MASTER SUBSCRIPTION AGREEMENT FOR CLOUDNOC SERVICES

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND USE OF CLOUDNOC SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE IN CONNECTION WITH AN ONLINE PURCHASE (AN “ONLINE ACCEPTANCE”) OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (AN “ORDER FORM”), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are a CloudNoc competitor or acting on behalf of a CloudNoc competitor. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on January 12, 2013. It is effective between You and Us as of the date of You accepting this Agreement.

§1 – DEFINITIONS

“Account” shall mean the account established by Customer in connection with use of the CloudNoc Platform, represented in each case by a single set of access credentials to the CloudNoc Platform.

“Authorized User” shall mean any individual Customer authorizes to access or use the Services on Customer’s behalf in accordance with the terms of this Agreement.

“CloudNoc Platform” shall mean the hardware and software and other infrastructure used by CloudNoc in delivering the Services, and the data and information relating thereto, but excluding: (i) the underlying physical infrastructure which the CloudNoc Platform accesses and relies upon, (ii) Customer Software, applications, and data, and (iii) any third party software, applications or data which utilize or are available through the CloudNoc Platform.

“Customer” shall mean the person entering into an Online Acceptance or Order Form, or if such person is entering into an Online Acceptance or Order Form on behalf of a company or other legal entity, such entity and its affiliates.

“Documentation” shall mean any user manuals, technical guides, training materials, installation instructions, support instructions or other written or electronically stored documentation relating to the CloudNoc Platform or the Services.

“Fees” shall mean any fee or charge set forth in an Order Form or agreed to in an Online Acceptance; provided that, unless otherwise provided in an Order Form, CloudNoc may at any time or from time to time change such fees or charges on not less than thirty (30) days notice, subject to the provisions of Section 5.6 of this Agreement.

“Incidents” are events that require action from the CloudNoc team.

“Intellectual Property Rights” means all rights in and to trade secrets, patents, copyrights, trademarks, service marks, trade names, know-how, or other intellectual property or proprietary rights, current or future, under the laws of any jurisdiction together with all applications therefore and registration thereto.

“Order Form” shall mean a written document signed by Customer and CloudNoc that identifies the Services that Customer has agreed to obtain from CloudNoc and the corresponding Fees for such Services.

“Pay-As-You-Go Account” is an Account with Fees based on server hours, service monitor hours, and incidents.

“Server Hours” are a measurement of a server being monitored, remediated and managed per hour.

“Service Monitor Hours” are a measurement of services (e.g. MySQL, Apache, http) being monitored per server per hour.

“Services” shall mean the services made available by CloudNoc from time to time. The Services available as of the date of this Agreement are set forth in Exhibit A. CloudNoc reserves the right to amend Exhibit A from time to time.

“Subscription Account” means an Account with a specific duration, monthly Fees, or usage based Fees.

“Subscription Period” means the period of time Customer may use the Services as described in an Online Acceptance or an Order Form.

“Third Party Products” means and any third party software, applications, or data which use or are available through the CloudNoc Platform and which require Customer to agree to and comply with a license agreement or terms of service associated with such products or services.

“Update” means any new release, bug fix, workaround, modification, patch, patch bundle or hot fix to the Service. Updates shall not include any option or product which CloudNoc licenses separately or offers for an additional fee, or any upgrade in features, functionality or performance of the Service which CloudNoc licenses separately or offers for an additional fee.

§ 2 – SERVICES

CloudNoc shall make the Services available to Customer pursuant to this Agreement and the terms of the relevant Online Acceptance or Order Form(s) during the applicable Term. Customer understands and agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by CloudNoc or its representatives regarding future functionality or features of the Services. Customer's use of the Services shall also be subject to the Terms of Use available at http://www.CloudNoc.com/terms-of-service and the CloudNoc Privacy Policy available at http://www.CloudNoc.com/privacy-policy, as they may be amended by CloudNoc from time to time.

§ 3 – CUSTOMER RESPONSIBILITIES

3.1 Customer Keys. Customer may elect to provide CloudNoc access to keys, credentials, or passwords (“Keys”) to access Customer’s applications and/or technology infrastructure. By providing CloudNoc any such Keys, Customer authorizes CloudNoc to use those Keys and to access Customer applications and infrastructure for the purpose of providing Services under this Agreement. Customer understands that failure to provide the necessary Keys may result in certain Services being unavailable to Customer.

