End User License Agreement (EULA)
Last Updated: April 24, 2018
NOTICE TO USER: THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") IS ENTERED INTO BY AND BETWEEN SOFTWARE TECHNOLOGY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("PROVIDER"), AND THE END-USER ("YOU"). PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE "AGREE" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE HOSTED SERVICE.
DEFINITIONS/RULES OF CONSTRUCTION
1.1 Definitions. As used in this Agreement:
(a) “Documentation” means explanatory written materials and files, as modified from time to time by Provider in its sole discretion, pertaining to the Hosted Service.
(b) “Hosted Service” means the hosted version of the Software that is made available to You by Provider for use in entering, processing, storing and receiving data, as further described in the Documentation.
(c) "Intellectual Property Rights" means all present and future copyrights, trademark rights, service mark rights, trade secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any jurisdiction.
(d) "Software" means (i) the “KURENT” web-based software application, as hosted by or through Provider; (ii) any third party software incorporated in or used in connection with the “KURENT” application; (iii) the Documentation; and (iv) any modified versions and copies of, and Updates to such items, as made available by Provider in its sole discretion at any time.
(e) "Updates" mean updates, upgrades, new releases or new versions of the Hosted Service that Provider generally makes available to all its subscribers at no additional charge.
1.2 Construction. "Including" means "including without limitation" and does not limit the preceding words or terms. The singular shall include the plural and vice versa. References to "Articles", "Exhibits" or "Sections" shall mean Articles, Exhibits or Sections of this Agreement, unless otherwise expressly indicated. The title of each Article and the headings or titles preceding the text of the Sections are inserted solely for convenience of reference, and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement.
2.1 Subscription. As long as You comply with the terms of this Agreement, Provider grants You a non-exclusive and non-transferable right to access and use the Hosted Service in the manner permitted herein, and as described in the Documentation (the “Subscription”). The Subscription is only for Your access and use, and not for the use of any related entity (including without limitation Your parent, subsidiaries, sister entities or other related entities) or unrelated entity.
2.2 Intellectual Property Ownership. You acknowledge that Provider owns all right, title and interest, including all Intellectual Property Rights, in and to the Hosted Service and the Software. Except as expressly stated herein, this Agreement does not grant You any Intellectual Property Rights in the Software or the Hosted Service and all rights not expressly granted are reserved by Provider. The structure, organization and code of the Software and the Hosted Service are the Confidential Information of Provider. The Software and the Hosted Service are protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provision.
2.3 Restrictions on Use.
(a) Number of Users. Except as specifically set forth in this Agreement, the total number of individuals (whether employees, independent contractors or agents) that you permit to access and use the Hosted Service (the “Authorized Users”) may not exceed the number separately agreed upon by You and Provider. For the avoidance of doubt, You are responsible hereunder for any breach of this Agreement by any Authorized User.
(b) No Modifications. You may not copy, modify, adapt, alter, translate, or create derivative works based on the Hosted Service. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You may not use the Hosted Service in a service bureau, rental or time-sharing arrangement. You may not rent, lease, sell, sublicense, assign or transfer your rights in the Hosted Service. You shall take reasonable efforts to prevent access or use of the Hosted Service by any person or entity other than You. You shall use all reasonable efforts to see that employees, agents, assigns or other persons under Your direction or control who have access to the Hosted Service abide by the terms and conditions of this Agreement. You shall notify Provider immediately in writing of any unauthorized use.
(c) Acceptable Use. You agree not to use or permit use of the Hosted Service for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (v) constitute an infringement of Intellectual Property Rights, or (vi) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Provider under this Agreement, Provider reserves the right to remove or disable access to any material that violates the foregoing restrictions. Provider shall have no liability to you in the event that Provider takes such action.
2.4 Your Data. You agree to provide any notices and obtain any consents related to Your use of the Hosted Service, and Provider’s provision of access to and use of the Hosted Service, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your data.
