This Computer Generated Solutions, Inc. (“CGS,” “We,” “Us” or “Our”) Managed Hosting Services Schedule (“Schedule) Terms and Conditions is between the Client set forth on the cover page of this Services Schedule (“Client," “you" or "your"), and CGS. Key terms are defined in Section 8.
1. Use of Hosting Services.
a. Right to use. We grant you the right to access and use the Hosting Services and to install and use the Software included with your Subscription, as further described in this Agreement. We reserve all other rights.
b. Acceptable use. You may use the Hosting Services only in accordance with this Agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Hosting Services, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Hosting Services. You may not rent, lease, lend, resell, transfer, or host the Hosting Services, or any portion thereof, to or for third parties except as expressly permitted in this Agreement.
c. End Users. You control access by End Users, and you are responsible for their use of the Hosting Services in accordance with this Schedule.
d. Client Data. You are solely responsible for the content of all Client Data. You will secure and maintain all rights in Client Data necessary for us to provide the Hosting Services to you without violating the rights of any third party or otherwise obligating CGS to you or to any third party. CGS does not and will not assume any obligations with respect to Client Data or to your use of the Hosting Services other than as expressly set forth in this Schedule or as required by applicable law.
e. Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Hosting Services. You must promptly notify our Client support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Hosting Services.
f. Preview releases. Previews are provided "as-is," "with all faults," and "as-available," and are excluded from the SLAs and all limited warranties provided in this Schedule. Previews may not be covered by Client support. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into general availability.
g. Managed Services for CGS Managed Hosting. You may use CGS Managed Hosting Services to provide a Managed Service Solution provided (1) you have the sole ability to access, and configure, the services, and/or (2) if a third party has access to the application(s) or virtual Operating System Environment(s). You are responsible for the third party's use of the CGS services in accordance with the terms of this Schedule. Your provision of Managed Services remains subject to the following limitations (and any other limitations in the Hosting Services Terms): (i) you may not resell or redistribute the CGS Managed Hosting Services, and (ii) you may not allow multiple users to directly or indirectly access any CGS Managed Hosting Services feature that is made available on a per-user basis.
h. Administrator Assumption of Control. If you use an email address provided by an organization you are affiliated with (e.g. an employer or school) to order a Hosting Service individually, you represent that you have authority to sign up for a Subscription in your capacity as a member of that organization.
i. Additional Software for use with the Hosting Services. To enable optimal access to and use of certain Hosting Services, CGS may install and use certain Software in connection with your use of the Hosting Service. We license CGS Software to you; we do not sell it. Proof of your CGS Software license is (1) the CGS Software License Agreement, and (2) proof of payment.
j. Compliance with Law, Rules and Regulations. You agree that in connection with the exercise of your rights and performance of your obligations under this Schedule, you will comply in all material respects with all applicable laws and regulations. You acknowledge that CGS exercises no control whatsoever over your Content or the information passing through the CGS Data Center, and that, as between you and CGS, it is your sole responsibility to ensure that the information you transmit and receive complies with all applicable laws and regulations. You agree that you will comply at all times with CGS’s Rules and Regulations in existence from time to time and of which you have been notified.
2. Purchasing services.
a. You have committed in advance to purchase a specific quantity of Hosting Services for use during a Term and to pay upfront or on a periodic basis in advance of use. With respect to CGS Managed Hosting Services, additional or other usage (for example, usage beyond your commitment quantity) may be treated as a Consumption Offering. Committed quantities not used during the Term will expire at the end of the Term.
b. Pricing and payment. Payments are due and must be made according to the fee schedule provided in the Services Schedule.
c. Taxes. Prices are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. You must pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Schedule and which we are permitted to collect from you under applicable law. We will be responsible for all taxes based on our net income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our property ownership.
If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority; provided, however, that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You must ensure that any taxes withheld are minimized to the extent possible under applicable law.
