Terms and Conditions

CO-LOCATION, BANDWIDTH SERVICES, AND CLOUD SERVICES (FLXCLOUD & FLXSTORE) TERMS AND CONDITIONS

Revised February 2018
These Terms and Conditions are incorporated into certain written agreements (the “Agreements”) between Brush Mountain Data Center, LLC (“BMDC”) or its affiliate Advanced Logic Industries, Inc. (“ALI”) and their customers (“Customer”) that reference these Terms and Conditions (“Terms”) for  Co-location, Bandwidth Services, and Cloud Services (FlxCloud and FlxStore), as applicable, and sets forth the Terms and Conditions under which BMDC and/or ALI will provide services to Customer.
These Terms and Conditions also include by reference BMDC’s Acceptable Use Policy set forth at https://www.brushmountaindatacenter.com/acceptable-use/.*Capitalized terms not defined in context are defined at the end of these Terms and Conditions. 

CO-LOCATION TERMS AND CONDITIONS

  1. Co-Location Services. BMDC agrees to supply the services set forth in the referencing Agreement (“Co-Location Services”), and Customer agrees to receive the Co-Location Services from BMDC, in accordance with these Terms.
  2. Other Services. Upon request by Customer, ALI may, at its option, provide Customer, with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support (“Other Services”), in connection with Customer’s use of the “Customer Space”. Unless the parties agree otherwise in writing, Customer will pay for such Other Services in accordance with the Technical Support and Services Pricing set forth below and ALI will provide such Other Services in accordance with the Advanced Logic Industries, Inc. Labor Services Terms and Conditions, contained herein.
  3. Payment. Unless Customer has a separate written agreement with ALI or BMDC, the following payment terms will apply:
3.1     Customer will pay the fees specified in the referencing Agreement, as well as (a) any charges for Other Services, and (b) the actual cost of supplying electrical power to the Customer Space. Upon 60 days or more written notice to the Customer prior to the end of the Term, BMDC may change any fees for services provided. Customer will pay all taxes levied against or upon the services (as amended by the parties from time to time) or otherwise provided by BMDC.
3.2     All Recurring Fees are invoiced monthly in advance, with any partial months pro-rated. Variable charges (such as for Other Services) will be billed monthly in arrears.
3.3     All Recurring Fees (including the first month’s fee) and charges for other, non-recurring services will be payable within 15 days of the invoice date.
3.4     A 3% service charge will be applied in addition to the total amount invoiced for all payments processed using a credit card.
  1. Termination.
4.1     Termination by BMDC. BMDC may terminate Co-Location Services at any time upon 60 days written notice to Customer. In addition, BMDC may terminate Co-Location Services immediately upon a “default” by Customer. A “default” shall occur if Customer: (1) fails to make any payment when due; (2) provides false information to BDMC regarding Customer’s identity or address; (3) fails to comply with BMDC’s Acceptable Use Policy; (4) breaches any of these Terms; or (5) uses the Co-Location Services in violation of applicable laws.
4.2     Termination by Customer. Customer may terminate Co-Location Services as of the end of the initial Term defined in the referencing Agreement, or any renewal Term, by providing written notice of termination at least 90 days before the end of the then-current Term. Customer may also terminate Co-Location Services if it gives 30 days written notice of “default” and BMDC does not cure such default within such 30 day period.
4.3     Early Termination; Early Termination Fee.  Multi-year Agreements for Co-Location Services may not be terminated prior to the end of the first year.  In all cases, an Early Termination Fee will apply in addition to fees due for services provided.  This Early Termination Fee will be calculated as the difference between BMDC’s then non-discounted monthly rate and the discounted rates charged to Customer, multiplied by the number of months of service.  The Early Termination Fee must be received by BMDC before Early Termination can take effect.
4.4       Termination by Either Party. Either party may terminate these Co-Location Services if the other party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.
4.5       Termination Due To Government Action. Notwithstanding the foregoing, and upon written notice to the Customer consistent with applicable governmental rules, BMDC may, without incurring liability to the Customer, disconnect the affected portion of any Co-Location Services if BMDC is prohibited by governmental authority from furnishing the Co-Location Services, or if any material rate or term in the referencing Agreement is substantially changed by judicial or regulatory order of any local, state, federal, or foreign government authority.
4.6       Effect of Termination. Upon termination of Co-Location Services for any reason, Customer shall pay all fees due up to the date of termination, provided that in the event of termination due to Customer default, Customer shall be responsible for the remaining fees due during the then-current Term. Upon termination of the referencing Agreement pursuant to Section 4, BMDC may in its sole discretion do any or all of the following: (i) without notice suspend access to the Customer Space or BMDC’s premises (“Premises”), (ii) if Customer’s default is non-payment of any sums due to BMDC, exercise all the rights and remedies under applicable law to collect such sums due, (iii) after such termination is effective, remove the Customer Equipment from the Customer Space, store the Customer Equipment at another location at Customer’s expense, or license the Customer Space to a third party. If BMDC stores Customer Equipment at another location pursuant to this Section 4.6, BMDC shall not be liable for any damage of the Equipment either for relocating such Customer Equipment or storing such Customer Equipment, absent gross negligence on the part of BMDC.
  1. Technical Support and Services Pricing.
5.1     Network Operations Support (8:00am – 5:00pm Mon–Fri, Eastern U.S. Time zone).  Billed hourly, at $200 per hour, unless specified otherwise in a separate support services agreement.
5.2     Network Operations Support (Outside Business Hours). Billed hourly, at $300 per hour, with a 2-hour minimum, unless specified otherwise in a separate support services agreement.
5.3    Data Center Access Monitoring of shared space (8:00am – 5:00pm Mon–Fri, Eastern U.S. Time zone). In person: Billed hourly, at $100 per hour, unless specified otherwise in a separate support services agreement. Video monitored: Billed in 15 minute increments, at $100 per hour, unless specified otherwise in a separate support services agreement.
  1. Grant of License. Subject to these Terms, BMDC hereby grants to Customer, as of the Effective Date, a license to install, operate, replace, remove and maintain communications equipment, cabling, connections, associated hardware and accessions (“Customer Equipment”) in the co-location space as may be assigned and specified by BMDC from time to time (“Customer Space”), in the Premises during the Term. The license granted in these Terms is a license of space only, and does not create an ownership interest or property rights of any nature in BMDC’s real or personal property.
  2. Installation, Access, and Rules and Regulations.
7.1     Installation. Customer will be responsible for the delivery and installation of the Customer Equipment and the connection of the Customer Equipment to telecommunications lines and power. Except with BMDC’s prior written approval and subject to these Terms, Customers whose Customer Space is a shared space may only install, repair, service or remove Customer Equipment upon scheduling such work through the BMDC service desk at (434) 386-4261. Customer will only install or place Customer Equipment in the licensed Customer Space. BMDC reserves the right to reasonably approve of Customer’s technicians and other contractors. Customer will promptly notify BMDC of any space, power or other requirements associated with the installation or operation of the Customer Equipment. BMDC will have no duty to monitor, maintain or care for the Customer Equipment unless otherwise specified in any separate support services agreement.
7.2     Access. If the Customer requires access to their Customer Equipment, and Customer Equipment is not in a dedicated caged area, a BMDC representative must accompany Customer Persons, as defined in Section 7.3. If the Customer Space is a dedicated caged area solely used for Customer’s Equipment, BMDC shall have the right to observe Customer Persons installing Customer Equipment in the Customer space. No more than three Customer Persons will be allowed to be present at the Premises at any one time. Customer Persons may be required to provide identification prior to obtaining access.  In any case in which a BMDC representative must accompany Customer or any of Customer’s technicians and other contractors when accessing the Premises, BMDC shall charge a fee as listed in the Technical Support and Services Pricing set forth in Sections 5 of these Terms.
7.3  Rules and Regulations. Customer will cause its employees, agents, contractors or invitees who have access to the Premises (“Customer Persons”) to conform to all BMDC rules and regulations then in effect. BMDC may vary these rules and regulations from time to time, in its sole discretion, by delivering such variances to Customer in writing and all Customer Persons will comply with all other reasonable security requirements that BMDC may impose from time to time.  BMDC’s approval of access by Customer Persons does not release Customer from its responsibilities pursuant to these Terms, nor by approving such Customer Persons does BMDC waive its right to be indemnified by Customer.
  1. Maintenance and Use of Premises. Customer, at its own cost and expense, will protect, maintain and keep in good order the Customer Space and any Customer Equipment in such space. Customer will ensure that neither Customer nor its employees, agents, contractors or invitees damage or alters any part of the Premises or any property located in or about the Premises, or interfere, or allow the Customer Equipment to constitute a hazard to or to interfere, with BMDC or any other user of the Premises or any equipment owned or used by BMDC or any other user of the Premises. Customer will not make any alterations or installations of any kind to the Premises without the prior written consent of BMDC.
  2. Immediate Threats. If, in the reasonable determination of BMDC, the Customer Equipment poses an immediate threat to the physical integrity of the Premises or the physical integrity or performance of the equipment of BMDC or any other user of the Premises, or poses an immediate threat to the safety of any person, then BMDC may perform such work and take such other actions that it may consider reasonably necessary without prior notice to Customer and without liability for damage to the Customer Equipment or for any interruption of Customer’s (or its clients’) businesses. As soon as practicable after performing such work, BMDC will advise Customer by phone and in writing of the work performed or the action taken. These corrective actions will be billed to Customer according to the rates established in Section 5 if no other rates are established by separate agreement.
  3. Intervention. If any part of the Customer Equipment is not placed and maintained in accordance with these Terms, and Customer fails to correct the violation within 10 days after receipt of written notice thereof from BMDC, then BMDC may, at its option correct the deficiency at Customer’s expense without liability for damages to the Customer Equipment or interruption of Customer’s (or its clients’) businesses, absent negligence on the part of BMDC. These corrective actions will be billed to Customer according to the rates established in Section 5 if no other rates are established by separate agreement. Customer will promptly reimburse BMDC for all expenses reasonably incurred by BMDC associated with any work or action performed by BMDC with respect thereto.
  4. Relocation. Upon BMDC’s written request, Customer must, within 15 days of such request, relocate the Customer Equipment to other space within the Premises as designated by BMDC. The expense of reconnecting electrical rewiring and internet services provided by BMDC shall be at BMDC’s expense.
  5. Periodic Inspections. BMDC reserves the right to make periodic inspections of any part of the Customer Space or Customer Equipment during normal business hours; provided that Customer will have the right to have one or more of its employees or representatives present during any such inspection except for emergency situations. If an employee or representative of Customer is not present at the time of inspection, Customer shall be deemed to have waived the right to have an employee or representative present.
  6. Insurance. Customer will maintain, at Customer’s expense, for the Premises (i) Comprehensive General Liability Insurance coverage with a combined single limit of at least $1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage, and (ii) Worker’s Compensation coverage in an amount not less than that prescribed by statutory limits. Immediately upon the start of the Term and thereafter upon BMDC’s request, Customer will provide BMDC with certificates of insurance or other satisfactory evidence that the insurance required in this section has been obtained. Under no circumstances will BMDC be obligated to provide insurance coverage for any Customer Equipment in the Premises.
  7. Access Method. If Customer Equipment is located within the caged area of the Data Center Location, Customer shall be entitled to two electronic keys or other access devices to the exterior doors of the Data Center Location and the Data Center Location building. Additional keys or access devices needed after the commencement of the Effective Date will cost $50.00 per device (cost is subject to change). Customer is required to return all keys and access devices to BMDC either upon termination of Co-Location Services or at such time that BMDC should provide new door hardware.
  8. Removal of Customer Equipment. Upon termination or expiration of the referencing Agreement, unless prohibited by BMDC as permitted by these Terms, Customer will remove the Customer Equipment from the Premises. Unless the Parties otherwise agree in writing, in the event the Customer Equipment has not been removed within 10 days following the termination or expiration, BMDC will have the right to remove, relocate, or otherwise store the Customer Equipment at Customer’s expense without liability to BMDC, absent gross negligence on the part of BMDC. If, after 30 days of termination or expiration of the referencing Agreement, Customer has not retrieved the Customer Equipment and paid any indebtedness owing to BMDC, then such Customer Equipment shall be deemed abandoned and BMDC may use, sell, or dispose of the abandoned Customer Equipment at BMDC’s discretion.
  9. Ownership of Customer Equipment. Customer represents and warrants that it either owns all Customer Equipment or has all necessary rights to locate the Customer Equipment in the Premises.
  10. Consent to Video Monitoring. Customer acknowledges, agrees and hereby consents under applicable privacy laws that BMDC may monitor the Premises by way of closed circuit television or other monitoring device for the purposes of maintaining the safety and security of the Premises, any equipment in the Premises, and any persons using or present in the Premises from time to time.
Service Level Agreement for Co-location Services
  1. Service Level Agreement for Onsite Co-Location Customers. BMDC strives to provide Customer uninterrupted and unfiltered transit to the Internet. Should transit to the Internet become unavailable for a cumulative period of up to one hour in any one calendar month, Customer will receive a credit equivalent to one day of Customer’s pro-rated Recurring Fees for that month. Customer will receive an additional refund of one day of the pro-rated internet connectivity Recurring Fees for each additional hour of Internet unavailability (limited to the Maximum Service Credit). All refund calculations will be based on unavailability in one-hour increments. The above terms do not cover outages caused by equipment and/or events not under the direct control of BMDC, outages due to Customer Equipment or caused by individuals not directly employed by BMDC. This Service Level Agreement does not cover outages due to scheduled or emergency network and/or facility maintenance, which will be broadcast to all customers in advance.
  2. Customer Request Service Credit. In order to receive any the service credits described above, Customer must notify BMDC within 15 days from the time Customer becomes eligible to receive a service credit.  Send an email to billing@brushmountaindatacenter.com to request a credit.  Failure to comply with this requirement will forfeit Customer’s right to receive a service credit.
  3. Service Level Agreement Update Notification. BMDC reserves the right to alter this Service Level Agreement      without advanced notice.

