SERVICES, THE CUSTOMER AGREES THAT (1) CUSTOMER HAS ACCEPTED TH E MSA IN ITS ENTIRETY, (2) AGREES TO BE BOUND BY THE MSA (AS
AMENDED FROM TIME TO TIME AS PROVIDED IN SECTION 19.1 OF THE TE RMS OF SERVICE ), (3) IF THE CUSTOMER IS AN INDIVIDUAL, THEN THE
INDIVIDUAL REPRESENTS AND WARRANTS THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THE MSA AND IF THE CUSTOMER IS AN ENTITY,
THEN THE INDIVIDUAL WHO AGREES TO THE MSA REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY
AND (4) THIS MSA CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN DRUNDO AND CUSTOMER. IF THE CUSTOMER DOES
NOT AGREE WITH ALL THE TERMS OF THIS MSA AND DOES NOT AGREE TO BE BOUND BY THIS MSA, PLEASE DO NOT CLICK OR CHECK THE BOX
PRESENTED WITH THE MSA OR INSTALL OR USE THE SERVICES.
Terms of Service (“TOS”)
“Account Information” means billing informat ion, contact information, payment information and such other information defined as “Account Information” in the Customer Portal.
“Affiliate” means any legal entity that a party controls, that c ontrols a party, or that is under common control with a party. For purposes of this definition, “control” shall mean beneficial ownership of the securities entitled to vote in the election of directors (or, in the case of a n entity that is not a corporation, of the election of the corresponding management authority) in the entity of (i) more than fifty percent (50%) of the securities or (ii) such lesser percentage of securities as is the maximum ownership permitted in the country where the entity exists.
“Anniversary Billing Date” means the date of t he month of the Effective Date except as provided in this definition. For example , if the Effective Date is May 20, 2008, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month (i.e. if the Anniversary Billing Date is the 30th, then in February, the Anniversary Billing Date shall be ei ther February 28 or 29, depending on the year).
“AUP” means the Acceptable Use Policy which is located at www.drundo.com/about/legal (or such other location as Drundo may designate from time to time).
“Customer” means the individual or entity who agrees to the terms of the MSA by clicking or checking the box presented with the MSA, installing and/or using the Services.
“Customer Content” means all data, software and information, including, without limitation, data text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Affiliates.
“Customer End User” means a Third Party which is an end user of a Customer Offering.
“Customer Offering” means services created by Customer based in w hole or in part on the Services which are used by Third Parties.
“Customer Portal” means the portal at https://manage.drundo.com (or such other location as Drundo may designate from time to time) or the Drundo Application Programming Interface.
“Effective Date” means the date on which the Customer accepts the MSA by clicking or checking the box presented with the MSA, i nstalling and/or using the Services.
“Feedback” means any and all suggestion, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to Drundo either directly or indirectly via a Drundo-controlled web site.
“Flow-Through Provisions” mean the terms of agreements for services provided by Third Parties which are included in the MSA as required by providers of Third Party Services. The Flow-Through Provisions apply only to the relevant services provided by Third Parties. Such services provided by Third Parties are part of the Services and are subject to the terms of the MSA as well as the Flow-Through Provisions.
“Hourly Services” means the Services that Drundo offers on an hourly basis.
“Initial Term” means the period commencing on the Effective Date until the next Annive rsary Billing Date, unless terminated as provided in Section 16.
“IP Address Policy” means the policy governing the use and provision of any IP Addresses which is located at www.drundo.com/ about/legal (or such other location as Drundo may designate from time to time).
“MSA” has the meaning set forth in the recitals.
“Order” means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the Customer Portal or such other method designated by So ftLayer from time to time. Orders do not apply to Third Party Services. “PII” means information that can be used to identify, contact, or locate a single person or that can be used with other sources to uniquely identify a single individual.
“Privacy Agreement” means the terms governing the use of PII which is located at www.drundo.com/about/legal (or such other l ocation as Drundo may designate from time to time).
“Private Network” means the term as described in the AUP.
“Public Network” means the term as described in the AUP.
