1. THE AGREEMENT; EFFECTIVE DATE. This Agreement consists of the following documents: (A) the Hosting Agreement Summary; (B) these General Service Terms and Conditions; (C) the specific terms that apply to the Services and Third-Party Products listed on a Service Order (the “Service Terms”); (D) the Service Order(s); (E) the Acceptable Use Policy; (F) the Responsibility Matrix; (G) the Technical Policies; and (H) any schedules, addendum exhibits and other documents incorporated therein by reference. This Agreement is effective as of the date on which it is countersigned by Logicworks or on the Billing Commencement Date, whichever occurs first (the “Effective Date”).
2. SERVICES. Starting on the Commencement Date and continuing for the remainder of the Term, Logicworks shall provide the Hosting Services to Client in accordance with all Logicworks Laws and the terms and conditions of this Agreement, including the Hosting Agreement Summary, Service Order(s), Responsibility Matrix, Technical Policies and applicable Service Terms. The Hosting Services do not include, and Logicworks is not responsible for, any Virtual Server that is not identified by name on a Service Order, even if Client is billed for the Virtual Server by Logicworks, obtains a software license for that Virtual Server from Logicworks or the Virtual Server is running on Logicworks’ infrastructure.
4. FEES AND BILLING. FEES. Client shall pay all fees due to Logicworks under this Agreement, including any setup fees, monthly recurring fees (“Recurring Fees”), hourly fees, deposits, usage-based fees, one-time fees and any Early Termination Fee. Setup fees are due and payable when Client signs the Agreement. Recurring Fees and related charges for each component of the Configuration start to accrue on the component’s Commencement Date, except if Logicworks requests information necessary to deploy the Configuration and Client fails to provide it within five Business Days, Recurring Fees and related charges will begin to accrue at the end of the fifth Business Day. Client shall pay Logicworks for all Services associated with its account, including all fees resulting from unauthorized use, except where the unauthorized use results from Logicworks’ breach of this Agreement.
(a) BILLING TERMS. Logicworks will invoice Recurring Fees at or around the beginning of each month. Fixed Recurring Fees are generally invoiced in advance while usage-based Recurring Fees are invoiced in arrears. Other fees may be invoiced separately or included on Logicworks’ monthly invoices. Invoices may be delivered electronically or by any means acceptable under the notice provision in Section 30 below. Client shall pay each invoice in U.S. dollars within thirty days from the invoice date without setoff, deduction or delay either by wire transfer or by check drawn on a U.S. bank. All fees not objected to in writing within thirty days after their invoice date will be deemed to be accurate.
(b) BILLING DEFAULTS. While any fees are past due, the guarantees in the SLA will not apply, Client will not be eligible to receive Service Credits, and Logicworks may suspend the Services as provided below in Section 17. Logicworks may apply all payments to the most recent invoice and charge interest on overdue fees at the lesser of 1.5% per month or the maximum rate permitted by law. Client is liable for Logicworks’ costs of collection, including reasonable attorney’s fees and expenses. It is the sole responsibility of Client to provide accurate billing contact information and to provide Logicworks with advance written notice of any changes to its billing contact information in accordance with Section 30 below.
5. TAXES. Client shall pay all taxes on the Services that Logicworks is required by law to collect, including transaction, local, value-added, sales, and service taxes, even if the taxes are not collected by Logicworks when the taxable Services are provided. All fees specified in a Service Order are exclusive of any such taxes, duties, levies or fees. In no event will Client be responsible for any taxes on Logicworks’ income.
6. PROFESSIONAL SERVICES. Logicworks may provide engineering services to Client (“Professional Services”) as Additional Services. All Professional Services will be provided on a one-time basis and without ongoing support for an hourly fee. Client must request Professional Services by submitting a ticket via Logicworks’ ticketing and alert system. If Logicworks agrees to perform Professional Services that are requested by Client, Logicworks will provide Client with advance notice of the applicable hourly rate, which may vary according to the Professional Services provided. Any estimates provided by Logicworks regarding Professional Services, including those relating to costs, results, work hours, commencement dates or completion dates, are non-binding estimates that are subject to change by Logicworks in writing. Client may terminate or amend Professional Services at any time by submitting a ticket via Logicworks’ ticketing and alert system, provided that Client shall pay all fees incurred for Professional Services prior to Logicworks’ receipt of Client’s notice. Professional Services that are not performed between the hours of 9:00 a.m. and 5:00 p.m. on Business Day will be subject to an increased hourly fee. Logicworks may also initiate and perform billable Professional Services if it determines, in its commercially reasonable judgment, that they are required to protect Logicworks or any of its client(s) from an operational, security or legal risk that is caused by Client’s use of the Services or breach of this Agreement.
