domain Name Disputes
In the event of any dispute or cause of action arising out of or related to Client's domain name used in connection with the Web Site, Host may, in its sole discretion and upon Client's written request, attempt to register an alternate domain name chosen by Client and attempt to make the Web Site available over the Internet under such alternate name. Any such assistance by Host is provided as a convenience to Client without any guarantee of success. Client agrees to promptly reimburse Host for any fees paid by Host to any domain name registration service with respect to the registration and maintenance of such alternate domain name, plus an administrative fee of fifteen percent (15%), and Client shall pay Host's then-current hourly rates for any time spent by Host personnel in connection with such domain name issues.
1.6 Additional Storage and Transfer
In the event that the Web Site requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Host may, in its sole discretion: (a) upgrade the level of Hosting Services at Host's then-current rates, (b) provide additional incremental storage at Host's then-current rates, or (c) suspend or throttle the Services until Client upgrades to an appropriate service level. Client will at all times be responsible for any excess storage or transfer fees incurred, and Host will invoice Client monthly for any such fees. Excess usage fees are due within fifteen (15) days of invoice date. Host reserves the right to immediately suspend Services if Client fails to pay excess usage fees when due or if Client's usage patterns threaten the stability or performance of Host's systems or other clients' services.
1.7 Updates
As part of the Hosting Services, Host shall provide Client with a system and the necessary software to allow Client to transmit revisions, updates, deletions, enhancements or modifications (the "Updates") to a staging server designated by Host (the "Staging Server"). Host shall update the Host Server with the Updates according to a schedule agreed upon by the Parties in writing, provided that: (i) Client is current on all payment obligations hereunder and is not otherwise in breach of this Agreement; (ii) such Updates are within the scope of the Hosting Services under this Agreement; (iii) such Updates are in a form and format specified by Host that may be placed on the Host Server and accessed over the Internet; (iv) such Updates do not, in Host's reasonable judgment, pose security risks, violate applicable laws, or negatively impact Host's systems or other clients; and (v) Client has adequately tested such Updates on the Staging Server. Host reserves the right to refuse to implement any Updates that do not meet these conditions. If the Updates are not within the scope of the Hosting Services under this Agreement, such Updates shall not be made unless and until the Parties enter into a Services Addendum setting forth the terms and conditions of such Updates.
2. License and Proprietary Rights
2.1 Proprietary Rights of Client
As between Client and Host, Client Content shall remain the property of Client, subject to the licenses granted herein. Client hereby grants to Host a non-exclusive, worldwide, royalty-free, sublicensable license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to access, use, reproduce, modify, adapt, translate, exhibit, publish, transmit, distribute, perform, display, and create derivative works from Client Content as necessary or useful to: (a) render the Services to Client under this Agreement; (b) optimize, maintain, and improve Host's systems and services; (c) ensure security and prevent fraud or abuse; (d) comply with applicable laws and legal processes; (e) enforce this Agreement; and (f) develop and improve Host's products and services. Host may sublicense these rights to its subcontractors and service providers as necessary to provide the Services. This license survives termination of this Agreement solely to the extent necessary for Host to comply with legal obligations or retain records in accordance with Host's standard document retention policies.
2.2 Proprietary Rights of Host
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Host to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Host Materials") shall remain the sole and exclusive property of Host or its
suppliers. Client acknowledges and agrees that Client acquires no ownership rights or licenses to Host Materials except as expressly set forth in this Agreement. To the extent, if any, that ownership of the Host Materials does not automatically vest in Host by virtue of this Agreement or otherwise, Client hereby irrevocably transfers and assigns to Host all rights, title and interest which Client may have in and to the Host Materials. Client acknowledges and agrees that Host is in the business of designing and hosting Web sites and providing related services, and that Host shall have the unrestricted right to provide to third parties services which are the same or similar to the Hosting Services, to use or otherwise exploit any Host Materials in providing such services, and to use any general knowledge, skills, experience, ideas, concepts, know-how, and techniques developed or acquired during the performance of Services under this Agreement. Client shall have no right to decompile, reverse engineer, or otherwise attempt to derive source code or underlying algorithms from any Host Materials.