“Renewal Term” means the period commencing after the last day of the Initial Term or the Renewal Term and extending until the n ext Anniversary Billing Date unless terminated as provided in Section 16.
“Services” has the meaning set forth in the recitals.
“Service Level Agreement” means the Service Level Agreement which is located at www.Drundo.com/about/legal (or such other location as Drundo may designate from time to time).
“Site” means www.drundo.com (or such other location as Drundo may designate from time to time).
“SLA Credits” mean the credits for applicable qualifying serv ice downtown as described in the Service Level Agreement.
“Drundo” has the meaning set forth in the recitals.
“Term” means the term as set forth in Section 16.
“Third Party” means an individual or an entity which is not a Customer, Drundo, an Affiliate of Drundo or an Affiliate of Customer.
“Third Party Services” mean services which are provided by Third Parties directly to Customer. The definition of Services does not include Third Party Services.
”TOS” means the terms of service for the Services.
“TPS Agreements” mean agreements for Third Party Services which are directly between the Customer and the provider of the Third Party Services. These agreements are separate and independent from the MSA and So ftLayer is not a party to these agreements.
2. DRUNDO’S OBLIGATIONS.
2.1 Provision of Services. Contingent on Drundo’s acceptance of an Order and subject to the terms of the MSA, Drundo agrees to use reasonable commercial efforts to provide the Services subject to the terms of Service Level Agreements. Drundo retains the right to rej ect the request for Services by any individual or entity in its sole discretion. Drundo may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be d eemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and Drundo is not responsible for the provision of Third Party Services.
2.2 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Servi ces on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to orde r Services and be bound to this MSA.
3.1 Collection of PII. The collection and use of PII is governed by the Privacy Agreement.
4. USE OF AND ACCESS TO THE SERVICES.
4.1 Ordering and Modification of Services. Customer may order Services and all upgrades to such Services through the Customer Portal or as otherwise designated by Drundo. Drundo may accept such Orders in its discretion and shall give notice to Customer of acceptance of such Order through the Customer Portal. For downgrades or cancellation of Services, Drundo requires a written cancellation notice by cancellation ticket in accordance with the procedures in the Customer Portal and through the Customer Portal a minimum of 24 hours prior to 00:00:01 EST (GMT-4) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required 24 hours written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 24 hour period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
4.2 Rights to Use Services. Subject to the terms and conditions of this MSA (including the Term), Drundo grants Customer a non-exclusive, non-transferable, non-sublicenseable (except to the extent required to exercise rights under Section 4.2(b)), revocable right in th e Services solely to:
(a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide the Customer Offer ings.
4.4 Special Terms for Third Party Services. To the extent Customer orders Third Party Services under TPS Agreements, Drundo is not responsible for such Third Party Services and the provider of the Third Party Service is solely responsible for providing such Third Party Services. However, the Customer also agrees that the following terms of the TOS apply to such Third Party Services: Sections 8, 9, 10, 11, 15 and 16.
Drundo.comTerms of Service (“TOS”) – PAYMENT
5.1 Fees: All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgr ade of Services and through the use of SLA Credits. The fees for additional or upgr aded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one time pro-rata charge on the next Anniversary Billing Date. Such fees will be due for the following Renewal Terms until cancelled as provided in Section 4.1.
5.2 Additional Service Fees/Hourly Service Fees/One Time Fees: For fees for additional services such as CDN overages, bandwidth use overages, backup overages and VMWare use (including archive storage), payment shall be due on the next Anniversary Billing Date. For Orders for Hourly Services, Customer shall specify the period of time for which the Hourly Services are requested in minimum increments of one hour and payment shall be due on the next Anniversary Billing Date. One time fees, such as setup fees, bandwidth, storage, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by Drundo through the Customer Portal.
5.3 Payment Methods: The payment shall be made by the credit card maintained on file with Drundo, automatic file transfer or such other method as approved by Drundo. For methods such as credit card, the payment of fees shall be automatic on the due date.