7. CONTENT. Client is solely responsible for the selection, compatibility, licensing, accuracy, performance, maintenance and support of all information, software, and data, including any hypertext markup language files, scripts, programs, applications, recordings, sound, music, graphics, images, applets or servlets that Client or its agents, representatives, subcontractors, customers or end users create, install, upload or transfer on, from or through the Configuration (“Content”). It is Client’s responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in the Content. Client acknowledges that it is solely responsible for the security, protection and backup of all Content. Content may be downloaded by Client prior to the end of the Term. Services required to copy and return Content are not included within the scope of Logicworks’ normal support Services, but may be arranged as a Professional Service for an hourly fee. Client shall ensure that all PII that is being returned to Client remains encrypted at all times, including when it is being copied by Logicworks. Client is solely responsible for ensuring that all PII is encrypted prior to and during its shipment. Logicworks will not examine Content prior to shipment to ensure that it has been encrypted. Any shipment of Content by Logicworks is at the sole expense and risk of Client and Logicworks shall have no liability to Client for any data breach, lost data or other harm arising from or relating to the shipment.
8. SECURITY. Client shall implement security measures that are commercially reasonable for its use of the Services, including secure access controls, logging, log review, intrusion detection, intrusion management and written policies and procedures that are routinely assessed and updated. Client shall immediately notify Logicworks of any known or suspected breach of security involving the Services. Logicworks has no obligation to provide security that is not expressly stated in the Service Order(s) or in the Responsibility Matrix.
10. BACKUPS. Logicworks will not perform backups unless backup services are identified on the Service Order and Client actually purchases them from Logicworks. Backups will not occur during a suspension of Services.
11. THIRD-PARTY PRODUCTS. Logicworks may resell third-party products and services (each, a “Third-Party Product”) to Client for use with the Services, and Logicworks may invoice Client, or provide support, for some of those products. LOGICWORKS MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING ANY THIRD-PARTY PRODUCT OR RELATED SUPPORT SERVICES AND, AS BETWEEN LOGICWORKS AND CLIENT, SUCH PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.” Client’s use of any Third-Party Product is governed by the terms of a separate license or end user agreement to which Logicworks is not a party. Certain Third-Party Products sold by Logicworks require Client to agree to additional terms and conditions.
12. SOFTWARE. Logicworks will provide Client with access to certain software products as part of the Hosting Services. LOGICWORKS MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING ANY SOFTWARE PRODUCT, INCLUDING THAT THE SOFTWARE PRODUCT IS ERROR-FREE OR THAT ERRORS, INCLUDING BUGS AND VULNERABILITIES, WILL BE CORRECTED. Client is not granted any title or intellectual property rights in and to any software provided by Logicworks, and Client shall use the software provided by Logicworks solely in connection with the Services as permitted under this Agreement. Client shall not: (A) copy any software; (B) remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software or appear during its use; (C) reverse engineer, decompile or disassemble any software; or (D) attempt to discover and/or reuse any Logicworks’ license key or licensing data. In addition to the other terms in this Agreement, Client’s use of any Microsoft® product is governed by the terms and conditions of the Microsoft Addendum located at http://www.logicworks.net/legal/microsoft-software-addendum. If Client uses any software on the Configuration that is not provided by Logicworks, Client represents and warrants that it has obtained all consents and licenses required to use that software with the Services without infringing any ownership or intellectual property rights. Upon request, Client shall provide Logicworks with evidence of both parties’ right to legally use and access any software not provided by Logicworks without infringing any ownership or intellectual property rights. Logicworks will be relieved of any obligations under this Agreement that are adversely affected by Client’s failure to obtain any required consents or licenses, or to promptly furnish to Logicworks evidence it has obtained those consents or licenses.
13. UPGRADES AND ADDITIONAL SERVICES. Subject to any terms and conditions that may apply, Client may upgrade or add new components to the Hosting Services by signing a subsequent Service Order that is issued by Logicworks.
14. AMENDMENTS. Except as provided in this Section 14, no amendment to this Agreement will be effective unless it is in writing and signed by the parties.
(a) LOGICWORKS AMENDMENTS. On at least sixty days’ advance notice to Client, Logicworks may amend: (1) the AUP in a manner that is consistent with industry standards;(2) the Responsibility Matrix to modify existing responsibilities or to add new responsibilities that apply to Managed Backup and other new Services; (3) the Technical Policies to address reliability, availability or security issues relating to Server, networking, hardware, software, security, backup and other specifications; and (4) the Microsoft Addendum as required by Microsoft (collectively, “Amendments”). No Permitted Amendment to the Technical Policies will affect the Recurring Fee during the Committed Term. Notwithstanding the foregoing, Logicworks may amend the Microsoft Addendum on less than sixty days’ notice as required by Microsoft.
(b) CLIENT OBJECTIONS. Client may terminate the Agreement before an Amendment becomes effective without liability for the Early Termination Fee on the grounds that the Amendment would have a material adverse effect on Client’s use of the Services, but only if Client notifies Logicworks of its objection to the Amendment within thirty days of Logicworks’ notice and Logicworks fails to waive the Amendment with respect to Client before it would otherwise have become effective. Use of the Services without objecting to an Amendment in accordance with this Section 14(b) constitutes acceptance of the Amendment. If Logicworks waives compliance with an Amendment to the Technical Policies, Logicworks shall have no liability to Client for Downtime or any other failure or deficiency in the Services that compliance with the Amendment could have prevented.
