SOFTWARE AS A SERVICE (SaaS) TERMS OF SERVICE
As used in this TOS, the definitions below shall apply. Definitions for other defined terms are set forth elsewhere in this TOS.
1.1 “TOS” means this Software as a Service (SaaS) Terms of Service, and in corporates any referenced policies, schedules, exhibits and attachments and governs the terms of each Order Form entered into by LinkSquares and Client.
1.2 “LinkSquares” means LinkSquares, Inc., a Delaware Corporation.
1.3 “LinkSquares Software” or “Software” means the software modules made available by LinkSquares, as identified in an Order Form, to be accessed by Client over its internet connection when using the Services.
1.4 “LinkSquares System” or “System” means the hardware, configuration, systems software, applications software, software utilities, firmware, embedded software, telecommunications equipment and connectivity, Hosting Sites and other facilities that LinkSquares hosts, maintains and uses to provide Users with access to and use of the Software and Services.
1.5 “Client” means the entity or person purchasing Services from LinkSquares pursuant to and as indicated in an Order Form.
1.6 “Force Majeure Event” has the meaning stated in Section 10.3.
1.7 “Hosting Site” means the Internet-connected hosting facility from which the System is accessed, as identified in an Order Form, as it may be modified by LinkSquares from time to time.
1.8 “Order Form” means an agreement pursuant to which Client purchases Services from LinkSquares, which references this TOS and which is governed by this TOS. Each reference to an Order Form herein shall mean such Order Form as governed by, and inclusive of, the terms and conditions set forth in this TOS.
1.9 “Services” means the services LinkSquares agrees to provide to Client, as identified in an Order Form.
1.10 “Users” are employees, agents and third party contractors of Client that have been designated or permitted by Client to access the LinkSquares System.
- LINKSQUARES’ SERVICES
2.1 Services. LinkSquares shall provide the services described in each Order Form (“Services”).
2.2 Service Levels. Subject to the terms and conditions of this TOS, and until termination of the applicable Order Form in accordance with its terms, LinkSquares shall provide Client with the Services, diligently, in an accurate and timely manner, in accordance with any applicable time or standards expressly set forth in this TOS (including any Schedules), and in accordance with the service level commitments set forth in Schedule A attached hereto. Client agrees that LinkSquares may reasonably amend these commitments from time to time on reasonable advanced notice.
2.3 System Changes. LinkSquares will use commercially reasonable efforts to resolve any failure, malfunction, defect, problem, or non-conformity in the Systems identified by Client or otherwise brought to LinkSquares’ attention. LinkSquares will not make any changes to the System that are likely to have a materially adverse impact on Client’s access to or use of the Systems or significantly increase Client’s costs without first obtaining Client’s prior written approval, which shall not be unreasonably withheld, provided that LinkSquares may make temporary changes required by an emergency if LinkSquares is unsuccessful despite reasonable efforts at contacting Client to obtain its approval. If any such changes are requested by LinkSquares, LinkSquares will provide to Client: (i) a detailed, written report on the effect the proposed changes will have on the Systems then currently in use by Client, and (ii) any tools that LinkSquares develops and makes available to its other customers to assist Client with implementing such changes.
2.4 Security and Access. With regard to the System and those locations where any Client Data is stored under the control of LinkSquares, LinkSquares will maintain and enforce safety, physical and computer system security procedures and safeguards that are at least equal to industry standards for such types of service locations. LinkSquares will use its best efforts to rectify promptly any such breaches that occur.
- CLIENT’S UNDERTAKINGS AND ACKNOWLEDGMENTS
3.1 Compliance. Client shall use the System and Services in compliance with and subject to this TOS.
3.2 Proprietary Rights. Client acknowledges that the System, Software and accompanying materials (“Materials”) embody valuable confidential and proprietary information. Client agrees that the System, Software and Materials (including, but not limited to, all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are the exclusive property of LinkSquares, or of third parties from whom LinkSquares has obtained rights to use certain materials contained therein. LinkSquares and such third parties shall retain all right and title, to the extent of their respective interests, to all proprietary rights in the System, Software and Materials. Client therefore agrees that (i) it shall not remove or modify any proprietary markings or restrictive legends placed in or generated by the System; (ii) it shall treat the System, Software and Materials in confidence; (iii) it shall not use, copy, or disclose the same, nor permit any of its personnel to do so, except as specifically authorized by this TOS; and (iv) it shall use reasonable care to safeguard the confidentiality of these items. Except for the limited rights of use as expressly granted herein, the ownership and all right, title and interest in and to the Software reside in LinkSquares.
