Last updated March 21, 2017
TERMS OF SERVICE between Metisentry (“Metisentry”) and the customer who engages Metisentry service (“you” or “Client” or “Customer”). Your use of Metisentry’s services is governed by this agreement, all applicable appendices, duly executed Service Orders (defined below), and these terms of service (collectively, the “Agreement”). Your use of any of Metisentry’s services includes the ability to enter into agreements and make purchases electronically. You acknowledge that your electronic assent, and/or your written or verbal assent, and/or your actual usage of Metisentry’s services, constitute your acceptance to the Agreement for each engagement, purchase or transaction you enter, or service you utilize.
A. “Service(s)” shall mean the services particularly described in each Service Order, and shall include the additional terms, conditions, covenants and agreements particular to each Service Order as described in Appendix B herein.
B. “Service Order(s)” shall mean either (a) orders for specific Services as placed online through the Metisentry Store or Metisentry Portal; or (b) orders for specific Services on Metisentry provided Service Order forms, including attachments thereto. Each Service Order shall be issued and accepted by the Parties in accordance with the provisions of this Agreement and shall only be effective when executed by both of the Parties. Orders placed online through the Metisentry Store or Metisentry Portal are considered executed by Client when the order is placed, and by Metisentry when the order is marked as Accepted by Metisentry staff. Each Service Order will contain specific provisions with respect to prices, features, descriptions of service, duration and other terms as appropriate, either specifically on such Service Order or as defined in Appendix B herein.
C. “Metisentry Portal” shall mean the Metisentry Client Portal located at the following base URL: https://portal.Metisentry.com/
D. “Metisentry Store” shall mean the Metisentry Web Store located at the following base URL: https://portal.Metisentry.com/cart.php
2. SCOPE AND ORDER OF PRECEDENCE
2.1. Each Service Order issued and accepted, and all Services provided by Metisentry, shall be subject to all of the terms of this Agreement.
2.2. Except for sections 4 and 12 thru 30 herein, in the event of conflict or inconsistency between the provisions of this Agreement and those of an individual Service Order, the conflict or inconsistency shall be resolved in the following order of precedence: first, in favor of the Service Order and secondly this Agreement.
3. CLIENT’S OBLIGATIONS
3.1 Client-Supplied Equipment. Unless otherwise negotiated and documented herein, Client shall be responsible for obtaining, maintaining and installing all third-party hardware, obtaining hosting services (unless Client is purchasing Metisentry Cloud Hosting services), and software required to operate Client’s server systems.
3.2 Cooperation. Client shall cooperate with Metisentry in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and Client shall take such actions as Metisentry may reasonably request from time to time in connection with the performance of the Services hereunder, including but not limited to, providing reasonable advance notice when scheduling installation and delivery of servers and/or equipment, maintenance work and other events where Client may require assistance from Metisentry personnel. Client should provide such notice by opening a support ticket via the Metisentry Portal.
3.3 Primary and Secondary Contact. Client shall designate a primary contact and a secondary contact that will be responsible for all technical matters relating to this Agreement, and Client shall provide Metisentry with emergency contact information for both contacts (such emergency information shall consist of email address, cell phone number and the like and may be used by Metisentry to contact Client for all appropriate purposes). Client may change the individuals designated as primary and secondary. All contacts must be designated and managed via the Metisentry Portal. If specific contacts are not designated, the primary contact will be designated automatically as the person who placed the first Service Order with Metisentry, and no secondary contact will be listed.
Client shall designate a primary contact and a secondary contact that will be responsible for all payment matters relating to this Agreement (such information shall consist of email address, phone number and the like and may be used by Metisentry to contact Client for all appropriate purposes). Client may change the individuals designated as primary and secondary. All contacts must be designated and managed via the Metisentry Portal. If specific contacts are not designated, the primary contact will be designated automatically as the person who placed the first Service Order with Metisentry, and no secondary contact will be listed.
4. TERM and RENEWAL
This Agreement shall commence at the time of engagement and conclude upon completion of each Service Order.
Prices for Services are specified on each Service Order, and are only guaranteed for the term listed in each duly executed Service Order. Unless otherwise specified on a Service Order, prices for hourly professional services work are provided during Metisentry Standard Support Hours (9AM to 5PM Monday – Friday EST/EDT excluding Holidays). Services provided outside of these hours will be charged at two times (2.0X) the normal rate. Services provided on Metisentry Holidays will be charged at two times (2.0X) the normal rate. Time is recorded in 30 minute minimum increments. Metisentry Holidays are defined as: New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
A. Taxes and Other Fees. Client shall be responsible for the payment of all sales taxes & fees, where applicable.
B. Invoicing and Payment. Invoicing and Payment terms are defined on individual Service Orders. Standard terms are pre-payment or ‘Due on Receipt’.
C. Disputed Payments. In the event Client in good faith disputes any charges invoiced by Metisentry, Client shall promptly pay all undisputed charges, and shall notify Metisentry in writing of any such disputed amounts within thirty (30) days after the invoice date, identifying in reasonable detail its reasons for the dispute and the nature and amount of the disputed charges. All amounts not timely and appropriately disputed within sixty (60) days after the invoice date shall be deemed final and not subject to further dispute. If Client was billed in error, a credit for the amount billed incorrectly will be made to the next invoice. If the amount was billed correctly, Client will pay the amount within fifteen (15) business days of confirmation.
D. Suspension or Termination of the Services. Most Service Orders require payment in advance. If Metisentry waives this requirement, if payment in full for Services performed under any Service Order (other than for charges validly disputed by Client in good faith) is not received by Metisentry within thirty (30) days after the invoice date, Metisentry shall have the right to take the following actions: (i) no earlier than thirty-one (31) days after the invoice date refuse new Service Order(s); (ii) no earlier than thirty-one (31) days after the invoice date, mail notice of payment default with fifteen (15) days to cure; (iii) if payment default is not cured, no earlier than forty-five (45) days after the invoice date, mail notice of suspension with ten (10) days to cure; and, (iv) if payment default is still not cured by the notice of suspension deadline, suspend Service, (v) if payment default is still not cured, no earlier than fifty-five (55) days after the invoice date, mail notice of termination with ten (10) days to cure; (vi) if payment default is still not cured by notice of termination deadline, terminate Service. Following payment, Metisentry shall reinstate the account provided that Client furnishes to Metisentry satisfactory assurance of its ability to pay for the Services. If Service has been suspended, Client will also be subject to a $115 reactivation fee to reinstate services. Once an account enters (v), Service cannot be reinstated. Metisentry reserves the right to omit (iii) for repeat offenders and/or accounts not kept in good standing. No cancellation or termination under this provision shall relieve Client from its obligations to pay for Services under any Service Order not so canceled or terminated. Client hereby agrees to pay Metisentry for any and all collection costs, including but not limited to attorneys fees, bounced check fees, charge-back fees, court costs, and/or interest charges that are in addition to the amount owed for services provided.
E. Payment Types. Metisentry accepts payments via company check or credit card (Visa, MasterCard, American Express or Discover cards) in U.S. dollars only.
To pay by check, please remit payment to 17 SOUTH MAIN ST SUITE 201 AKRON OH 44308. We advise referencing payment details (invoice number, balance(s) allocation) on the check or on an included check stub. In the event a check is returned as un-payable, Client will be assessed a returned check fee.
To pay by credit card, please open a Billing Support Ticket. Credit card payments may be subject to convenience fees, limits and an authorization form may be required to process payment. For recurring services, Credit Cards will be securely kept on file, and automatically charged up to seven (7) days prior to the Payment Date. Payment by Credit Card includes Client’s express authorization to charge all future recurring fees and charges. If a Credit Card is denied for any reason, Metisentry may make additional attempts to charge the card. After two unsuccessful attempts, Client will be sent a notice by e-mail, and Metisentry may make one final attempt to charge Client’s Credit Card. Credit Cards set up for automatic payment on recurring services are not automatically charged for any other services.
7. SERVICE LEVEL COMMITMENTS
Metisentry represents to Client that the Services shall comply with the Service Level Agreements (“SLA(s)”) for each Service as more specifically described in Appendix A of this Agreement. Client agrees that the credits applicable to the specific Services and as specified in the SLAs for each Service are its exclusive remedy in case of any failure of Metisentry to comply with such SLA.
A. Each Party shall indemnify and hold harmless the other Party and its affiliates, and its and their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by any third party, and all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties and costs (including reasonable legal fees and expenses) (collectively “Losses”) incurred in connection with such third party claims, for personal injury (including death) or damage to real and/or tangible property arising out of or resulting from acts or omission to act under this Agreement or employees, contractors, or agents of the indemnifying party.