2.5 Subscription Plans. You may have subscribed to the Hosted Service for consecutive one-year periods (subject to Your payment of annual Subscription fees) (a “Term Subscription”) or on a month-by-month basis (subject to Your payment of a monthly Subscription fee which may be changed from time to time in the sole discretion of Provider) (a “Monthly Subscription”). Pricing and payment terms under a Term Subscription or a Monthly Subscription are set forth on the “Pricing” page of www.kurent.com. The fees for Term or Monthly Subscriptions are due in advance, not in arrears; however, if You add an Authorized User on other than the anniversary of the start date of a Term Subscription or Monthly Subscription, the Monthly Subscription fee or the Term Subscription Fee will be prorated so that you are only paying for that portion of the Term Subscription or Monthly Subscription during which the additional Authorized User had access to the Hosted Service. The following terms and conditions pertain specifically to the Term and Monthly Subscriptions and prevail over any conflicting terms and conditions set forth in this Agreement:
(a) A Monthly Subscription can be terminated by You prior to the monthly anniversary of Your start date. To terminate, check the “Do Not Renew” box accessible via the Hosted Service. If such box is checked on or after the anniversary date of Your start date, You will pay the monthly fee for that month only and the Monthly Subscription will terminate as of the first day of the immediately following month with no further payment due.
By way of example, if You subscribed on the 15th day of July, You can terminate the Monthly Subscription by checking the “Do Not Renew” box prior to the 15th day of any subsequent month. Accordingly, if you check the “Do Not Renew” box after June 15 but prior to July 15th in the following year, Your Monthly Subscription will terminate as of July 15th. However, if you check the “Do Not Renew” box after July 15, the Monthly Subscription will terminate as of August 15th.
(b) A Term Subscription can be terminated by You before it renews for an additional one-year period. To terminate, check the “Do Not Renew” box accessible via the Hosted Service. If such box is checked on or after the first day of the next one-year period, You will pay the annual fee for that period and the Term Subscription will terminate as of the first day of the immediately following year with no further payment due.
(c) All Subscription Fees will be paid by a credit card that is in Your name. If a payment is declined or cancelled or Your credit card expires, You will be contacted to request updated credit card information, and You will have access to the Hosted Services for one month after the date on which payment was originally due. If You do not provide updated credit card information for use on an ongoing basis and pay any outstanding amounts prior to the expiration of such month of access (collectively the “Cure”), your access to the Hosted Service will be disabled. If you Cure after said disablement, you will be deemed to have entered into a new Monthly or Term Subscription (depending on whether You were subject to a Monthly or Term Subscription prior to the disablement). If Your payment is declined or cancelled or Your credit card expires more than two times within a 12 month period, Provider may notify You that Your access to the Hosted Service will be permanently disabled, without the opportunity for reinstatement, on the 30th day after the date of notification.
(d) If You do not receive an email confirmation that Your Monthly or Term Subscription fee has been received, it is Your responsibility to immediately notify Provider of such non-receipt of confirmation. Such notification must be accompanied by a credit card statement reflecting payment and any other information reasonably required by Provider.
(e) Provider will delete any data provided by you via the Hosted Service upon the termination of Your right to access and use same. Such deletion will occur 15 days after Your access and use of the Trial Basis Hosted Service (defined below) has been terminated, and no later than 90 days after Your access and use of the Hosted Service (non-Trial Basis) has been terminated. It is Your responsibility to export Your data prior to the termination of Your access to the Trial Basis Hosted Service or the non-Trial Basis Hosted Service.
(f) You may convert from a Monthly Subscription to a Term Subscription by following the instructions to do same; such instructions are available within the Hosted Service under “Account & Users.”
2.6 Trial Basis Hosted Service. You may have subscribed to the Hosted Service on a trial basis (the “Trial Basis Hosted Service”). The Trial Basis Hosted Service may contain limited functionality and may only be used by You for a limited time.
TECHNICAL SUPPORT AND MAINTENANCE
3.1 Technical Support and Maintenance. Provider provides unlimited technical support and Updates for the Hosted Service. Details regarding technical support are accessible via a link in the Hosted Service. Updates are provided by Provider in its sole and absolute discretion. The Service Level Agreement attached hereto as Exhibit “A” (the “SLA”) defines Provider’s Service Commitment and your remedies in the event that Provider fails to meet the Service Commitment. The SLA and the refund set forth therein (the “Service Credits”) represent Provider’s sole obligation and Your sole remedy for Provider’s failure to meet such Service Commitments.