- LICENSED SOFTWARE; LIMITS ON USE
4.1. Limited License to Client. LinkSquares hereby grants Client a personal, non-exclusive, non-transferable, and non-sublicensable license for the term of the applicable Order Form, under all of LinkSquares’ applicable intellectual property, to access and use the System and Services via the Internet, in accordance with this TOS.
4.2. Limits on Use of System. Client shall not, and shall cause its Users not to:
(a) create or enable the creation of derivative works, modifications, or adaptations of the System, or attempt to recompile, reverse engineer or disassemble the System;
(b) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the System or portions or content thereof (except as made available by LinkSquares as features of the System);
(c) intentionally interfere with the functionality of the System by (i) uploading, storing, e-mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, Trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the System; (ii) modifying the System or interfering or attempting to interfere with the proper operation of the System or the use of the System by third parties, including through the use of any device, software or routine; or (iii) using the System to disrupt the servers or networks connected to the Web server; or
(d) violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission through the System of technical data or software exported from the United States, and all local laws and regulations regarding online conduct and acceptable content.
- FEES; TAXES; PAYMENTS
5.1 Fees. The fees, payment terms and accepted methods for payment are set forth on the applicable Order Form. Upon each renewal of an Order Form (whether automatic or other renewal), the fee rates paid by Client in the preceding term will increase by 6% for such renewal term. LinkSquares reserves the right to deny Client access to the System upon its failure to pay any amount due, which failure persists after the Section 7.2 cure period, except where (i) there is a bona fide dispute over the amount due and (ii) Client has paid all undisputed amounts.
5.2 Taxes. Client is responsible for all sales, use and all other taxes that are levied or imposed by reason of this TOS and applicable Order Form, the System or the transactions contemplated herein, other than taxes imposed on LinkSquares’ net income.
5.3 Late Payments. Amounts not paid when due shall be subject to interest at one and one-half percent (1-1/2%) per month or, if less, the maximum rate of interest allowed by law, calculated from the due date. If any amount is not paid when due, LinkSquares shall be entitled to recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorneys fees).
- OWNERSHIP OF SYSTEM/CLIENT RECORDS
6.1 LinkSquares System. The System is the exclusive and confidential property of LinkSquares and its third party licensors, and Client has no right to use or access the System for any purpose other than utilizing the Software and Services as set forth herein.
6.2 Client Data. All Client records and data in whatever form (the “Client Data”) are the property of Client. LinkSquares shall have no right to copy, transfer, sell, disclose, license, alter or otherwise use the Client Data for any purpose, except to serve Client pursuant to the applicable Order Form. LinkSquares shall treat such Client Data as confidential and will not disclose the Client Data, other than to employees on a need-to-know basis and to its third-party providers (e.g., its Hosting Site) under obligations of confidentiality. LinkSquares shall use industry standard security measures to maintain the security of the Client Data. Notwithstanding the foregoing, LinkSquares may disclose the Client Data to a third party, including any government authority, if required by law, regulation, court proceedings or subpoena; provided that, unless prohibited by law, LinkSquares shall notify Client of the requested disclosure and shall cooperate to assist Client in maintaining the confidentiality of such Client Data.
6.3 Confidentiality. (a) “Confidential Information” means any information obtained by the receiving party from or on behalf of the disclosing party that relates to the past, present or future business activities of the disclosing party or its subsidiaries or affiliates, or their respective employees, customers or third party suppliers or contractors, including the terms and conditions of this TOS, information exchanged in the course of negotiations, any Schedule, any Order Form, and any information relating to the applicable entity’s (or person’s) plans, pricing, methods, methodologies, processes, financial data, lists, intellectual property rights, customer information, apparatus, statistics, programs, research, development, or information technology. Confidential Information does not include information that the receiving party can demonstrate: (i) is currently in the public domain; (ii) was previously known to the receiving party free from any obligation to keep it confidential; (iii) is publicly disclosed by or on behalf of the disclosing party at any time; (iv) is independently developed by the receiving party without any access to or use of Confidential Information of the disclosing party; or (v) is rightfully obtained by the receiving party from a third party lawfully in possession of the Confidential Information and who is not bound by confidentiality obligations to the disclosing party.