3. Term, termination, and suspension.
a. Schedule term and termination. This Schedule will remain in effect for a period of three (3) years, unless terminated earlier as provided herein. Subject to the conditions herein, the Schedule will automatically renew for additional terms of one (1) year each, at the then-standard rates, or as otherwise agreed by the parties.
b. Subscription termination. You may terminate this Schedule at any time during its Term upon 90 days prior written notice; however, during the initial Term, you must pay all amounts due and owing for the remainder of the initial term before the termination is effective. Either party may terminate this Schedule for convenience at any time effective after the third (3rd) anniversary of the Installation Date by providing ninety (90) days prior written notice to the other party.
c. Suspension. We may suspend your use of the Hosting Services if: (1) it is reasonably needed to prevent unauthorized access to Client Data; (2) you fail to respond to a claim of alleged infringement under Section 5 within a reasonable time; (3) you do not pay amounts due under this Schedule; or (4) you do not abide by Section 1(b) herein, or you violate other terms of this Schedule. If one or more of these conditions occurs, then:
A suspension will apply to the minimum necessary part of the Hosting Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 20 days' notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 45 days after we suspend, we may terminate your Subscription and delete your Client Data without any retention period. We may also terminate your Subscription if your use of the Hosting Services is suspended more than twice in any 12-month period.
d. For Cause. Either party will have the right to terminate this Schedule if: (a) the other party materially breaches any term or condition of this Schedule, including but not limited to the payment of fees, and fails to cure such breach within thirty (30) days after written notice of the same; (b) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
e. No Liability for Termination. Neither party will be liable to the other for any termination or expiration of this Schedule which occurs in accordance with the terms of the Schedule.
a. Limited warranty Hosting Services. We warrant that the Hosting Services will meet the terms of the SLA during the Term. Your only remedies for breach of this warranty are those in the SLA.
b. Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty; (ii) this limited warranty does not cover problems caused by accident, abuse or use of the Hosting Services in a manner inconsistent with this Schedule or our published documentation or guidance, or resulting from events beyond our reasonable control; and (iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements.
c. DISCLAIMER. (i) EXCEPT FOR THE EXPRESS WARRANTIES SET OUT ABOVE, ALL SERVICES PERFORMED, AND HOSTING SERVICES PROVIDED, AND SPACE MADE AVAILABLE BY CGS HEREUNDER ARE PERFORMED, PROVIDED, AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND CLIENT'S USE OF THE HOSTING SERVICE IS AT ITS OWN RISK. CGS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CGS DOES NOT WARRANT THAT THE HOSTING SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; (ii) Disclaimer of Actions Caused by and/or Under the Control of Third Parties. WHILE CGS’S HOSTING SERVICES PROVIDE CLIENT WITH CONNECTIVITY TO THE INTERNET, CGS DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM CGS’S DATA CENTERS TO OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH CGS’S CLIENTS' CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH CGS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, CGS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, CGS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
d. Warranties by Client. (i) Client's Content. Client represents and warrants that it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority during the term of this Schedule, to place and use the Client content as contemplated by this Schedule, and to use, modify, transmit, and distribute the Client content without infringing, misappropriating, or otherwise violating any intellectual property rights of any third party.
(ii) Client's Business. Client is familiar with the laws and regulations applicable to Client's business. Client represents and warrants that Client's business does not, and will not during the term of this Schedule, contain or transmit any material that would violate any applicable local state, national, foreign or international law. In the event of any breach, or reasonably anticipated breach, of such warranty, in addition to any other remedies available at law or in equity, CGS shall have the right, after notice to Client, with an adequate opportunity to cure based on the specific circumstances, in CGS’s sole discretion: (A) to terminate or restrict access to any such materials in any manner, and/or (B) to suspend any related Hosting Services provided CGS takes the minimal action(s) necessary to address the specific violation.
5. Defense of claims.
a. Defense. (i) We will defend you against any claims made by an unaffiliated third party that a Hosting Service infringes that third party's patent, copyright or trademark or makes unlawful use of its trade secret. (ii) You will defend us against any claims made by an unaffiliated third party that (1) any Client Data, Client Solution, Client Content, Non-CGS or Non-Microsoft Products, or services you provide, directly or indirectly, in using a Hosting Service infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of the Acceptable Use Policy.