3.2 Subscription Accounts. Subscription Accounts may be subject to other limitations set forth in the relevant Online Acceptance or Order Form(s), such as limits on servers and support levels.

3.3 Pay-As-You-Go Accounts. Each Pay-As-You-Go account will be subject to the usage Fees and other restrictions set forth on the Online Acceptance(s) or Order Form(s) associated with such Pay-As-You-Go Account.

§ 4 – OWNERSHIP RIGHTS

4.1 Ownership. Customer’s rights in and to the Services and Documentation are solely as set forth in this Section and do not include any rights of ownership. Customer agrees that, as between Customer and CloudNoc, CloudNoc owns all rights, title and interest (including and without limitation all Intellectual Property Rights) in and to the Service and Documentation, and all modifications or improvements thereto, whether or not created by CloudNoc. CloudNoc owns all rights to error reports, corrections, and information learned through any testing. Customer owns all data derived from reports issued by the Service. CloudNoc makes no claims to ownership of any Third Party Software.

4.2 Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Online Acceptance or Order Form(s), (ii) create derivate works based on the Services except as authorized herein, (iii) reverse engineer the Services, or (iv) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services.

4.3 Feedback. CloudNoc shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and Customer’s Authorized Users relating to the Services. Notwithstanding anything to the contrary in this Agreement, CloudNoc also shall be free to use for any purpose the “residuals” resulting from access to or work with the confidential information of Customer, including but not limited to use of “residuals” in development, manufacture, marketing and maintenance of CloudNoc’s own products and services, provided that this use right does not and shall not represent a license to any valid patent, trade secret, or copyright of Customer. The term “residuals” means confidential information in intangible form, which is retained in memory by persons who have had access to the confidential information, including ideas, concepts, know-how, or techniques contained therein.

4.4 Federal Government Use Provisions. CloudNoc provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with CloudNoc to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

§ 5 – TERM & TERMINATION

5.1 Term. The term of this Agreement commences on the Effective Date and continues in full force and effect (unless terminated earlier as provided herein) and will continue for a period of one (1) year (“Initial Term”) from the Effective Date. Following completion of the Initial Term, this Agreement automatically renews for subsequent one (1) year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either Party has terminated this Agreement by giving written notice of termination to the other Party at least sixty (60) days prior to the end of the then-current Term. Customer will provide any such notice of termination to CloudNoc at the following email address: cancel@cloudnoc.com. The pricing applicable during any such Renewal Term shall be the same as that during the prior Term unless CloudNoc has provided Customer written notice of a price increase at least sixty (60) days before the end of such prior Term, in which case the pricing increase shall be effective for the duration of the Renewal Term. Upon termination of this Agreement by Customer or CloudNoc, CloudNoc may retain any payments made to CloudNoc and all unpaid Fees, including Subscription Fees for the remainder of the then-current Term will become immediately due and payable.

5.2 Termination for Payment Default. CloudNoc may suspend Customer’s Services (in whole or in part), and/or terminate this Agreement fifteen (15) days following CloudNoc’s provision of notice to Customer if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to CloudNoc is invalid or charges are refused for such payment mechanism, and Customer fails to cure such payment obligation default or correct such payment mechanism problem within such 15-day period. For the avoidance of doubt, Customer’s payment obligations under this Agreement shall not be suspended or terminated if CloudNoc suspends or terminates this Agreement pursuant to this Section.

5.3 Termination or Suspension for Damage, Compliance with Law. CloudNoc may suspend or terminate Customer’s Services immediately upon written notice in order to: (a) prevent damage to or degradation of, the CloudNoc Platform; (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (c) otherwise protect CloudNoc from potential legal liability. If suspended, CloudNoc will promptly restore use of the Services to Customer as soon as the event giving rise to the suspension has been resolved to CloudNoc’s satisfaction.

5.4 Termination for Breach of License or AUP. CloudNoc has the right to terminate this Agreement immediately upon written notice of (i) Customer’s breach of the license grants and limitations set forth in Section 4, or (ii) Customer’s breach of the AUP.