15. FEE INCREASES. No more than once during any twelve-month period, Logicworks may increase Client’s then-current Recurring Fee on no less than thirty days’ notice by up to fifteen percent in order to account for a supplier’s price increase to Logicworks (e.g., an increase in bandwidth, software licensing, or power costs).
16. CREDIT. Client is subject to continuing credit reviews. If Logicworks determines in its commercially reasonable judgment that there is a material adverse change in Client’s creditworthiness, Logicworks may require Client to pay a deposit equal to one month of Recurring Fees. The deposit will be due within thirty days of the date on which it is invoiced and deposits are in addition to all other fees, which remain due on a current monthly basis. Logicworks may apply all or part of any deposit to an invoice that is not paid within thirty days. Logicworks may also invoice Client as required in order to replenish any deposit funds that are used to pay past-due fees. Upon termination of this Agreement, Logicworks may apply the deposit to any unpaid fees, including the Early Termination Fee. Logicworks shall return the remaining balance of the deposit, if any, to Client within thirty days of the termination of this Agreement. Logicworks’ remedies under this Section 16 are in addition to all other rights and remedies that are available to Logicworks under this Agreement.
17. SUSPENSION. Logicworks may suspend the Services in whole or in part, including Client’s administrative access to the Services, without liability if: (A) Logicworks reasonably believes that the Services are being used in violation of the AUP; (B) Client does not cooperate in good faith with a reasonable investigation by Logicworks of a suspected violation of the Agreement; (C) Logicworks is required to suspend Client’s Services by a law enforcement agency, other government agency or court order; (D) there is an attack on the Configuration, a third party gains unauthorized access to the Configuration or a security incident involving PII occurs on the Configuration; (E) another event occurs that Logicworks reasonably believes poses a threat to the integrity, security or health of Logicworks’ network or Logicworks’ other clients; or (F) any fees owed to Logicworks are more than five days past due. Logicworks shall provide at least twenty four hours’ advance notice of a suspension and an opportunity to cure the grounds for the suspension, unless Logicworks determines in its commercially reasonable judgment that shorter or contemporaneous notice is required to protect Logicworks or its other clients from operational, security or legal risk. During a suspension, Services will not be available in whole or in part and Client may not have access to Content. In addition, Recurring Fees will continue to accrue during a suspension and Logicworks may require Client to pay a reinstatement fee of up to ten percent (10%) of the Recurring Fee before Services are restored.
18. TERM. The initial term for each Service Order (the “Committed Term”) begins on the Commencement Date and continues for the period stated in the Service Order or, if no period is stated in the Service Order, for a period of two years. At the end of a Committed Term, the Service Order will automatically renew for successive one-year terms (each, a “Renewal Term”). The parties may agree to a new Committed Term for preexisting Services in a renewal Service Order, in which case the new Commencement Date for those Services will be deemed to be the later of: (A) the end of a then-current Committed Term; (B) the actual Commencement Date for any new or upgraded Service components described on the same Service Order; and (C) the date on which Client delivers a signed copy of the Service Order to Logicworks. Each renewal Service Order will have a Committed Term that begins on the deemed Commencement Date and continues for the period stated in the renewal Service Order or, if no period is stated in the renewal Service Order, for a period of two years. If a Configuration described on one Service Order is deployed in stages, each stage of the deployment will have its own Committed Term that begins on its respective Commencement Date and continues for the period stated in the Service Order or, if no period is stated in the Service Order, for a period of two years. Thereafter, each stage of the deployment will have its own one-year Renewal Term. Either party may elect not to renew the Services by providing the other with a written notice of non-renewal at least ninety days prior to the last day of a Committed Term or any Renewal Term. Logicworks may increase the Recurring Fee during any Renewal Term on at least ninety days’ notice. “Term” means the Committed Term(s) and any Renewal Term(s), collectively.
19. TERMINATION. BY LOGICWORKS. Logicworks may terminate this Agreement: (1) without notice if the Services remain suspended (in whole or in part) for non-payment for more than ten days; (2) on forty-eight hours’ notice if Client fails to cooperate in good faith with an investigation by Logicworks of a suspected breach of the Agreement; (3) without notice if Client’s credit card issuer does not honor any charges processed by Logicworks; (4) without further notice if Client materially breaches any other provision of this Agreement and fails to cure that breach within thirty days of receiving a notice from Logicworks that reasonably identifies the breach; or (5) as required by a law enforcement agency, other government agency or court order. If Logicworks terminates the Agreement under this Section 19(a) during the Term, then upon termination Client shall be liable to Logicworks for an early termination fee (the “Early Termination Fee”). Unless otherwise indicated in the applicable Service Terms, the Early Termination Fee for a particular Service will equal its then-current Recurring Fee multiplied by the number of months that would otherwise have remained in the Term after the termination.
(a) BY CLIENT. Upon a termination of this Agreement by Client during the Term, Client shall be liable to Logicworks for an Early Termination Fee unless the agreement is terminated on one of the following grounds: (1) Logicworks has materially breached the Agreement and failed to cure its breach within thirty days after its receipt from Client of a reasonably detailed notice of the breach; or (2) the early termination is permitted under Section 14(b) (Client Objections) above.