b. Limitations. Our obligations in Section 5.a. will not apply to a claim or award based on: (i) any Client Solution, Client Data, Non-CGS or Non-Microsoft Products, modifications you make to the Hosting Services, or services or materials you provide or make available as part of using the Hosting Services; (ii) your combination of the Hosting Services with, or damages based upon the value of, Client Data or a Non-CGS or Non-Microsoft Product, data, or business process; (iii) your use of a CGS or Microsoft trademark without our express written consent, or your use of the Hosting Services after we notify you to stop due to a third-party claim; (iv) your redistribution of the Hosting Services to, or use for the benefit of, any unaffiliated third party; or (v) Hosting Services provided free of charge.
c. Remedies. If we reasonably believe that a claim under Section 5.a.(i). may bar your use of the Hosting Services, we will seek to:(i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Hosting Services. If these options are not commercially reasonable, we may terminate your rights to use the Hosting Services and then refund any advance payments for unused Subscription rights.
d. Obligations. Each party must notify the other promptly of a claim under this Section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties' respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 5 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.
6. Limitation of liability.
a. Limitation. The aggregate liability of CGS for all claims under this Schedule is limited to direct damages up to the amount paid under this Schedule for the Hosting Service during the month before the cause of action arose.
b. EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
c. Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under Section 5(a); or (2) violation of the other's intellectual property rights.
a. License Transfers and Assignment. You may not assign this Schedule either in whole or in part or transfer licenses without CGS’ consent.
b. Severability. If any part of this Schedule is held unenforceable, the rest remains in full force and effect.
c. Waiver. Failure to enforce any provision of this Schedule will not constitute a waiver.
d. No agency. This Schedule does not create an agency, partnership, or joint venture.
e. No third-party beneficiaries. There are no third-party beneficiaries to this Schedule.
f. Entire agreement. This Schedule is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.
g. Survival. The terms in Sections 1, 2.c., 2.e., 4, 5, 6, 7, and 8 will survive termination or expiration of this Schedule.
h. U.S. export jurisdiction. The Hosting Services are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.
i. 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, pandemics, 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 Hosting Services)). This Section will not, however, apply to your payment obligations under this Schedule.
j. Inherently Dangerous Applications. The CGS Data Center is not intended nor provided for use in connection with, and Client will not use them for, any nuclear, aviation, mass transit, life-support, or any other inherently dangerous applications or services, the failure of which could result in death, personal injury, catastrophic damage, or mass destruction.
k. Subcontractors. CGS may, at its sole option, enter into any subcontracts for the performance of the Services, or assign or transfer any of its rights or obligations under this Schedule (which may include relocation of the data center, so long as the new data center location generally has service and security levels equal to, or greater than, the current data center), without Client’s prior written consent. CGS shall indemnify and hold Client harmless from any payment required to be paid to any such subcontractors.
l. Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this Schedule on that entity's behalf.
Any reference in this Schedule to "day" will be a calendar day.
"Acceptable Use Policy" is set forth in Section 1(b) herein.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.
"Client Data" is defined as the content (owned, or licensed by the Client), stored within the Client Area. Notwithstanding the foregoing Client's Content does not include the software, scripts, documentation and templates that are provided by Provider.
"End User" means any person you permit to access Client Data hosted in the Hosting Services or otherwise use the Hosting Services, or any user of a Client Solution.
"Hosting Services" means any of the CGS services to which you subscribe under this Schedule
“Operating System Environment “ (OSE) means all or part of an operating system Instance, or all or part of a virtual (or otherwise emulated) operating system Instance which enables separate machine identity (primary computer name or similar unique identifier) or separate administrative rights, and instances of applications, if any, configured to run on the operating system Instance or parts identified above. A physical hardware system can have one Physical OSE and/or one or more Virtual OSEs.
"SLA" means the commitments we make regarding delivery and/or performance of an Hosting Service in Schedule A.
"Software" means CGS Software we provide for installation on your device as part of your Subscription or to use with the Hosting Service to enable certain functionality.
"Subscription" means an enrollment for Hosting Services for a defined Term as specified in the Schedule. You may purchase multiple Subscriptions, which may be administered separately, and which will be governed by the terms of a separate Hosting Subscription Agreement.
"Term" means the duration of a Subscription (three years).