5.5 Termination for Default. Either party may terminate this Agreement upon thirty (30) days (or fifteen (15) days for nonpayment) written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in a bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

5.6 Termination for Fee Increase. If CloudNoc increases the Fees for any Services, Customer may, within 30 days following delivery of notice of such increase, terminate this Agreement. Such termination shall be Customer's sole remedy for any increase in Fees.

5.7 Effect of Termination. Except for amounts owed to CloudNoc and any termination under 5.2 neither party will incur any liability or compensation obligation whatsoever for any damage (including and without limitation damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other party arising from or relating to any termination of this Agreement pursuant to the terms hereof, whether or not such party is aware of any such loss or expenses. Termination is not the sole remedy and except as otherwise provided herein, all other remedies remain available to each party.

5.8 Survival. The following Sections of this Agreement shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 4 (Ownership Rights), 5.7, 5.8, 6 (Orders, Pricing and Payment Terms), 7 (Limitation of Liability), 8 (Indemnification), 9 (Export Compliance), 13 (Acceptable Use Policy), 14 (Governing Law and Jurisdiction), 15 (Representations and Warranties) and 16 (Miscellaneous).

§ 6 – ORDERS, PRICING AND PAYMENT TERMS

6.1 Fees for Services. The pricing and payment terms for the Services shall be set forth in an Online Acceptance or an Order Form. Customer shall pay all Fees specified in any Online Acceptance or Order Form agreed to by it hereunder in order to obtain Services. Except as otherwise specified herein or in an Online Acceptance or Order Form, (i) Fees are based on Services purchased, (ii) separate usage Fees may apply, (iii) payment obligations are final, non-cancelable, and non-changeable.

6.2 Invoicing and Payment.

  1. Subscription Accounts: Customer will provide CloudNoc with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to CloudNoc. If Customer provides credit card information, Customer thereby authorizes CloudNoc to charge such credit card for all Services listed in the Order Form for the Initial Term and any Renewal Term(s). Charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless specified otherwise on the applicable Order Form, CloudNoc will invoice Customer in advance for all regular recurring Fees, such as subscription Fees, and invoice Customer in arrears for all usage-based Fees and non-recurring Fees. Unless otherwise stated in the Order Form the Fees for Services that involve consultation/training shall be invoiced 50% upon CloudNoc’s acceptance of the Order Form and 50% upon delivery of the Services. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. For Services that are activated in the middle of a calendar month, CloudNoc reserves the right to invoice Customer a pro-rata portion of that month’s Fees taking into account the number of days in the month during which Customer had access to the applicable Service. Customer is responsible for providing complete and accurate billing and contact information to CloudNoc and notifying CloudNoc of any changes to such information.
  2. Pay-As-You-Go Accounts: Customer will provide CloudNoc with valid and updated credit card information. Customer authorizes CloudNoc to charge such credit card for all Services listed in the Order Form during the term of the Pay-Go Account. Charges shall be made in accordance with the billing frequency stated in the Order Form. Unless specified otherwise on the applicable Order Form, CloudNoc will invoice Customer in arrears for all Fees associated with a Pay-Go Account. CloudNoc may change Fees associated with a Pay-Go Account upon thirty (30) days written notice to Customer. Unless otherwise stated in the Order Form the Fees for Services that involve training/consultation shall be invoiced 50% upon CloudNoc’s acceptance of the Order Form and 50% upon delivery of the Services.

6.3 Taxes. Customer is solely responsible for the payment of all taxes (other than taxes based on CloudNoc’s income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to CloudNoc under this Agreement for the delivery or license of Products hereunder. Customer will make all payments of fees to CloudNoc free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to CloudNoc will be Customer’s sole responsibility, and Customer will provide official receipts issued by the appropriate taxing authority, or such other evidence as CloudNoc may reasonably request, to establish that such taxes have been paid. Customer will indemnify and hold CloudNoc harmless for any liability (including penalties and interest) resulting from Customer’s failure to fulfill its responsibilities under this Section.

6.4 Late Payments. Customer shall pay CloudNoc a service charge for all overdue amounts equal to the lesser of 1.5 percent (1.5%), calculated on the aggregate overdue balance, at the end of each month or the maximum amount permitted by law.