5.4 Taxes: All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equi valent taxes imposed on the supply of Services. Any sales, use , levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for Services made under this MSA, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide Drundo with an official receipt for any such taxes withheld and must notify Drundo prior to payment that withholding tax is required to be paid and Customer shall pay to Drundo any additional amount to ensure that Drundo receives the full amount of the invoice. If Drundo has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropri ate amount shall be charged to and paid by Customer in addition to the amount of th e invoice, unless Customer provides Drundo with a valid tax e xemption certificate
authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax author ity to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
5.5 SLA Credits: SLA Credits, if issued to Customer’s account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the MSA.
5.6 Additional Fees. The Customer’s failure to pay any fees on the due date shall result in incurring a late fee of $20. If Drundo has suspended the Customer’s access to the Services over the Public Network as provided in Section 15, the Customer shall incur a $50 reconnection fee. Such fees shall be due upon receipt, and Drundo will not reconnect any Se rvices to the Customer until full payment of such fees.
5.7 Refunds & Disputes: All fees paid for Services to Drundo are non-refundable. If the Customer believes that the bills are in error, the Customer’s sole and exclusive remedy is to seek SLA credits through the Customer Portal by opening an accounting ticket to give notice to Drundo within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with Section 5.7 within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to Drundo and any such chargeback will result in an additional payment to Drundo of up to $500 which is a reasonable estimate of Drundo’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Drundo in enforcing collection of fees.
6. OWNERSHIP OF SITE:
Customer hereby acknowledges and agrees that Drundo (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by Drundo, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and Drundo, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content (except for any Customer Content), and the domain names,
trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Drundo or its licensors.
7. SECURITY: Drundo agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup (unless Customer has purchased Drundo’s data backup services) of the Customer Content. Drundo will take commercially reasonable steps to maintain the confidentiality of the Customer Content in performing data backup services. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
8. INDEMNIFICATION BY CUSTOMER: Customer hereby agrees to indemnify, defend and hold harmless Drundo and its parents, Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the “Drundo Parties”) (Drundo and each of the Drundo Parties an “Indemnified Party”), from and against any and all liability (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged claim (“Claim”) arising out of: (a) Customer’s use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any breach or alleged breach by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged in fringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by Drundo prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Drundo or any Drundo Party without the prior written consent of Drundo and/or the applicable Drundo Party(s). Customer and Customer’s counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Drundo or the Drundo Parties in the defense or settlement of any such matter.
9. DISCLAIMER OF WARRANTIES: EXCEPT AS REQUIRED BY LAW CUSTOMER’S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY DRUNDO “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. Drundo; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SER VICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS AND CUSTOMER END USERS’ USE OF THE SERVICES.
10. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL Drundo BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF Drundo HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW Drundo WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, Drundo IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, Drundo’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO Drundo’S LIABILITY.
12. ALLOCATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH Drundo WOULD NOT HAVE ENTERED INTO THIS MSA. DRUNDO’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
13. ARBITRATION: Any controversy or claim arising from the Services or related to this MSA or breach thereof shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The number of arbitrators shall be one, and such arbi trator shall be an independent third party mutually agreeable to the Parties. The venue and jurisdiction requirements set forth below apply to any arbitration proceedings. Arbitration shall be final and binding upon the parties and shall be the exclusive remedy for all claims covered by this arbitration provision. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this MSA, to enforce an arbitration award or to obtain temporary in junctive relief pending a judgment based on the arbitration award. Notwit hstanding the provisions of this Section 13, Customer acknowledges that Customer’s breach of Sections 4.2,4.3 or violation of any terms and conditions of the AUP would cause irreparable injury to Drundo and agrees that in the even t of any such breach, Drundo shall be entitled to seek temporary and preliminary injunctive relief, to the extent allowed under the rules of the American Ar bitration Association, without the necessity of proving actual damages or posting any bond or other security.