DISCLAIMER/LIMITATION OF LIABILITY
4.1 DISCLAIMER. THE HOSTED SERVICE IS MADE AVAILABLE TO YOU “AS-IS” AND WITH ALL FAULTS, AND PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND THEREFORE ARE NOT SUBJECT TO THE CONTROL OF PROVIDER; THAT COMPUTER SYSTEMS ARE INHERENTLY UNSTABLE AND MAY MALFUNCTION OR CEASE TO FUNCTION AT ANY TIME WITHOUT WARNING; THAT MALFUNCTION OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDERS OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET MAY MAKE THE HOSTED SERVICE TEMPORARILY OR PERMANENTLY UNAVAILABLE; AND THAT PROVIDER SHALL NOT BE LIABLE FOR DAMAGES INCURRED DUE TO THE HOSTED SERVICE BEING TEMPORARILY OR PERMANENTLY UNAVAILABLE. YOU ACKNOWLEDGE AND AGREE THAT PROVIDER IS LIKEWISE NOT RESPONSIBLE FOR ANY DAMAGES YOU MAY INCUR IF YOU ACCESS THE HOSTED SERVICE USING A DEVICE WITH A MALICIOUS BROWSER.
4.2 DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT WILL PROVIDER OR ITS AFFILIATES OR CONSULTANTS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF PROVIDER OR A CONSULTANT REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, PROVIDER’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND CONSULTANTS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID FOR THE SUBSCRIPTION. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Any cause of action brought by You under this Agreement, whether in contract, tort or otherwise, shall be commenced no later than one (1) year after such right of action accrues and may not be extended for any reason. This limitation of liability and risk is reflected in the price of the subscription. The prevailing party in any claim made under this Agreement shall be entitled to its reasonable costs and attorneys' fees.
4.3 Indemnification. You shall indemnify, hold harmless and defend the Provider and its respective affiliates, Consultants, directors, employees, agents or representatives against any liability, damages, penalties, fines, judgments, amounts paid in settlement and reasonable costs and expenses (including attorneys’ fees, court costs, accountants’ fees and fees of expert witnesses, which shall be paid as incurred), arising out of, resulting from, relating to, in the nature of or caused by any of the following: (i) any negligent or willful act or negligent or willful omission by You or Your affiliates, directors, employees, agents, or representatives; (ii) any breach by You of this Agreement; or (iii) any violation by You or Your affiliates, directors, employees, agents, or representatives of any local or foreign law, or any rule or regulation of any governing authority. Provider shall give notice to You of any claim for which it is seeking indemnity under this Section (a “Claim”), but failure to give such notice shall not relieve You of any liability hereunder (except to the extent that You have suffered actual prejudice thereby). Provider shall provide all necessary and required information and reasonable assistance regarding any such Claim.
4.4 Credit Card Processing. You may have the ability to process and accept payments from Your clients via financial services cards issued by VISA, MASTERCARD, AMERICAN EXPRESS, DISCOVER and/or other financial service card organizations including debit point of sale networks; provided, however, that You meet the eligibility requirements established from time to time by third parties that may agree from time to time to support and provide credit card processing and related services that integrate with the Hosted Service (the “Payment Processors”). In the event You are permitted to process and accept payments from Your clients via such Payment Processors, You authorize Provider to provide the Payment Processor with Your contact information, including Your name, telephone number and address. Provider does not control or accept responsibility for credit card processing or related services provided by any Payment Processor. ANY AND ALL OF YOUR DEALINGS WITH ANY SUCH PAYMENT PROCESSOR ARE AT YOUR SOLE RISK, COST AND EXPENSE. You agree to hold harmless Provider, its affiliates and Consultants and each of their respective partners, officers, directors, employees and agents and the successors and assigns of each of them, from any and all claims, damages (including attorney fees), demands, actions or causes of action of any kind or nature, whether known or unknown, arising out of or relating to Your dealings with any such Payment Processor.
4.5 Third Party Products. You acknowledge that Provider does not give any warranties (and expressly disclaims any and all warranties), express or implied, grant any license or right or give a covenant not to sue, or grant any other rights, including Intellectual Property Rights, with respect to any Third Party Products accessed through, used in connection with or included in the Hosted Service. Notwithstanding anything to the contrary in this Agreement, this Agreement does not and shall not be interpreted or construed to include any representation or warranty that the Third Party Products, or the use thereof, whether alone or in combination with other hardware, software, apparatuses, or methods, is or will be free from infringement of any Intellectual Property Rights or other rights of third parties. Provider disclaims any and all liability arising from the use of such Third Party Products, including claims of infringement of third party Intellectual Property Rights or other rights arising out of or relating to such Third Party Products. You assume all risk and liability arising from Your use, copying and distribution of such Third Party Products.