BANDWIDTH SERVICES TERMS AND CONDITIONS

  1. Bandwidth Services. BMDC will provide to Customer the internet connectivity, IP addresses and internet traffic services (the “Bandwidth Services”), as specified in the referencing Agreement. BMDC will provide Bandwidth Services in accordance with these Terms, including the Service Level Agreement contained herein. Customer will comply (and will cause its clients to comply as if those clients were the Customer) with the Acceptable Use Policy (as amended by BMDC from time to time). BMDC will have the right, but not the obligation, without prior notice, to monitor online conduct and communications, in order to verify compliance with these Terms and applicable law. The security for transmissions made using the Bandwidth Services is the responsibility of Customer. Customer’s sole remedy for any interruption of Bandwidth Services will be to receive refunds in accordance with the Service Level Agreement, contained herein.
  2. Other Services. Upon request by Customer, ALI may, at its option, provide Customer, with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support (“Other Services”), in connection with Bandwidth Services. Unless the parties agree otherwise in writing, Customer will pay for such Other Services in accordance with the Technical Support and Services Pricing set forth in Section 25 and ALI will provide such Other Services in accordance with the Advanced Logic Industries, Inc. Labor Services Terms and Conditions, contained herein.
  3. Payment. Unless Customer has a separate written agreement with ALI or BMDC, the following payment terms will apply:
23.1 Customer will pay the fees specified in the referencing Agreement, as well as any charges for Other Services. Upon 60 days or more written notice to the Customer prior to the end of the Term, BMDC may change any fees for services provided. Customer will pay all taxes levied against or upon the Bandwidth Services (as amended by the parties from time to time) or otherwise provided by BMDC.
23.2  All Recurring Fees are invoiced monthly in advance, with any partial months pro-rated. Variable charges (such as for Bandwidth Services) will be billed monthly in arrears.
23.3  All Recurring Fees (including the first month’s fee) and charges for other, non-recurring services will be payable within 15 days of the invoice date.
23.4  A 3% service charge will be applied in addition to the total amount invoiced for all payments processed using a credit card.
  1. Termination.
 24.1 Termination by BMDC. BMDC may terminate Bandwidth Services at any time upon 60 days written notice to Customer. In addition, BMDC may terminate Bandwidth Services immediately upon a “default” by Customer. A “default” shall occur if Customer: (1) fails to make any payment when due; (2) provides false information to BDMC regarding Customer’s identity or address; (3) fails to comply with BMDC’s Acceptable Use Policy; (4) breaches any of these Terms; or (5) uses the Bandwidth Services in violation of applicable laws.
24.2 Termination by Customer. Customer may terminate Bandwidth Services as of the end of the initial Term defined in the referencing Agreement, or any renewal Term, by providing written notice of termination at least 90 days before the end of the then-current Term. Customer may also terminate Bandwidth Services if it gives 30 days written notice of “default” and BMDC does not cure such default within such 30 day period.
24.3 Early Termination and Early Termination Fee.  Multi-year Agreements may not be terminated prior to the end of the first year.  In all cases, an Early Termination Fee will apply in addition to fees due for services provided.  This Early Termination Fee will be calculated as the difference between BMDC’s then non-discounted monthly rate and the discounted rates charged to Customer, multiplied by the number of months of service.  The Early Termination Fee must be received by BMDC before Early Termination can take effect.
24.4 Termination by Either Party. Either party may terminate these Bandwidth Services if the other party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.
24.5 Termination Due To Government Action. Notwithstanding the foregoing, and upon written notice to the Customer consistent with applicable governmental rules, BMDC may, without incurring liability to the Customer, disconnect the affected portion of any Bandwidth Services if BMDC is prohibited by governmental authority from furnishing the Bandwidth Services, or if any material rate or term in the referencing Agreement is substantially changed by judicial or regulatory order of any local, state, federal, or foreign government authority.
24.6     Effect of Termination. Upon termination of Bandwidth Services for any reason, Customer shall pay all fees due up to the date of termination provided that in the event of termination due to Customer default, Customer shall be responsible for the remaining fees due during the then-current Term. Upon termination of the referencing Agreement pursuant to Section 24, BMDC may in its sole discretion exercise all the rights and remedies under applicable law to collect any sums due.
  1. Technical Support and Services Pricing.
25.1  Network Operations Support (8:00am – 5:00pm Mon–Fri, Eastern U.S. Time zone). Billed hourly, at $200 per hour, unless specified otherwise in a separate support services agreement.
25.2  Network Operations Support (Outside Business Hours). Billed hourly, at $300 per hour, with a 2-hour minimum, unless specified otherwise in a separate support services agreement.
  1. IP Addresses. BMDC reserves the right to reassign any IP Addresses allocated to Customer by BMDC that are not utilized.
  2. Traffic Billing.
27.1  Traffic is measured as of the last day of each month for billing purposes.
27.2  Traffic is measured, 95th  Percentile on the largest direction traffic.
27.3  Traffic data is captured on the BMDC switch associated with the customer connection.
  1. Lawful Purposes. Customer agrees to use Bandwidth Services only for lawful purposes, in compliance with all applicable laws, rules and regulations.

SERVICE LEVEL AGREEMENT TERMS FOR BANDWIDTH SERVICES

  1. Service Level Agreement Terms for Bandwidth Services Customers. BMDC will strive to provide Customer uninterrupted and unfiltered transit to the Internet. Should transit to the Internet become unavailable for a cumulative period up to one hour in any one calendar month, Customer will receive a credit equivalent to one day of Customer’s pro-rated Recurring Fees for that month. Customer will receive an additional refund of one day of the pro-rated internet connectivity Recurring Fees for each additional hour of Internet unavailability (limited to the Maximum Service Credit). All refund calculations will be based on unavailability in one-hour increments. The above does not cover outages caused by equipment and/or events not under the direct control of BMDC, outages due to Customer equipment or caused by individuals not directly employed by BMDC. This Service Level Agreement does not cover outages due to scheduled or emergency network and/or facility maintenance, which will be broadcast to all customers in advance.
  2. Customer Request Service Credit. In order to receive any the service credits described above, Customer must notify BMDC within 15 days from the time Customer becomes eligible to receive a service credit. Send an email to billing@brushmountaindatacenter.com to request a credit.  Failure to comply with this requirement will forfeit Customer’s right to receive a service credit.
  3. Service Level Agreement Update Notification. BMDC reserves the right to alter this Service Level Agreement without advanced  notice.