B. Client shall indemnify and hold harmless Metisentry and its affiliates, their directors, officers, employees and agents, from and against any and all claims, demands, actions and proceedings asserted by themselves or any third party, and all Losses incurred in connection with such claims, arising out of or resulting from (i) their or Client’s breach of this Agreement, and/or (ii) their or Client’s use of any Services, including but not limited to any Third Party Components thereof.
C. The indemnifying party shall have the right, at its sole expense, to defend with counsel reasonably acceptable to the indemnified party all claims, demands, actions and proceedings related to the indemnifying party’s obligations under this Section 8. The indemnified party shall notify promptly the indemnifying party of any such claims, demands, actions or proceedings in writing and, if it is defending any such claim diligently and in good faith, the indemnifying party shall have full and complete authority for the defense thereof; provided, however, the indemnifying party shall have no authority to enter into any settlement or compromise on behalf of the indemnified party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party does not undertake the diligent, good faith defense of a claim, the indemnified party shall have the right to conduct the defense of such claim at its sole defense, provide, (i) nothing in the foregoing shall limit or be deemed to limit a party’s right to dispute the a claim (and/or any Losses arising therefrom) relates to an indemnifiable matter hereunder, and (ii) if the indemnifying party has agreed that a claim relates to an indemnifiable matter hereunder, the indemnified party shall have no authority to enter into any settlement or compromise on behalf of the indemnifying party, which consent shall not be reasonably withheld or delayed. In all circumstances, the indemnified party shall have the right to participate in the defense of any proceedings with counsel of its own choosing, at its sole expense, and shall cooperate with the indemnifying party in the defense of any claim maintained thereby.
Either Party in accordance with the following may terminate this Agreement and any Service Order(s):
A. Default. If either Party is in breach of this Agreement or any Service Order, (other than for failure by Customer to pay any undisputed amounts due under any Service Order which are covered under Section 6 (D) above), in order for such breach to constitute a default, the other Party shall give the breaching party notice in writing of such breach. If the breach has not been cured to the non-breaching party’s reasonable satisfaction within thirty (30) days of such written notice (the “Notice Period”), then the non-breaching party may terminate the applicable Service Order effective at the end of the Notice Period immediately upon written notice to the breaching party and without penalty. No termination for breach pursuant to this Section shall constitute or permit termination of any portions of this Agreement or any Service Order not breached or affected by such breach, provided, however, that Metisentry may revoke or suspend this Agreement in its entirety if Client (or any of its affiliate companies) is in material breach of any other agreement with Metisentry or (or any of its affiliate companies).
B. Cause. This Agreement may be terminated for cause by either Party in the event that the other Party: (i) shall become insolvent; (ii) admits in writing its inability to pay its debts; or (iii) ceases to function as a going concern or to conduct its operations in the normal course of business.
C. Remedies. In the event of termination for breach or cause, the non-breaching party shall have the right to pursue any or all remedies available to it at law or in equity.
D. Early Termination. Some services provided by Metisentry may require a waiver of recommendation and an early termination fee, as specified in particular Service Orders. For such specified services, if Client terminates or cancels service under such Service Order for reason other than Metisentry’s breach prior to its agreed expiration date, Client will pay Metisentry as a termination fee, 100% of the then current monthly charges for each month remaining in the term as indicated in the applicable Service Order. Such termination fee shall be considered liquidated damages and not as a penalty. This shall be the sole remedy of Metisentry in the event of an early termination by Client. All termination charges shall be due prior to the effective date of termination of the Service Order.
E. Service Refusal. Metisentry reserves the right to refuse service to anyone at anytime, however Metisentry will not refuse service to anyone on the basis of race, color, religion, national origin, gender, sexual orientation, disability, or any other basis protected by local, state, or Federal law. When refusing service, Metisentry’s sole liability will be to issue Client a refund (within ten (10) business days) to Client of any amounts paid for services which have not been used by Client. Unless otherwise stated, all Metisentry Services are “business to business” only.
F. Termination by Metisentry. Metisentry may terminate this Agreement at any time for any or no reason by providing notice to Client. When terminating this Agreement, Metisentry’s sole liability will be to (a) issue Client a refund (within ten (10) business days) to Client of any amounts paid for services which have not been used by Client; and (b) waive any applicable early termination fees.
No termination pursuant to this Section shall relieve either Party of any of its obligations under this Agreement or any Service Order intended to continue, including, without limitation, the obligation to pay for Service prior to such termination.
“Confidential Information” shall include: (i) all requests for quotations and proposals for Services, including resulting Service Orders, (ii) all prices, rates and other financial information related to the Services, (iii) all information relating to the customers of either party, including customer lists, and (iv) all information one party provides to the other which is clearly identified as confidential or proprietary. Confidential Information disclosed by either party to the other shall be held by the recipient in confidence and not: (a) used by the recipient for personal advantage of any kind, or (b) made available for third parties to use. Each party will direct its employees, contractors, consultants and representatives who have access to any Confidential Information to comply with all of the terms of this Section. The following information shall not be Confidential Information if: (i) it is or becomes available to the public through no wrongful act of the receiving party; (ii) it is already in the possession of the receiving party and not subject to any agreement of confidence between the parties; (iii) it is received from a third party without restriction for the benefit of the disclosing party and without breach of this Agreement; (iv) it is independently developed by the receiving party; (v) it is disclosed pursuant to a requirement of law or a duly empowered government agency or a court of competent jurisdiction after due notice and an adequate opportunity to intervene is given to the disclosing party unless such notice is prohibited. Upon termination or expiration of this Agreement, the receiving party shall at the disclosing party’s direction, either return or destroy all of the disclosing party’s Confidential Information and so certify in writing. The obligations of this provision will survive for five (5) years after any termination or expiration of this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
Neither Party shall use any copyrights, patents, trade secrets, software, trade marks, trade names, service marks, license rights or other intellectual property rights (collectively “Intellectual Property”) owned, licensed or used by the other Party, without the written consent of the other Party. Either Party may use the other Party’s name and logo in any and all media for the sole purpose of listing one or more representative customers or vendors or to issue press releases (each, a “Permitted Use”), with the prior written consent of the other Party, such consent not to be unreasonably withheld. Upon expiration or termination of this Agreement, or any affected Service Order, all Permitted Uses shall be discontinued, and any Intellectual Property, including all copies thereof, shall be returned to the other Party. Each Party hereby disclaims any right, title and interest in any Intellectual Property, owned, used or licensed by the other Party.
12. FORCE MAJEURE
Neither Party shall have any claim or right against the other for any failure of or delay in performance by such other Party if the failure or delay is caused by or the result of causes beyond the reasonable control of such other Party, including, but not limited to, acts of God, fire, flood, hurricane, or other natural catastrophe; terrorist actions, cyber attacks, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof; or any civil or military authority, national emergency, insurrection, riot or war; inability to obtain equipment, material or other supplies, or other similar occurrence beyond the control and without the fault or negligence of the affected Party. Any such delay or failure shall suspend the affected Service Order until the delay or failure ceases, and the Service Order shall be deemed extended accordingly. Notwithstanding the foregoing, if the excusable delay exceeds thirty (30) days, either Party may terminate this Agreement immediately upon written notice without incurring any termination liability hereunder.
13. RECORDS KEPT
In order to better serve our Clients, Metisentry engineers record all time spent and services performed (“Internal Documentation”) in our internal Services Databases, Timesheets, and internal Ticketing Systems. This Internal Documentation is kept strictly confidential and will not be released to any outside party without your prior written consent, or a valid court order.
14. LEGAL NOTICES
A. Notices and communications concerning this Agreement shall be addressed to (a) Client using the contact information provided by Client in their initial (or most recent) Service Order; and (b) to Metisentry as follows:
17 S Main St Suite 201
Akron, OH 44308
e-mail: [email protected]
B. Notices shall be sent by registered or certified US Mail, postage prepaid, or by commercial overnight delivery service, or electronic transmission, and shall be deemed delivered either on the date of return receipt acknowledgment (in the case of US Mail), or on the next day after the sending of the notice (in the case of facsimile, email, or overnight delivery service).
15. DISCLAIMER OF WARRANTIES
A. CLIENT ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CLIENT’S OWN DATA, INFORMATION, NETWORK, SOFTWARE, AND SYSTEMS. CLIENT ACKNOWLEDGES THAT THE INTERNET IS ACCESSIBLE BY PERSONS WHO MAY ATTEMPT TO BREACH THE SECURITY OF CLIENT’S NETWORK FACILITIES. METISENTRY HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE CONTENT OF MATERIALS TRANSMITTED OVER THE INTERNET, SERVICE INTERRUPTIONS, ANY CLIENT EQUIPMENT FAILURES, OR ANY OTHER SUCH CAUSES. CLIENT ACCESSES AND USES THE SERVICES AT THEIR OWN RISK.
B. EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR IN ANY SERVICE ORDER, THE PRODUCTS AND SERVICES PROVIDED BY METISENTRY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY METISENTRY, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY.
16. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL METISENTRY, ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, CONTRACTORS, AGENTS AND OTHER REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING FROM OR RELATED TO THE SERVICES OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) IRRESPECTIVE OF WHETHER THE OTHER PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. METISENTRY’S MAXIMUM LIABILITY HEREUNDER TO CLIENT SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CLIENT FOR THE PARTICULAR SERVICE, OR SERVICE ORDER TO WHICH THE CLAIM PERTAINS, FOR THE IMMEDIATELY PRECEEDING THREE (3) MONTH PERIOD ONLY. THE PARTIES HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE THEM OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
Client may not assign this Agreement or any Service Order without the prior written consent of Metisentry, which consent will not be unreasonably withheld or denied. “Assignment” within the meaning of this Section shall not include any transfer to any entity controlling, controlled by, or under common control with a Party (hereafter collectively, “Affiliate(s)”), or any sale of all or substantially all of the assets of either Party, or pursuant to any merger, reorganization or consolidation, provided that the transferee agrees to be bound by all of the terms and conditions of this Agreement and the Service Orders.
Section, subsection and other headings used in this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement or any Service Order.
19. COMPLIANCE WITH LAWS & GOVERNING LAW
A. Each Party agrees to conduct its business in a reputable manner and agrees to comply with all federal, state and municipal laws, rules, regulations, and codes of ethics that are binding upon or applicable to the Parties or their business, equipment or personnel under or related by this Agreement. This Agreement and all services provided hereunder shall be governed by the laws of the County of Cuyahoga, State of Ohio, U.S.A without regard to any provision that would make the laws of another jurisdiction applicable.
B. Arbitration: Any controversy or claim arising out of or relating to this Agreement and/or Client’s use of Metisentry Services shall be settled by arbitration conducted in accordance with the then-current Rules of the American Arbitration Association (the “Association”), strictly in accordance with the terms of this Agreement and the substantive law of the State of Ohio. The arbitration shall be held at the office of the Association located closest to the principal place of business of Metisentry, and conducted by three arbitrators. At least one of the arbitrators shall be chosen from a panel of persons knowledgeable in data processing and business information systems, and at least one of the arbitrators shall be an attorney. Judgment on an award rendered by the arbitrators may be entered and enforced in any court of competent jurisdiction. Neither party shall institute any arbitration proceeding until that party has furnished to the other party, by certified mail, at least thirty days prior written notice of its intent to do so.
While this agreement is in effect and for the period of three (3) years thereafter, Client will not hire, or engage as an independent contractor, any individual who has worked as an employee or contractor of Metisentry, without the express written consent of Metisentry. In the event of a breach of this Non-Solicitation section, Client agrees to pay Metisentry liquidated damages equal to the forecasted first year compensation of the hired or engaged individual.
Each Party warrants that during the Term, they have or shall purchase and maintain, at their own expense, (a) Commercial General Liability insurance with a limit of not less than $1,000,000 per occurrence; and (b) Workers Compensation insurance as required by their home state. Either Party may request certificates of such insurance from the other Party at any time during the Term, but no more than once every calendar year, which must be provided to the requesting Party within ten (10) business days.
Each Party has full power and authority to enter into and perform this Agreement, and the person signing and/or entering into this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement and to execute it and any Service Orders or other attachments hereto on behalf of such party and any of its Affiliates.
The relationship established between the Parties by this Agreement is that of independent contractors, and nothing contained herein shall be construed to: (1) give either Party the power to direct and/or control the day to day activities of the other, (ii) constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow a Party to create or assume any obligation on behalf of the other party for any purpose whatsoever, except as contemplated by this Agreement.
In certain cases, Client may request Metisentry to act as their agent in order to communicate with, procure from, and/or manage work provided by Client’s suppliers. Such requests shall be made via email or the Metisentry Portal only. Metisentry reserves the right to approve or refuse any such request in their sole discretion, and any refusal shall not affect any other terms of the Agreement.
25. ENTIRE AGREEMENT
This Agreement, Appendices, Service Order(s) and the attachments and Exhibits to each Service Order constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous agreements, written or oral. This Agreement and executed Service Order(s) may be modified at any time only by written agreement of the Parties.
Metisentry may revise this Agreement at anytime, but only with respect to future Service Orders issued after the date of such revision In this event, such revised Agreement will be in effect and supersede all prior or contemporaneous agreements, written or oral, only for future Service Orders issued after the date of such revision. The revised Agreement will be posted at https://www.Metisentry.com/tos, and Metisentry will also revise the “Last Updated” date at the top. Client is responsible for reviewing this Agreement prior to placing Service Orders, as each Service Order binds Client to the terms of the currently posted Agreement. For Service Orders with a monthly or periodic recurring term commitment, each monthly or periodic renewal shall be considered a new Service Order, subject to any previously revised terms.
In the event that any provision of this Agreement or any Service Order is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement or such Service Order did not contain the particular provisions held to be unenforceable and the unenforceable provisions shall be replaced by mutually acceptable provisions which, being valid, legal and enforceable, come closest to the intention of the Parties underlying the invalid or unenforceable provision.
Sections 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27, 28, 29 and 30 shall survive any termination of this Agreement.
28. NO WAIVER
No waiver of any breach of this Agreement or any Service Order shall be deemed to be a waiver of any other or subsequent breach.
Each Party agrees that the delivery of signatures to this Agreement and any Service Orders issued hereunder by electronic, click-accept, click-thru, and/or facsimile/pdf format shall have the same force and effect as delivery of original signatures and that each Party may use such electronic, click-accept, click-thru, and/or facsimile/pdf format signatures as evidence of the execution and delivery of the Agreement and Service Orders to the same extent that an original signature could be used.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement.
APPENDIX A – SERVICE LEVEL AGREEMENTS FOR VARIOUS SERVICE ORDERS
I. MANAGED SERVICES – INCIDENT RESPONSE SERVICES
This section applies to the following product only: Metisentry Managed Services
Metisentry provides the following SLA’s for responding to Client issues and requests, and critical monitoring alerts:
Severity Level Priority Response Time
Production system outages
System security incidents
Within 30 minutes during Standard Support Hours
Within 60 minutes during Extended Support Hours
Emergency phone calls are typically answered within 10 – 20 minutes, Monitor alerts typically within 10 – 20 minutes of the original failure notification.
Partial production system outages
Severe performance degredation
Within 60 minutes during Standard Support Hours
Within 60 minutes during Extended Support Hours
Urgent phone calls are typically answered within 30 – 45 minutes, Monitor alerts typically within 10 – 20 minutes of the original failure notification.
Client system is functioning normally, but Client requires information, assistance, wishes to schedule maintenance outages, or requests any other non-immediate tasks 3
Within 1 Business Day during Metisentry Office Hours
Metisentry shall use commercially reasonable efforts to meet these SLAs within each service billing cycle.
If Client experiences response times which qualify for a remedy, in order to receive consideration for a corresponding Service Credit, Client must submit a “Request for SLA Credit” by opening a ticket in the Metisentry Portal with the subject “Request for SLA Credit” within ten (10) days of the incident. The request should include, at minimum, the date and time of the incident, the reason for contacting Metisentry, the Metisentry response time, and ticket number (if available). In instances of uncertainty or dispute as to whether an actual Metisentry non-performance has occurred, Metisentry shall make a final determination with respect to such uncertainty and/or dispute, in good faith, based on its review of data provided by our computer systems and discussion with the Metisentry staff.
Service Credits are provided in the form of an automatic discount on future invoices. Metisentry does not issue any refunds. Service Credits unused due to customer termination after thirty (30) days shall be forfeited. The maximum value of Service Credits provided in any given month shall not be greater than one (1) month of fees paid by Client to Metisentry for the particular affected service. The value of approved Service Credits shall be calculated by the following formula:
(Number of whole hours above the listed response time Metisentry failed to respond) X $50.00
II. CLOUD SERVER HOSTING – 100% SERVER AND NETWORK UPTIME SLA
This section applies to the following product only: Metisentry Cloud Hosting Services
Metisentry offers a 100% Server and Network Uptime Guarantee for all Metisentry Cloud Hosting Services, providing credits should Metisentry not meet our strict standards for uptime, in accordance with this section. Metisentry has designed and built a fully redundant network and hosting environment, maximized to deliver 100% server and network uptime. Metisentry guarantees its network and server hosting environment will be available 100% of the time, including 100% availability of our routers, switches, Internet connectivity, and VMware® infrastructure.