4.6 Pre-release Additional Terms. If the Hosted Service is provided to you pre-commercial release or in beta ("Pre-release Service"), then this Section applies. The Pre-release Service is a pre-release version, does not represent the final offering from Provider, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Provider may never commercially release the Pre-release Service. If You received the Pre-release Service pursuant to a separate written agreement with Provider, Your use of the Pre-release Service is also governed by such agreement. You will cease to access and use all copies of the Pre-release Service upon request by Provider or upon Provider's commercial release of the Pre-release Service. YOUR USE OF THE PRE-RELEASE SERVICE IS AT YOUR OWN RISK.
4.7 Time Out Additional Terms. If the Hosted Service is a Trial Basis or timeout version, then it will cease operations after a designated period of time. The subscription hereunder will terminate after such period unless extended by Provider upon Your acquisition of a full retail subscription. ACCESS TO ANY FILES OR OUTPUT CREATED WITH SUCH HOSTED SERVICE IS ENTIRELY AT YOUR OWN RISK.
(a) Definition. For purposes of this Agreement, "Confidential Information" means all proprietary and confidential information disclosed by You or Provider (the "Disclosing Party") to the other party hereto (the "Receiving Party"), including, but not limited to, any and all terms of this Agreement, technical, marketing, financial and personnel information. Confidential Information shall not include information which: (i) was already known to Receiving Party at the time of disclosure by Disclosing Party, and Receiving Party was under no obligation of confidentiality with respect to such information; (ii) is disclosed to Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of Receiving Party has become, generally available to the public; or (iv) is independently developed by Receiving Party without reference to, or use of, Disclosing Party's Confidential Information.
(b) Obligations. Receiving Party shall use Disclosing Party's Confidential Information solely for the purpose of performing its obligations under this Agreement and shall not disclose, or permit any party to access, such Confidential Information except as permitted herein; provided, that Receiving Party may disclose Disclosing Party's Confidential Information to those of its employees, officers, directors, consultants, and agents ("Representatives") who have a need to know such Confidential Information to permit Receiving Party to perform its obligations or exercise its rights hereunder. Receiving Party shall be responsible for any breach by its Representatives of the obligations set forth in this Section 5.1. Receiving Party shall exercise at least the same degree of care to protect the confidentiality of Disclosing Party's Confidential Information as it exercises to protect the confidentiality of its own similar Confidential Information, but in no event less than reasonable care. Receiving Party shall not remove any confidentiality, copyright, or similar notices or legends from the Disclosing Party's Confidential Information. Notwithstanding the foregoing, Receiving Party shall be allowed to disclose Confidential Information of Disclosing Party to the extent that such disclosure is (x) approved in writing by Disclosing Party; (y) necessary for Receiving Party to enforce its rights under this Agreement or in connection with a legal proceeding; or (z) required by law or by the order of a court or similar judicial or administrative body; provided that, to the extent it is legally permitted to do so, Receiving Party notifies Disclosing Party of such required disclosure promptly and in writing and cooperates with Disclosing Party at Disclosing Party's reasonable request and expense in any lawful action to contest or limit the scope of such required disclosure.
6.1 Termination. This Agreement is effective until terminated. Termination of this Agreement constitutes termination of the subscription rights granted herein. This Agreement or a Subscription will automatically terminate if You fail to comply with any term or condition of this Agreement or if You cease to use the Hosted Service with no intent to resume use. Upon termination of this Agreement for any reason, You must cease to access and use the Hosted Service.
6.2 Communication of Agreement. You agree to communicate the terms and restrictions contained in this Agreement to all persons under Your employment, direction or control who have access to the Hosted Service, and to require such persons to adhere to the applicable terms of this Agreement, including, but not limited to, the provisions related to Confidential Information.
6.3 Compliance. Upon request from Provider or its authorized representative, You will within thirty (30) days fully document and certify that use of any and all Hosted Service at the time of the request is in conformity with the subscription granted to you hereunder.
6.4 Taxes. You shall pay any applicable taxes in respect of the subscription granted hereunder.
6.5 Export Rules. You agree that the Hosted Service will not be used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Hosted Service is identified as an export controlled item under the Export Laws, You represent and warrant that You are not a citizen of, or located within, an embargoed or otherwise restricted nation (including without limitation Iran, Syria, Sudan, Libya, Cuba and North Korea) and that You are not otherwise prohibited under the Export Laws from using the Hosted Service. All rights to use the Hosted Service are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement.
