SAAS AGREEMENT
INVESTOR DEAL ROOM, LLC, A TEXAS LIMITED LIABILITY COMPANY ("IDR") IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CHECKING A BOX INDICATING ACCEPTANCE, YOU WILL BE CONTRACTUALLY BOUND TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT IN YOUR CAPACITY AS THE CUSTOMER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THESE TERMS IN THE CAPACITY OF THE CUSTOMER. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON, THEN IDR IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
CANCELLATION OF YOUR SUBSCRIPTION: YOUR SUBSCRIPTION AUTOMATICALLY RENEWS UNTIL YOU CANCEL. YOU MAY CANCEL YOUR SUBSCRIPTION AND SUBSCRIPTION FEES AT ANY TIME BY SENDING IDR AN EMAIL TO
[email protected] REQUESTING A CANCELATION. CANCELLATION WILL BECOME EFFECTIVE UPON YOUR NEXT MONTHLY RENEWAL DATE. THERE WILL BE NO REFUNDS FOR PRE-PAID FEES.
1. Definitions.
1.1 "Services." The web services produced by the IDR Web App that are accessible via the Web Portal designated for use by Customer, including any updates or upgrades to such services which may be generally released by IDR to all customers from time to time.
1.2 “IDR Web App.” The proprietary web software application hosted by IDR to configure the Customer Web Portal, and after configuration by customer to access the Services via the Customer Web Portal.
1.3 “Customer Web Portal.” The IDR Web App and Customer database as configured and hosted by IDR and designated by IDR for access and use by Customer under the terms and conditions of this Agreement.
1.4 "IDR Technology." The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and provide the Services via the Site.
1.5 "Site." IDR's investordealroom.com website including the IDR Technology.
1.6 "Affiliate." With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
1.7 "Internet Data Centers." Any of the facilities owned or controlled by IDR and used by IDR to provide the Services. These facilities house the IDR Technology used for the provision of Services.
1.8 "Customer Data." Customer's information or other data processed, stored or transmitted by, in or through the Services, including without limitation personal information relating to the Customer's personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
1.9 "Order Form." A document that expressly incorporates the terms of this Agreement which provides the terms and conditions for Customer’s purchase of rights to access and use the Services.
1.10 "Proprietary Rights." Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
2. Configuration Process; Training and Acceptance.
2.1 Promptly after the Effective Date, the parties will mutually agree upon Customers configuration requirements regarding custom URL and branding features. IDR will configure Customer’s designated Web Portal with a temporary custom URL for access and use by Customer including without limitation: (i) a hosting environment, customer’s branding features, company name, email address, and physical address.
2.2 Upon the completion of Web Portal configuration and designated for use by Customer, IDR will provide Customer with access protocols to the temporary custom URL for the Web Portal. IDR will provide training and consultation regarding the use and operation of the Web Portal.
2.3 Upon receipt of written acceptance of by Customer of the temporary custom URL for the designated Web Portal, IDR will point the URL to IDR’s hosting facility, whereupon the Services will be available for public access and use via protocols provided by IDR (“Go-Live”).
3. Hosting. Commencing with Go-Live, IDR will provide hosting for the public-facing Web Portal through industry-leading Internet Data Centers located in the United States.
4. Grant of Rights for Access and Use of Services.
4.1 Subject to the terms and conditions hereof, during the term hereof, IDR hereby grants to Customer and its Affiliates solely for their internal business purposes a non-exclusive, non-transferable, worldwide right and license to access use the Services via the Web Portal designated for use by IDR. All rights not expressly granted to Customer herein are expressly reserved by IDR.
4.2 Customer is solely responsible for loading Customer Data to its designated Web Portal and for day-to-day management of the Web Portal. IDR will provide Customer with written and video instructions for Web Portal management and loading Customer Data. If Customer requests IDR to load Customer Data to the Web Portal, IDR will provide such services at a mutually agreed-upon fee.
5. Use Restrictions. Customer covenants and agrees that its use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; and (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the IDR Technology; or (iv) to access, alter, or destroy any information of any customer of IDR by any fraudulent means or device, or attempt to do so.
6. Security. Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, IDR shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access in Internet Data Centers housed in a secure location in the United States (the "Data Security Standard"). Provided that IDR is in compliance with the Data Security Standard, the parties agree that IDR shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to IDR at the time. IDR will promptly report to Customer any unauthorized access to Customer Data promptly upon discovery by IDR, and IDR will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
7. Backups. At no additional charge to Customer, IDR shall make daily incremental backups (the "Incremental Backup") and weekly full backups (the "Full Backups") of Customer Data archived with the IDR Technology. The prior day incremental backup and a copy of the weekly backup shall be stored off-site in a secure facility designed to store and maintain backups for emergency use. Upon storage of a weekly backup in the off-site facility, the prior weekly backup shall be made available to Customer by electronic delivery.