CLOUD SERVICES (FLXCLOUD & FLXSTORE) TERMS AND CONDITIONS

  1. Cloud Services. BMDC agrees to supply the services set forth in the referencing Agreement (e.g., BMDC software as a service offerings and related BMDC Programs, as defined herein or as otherwise provided in the referencing Agreement) (collectively, the “Cloud Services”).
  2. Other Services. Upon request by Customer, ALI may, at its option, provide Customer with technical and non-technical support and consulting services (“Other Services”) related to Cloud Services, which includes FlxCloud Services and FlxStore Services. Unless the parties agree otherwise in writing, Customer will pay for such Other Services in accordance with the Technical Support and Services Pricing set forth in Section 36, and ALI will provide such Other Services in accordance with the Advanced Logic Industries, Inc. Labor Services Terms and Conditions, contained herein.
  3. Payment. Unless Customer has a separate written agreement with ALI or BMDC, the following payment terms will apply:
34.1  Customer will pay the fees specified in the referencing Agreement, as well as any charges for Other Services. Upon 60 days or more written notice prior to the end of the Term, ALI may change any fees for services provided. Customer will pay all taxes levied against or upon the Cloud Services (as amended by the parties from time to time) or otherwise provided by BMDC.
34.2  All Recurring Fees are invoiced monthly in advance, with any partial months pro-rated. Variable charges (such as for Other Services) will be billed in arrears.
34.3  All Recurring Fees (including the first month’s fee) and charges for other, non-recurring Services will be payable within 15 days of the invoice date.
34.4  Unless agreed elsewhere in writing, recurring monthly fees for FlxCloud and FlxStore must be paid by pre-authorized Customer credit card or by automated clearing house (ACH) payment.
34.5  A 3% service charge will be applied in addition to the total amount invoiced for all payments processed using a credit card.
  1. Termination.
35.1  Termination by BMDC. BMDC may terminate Cloud Services at any time upon 60 days written notice to Customer. In addition, BMDC may terminate Cloud Services immediately upon a “default” by Customer. A “default” shall occur if Customer: (1) fails to make any payment when due; (2) provides false information to BDMC regarding Customer’s identity or address; (3) fails to comply with BMDC’s Acceptable Uses Policy; (4) breaches any of these Terms; or (5) uses the Cloud Services in violation of applicable laws.
35.2  Termination by Customer. Customer may terminate Cloud Services as of the end of the initial Term defined in the referencing Agreement, or any renewal Term, by providing written notice of termination at least 90 days before the end of the then-current Term. Customer may also terminate Services if it gives 30 days written notice of “default” and BMDC does not cure such default within such 30 day period.
35.3  Early Termination and Early Termination Fee.  With the exception of FlxCloud Services, which may be terminated during the first year, multi-year Agreements may not be terminated prior to the end of the first year.  In all cases, including FlxCloud, an Early Termination Fee will apply in addition to fees due for services provided.  This Early Termination Fee will be calculated as the difference between BMDC’s then non-discounted monthly rate and the discounted rates charged to Customer, multiplied by the number of months of service.  The Early Termination Fee must be received by BMDC before Early Termination can take effect.
35.4  Termination by Either Party. Either party may terminate these Services if the other party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.
35.5  Termination Due To Government Action. Notwithstanding the foregoing, and upon written notice to the Customer consistent with applicable governmental rules, BMDC may, without incurring liability to the Customer, disconnect the affected portion of any Services if BMDC is prohibited by governmental authority from furnishing the Cloud Services, or if any material rate or term in the referencing Agreement is substantially changed by judicial or regulatory order of any local, state, federal, or foreign government authority.
35.6  Effect of Termination. Upon termination of Cloud Services for any reason, Customer shall pay all fees due up to the date of termination provided that in the event of termination due to Customer default, Customer shall be responsible for the remaining fees due during the then-current Term. Upon termination of the referencing Agreement pursuant to Section 35, BMDC may in its sole discretion exercise all the rights and remedies under applicable law to collect any sums due.
  1. Technical Support and Services Pricing.
36.1  Network Operations Support (8:00am – 5:00pm Mon–Fri, Eastern U.S. Time zone). Billed hourly, at $200 per hour, unless specified otherwise in a separate Support Services Agreement.
36.2  Network Operations Support (Outside Business Hours). Billed hourly, at $300 per hour, with a 2-hour minimum, unless specified otherwise in a separate Support Services Agreement.
  1. Rights Granted.
  37.1  For the duration of the Term and subject to Customer payment obligations, and except as otherwise set forth in these Terms, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Cloud Services set forth in the referencing Agreement, including anything developed by BMDC and delivered to Customer as part of the Cloud Services, solely for Customer internal business operations and subject to these Terms and any referencing Agreement. Customer may allow Users to use the Cloud Services for this purpose and Customer is responsible for Users’ compliance with these Terms and any Customer order.
37.2  Customer does not acquire under these Terms any right or license to use the Cloud Services, including the BMDC Programs and Services Environment, in excess of the scope and/or duration of the Cloud Services stated in the referencing Agreement. Upon the end of the Cloud Services, Customer’s right to access and use the Cloud Services will terminate.
37.3 To enable BMDC to provide Customer and Users with the Cloud Services, Customer grants BMDC the right to use, process and transmit, in accordance with these Terms and any Customer order, Customer Content and Customer Applications for the duration of the Term plus any additional post-termination period during which BMDC provides Customer with access to retrieve an export file of Customer Content and Customer Applications. If Customer Applications include third party programs, Customer acknowledges that BMDC may allow providers of those third party programs to access the Services Environment, including Customer Content and Customer Applications, as required for the interoperation of such third party programs with the Cloud Services. BMDC will not be responsible for any use, disclosure, modification or deletion of Customer Content or Customer Applications resulting from any such access by third party program providers or for the interoperability of such third party programs with the Cloud Services.
37.4 The Cloud Services may contain or require the use of Separately Licensed Third Party Technology. Customer is responsible for complying with the Separate Terms specified by BMDC that govern Customer use of Separately Licensed Third Party Technology. BMDC may provide certain notices to Customer via readme or notice files in connection with such Separately Licensed Third Party Technology. The third party owner, author or provider of such Separately Licensed Third Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third Party Technology.
37.5 As part of Cloud Services, BMDC may provide Customer with access to Third Party Content within the Services Environment. The third party owner, author or provider of such Third Party Content retains all ownership and intellectual property rights in and to that content, and Customer rights to use such Third Party Content are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider.
  1. Ownership and Restrictions. Customer retains all ownership and intellectual property rights in and to Customer Content and Customer Applications. BMDC or its licensors retain all ownership and intellectual property rights to the Cloud Services, including BMDC Programs and Ancillary Programs, and derivative works thereof, and to anything developed or delivered by or on behalf of BMDC under these Terms. Customer may not, and may not cause or permit others to:
38.1 remove or modify any program markings or any notice of BMDC’s or its licensors’ proprietary rights;
38.2 make the programs or materials resulting from the Cloud Services (excluding Customer Content and Customer Applications) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Services Customer has acquired);
38.3 modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Cloud Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), or access or use the Cloud Services in order to build or support, and/or assist a third party in building or supporting, products or Cloud Services competitive to BMDC;
38.4 perform or disclose any benchmark or performance tests of the Cloud Services, including the BMDC Programs;
38.5 perform or disclose any of the following security testing of the Services Environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
38.6  license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Cloud Services, BMDC Programs, Ancillary Programs, Services Environments or BMDC materials to any third party, other than as expressly permitted under the terms of the applicable order.
  1. Service Specifications.
39.1 The Cloud Services are subject to and governed by the referencing Agreement. The referencing Agreement may define provisioning and management processes applicable to the Cloud Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the BMDC Programs, as well as any Cloud Services deliverables (collectively, Service Specifications). Customer acknowledges that use of the Cloud Services in a manner not consistent with the referencing Agreement may adversely affect Cloud Services performance and/or may result in additional fees. If the Cloud Services permit Customer to exceed the ordered quantity (e.g., soft limits on counts for Users, sessions, storage, etc.), then Customer is responsible for promptly purchasing additional quantity to account for Customer excess usage. For any month that Customer does not promptly purchase such additional quantity, BMDC may require Customer to pay, in addition to the fees for the additional quantity, an excess usage fee for those Services equivalent to 50% of the fees for the additional quantity in the month in which such excess usage occurred.
