Total Uptime Cloud Service Terms & Agreement
1. DEPLOYMENT OF SERVICES. The TOU shall not be binding on Total Uptime during any unpaid trial periods. If You are a paid subscriber, the TOU shall not be binding on Total Uptime until Total Uptime deploys the Services to You. Total Uptime may refuse to deploy or provision Services to You for any reason, including, without limitation, if You provide inaccurate or incomplete information. Total Uptime shall notify You by e-mail when Services are deployed.
2. USE OF SERVICES. Upon deployment of Services, Total Uptime grants You a non-exclusive, non-transferable right to access and use the Services solely for Your internal purposes. The Services are not for resale to any third party or use on a service bureau basis unless specifically subscribed to, in which case you would have additional reseller (“Reseller”) rights and access. Except as set forth herein, Total Uptime grants no other rights or licenses to You with respect to the Services.
3. TERM & TERMINATION. For all Services, the term of this TOU ("Term") shall commence on the date Total Uptime deploys the Services (the "Effective Date") and shall continue in effect for a period specified on any executed order form or for one (1) calendar month, whichever is longer, counted from the first day of the next full month following the Effective Date. The Term shall renew automatically unless You provide written notice via email to us of Your intent not to renew at least seven (7) days prior to the end of the then-current Term. Cancellations for Services take effect on the last day of a calendar month regardless of Effective Date. Customer may terminate this TOU by written notice in the event that Total Uptime breaches this TOU and such breach is not cured within thirty (30) days of Customer providing written notice to Total Uptime of such breach. Total Uptime may terminate this TOU at any time without prior notice to You and specifically reserves the right to terminate this TOU in the event that You consistently exceed monthly usage allotments and disregard our emails requesting You to reduce Your usage or upgrade to a new package.
4. USE OF SERVICES. Customer shall not use, or allow use of, the Services in any of the following manners ("Abuses") and shall be responsible for any such Abuses if committed by its end users: (a) Use of the Services in an unlawful manner or for an unlawful purpose, including display of unlawful content; (b) Use of the Services to transmit or distribute material that contains a virus, "Trojan Horse," adware, spyware or data that is designed to corrupt or disable any computer file, database or network; (c) Use of the Services in a manner that, in Total Uptime’s discretion, directly or indirectly produces or threatens to produce a negative effect on the Total Uptime network or that interferes with the use of the Services or Total Uptime network by other customers or authorized users, including, without limitation, overloading servers or causing portions of the Total Uptime network to be blocked; (d) Use of the Services to post substantively similar articles to an excessive number of newsgroups or to send unsolicited and/or mass e-mailings, whether or not such activities provoke complaints from the recipients; (e) Altering any aspect of the Service where such is not authorized by Total Uptime; or (f) Use of the Services in a manner that causes or is designed to cause, a denial-of-service or similar attack to or from any other party whether on the Total Uptime network or on another network. Total Uptime may suspend a domain, a record, or the Services, as applicable, immediately and without prior notice if, in Total Uptime’s reasonable determination, an Abuse occurs.
5. FEES, PAYMENT TERMS & TAXES. Customer shall pay Total Uptime the service package fee associated with the Services ("Services Fee"). In the event that Customer uses the Services in excess of the amounts set forth in the service package, Customer shall pay the applicable Overage Fees set forth therein ("Services Fee" and "Overage Fees" individually and collectively "Fees"). Fees for any renewal Term are subject to change, provided that Total Uptime notifies Customer in writing of any such change at least thirty (30) days before the commencement of the renewal Term. Total Uptime shall charge applicable Fees to Customer’s credit card in U.S. dollars. Total Uptime may not issue an invoice unless requested. In the event Customer disputes any Fees, Customer must notify Total Uptime in writing of the reasons for, and the amount of, such dispute, within ten (10) days of the date of billing. If Total Uptime commences legal proceedings to collect any Fees and prevails, Customer shall pay Total Uptime’s reasonable attorneys’ fees, court costs and other collection expenses. All Fees for Services are calculated exclusive of any federal, state or local sales, excise, value-added or similar taxes. Any taxes or similar liabilities that may now or hereafter be levied on the Services which are chargeable to Customer by a government authority shall be paid by Customer. In the event that Total Uptime is required to pay or pays these liabilities, Customer shall reimburse Total Uptime for such payments upon receipt of an invoice and showing of indebtedness from Total Uptime. Total Uptime shall not provide refunds with respect to the Services.