Should 100% network uptime not occur, Metisentry will credit 5% of the Customer’s monthly service fees for affected services, for each 30 minutes of network downtime experienced, up to 50% of the monthly service fees for those servers affected. Downtime will be measured from the time when a Metisentry Cloud Support Ticket is opened by the Customer via the Metisentry Portal.
This guarantee excludes: any scheduled downtime taken by Metisentry; packet loss or outages outside of the Metisentry network; security attacks including but not limited to Denial of Service (DoS) attacks; any outages caused in whole or in part by Customer; any customer initiated configuration changes; customer server resource overload or overuse; software or operating system related issues when outside the direct control of Metisentry; customer initiated server or service reboots or shutdowns; and non-Metisentry provided services or software running on a Customer’s server(s).
To receive an SLA credit for any guarantee, Customers must open a Metisentry Billing Support Ticket from the Metisentry Portal, requesting an SLA Credit within 30 days of the incident in question. Service Credits are provided in the form of an automatic discount on future invoices. Metisentry does not issue any refunds. Service Credits unused due to customer termination after thirty (30) days shall be forfeited.
APPENDIX B – ADDITIONAL TERMS FOR VARIOUS SERVICE ORDERS
I. EXPERT TECHNICAL SUPPORT AND CONSULTING SERVICES
This section applies to the following products only:
Metisentry Expert Tech Support Services
Metisentry Consulting Services
Expert Technical Support Services and Consulting Services are provided on a time and materials basis. Hourly Rates are determined based on the options Client selects at the time of order on the Support Order Page, and are also displayed on both the invoice/receipt.
1. Work Authorization: Before work is performed, Metisentry will provide to Client an estimate of time and costs required to complete the requested services. Work begins only when Client has approved the estimate verbally, via email, via the Metisentry Portal, or a mutually executed Statement of Work. If Client or Metisentry determine that additional time is required, services will be performed only after Metisentry has received an additional approval and, if required, has received an additional time purchase or SOW. Time estimates and authorizations are only valid for five (5) business days from the date provided, unless otherwise written by Metisentry. Unless otherwise agreed to in advance by Metisentry, the maximum number of hours Client may use is limited to six (6) hours per day, and twenty (20) hours per seven (7) day period. If after completion of services, time remains unused from a Block purchase, such time shall remain available for one (1) year from the order date.
1a. System Access Authorization: By providing Metisentry with access credentials to any system, server or device, Client (a) warrants that they are authorized to provide such access to Metisentry; and (b) grants Metisentry support staff access and authority to login and make changes directly to such system, server, or device. Upon conclusion of work, as a proactive security precaution Metisentry recommends that Clients change all provided access credentials.
2. Payment: Hourly services will be charged for the amount of time as authorized by Client prior to Metisentry commencing work (as described in section one above). Clients purchasing a Ten, Fifty or One Hundred Hour Block will be charged for the entire block at the receipt of this signed Services Agreement and must submit payment for the block in advance. All time available may be used within one year of the order date. Any unused time after such period will be forfeit. Metisentry does not provide any refunds hereunder, even if services are unused, or even if Client’s desired resolution is not achieved. Metisentry uses best efforts to achieve Client’s desired resolution within the provided estimates, however this is not guaranteed. At Metisentry’s sole discretion, Client may alternatively (a) be invoiced for services occurring twice per month (on the 15th and 30th) with net 10 day terms or (b) Metisentry may accept Client’s Purchase Order (invoiced on receipt with net 10 day terms). In case any payment is not received within ten (10) days of the due date, Metisentry reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
3. Support Subscription Service: Clients purchasing Metisentry’s Support Subscription Services agree to a minimum monthly commitment as described in their order, for a minimum term of one (1) year, which shall automatically renew for additional one (1) year periods unless terminated within thirty days of the end of the initial term or any subsequent renewal term. Support Subscription Services also entitle Client to a discount on regular hours of Expert Technical Support Services as described in their order. The minimum commitment is invoiced and charged monthly, up to ten (10) days in advance for service the following month. Early termination fees in accordance with Section 9(D) shall apply in the event of any early termination. This service requires pre-payment, and Metisentry does not accept Client Purchase Orders or post-pay for Support Subscription Services.
4. Response Time: Standard response time is within one (1) business hour from the time the request is placed by customer opening a ticket in the Metisentry Portal, or as otherwise agreed upon by Client and Metisentry, whichever is later. For faster response to critical issues, Client may also optionally purchase a RUSH charge at the prices currently listed in the Metisentry Store, which can increase response time to Within One Hour 24/7 (RUSH1). If Metisentry fails to respond in the stated time frame and Metisentry is the sole cause for the failure, Metisentry’s sole liability shall be to credit Client with any amounts paid for the RUSH charge towards their next purchase from Metisentry. Metisentry will use their best, commercially reasonable efforts to respond within the requested time frame, but shall not be liable for any other damages whatsoever in the event of a failure to respond in such time frame.
4a) Extended Support Hours. Support provided outside of normal business hours is intended to be for emergency issues only, and Metisentry reserves the right to limit or discontinue such support if in Metisentry’s discretion any issue is not an emergency. If Client requires non-emergency support to be performed outside of normal business hours, Client must schedule such work with Metisentry and typically a minimum of one week advance notice will be required.
5. Travel Costs: In the event a physical visit is requested by Client, Applicable Hourly Rates shall apply to all Non Local travel to/from the Metisentry office and the Client location. “Non Local” travel is defined as travel requiring sixty (60) minutes or more. For Local travel (“Local” defined as less than sixty (60) minutes), Client will not billed for travel required to/from the Client’s location, unless such travel occurs during Metisentry’s Standard Support Hours. Client is also responsible for all reasonable travel costs, including: airfare, hotel, meals, tolls, mileage, etc. At Metisentry’s sole discretion, travel charges may be reduced or waived.
6. License: Client hereby grants to Metisentry the entire right, title, and interest in and to all software, inventions and designs made by any Metisentry employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs (the “Discovered Intellectual Property”). Metisentry hereby grants to Client a royalty-free, world-wide, perpetual license to use such Discovered Intellectual Property.
II. FIXED PRICE MANAGED SERVICES
This section applies to the following products only:
Linux Server Management Program (and ala-cart options)
Magento Site Management Program
WordPress Site Management Program
Managed Services are provided on a fixed price recurring basis. All Rates and Service Pricing are determined based on the options Client selects at the time of order and the number of sites or systems to be managed, and are also displayed on both the invoice/receipt.
General Terms for all Fixed Price Managed Services
1. Payment: Fixed Price Managed Services are invoiced and charged prior to Metisentry commencing work, and charges for recurring services shall automatically recur either monthly, quarterly, or annually as selected by Client in their order. In Metisentry’s sole discretion, alternatively Client may be invoiced for services with net 10 day terms or Metisentry may accept Client’s Purchase Order (invoiced on receipt with net 10 day terms). In case any payment is not received within ten (10) days of the due date, Metisentry reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
2. Term and Refunds: The minimum Term for all Fixed Price Managed Services is one (1) month of service. Metisentry does not provide partial months of service. Client may select a quarterly or annual term in their order, which provides the described discount. Metisentry does not provide any refunds whatsoever, even if such services are unused.
3. SLA: Standard response times for managed services are defined in Appendix A.
4. License: Client hereby grants to Metisentry the entire right, title, and interest in and to all software, inventions and designs made by any Metisentry employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs (the “Discovered Intellectual Property”).
5. System Access Authorization: By providing Metisentry with access credentials to any system, server, site or device (a “Managed System”), Client (a) warrants that they are authorized to provide such access to Metisentry; and (b) grants Metisentry support staff access and authority to login and make changes directly to such Managed System; and (c) permits Metisentry support staff to install standard tools and custom Metisentry software on such Managed System to assist Metisentry with performing their work hereunder. Upon conclusion of work, as a proactive security precaution Metisentry recommends that Clients change all provided access credentials.
6. Terms for Specific Managed Services
A. Managed Monitoring Services.
a) Basic Monitoring – ping plus up to 10 standard services checks per server
b) Standard Monitoring – ping plus up to 20 standard services checks per server
c) Premium Monitoring – Unlimited services checks and custom checks
i) Custom checks are only available with the Premium Monitoring option, and refer to either (a) service checks that are not part of the standard Nagios platform; or (b) service checks that are a part of the standard Nagios platform, but require modification to meet customer monitoring needs. Depending on the nature of the requested custom check, or modified standard check, additional fees may be required
ii) FREE Basic Monitoring is limited to a number of servers, sites or devices as determined in Metisentry’s sole discretion.