6.6 U.S. Government End Users. The Hosted Service is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government end users access and use the Hosted Service (a) only as "commercial items" and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
7.1 Notices. Except for requests for support services related to the Hosted Service, any notice required or permitted to be given under this Agreement shall be validly given, made or served if in writing and delivered personally by hand, by a nationally recognized overnight courier service (i.e., FedEx or United Parcel Service), by United States certified or registered first class mail, postage prepaid with return receipt requested. Each such notice or other communication shall be effective if delivered (a) personally by hand or by a nationally recognized overnight courier service, when delivered at the address specified in this Section; or (b) by United States certified or registered first class mail, on the date appearing on the return receipt therefore. In the event that a party is unable to deliver a notice or other communication due to the inaccuracy of the address provided by the other party pursuant to this Section, or the other party’s failure to notify the party of a change of its address as specified pursuant to this Section, such notice or other communication shall be deemed to be effective upon confirmation by a nationally recognized overnight courier service of its failure to complete delivery to the other party’s address as set forth in this Section (or other address duly given to the party by the other party in accordance with this Section).
Addresses for notices (unless and until written notice is given of any other address):
If to Provider, to:
Software Technology, LLC
1621 Cushman Drive
Lincoln, Nebraska 68512
Attn: Legal department
If to You, to the address provided by You at the date of purchase of Your Subscription.
8.1 Governing Law and Jurisdiction. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Nebraska without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Nebraska to the rights and duties of the parties. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the state (or, if there is federal jurisdiction, the applicable federal court) courts in and for Lancaster County, State of Nebraska, U.S.A., and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8.2 Transfer/Assignment. Prior to assigning or transferring this Agreement, or any part thereof, whether directly or indirectly (including, without limitation, through a transfer of Your equity interests or for any other reason including bankruptcy) You will notify Provider. You and any assignee/transferee must also comply with such procedures as Provider requires and the assignee/transferee must agree to be bound by the terms and conditions of this Agreement.
8.3 Independent Contractors. The relationship of Provider and You established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
8.4 Survival. The rights and obligations contained in Sections 2.2 ("Intellectual Property Ownership"), 2.3 ("Restrictions on Use"), 2.5 (c) and (e) (“Subscription Plans”), the final sentence of Section 3.1 (“Technical Support and Maintenance”), Article 4 (“Disclaimer; Limitation of Liability"), Article 5 (“Confidentiality"), Article 6 ("Termination/Compliance"), Article 7 ("Notices"), Section 8.1 ("Governing Law and Jurisdiction"), Section 8.2 ("Transfer/Assignment"), Section 8.3 ("Independent Contractors"), Section 8.6 ("Severability"), and this Section 8.4 shall survive any termination or expiration of this Agreement, to the extent applicable.
8.5 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior communications, understandings, and agreements, written or oral. You acknowledge that this Agreement may be updated from time to time by Provider, and that the most recent version published as a part of the Hosted Service will control.
8.6 Severability. 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 specified in this Agreement shall be invalid under any applicable law, the invalid provision, or portion thereof, shall be struck and the remainder, if any, shall be deemed enforceable to the extent permitted under applicable law, and the remaining provisions of this Agreement shall be given effect in accordance with their terms.
8.7 Force Majeure. Neither Provider nor You shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party (provided, however, that failure or delay in the payment of money is not excused under this Section 8.7). We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice, This Section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures.
©1988-2018 Software Technology, LLC Maker of Kurent. All rights reserved.
Kurent is a service mark of Software Technology, LLC.
KURENT SERVICE LEVEL AGREEMENT
This Service Level Agreement (the “SLA”) is an integral part of the Subscription Agreement (“Master Agreement”) between Software Technology, LLC (“Provider”) and Customer for the provision of Hosted Services.
This SLA defines the terms of Provider’s responsibility with respect to the Hosted Services that Company provides (the “Service Commitments”) and Customer remedies in the event that Provider fails to meet its Uptime Guarantee. This SLA and the remedies set forth herein (the “Service Credits”) represent Provider’s sole obligation and Customer’s sole remedy for Provider’s failure to meet such Uptime Guarantee.
The Service Commitments under this SLA are as follows:
‘End to end’ Infrastructure uptime guarantee
Provider guarantees 99.95% uptime availability of the Hosted Service (the “Uptime Guarantee”).
If Provider does not achieve the Uptime Guarantee, then Customer may be eligible for a credit towards a portion of its Subscription fees.
Provider proactively monitors uptime for the Hosted Service. The results of and data from these monitoring systems shall provide the sole and exclusive determination of uptime.