2.3 Confidentiality
Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement.
3. Client Content
3.1 Client Content
Client assumes sole responsibility for: (a) acquiring any authorization(s) necessary for hypertext links to third party web sites; (b) the accuracy, legality, and appropriateness of all materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (c) ensuring that the Client Content does not infringe or violate any right of any third party or any applicable law or regulation. Host reserves the right, in its sole and absolute discretion, to exclude, remove, or disable access to any hypertext links to third party web sites, any Client Content on the Web Site, or other content not supplied by Host which, in Host's sole judgment, may violate or infringe any law or third-party rights, violate this Agreement, expose or potentially expose Host to any liability or reputational harm, or is otherwise objectionable to Host. Host may immediately suspend the Services without prior notice if Host determines that Client Content violates this Agreement or poses any risk to Host. Client acknowledges that Host's exercise of these rights does not create any obligation on Host to monitor or exert editorial control over the Web Site, and Host has no liability for failing to exercise these rights.
3.2 Limitations on Client Content
Client shall not place or cause to be placed on the Web Site any Client Content that: (a) is obscene, defamatory, libelous, threatening, harassing, abusive, or malicious; (b) infringes on or violates any applicable law, regulation, or right of a third party, including, without limitation, intellectual property rights, privacy rights, export control laws, or consumer protection laws; (c) contains malware, viruses, or other harmful code; (d) facilitates illegal activity or violates any proprietary, contract, or moral right; (e) imposes an unreasonable load on Host's infrastructure; (f) interferes with other clients' use of Host's services; or (g) otherwise exposes or could reasonably expose Host to civil or criminal liability, regulatory action, or reputation harm. Client shall continuously monitor the Web Site to ensure compliance with this Section. Any violation of this Section shall be deemed a material breach of this Agreement, and Host may immediately suspend or terminate the Services and this Agreement without prior notice and without any refund of fees. Client shall remain liable for all fees through the end of the then-current term.
3.3 Chat Rooms and Bulletin Boards
Chat rooms, bulletin boards, discussion forums, comment sections, user reviews, and any other features that allow third-party users to post or submit content to the Web Site shall not be included in the Web Site and may not be implemented by or on behalf of Client without prior written approval of Host. If Host approves any such features in writing, Client shall be solely responsible for monitoring and moderating all user-generated content and shall indemnify Host for any claims arising from such content. Host may revoke approval and require removal of such features at any time in its sole discretion.
3.4 Identification of Host
Host may include on any page of the Web Site a statement such as “Powered by TAM,” “Hosted by TAM Intelliware,” or similar branding, and/or provide a link to the Host web site. Host may also identify Client as a Host client in Host's marketing materials, case studies, and client lists. Client agrees not to remove, obscure, or modify any Host branding without Host's prior written consent.
4. Fees and Taxes.
4.1 Hosting and Managed Services Fees
Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in the order form. Host expressly reserves the right to change its rates charged hereunder for the Services at any time upon thirty (30) days' written notice to Client. If Client does not agree to any fee increase, Client's sole remedy is to terminate this Agreement in accordance with Section 8.2, provided that Client provides written notice of termination within fifteen (15) days of receiving notice of the fee increase. Continued use of the Services after the effective date of any fee increase constitutes Client's acceptance of the new fees.
4.2 Additional Services Fees
Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host.
4.3 Out-of-Pocket Expenses
Client shall pay, or promptly reimburse Host for, any out-of-pocket expenses, including, without limitation, travel and travel-related ex-penses, incurred by Host in connection with the performance of the Services.
4.4 Late Payment
All fees are due upon issuance of the invoice. If Client fails to pay any fees when due, late charges of the greater of one and one-half percent (1.5%) per month or the maximum allowable under applicable law shall accrue on the unpaid balance from the due date until paid in full. In addition, failure of Client to fully pay any fees within thirty (30) days after the applicable due date shall be deemed a material breach of this Agreement, and Host may, in its sole discretion: (a) immediately suspend performance of the Services without prior notice; (b) immediately terminate this Agreement; and/or (c) pursue any other remedies available at law or in equity. Any such suspension or termination does not relieve Client from paying all past due fees plus accrued interest and late charges. In the event Host engages in collection efforts or legal action to recover unpaid fees, Client shall be liable for all costs associated with such collection or action, including, but not limited to, collection agency fees, attorneys' fees (including in-house counsel fees calculated at Host's standard hourly rates), court costs, and any other expenses incurred by Host. Host may also report delinquent accounts to credit reporting agencies.