39.2 BMDC may make changes or updates to the Cloud Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at BMDC’s discretion; however, BMDC changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Cloud Services provided to Customer for the duration of the Term.
  1. Use of FlxCloud and FlxStore Services.
40.1 Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the Cloud Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Customer and Users’ usernames, passwords and accounts with BMDC, Customer accepts responsibility for the confidentiality and timely and proper termination of user records in Customer local identity infrastructure or on Customer local computers. BMDC is not responsible for any harm caused by Users, including individuals who were not authorized to have access to the Cloud Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis by Customer. Customer is responsible for all activities that occur under Customer and Users’ usernames, passwords or accounts or as a result of Customer or Users’ access to the Cloud Services, and agree to notify BMDC immediately of any unauthorized use. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Cloud Services.
40.2 Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Cloud Services, including for the BMDC Programs, as such Patches are generally released by BMDC or its affiliates. BMDC is not responsible for performance or security issues encountered with the Cloud Services that result from the application of third party Patches that are necessary for the proper function and security of the Cloud Services. Except for emergency or security related maintenance activities, BMDC will coordinate with Customer the scheduling of application of Patches, where possible.
40.3 Although the BMDC FlxCloud Services may be used as a back-up service, Customer agrees that Customer will maintain at least one additional current copy of programs and data stored on the FlxCloud system somewhere other than on the FlxCloud system, or subscribe to Brush Mountain Data Center Back-Up Service (FlxStore). Customer is responsible for performing and testing restores as well as testing Customer systems and monitoring the integrity of Customer data.
  1. Access. Customer may access the Cloud Services by a mutually agreed upon mechanism, suiting both BMDC’s service and support capabilities and Customer’s objective. Customer’s use of any code or SDK (Software Development Kit) downloaded from the BMDC website is governed by the license terms included with the code. The servers used to provide the Cloud Services will be located in a controlled access data center operated by BMDC. The data center will be monitored by video surveillance, 24/7/365. Entrance to the data center will be authorized by proximity-based access cards or other BMDC approved security authentication methods.
  2. Distribution of Software.
42.1 All software that BMDC provides for Customer use is subject to these Terms, including software that BMDC may authorize Customer to install on devices located outside of BMDC’s data center. Customer may not use any software BMDC provides after the expiration of the Term or termination of the referencing Agreement, or the particular service for which it was provided, and Customer may not copy the software unless expressly permitted by these Terms. Customer may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software BMDC provides. Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software BMDC provides except and to the extent that Customer is expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to BMDC.
42.2 In the event BMDC distributes any open source software to Customer as part of the Cloud Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses) then such open source software is subject to the terms of the applicable open source license. There are no warranties provided with respect to any open source software and all implied warranties are disclaimed. In the event of any conflict between the terms herein and the applicable open source license with respect to any open source software, the terms of the applicable open source license shall control. In addition to the terms of these Terms, Customer’s use of any Microsoft® software is governed by Microsoft’s license terms.
  1. End of Cloud Services.
43.1Upon the end of the Cloud Services, Customer no longer has rights to access or use the Cloud Services, including the associated BMDC Programs and Services Environments; however, at Customer’s request, as long as Customer is not in default, and for a reasonable fee to be determined by BMDC, for a period of up to 30 days after the end of the applicable Term, BMDC will make available Customer Content and Customer Applications then in the Services Environment for the purpose of retrieval by Customer. At the end of such 30 day period, and except as may be required by law, BMDC will delete or otherwise render inaccessible any of Customer Content and Customer Applications that remain in the Services Environment.
43.2 BMDC may temporarily suspend Customer password, account, and access to or use of the Cloud Services if Customer or Users violate any provision of these Terms, or if in BMDC’s reasonable judgment, the Cloud Services or any component thereof are about to suffer a threat to security or functionality. BMDC will provide notice to Customer of any such suspension in BMDC’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. BMDC will use reasonable efforts to re-establish the affected Cloud Services promptly after BMDC determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, BMDC will make available to Customer (as is reasonably available) Customer Content and Customer Applications as existing in the Services Environment on the date of suspension. BMDC may terminate the Cloud Services if any of the foregoing causes of suspension is not cured within 30 days after BMDC’s initial notice thereof. Any suspension or termination by BMDC under this paragraph shall not excuse Customer from Customer’s obligation to make payment(s) under these Terms and referencing Agreement.
  1. Third Party Websites, Content, Products and Services.
44.1The Cloud Services may enable Customer to link to, transmit Customer Content to, or otherwise access, other web sites, content, products, services, and information of third parties. BMDC does not control and is not responsible for such web sites or any such content, products, services and information accessible from or provided through the Cloud Services, and Customer bears all risks associated with access to and use of such web sites and third party content, products, services and information.
44.2 Any Third Party Content made accessible by BMDC in or through the Services Environment is provided on an “as-is” and “as available” basis without any warranty of any kind. Third Party Content may be indecent, offensive, inaccurate, infringing or otherwise objectionable or unlawful, and Customer acknowledges that BMDC is not responsible for and under no obligation to control, monitor or correct Third Party Content; however, BMDC reserves the right to take remedial action if any such content violates applicable restrictions under these Terms, including the removal of, or disablement of access to, such content.
44.3Any Third Party Content that Customer stores in Customer’s Services Environment will count towards any storage or other allotments applicable to the Cloud Services that Customer ordered.
  1. Service Tools and Ancillary Programs.
45.1BMDC may use tools, scripts, software, and utilities (collectively, “Tools”) to monitor and administer the Cloud Services and to help resolve Customer BMDC service requests. The Tools will not collect or store any of Customer Content or Customer Applications residing in the Services Environment, except as necessary to provide the Cloud Services or troubleshoot service requests or other problems in the Cloud Services. Information collected by the Tools (excluding Customer Content and Customer Applications) may also be used to assist in managing BMDC’s product and service portfolio, to help BMDC address deficiencies in its product and service offerings, and for license and Cloud Services management.
45.2 As part of the Cloud Services, BMDC may provide Customer with on-line access to download certain Ancillary Programs for use with the Cloud Services. If BMDC does not specify separate terms for such Ancillary Programs, then, subject to Customer payment obligations, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to use such Ancillary Programs solely to facilitate Customer access to, operation of, and/or use of the Services Environment, subject to these Terms and Customer order, including the Service Specifications. Customer’s right to use such Ancillary Programs will terminate upon the earlier of BMDC’s notice, the end of the Cloud Services associated with the Ancillary Programs, or the date on which the license to use the Ancillary Programs ends under the Separate Terms specified for such programs.
  1. Export
46.1Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Cloud Services. Customer agrees that such export laws govern Customer use of the Cloud Services (including technical data) and any Cloud Services deliverables provided under these Terms, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
46.2Customer acknowledges that the Cloud Services are designed with capabilities for Customer and Users to access the Services Environment without regard to geographic location and to transfer or otherwise move Customer Content and Customer Applications between the Services Environment and other locations such as User workstations. Customer is solely responsible for the authorization and management of User accounts, as well as export control and geographic transfer of Customer Content and Customer Applications.