(b) EFFECT OF TERMINATION; SURVIVAL. Termination by either party for any reason will not relieve Client of its obligation to pay all fees incurred before the termination became effective. Effective immediately upon the termination of this Agreement, the Services will no longer be available and Logicworks will have no obligation to return any data or Content to Client. Upon termination, Logicworks will decommission the Configuration and permanently erase all Content stored on it. All terms of this Agreement that should by their nature survive termination will survive, including, Sections 1 (The Agreement; Effective Date), 3 (Client Obligations), 4 (Fees and Billing), 5 (Taxes), 7 (Content), 8 (Security), 19 (Termination), 20 (Warranties; Disclaimers), 21 (Limitation of Liability), 22 (Indemnification), 26 (Governing Law; Legal Disputes), 27 (Intellectual Property), 31 (Representations; No Changes), 32 (Neutral Interpretation), 33 (Force Majeure), 34 (Confidentiality), 35 (Non-Solicitation), 40 (IP Addresses), 41 (Definitions), 42 (Miscellaneous) and 43 (Scope of Agreement; Entire Agreement).
20. WARRANTIES; DISCLAIMERS. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, THE PARTIES AGREE TO THE FOLLOWING:
(a) LOGICWORKS WILL PROVIDE THE SERVICES IN A WORKMANLIKE AND PROFESSIONAL MANNER. EXCEPT AS PROVIDED IN THE PREVIOUS SENTENCE AND IN THE APPLICABLE SERVICE LEVEL AGREEMENT, THE SERVICES, INCLUDING ALL HARDWARE AND SOFTWARE, ARE PROVIDED “AS-IS”. LOGICWORKS AND ITS SERVICE SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN NO EVENT WILL LOGICWORKS OR ITS SERVICE SUPPLIERS BE LIABLE FOR SOFTWARE ERRORS, INCLUDING BUGS AND VULNERABILITIES IN APPLICATIONS, OPERATING SYSTEMS, FIRMWARE AND EMBEDDED SOFTWARE. CLIENT IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN AND FOR DETERMINING WHETHER THEY MEET ITS LEGAL, SECURITY, CAPACITY, PERFORMANCE, BACKUP, DISASTER RECOVERY AND SCALABILITY NEEDS. ALL SERVICES THAT LOGICWORKS IS NOT OBLIGATED TO PROVIDE UNDER THIS AGREEMENT AND THAT ARE PROVIDED TO CLIENT WITHOUT ANY FEE ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND.
(b) NEITHER LOGICWORKS NOR ITS SERVICE SUPPLIERS WARRANT THAT THE SERVICES AND ADDITIONAL SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. CLIENT ACKNOWLEDGES THAT LOGICWORKS DOES NOT CONTROL OR MONITOR THE TRANSFER OF DATA OVER TELECOMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT INTERNET ACCESSIBILITY CARRIES WITH IT THE RISK THAT CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY MAY BE LOST OR COMPROMISED.
(c) CLIENT ACKNOWLEDGES THAT LOGICWORKS OFFERS NUMEROUS SECURITY OPTIONS AS PART OF THE SERVICES. CLIENT IS RESPONSIBLE FOR SELECTING ON A SERVICE ORDER THE SECURITY OPTIONS THAT IT DETERMINES WILL MEET ITS NEEDS. CLIENT AGREES THAT LOGICWORKS SHALL HAVE NO LIABILITY FOR ANY PROVISION OF SECURITY-RELATED SERVICES OR ADVICE THAT LOGICWORKS MAY VOLUNTARILY PROVIDE OUTSIDE THE SCOPE OF THE SERVICE ORDER(S).
(d) CLIENT’S USE OF ANY SERVICE PROVIDED BY LOGICWORKS THAT IS INTENDED TO COMPLY WITH CERTAIN LAWS, STANDARDS OR REGULATIONS WILL NOT GUARANTEE THAT CLIENT IS IN COMPLIANCE WITH THOSE LAWS, STANDARDS OR REGULATIONS. CLIENT IS ULTIMATELY RESPONSIBLE FOR UNDERSTANDING AND ENSURING THAT ITS BUSINESS OPERATIONS AND ITS USE OF LOGICWORKS’ SERVICES COMPLY WITH ALL APPLICABLE LAWS, REGULATORY STANDARDS AND REQUIREMENTS.
21. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, THE PARTIES AGREE TO THE FOLLOWING LIMITATIONS ON LIABILITY:
(a) IN NO EVENT WILL LOGICWORKS BE LIABLE FOR FAILING TO PROVIDE THE SERVICES UNLESS THE FAILURE RESULTS FROM LOGICWORKS’ BREACH OF THE SERVICE LEVEL AGREEMENT OR FROM LOGICWORKS’ GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR INTENTIONAL BREACH OF THIS AGREEMENT.
(b) NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF LOGICWORKS AND ITS SERVICE SUPPLIERS, AND ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS AND REPRESENTATIVES, TO CLIENT UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO THE AGREEMENT, THE SERVICES, OR ANY ACT OR OMISSION RELATING TO THE AGREEMENT OR THE SERVICES, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT TO LOGICWORKS FOR THE SERVICES DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO CLIENT’S CLAIM(S) OCCURRED.