14. TRADEMARKS. Customer hereby grants to Drundo a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Customer’s trademarks, marks, logos or trade names in connection with Drundo’s provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by Drundo or its designees. The license granted in this Section 14 will include the right of Drundo to sublicense its Affiliates and any Third Parties providing all or part of the Se rvices on behalf of Drundo to achieve the foregoing.
15.1 Suspension. Drundo may suspend provision of Services to Customer wit hout liability if: (i) Drundo reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer does not cooperate with Drundo’s investigation of any suspected violation of the MSA or any applicable law, co urt order, rule or regulation in any jurisdiction; (iii) Drundo reasonably believes that Services provided to Customer have been accessed or ma nipulated by a Third Party without Customer’s consent or in violation of the MSA; (iv) Drundo reasonably believes that suspension of the Services is necessary to protect Drundo’s network or other Drundo customers; (v) a payment for the Services is overdue by more than 5 days including the Anniversary Billing Date (and in addition, Drundo may, in Drundo’s sole discretion, continue to make the Services available through the Public Network and may suspend such access to the Private Network if the fees are not paid within 7 days of the due date); (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other Drundo customer, (vii) Drundo reasonably believes that the use of the Services by Customer may subject Drundo, its Affiliates, or any Third Party to liability; or (viii) suspension is required by law, statute, regulation, rule or court order. Drundo will give Customer reasonable advance notice of a suspension under this paragraph an d a chance to cure the grounds on which the suspension are based, unless Drundo determines, in Drundo’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Drundo or its other customers from operational, security, or other risk or the suspension
is ordered by a court or other judicial body . A violation of the Flow-Through Provision shall be treated the same as a violatio n of the MSA for this provision. If Drundo suspends the Customer’s right to access or use any portion or all of the Service:
a. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;
b. Customer remains responsible for any applicable fees and char ges for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
c. Customer will not be entitled to any SLA Credits under the Service Level Agreement for any period of suspension; and
d. at Drundo’s sole discretion, Drundo may terminate Customer’s access to Customer Content stored in the Services during a suspension, and Drundo shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
16.1 Term. Except in the case of Hourly Services which are provided based on the number of hours in the Order or as otherwise agreed to b y the parties in writing, the term shall commence on the Effective Date and is automatically renewed each Anniversary Billing Date until term inated as provided below.
16.2 Termination for Convenience. Customer may terminate the MSA for convenience at any time as provided in Section 4.1 through the Customer Portal. If Customer terminates this MSA for convenience, Customer shall pay Drundo all amounts that would be due within 5 days after such termination. Drundo may terminate the MSA for convenience upon providing Customer with notice of non-renewal at least 10 day s prior to the expiration of the Initial Term or any Renewal Term.
16.3 Termination for Breach. Drundo may terminate the MSA immediately upon notice provided through the Customer Portal if: (i) Drundo discovers that the information Customer provided to Drundo about Customer’s proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the MSA, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting th e Order for Customer did not have the legal right or authority to enter into the MSA, install or accept Services on behalf of the person represented to be the Customer;
(iii) Customer payment of any invoiced amount is overdue, an d Customer does not pay the undisputed overdue amount within 5 days of the due date;
(iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this MSA and fails to remedy any violation within 5 days of Drundo’s written notice; (v) Customer or Cust omer End User violates the AUP; (vi) Customer’s account has be en suspended for 30 days or more; (vii) Customer has multiple violations of the MSA; or (viii) Customer fails to comply with any other provision of this MSA and does not remedy the failure within 30 days of Drundo notice to Customer describing the failure. Drundo will give Customer writ ten notice of termination under this paragraph unless Drundo determines, in Drundo’s reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect Drundo or its other customers from operational, security, or other risks. A breach of the Flow-Through Provision shall be deemed to be a breach of the MSA.
16.4 Access to Customer Content. The deletion of Customer Content is automatic upon term ination or expiration of the MSA. Consequently, unless Drundo determines otherwise, Customer will not have access to Customer Content, and Drundo may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this MSA.