 SERVICE LEVEL AGREEMENT FOR FLXCLOUD SERVICES.

  1. Service Level Agreement for FlxCloud Services. The Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of BMDC, outages due to Customer equipment or caused by individuals not directly employed by BMDC. This Service Level Agreement does not cover outages due to Permitted Downtime or Emergency Maintenance, which will be broadcast to all customers in advance.
  2. Control Plane.
48.1 The Control Plane is the FlxCloud Servers’ application programming interface (“API”) used to create, manage, and delete FlxCloud Servers. BMDC shall cause the FlxCloud Servers Control Plane to be available 99.9% of the time in any billing period.
48.2 “Monthly Availability” is calculated by the number of API errors when compared to the total number of Valid API Requests, on a per customer, per location basis, for a given monthly billing period, as follows (represented as a percentage): 1 – (Total API Errors)/(Total Valid API Requests).
48.3 If Monthly Availability falls below the guaranteed levels, a credit may be issued to Customer. Credits will be calculated as a percentage of all FlxCloud Server Fees in the affected location for the monthly billing period.
  1. Data Plane. The Data Plane includes FlxCloud Servers created via the Control Plane plus supporting systems and services required for the proper functioning and availability of those FlxCloud Servers. Customers manage and have full control over their FlxCloud Servers and BMDC guarantees proper functioning of the supporting systems and services.
Credits for Control and Data Planes will be allocated as follows:
Monthly Availability
Credit Percentage
100% – 99.5%
0%
≤ 99.4% – 99.0%
10%
≤ 98.9% – 98.0%
20%
< 98.0%
30%
  1. Limitations. Customer is not entitled to a credit if Customer is in breach of these Terms or referencing Agreement with BMDC (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms or referencing Agreement or Customer’s misuse of the Cloud Services. Customer is not entitled to a credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within BMDC’s control. To receive a credit, Customer must log a request via on-line ticket request or via email to billing@brushmountaindatacenter.com within fifteen (15) days following the end of the downtime and provide logs evidencing BMDC’s failure to meet the requirements of this Agreement. Customer must show that Customer’s use of FlxCloud Servers was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the FlxCloud Server Fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. The remedies set forth in these Terms are the sole and exclusive remedies for FlxCloud Server unavailability.
  2. Service Level Agreement Update Notification. BMDC reserves the right to alter this FlxCloud Service Level Agreement without advanced notice.

SERVICE LEVEL AGREEMENT FOR FLXSTORE SERVICES

  1. Service Level Agreement for FlxStore Services. The Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of BMDC, outages due to Customer equipment or caused by individuals not directly employed by BMDC. This Service Level Agreement does not cover outages due to Permitted Downtime or Emergency Maintenance, which will be broadcast to all customers in advance.
Sequential Related Service Credit:
Sequential Days without backed up data
Days of Service credited
1
3
2-4
6
5+
15
Access Related Service Credit:
Monthly Availability
Credit Percentage
100% – 99.5%
0%
≤ 99.4% – 99.0%
10%
≤ 98.9% – 98.0%
20%
< 98.0%
30%
  1. Customer Request Service Credit. In order to receive any the service credits described above, Customer must notify BMDC within 15 days from the time Customer becomes eligible to receive a service credit. Send an email to billing@brushmountaindatacenter.com to request a credit. Failure to comply with this requirement will forfeit Customer’s right to receive a service credit.
  2. Onsite Back-Up Equipment Failure. If a FlxStore on-premise Back-Up Equipment fails, BMDC guarantees that shipment of replacement unit will be complete within 1 business day of contacting BMDC at support@brushmountaindatacenter.com. Customer is required to return any damaged unit with 10 days or will be charged for the replacement unit.
  3. Data Replication Service. BMDC may provide a Data Replication Service for customer’s computer data where Customer is responsible for back-up software and BMDC is only providing network services and Data Replication storage. Customer is eligible for Access Related Service Credit as stated above only and this service excludes the performance related credit. In such instances, BMDC is not responsible for Back-Up Service and is only providing disk storage.
  4. Return of Back-Up Equipment. Upon termination or expiration of the Service, Customer will return all BMDC Back-Up Equipment and software located On Their Premises. In the event the Back-Up Equipment has not been returned within 10 days following the termination or expiration, BMDC will bill Customer for the Back-Up Equipment and software.
  5. Limitations. Customer is not entitled to a credit if Customer is in breach of these Terms or referencingAgreement with BMDC (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms or referencing Agreement or Customer’s misuse of the Cloud Services. Customer is not entitled to a credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within BMDC’s control. To receive a credit, Customer must log a request via on-line ticket request or via email to billing@brushmountaindatacenter.com within fifteen (15) days following the end of the downtime and provide logs evidencing BMDC’s failure to meet the requirements of this Agreement. Customer must show that Customer’s use of FlxStore Servers was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the FlxStore Server Fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. The remedies set forth in these Terms are the sole and exclusive remedies for FlxStore Server unavailability.
  6. Service Level Agreement Update Notification. BMDC reserves the right to alter this FlxStore Service Level Agreement without advanced notice.