6. SERVICE LEVEL AGREEMENT. Total Uptime shall deliver the Services subject to the service level agreement attached hereto at Exhibit A ("SLA"). Total Uptime’s failure to deliver the Services as set forth in the SLA shall not constitute a breach of the TOU and Customer’s sole and exclusive remedy, and Total Uptime’s sole and exclusive obligation, in the event that Total Uptime fails to deliver the Services as set forth in the SLA will be the remedies set forth in the SLA.
7. SERVICE CHANGES. Total Uptime may make changes to the Services without notice to Customer. In the event that, in Total Uptime’s sole estimation, a change to the Services permanently and materially diminishes or impairs the functionality of the Services ("Change"), Customer may terminate the TOU without penalty by providing written notice to Total Uptime within thirty (30) days of the date the Change takes effect. Any use of the Services by Customer after such date will be deemed acceptance of the Change by Customer.
8. INTELLECTUAL PROPERTY. Each party retains all right, title and interest in and to its intellectual property. No licenses will be deemed to have been granted by either party to any of its intellectual property except as expressly authorized herein. Customer acknowledges that it has no proprietary interest in the Services, including, but not limited to, the servers, software, or data used by Total Uptime in the provision of the Services.
9. USE OF NAME & TRADEMARKS. Neither party shall use the trademarks or service marks of the other party in any advertising, promotional or marketing materials without such other party’s prior written consent, provided, however, that Total Uptime may identify Customer as a customer of Total Uptime without prior approval.
10. REPRESENTATIONS, WARRANTIES & DISCLAIMERS. Customer represents and warrants that it has the requisite corporate power and authority to enter into this TOU and to carry out the transactions contemplated hereunder. Customer represents and warrants that it will comply in all respects with the export restrictions applicable to any technology delivered to the Customer and will otherwise comply with the applicable United States laws and regulations in effect during the term. Customer warrants that (a) it has all right, title and interest to use and/or access all of the applications or content Customer provides to Total Uptime to perform the Services and all of the content accessed by Total Uptime at Customer’s direction to perform the Services (collectively, "Content"); and (b) it shall provide complete, accurate, and current information as is necessary for Total Uptime to perform the Services and shall update this information as needed to keep all such information complete, accurate, and current.
TOTAL UPTIME DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR SECURE AND DOES NOT WARRANT THE SERVICES AGAINST MALFUNCTION OR CESSATION. ALL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND TOTAL UPTIME MAKES NO WARRANTIES TO CUSTOMER OR TO ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, END USERS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL TOTAL UPTIME BE LIABLE FOR ANY LOST PROFITS, LOST DATA, OR LOST EQUIPMENT, ANY WEBSITE OR NETWORK DOWNTIME, COST OF PROCURING SUBSTITUTE SERVICES OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, WHICH ARE RELATED TO THIS TOU AND THE PROVISION OF SERVICES HEREUNDER, EVEN IF TOTAL UPTIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR BREACH OF ANY TERM FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH SHALL BE THE EXCLUSIVE REMEDY OF CUSTOMER AND TOTAL UPTIME’S SOLE LIABILITY. IN NO EVENT SHALL TOTAL UPTIME’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY DIRECT DAMAGES EXCEED THE LESSER OF: (i) ACTUAL DIRECT DAMAGES OR (ii) AMOUNTS ACTUALLY PAID BY CUSTOMER TO TOTAL UPTIME IN CONNECTION WITH THE SERVICE OVER THE PRECEEDING TWELVE (12) MONTHS FROM THE TIME THE EVENT RESULTING IN LIABILITY OCCURS.