4.5 Taxes
All fees payable to Host are exclusive of, and Client shall pay or reimburse Host for, all sales, use, transfer, privilege, excise, value-added, goods and services, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement or the performance by Host under this Agreement, excluding only taxes based solely on Host's net income. If Client is exempt from any such taxes, Client shall provide Host with valid tax exemption certificates prior to the invoice date, and Host shall have no obligation to refund taxes paid due to Client's failure to timely provide such certificates.
5. Warranties
5.1 Host Warranties
Host represents and warrants that: (a) Host has the power and authority to enter into and perform its obligations under this Agreement; and (b) Host shall perform the Services using commercially reasonable efforts consistent with general industry standards.
5.2 Client Warranties
Client represents and warrants that: (a) Client has the full power and authority to enter into and perform its obligations under this Agreement; (b) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate, misleading, or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, privacy laws, consumer protection laws, or any proprietary, contract, moral, or privacy right or any other third party right; (c) Client owns the Client Content or otherwise has all necessary rights and licenses to place the Client Content on the Web Site and to grant the licenses set forth in this Agreement; (d) Client has obtained and shall maintain any authorization(s) necessary for hypertext links from the Web Site to other third party Web sites; (e) Client's use of the Services complies and shall comply with all applicable laws and regulations; (f) Client shall implement and maintain reasonable security measures for any systems or accounts used to access the Services; and (g) Client shall promptly notify Host in writing of any claim, complaint, or legal process related to the Web Site or Client Content. These warranties are continuing and shall be deemed remade each time Client uploads or modifies Client Content.
5.3 Disclaimer of Warranty
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. HOST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. HOST DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT'S REQUIREMENTS OR EXPECTATIONS. HOST MAKES NO WARRANTIES REGARDING ANY THIRD-PARTY SERVICES, SOFTWARE, OR INFRASTRUCTURE USED IN CONNECTION WITH THE SERVICES. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT CLIENT'S OWN DISCRETION AND RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT'S SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR DATA.
6. Indemnification
6.1 Client
Client agrees to indemnify, defend, and hold harmless Host, its affiliates, subsidiaries, officers, directors, employees, agents, suppliers, and licensors, and defend any action brought against same with respect to any claim, demand, cause of action, debt, liability, loss, damage, or expense (including attorneys' fees and costs) arising from or related to: (i) any breach or alleged breach of any of Client's representations, warranties, or obligations hereunder; (ii) any negligence, gross negligence, or willful misconduct of Client or its employees, contractors, or agents; (iii) any Client Content or other material provided by Client or placed on the Web Site by or on behalf of Client, including any claim that such content infringes or violates any rights of third parties, including without limitation, intellectual property rights, rights of publicity, rights of privacy, or any other proprietary or personal rights; (iv) Client's use or misuse of the Services; (v) any security incident, data breach, or unauthorized access resulting from Client's acts, omissions, or failure to implement reasonable security measures; (vi) any violation by Client of applicable laws or regulations; (vii) any claims by Client's end users or customers; or (viii) any third-party claims arising from hypertext links from the Web Site to third-party sites. This indemnification obligation shall survive termination of this Agreement.
6.2 Host
Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, and employees, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, but only to the extent that such claim arises directly and solely from Host's gross negligence or willful misconduct in providing the Hosting Services, and provided that such claim does not arise in any way from: (i) Client Content or any material provided by Client; (ii) Client's use or misuse of the Services; (iii) any modification of the Services by anyone other than Host; (iv) any third-party services, software, or infrastructure; or (v) any act or omission of Client or its employees, contractors, or agents.
6.3 Notice
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations rela-tive to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party's written consent, which shall not be unreasonably withheld.