GENERAL TERMS.

THE FOLLOWING TERMS ARE APPLICABLE TO THE TERMS AND CONDITIONS FOR CO-LOCATION, BANDWIDTH SERVICES, AND CLOUD SERVICES (FLXCLOUD AND FLXSTORE)

  1. Compliance with Laws. The parties will comply with all applicable laws, rules, regulations, and ordinances.
  2. Confidentiality. Each party recognizes and acknowledges that during the Term it may be given access to valuable and important confidential technical and business information, processes and software of the other party, whether oral or written, which is claimed by the disclosing party as proprietary and which shall be marked as proprietary by that party prior to disclosure, or if disclosed orally, shall be identified as proprietary at the time of oral disclosure (“Confidential Information“). Confidential Information does not include (a) information known to the recipient at the time of disclosure, which can be documented; (b) information learned by the recipient from a third party lawfully holding same and not disclosing same in violation of an obligation of confidentiality; (c) information that subsequently becomes generally known other than as the result of wrongful disclosure; and (d) information required to be disclosed publicly by law or regulation to the extent so disclosed, but only after prior written notice to discloser of such requirement prior to such disclosure. Each party agrees that, except as authorized by the disclosing party, recipient shall not use any Confidential Information of the other party except for the purposes of these Terms and shall not disclose such information unless authorized in writing by the disclosing party.
  3. Warranty. BMDC hereby represents and warrants that services shall be performed in a professional and workmanlike manner and in accordance with any agreed-upon specifications. BMDC further warrants that it shall not infringe on any third party rights, including, but not limited to, intellectual property rights. BMDC ASSUMES NO LIABILITY FOR CUSTOMER’S SELECTION OF PRODUCTS AND SOFTWARE APPLICATIONS, OR THE CAPACITY OR CONNECTIVITY OF SUCH PRODUCTS OR SOFTWARE APPLICATIONS, OR ANY FUTURE OBSOLESCENCE OF CUSTOMER’S PRODUCTS OR SOFTWARE APPLICATIONS OR THE FAILURE OF THE PRODUCT MANUFACTURER OR SOFTWARE PROVIDER TO SUPPORT SUCH PRODUCTS OR SOFTWARE APPLICATIONS AND, IN ANY AND ALL SUCH EVENTS, CUSTOMER SHALL PAY ALL OF THE COSTS OF UPGRADES OR REPLACEMENT. ALL PRODUCTS AND SOFTWARE CONNECTED TO THE INTERNET, TO A NETWORK, OR TO OTHER COMMUNICATIONS DEVICES OR SERVICES, ARE SUBJECT TO UNAUTHORIZED ACCESS, “HACKING,” AND OTHER DISRUPTION AND NO MEASURES TO PREVENT SUCH DAMAGES ARE “FOOLPROOF.” THEREFORE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BMDC DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SERVICES, PRODUCTS AND SOFTWARE. THE WARRANTIES AND REMEDIES SET FORTH IN THESE TERMS AND REFERENCING AGREEMENT ARE EXCLUSIVE AND NO OTHER WARRANTY OR REMEDY OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING THE WARRANTIES OF PERFORMANCE, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, ALL OF WHICH CUSTOMER WAIVES IN FULL.
  4.  Indemnity. Each party (the “Indemnitor”) agrees to defend, at its own expense, and indemnify and hold harmless, the other party, its predecessors and successors, and all of its directors, officers, managers, members, employees, affiliates and agents (collectively, the “Indemnitee”) from and against any and all damages, demands, expenses, claims, liability, injuries, suits, and proceedings brought by a third party against Indemnitee, including reasonable attorneys’ fees, as a result of (i) Indemnitor’s gross negligence or willful misconduct, or (ii) a violation of any material federal, state, local or foreign law, regulation, or ordinance by Indemnitor or any person acting at its direction.
62.1. Indemnity Based on Intellectual Property Rights Violations. If a third party makes a claim against either Customer or BMDC (“Recipient” which may refer to Customer or BMDC depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either Customer or BMDC (“Provider” which may refer to Customer or BMDC depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following: (a)   notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law); (b) gives the Provider sole control of the defense and any settlement negotiations; and (c) gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects BMDC’s ability to meet its obligations under the relevant order, then BMDC may, at its option and upon 30 days prior written notice, terminate the referencing Agreement.
         The Provider will not indemnify the Recipient if the Recipient: (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or Service Specifications, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, or (c) continues to use the applicable Material after the end of the license to use that Material if the Recipient knows of such expiration date. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. BMDC will not indemnify Customer for any portion of an infringement claim that is based upon the combination of any Material with any products or Services not provided by BMDC. BMDC will not indemnify Customer to the extent that an infringement claim is based on any Material from a third party portal or other external source that is accessible to Customer within or from the services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, etc.). BMDC will not indemnify Customer for infringement caused by Customer’s actions against any third party if the services as delivered to Customer and used in accordance with these Terms would not otherwise infringe any third party intellectual property rights. BMDC will not indemnify Customer for any intellectual property infringement claim(s) known to Customer at the time Services rights are obtained.
  1. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THESE TERMS OR REFERENCING AGREEMENT), DATA, OR DATA USE. BMDC’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE REFERENCING AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO BMDC FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY LESS AND UNDER NO CIRCUMSTANCE AMOUNT PAID IN PREVIOUS THREE (3) MONTHS ANY REFUNDS OR CREDITS RECEIVED BY CUSTOMER FROM BMDC UNDER SUCH ORDER.
  2. Liens and Encumbrances. Customer (and its clients) will not have the power, authority or right to create and will not permit tax liens, mechanics’ liens, or builders liens with respect to work performed, in connection with the equipment or use of the Customer Space.
  3. Credit Authorization. Customer hereby authorizes BMDC to obtain credit information and bank and other financial references regarding Customer for the purposes of assessing Customer’s credit worthiness, and Customer will promptly execute and deliver to BMDC such further documents and assurances and take such further actions as BMDC may from time to time reasonably request.
  4. Force Majeure. Neither party hereto shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both parties hereto will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed services and affected orders upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the services.
  5. Notices. Every notice, approval, request, authorization, direction or other communication under these Terms will be given in writing to the party at the address first set forth in the referencing Agreement for such party and will be deemed to have been delivered and given for all purposes (i) on the delivery date, if delivered personally: (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt, if sent by courier; (iii) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (iv) upon personal acknowledgement by the recipient, if sent by email.
  6. Assignment. Customer shall not assign the referencing Agreement or any of its rights or obligations hereunder, without the prior written consent of BMDC, such consent not to be unreasonably withheld. Notwithstanding the foregoing, prior written consent of BMDC is not required to assign any Agreement by operation of law or to any successor-in-interest acquiring substantially all of Customer’s stock or assets.
  7. Survival. Provisions that survive termination or expiration of the referencing Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
  8. Entire Agreement. These terms in conjunction with the referencing Agreement supersedes all previous Agreements between the parties. The referencing Agreement and any subsequent agreements or addendums constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.
  9. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
  10. Severability. If any of these Terms of are found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the referencing Agreement.
  11. Relationship. The relationship of BMDC to Customer will be that of an independent contractor, and neither BMDC nor any employee of BMDC will be deemed to be an agent or employee of Customer.
  12. Choice of Law and Venue. These Terms and referencing Agreement are governed by the substantive and procedural laws of the Commonwealth of Virginia and Customer and BMDC agree to submit to the exclusive jurisdiction of, and venue in, the courts in Montgomery County in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to the referencing Agreement or to orders placed under it.
  13. Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of the referencing Agreement and to establish and protect the rights, interests and remedies intended to be created in favor of the other.
  14. Attorney’s Fees. If Customer defaults in the performance of any of the terms, covenants, agreements or conditions contained in these Terms, and BMDC places the enforcement of these Terms and the referencing Agreement, or any part thereof, in the hands of an attorney or files suit upon the same, Customer agrees to pay BMDC’s reasonable attorneys’ fees and costs.
  15. Waiver of Trial by Jury. ANY COURT PROCEEDINGS COMMENCED BY OR AGAINST EITHER PARTY SHALL BE RESOLVED BY A COURT WITHOUT A JURY, AND EACH PARTY WAIVES ITS RIGHT TO A JURY AS TO ANY DISPUTE OR CLAIMS ARISING UNDER OR RELATING TO THESE TERMS AND REFERENCING AGREEMENT, WHETHER FOR BREACH OR ENFORCEMENT OF CONTRACT, TORT OR OTHERWISE.