12. INDEMNIFICATION. Customer will defend, indemnify and hold harmless at its own expense any action brought against Total Uptime, its directors, officers, or employees by a third party to the extent that the action is based on a claim, suit, or proceeding ("Claim"): (a) that arises out of or relates to the Content including, without limitation, a claim Total Uptime has infringed upon any third party’s intellectual property rights in the Content; (b) that arises out of or relates to Customer’s or its end users use of the Services other than a claim that the Service itself as an application infringes the intellectual property rights of a third party; (c) brought by Customer’s end users; or (d) that arises out of breach of Section 4 hereof. Upon receiving notice of any claim covered by the indemnity obligations set forth herein, Total Uptime shall promptly notify the Customer in writing of the claim. Customer may assume sole control of the defense of any such claim. Total Uptime may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation and defense. Customer will pay those costs and damages, including reasonable attorneys’ fees, awarded against Total Uptime by a court of competent jurisdiction in any such action that is specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Unless such settlement is solely for monetary damages for which Total Uptime is fully indemnified hereunder, Customer shall not settle any such claim without the Total Uptime’s prior, written consent, which shall not be unreasonably withheld or delayed.
13.1 Assignment. Customer may not assign this TOU without the written permission of Total Uptime and any violation hereof shall be a breach hereof and will be void ab initio.
13.2 Notices. Notice of non-renewal by Customer shall be given as set forth in Section 3 above. Any other notice required under this TOU, other than routine operational communications, shall, if to Customer, be sent to Customer at the email address provided herewith and, if to Total Uptime, be sent to Total Uptime at firstname.lastname@example.org or if in writing to PO Box 2228, Skyland, NC 28776 marked "Attention: General Counsel". Notices sent to Customer shall be deemed given when sent. Notices to Total Uptime shall be deemed given: (a) three (3) business days after being transmitted with delivery costs paid via an express, overnight courier with delivery tracking; or (b) upon delivery when an authorized employee of Total Uptime accepts receipt in writing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. Total Uptime may contact Customer via e-mail and/or mail concerning routine operational communications, Service changes, upgrades, new Services or other relevant information.
13.3 Relationship of parties. The parties are independent contractors and nothing herein creates a relationship of partnership, employer and employee, or principal and agent. Neither party has the authority to bind, act on behalf of, or represent the other.
13.4 Severability and Modification. If any provision of the TOU is adjudged by a competent authority to be invalid, void or unenforceable under applicable law, such provision will be modified or eliminated to the minimum extent necessary to effect the intent of the parties and the remainder of the provision will not be affected thereby and will continue in full force and effect.
13.5 Waiver of Default. No waiver or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, waiver, or discharge is sought to be enforced. A delay or omission by either party to exercise any right or power under the TOU shall not be construed to be a waiver thereof. A waiver by either of the parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant.
13.6 Survival. Any provision of the TOU which contemplates performance or observance subsequent to any termination or expiration (in whole or in part) shall survive any such termination or expiration and continue in full force and effect, such to include specifically Sections 5, 8 and 12.
13.7 Third Party Beneficiaries. This TOU shall not be deemed to create any rights in third parties, including end users, of a party, or to create any obligations of a party to third parties.
13.8 Export Control. Total Uptime may be subject to regulation by agencies of the United States Government, including regulations which prohibit export of certain equipment, technology, hardware and software to certain countries. Any obligations of Total Uptime to Customer hereunder shall be subject to, and if applicable, limited by, such laws and regulations.
13.9 Governing Law. The TOU shall be governed by, and construed in accordance with, the laws of the State of North Carolina, without regard to its conflict of law principles. The parties hereby expressly opt-out of applicability of the Uniform Computer Information Transactions Act (UCITA).
