Contract Date: Wed 12/19/2018Service Level Agreement
a.Services. WWoW agrees to perform and provide to Client, services consisting of nonexclusive electronic access to a digital information processing, transmission and storage system (“Server”) to store Client's Software Applications (“Applications”) and make the Applications available on and via the global computer communications network (“Internet”) (“Hosting Services”) and to provide Client with additional services as may be agreed to in writing from time to time (“Additional Services”). The Hosting Services and any Additional Services are collectively referred to as the “Services.” Additional Services may include development services, authorship or creation server hosting, managed IT services or other services related to this Agreement and will be billed at WWoW’s then current rates.
b. Availability of Services. Subject to the terms and conditions of this Agreement, WWoW shall attempt to provide the Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Client agrees that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which WWoW may undertake from time to time; or (iii) causes beyond the control of WWoW or which are not reasonably foreseeable by WWoW, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. Client agrees that WWoW has no control of availability of Services on a continuous or uninterrupted basis.
c. WWoW Materials. In connection with performance of the Services and at the sole discretion of WWoW with no obligation, WWoW may provide to Client certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by WWoW or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to Client, and other know-how, methodologies, equipment, and processes used by WWoW to provide the Services to Client (“WWoW Materials”).
d. Client Content. Client shall be solely responsible for providing, updating, uploading and maintaining the Applications and any and all Software Applications, files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Applications, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and text (“Client Content”). The Client Content shall also include any registered domain names provided by Client or registered on behalf of Client in connection with the Services.
2. Licenses and Proprietary Rights
a. License of Client Content. Client grants to WWoW, and WWoW accepts from Client, a nonexclusive, worldwide and royalty tree license to copy, display, use and transmit on and via the Internet the Client Content in connection with WWoW's performance or enforcement of this Agreement.
b. License of WWoW Materials. Subject to the terms of this Agreement, including but not limited to, prompt payment of all fees, WWoW grants to Client, and Client accepts from WWoW, a limited, non-transferable, non-exclusive license, for the term of this Agreement, to copy and use the WWoW Materials, solely in connection with the Applications and for Client's internal business purposes.
c. WWoW Proprietary Rights. WWoW shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the WWoW Materials and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed in conjunction with Client, and whether or not developed by WWoW, Client or any contractor, subcontractor or agent for WWoW or Client. To the extent that ownership of the WWoW Materials do not automatically vest in WWoW by virtue of this Agreement or otherwise, Client agrees to transfer and assign to WWoW all right, title and interest in the WWoW Materials and protectable elements or derivative works thereof. Upon any termination or expiration of this Agreement, Client shall return all WWoW Materials to WWoW and erase and remove all copies of all WWoW Materials from any computer equipment and media in Client's possession, custody or control.
3. Applications and Services Terms and Limitations
a. Storage and Security. At all times, Client shall bear full risk of loss and damage to the Applications and all Client Content. Client shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Client Content; (ii) maintain independent archival and backup copies of the Applications and all Client Content; (iii) ensure the security, confidentiality and integrity of all Client Content transmitted through or stored on the Server; and (iv) ensure the confidentiality of Client's password. The Server, WWoW and Services are not an archive and WWoW shall have no liability to client or any other person for loss, damage or destruction of any Client Content. If Client's password is lost, stolen or otherwise compromised, Client shall promptly notify WWoW, whereupon WWoW shall suspend access to the Services by use of such password and issue a replacement password to Client's authorized representative.
b. Acceptable Use Policy. Client is solely responsible for all acts, omissions and use under and charges incurred with Client's account or password or in connection with the Applications or any Client Content displayed, linked, transmitted through or stored on the Server. Client agrees not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Client does not have authorization to access or at a level exceeding Client's authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (viii) engage in any other activity deemed by WWoW to be in conflict with the spirit or intent of this Agreement or any WWoW policy.
c. Rights of WWoW. Client agrees that WWoW may, in its sole discretion, remove or disable access to all or any portion of the Applications or Client Content stored on the Server at any time and for any reason. WWoW has no obligation to monitor the Applications or any Client Content, but reserves the right in its sole discretion to do so.