B. Incident Response Service
a) Basic Incident Response – Report incident and basic service restarting/power cycling only (24/7)
b) Standard Incident Response – Basic plus outage troubleshooting during Standard hours.
c) Premium Incident Response – Standard plus 24/7 outage troubleshooting
i) Remote root access to server via SSH and/or Control Panel is required for all Incident Response Services
ii) Remote access to remote reboot software is required for Power Cycling. This software is not included from Metisentry unless your server is hosted within Metisentry’s enterprise class infrastructure. Check with your hosting provider for details.
iii) A server must have passed with a Basic or Full Security Check to be eligible for Incident Response Services
iv) Standard Incident Response covers any troubleshooting related to services not restarting, or servers not coming back online after a reboot. Troubleshooting is limited to 2 hours per incident. Then, normal hourly pricing applies.
v) Premium Incident Response is Standard Incident Response, plus 24/7 troubleshooting.
vi) In the event of three or more Incidents of an identical or similar nature within any one month period, Metisentry reserves the right to discontinue Incident Response for such issue only, or require hourly fees for continued response.
vii) To facilitate Incident Response, you authorize Metisentry to make direct changes to your server when necessary to restore failed services. Any changes made may be documented by Metisentry in a Support Ticket accessible in the Metisentry Portal. All root emails for the server must be copied to [email protected] and rsyslog must be configured to copy all syslog messages to syslog.Metisentry.com.
viii) If a Server Security Audit discovers a security compromise, major mis-configuration, or degraded system state, Metisentry may require such issue(s) to be resolved before Incident Response services begin or continue.
C. Managed Software Update Service (“SUS”)
Standard pricing for this service is valid for software and systems that are not currently in “End of Life” (“EOL”) stage.
a) Automated Updates – Metisentry configures cron to automatically perform unattended updates on any regular interval
b) Basic Managed Updates – all packages are manually updated once per month regardless of severity
c) Standard Managed Updates – Basic plus all Critical updates are updated within 5 business days
d) Premium Managed Updates – Basic plus all Critical updates are updated within 1 business day
i) Remote root access to server via SSH is required for all Software Update Services.
ii) Included updates are for standard distribution releases only as provided by vendor repositories, plus other Metisentry-approved repo’s such as Epel or Webtatic.
iii) Excluded from the Software Update Service are:
(a) custom compiled software that must be manually recompiled; and
(b) software source from repositories that are not approved by Metisentry; and
(c) any End of Life (EOL) software, or software where no updates are available; and
(d) any special configuration or coding required to accommodate incompatibilities.
Metisentry can provide updates for these excluded items as a separate, hourly service. Please contact your Metisentry Account Rep for more details.
iv) There is always the potential for downtime or issues with any software update. Metisentry will use commercially reasonable efforts to avoid or minimize downtime. However, Metisentry strongly recommends customer engage in regular data backups for all servers. In the event an update fails or causes unforeseen issues, Metisentry will either revert to the previous package version or restore from backup or snapshot. Additional troubleshooting related to such an incident is not included in the base service price.
v) For the Basic Managed Updates: package updates will be scheduled during Standard Support Hours. These can only be rescheduled outside of Standard Support Hours for a $50/update fee.
D. Managed Backups
Includes up to 50GB total storage per Managed Service Subscription on Metisentry’s Backup Server, with up to 30 days of total archived data.
a) Managed Backups are available for Linux based systems only, and remote SSH access is required for backups to function.
b) Metisentry may require a fee of between $25-$75 to perform data restores.
c) This service is intended to supplement, not replace, existing client backups. Metisentry makes no warranties as to the integrity of these backups.
E. Named Account Manager
When included in a Managed Services Plan, service will be setup and managed by one Metisentry Project Manager who you receive direct contact info for.
F. Architecture and Security Advisors
When included in a Managed Services Plan, includes free discussions with Metisentry architecture and security advisors to provide recommendations for growth, scalability, virtualization, security and data integrity. Limited to one hour per month unless otherwise decided in Metisentry’s sole discretion.
G. Metisentry Linux Server Management Program
Includes the above Named Account Manager, Architecture and Security Advisors, Standard Monitoring, Standard Incident Response, Standard Managed Updates, and Managed Backups. Software updates are limited to CentOS, Fedora, Red Hat, and Ubuntu Linux Distributions.
H. Metisentry WordPress Site Management Program
Specific to a single WordPress website (per subscription), this service includes the above Named Account Manager, Architecture and Security Advisors, Standard Monitoring, Standard Incident Response, Standard Managed Updates, and Managed Backups. Software updates are limited to WordPress Base, Theme, and Plugin updates.
I. Metisentry Magento® Site Management Program
Specifically and only focused to a single Magento website (per subscription), this service includes the above Named Account Manager, Architecture and Security Advisors, Standard Monitoring, Standard Incident Response, Standard Managed Updates, and Managed Backups. Software updates are limited to Magento or Plugin patches or updates.
III. FIXED PRICE PROFESSIONAL SERVICES
Professional Services provided on a fixed cost basis. Costs are determined based on the options Client selects at the time of order, and are also displayed on the invoice/receipt.
General Terms for all Fixed Price Professional Services.
1. Payment: All Fixed Price Professional Services are invoiced and charged prior to Metisentry commencing work, and charges for recurring services shall automatically recur either monthly, quarterly, or annually as selected by Client in their order. In Metisentry’s sole discretion, alternatively Client may be invoiced for services with net 10 day terms or Metisentry may accept Client’s Purchase Order (invoiced on receipt with net 10 day terms). In case any payment is not received within ten (10) days of the due date, Metisentry reserves the right to temporarily suspend services without terminating the Agreement, until payment is received.
2. Refunds: Metisentry does not provide any refunds whatsoever, even if such services are unused. If a refund is requested within thirty (30) days after the order date, and no part of such Fixed Price Professional Service has actually been provided, Metisentry will credit the full prepaid amount to Clients account which can be applied to any future invoice.
3. License: Client hereby grants to Metisentry the entire right, title, and interest in and to all software, inventions and designs made by any Metisentry employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs.
4. System Access Authorization: By providing Metisentry with access credentials to any system, server or device, Client (a) warrants that they are authorized to provide such access to Metisentry; and (b) grants Metisentry support staff access and authority to login and make changes directly to such system, server, or device. Upon conclusion of work, as a proactive security precaution Metisentry recommends that Clients change all provided access credentials.
5. Terms for Specific Fixed Price Professional Services
A. Linux Server Security Audit Service
1. Procedure: Described in detail at http://www.Metisentry.com/support.php?subsect=security
2. Deliverables: Described in detail at http://www.Metisentry.com/support.php?subsect=security
3. Special Terms and Conditions:
Linux Server Security Audits are performed during Metisentry’s Standard Support Hours only, and will be scheduled for completion within five (5) business days after receipt and acceptance of your order. If faster response is required, Client may also optionally purchase a RUSH service at the prices currently listed in the Metisentry Store, which can increase response time to either Within One Hour (RUSH1) or Within Four Hours (RUSH4). If Metisentry fails to respond in the stated time frame and Metisentry is the sole cause for the failure, Metisentry’s sole liability shall be to credit Client with any amounts paid for the RUSH charge towards their next purchase from Metisentry. Metisentry will use their best, commercially reasonable efforts to respond within the requested time frame, but shall not be liable for any other damages whatsoever in the event of a failure to respond in such time frame.
Metisentry will use commercially reasonable methods, practices, and technologies while conducting audits. However, due to the inherent nature of internet and system security issues, it is not possible to guarantee that our findings will be entirely accurate, and/or that a finding of a “Clean” server can be relied on to be absolutely Clean or secure. The only way to absolutely ensure any server is 100% secure is to unplug it from the Internet, encase it in ten feet of reinforced concrete, and drop it into the Marianas Trench. Since that is impractical, the best policy is continued vigilance and frequent audits by trained professionals.
B. MySQL Level I and Level II Assessments
1. Procedure: Described in detail at http://www.Metisentry.com/support.php?subsect=mysqlPerformance
2. Deliverables: Described in detail at http://www.Metisentry.com/support.php?subsect=mysqlPerformance
3. Special Terms and Conditions:
MySQL Level I and Level II Assessments are performed during Metisentry’s Standard Support Hours only, and will be scheduled for completion within ten (10) business after receipt and acceptance of your order.
IV. SOFTWARE DEVELOPMENT SERVICES
Software Development Services are typically provided on a time and materials basis, however in some cases Metisentry may propose fixed price alternatives. Hourly Rates, and/or fixed prices, are determined based on the requirements of the project as defined and agreed to on any Metisentry Proposal/Service Order.