(c) NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL LOGICWORKS OR ITS SERVICE SUPPLIERS, OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST DATA, LOST BUSINESS, LOST REVENUES, DAMAGE TO GOODWILL, LOST OPPORTUNITIES OR LOSS OF ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
(d) NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL LOGICWORKS OR ITS SERVICE SUPPLIERS, OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR UNAUTHORIZED ACCESS (E.G., HACKING OR MALWARE) INTO LOGICWORKS’ OR CLIENT’S TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO CLIENT’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, UNLESS THE UNAUTHORIZED ACCESS IS CAUSED BY LOGICWORKS OR ITS NETWORK SERVICE SUPPLIERS’, OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES’ GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT (AS DEFINED IN SECTION 41(l) BELOW).
(e) IN ALL INSTANCES WHERE THIS AGREEMENT PROVIDES FOR THE AVAILABILITY OF SERVICE CREDITS, THEY ARE THE SOLE FINANCIAL REMEDY FOR A BREACH OF THIS AGREEMENT BY LOGICWORKS. THIS SECTION 21(e) DOES NOT LIMIT ANY RIGHT CLIENT MAY HAVE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 19(b) (TERMINATION BY CLIENT) IF THE EVENTS GIVING RISE TO SERVICE CREDITS CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT BY LOGICWORKS THAT IS NOT CURED WITHIN THE TIME PROVIDED IN THAT SECTION.
(a) Client shall indemnify, defend and hold harmless Logicworks, its affiliates, licencors, subcontractors and suppliers, and each of their employees, agents, representatives, shareholders, officers, directors, successors and assigns (collectively, the “Logicworks Indemnitees”), from and against any claims, damages, liabilities, losses, costs, settlements, penalties, fines and expenses (including reasonable attorney’s fees and expert fees) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim, investigation or demand brought or asserted by a third party against any Logicworks Indemnitee(s) arising from or concerning: (1) the use of the Services by Client, its customers or end users, or any person who gains access to the Services as a result of Client’s failure to use reasonable security precautions; (2) Client’s breach of this Agreement, including a breach of the representations and warranties in Section 24; (3) a dispute between Client and any of its customers or end users; (4) Content, or the combination of Content with software, data or processes, including any claim involving alleged infringement or misappropriation of third-party intellectual property rights by Content or by the use, development, design, production, advertising or marketing of Content; (5) damages to Logicworks’ Datacenters caused by a colocated device; or (6)the Intentional Misconduct, gross negligence or violation of any law or regulation by Client, its employees, agents, personnel, customers or end users.
(b) The following terms apply to Client’s indemnification obligations hereunder: (1) defense counsel shall be selected by the Logicworks Indemnitee(s); (2) Client shall have the right to approve any settlement, which approval will not be unreasonably withheld; (3) Client shall comply with the reasonable request of any Logicworks Indemnitee(s) and cooperate in the defense of the claims; and (4) Client shall pay all fees and expenses (including attorney’s fees) as they are incurred. Logicworks shall promptly notify Client of the existence of any basis for indemnification; provided, however, that Logicworks’ failure to provide prompt notice will not affect Client’s obligation to indemnify any Logicworks Indemnitee(s) unless the failure materially prejudices Client’s ability to defend the claim.
23. COLOCATION. If Client colocates any device or equipment in Logicworks’ Datacenters, Client shall be required to agree Logicworks’ Colocation Terms and Conditions.
24. HIPAA. If this Agreement does not include Logicworks’ HIPAA Addendum, Client represents and warrants that no ePHI (as defined in 45 C.F.R. § 160.103) will be transmitted to or from the Services and that no ePHI will be stored, maintained or processed on the Services.
25. HIGH RISK USE. Client shall not use the Services for any application where a failure of those Services could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. Client acknowledges that Logicworks makes no assurances that the Services are suitable for any high-risk use.
26. GOVERNING LAW; LEGAL DISPUTES. The laws of the State of New York, without reference to its choice of law principles, and the applicable laws of the United States govern this Agreement and any claims arising out of or relating to this Agreement, its negotiation, execution, performance, or breach. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. All disputes and controversies arising out of or relating to this Agreement, its negotiation, execution, performance, or breach must be resolved in the state and federal courts in the city, county and state of New York, and each party irrevocably consents to the exclusive venue and personal jurisdiction of those courts for the resolution of such disputes and waives all objections thereto. Except as prohibited by law, each party irrevocably waives its right to a jury in connection with any action arising out of or relating to this Agreement.
27. INTELLECTUAL PROPERTY.
(a) OWNERSHIP. Except as provided in this Section and in Section 28 (Publicity) below, this Agreement does not convey to either party any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information (as defined in Section 34) or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets. Logicworks has the exclusive right and title to any intellectual property developed by Logicworks during and in connection with providing the Services to Client. In addition, Client hereby irrevocably assigns to Logicworks all right, title, and interest in and to any suggestion, enhancement request, recommendation, correction or other feedback provided by Client relating to the Services (collectively, “Feedback”). Client further agrees to provide Logicworks with any assistance that Logicworks may request to document, perfect and maintain Logicworks’ rights in Feedback.