§ 7 – LIMITATION OF LIABILITY

7.1 “As-Is” Basis. Customer acknowledges that its use of the CloudNoc Platform and associated services, are provided by CloudNoc on an “as is” and “as available” basis and at Customer’s own risk. CloudNoc disclaims all liability to Customer or its customers that may result from such use, including from any failure or malfunction of CloudNoc’s Platform, including the supporting infrastructure and services provided by third parties, as well as any misuse by Customer’s employees, contractors, or other related third parties.

7.2 Limitation of Liability. In no event will CloudNoc or its licensors be liable for the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, exemplary, punitive or indirect damages under any theory or basis of liability, including contract, tort, negligence, strict liability, breach of warranty (express or implied) or any other theory, even if advised of the possibility of such damages. CloudNoc’s total liability arising out of this Agreement shall be limited to the greater of US $250 or the amount of fees and compensation actually paid by Customer to CloudNoc hereunder during the twelve (12) months prior to the date such claim arises. No action or proceeding arising out of this Agreement may be brought more than two years after the events giving rise thereto.

§ 8 – INDEMNIFICATION

8.1 Indemnification by Customer. Customer shall indemnify, defend and hold CloudNoc, and its officers, directors, employees, representatives, and agents, harmless from and defend against any and all Losses, liabilities, damages, costs, and expenses (including attorneys’ fees, expert witness fees, and court costs) (collectively “Losses”) directly resulting from (i) any Claim made or brought against CloudNoc based upon or caused by any grossly negligent or willfully wrongful acts or omissions by Customer or its Authorized Users (ii) any improper, illegal, or unauthorized use of the CloudNoc Platform or any element thereof by Customer or its Authorized Users, including violation of the Acceptable use policy or (iii) any breach of Customer’s representations, warranties or covenants under this Agreement; and Customer will pay all settlements entered into and damages awarded against such person (including reasonable attorneys’ fees) to the extent based on such action.

8.2 Indemnification by CloudNoc. Provided Customer has paid Fees to CloudNoc for use of the CloudNoc Platform, CloudNoc shall indemnify, defend and hold Customer, its Affiliates, agents, directors, officers, contractors and employees harmless from and against any losses, damages, costs, liabilities and expenses finally awarded by a court of competent jurisdiction, including court costs and reasonable attorney’s fees (collectively, “Losses”), directly resulting from any actual intentional infringement of a third party’s intellectual property. If the CloudNoc Platform becomes, or in CloudNoc’s opinion is likely to become, the subject of an infringement claim, CloudNoc may, at its option and expense, either (i) procure for Customer the right to continue using the CloudNoc Platform, (ii) replace or modify the CloudNoc Platform so that it becomes non-infringing and remains functionally equivalent, or (iii) suspend Customer’s access to all or part of the CloudNoc Platform and give Customer a refund for Fees paid in advance for any Services that thereby becomes unavailable to Customer, less a pro-rata portion of such Fees for the time that Customer has had access to the applicable Services.

8.3 Exceptions. Notwithstanding Section 8.2, CloudNoc will have no obligation to Customer to the extent any claim is caused by (i) the combination, operation or use of any Service that does not comply with the Documentation, the AUP, or when used with other software, hardware or third party equipment not furnished by CloudNoc where the Service otherwise would not itself by infringing; or (ii) the use of other than a current unaltered version or release of Service, provided that such version or release had been available to Customer on commercially reasonable terms.

8.4 Indemnification Procedure. The “Indemnified Party” shall promptly notify the “Indemnifying Party”, in writing, of any Claim. Failure to notify the Indemnifying Party of such Claim shall not relieve the Indemnifying Party of responsibility under this §8, except to the extent such failure adversely prejudices the ability of the Indemnifying Party to defend such Claim. The Indemnifying Party at its expense, with counsel of its own choice, shall defend against, negotiate, settle or otherwise deal with any such Claim, but shall not enter into any settlement or compromise of any Claim which could lead to liability or create any financial or other obligation on the part of the Indemnified Party without the Indemnified Party's prior written consent, such consent not to be unreasonably withheld. The Indemnified Party may participate in the defense of any Claim with counsel of its own choice and at its own expense. The Parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Claims. In the event that the Indemnifying Party does not undertake the defense, compromise or settlement of any Claim, the Indemnified Party shall have the right to control the defense or settlement of such Claim with counsel of its choosing.