13.10 Force Majeure. Total Uptime shall be excused from any delay or failure in performance of its obligations hereunder to the extent caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, acts of terrorism, civil disorder, war, national or local emergency, acts of government, compliance with any statutory obligation or governmental requirements, fire, flood, or weather of exceptional severity, denial-of-service (DoS) or distributed-denial-of-service (DDoS) attacks, collectively ("Force Majeure Events"). Total Uptime shall not be liable for any loss or damage resulting from Force Majeure Events.
13.11 Arbitration. Any Dispute arising out of or relating to the TOU, or the breach thereof, will be settled by final and binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules and its Optional Procedures for Large, Complex Commercial Disputes. The arbitration will be heard and determined by a panel of three (3) arbitrators selected by the AAA, and each arbitrator will be an attorney having experience and familiarity with information technology disputes. The arbitrators will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions of arbitrability, including but not limited to, choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. Each party will bear its own costs relating to such arbitration, and the parties will equally share the arbitrators’ fees. The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the parties’ proprietary and Confidential Information. In no event will any arbitration award provide a remedy beyond those permitted under the TOU, and any award providing a remedy beyond such will not be confirmed, no presumption of validity will attach, and such award will be vacated. Either party may, without waiving any remedy under the TOU, seek from any court of competent jurisdiction within the State of North Carolina any interim or provisional relief that such party deems necessary to protect its Confidential Information pending the establishment of the arbitral tribunal or pending the arbitral tribunal's determination of the merits of the claim.
13.12 Entire Agreement. The TOU constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, with respect to the subject matter contained therein.
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") for Service is subject to the terms of, and is hereby incorporated into, the Service Order. In the event of a conflict between the terms of Service Order and the terms of this SLA, this SLA shall control. Failure by Total Uptime to meet this SLA shall not constitute a breach of the Service Order, but shall afford Customer the remed(y/ies) set forth in Section 4 below.
1.1 "Total Uptime Server Network" means the integrated hardware and software as combined to form the network deployed and controlled by Total Uptime in connection with the provision of the Services. The Total Uptime Server Network shall not include any third party hardware, software or networks not deployed and under the control of Total Uptime including telecommunications services or infrastructure providing a connection between any Total Uptime servers used in the provision of the Services.
1.2 "Service Outage" means, for Cloud DNS that the Total Uptime Server Network failed to respond to all DNS queries for more than five (5) minutes in the aggregate per calendar month and/or zone file changes or updates made via the web management interface or the API did not propagate the Total Uptime Server Network within two (2) minutes. For Cloud Load Balancing, Acceleration, Cloud VPN, Web Application Firewall and/or other Network-based Services, that the Total Uptime Server Network failed to pass traffic through to the Customer’s Real Servers for more than five (5) minutes in the aggregate per calendar month, provided Customer’s Real Servers were online and available. For Cloud Computing, that the Customer rented Server(s) was/were not online and available for use for one or more periods of five (5) consecutive minutes in the calendar month.
2. Service Level
2.1 During the Term, Total Uptime will use commercially reasonable efforts to provide the Services without a Service Outage. Total Uptime, in its sole but reasonable discretion, shall determine whether a Service Outage occurred based on its records and data or, if applicable, the third-party external monitoring systems that Total Uptime subscribes to.
2.2 Unavailability of the Services due to any of the following shall not be considered a Service Outage:
(a) Unavailability of the Services due to: (i) Customer’s misuse of the Services through commission of an Abuse, application programming or non-performance thereof, or in the case of Cloud Computing, Customer’s restarting or shutdown of a Server; (ii) negligent or unlawful acts by Customer or Customer’s agents or its suppliers; (iii) problems or delays associated with Customer’s domain name registrar; (iv) unavailability of Customer’s network or the network of the party conducting the query or connection attempt, including that resulting from telecommunications or ISP (Internet Service Provider) failures; (v) problems or delays associated with third party networks or networks outside the Total Uptime Server Network; (vi) Force Majeure Events or denial-of-service (DoS) or distributed-denial-of-service (DDoS) attacks (e.g., synchronized number sequence attacks) or similar malicious attack on the Total Uptime Server Network. For DoS or DDoS attacks, Total Uptime provides this service as a “best-effort” and will make every reasonable attempt to mitigate these types of attacks until they exceed 2 Gbps (two gigabits per second) for one hour or more (Standard, Professional and Premium package subscription levels) or 10 Gbps (ten gigabits per second) for two hours or more (Enterprise or higher package subscription levels), at which point Total Uptime may null route or otherwise completely block traffic or otherwise temporarily disable Customer’s affected service in its sole discretion to protect other clients or conserve bandwidth.