(b) INFRINGEMENT. If a component of the Services infringes, misappropriates or otherwise violates a third-party’s intellectual property rights, Logicworks shall use reasonable efforts to: (1) procure the right to continue using the component; (2) replace the component with a substitute item that does not infringe, misappropriate or otherwise violate any third-party intellectual property right; or (3) modify the component so that it no longer infringes, misappropriates or otherwise violates any third-party intellectual property right. If Logicworks is unable to cure the infringement, misappropriation or violation as provided in this Section 27(b) within a reasonable period of time, then Logicworks may terminate the Services without liability to Client on ninety days’ prior written notice and Client’s sole remedy will be a refund of any fees paid in advance by Client for Services to be provided after the termination.
28. PUBLICITY. Logicworks may use Client’s name and trademarks in listings of Logicworks’ clients for promotional, marketing and advertising purposes in a manner that accurately reflects the relationship of the parties. Subject to Client’s prior written approval, which Client may not unreasonably withhold, Logicworks may include Client in a case study at Logicworks’ expense.
29. RELATIONSHIP OF THE PARTIES. Logicworks and Client are independent parties. This Agreement and any transaction under this Agreement shall not create an agency, joint venture or partnership between Client and Logicworks. There is no landlord-tenant relationship between the parties. Client has no right to access Logicworks’ premises or Datacenters and no right to possess or own any portion of the Services, including the Configuration.
30. NOTICES. For any notice under this Agreement to be valid, it must be sent by personal delivery, registered or certified mail, in each case return receipt requested and postage prepaid, nationally recognized overnight courier, with all fees prepaid, or email. For a notice under this Agreement to be valid, it must be addressed as follows: (A) if to Logicworks, Attn: Legal, Logicworks Systems Corporation, 155 Avenue of the Americas, Fifth Floor, New York, NY 10013 or to firstname.lastname@example.org, as applicable; (B) if to Client, to one or more of the mailing or email addresses listed on the Hosting Agreement Summary, as applicable; or (C) to any other address designated by the receiving party in a notice in accordance with this Section 30. Subject to this Section 30, a notice under this Agreement is effective when received. An email notice sent by Logicworks is deemed received when sent. An email notice sent by Client is deemed received when Logicworks acknowledges its receipt in a reply email or other written communication. All other notices sent by either party will be deemed received when delivered in person or signed for by the recipient as indicated on the signed delivery receipt. If the receiving party refuses to accept delivery, or if delivery is impossible because of a change in address for which no notice was given, notice will be deemed received upon the rejection or inability to deliver. If a notice is received at the location specified in the receiving party’s address in this Section 30 after 5:00 p.m., or on a day other than a Business Day, notice will be deemed received on the following Business Day.
31. REPRESENTATIONS; NO CHANGES. Each party represents that it has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder, that the execution and delivery of this Agreement will not conflict with or violate any provision of its charter, by-laws or other governing documents, and that each party has taken all necessary steps to execute this Agreement. Client represents and warrants that all information provided to Logicworks for the purpose of establishing and maintaining the Services is accurate and complete, that its use of the Services will comply with all Client Laws, and that it made no changes to this Agreement prior to its Effective Date that were not brought to Logicworks’ attention and acknowledged and accepted in writing by Logicworks.
32. NEUTRAL INTERPRETATION. This Agreement will be construed and interpreted in a neutral manner. This Agreement is a negotiated document and will be deemed drafted jointly by the parties. No rule of construction or interpretation will apply against any particular party based on a contention that the Agreement was drafted by one of the parties.
33. FORCE MAJEURE. If a party’s performance of any part of this Agreement, other than the payment of money, is prevented or delayed by reason of an act of God, act of war, act of terrorism, fire, governmental action, labor dispute or other cause beyond the performing party’s control, then that party will be excused from performance for the length of that prevention or delay.
34. CONFIDENTIALITY. The rights and obligations of the parties under this Section 34 will continue to survive perpetually with respect to trade secrets and for all other Confidential Information until the date that is five years after the date on which Client no longer purchases any Services from Logicworks under any Agreement.
(a) CONFIDENTIAL INFORMATION. “Confidential Information” means: (1) with respect to Logicworks, server configurations, software configurations, proprietary information, proprietary technology, proprietary software, unpublished prices and terms for the Services, audit reports, information regarding product development, information regarding Logicworks’ Datacenters, and information contained in manuals, proposals or memoranda; (2) with respect to Client, non-public Content transmitted to or from, or stored on, Logicworks’ servers; and (3) with respect to both parties, trade secrets, the terms of this Agreement, information that is conspicuously marked as “confidential” or “proprietary”, information disclosed verbally that is designated as “confidential” or “proprietary” at the time of disclosure, and information that, by its nature, would reasonably be considered as confidential to any other person, firm or corporation.
(b) EXCLUSIONS. Confidential Information does not include: (1) information that is independently developed by a recipient without the use of the disclosing party’s Confidential Information as shown by the recipient’s written business records; (2) information that is known by a recipient prior to disclosure by the disclosing party as shown by the recipient’s written business records; or (3) information that is or becomes generally available to the recipient or the public other than through a violation of this Agreement or any legal obligation.