16.5 Effect of Termination. Upon expiration or termination of the MSA, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by Drundo and any other materials provided to Customer by Drundo in conne ction with the Services, including pointing the DNS for Customer domain name(s) away from the Services. Drundo will have no obligation to provide any transition services or access to data except as expressly stated in Section 16.4 above.
17. U.S. GOVERNMENT CUSTOMERS AND U.S. GOVERNMENT RIGHTS. Drundo provides the Services for ultimate federal government end use solely in accordance with the following license rights to use, modify, reproduce, release, perform, display, or disclose: Government technical data and software rights related to the Services include only those rights customarily provid ed to the public as defined in this MSA. This customary commercial license is provided in accordance with the Federal Acquisition Regulation (“FAR”) at 48 C.F.R. 12.211 (Technical Data) and FAR 12.212 (Software) for c ivilian agencies of the federal government, and, for Department of Defense transactions, the Defense Federal Acquisition Regulation Supplement (“DFARS” ) at 48 C.F.R. 252.227-7015 (Technical Data – Commercial Items), 48 C.F.R. 227.7202-3 (Rights in Commercial Computer Software or Computer Software Doc umentation). This U.S. Government Rights clause, consistent with 48 C.F.R. 12.211, 48 C.F. R. 27.212 (federal civilian agencies) or 48 C.F.R. 227.7202-4 (DoD agencies) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in computer software, computer software documentation or technical data related to the Drundo Commercial Computer Software and Commercial Computer Software Documentation licensed under this MSA or in any contract or subcontract under which this Drundo Commercial Computer Software and Commercia l Computer Software Documentation is acquired or licensed. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Drundo 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 writing and agreed to by Drundo in any applicable contract or agreement
18. THIRD PARTIES. Unless otherwise agreed, Drundo will provide support only to Customer, not to Customer End User, Customer Affiliate, Third Party or Third Party Affiliate to whom Customer provides access to use the Services or the Customer Offering. There are no Third Party beneficiaries to the Agreement, meaning that Third Parties do not have any rights against either Drundo or Customer under the MSA.
19.1 Changes to the MSA. As noted in the recitals, Drundo may modify the terms and conditions of this MSA as provided below. Drundo will notify its Customers through the Customer Portal of any such modifications and all modifications shall be effective upon their posting on the Customer Portal. It is the Customer’s responsibility to review the Customer Portal for such modifications on a frequent basis If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requeste d by Customer to any of the terms of the MSA must be approved in writing by Drundo.
19.2 Certain Employment Issues. If Customer’s employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against Drundo under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify Drundo from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with Drundo’s standard generally-applicable policy.
19.3 Notices. Customer communications regarding the Services should be sent through the Customer Portal except for the following types of no tices: for breach, indemnification, or other non-routine legal matters, Customer should send it by electronic mail and first-class United States mail to:
Drundo Software, Inc.
C/O Legal Department
711 Atlantic Ave, Ste 200, Boston MA 02111
Drundo’s communications regarding the Services and legal notices will be sent through the Customer Portal. Notices are deeme d received as of the time delivered. Notices must be given in the English language.
19.4 Export Matters. If Customer chooses to use these Services, Customer does so on its own initiative and is responsible for compliance with applicable laws. Customer agrees to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Cust omer’s use of these Services and to not, in violation of any laws, transfer, or authorize the transfer, of any Services (a) into any U.S. and/or U.N. embargoed countries or (b) to anyone on the U.S. Treasury Department’s List of Sp ecially Designated Nationals or the U.S. Commerce Department’s T able of Denial Orders or Entity List of pr oliferation concern, or the U.S. State Department’s Debarred Parties List. By using these Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to t he Part 740 of the United States Export Administration Regulations. Customer assumes
responsibility for compliance with laws and regulations applicable to export, re-export or import of products, technology or te chnical data provided hereunder and for obtaining required export and import authorizations. Customer will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations (“ITAR Data”) or other applicable laws unless Drundo has agreed to the transfer and (i) Customer has provided Drundo not less than 10 days’ prior written notice that ITAR Data will be transferred to or through the Services, (ii) Customer has received prior written aut horization from the U.S. Government to transfer the ITAR Data to Drundo, and (iii) Customer agrees to provide Drundo with all necessary assistance to enable Drundo to obtain such U.S. Government permissio n. Customer is responsible, and will reimburse Drundo, for all costs, expenses or damages incurred by Drundo in connection with Customer transfer of ITAR Data.