(b) The receiving party will hold all Confidential Information of the disclosing party in trust and confidence for the disclosing party and, except as set forth in this TOS or as otherwise may be authorized by the disclosing party in writing, the receiving party will not disclose to any person, firm or enterprise, or use for its own benefit, any Confidential Information of the disclosing party. The receiving party will treat all Confidential Information of the disclosing party with the same degree of care that the receiving party treats its own confidential or proprietary information, but in no event less than reasonable care.
(c) The receiving party may disclose Confidential Information of the disclosing party to the receiving party’s employees, and to any of the receiving party’s contractors who are bound to the receiving party by confidentiality obligations substantially equivalent to those set forth in this Section, solely as required in order for the receiving party to perform under this TOS, or in the case of Client, in order to access and use materials.
(d) Each party may retain copies of the Confidential Information, as applicable, to the extent required to comply with applicable legal and regulatory requirements. Such Confidential Information, as applicable, will remain subject to the terms and conditions herein. Otherwise, at the request and option of the disclosing party and in the event of termination or expiration of this TOS (or any part thereof), the receiving party agrees to promptly: (a) return to the disclosing party the Confidential Information, as applicable; or (b) destroy or permanently erase the Confidential Information from all forms of recordation, to the extent reasonably feasible, and, if requested by the disclosing party, acknowledge in writing that it has done so.
(e) The Parties acknowledge and agree that any disclosure of Confidential Information will in no way be construed as an assignment, transfer, or conveyance of title to or ownership rights in such Confidential Information.
(f) In the event of a breach or threatened or attempted breach of the receiving party’s obligations with respect to Confidential Information, the disclosing party may have no adequate remedy in money or damages and, accordingly, may immediately seek an injunction against such breach.
(g) The receiving party may disclose Confidential Information of the disclosing party if required to do so under applicable law, rule or order provided that the receiving party, where reasonably practicable and to the extent legally permissible, provides the disclosing party with prior written notice of the required disclosure so that the disclosing party may seek a protective order or other appropriate remedy, and provided further that the receiving party discloses no more Confidential Information of the disclosing party than is reasonably necessary in order to respond to the required disclosure.
6.4 Client Warranty. Client represents and warrants that it owns all Client Data and has full authority to have them uploaded onto and maintained on the System.
6.5 LinkSquares Warranty. LinkSquares represents and warrants that: (i) the System will contain the functions and perform substantially as described in the applicable Order Form; and (ii) LinkSquares shall comply with all applicable laws and regulations. LinkSquares’ only liability, and Client’s exclusive remedy, for any breach of the foregoing warranties is that, if reported to LinkSquares in writing, LinkSquares will correct the defect.
6.6 Personal Data. The terms of the Data Processing Addendum, located on the LinkSquares’ website at linksquares.com/data-processing-addendum (the “DPA”), shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by LinkSquares solely on behalf of Client, if any; (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by LinkSquares solely on behalf of Client, if any; and/or (iii) the collection, use or disclosure of personal information that is subject to The Personal Information Protection and Electronic Documents Act (“PIPEDA”) by LinkSquares solely on behalf of Client, if any.
- TERMINATION; DEFAULT; REMEDIES
7.1 Defaults. Each of the following shall constitute a default: (i) Client’s failure to pay any sum due hereunder; (ii) a party’s failure to perform any of its material obligations hereunder; or (iii) a party makes a representation or warranty that is materially false or misleading when made.
7.2 Termination and Other Remedies. Notwithstanding anything contained in this TOS to the contrary, (i) with respect to a default under Section 7.1(i), upon Client’s failure to cure such default within ten (10) days after written notice of default, or (ii) with respect to all other defaults, upon the defaulting party’s failure to cure such default within thirty (30) days after written notice of default, the non-defaulting party may take any or all of the following actions: (a) terminate an Order Form upon written notice, (b) declare all amounts due to be immediately due and payable, and/or (c) exercise any of its other rights or remedies hereunder and under applicable law (except to the extent expressly excluded hereunder). In the event that Client elects to terminate an Order Form prior to the expiration of its then current term, and such termination is not permitted by this TOS, then LinkSquares shall not be obligated to refund any portion of the fees already paid by Client for the then-current term of the applicable Order Form(s). In the event that Client elects to terminate an Order Form due to LinkSquares’ uncured default under Section 2.4, 6.2 or 6.3, LinkSquares shall, at the request of Client, refund a pro-rata portion of the fees paid in advance by Client under the terminated Order Form, such pro-rata portion being determined based on the time remaining during the then-current term of the terminated Order Form. The remedies contained in this Section 7 are cumulative and in addition to all other rights and remedies available hereunder, by operation of law, or otherwise, except as expressly excluded hereunder. The termination of an Order Form for any reason shall not affect or impair any rights, obligations or liabilities of either party that may accrue prior to such termination or that, under the terms of such Order Form, continue after termination.