(c) RESTRICTIONS ON USE AND DISCLOSURE. A party shall not disclose the other party’s Confidential Information except: (1) on a need-to-know basis, to its agents, subcontractors and representatives who are bound by applicable confidentiality restrictions at least as stringent as those stated in this Agreement; (2) as required by law, governmental regulation or requirement, court order, or subpoena, in which case and subject to applicable law, the non-disclosing party shall use best efforts to provide prompt notice to the disclosing party so that the disclosing party may seek a protective order or other appropriate remedy; or (3) the terms of this Agreement as may be necessary to establish or assert its rights hereunder. A party shall not use Confidential Information except as required to perform its obligations under this Agreement.
(d) TREATMENT OF CONFIDENTIAL INFORMATION. Each party shall use the same degree of care to protect Confidential Information that it uses to protect its own highly confidential information from unauthorized disclosure, but in no event shall either party use less than a commercially reasonable degree of care. A recipient shall notify the disclosing party promptly upon its discovery of any unauthorized use or disclosure of Confidential Information by the recipient’s employees or agents, and will use commercially reasonable efforts to cooperate with the disclosing party to regain possession of all Confidential Information and to prevent any further unauthorized use or disclosure.
(e) RETURN OF CONFIDENTIAL INFORMATION. On the disclosing party’s written request or upon expiration or termination of this Agreement for any reason, the receiving party shall promptly: (1) return or destroy, at the disclosing party’s option, all originals and copies of all documents and materials it has received containing the disclosing party’s Confidential Information; and (2) deliver or destroy, at the disclosing party’s option, all originals and copies of all summaries, records, descriptions, modifications, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the receiving party, prepared under its direction, or at its request from the documents and materials referred to in the preceding clause (1) of this Section 34(e). On the disclosing party’s written request, the recipient shall provide a notarized written statement to the disclosing party certifying that all documents and materials referred to in subparagraphs (1) and (2) of this Section 34(e) have been delivered to the disclosing party or destroyed as requested.
(f) NON-EXCLUSIVE EQUITABLE RELIEF. Each party acknowledges and agrees that due to the unique nature of Confidential Information there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party may be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity.
35. NON-SOLICITATION. During the Committed Term and any Renewal Term, and for a period of six months after this Agreement is terminated, Client shall not, directly or indirectly, solicit or hire or assist any other person or entity in soliciting or hiring any employee or independent contractor of Logicworks to perform services for any person or entity, including Client, or attempt to induce any employee or independent contractor to leave the employment of Logicworks.
36. ASSIGNMENT; RESALE; BINDING EFFECT. Client may not assign this Agreement or resell the right to use the Services without Logicworks’ prior written consent. Logicworks may assign this Agreement at any time. This Agreement will be binding upon and inure to the benefit of all successors and assigns of Logicworks and Client, who will be bound by all of the obligations of their predecessors or assignors.
37. SUBCONTRACT. Logicworks may subcontract any portion of the Services to a third-party contractor, provided that Logicworks remains fully responsible to Client for the Services pursuant to this Agreement. Any subcontractor will be deemed to be an independent contractor and not a partner, agent or employee of Logicworks.
38. EXPORT CONTROL. Client shall comply with all applicable import, export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Client represents and warrants that the Services will not be accessed, downloaded, used, exported or re-exported, directly or indirectly, to any location, entity, government or person prohibited by the applicable laws or regulations of any jurisdiction, including the U.S., without prior authorization from all relevant government authorities.
39. GOVERNMENT RIGHTS. Client shall not permit the Services to be used by or on behalf of the U.S. Federal Government without Logicworks’ prior written consent. To the extent the Services are used by or on behalf of the U.S. Federal Government, they are provided solely as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” as defined in the FAR and DFARS. The Government will receive no greater than restricted rights as provided in FAR 52.227-14, FAR 52.227-19(c)(1)-(2) (Jun. 1987), DFAR 252.227-7013(c)(1)(ii) (Oct. 1988), DFAR 252.221-7015(c) (May 1991), DFAR 252.227-7014, or DFAR 252.227-7018, as applicable or amended. In addition, the Government will receive no greater than limited rights as provided in FAR 52.227-14, DFAR 252.227-7015, DFAR 252.227-7018, or DFAR 252.227-7013, as applicable or amended. The use of all computer software, documentation and technical data is further restricted in accordance with the terms of this Agreement. All computer software and technical data were developed exclusively at private expense by Logicworks or its licensors or suppliers.
40. IP ADDRESSES. All IP addresses assigned to Client by Logicworks remain sole and permanent property of Logicworks, and are to be used exclusively on the Configuration. If Client cancels Services, Client may not take the IP addresses that it used with the Services. All IP addresses assigned to Client by Logicworks will be reclaimed and re-issued to other Clients in the future.
(a) “Acceptable Use Policy” and “AUP” mean the acceptable use policy posted at http://www.logicworks.net/acceptable-use-policy as of the Effective Date, as it may be amended from time to time in accordance with Section 14 (Logicworks Amendments) or placed on a successor site by Logicworks.
(b) “Additional Services” means all services provided by Logicworks that do not fall within the scope of Hosting Services, including Professional Services.