§ 9 – EXPORT COMPLIANCE

The Services and other technology made available by CloudNoc and derivatives thereof may be subject to export and import laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit its Authorized Users to access or use any Services in a U.S.- embargoed country or in violation of any export or import law or regulation of any jurisdiction. Customer agrees and expressly warrants that it will not directly or indirectly sell, export, re-export, download, divert or otherwise dispose of the Services in violation of any export laws of the United States or download or transfer (or authorize anyone to download or transfer) the Services to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.

§ 10 – DELAYS AND FORCE MAJEURE

10.1 Customer Delays. Pursuant to the Order Form(s) and/or as agreed by the Parties, Customer acknowledges that CloudNoc will require information, documents, data, records and cooperation from Customer in order to properly perform the Services and that CloudNoc is not responsible for errors, delays or other consequences arising from the failure of Customer to timely and appropriately provide such information, data, records or cooperation.

10.2 Force Majeure. Except for Customer’s payment obligations, noncompliance by a Party with the obligations of this Agreement to the extent that such noncompliance is due to circumstances outside the reasonable control of such Party that prevent performance of such obligations, such as war, civil commotion, destruction of facilities and materials, fire, flood, earthquake or storm, shortage of materials, failure of public utilities or common carriers, labor dispute and any other similar “force majeure” causes beyond the reasonable control of the applicable Party, shall not constitute a breach of contract, provided that such Party is using good faith diligent efforts to perform its obligations to the extent it still is able and to avoid the effects of such circumstances to the extent reasonably possible.

§ 11 – NOTICES

Notices made by CloudNoc under this Agreement for Customer’s Account specifically (e.g. notices of breach and/or suspension, consents, waiver or other communications) will be provided to Customer via email address provided to CloudNoc in Customer’s registration for the CloudNoc Platform or in any updated email address Customer provides to CloudNoc in accordance with standard Account information update procedures CloudNoc may provide from time to time. It is Customer’s responsibility to keep the email address current and Customer will be deemed to have received any email sent to any such email address, upon CloudNoc sending of the email, whether or not Customer actually receives the email. The date any such notice shall be the date sent via electronic means. Except as set forth in Section 5, notices made by Customer to CloudNoc under this Agreement may be sent to: customercare@cloudnoc.com.

§ 12 – SUCCESSORS; ASSIGNMENT

12.1 Assignment. Neither Party shall have the right to assign or transfer without the prior written consent of the other Party, such consent not to be unreasonably withheld; provided, however, that either CloudNoc or Customer may assign or transfer this Agreement without such consent of the other Party to its Affiliate or to its successor-in-interest to all or substantially all of the ownerships interest or business assets of such Party whether in a merger, sale of stock, sale of assets or other similar transaction; provided, however that any permitted successor or assignee of this Agreement and the rights and/or obligations hereunder, expressly assumes in writing this Agreement. “Affiliate” shall mean a company or other entity controlled by, under the control of or in common control with a Party. If such writing is not received, or if a purported assignment is not to an entity as permitted above, any such purported assignment or transfer need not be recognized and shall be null and void.

12.2 Permitted Assignments. In connection with any permitted assignment by Customer for which consent is not required pursuant to Section 12.1 above, Customer shall have the right to merge and/or transfer an Account established by Customer hereunder to the assignee’s Account, and at its option terminate this Agreement, but only upon making the following payments to CloudNoc:

  1. Subscription Account: 100% of the monthly subscription Fee multiplied by any remaining months of the Initial Term; and

  2. Usage Fees: 80% of the average usage-based Fees billed to Customer in the three (3) calendar months preceding the termination date, multiplied by any remaining months of the Initial Term;

12.3 Effect of Assignment. Any attempted assignment or Account transfer without the required consent or payment required in this Section 12 is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successor and permitted assigns.

§ 13 – ACCEPTABLE USE POLICY

Customer shall comply with the then current CloudNoc’s Acceptable Use Policy (“AUP”). The current version of the AUP is:

13.1 Update to AUP. CloudNoc Reserves the right to modify this AUP at any time, by notifying Customer either via e-mail or posting a revised copy of the AUP on our website (www.cloudnoc.com). Customer agrees to review this AUP on a regular basis and remain in compliance at all times.