8. Monitoring of Customer's Use. IDR reserves the right to internally monitor Customer's usage of the Site and Services.
9. No Commingling of Customer Data. The Services shall be operated in an environment where (i) all Customer Data shall be stored on files totally separate from those of other customers of IDR, or (ii) all files containing Customer Data are partitioned sufficient to protect the security and privacy of Customer Data.
10. Fees. Customer shall pay to IDR fees for the Services and technical support services provided hereunder in accordance with the applicable Order Form.
11. Taxes. All fees are exclusive of taxes or duties. If IDR is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on IDR's net income, then such taxes and/or duties shall be billed to and paid by Customer immediately upon receipt of IDR's invoice and supporting documentation for the taxes or duties charged.
12. Technical Support. During the term hereof, IDR shall provide technical support in the form of responses to questions by email no additional charge. IDR reserves the right to charge additional mutually-agreed upon fees for additional support, including without limitation, telephone and video-based support.
13. Technical Contacts. Customer shall designate one of its employees as its principal contact for communicating with IDR regarding technical issues hereunder. Customer may change its technical contact from time to time by written notice to IDR.
14. Proprietary Rights Ownership.
14.1 Ownership of the Proprietary Rights embodied in the Site, Services, and IDR Technology shall remain exclusively vested in and be the sole and exclusive property of IDR and its licensors. In addition, Customer hereby transfers and assigns to IDR any rights Customer may have to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer personnel relating to the Service. The investordealroom.com domain name, product names, and logos associated with the Services are trademarks of IDR or third parties, and no right or license is granted to use them.
14.1 Customer retains sole and exclusive ownership of all Proprietary rights embodied in the Customer Data.
15. Mutual Exchange of Confidential Information. The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party ("Owner") may disclose to the other party ("Recipient").
15.1 Definition of Confidential Information. For purposes hereof, "Confidential Information" means (i) the terms and conditions hereof, (i) non-public aspects of IDR's Site and the operation thereof, IDR Technology, and the Services and additional services provided by IDR, and IDR's business and technical information, and data, (iii) Customer Data, and non-public aspects of Customer's technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Services or this Agreement, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or its affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure.
15.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.
15.3 Exclusions. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
16. General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, Customer agrees that IDR is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of IDR.
17. Customer Representations and Warranties.
17.1 Customer represents and warrants that (i) the performance of its obligations and use of the Services (by Customer and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other IDR customers of IDR services.
17.2 Customer acknowledges that (i) IDR does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
17.3 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, IDR will have the right to suspend immediately any Services if deemed reasonably necessary by IDR to prevent any harm to IDR and its business. IDR will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, IDR will promptly restore the Services.
18. IDR Representations and Warranties. IDR represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable laws or regulations of the United States or cause a breach of any agreements between IDR and any third parties. In the event of a breach by IDR of the foregoing warranties, Customer's sole remedy is termination of this Agreement upon written notice to IDR.
19. IDR Limited Warranty. IDR represents and warrants that the Services will: (i) conform to all material operational features as described in the applicable Order Form, and (ii) be free of errors and defects that materially affect the performance of such features ("Limited Warranty"), provided that Customer notifies IDR of any non-conformity, error, or defect. Customer's sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of non-conforming Services at IDR's expense.
20. Service Level Agreement. The service level agreement set forth in Exhibit A ("Service Level Agreement") states Customer's sole and exclusive remedy for any performance failure of the Services in terms of uptime levels of service.
21. Warranty Disclaimers. EXCEPT FOR THE WARRANTIES PROVIDED IN SECTIONS 18 AND 19 ABOVE, NEITHER INVESTOR DEAL ROOM NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND INVESTOR DEAL ROOM AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICE, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. INVESTOR DEAL ROOM DOES NOT WARRANT THAT THE SERVICE OR SITE WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SERVICE OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR 100% SECURE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THAT INVESTOR DEAL ROOM HAS NO CONTROL OVER THE INTERNET, AND THAT INVESTOR DEAL ROOM IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
22. Disclaimer of Actions of Third Parties. IDR does not and cannot control the flow of data to or from IDR's Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer's connections to the Internet (or portions thereof). Although IDR will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, IDR cannot guarantee that such events will not occur. INVESTOR DEAL ROOM DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.
23. Intellectual Property Indemnity. Except for third party software including without limitation open source software, IDR will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against Customer that the IDR Technology or Services infringe on any U.S. intellectual property right of a third party; provided, however, that IDR is notified in writing of such claim promptly after such claim is made upon Customer. IDR shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without IDR's prior written approval. IDR shall have no liability or obligation if the claim arises from (i) any alteration or modification to the IDR Technology or Services other than by IDR, (ii) any combination of the IDR Technology or Services by Customer with other programs or data not furnished by IDR, or (iii) any use by Customer of the IDR Technology or Services that is prohibited by this Agreement or otherwise outside the scope of use for which the IDR Technology or Services are intended.