7. Limitation of Liability
HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. HOST SHALL HAVE NO LIABILITY FOR: (A) UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, CORRUPTION, OR DESTRUCTION OF CLIENT'S DATA, FILES, PROGRAMS, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS, OR DEVICES, OR ANY SECURITY INCIDENT; (B) ANY FAILURE BY CLIENT TO BACKUP OR MAINTAIN COPIES OF CLIENT CONTENT OR DATA; (C) ANY THIRD-PARTY SERVICES, SOFTWARE, HARDWARE, OR INFRASTRUCTURE; (D) ANY ACTS OR OMISSIONS OF CLIENT OR ITS EMPLOYEES, CONTRACTORS, OR AGENTS; OR (E) ANY FORCE MAJEURE EVENT. IN ANY EVENT, THE TOTAL AGGREGATE LIABILITY OF HOST TO CLIENT FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO HOST UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. Termination and Renewal
8.1 Term
This Agreement becomes effective on the date Client executes an order form that incorporates this Agreement by reference or first uses the Services, whichever is earlier (the "Effective Date"), and thereafter shall remain in effect for the initial term specified in the applicable order form or, if no term is specified, for one (1) year (the "Initial Term"), unless earlier terminated as otherwise provided in this Agreement. This Agreement shall automatically renew for successive one (1) year renewal terms (each, a "Renewal Term") unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Host may modify the terms of this Agreement (including fees) for any Renewal Term by providing written notice to Client at least thirty (30) days prior to the commencement of such Renewal Term.
8.2 Termination
Either Party may terminate this Agreement immediately upon written notice if: (a) a bankruptcy, insolvency, or similar proceeding is instituted by or against the other Party and is not dismissed within thirty (30) days; or (b) the other Party makes an assignment for the benefit of creditors or ceases to conduct business in the ordinary course. Host may terminate this Agreement immediately upon written notice to Client, without any cure period, if: (i) Client breaches Sections 3.2 (Limitations on Client Content), 4.1 (Client Content responsibilities), or 4.2 (Prohibited Content); (ii) Client fails to pay any fees when due; (iii) Client's use of the Services violates applicable law or threatens the security or stability of Host's systems or other clients' services; (iv) Client breaches any confidentiality obligations; or (v) Host reasonably believes that continuing to provide Services to Client poses legal, financial, or reputational risk to Host. For any other material breach by Client, Host may terminate this Agreement if such breach is not cured within fifteen (15) days of written notice specifying the breach. Host may also terminate this Agreement for convenience at any time upon thirty (30) days' written notice to Client, in which case Host shall refund a pro-rata portion of prepaid fees for Hosting Services not yet rendered as of the termination date. Client may terminate this Agreement for convenience at any time upon thirty (30) days' written notice to Host; however, due to Host's commitments to its infrastructure and service providers, any such early termination by Client shall result in forfeiture of all prepaid fees, and Client shall remain liable for all fees through the end of the then-current term (whether Initial Term or Renewal Term). No refunds or credits will be provided for Client-initiated terminations. In the case of Client terminating the Agreement, all prepayment discounts shall be retroactively forfeited and Client shall immediately pay Host the difference between discounted fees paid and Host's standard undiscounted fees for all Services provided.
8.3 Termination and Payment
Upon any termination or expiration of this Agreement: (a) Client shall immediately pay all unpaid and outstanding fees through the effective date of termination or expiration; (b) if Client terminates this Agreement prior to the end of the then-current term for any reason other than Host's uncured material breach, Client shall immediately pay all fees that would have been due through the end of such term; (c) Client shall pay any early termination charges as specified in Section 8.2; and (d) if Client requests retrieval or transfer of Client Content or data following termination, Client shall pay Host's then-current hourly rates for any assistance provided by Host in connection with such retrieval or transfer. All payment obligations under this Section survive termination of this Agreement.