13.2 Compliance. This AUP is intended to protect the Service, Customers of CloudNoc and the Internet community as a whole from improper, inappropriate, abusive, or illegal activity. When using the Service, Customer is required to comply with this AUP and is expected to adhere to commonly accepted practices of the Internet community. The prohibited uses described below are intended as guidelines regarding improper and inappropriate conduct, and should not be interpreted as an exhaustive list. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this AUP is prohibited. CloudNoc reserves the right at all times to prohibit activities that damage its commercial interests, reputation and goodwill.

CloudNoc makes no guarantee regarding, and assumes no liability for, the security and integrity of any data or information Customer store or transmit via the Service or the Internet, including any data or information stored or transmitted by any computer designated as “secure”. Customer is responsible for immediately reporting to CloudNoc any issue that could compromise the security or integrity of any system taking part in the Service

13.3 Prohibited Uses.

  1. No Illegal Use. The Service may be used only for lawful purposes. The transmission, distribution, retrieval or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, data or other material which:

    1. Infringes, violates or misappropriates any copyright, trademark, trade secret or other intellectual property right;

    2. Is obscene, defamatory, pornographic or indecent;

    3. Constitutes an illegal threat made against any person or organization; or

    4. Violates export control laws or regulations.

    CloudNoc will be the sole arbiter as to what constitutes a violation of this provision, provided that any determination of a violation of this provision shall be made reasonably in good faith based on applicable law, regulation and the accepted norms of the Internet community.

  2. No Fraud and Forgery. Customer shall not use the Service in any manner that purposely alters or forges Customer’s identity. Customer may not engage, without limitation, in the following activities:

    1. Sending any message or transmitting any electronic communication using a name or address other than its own for purposes of deception;

    2. Impersonating someone else by altering its source IP address or by using forged headers or other identity information; or

    3. Fraudulently concealing, forging or otherwise falsifying its identity in connection with any use of the Service.

  3. System and Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following:

    1. Unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic;

    2. Using the Service to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of CloudNoc’s or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data;

    3. Interference with Service to any customer, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks, forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting;

    4. Using the Service to collect, or attempt to collect personal information about third parties without their consent; or

    5. Using the Service to release or distribute any “virus” or other software or instructions intended to destroy or corrupt or otherwise interfere with others’ access to and/or use of the Services, the Internet, their computer systems and/or data.

  4. No Tortious Conduct. Customer shall not use the Service to post tortious, unlawful or defamatory information about a person without their consent, including any information that is harassing or would intentionally inflict emotional distress.

  5. No Spamming. Customer shall not use the Service to send unsolicited messages, including, without limitation, commercial advertising and informational announcements or sending mass e-mailings, if such e-mailings provoke complaints from the recipients and Customer shall not use another site's mail server to relay mail without the express permission of the site.

  6. Other Activities. Customer shall not use the Service to effect or participate in any of the following activities:

    1. To post to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles, which are off-topic according to the charter or other owner-published FAQ or description of the group or list;

    2. To engage in any of the foregoing activities prohibited under this AUP using the service of another provider, but channeling such activities through a CloudNoc provided server, or using a CloudNoc provided Service as a mail drop for responses; or

    3. To falsify user information provided to CloudNoc or to other users of the Service.

13.4 Consequences of Violation. In addition to any other rights or remedies under applicable law:

  1. Suspension and Termination. If CloudNoc reasonably determines that the Customer’s activities violate this AUP or pose a clear, present and material risk of harm to CloudNoc’s business or operations or to CloudNoc’s other customers, CloudNoc may immediately, without prior notice to Customer, take all actions to suspend or otherwise restrict Customer’s use of the Service to the extent necessary to prevent further possible unauthorized activity. Within one hour of taking any action to suspend or restrict a Customer's use of the affected Service, CloudNoc shall use commercially reasonable efforts to provide written notice to Customer by facsimile or e-mail stating the actions taken and all facts supporting any allegation of violations of this AUP. Following completion of the investigation, and delivery to CloudNoc of a written report setting forth the details and conclusion of such investigation, depending on the severity of the violation, CloudNoc may, in its sole discretion, in addition to any other remedies available to under law or its agreement with a Customer, restrict, suspend, or terminate the Service. CloudNoc will have no liability to Customer for any such suspension or termination, and CloudNoc shall have no obligation to refund or issue any credits (including any service credits) for any outages incurred through Service disablement resulting from an AUP violation.