DEFINITIONS.

 THE FOLLOWING TERMS ARE DEFINED FOR PURPOSES OF THE TERMS AND CONDITIONS FOR CO-LOCATION, BANDWIDTH SERVICES, AND CLOUD SERVICES (FLXCLOUD AND FLXSTORE)

Access Related Service Credit” means there has been a hardware or communications failure that has prevented the successful performance of a back-up.
Ancillary Program” means any software agent or tool owned or licensed by BMDC or any affiliate of BMDC that BMDC makes available to Customer for download as part of the Cloud Services for purposes of facilitating Customer access to, operation of, and/or use with, the Services Environment. The term “Ancillary Program” does not include Separately Licensed Third Party Technology.
API Error” is defined as: (i) an HTTP 5xx server error response to a valid API request or (ii) no response to a valid API request because the API is down. Network errors or downtime outside of the BMDC Data Center Network do not constitute an API error.
Back up” means the software that is used to schedule and perform required back up task.
Back-Up” means the process of copying computer data to a data storage vault.
Back-Up Equipment” means a storage device used to provide back-up services and storage.
Backed Up Data” means to save a copy of data designated by the Customer.
Back-Up Service” means the back-up and recovery service provided by BMDC to Customer under these Terms.
BMDC Programs” refers to the software products owned or licensed by BMDC or any of its affiliates to which BMDC grants Customer access as part of the Cloud Services, including Program Documentation, and any program updates provided as part of the Cloud Services. The term “BMDC Programs” does not include Separately Licensed Third Party Technology.
Customer Applications” means all software programs, including any source code for such programs, that Customer or Users provide and load onto, or create using, any BMDC Cloud Services. Services under these Terms, including BMDC Programs and Services Environments, BMDC intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Customer Applications.”
Customer Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material (other than Customer Applications), in any format, provided by Customer or Users that reside in, or run on or through, the Services Environment.
Data Center Location” refers to the location in which the Services Environment is physically located.
Data Center Network” means the portion of the BMDC network extending from the network egress point of a FlxCloud server to the outbound port of the data center border router.
Downtime” means the service is unavailable for a Customer, exclusive of permitted downtime.
Effective Date” means the date provided in the referencing Agreement.
Emergency Maintenance” means critical unforeseen maintenance (e.g. repairs, modifications, or upgrades) needed to ensure security or reliability.
FlxCloud Server” means a unique virtual machine instance.
FlxCloud Server Fees” means the fees for FlxCloud Servers for the monthly billing period in which the failure occurred and includes hourly virtual machine usage and bandwidth charges.
FlxCloud Server Host” means the physical server which hosts the FlxCloud Server.
Internet” means the international network of computer systems, or related equipment and software, comprising the interconnected worldwide network of computer networks used to transmit information.
Maximum Service Credit” means:
For Co-Location Services: the aggregate maximum number of service credits to be credited by BMDC to customer in a single calendar month shall not exceed fifteen (15) days of service.
For Bandwidth Services: the aggregate maximum number of service credits to be credited by BMDC to customer in a single calendar month shall not exceed fifteen (15) days of service.
For Cloud Services: the aggregate maximum number of service credits or credit percentage to be credited by BMDC to customer in a single calendar month for Cloud Services are outlined in the Service Level Agreement for FlxCloud Services and FlxStore Services, as applicable.
Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number minutes of downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
On Their Premises” means BMDC customer site or designated alternate location not within BMDC.
Permitted Downtime” means:
For Co-Location Services: the service is unavailable for Customer use during a prescheduled period which has been announced at least 72 hours in advance. Unless otherwise communicated, scheduled downtime shall not be more than 4 hours per month for major system configuration changes, upgrades or normal maintenance.
For Bandwidth Services: the service is unavailable for Customer use during a prescheduled period which has been announced at least 72 hours in advance. Unless otherwise communicated, scheduled downtime shall not be more than 4 hours per month for major system configuration changes, upgrades or normal maintenance.
For Cloud Services: the service is unavailable for Customer use during a prescheduled period which has been announced at least ten business days in advance. Unless otherwise communicated, scheduled downtime shall not be more than 4 hours per month for major system configuration changes, upgrades or normal maintenance.
Power” excludes FlxCloud Server Host power supplies which is covered as part of the FlxCloud Server Hosts guarantee.
Recurring Fees” means those charges that are billed periodically, as further outlined in the referencing Agreement.
Separate Terms” refers to separate license terms between Customer and a third party licensor that are specified in a Support Services Agreement, readme or notice files and that apply to Separately Licensed Third Party Technology.
Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of these Terms.
Sequential days without backed up data” means the number of sequential calendar days without a successful data back-up.
Services” means, collectively, both the Cloud Services and Other Services that Customer has ordered.
Services Environment” refers to the combination of hardware and software components owned, licensed or managed by BMDC to which BMDC grants Customer and Users access as part of the Cloud Services. As applicable and subject to the terms of the referencing Agreement and Customer’s order, BMDC Programs, Third Party Content, Customer Content and Customer Applications may be hosted in the Services Environment.
Term” shall mean the Initial Term and any Renewal Term, as provided in the referencing Agreement.
Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of BMDC and made available to Customer through, within, or in conjunction with Customer use of, the Cloud Services. Examples of Third Party Content include data feeds from social network services, RSS feeds from blog posts, data libraries and dictionaries. Third Party Content does not include Separately Licensed Third Party Technology.
Users” means those employees, contractors, and end users, as applicable, who use the Cloud Services in accordance with these Terms. For Cloud Services that are specifically designed to allow Customer customers suppliers or other third parties to access the Cloud Services to interact with Customer, such third parties will be considered “Users” subject to these Terms and Customer order.
Valid API Request” is defined as a well formed request that complies with the published API specification.