SCHEDULE A – SERVICE LEVEL AGREEMENT
CGS guarantees service availability of at least 99.9% for the underlying hosted systems.
Capitalized terms used but not defined in this Service Level Agreement will have the meaning assigned to them in the Schedule. This Service Level Agreement applies to the CGS Managed Hosting Services.
If we do not achieve and maintain the Service Levels for each Service as described in this Service Level Agreement, then you may be eligible for a credit towards a portion of your monthly service fees. We will not modify the terms of your Service Level Agreement during the initial term of your subscription; however, if you renew your subscription, the version of this Service Level Agreement that is current at the time of renewal will apply throughout your renewal term. We will provide at least 60 days’ notice for adverse material changes to this Service Level Agreement.
"Applicable Monthly Period" means, for a calendar month in which a Service Credit is owed, the number of days that you are a subscriber for a Service.
"Applicable Monthly Service Fees" means the total fees actually paid by you for a Service that are applied to the month in which a Service Credit is owed.
"Downtime" is defined for each Service in the Services Specific Terms below.
"External Connectivity" is bi-directional network traffic over supported protocols such as HTTP and HTTPS that can be sent and received from a public IP address.
"Incident" means (i) any single event, or (ii) any set of events, that result in Downtime.
"Service Credit" is the percentage of the Applicable Monthly Service Fees credited to you following CGS’ claim approval.
"Service Level" means the performance metric(s) set forth in this Service Level Agreement that CGS agrees to meet in the delivery of the Services.
"Service Resource" means an individual resource available for use within a Service.
"Support Window" refers to the period of time during which a Service feature or compatibility with a separate product or service is supported.
In order for CGS to consider a claim, you must submit the claim to Client support at CGS including all information necessary for CGS to validate the claim, including but not limited to: (i) a detailed description of the Incident; (ii) information regarding the time and duration of the Downtime; (iii) the number and location(s) of affected users (if applicable); and (iv) descriptions of your attempts to resolve the Incident at the time of occurrence.
For a claim related to Microsoft Azure, we must receive the claim within one month of the end of the billing month in which the Incident that is the subject of the claim occurred. For claims related to all other Services, we must receive the claim by the end of the calendar month following the month in which the Incident occurred. For example, if the Incident occurred on February 15th, we must receive the claim and all required information by March 31st.
We will evaluate all information reasonably available to us and make a good faith determination of whether a Service Credit is owed. We will use commercially reasonable efforts to process claims during the subsequent month and within sixty (60) days of receipt. You must be in compliance with the Schedule in order to be eligible for a Service Credit. If we determine that a Service Credit is owed to you, we will apply the Service Credit to your Applicable Monthly Service Fees.
Service Credits are your sole and exclusive remedy for any performance or availability issues for any Service under the Schedule and this SLA. You may not unilaterally offset your Applicable Monthly Service Fees for any performance or availability issues.
Service Credits apply only to fees paid for the particular Service, Service Resource, or Service tier for which a Service Level has not been met. In cases where Service Levels apply to individual Service Resources or to separate Service tiers, Service Credits apply only to fees paid for the affected Service Resource or Service tier, as applicable. The Service Credits awarded in any billing month for a particular Service or Service Resource will not, under any circumstance, exceed your monthly service fees for that Service or Service Resource, as applicable, in the billing month.
Service Credits are equal to the percentage of the monthly invoice where services were unavailable. Calculated as follows:
Monthly Invoice amount x (Monthly Uptime % = (Maximum Available Minutes-Downtime)/Maximum Available Minutes x 100)
A Disaster is defined as any event which causes either the physical or logical destruction of the primary hosting facilities making the continuation of Hosting services either temporarily or permanently impossible. The CGS is obligated to notify hosting clients of a disaster in order to temporarily suspend the Service Level Agreement.
This Service Level Agreement and any applicable Service Levels do not apply to any performance or availability issues:
- Due to factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at your site or between your site and our data center);
- That result from the use of services, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
- Caused by your use of a Service after we advised you to modify your use of the Service, if you did not modify your use as advised;
- Caused by External connectivity related to the client site.
- That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
- That result from your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
- That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
- That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior; or
- During the Maintenance window of 6am to 12pm on Sunday each week.