7.3 Actions Due Upon Termination. Upon termination of an Order Form for any reason: (i) Client shall promptly pay to LinkSquares all outstanding amounts due and shall return copies of all LinkSquares materials; (ii) all rights granted by LinkSquares under such Order Form shall cease and Client shall immediately cease any use of the System and Services; and (iii) upon payment in full of all amounts due, and upon Client’s request within 90 days after the effective date of termination or expiration of such Order Form, LinkSquares shall return or destroy the Client Data related to such Order Form then stored on the System. Notwithstanding the foregoing, if an Order Form terminates for any reason, LinkSquares (i) may retain one copy of Client Data solely for archival, audit, disaster recovery, legal or regulatory purposes and (ii) will not be required to search archived electronic back-up files of its computer systems for Client Data in order to purge the Client Data from its archived files; provided, however, that LinkSquares must (A) maintain confidentiality of the retained Client Data under the applicable Order Form as if such Order Form were still in effect, and (B) not use the retained Client Data for any other purpose.
- LIMITATION OF LIABILITY AND DISCLAIMERS
8.1 Reporting Errors. Client shall advise LinkSquares in writing of any material error or omission in the Services, System or Materials reasonably promptly after discovery thereof by Client.
8.2 Misuse of Passwords. Client shall maintain the confidentiality of its passwords, regularly change them, take all commercially reasonable efforts to prevent unauthorized misuse or misappropriation and, in the event of such, be responsible therefor and promptly notify LinkSquares thereof.
8.3 Limitation of Liability; Exclusion of Consequential Damages. EXCEPT FOR A BREACH OF SECTIONS 3.2, 4.2, 6.1 or 6.3, AND REGARDLESS OF THE FORM OF ACTION, IN NO EVENT WILL EITHER PARTY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF REPUTATION OR COSTS OF SUBSTITUTE SERVICES) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE ARISING OUT OF OR RELATING TO THE SERVICES, THE SYSTEM, AN ORDER FORM OR ITS TERMINATION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. FURTHER, THE MAXIMUM AGGREGATE LIABILITY OF LINKSQUARES (AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS) TO CLIENT FOR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING NEGLIGENCE) SHALL, EXCEPT FOR LINKSQUARES’ OBLIGATION TO INDEMNIFY CLIENT PURSUANT TO SECTION 9, BE LIMITED TO THE FEES PAID BY CLIENT TO LINKSQUARES IN THE YEAR IN WHICH THE CLAIM AROSE.
8.4 Warranty Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SYSTEM, ITS INTERFACES, ANY RELATED EQUIPMENT, THE SERVICES AND ANY MATERIALS ARE PROVIDED “AS IS”. LINKSQUARES AND ANY THIRD PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LINKSQUARES MAKES NO REPRESENTATION OR WARRANTY (I) AS TO THE SYSTEM OR THE SERVICES; (II) AS TO THE RESULTS TO BE ATTAINED BY CLIENT OR ANY THIRD PARTY FROM THE SERVICES OR FROM ACCESS TO OR USE OF THE SYSTEM; (III) AS TO THE LIFE OF ANY URL USED IN THE SYSTEM; (IV) THAT ACCESS TO THE HOSTING SITE OR THE SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE OR ERROR-FREE; OR (V) THAT ALL USES THAT CAN BE MADE OF THE SYSTEM OR SERVICES COMPLY WITH APPLICABLE LAW; RATHER, IT IS CLIENT’S RESPONSIBILITY TO CONFORM ITS USE OF THE SYSTEM AND SERVICES WITH THE LAW. CLIENT ACKNOWLEDGES THAT CERTAIN SOFTWARE AND EQUIPMENT USED BY IT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SYSTEM. EACH PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE OTHER EXCEPT AS SPECIFICALLY SET FORTH IN THE APPLICABLE ORDER FORM.