  2. Reporting. If CloudNoc becomes aware that such violation is a criminal offense, CloudNoc reserves the right to notify the appropriate law enforcement department of such violation. All CloudNoc contacts with any third party, including, without limitation, law enforcement, shall be in accordance with applicable law and regulation, including, but not limited to, law and regulation governing the privacy of information as applicable to CloudNoc’s provision of its Service to its Customers.

13.5 Reporting Network Abuse. Any party seeking to report any violations of CloudNoc’s policies may contact CloudNoc by sending an email to: emailabuse@cloudnoc.com. If available, please provide the following information: 1) The IP address, username or other identifying information used to commit the alleged infraction; 2) The date and time of the alleged violation, including the time zone or offset from GMT; and 3) Evidence of the alleged violation.

§ 14 – GOVERNING LAW AND JURISDICTION

This Agreement shall be governed, interpreted and construed in accordance with the law of the State of California without application of conflict law principles. Each of the Parties hereto consents to the exclusive jurisdiction and venue of the federal and state courts located in the State of California, as applicable with respect to any matter relating to this Agreement and performance of the Parties’ respective obligations hereunder, and each Party hereto consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction. The prevailing party in any dispute hereunder shall be entitled to recover from the other party its costs, expenses, and reasonable attorneys’ fees (including any fees for expert witnesses, paralegals, in-house counsel, or other legal service providers).

§ 15 – REPRESENTATIONS AND WARRANTIES

15.1. Representations and Warranties of CloudNoc. CloudNoc represents and warrants that:

  1. the execution, delivery and performance of this Agreement by CloudNoc and the transactions(s) contemplated hereby has been duly authorized by all requisite corporate action; that this Agreement constitutes the legal, valid and binding obligation of CloudNoc, enforceable in accordance with its terms (except to the extent enforcement is limited by bankruptcy, insolvency, reorganization or other laws affecting creditor’s rights generally and by general principles of equity); and that this Agreement and performance hereunder does not violate or constitute a breach under any organizational document of CloudNoc, or any contract, other form of agreement, or judgment or order to which CloudNoc is a party or by which it is bound;

  2. in performing Services, CloudNoc shall comply strictly with the terms of this Agreement and all applicable laws, including all federal and state laws and regulations; and

  3. it is not a party to an agreement which would prevent it from fulfilling its obligations under this Agreement and that during the Term of this Agreement, it will not enter into any other agreement to provide services which would in any way prevent it from performing the Services under this Agreement in the manner contemplated by this Agreement.

To the extent allowed by applicable law, no other warranties are made by CloudNoc, either express or implied, including the implied warranties of merchantability and fitness for a particular purpose.

15.2 Representations and Warranties of Customer. Customer represents and warrants that:

  1. the execution, delivery and performance of this agreement by Customer and the transaction(s) contemplated hereby has been duly authorized by all requisite corporate action; that the Agreement constitutes the legal, valid and binding obligation of Customer, enforceable in accordance with its terms (except to the extent enforcement is limited by bankruptcy, insolvency, reorganization or other laws affecting creditor’s rights generally and by general principles of equity); and that this Agreement and performance hereunder does not violate or constitute a breach under any organizational document of Customer, or any contract, other form of agreement, or judgment or order to which Customer is a party or by which it is bound;

  2. Customer shall use reasonable efforts to ensure all content (product or otherwise), materials, documentation and information provided by it to CloudNoc are, to the best of Customer’s knowledge, in compliance with all applicable laws, and do not and will not infringe any third party intellectual property or product marketing rights; and

  3. it is not a party to any agreement which would prevent it from fulfilling its obligations under this Agreement.

15.3 Disclaimer of Warranties. Except as expressively provided herein, CloudNoc makes no other warranties and disclaims all other warranties, express or implied, as to its performance under this agreement, including without limitations, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. CloudNoc does not warrant that use of the Services, any deliverables, the CloudNoc Platform, or any other product or service made available in connection with the CloudNoc Platform will be uninterrupted or error free, that defects can or will be corrected, or that the Services, deliverables, CloudNoc Platform, or any other product or service made available in connection with the CloudNoc Platform is or will be free from viruses or other harmful components, or that the Services’ functionality will meet Customer’s requirements. No warranty is provided for Third Party Software, which is only provided “as-is”.