1. Work Authorization: Unless otherwise defined in the applicable Metisentry Proposal/Service Order, before work is performed, Metisentry will provide to Client an estimate of time and costs required to complete the requested services. Work begins only when Client has approved the estimate verbally, via email, via the Metisentry Portal, or a mutually executed Statement of Work. If Client or Metisentry determine that additional time is required, services will be performed only after Metisentry has received an additional approval and, if required, has received an additional time purchase or SOW. Time estimates and authorizations are only valid for five (5) business days from the date provided, unless otherwise written by Metisentry.
2. Payment: Payment terms for Software Development Services will be defined in the applicable Metisentry Proposal/Service Order. However, if not defined, the following terms apply. Hourly services will be charged for the amount of time as authorized by Client prior to Metisentry commencing work (as described in section one above). Clients purchasing a Ten, Fifty or One Hundred Hour Block will be charged for the entire block at the receipt of this signed Services Agreement and must submit payment for the block in advance. All time purchased may be used within one year of the order date. Any unused time after such period will be forfeit. At Metisentry’s sole discretion, Client may be invoiced for services, which will occur weekly. In case any payment is not received within ten (10) days of the due date, Metisentry reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
3. License: Metisentry hereby grants to Client the entire right, title, and interest in and to all software, inventions and designs made by any Metisentry employee or personnel, alone or with others, which arise out of and pertain to the services rendered under this Agreement, together with any patents and/or copyrights as may be obtained on the software, inventions and/or designs (the “Discovered Intellectual Property”). Client hereby grants to Metisentry a royalty-free, world-wide, perpetual license to use such Discovered Intellectual Property.
4. Fixed Price Software Development Services
A. Website Development
i) All websites must be approved by the Client in writing or via email, prior to launching a site. Metisentry is not responsible for errors or omissions on a site, after the Client has indicated final approval to go live.
ii) Client is responsible for proofing and fact checking. Any errors, typos or omissions are the sole responsibility of the Client.
iii) All copy, photos, illustrations and vector logo files are to be provided by the Client for each page, in acceptable digital format, unless otherwise specified. These services can be provided by Metisentry for an additional charge.
iv) Client is responsible for ensuring that all materials supplied to Metisentry are either copyright free or that the Client has the permission of the respective copyright owners to use the materials.
v) At the time it is designed and coded, a copy of the website can be provided for an additional fee. Metisentry does not keep copies, or accept responsibility for backup of sites which have been updated or revised by Client.
vi) Additional copies of Client’s branding project will be provided to Client on DVD or via upload for an additional fee. The copy will be accurate as of the date created. vii) Metisentry is not responsible for the website’s performance in search engines, or the inclusion of search engine optimization or analytics. Search engine optimization services can be provided for an additional cost.
viii) While every endeavor will be made to ensure that the website and any scripts or programs are free of errors, Metisentry does not accept responsibility for any losses incurred due to malfunction, the website or any part of it.
ix) Metisentry is not responsible for any browser updates that affect the performance of Client’s site once Contractor has completed the coding and testing phase. If updates to Client’s site are required due to browser compatibility issues which occur after Metisentry has coded and tested the site, they will be billed at current Metisentry hourly support rates.
x) Metisentry is not responsible for website archiving, backups, troubleshooting or technical support once the client or a third party has made any changes to the site via the Content Management System (“CMS”).
xi) Metisentry is not responsible for materials, artwork or archival of projects and files beyond 3 (three) months after completion. Re-creation of projects can be done at the current Metisentry hourly support rates.
Metisentry will invoice Client for payment as specified in the Metisentry Proposal/Service Order. In case any payment is not received within ten (10) days of the due date, Metisentry reserves the right to temporarily suspend services without terminating this agreement, until such payment is received.
Training will be provided by Metisentry as more specifically set forth in the Metisentry Proposal/Service Order. Extended or additional training sessions are available at current Metisentry hourly support rates.
D. Future Maintenance and Service
Future maintenance and service will be provided as more specifically set forth in the Metisentry Proposal/Service Order or in a prepaid Service Agreement.
V. CLOUD HOSTING SERVICES
This section applies to the following products only:
Metisentry Cloud Hosting Services
Metisentry Physical Dedicated Servers
Metisentry Ancillary Hosting Services (DNS, Email, SSL certs, etc)
Cloud Hosting Services are provided on a fixed price recurring basis, and are available both to businesses and individuals. All Rates and Service Pricing are determined based on the options Client selects at the time of order, and are also displayed on both the invoice/receipt.
1. Acceptable Use Policy. All services are subject to Metisentry’s business and network policies and practices, which can change without notice. Policies are listed in our Acceptable Use Policy, located at http://www.pantek.com/aup and hereby incorporated into this Agreement.
2. Policy & Agreement Changes. Unless otherwise prohibited by law, Metisentry may also change service prices, as well any other term within this Agreement at any time, in accordance with these procedures:
a) Services on a Monthly Plan or ‘No Term’ Service: All changes will be published to the following URL: https://www.metisentry.com/tos. Price changes will become effective on your next regularly scheduled invoice period. Any other changes will become effective one (1) business day after they are published.
b) Services on a Term Plan of at least Three (3) Months: Metisentry service pricing per your initial Order is guaranteed for the duration of your Term, except with respect to any third-party license costs, per section 8.8 of Appendix B(V) of this Agreement. All changes will be published to the following URL: https://www.metisentry.com/tos. All non-material changes will become effective one (1) business day after they are published. Material changes will be effective upon your next Term renewal date.
3. Service Suspension. Customer agrees that Metisentry may suspend Services to Customer without notice and without liability if: (a) Metisentry reasonably believes that the Services are being used in violation of the AUP; or (b) Customer fails to cooperate with any reasonable Metisentry investigation of any suspected violation of the AUP; or (c) there is a denial of service or other attack on Customer’s servers or other event for which Metisentry reasonably believes that the suspension of Services is necessary to protect its network or its other customers, and/or (d) as requested by a law enforcement or government agency. Information on Metisentry’s servers will be unavailable during a suspension of Services.
4. Metisentry Cloud Technical Support Policies.
4.1 Technical Support Hours and Methods. Cloud Hosting includes free 24x7x365 emergency technical support, and 9×5 standard support from the hours of 9am to 5pm M-F EST, excluding holidays. Support is provided via telephone, email, chat, as well as the Metisentry Portal, where Customers can submit Support Tickets, view ticket and billing history, update account information, manage Cloud Servers, and order new services. Customer agrees as a first step and whenever possible, to submit a Support Ticket via the Metisentry Portal for non-emergency requests.
4.2. Support Exclusions. Metisentry does not provide free training nor end-user support for any Services, nor for any application specific issues such as application programming, application performance tuning, html or any other such issues, unless specifically contracted for by Customer and agreed to by Metisentry. Metisentry does not provide technical support for Customer’s clients.
5. Lease Periods. Customers contracting for Cloud Hosting services agree to an initial Lease Period as specified in their original order or Service Order, or for a one (1) year Lease Period if unspecified. Customer’s plan and Lease Period will then automatically renew at the end of each Lease Period, until terminated by Customer or Metisentry in accordance with this Agreement.
6. Related Services. Payment for SSL Certificates, Domain Registrations, Third Party Licenses, etc. are due and payable in advance of service and are non-refundable.
7. System Access Authorization: Client grants Metisentry system administrators access to Client servers to be used when requested by Client or when required for Metisentry to fulfill its duties hereunder. Client (a) warrants that they are authorized to provide such access to Metisentry; and (b) grants Metisentry support staff access and authority to login and make changes directly.
8. Customer’s Obligations.
8.1 Reasonable Security Precautions and Acceptable Actions. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, Metisentry shall have no liability for any damages incurred by Customer due to a breach of security. Accordingly, Customer agrees to (a) use reasonable security precautions in connection with its use of the Services, and (b) if Customer resells Metisentry’s services, require its customers and end users to use reasonable security precautions. In addition, Customer agrees not to take any action or install any software which may preclude or impair Metisentry’s ability to access or administer its servers.
8.2 Customer Data Back Up. Depending on the specific Services purchased by Customer, Metisentry may provide either partial or full Data backup services for Customer, or Customer may choose not to have Metisentry provide any Data backup services, on any or all of Metisentry’s servers used by Customer. As such, Customer acknowledges that any servers can and do fail, and the risk of Data loss is always present when any Data is stored on a computer system of any kind, even with the security and reliability protections that Metisentry provides. Customer also acknowledges that Data backups in general do not always allow for restoration of Data due to the many inherent limitations when performing Data backups, and that Metisentry’s Data backup services may not always allow Customer to restore any or all of their Data in the event of a failure of any kind. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, Customer agrees that Metisentry shall have no liability for loss of any Data stored on Metisentry’s server’s by Customer or otherwise provided by Metisentry to Customer, even if Metisentry is providing any type of Data Backup services to Customer. Metisentry recommends that all Customers also perform their own independent periodic data backups. For purposes of this section, ‘Data’ shall include any software, content, and any other information stored on Metisentry’s servers by Customer or otherwise provided to Metisentry by Customer. Customers may opt-out of the Metisentry Data backup services by opening a Support Ticket in the Metisentry Portal indicating your request, including specifically which services, servers, or domains you wish to opt-out.