9.1 LinkSquares’ Indemnification of Client. LinkSquares shall defend, hold harmless and indemnify Client (and any party controlling, controlled by or under common control with Client), and their respective directors, officers and employees (the “Client Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party against Client Indemnified Parties to the extent that it is based on a claim that the Services (other than any third party software, service or component) infringe any copyright, trademark, or trade secret right, and LinkSquares shall pay all costs incurred by and damages finally awarded against Client. Such indemnity, however, excludes any claims that arise or result from Client’s (i) misuse or alteration of the Services or System; (ii) use of the Services or System in combination with equipment, software or services not provided, recommended or furnished by LinkSquares, provided that no indemnification claim would have arisen but for such combination; (iii) use of the Services or System that materially violates an Order Form or applicable law, regulation of any governmental authority or self-regulatory agency or authority; or (iv) use of the Services or System in a manner for which they were neither designed nor contemplated. Upon written notice of a claim that the Services infringe a third party’s copyright, trademark or trade secret right, LinkSquares may, but is not obligated to, (i) modify or replace the Services to make them non-infringing, (ii) procure any rights from the third party necessary to provide the Services, or, if neither option is reasonably practicable, (iii) terminate the applicable Order Form and require the return of all Software and Materials. Notwithstanding the foregoing, Client may, at its option and its own expense, hire its own counsel to advise it with respect to any such claim, subpoena or suit.
9.2 Client Indemnification of LinkSquares. Client shall defend, hold harmless and indemnify LinkSquares (and any party controlling, controlled by or under common control with LinkSquares), and their respective directors, officers and employees (the “LinkSquares Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party or government agency against LinkSquares Indemnified Parties to the extent that it is based on any claim with respect to, or arising out of, Client Data, or Client’s use of the Services or System, or any negligence or misconduct of Client, except to the extent caused by LinkSquares. Client shall pay all costs incurred by and damages finally awarded against LinkSquares.
9.3 Conditions for Indemnification. The party seeking indemnification under this Section 9 (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) of any claim, suit or proceeding for which indemnification may be sought; provided, however, that any failure by the Indemnified Party to provide prompt written notice as required by this Section shall excuse the Indemnifying Party only to the extent that it is prejudiced thereby. The Indemnified Party shall (unless prohibited by law, regulation or a court proceeding) cooperate with the Indemnifying Party with regard to the defense of any suit or threatened suit. The Indemnifying Party shall have full control of any such claim, proceeding or suit and the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment that may be entered, except that it may not settle the matter in a manner that imposes any material duty or restriction on the Indemnified Party without its consent, not to be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party may, at its option and its own expense, hire its own counsel to advise it with respect to any such claim, subpoena or suit.
10.1 Assignment. Each Order Form shall be binding upon each party’s successors and permitted assigns. Either party (the “Seller”) may assign its rights hereunder to the purchaser or surviving entity (the “Purchaser”) in any stock, assets, merger or other transaction in which all or substantially all of the business of the Seller (or, in the case of LinkSquares, substantially all of the assets of the portion of its business relating to the Services) is transferred, regardless of the form such transaction may take, provided that the Purchaser assumes in writing all of the obligations of the Seller hereunder and the Seller remains jointly and severally liable for such obligations. Except as expressly authorized in the preceding portion of this Section, no Order Form or any right or obligation arising under it may be assigned, licensed, sublicensed, sold, mortgaged, pledged or otherwise disposed of (collectively, a “disposition”) by either party without the prior written consent of the other party hereto, and any attempted disposition shall be null and void.
10.2 Governing Law; Venue. Each Order Form shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts to be performed entirely within Massachusetts. Any action or proceeding to enforce or arising out of an Order Form shall be commenced in the state and federal courts located in Boston, Massachusetts. The parties hereto consent to the exclusive jurisdiction of such courts, agree that venue will be proper in such courts and waive any objections based upon forum non conveniens. The choice of forum set forth in this Section 10.2 will not be deemed to preclude the enforcement of any judgment obtained in such forum or the taking of any action under an Order Form to enforce such judgment in any other jurisdiction.