4. Payment Terms
a. Payment. Client shall pay WWoW for the Services and license hereunder at Section 2(b) the monthly amounts agreed to in writing by the Parties, and at such times provided by the payment schedule specified therein. WWoW expressly reserves the right to change its rates charged hereunder for the Services at any time, upon thirty (30) days notice to Client. In the event that Client exceeds the agreed upon scope of the Services (for example, available bandwith, CPU or disk utilization space), Client shall pay WWoW for such additional services not within the scope of the Services agreed to by the Parties at WWoW's then current rates.
b. Taxes. Client shall pay all taxes, duties and levies of any governmental authority, exclusive of taxes on WWoW's net income. If Client claims exemption from any taxes resulting from this Agreement, Client shall provide WWoW with documentation required by the taxing authority to support an exemption.
5. Warranties and Disclaimer
a. WWoW Warranties. WWoW warrants to Client that: (i) WWoW has the right and authority to enter into and perform its obligations under this Agreement; (ii) WWoW shall perform the Services in a commercially reasonable manner; and (iii) that the Services, throughout the term of this Agreement shall conform substantially to the scope agreed to by the Parties in writing. Client's sole remedy in the event of any breach of this warranty will be for WWoW to take reasonable commercial efforts for thirty (30) days to cause the Services to conform substantially to the scope of Services agreed to by the Parties.
b. Client Warranties. Client represents and warrants to WWoW that. (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Client owns the Client Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the Client Content on and within the Applications.
c. Disclaimer of Warranty. EXCEPT AS EXPRESSLY STATED AT SECTION 5(a), WWoW MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING ANY SUBJECT MATTER OF THIS AGREEMENT.
6. Limitation of Liability
EXCLUSIVE OF LIABILITY UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL WWoW BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF WWoW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WWoW’S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO WWoW HEREUNDER FOR THE ONE (1) YEAR PERIOD PRIOR TO ANY ACT OR OMISSION GIVING RISE TO ANY POTENTIAL LIABILITY.
Client agrees to indemnify, hold harmless and defend WWoW and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees and costs, arising from or relating to: (i) Client's breach of this Agreement, (ii) any negligence or willful misconduct of Client; (iii) any allegation that the Applications or Client Content infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets; or (iv) any action or conduct of WWoW undertaken pursuant to this Agreement. Client agrees that WWoW shall have the right to participate in the defense of any such claim through counsel of its own choosing.
8. Term and Termination
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter for one (1) year, unless sooner terminated by either party. This Agreement shall renew automatically for successive one (1) year terms unless terminated by either party with thirty (30) days of the expiration of the prior term.
b. Termination. This Agreement may be terminated: (i) by Client upon thirty (30) days written notice to WWoW; (ii) by WWoW, immediately upon notice to Client; or (iii) by a written agreement executed by the parties. Notwithstanding the foregoing, WWoW reserves the right, in its sole discretion and without notice, at any time and for any reason, to suspend Client's access to or use of the Server, Services or any portion thereof.
c. Rights Upon Termination. In the event this Agreement is terminated for any reason, Client shall pay WWoW, on a pro rata basis, for all unpaid Services provided to Client up to the date of termination.
a. Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Assignment. Client may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement.
c. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
d. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by call back. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.
f. Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
g. Law. This Agreement shall be governed in all respects by the laws of the State of
Colorado without regard to its conflict of laws provisions. Venue for any dispute shall be the state and federal courts of Colorado.
h. Survival. The definitions of this Agreement and the respective rights and obligations of the parties under Sections 1(d), 2(a), 2(c), 3, 4, 5(b), 5(c), 6, 7, S(c) and 9 shall survive any termination or expiration of this Agreement.
i. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
j. Entire Agreement. This Agreement, together with any scope of Services which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
10. Service Credits
WWoW Communications will issue service credits equal to 1 day of hosting fees for outages that total more than 60 mins. in a single day. The customer is responsible for requesting services credits.
An outage is sustained packet loss within the WWoW Network, Connectivity issues that are isolated to a customer's internet connection are not considered service outages. WWoW Support will accomidate customers that require a trace route test to be preformed to test end to end connectivity.
12. Maintainence Window
WWoW Reserves the right to establish a maintenance window time frame to make repairs to servers and or make configuration changes to the hosting facilities. This change window will occur after 6:00 PM MST Monday through Friday.