In order for Provider to consider a claim, Customer must submit the claim to customer support at including all information necessary for Provider to validate the claim, including but not limited to: (i) a detailed description of the incident during which uptime was not achieved (“Incident”); (ii) information regarding the time and duration of the Downtime (defined below), and (iii) descriptions of Customer’s attempts to resolve the Incident at the time of occurrence.
Provider must receive the claim within 30 days of the Incident. Provider will evaluate all information reasonably available to it and make a good faith determination of whether a Service Credit (defined below) is owed. Provider will use commercially reasonable efforts to process claims during the subsequent month and within forty-five (45) days of receipt. Customer must be in compliance with the Agreement in order to be eligible for a Service Credit. If Provider determines that a Service Credit is owed to Customer, the Service Credit will be applied to Customer’s Subscription Fees. If Customer is on a Monthly Subscription, the Service Credit will be applied to Customer’s next Monthly Subscription Fee due. If Customer is on a Term (annual) Subscription, the Service Credit will be applied to Customer’s next Term Subscription Fee due.
Service Credits are your sole and exclusive remedy for any performance or availability issues for the Hosted Service. Customer may not unilaterally offset its Subscription Fees for any performance or availability issues.
Service Credits apply only to fees paid for the Hosted Service. The Service Credits awarded will not, under any circumstance, exceed the Monthly Subscription Fees (or a pro rata portion of the Term Subscription Fees) for that Service in the billing month.
The Uptime Guarantee is not applicable in the event of performance or availability issues:
Due to factors outside Provider’s reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to Provider’s systems);
That result from the use of services, hardware, or software not provided by Provider, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
Caused by Customer’s use of the Hosted Service after Provider advised Customer to modify its use, if Customer did not modify its use as advised;
During or with respect to preview, pre-release, beta or trial versions of the Hosted Service, (as determined by Provider).
That result from Customer’s unauthorized action or lack of action when required, or from Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the Hosted Service by means of Customer’s passwords or equipment, or otherwise resulting from Customer’s failure to follow appropriate security practices;
That result from Customer’s failure to adhere to any required configurations or use supported platforms, failure to follow any policies for acceptable use, or use of the Hosted Service in a manner inconsistent with the features and functionality of the Hosted Service (for example, attempts to perform operations that are not supported) or inconsistent with Provider’s published guidance;
That result from Customer’s attempts to perform operations that exceed prescribed quotas or that resulted from Provider’s throttling of suspected abusive behavior; or
For a Monthly Subscription or Term Subscription not paid for at the time of the Incident.
Monthly Uptime Calculation and Service Levels for Kurent
"Maximum Available Minutes" is the total number of minutes that a given firm has been deployed in during a billing month in a given subscription.
"Downtime" is the total accumulated minutes during a billing month for a given Kurent subscription during which the Hosted Service is unavailable. A minute is considered unavailable if all continuous attempts by Customer to establish a connection to Kurent within the minute fail. Downtime does not include any time during which Scheduled Maintenance or Emergency Maintenance (described below) is being provided, or during any time that the Hosted Service is unavailable due to any of the issues described above under “Limitations.”
"Monthly Uptime Percentage" is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes in a billing month for a given Kurent subscription. Monthly Uptime Percentage is represented by the following formula:
Monthly Uptime % = (Maximum Available Minutes-Downtime) / Maximum Available Minutes
The following Service Credits are applicable to Customer’s use of Kurent:
Monthly Uptime Percentage: Service Credit
Less than 99.95% but greater than or equal to 98%: 10% of Monthly Subscription Fee or 10% of (Term Subscription Fee divided by 12)
Less than 98%: 25% of Monthly Subscription Fee or 25% of (Term Subscription Fee divided by 12)
Maintenance and Support
Provider will provide Customer with seven (7) days’ prior notice for customer-impacting routine tests, maintenance, upgrades or repairs with respect to the Software made available via the Hosted Service or with respect to the environment on which the Hosted Service resides. Where possible, such maintenance is scheduled to be conducted outside of the business hours of the datacenter in question (defined as Monday to Friday 08:00 to 17:00 of the time zone of the respective datacenter).
There may be instances where it is not practical for Company to give advance notice of Scheduled Maintenance, for example, in the event of an unforeseen disruption of a critical service. Addressing these events may require that emergency maintenance be performed. In these cases, Company will be entitled to disrupt the Hosted Services to allow for the conducting of this emergency maintenance without prior notice.
Telephone support for issues encountered by Customer is available at 402 419-2211 from 8:00 am to 5:00 pm Central Time. Email support is available by emailing firstname.lastname@example.org. Company will reply no later than one business day after receiving Customer’s email.