ADVANCED LOGIC INDUSTRIES, INC. LABOR SERVICES TERMS AND CONDITIONS

  1. Other Services and Fees.  ALI shall perform Other Services for Customer as described herein, or other oral or written agreement (each an “Agreement for Other Services”) between ALI and Customer.  Customer agrees to pay ALI the prices identified in each Agreement for Other Services for services rendered during the term of the Agreement for Other Services.  In addition, Customer agrees to pay the reasonable out-of-pocket travel and living expenses incurred by ALI during performance of an Agreement for Other Services.  Travel is billed round trip unless otherwise agreed in writing.  Rates do not include taxes.  If ALI is required to pay any federal, state, or local taxes based on services provided under such Agreement for Other Services, such taxes will be billed and paid by Customer.
  2. Confidentiality.  Each party recognizes and acknowledges that during the term of an Agreement for Other Services it may be given access to valuable and important confidential technical and business information, processes and software of the other party, whether oral or written, which is claimed by the disclosing party as proprietary and which shall be marked as proprietary by that party prior to disclosure, or if disclosed orally, shall be identified as proprietary at the time of oral disclosure  (herein “Confidential Information“).  Confidential Information does not include (a) information known to the recipient at the time of disclosure, which can be documented; (b) information learned by the recipient from a third party lawfully holding same and not disclosing same in violation of an obligation of confidentiality; (c) information that subsequently becomes generally known other than as the result of wrongful disclosure; and (d) information required to be disclosed publicly by law or regulation to the extent so disclosed, but only after prior written notice to discloser of such requirement prior to such disclosure.  Each party agrees that, except as authorized by the disclosing party, recipient shall not use any Confidential Information of the other party except for the purposes of an Agreement for Other Services and shall not disclose such information unless authorized in writing by the disclosing party.  Such obligation shall extend for five (5) years after termination of an Agreement for Other Services.
  3. Rights to Development.  Any ideas, inventions, works of authorship, know-how, or techniques that have been or may be developed by ALI shall be and remain the property of ALI.  ALI may in its sole discretion develop, use, market, and license such software or supporting material that is similar or related to that which was developed by ALI for Customer.  ALI will provide access to the source code, and will grant to client a nonexclusive, nontransferable license of the product, to reproduce and use for its own internal business purposes, by its authorized personnel (without the right to sublicense), unless stated otherwise in the product’s license agreement.  ALI reserves all rights not expressly granted herein.
  4. Warranties.  ALI ASSUMES NO LIABILITY FOR CUSTOMER’S SELECTION OF PRODUCTS AND SOFTWARE APPLICATIONS, OR THE CAPACITY OR CONNECTIVITY OF SUCH PRODUCTS OR SOFTWARE APPLICATIONS, OR ANY FUTURE OBSOLESCENCE OF CUSTOMER’S PRODUCTS OR SOFTWARE APPLICATIONS OR THE FAILURE OF THE PRODUCT MANUFACTURER OR SOFTWARE PROVIDER TO SUPPORT SUCH PRODUCTS OR SOFTWARE APPLICATIONS AND, IN ANY AND ALL SUCH EVENTS, CUSTOMER SHALL PAY ALL OF THE COSTS OF UPGRADES OR REPLACEMENT. ALL PRODUCTS AND SOFTWARE CONNECTED TO THE INTERNET, TO A NETWORK, OR TO OTHER COMMUNICATIONS DEVICES OR SERVICES, ARE SUBJECT TO UNAUTHORIZED ACCESS, “HACKING,” AND OTHER DISRUPTION OR DAMAGE.  NO MEASURES TO PREVENT SUCH DAMAGES ARE “FOOLPROOF.”  THEREFORE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALI DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SERVICES, PRODUCTS AND SOFTWARE PROVIDED.  THE WARRANTIES AND REMEDIES SET FORTH HEREIN OR IN AN AGREEMENT FOR OTHER SERVICES ARE EXCLUSIVE AND NO OTHER WARRANTY OR REMEDY OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING THE WARRANTIES OF PERFORMANCE, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTIBILITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, ALL OF WHICH ARE WAIVED IN FULL BY CUSTOMER. 
  5. Limitation on Liability.  THE TOTAL LIABILITY OF ALI, ITS SUPPLIERS AND SUB-CONTRACTORS, ON ANY AND ALL CLAIMS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, EQUITY OR OTHERWISE SHALL NOT EXCEED THE AMOUNT RECEIVED BY ALI FROM CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE GIVING RISE TO THE CLAIM.  IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, EQUITY OR OTHERWISE, SHALL ALI, ITS SUPPLIERS AND SUB-CONTRACTORS, BE LIABLE FOR LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF FACILITY SHUTDOWN, INABILITY TO OPERATE OR INCREASED EXPENSE OF OPERATION, SERVICE INTERRUPTIONS, CLAIMS OF CUSTOMER’S CUSTOMERS OR CONTRACTORS, GOVERNMENTAL FINES OR PENALTIES AGAINST THE CUSTOMER, LOSS OF CAPITAL OR REVENUE, COST OF MONEY, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE ARISING AT ANY TIME FROM ANY CAUSE WHATSOEVER, EVEN IF ALI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT FOR OTHER SERVICES OR ANY OTHER AGREEMENT AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT FOR OTHER SERVICES.
  6. Delay in Performance.  ALI, its suppliers and sub-contractors shall be excused if delayed or prevented from performance by strikes, transportation delays, weather or other acts of God, equipment breakdowns, acts of civil or military authority, war or any other causes beyond the reasonable control of ALI, its suppliers or subcontractors.  In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
  7. Disputes.  Customer shall make every effort to notify ALI of a dispute or claim within ten (10) days of the date on which the dispute or alleged claim arose.  Customer shall not bring any claim against ALI unless it provides written notice of such claim to ALI within thirty (30) days of the date on which the alleged claim arose.  In no case shall Customer assert any claim more than one (1) year after the date on which the alleged claim arose.
  8. Non-Hire.  Each party agrees that it will not directly or indirectly hire, employ, engage, retain or otherwise contract with any employee of the other party during the term of an Agreement for Other Services, and for a period of two (2) years thereafter.  Should either party violate this provision, the violating party will promptly pay to the non-violating party seventy five percent (75%) of said employee’s annual salary or pay.
  9. Business Hours & Travel Charge Policies. “Regular Business Hours” are 8 AM to 5 PM, Monday through Friday, excluding the following holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, Thanksgiving Friday and Christmas.  For each on-site coverage service visit to Customer, there shall be a minimum charge of one (1) hour.
  10. Waiver of Trial by Jury.  Any court proceedings commenced by or against either party shall be resolved by a court without a jury, and each party waives its right to a jury as to any dispute or claims arising under or relating to an Agreement for Other Services, whether for breach or enforcement of contract, tort or otherwise.
  11. Equal Opportunity and Affirmative Action.  ALI is an equal opportunity/affirmative action employer.  It is ALI’s policy not to discriminate against qualified applicants and employees on the basis of race, color, religion, sex, national origin, disability, status as a Vietnam era or special disabled veteran, or other legally protected status.  Further, ALI engages in affirmative action efforts, where appropriate, to employ, train and promote qualified minorities, women, the disabled, and Vietnam era and special disabled veterans.
  12. General.  The Agreement for Other Services constitutes the entire understanding between Customer and ALI concerning the subject thereof and expressly supersedes and replaces any oral or written, past or present communication, proposal, understanding or agreement.  Any representation, promise, understanding, proposal, agreement, warranty, course of dealing or trade usage not expressly contained or referenced herein or in an Agreement for Other Services shall not be binding on ALI.  An Agreement for Other Services may be supplemented by additional terms and conditions as mutually agreed upon in writing.  An Agreement for Other Services is only for the benefit of Customer and ALI and shall not be assigned and any products delivered hereunder shall not be transferred or sublicensed except by mutual written agreement.  Customer shall indemnify and hold harmless ALI from any loss or damage resulting from any assignment or transfer in violation of this section.  The invalidity, in whole or in part, of any section hereof or in an Agreement for Other Services shall not affect the validity of the remainder of such section or the rest of an Agreement for Other Services.  The Agreement for Other Services shall be governed by the laws of the Commonwealth of Virginia without regards to its conflict of laws principles and any action to enforce, construe or modify an Agreement for Other Services shall be filed in either the General District Court or the Circuit Court for the County of Montgomery, Virginia.  In any legal proceeding brought to enforce the terms of an Agreement for Other Services, the non-prevailing party shall pay the reasonable attorneys’ fees of the prevailing party.