8.3 Legal Compliance. Customer shall be responsible for compliance with all applicable laws and governmental regulations affecting its use of the Services, and Metisentry shall not have any responsibility relating to Customer therefore, including, without limitation, any responsibility to advise Customer of Customer’s responsibilities in complying with any laws or governmental regulations affecting its use of the Services.
8.4 Customer’s Applications & Website. For the avoidance of doubt, Customer acknowledges and agrees that (a) Customer’s application software and website may have certain software or hardware dependencies in order to run properly in a managed hosting environment using Metisentry’s Service(s), (b) Customer is solely responsible for ensuring that Customer’s applications and/or website will function properly on Metisentry’s Service(s) using the hardware and software supported by Metisentry prior to contracting with Metisentry, and (c) Metisentry has no obligation whatsoever to assist or ensure that Customer’s applications or website functions properly on Metisentry’s Service(s). Accordingly, Customer shall be solely responsible for any cost or effort to change or modify Customer’s applications or website to function properly on the Metisentry Service(s), and Customer’s inability to have its applications or website function properly using the Metisentry Service(s) shall not relieve Customer of any of its obligations under this Agreement.
8.5. Customer Security. Customer is responsible for the security of the Services provided pursuant to this Agreement, and Metisentry agrees only to perform the specific security services described in the AUP, SLA, Order Form or in this Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use was because of a security breach that occurred due to Metisentry’s gross negligence. Metisentry complies with the Payment Card Industry Data Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, Customer is solely responsible for the security of all data and billing information on your website(s) and server(s), and unless specifically contracted by Customer, Metisentry does not monitor Customer website(s) for PCI compliance nor are we able to verify whether your website(s) meet the PCI Standard. When Customer does contract Metisentry for PCI Compliance services regarding their web hosting, Customer’s invoice will state “PCI Compliant Hosting”, and Metisentry’s responsibilities are generally limited to only those aspects of Customer Hosting which are under the complete and sole control of Metisentry, and usually only including the relevant sub-sections of the PCI Standard Sections: 1, 2, 6.1, 6.2, 8, 9, 10, 11, 12. When new service is established, services marked as PCI Compliant are provisioned in accordance with the current PCI Compliance standards. However, maintaining PCI compliance is an ongoing process which is the responsibility of Customer unless otherwise contracted specifically with Metisentry.
8.6. Acceptable Use Policy (AUP). Customer acknowledges that it has read Metisentry’s Acceptable Use Policy located at http://www.Metisentry.com/aup, and Customer agrees to comply with such policy and any changes thereto which are made in accordance with the further provisions of this section. Metisentry may change such policy by posting the revised policy on its web site or by giving Customer notice thereof. Any such change shall be effective on the earlier of the date the new policy is posted or on the date Metisentry gives Customer notice thereof. If Customer resells Metisentry’s Service, Customer shall require its customers and end users to comply with such AUP. Furthermore, Customer agrees to cooperate with Metisentry’s reasonable investigation of any suspected violation of the AUP by Customer or any of its customer or end users.8.7. Software. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by Metisentry. Customer may not reverse engineer, decompile, or disassemble any Metisentry provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software. If the applicable Statement of Work or Order Form indicates that Metisentry uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software published by Microsoft Corporation.
8.8. Third Party Products. As a convenience to Customer, Metisentry may from time to time arrange for Customer’s purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Customer’s use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party. Any price increases initiated by such third parties for use or access to their services, products, or licenses will be passed along to customer in kind. Metisentry does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third party provider. You undertake all transactions with these third party providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third party providers. Metisentry is not an agent, representative, trustee or fiduciary of you or the third party provider in any transaction.
8.8.1. Metisentry as a Reseller or Licensor. Metisentry may act as a reseller or licensor of certain third party services, hardware, software and equipment used in connection with the Services (“Non-Metisentry Products”). Metisentry shall not be responsible for any changes in the Services that cause any Non-Metisentry Products to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Metisentry Products, either sold, licensed or provided by Metisentry to you will not be deemed a breach of Metisentry’s obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Non-Metisentry Product are limited to those rights extended to you by the manufacturer of such Non-Metisentry Product. You are entitled to use any Non-Metisentry Product supplied by Metisentry only in connection with your use of the Services as permitted under this Agreement. You shall make no attempt to copy, alter, reverse engineer, or tamper with such Non-Metisentry Product or to use it other than in connection with the Services. You shall not resell, transfer, export or re-export any Non-Metisentry Product, or any technical data derived therefrom, in violation of any applicable law, rules or regulations.
8.8.4. Volusion. Metisentry is a Volusion Authorized Partner and Reseller and offers the Volusion platform bundled with some hosting options, and also as a standalone product in some cases. Clients who utilize Volusion are also bound by and hereby agree to the latest effective versions of the Volusion Terms of Service, published at: http://www.volusion.com/legal as Volusion may modify from time to time.
8.9. Distributed Denial Of Service (DDoS) Attacks. A DDoS attack occurs when a number of servers (that have typically been “hacked” or compromised) located throughout the Internet, launch an attack against a website or a server by sending a flood of traffic to that website or server. A DDoS attack can significantly impact the performance of the network under attack, and can consume significant amounts of Internet bandwidth. In order to protect Metisentry and its customers from DDoS attacks, Metisentry provides all customers with basic DDoS protection. Customer’s traffic is scrubbed and good traffic (i.e., non-attacked traffic) will be sent to Customer’s servers, although Customer agrees and accepts that Metisentry shall be allowed to place a limit on the amount of Internet traffic to be accepted as part of an attack on Customer’s server(s). This limit may vary based upon the load on Metisentry’s network at any given time, and will be determined by Metisentry in its sole discretion. In the event the total traffic (including attacking and non-attacking traffic) to Customer’s server(s) goes above the limit set by Metisentry such that Metisentry believes a continued attack may cause a significant impact to Metisentry’s network or other customers, Customer accepts that Customer’s Internet traffic going to the attacked server(s) will be null routed (blocked) until the attack drops to a level deemed to be acceptable by Metisentry. For those Metisentry customers that find themselves under a DDoS attack, Internet traffic will null routed (blocked) on the server(s) being attacked. In addition, Customer agrees that they will be responsible for any monthly Internet bandwidth usage charges or monthly data transfer charges above Customers contracted amounts during such an attack, as calculated by Metisentry using Metisentry’s standard monthly data transfer calculation methods and its current rates for additional data transfer. For the purposes of this Agreement, a less severe attack type known as a Denial of Service Attack (“DOS Attack”), where a single website or server is under attack by a single server, is considered identical to a DDos Attack.
8.10. Data Encryption. In the event Customer stores any Protected Health Information (PHI) as defined by the United States Department of Health and Human Services (“DHHS”) pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Customer agrees to the following: (a) Customer shall only store said data in an encrypted format on Metisentry’s server(s); (b) while Customer may request assistance from Metisentry to setup encryption for its PHI data to be stored on Metisentry’s servers, Customer agrees that Customer is solely responsible to ensure that said PHI data is encrypted properly at all times; and (c) Customer shall not disclose to Metisentry any encryption key(s) necessary to decrypt such data nor provide access to Metisentry to any application(s) residing on the Metisentry server(s) which stores PHI. Notwithstanding any other provision of this Agreement, Customer agrees that in the event Customer fails to encrypt any PHI data as provided herein and such unencrypted data is accessed by an unauthorized party while being stored on Metisentry servers subjecting Metisentry to compliance with any regulations and/or laws, Customer shall be solely responsible for all costs associated with compliance with such regulations and/or laws and shall indemnify Metisentry for any and all suits, claims, actions, causes of action, liabilities, losses, damages, costs and expenses (including reasonable attorneys. fees and other expenses) associated with or arising out of such disclosure to the extent caused by the Customer’s failure to encrypt such data. The provisions of this paragraph only apply to any Customer that is storing PHI on Metisentry servers that is subject to HIPAA Compliance.