10.3 Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of their respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, such Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures (through denial of service, worms, telecommunications problems or the like), equipment failures, computer hackers or other causes that are beyond a party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event shall extend the due dates or time schedules for reasonable periods of time as determined by LinkSquares in good faith; provided that if any such delay or excuse shall exceed thirty (30) days, the non-affected party may, at its option, terminate an Order Form upon notice to the affected party.
10.4 Export Control Restrictions. Client warrants that its use of the System, Services and Materials shall comply with all export control laws and agrees to indemnify, defend and hold harmless LinkSquares from any liability, claim, loss or expense suffered or incurred by LinkSquares as a result of a breach of this warranty.
10.5 Entire Agreement; Modifications. Each Order Form, which includes (i) the exhibits and schedules attached thereto and (ii) this TOS and any policies, schedules, exhibits and attachments referenced herein , constitute the entire agreement of the parties with respect to the subject matter hereof, supersedes any and all existing agreements relating to the subject matter hereof, and may not be modified or amended except by a written instrument signed by both parties. No failure or delay in exercising any right, power or remedy under an Order Form shall operate as a waiver thereof, nor shall any single or partial exercise of any right under an Order Form preclude any other or further exercise thereof or the exercise of any other right.
10.6 Notices. All notices to be given or otherwise made to a party shall be in writing, delivered by hand in person, or by electronic transmission, or by express overnight courier service, or by facsimile transmission (with a confirming copy sent by U.S. Mail, registered or certified, return receipt requested), or by registered or certified mail, postage pre-paid return receipt requested, addressed to such party at the address set forth on the first page hereto or at such other address as may be hereafter designated in writing by such party. All such notices provided in accordance with this section shall be deemed delivered upon the earlier of actual delivery, or three (3) days after deposit in the mail or with a courier.
10.7 Severability. If any provision of an Order Form shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of such Order Form and such Order Form shall be reformed, construed and enforced to the fullest extent as if any such illegal, invalid or unenforceable provision were not contained herein.
10.8 Counterparts. Each Order Form may be executed in counterparts, each of which shall be deemed an original, but together shall constitute one and the same instrument.
10.9 Independent Contractors. Each Order Form shall create an independent contractor relationship between LinkSquares and Client. Neither party shall have any authority to act in any way as a representative of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures or the like by virtue of the provisions hereof.
10.10 Headings. The headings preceding the various paragraphs and subparagraphs of this TOS and each Order Form are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this TOS and/or Order Form or its terms.
10.11 Survival. The obligations under Sections 5, 6, 7, 8, 9, and 10.2, 10.9 of this TOS and any other provision of this TOS or applicable Order Form that by its nature is intended to survive, shall survive the termination or expiration of such Order Form.
Schedule A – LinkSquares Service Level Agreement
Version 1.0 – Updated 1/1/2020
1. SERVICE AVAILABILITY
The Services will be available as follows, exclusive of Scheduled Downtime.
|Monthly Target Service Level|
|99% of the time, 24 hours/day, 365 days/year|
2. SCHEDULED DOWNTIME
Scheduled Downtime in order to service the System may occur in accordance with the following schedule. During these periods monitoring is suspended and such Scheduled Downtime is not calculated as part of our availability commitments.
- Major application changes (such as server upgrades) shall [only] [primarily?] occur on weekends. LinkSquares will provide seven (7) days’ notice in the event of a service disruption.
- General system maintenance can occur during various days and times but usually does not result in application downtime. In the event that maintenance does involve Scheduled Downtime, LinkSquares will provide notice to customers.
3. DATA INTEGRITY
Service includes backup services:
- Full server backups will be performed nightly;
- Retention of backup copies is two years.
LinkSquares’ restoration obligations with respect to lost or damaged data, for whatever source, are limited to the restoration of data from the previous backup. LinkSquares is not responsible for any reconstruction of data from paper copies or data sources (other than that which should have been included in the previous backup), or other losses or consequential damages resulting from the inability to access lost data.
4. SUPPORT OBLIGATIONS
(a) Maintenance Releases. LinkSquares will make available to you, at no additional charge, all Maintenance Releases to the Service which LinkSquares makes generally available to its customers during the term of this TOS. [In addition, LinkSquares will make available to you, at no additional charge, all [Major Releases] to the Service which LinkSquares makes generally available to its customers during the term of this TOS.]