(b) Unavailability of the Services due to suspension or termination of the Services by Total Uptime in accordance with the terms of the Service Order.
(c) Unavailability of the Services if Customer’s domains are not properly configured to utilize all name servers within the Total Uptime Server Network which are designated by Total Uptime as available for Customer’s level of service.
(d) Unavailability of the Services if Customer has misconfigured any of the settings in the web-based management portal, whether intentionally or by accident.
3. Scheduled Maintenance.
3.1 Total Uptime may perform maintenance on its systems at any time due to the highly redundant architecture of the global network. Scheduled Maintenance which may result in the customer’s inability to access (a) client-side web-based management interfaces, (b) zone/data transfer mechanisms, (c) applications programming interfaces (APIs) or other customer accessible data manipulation software, or (d) Customer’s Cloud Computing machines will only occur during a time period that is communicated to the Customer at least forty-eight (48) hours in advance. Notice of Scheduled Maintenance will be provided to Customer’s designated point of contact by a method elected by Total Uptime (usually email, but also including telephone, fax, pager, mail or notification display on the Total Uptime Customer management portal dashboard). Scheduled Maintenance only affects Customer’s ability to access the items listed in (a), (b), (c) and (d) above. Otherwise, all services will continue to operate as normal during Scheduled Maintenance, e.g. Cloud DNS will continue to resolve DNS queries, Web Application Firewall, Acceleration, Cloud VPN, Cloud Load Balancing and other Network-based Services will continue to pass/route traffic.
4. Remedies for Service Outages.
4.1 If Total Uptime determines that a Service Outage reported by Customer occurred, Total Uptime will issue to Customer a credit, upon Customer’s request, calculated on the pro-rated charges for the Services Fee ("Credit") for the Services as follows: If the Service Outage lasted for more than five (5) minutes in the aggregate, but less than four (4) hours in the aggregate during any calendar month, then Total Uptime will issue a Credit to be applied towards the next monthly invoice for Services provided under this Agreement, equal to the pro-rated charges for one (1) week of the Services. If Total Uptime determines that the Service Outage lasted for four (4) or more hours in the aggregate ("Prolonged Service Outage") during any calendar month, then Total Uptime will issue a Credit to be applied towards the next monthly invoice for Service provided under this Agreement, equal to the pro-rated charges for one (1) month of the Services.
4.2 Any claims for a Credit must be made by Customer within thirty (30) days after the alleged Service Outage and will be made to Total Uptime’s customer support organization in writing. Claims made thirty (30) days after the event will be eligible for the remedies described herein at Total Uptime’s sole discretion. Customer will provide to Total Uptime all relevant details and documentation supporting Customer’s claims of a Service Outage. Total Uptime will investigate the claim and will respond back to Customer within ten (10) business days of receipt of the notification of a claim from Customer.
4.3 Credits shall only apply to billable Services provided pursuant to a Services Fee and will not apply to any Total Uptime professional services or any other form of custom development or support provided by Total Uptime. Furthermore, Customer is not eligible for Credits if Customer’s account is more than thirty (30) days past due at the time of the Service Outage. Customer’s sole and exclusive remedy, and Total Uptime’s sole and exclusive liability, in the event Total Uptime fails to meet this Service Level Agreement, shall be to receive a credit in accordance with the terms of this Section 4.