9 Data Privacy
9.1 Compliance
The Parties shall ensure that their data privacy policies and procedures are in compliance with all applicable laws.Host operates as a data processor with no control over the type, substance, or format of Client Content. Client, as data controller, is solely responsible for: (i) ensuring that its collection, processing, storage, and disclosure of any personal data or information to Host complies with all applicable data protection and privacy laws, including without limitation GDPR, CCPA, and other applicable regulations; (ii) obtaining all necessary consents, authorizations, and rights from its end users for the collection, processing, and transfer of their information to Host; (iii) informing its end users that their information will be processed and stored by Host in the United States or other countries that may have different data protection laws than the region in which they are situated; (iv) informing its end users of how their information will be used and providing all required privacy notices; (v) responding to all data subject requests, including access, deletion, and portability requests; and (vi) informing relevant end users that communications transmitted through systems covered by the Services may be intercepted, monitored, or accessed by Host for purposes of providing and improving the Services, ensuring security, and complying with legal obligations. Client acknowledges and agrees that Host has no liability for Client's failure to comply with any data protection or privacy laws. Client shall indemnify Host for any claims arising from Client's data privacy compliance failures.
In the normal course of providing the Hosting Services, Host does not require access to or use of the Client Content, other than by machine-read, electronic methods. However, Host, its affiliates, agents, subcontractors, and service providers may access, use, monitor, or disclose Client Content: (a) as necessary to provide, maintain, support, or improve the Services; (b) to ensure proper functioning and security of the Services and Host’s systems; (c) to prevent fraud, abuse, or violations of this Agreement or applicable law; (d) to enforce this Agreement; (e) as required or permitted by law, court order, subpoena, legal process, or governmental request; (f) to protect Host’s rights, property, or safety, or the rights, property, or safety of Host’s other clients or the public; or (g) for any other purpose set forth in this Agreement or Host’s privacy policy. Host may comply with any legal process or governmental request without prior notice to Client if Host determines, in its sole discretion, that providing such notice would: (i) violate applicable law or legal process; (ii) impede a governmental investigation; or (iii) create a risk of harm to Host or any third party. Host shall have no liability to Client for accessing, using, or disclosing Client Content as permitted by this Section. As between Client and Host, at all times the Client Content shall remain the property of Client, subject to the licenses and rights granted to Host under this Agreement.
9.2 Privacy Policy
Our current privacy policy can be viewed at http://info.tamb2cc.com/privacypolicy.html.
10. Miscellaneous
10.1 Entire Agreement
This Agreement and attached Schedules constitute the entire agreement between Client and Host, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and/or understandings between the Parties, whether written or oral, with respect to the subject matter hereof. Host reserves the right to modify this Agreement at any time by posting the modified terms on Host's website or by providing notice to Client via email or through the Services. Any such modifications shall become effective thirty (30) days after posting or notice, or immediately upon Client's continued use of the Services after such posting or notice, whichever is earlier. Client's continued use of the Services following any modification constitutes Client's acceptance of the modified terms. If Client does not agree to any modification, Client's sole remedy is to terminate this Agreement in accordance with Section 8.2.
Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance, promise, or warranty (whether made innocently or negligently) that is not explicitly set forth in this Agreement, except for claims based on fraud or fraudulent misrepresentation. Client acknowledges that it has not relied on any representations or warranties except as expressly set forth in this Agreement.
10.2 Cooperation
The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
10.3 Independent Contractors
Host and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Client. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of another Party.
10.4 Amendments
Except as provided in Section 11.1 regarding Host's right to modify this Agreement, no other amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the Party against which such amendment, change, waiver, or discharge is sought to be enforced.
10.5 Client Identification
Host may use the name, logo, and trademarks of Client, and identify Client as a Host client, in advertising, marketing materials, publicity, case studies, testimonials, client lists, presentations to prospective clients, and on Host's website. Host may also publicly disclose the general nature of the Services provided to Client. Client grants Host a non-exclusive, royalty-free license to use Client's name, logo, and trademarks for these purposes during the term of this Agreement and thereafter. Client may revoke this permission by providing written notice to Host, which shall be effective thirty (30) days after receipt by Host.