24. Options for Infringement Claims. If any party is enjoined from using the IDR Technology, or if IDR believes that the IDR Technology may become the subject of a claim of intellectual property infringement, IDR, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the IDR Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Order Form; or (iii) terminate this Agreement, in which case IDR shall refund to Customer any and all subscription fees paid in advance by Customer for those Services not provided by IDR and provide, at Customer's request and free of charge, the Customer Data in a database document format. This Section and the preceding Section sets forth the entire liability of IDR to Customer for any infringement by the IDR Technology or Services of any intellectual property right of any third party. Notwithstanding the foregoing, this Section does not apply to third party software including without limitation open source software.
25. Disclaimer of Incidental and Consequential Damages. EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26. Liability Cap. Except for IDR's indemnity expressly provided herein and IDR's confidentiality obligations, IDR's aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of fees paid by Customer for the three (3) months immediately preceding the claim for such liability.
27. Term of Agreement. The initial term of this Agreement shall commence as of the Effective Date hereof and shall continue for a period of one (1) year. The initial term hereof shall automatically renew for successive one (1) year terms unless either party notifies the other in writing not less than sixty (60) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement without cause for any reason.
28. Termination for Cause. If either party is in material breach of this Agreement, including without limitation, the payment of any fee or reimbursement due and payable to IDR under this Agreement, the non-defaulting party may terminate this Agreement including any and all access and use rights upon fifteen (15) days' written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
29. Return of Materials. Within thirty (30) days of the expiration or termination of this Agreement, (i) Customer shall return to IDR all Customer Data, except for any Customer Data remaining in IDR’s backup system as it cycles out, and (ii) Customer shall return any and all materials that may have been provided by IDR.
30. Arbitration. Except for actions to protect Proprietary Rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Dallas, Texas. The arbitrator shall apply the laws of the State of Texas to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
31. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with a nationally-recognized courier with receipt upon delivery, sent by email (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, to the addresses set out below. i Such notice will be deemed to be given when received.
If to IDR:
5760 Legacy Drive, Ste. B3-318
Plano, TX 75024
If to Customer: to the address given at regiatration.
32. Assignment. Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without IDR's prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
33. Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money to IDR hereunder.
34. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
35. Counterparts; Facsimile Signatures. This Agreement may be executed in multiple counterparts, each of which, when executed and delivered, shall be deemed an original, but all of which shall constitute one and the same instrument. Any signature page of any such counterpart, or any facsimile transmission thereof, may be attached or appended to any other counterpart to complete a fully executed counterpart of this Agreement, and any facsimile transmission of any signature of a party shall be deemed an original and shall bind such party.
36. Miscellaneous. This Agreement shall be construed under the laws of the State of Texas, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
EXHIBIT A
SERVICE LEVEL AGREEMENT
1. Service Level Commitment. In the event that Customer experiences any of the service performance issues defined in Sections 2.1 as a result of IDR’s failure to provide Services, IDR will, upon Customer’s request in accordance with Section 3, credit Customer’s account as described below (the “Service Level Commitment”). The Service Level Commitment shall not apply to downtime or performance issues (i) caused by factors outside of IDR’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer equipment or third-party equipment that is not within the sole control of IDR.
2. Definitions. For purposes of this Agreement, the following definitions shall apply.
2.1 “Downtime” shall mean network unavailability within IDR’s network for forty-five (45) consecutive minutes resulting in the failure of IDR to provide Services for such period. Downtime shall not include any network/Services unavailability during IDR’s scheduled maintenance of IDR’s Internet data center(s), network, and/or Services.
2.2 “Service Credit” shall mean an amount equal to the pro-rata recurring subscription fees for one (1) day of the Services.
3. Downtime Periods. In the event Customer experiences Downtime, Customer shall be eligible to receive a one-time Service Credit for each Downtime period; provided, however, that in no event shall Customer be entitled to more than two (2) Service Credits for any given calendar day.
4. Customer Must Request Service Credit. Upon receipt of a written request from Customer for a prior calendar month requesting information regarding a specific instance of Downtime, IDR will provide Customer with a related incident report from which Customer may determine the nature of any Downtime. In order to receive a Service Credit in connection with a particular instance of Downtime, Customer must notify IDR within thirty (30) days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer’s right to receive a Service Credit for the applicable instance of Downtime.
5. Maximum Service Credit. The aggregate maximum number of Service Credits to be issued by IDR to Customer for any and all Downtime that occurs in a single calendar month shall not exceed seven (7) Service Credits. Any Service Credits owed shall be issued in the IDR invoice in the month following the Downtime, unless the Service Credit is due in Customer’s final month of Service. In such case, a refund check for the dollar value of the Service Credit will be mailed to Customer.
6. Termination Option for Chronic Problems. Customer may terminate this Agreement and without liability or penalty to IDR by notifying IDR within ten (10) days following the occurrence of either of the following: (i) Customer experiences more than five (5) Downtime periods in any three (3) consecutive calendar month period; or (ii) Customer experiences more than eight (8) consecutive business hours of Downtime due to any single instance. Such termination will be effective thirty (30) days after receipt of such notice by IDR.
End of SaaS Agreement