§ 16 – MISCELLANEOUS

16.1 Entire Agreement; Waivers. This Agreement, together with the Online Acceptance(s), Order Form(s) and Exhibits, contains the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersedes any prior oral or written communications or arrangements between the Parties. No modification, extension, change or release to this Agreement may be effected except as specifically described in a written amendment or extension signed by both of the Parties. Notwithstanding the foregoing, CloudNoc may add to or modify the terms of this Agreement by providing notice to Customer, which notice may be electronic (including email or within the Services). However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Online Acceptance or Order Form, the terms of such exhibit, addendum or Online Acceptance or Order Form shall prevail. A waiver of any breach under this Agreement does not constitute a waiver of any other breach or future breach. Notwithstanding any language to the contrary therein no terms or conditions stated in a purchase order or other order documentation submitted by Customer (excluding Order Forms agreed to by CloudNoc) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

16.2 Severability. Any term or provision of this Agreement held by a court of competent jurisdiction to be unenforceable as written shall be deemed modified so as to be enforceable, or, if necessary, deemed deleted from this Agreement. All other clauses, sections or parts of this Agreement which can be effected without such term or provision shall remain in full force and effect and shall in no way be affected or impaired.

16.3 Execution. This Agreement may be agreed to in more than one counterpart, each of which shall constitute one and the same instrument. The parties agree that execution may be achieved in any format convenient to the Parties. Customer will express affirmative acceptance of this Agreement’s terms and conditions by clicking on an Online Acceptance or executing an Order Form.

16.4 Headings. The sections headings contained in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement.

16.5 Public Announcements and Publicity.

(a) Joint press release With Customer’s consent, CloudNoc may issue a press release announcing the relationship within sixty (60) calendar days of the Effective Date. Such consent shall not be unreasonable withheld.

(b) Trademarks Either Party may, in connection with its general marketing materials and without the consent of the other Party, list the name of the other Party in a non-descriptive fashion, in a list of the names of other similarly situated third parties that such Party does business with, and include the Other party’s appropriate logos, designations, trademarks, trade names, service marks, trade dress and logos, in accordance with Customer’s then-current published guidelines.

(c) No Challenge At no time during or after the term of this Agreement will customer challenge or assist others to challenge CloudNoc's trademarks or trade names, or the registration thereof, or attempt to register any trademarks, marks, or trade names confusingly similar to those of CloudNoc.

16.6 No Partnership Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between CloudNoc and Customer.

16.7 Expenses. Except as otherwise expressly provided in this Agreement, each Party shall pay its own expenses and costs incidental to the preparation of this Agreement and to the consummation of the transactions contemplated by this Agreement.

16.8 Drafter. This Agreement shall not be construed against either Party as the drafter of this Agreement.

EXHIBIT A

SERVICES

As of December 28, 2012, the available Services are as set forth below. The actual Services to be provided to Customer shall be set forth in the Online Acceptance or Order Form agreed to by Customer and CloudNoc.

Monitoring Service:

• Server monitoring

• Site monitoring

• Service monitoring

• Custom alerting

• Uptime and SLA reporting

• Engineers available for in person escalation

• Custom escalation procedures

Remediation Service:

• Server monitoring

• Site monitoring

• Service monitoring

• Custom alerting

• Uptime and SLA reporting

• Engineers available for in person escalation

• Custom escalation procedures

• Problem diagnostics

• Problem remediation

• Vendor and partner collaboration

• War-room conferencing

Management Service:

• Server monitoring

• Site monitoring

• Service monitoring

• Custom alerting

• Uptime and SLA reporting

• Engineers available for in person escalation

• Custom escalation procedures

• Problem diagnostics

• Problem remediation

• Vendor and partner collaboration

• War-room conferencing

• Expert day-to-day infrastructure management

• Dedicated team of engineers

• Capacity planning

• Security engineering

• Backups and disaster recovery

• Configuration and patch management

• Install and configure packaged software

• Deploy custom applications