10.6 Force Majeure
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, explosion, earthquake, pandemic, epidemic, public health emergency, war, terrorism, civil unrest, labor disputes, strikes, judicial or governmental action, changes in law, act of God, failure of third-party services or infrastructure, Internet or telecommunications failures, power outages, denial of service attacks, or any other causes beyond the reasonable control of such Party (each, a "Force Majeure Event"), that Party shall be excused from such performance to the extent that it is prevented, hindered, or delayed by such causes. The Party affected by a Force Majeure Event shall promptly notify the other Party and shall use commercially reasonable efforts to mitigate the effects of the Force Majeure Event. If a Force Majeure Event affecting Host's performance continues for more than thirty (30) consecutive days, Host may, in its sole discretion, terminate this Agreement upon written notice to Client without any liability or obligation to refund prepaid fees.
10.7 Illinois Law
This Agreement shall be governed in all respects by the laws of the State of Illinois without regard to its conflict of laws provisions. Before initiating any legal action, the Parties agree to first attempt to resolve any dispute through good faith negotiations for a period of thirty (30) days. Any legal action arising out of or related to this Agreement must be brought exclusively in the state or federal courts located in the City of Chicago, Illinois, and each Party hereby irrevocably submits to the jurisdiction and venue of such courts and waives any objection to such jurisdiction or venue. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES. CLIENT AGREES THAT ANY CLAIMS AGAINST HOST MUST BE BROUGHT IN CLIENT'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, OR MULTI-PARTY PROCEEDING ("CLASS ACTION"). CLIENT WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST HOST.
10.8 Assignment
Client shall not assign, delegate, or otherwise transfer its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, without the prior written consent of Host (which may be withheld in Host's sole discretion), and any attempt to do so without such consent shall be null and void and deemed a material breach of this Agreement. Notwithstanding the foregoing, Host may freely assign, delegate, or otherwise transfer this Agreement and its rights and obligations hereunder, in whole or in part, without Client's consent: (a) to any affiliate or subsidiary of Host; (b) in connection with any merger, acquisition, sale of assets, or change of control of Host; or (c) to any third party. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
10.9 Notice
Any notice required or permitted pursuant to this Agreement shall be in writing and shall be deemed given: (i) if by hand delivery, upon receipt; (ii) if mailed, five (5) business days after deposit in the United States mail, postage prepaid, certified or registered mail, return receipt requested; (iii) if by email, upon transmission to the email address provided by the recipient (or, for notices to Client, to the email address associated with Client's account), provided that the sender does not receive an automated bounce-back or error message; (iv) if by facsimile transmission, upon electronic confirmation; or (v) if by nationally recognized overnight courier service, one (1) business day after deposit with such courier. All notices shall be sent to the address or email address of the Party set forth in the applicable order form or as otherwise provided by such Party in writing.
10.10 Waiver
The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
10.11 Severability
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
10.12 Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action by either Party hereto is required by any provision of this Agree-ment, such action shall not be unreasonably delayed or withheld.
10.13 Survival
Upon termination or expiration of this Agreement, all provisions of this Agreement shall cease to have effect, except that any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiration of this Agreement shall remain in full force and effect, including, but not limited to: Section 1.2 (Client Content format and responsibilities), Section 2 (License and Proprietary Rights), Section 3 (Confidentiality), Section 4 (Client Content obligations and restrictions), Section 5 (Warranties and Disclaimers), Section 6 (Indemnification), Section 7 (Limitation of Liability), Section 8.3 (Termination and Payment), all Client payment obligations, Section 9 (Data Privacy), Section 11.1 (Entire Agreement), Section 11.8 (Illinois Law and Dispute Resolution), and any other provisions that by their nature are intended to survive termination.
10.14 No Third-Party Beneficiaries
This Agreement is made solely for the benefit of the Parties, their successors and assigns, and no other person shall have any right, benefit, or interest under or because of this Agreement.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING THE SERVICES, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT.
SCHEDULE A
Section 1 – General Services to be Provided.
1.1 Host shall provide hosting via Azure and managed services to the client for their eTAM website. This site will include 50GB total data storage and 20GB of monthly outbound data transfer services, there is no limit on inbound data transfer.
Managed services will include establishment and deactivation of server users (not TAM users), other mandatory site administration, and TAM server application upgrade services (where scheduled mutually with the Client and an Annual New Version Subscription Agreement is in force).