8.11. Shared Server Resource Policy. Customers contracting for Shared Hosting Services may not utilize unlimited resources on their assigned hosting server. If in Metisentry’s sole determination Customer is using extreme server resources (including but not limited to CPU time, memory usage, and network resources), Customer will be notified via email and given an option of either upgrading to the appropriate service level (usually a Dedicated Server), reducing the resource used, or terminating service in accordance with this Agreement. Any website, application, script, or service deemed to be adversely affecting Metisentry server performance or network integrity may be shut down without prior notice, in Metisentry’s sole discretion, however whenever possible Metisentry will use reasonable efforts to first contact Customer and attempt to resolve the issue prior to shutting down service.
9. Termination of Services. To terminate this Agreement, Customer shall notify Metisentry by requesting a cancellation through the Metisentry Portal. To protect Customer security, Email, HelpDesk, FAX, and phone cancellation requests are NOT accepted. Customers shall continue to be responsible for all charges to their account through the date of termination. Metisentry shall continue to provide services through the date of termination only if Customer’s account is current and no past-due balances exist. Metisentry may terminate this Agreement for any reason or no reason by providing thirty (30) days advance notice to Customer, or immediately in the event of a material breach of this Agreement in Metisentry’s discretion. Please see this KnowledgeBase article for specific instructions to request a cancellation thru the Metisentry Portal: https://portal.Metisentry.com/knowledgebase.php?action=displayarticle&id=82
9a. Termination – Shared Hosting Plans – Non-Term. Customers purchasing any Shared Hosting Plan may terminate this Agreement and receive a full refund, for any reason, during the first thirty (30) days of service. This thirty (30) day money-back offer does NOT apply to purchases of Cloud Dedicated Servers or any other service types (including but not limited to SSL Certificates, extra bandwidth allotments, or extra Miva or other Modules). If this Agreement is terminated after the first thirty (30) days of service but before the first ninety (90) days of service, Customer shall pay Metisentry for the full ninety (90) days of service. If this Agreement is terminated after the first ninety (90) days of service, Metisentry shall give Customer a prorated refund for any months prepaid and unused.
9b. Termination – Shared Hosting Plans – Term Agreement. In the event this Agreement is terminated by Customer, or by a breach of this Agreement by Customer, prior to the end of their current Contract Period (or Lease Period or Term Period), Customer shall pay Metisentry an early termination fee equal to the number of remaining months of unused service, multiplied by their contracted monthly rate for services.
9c. Termination – Cloud Dedicated Servers. In the event this Agreement is terminated by Customer, or by a breach of this Agreement by Customer, prior to the end of their current Lease Period, Customer shall pay Metisentry an early termination fee equal to the number of remaining months of unused service, multiplied by their contracted monthly rate for services.
9d. Obligations Upon Termination. Upon the expiration or earlier termination of this Agreement for any reason, Customer agrees (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name), and (c) that Metisentry may take steps to change or remove any such IP addresses. Unless Customer requests in writing to the contrary, Metisentry agrees to destroy all Customer-provided software and data after expiration or termination of this Agreement within sixty (60) days. In the event Customer requests the return of its software or data, or assistance with migrating their software, data, or systems away from Metisentry, Customer agrees to be responsible for all associated costs, and any time spent by Metisentry will be billable services as Systems Administration hours which Customer agrees to pay for prior to having its software and/or data returned.
10. Incidental and Overage Charges. As specified in your initial service order or current plan description, certain services may be billed in addition to normal hosting charges, when such services are actually used by customer. Some examples include extra disk space usage, extra bandwidth usage, extra email accounts, or additional shopping cart licenses. Such services are invoiced on a monthly basis for services used the prior month.
11. Actions Taken by Metisentry. When Metisentry becomes aware of an alleged violation of this Agreement, Metisentry will initiate an investigation. During the investigation Metisentry may restrict Customer access and/or disable services in order to prevent further possible unauthorized activity. Depending on the severity of the violation, Metisentry may, at its sole discretion, restrict, suspend, or terminate Customer’s account, delete individual files or block services which are in violation of the Terms of Service, and/or pursue other civil remedies. If such violation is a criminal offense, Metisentry will notify the appropriate law enforcement department of such violation. Metisentry does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
12. Intellectual Property Ownership
12.1. Subject to the further provisions of this Section, each party acknowledges and agrees that: (i) nothing in this Agreement transfers ownership in any of such party’s trade secrets, inventions, copyrights, and other intellectual property to the other party and (ii) each party owns their respective intellectual property. Further, Metisentry acknowledges that Customer owns, and shall continue to own, any and all data and content which Customer stores on Metisentry’s servers, and nothing in this Agreement shall transfer ownership of Customer’s data or content to Metisentry. Customer acknowledges and agrees that (a) Metisentry owns, and shall continue to own any and all intellectual property (including, without limitation, all of Metisentry’s Trade Secrets) that Metisentry may utilize or develop in the course of performing the Services, and (b) Customer does not acquire any ownership interest or rights to possess Metisentry’s server(s) or other hardware, and has no right of physical access to the hardware. To the extent that Customer provides any comments, instructions, suggestions, supporting information, and/or other feedback to Metisentry, respecting any Services and/or any other subject matter of this Agreement collectively, ‘Feedback’), such Feedback shall be owned exclusively by Metisentry. To the extent Customer has or obtains any intellectual property rights in or to any Feedback, Customer shall be deemed to assign all right, title and interest therein, if any, to Metisentry as of the date such right first vests in Customer.
12.2. Customer acknowledges and agrees that in the course of providing services to Customer, Metisentry may disclose (or Customer may otherwise learn) one or more of Metisentry’s Trade Secrets. For example, Metisentry may give Customer, as applicable, full (a) ‘Root access’ (for Linux), and/or (b) ‘Admin access’ (for Windows), in each instance to Metisentry’s software and hardware including Metisentry’s servers. Customer further acknowledges and agrees that in the course of such access, Customer may gain access and knowledge to certain tools, methods and techniques used by Metisentry to deliver Metisentry’s uniquely high levels of performance, security, cost-effectiveness, and reliability (all of such tools, methods and techniques shall be referred to collectively herein as “Metisentry’s Hosting Tools”). Without limiting the generality of the foregoing, Customer further acknowledges and agrees that Metisentry’s Hosting Tools and all other of Metisentry’s Trade Secrets (i) are not generally known to, and are not readily ascertainable by proper means by, Customer or by third parties, (ii) derive independent economic value to Metisentry from not being generally known to, and not being readily ascertainable by proper means by, Customer or by third parties, and (iii) are the subject substantial efforts by Metisentry to maintain their confidential nature. Customer further acknowledges and agrees that third parties would obtain economic value from the disclosure of Metisentry’s Designated Trade Secrets to them. Customer acknowledges and agrees that all Metisentry’s Trade Secrets constitute Metisentry’s trade secrets under applicable law.
13. Resellers and White Labeled Hosting
Customer may only resell or white label Metisentry’s Services (both referred to as a “Reseller”) with advance written authorization from Metisentry and in accordance with the following terms:
Reseller shall ensure that each of their clients complies with this Agreement and all attachments.
Reseller is responsible for supporting their clients. Metisentry does not provide support to clients of Resellers. All support requests must be made by the Reseller on its client’s behalf.
Reseller is responsible for all billing and billing support for each of their clients.
Resellers are responsible for all content stored or transmitted under their Reseller account(s) and the actions of their clients. Metisentry will hold any Reseller responsible for any of their client’s actions that violate the law, this Agreement, or any attachment or included agreement.
Reseller will not resell Metisentry Services for a cost less than Metisentry’s then-current list price.
Reseller will not purchase search engine or other pay-per-click terms or domain names that use the trademarks of Metisentry, their partners or trademarks or any variations and misspellings thereof.
Neither party will solicit a direct or indirect sales relationship, other than as contemplated by this Agreement, with respect to each other’s services, unless such party has a pre-existing relationship.
Metisentry is not responsible for the acts or omissions of Reseller. Reseller hereby agrees to indemnify Metisentry from and against any and all claims arising from Reseller’s acts or omissions.
VI. HARDWARE AND SOFTWARE RESALE
This section applies to any sale of hardware or software by Metisentry to Client.
In certain circumstances, Metisentry may directly sell third party hardware or software to Client. Pricing is determined based on the written Quotes and/or Service Orders Metisentry provides to clients.
1. No Refunds, Returns, or Exchanges. All hardware and software sales are final. Metisentry does not provide any credits, discounts, refunds, returns, or exchanges whatsoever of any third party hardware or software products sold to Client.
2. No Warranties. METISENTRY MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY PRODUCT OR SERVICE.
3. Export Control. Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Unless otherwise agreed upon in writing by Metisentry, Client hereby warrants that no hardware or software received by Metisentry shall be exported outside the United States.