(c) “Business day” means Monday through Friday, except for days on which the Federal Reserve Bank of New York is closed for holiday observances.
(d) “Client Laws” means Laws to the extent applicable to the Services (1) that are identified by Client or Logicworks as being applicable to Client, and (2) Privacy Laws and Industry Controls that are applicable to the collection, use, storage, backup, availability, integrity, security and destruction of any Content on the Services.
(e) “Configuration” means the combination of computing resources (e.g., Servers, networking components, storage components, bandwidth connections, software and Third-Party Products) that are identified in Client’s Service Order. A Configuration may consist entirely of virtual computing resources that run on a shared physical platform that is maintained by Logicworks or a third party, fully dedicated physical computing resources purchased from Logicworks, or a combination thereof. In addition, a Configuration may be located in one or more Datacenters.
(f) “Commencement Date” means the date on which Logicworks informs Client by email or through its support and ticketing system that the Configuration has been deployed and is available for use.
(g) “Datacenter” means one or any combination of the third-party facilities used by Logicworks to host Servers or any other computing devices or infrastructures, which facilities have backup power, specialized HVAC systems to provide adequate cooling, 24/7 security and specialized fire suppression equipment.
(h) “Downtime” means one or any combination of the types of downtime referred to in this Agreement.
(i) “Hosting Services” means the Configuration made available to Client by Logicworks and the related support, maintenance, backup and other services described in the Service Order(s), Service Terms, Responsibility Matrix and the other portions of this Agreement.
(j) “Intentional Misconduct” means an intentional act or omission intended to cause harm.
(k) “Logicworks Laws” means all laws and regulations applicable to Logicworks as a provider of information technology services.
(l) “Malware” means a program that is inserted into a system with the intent of compromising the confidentiality, integrity, or availability of the data, applications, or operating system of a computer system, or of otherwise annoying or disrupting the operation of a computer system, including viruses, worms, Trojan horses, malicious mobile code and attacker tools.
(m) “Personally Identifiable Information” or “PII” means: (1) information that would be considered “nonpublic personal information” under the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) and its implementing regulations; (2) information concerning an individual that is protected from disclosure by other applicable federal or state laws and regulations, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations; and (3) any nonpublic information that can be used, directly or indirectly, to identify an individual, such as a social security number, driver’s license number, date of birth, email address, and physical, mental, economic or cultural data.
(n) “Privacy Laws” means data privacy, trans-border data flow and data protection laws and regulations, including the Gramm-Leach-Bliley Act and its implementing regulations, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, the Health Information Technology for Economic and Clinical Health Act of 2009 and its implementing regulations, and U.S. State information security, data destruction and data breach notification laws and their implementing regulations.
(o) “Responsibility Matrix” means the responsibility matrix posted at http://www.logicworks.net/responsibilities as of the Effective Date, as it may be amended from time to time in accordance with Section 14 (Logicworks Amendments) or placed on a successor site by Logicworks.
(p) “Server” means a physical or Virtual Server that is identified on a Service Order and deployed and administered by Logicworks.
(q) “Services” means the Hosting Services and Additional Services, collectively.
(r) “Service Level Agreement” and “SLA” mean the service level agreements that are set forth in the Service Terms which are incorporated into the Agreement.
(s) “Service Credit” means one or any combination of the service credits made available to Client under this Agreement.
(t) “Technical Policies” means the written technical policies and requirements posted at http://www.logicworks.net/policies as of the Effective Date, as they may be amended from time to time in accordance with Section 14 (Logicworks Amendments) or placed on a successor site by Logicworks.
(u) “Virtual Server” means one of any number of isolated server instances running on a single physical server.
42. MISCELLANEOUS. The headings in this Agreement are solely for convenience of reference and will not affect its interpretation. This Agreement does not create any third-party beneficiary rights. A fully signed copy of this Agreement made by reliable means (i.e., a photocopy, facsimile, or electronic image) will be considered an original. If any provision in this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions in the Agreement shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of its invalidity, illegality or unenforceability. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the waiving party, and no delay or failure to exercise or enforce any right or remedy hereunder will constitute a waiver of that right or remedy. Express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance, or a waiver of any other right or remedy. The word “including” is a term of expansion, not limitation. Unless otherwise indicated, all references to a day are references to a calendar day and all references to a time of day are references to the time in New York, N.Y. If any date specified in this Agreement as the only day, or the last day, for taking action falls on a day that is not a Business Day, that action may be taken on the next Business Day. If an anniversary date is a date in a calendar month that does not exist in each calendar month, the anniversary will be deemed to occur on the last day of the month in which it would otherwise have occurred (e.g., the one-month anniversary of January 30 will be February 28 or 29, depending on the year).
43. SCOPE OF AGREEMENT; ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties regarding its subject matter, and it supersedes all other oral or written agreements or policies relating thereto. If there is a conflict between or among any of the documents in this Agreement, they will govern in the following order: the Hosting Agreement Summary, most recent Service Order, Service Terms, General Terms, Responsibility Matrix, Technical Policies and AUP. Additional or different terms in any written communication from Client, including any purchase order or request for Services, are void.