(b) Problem and Error Resolution. LinkSquares will investigate all potential errors related to the Service’s non-conformance to documentation. LinkSquares will make commercially reasonable attempts to substantiate the existence of the problem, evaluate the seriousness of the problem’s effect on you and provide a workaround or resolution within the time frame established in the Error Reporting and Priority Guidelines set forth below.
(c) Telephone Consultation. LinkSquares will provide reasonable telephone consultation to assist in the implementation and utilization of the Services during its Standard Support Hours.
5. ERROR REPORTING AND PRIORITY GUIDELINES
(a) Contacting Our Support. Requests shall be made by telephone or email to: (857) 997-0022 or firstname.lastname@example.org.
(b) Classification of Errors. Upon receipt of requests for support, LinkSquares classifies support calls on the following basis:
|Priority||Priorities Assigned under these Guidelines||Sample Issues|
|Priority||Receipt Acknowledged||Resolution Commences||Resolution Goal|
|1||1 hour||1 hour||2 hour|
|2||1 hour||2 hour||4 hour|
|3||1 business day||1 business day||5 business day|
|4||1 business day||Change to be included in a future release, on a business justifiable basis||Correction to be included in a future release, on a business justifiable basis|
- Receipt Acknowledged —Time for our operational staff to respond to Client notification.
- Resolution Commences —Time when LinkSquares’ technician begins restoration of service.
- Resolution Goal —If availability is not restored by this time, the issue will be escalated to a manager.
6. CONDITIONS FOR SUPPORT PROVIDED BY US
We provide a second level of support for those problems that Client cannot reasonably be expected to resolve for itself. Accordingly, our performance under the above criteria is conditioned upon Client’s compliance with the following:
- Client provides first line support to Client users. This includes local end user’s desktop, network and access to the Internet if relevant.
- Client ensures that the Services are used only in combination with other software, devices or hardware recommended or specified by us as being compatible with the Services, and ensure a stable network environment with adequate capacity. LinkSquares provides in its documentation the current list of specified software, devices and hardware; such requirements may be amended or updated from time to time by us to reflect evolving industry standard software (such as updated browser version, etc.). LinkSquares will give Client reasonable notice (anticipated to be at least six (6) months) before discontinuing support for any legacy browser versions or similar older third-party software. In addition, Client is expected to provide a technically qualified single point of contact for coordination of support with us.
- Client ensures that its local hardware and network services are correctly configured and operating according to specifications, and operating system software and other third-party software is current, and has all manufacturer/supplier-recommended updates and patches.
- Client provides LinkSquares such reasonable assistance as LinkSquares may request, including sample output and other diagnostic information, in order to assist LinkSquares in providing support.
“Available Hours” in a month means the total number of hours in the month minus any Scheduled Downtime during such month.
“Major release”: Major releases contain upgrades to software, database, system configuration and functionality.
“Network maintenance”: Network maintenance can be minor configuration changes to network environment. Major configuration changes shall be treated as major releases and scheduled accordingly.
“Patch release”: This release contains fixes to software defects that were introduced in the prior Major or content release.
“Scheduled Downtime”: Periods during which the Services are reduced or unavailable to Users.
“Standard Support Hours”: 8AM to 8PM, Eastern time, Monday to Friday, exclusive of observed holidays.
“Unavailable” and “Unavailability” shall occur during any sixty (60) minute period, when the response time for a web page exceeds fifteen (15) seconds on average during such sixty (60) minute period as measured from a server on the local network. Availability for a month shall be calculated as a percentage using the following formula: the total number of Available Hours for the month converted into minutes minus the total number of minutes of unavailability and the result divided by the total number of Available Hours for the month converted into minutes.
“Updates” means both “Major Releases” and “Maintenance Releases”. Major Releases involve the addition of new features or significant functional enhancements. Maintenance Releases involve error corrections, patches, bug fixes or minor modifications or minor enhancements generally made available to licensees. Major Releases are designated by a change in any number to the left of the first or the second decimal point (e.g., 1.0 to 2.0 or 1.0.0 to 1.1.0). Maintenance Releases are designated by a change in any number to the right of the second, third, etc., decimal point (e.g., 2.1.1 to 2.1.2). LinkSquares, in its sole discretion, will determine whether an Update is a Major Release or Maintenance Release.