19.5 Assignment/Subcontractors. Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without Drundo’s prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. Drundo may assign the MSA to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of Drundo to such entity and such entity agrees in writing to be bound by the terms of the MSA. Th is MSA will be binding on and inure to the benefit of Customer’ s and Drundo’s respective permitted successors and permitted assigns. However, Drundo may use Third Parties or Affiliates to provide all or part of the Services. This provision does not apply to the Third Party Services which are governed by separate agreements.
19.6 Force Majeure. Except for its rights in Sections 15 or 16, neither Drundo nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry; provided however if the force majeure event continues beyond thirty (30) days, the performing party may terminate the MSA.
19.7 Feedback. Drundo shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to Drundo all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide Drundo with any assistance Drundo may require to document, perfect, and maintain Drundo’s rights in the Feedback.
19.8 Governing Law, Lawsuits. The MSA is governed by the laws of the State of Texas, exclusive of any Texas choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The applic ation to the MSA of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the MSA shall be in the state or federal courts in Dallas County, Texas, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
19.9 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bi nd the other on any agreement with a Third Party.
19.10 No Waiver. Drundo’s failure to exercise or delay in exercising any of its rights under this MSA will not constitute a waiver, forfeiture, or modification of such rights. Drundo’s waiver of any right under this MSA will not constitute a waiver of any other right under this Agree ment or of the same right on another occasion. Drundo’s waiver of any right under this MSA must be in writing.
19.11 Survival. All provisions that by their nature are intended to survive expiration or termination of the MSA shall survive expiration or te rmination of the MSA.
19.13 Severability. If any part of this MSA is found unenforceable by a court or other tribunal, the rest of the MSA will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this MSA.
19.14 Language. The official language of the MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.
The SLA is incorporated into the MSA and applicable to all Services delivered to Customers. This SLA does not apply to the avai lability of Third Party Services which are subject to the TPS Agreements. The SLA is binding only on the Customer and Drundo and does apply to any Third Parties, including Customer End Users. The issuance of SLA Credits (defined below) is the sole and exclusive remedy of Customer and Drundo’s sole and exclusive obligation, for any failure by Drundo to satisfy the requirements set forth in the SLA.
1. Support Requests: Drundo live support will be available 24 hours per day, 7 days per week, year round. You may request support by opening a support ticket via https://manage.drundo.com or by calling your account team.
2. Response Times: We will respond to your support requests made via ticket or telephone within the following time frames:
a. MONITORING RESPONSES: server and service down alerts will be acknowledged within 15 minutes;
b. TICKET RESPONSIVENESS: Custom erquestions made in tickets will be acknowledged within 12 hours. Resolution times are dependent on the particular circumstances and are not guaranteed;
c. RESTORE REQUESTS: Customer restore requests will begin within 5 hours provided that the destination location is available and the requested data is available in the backup repository. We will respond to you via support ticket, telephone call, or both depend ing upon the severity of the situation and consistent with any procedures we have established with you for your account.
3. Remedy: If we fail to meet the response time commitments stated in this “Support” section, you are entitled to a credit of $25 per event, up to 100% of your monthly recurring fee for the affected hosted system for any calendar month. The response time commitments stated above do not apply to support requests made via email.
4. Power: A/C power to the outbound port on your serving power distribution unit (PDU) will be available 100% of the time.
5. Network: The data center network will be available 100% of the time. “Network” means the portion of the network extending from the outbound port on your edge device to the outbound port on the border router and includes Drundo managed switches, routers, and cabling. Ne twork availability is defined as the ability to pass TCP/IP traffic with less than 3% packet loss and less than 30ms latency across the Drundo network infrastructure.
6. Remedy: If Drundo fails to meet any of the commitments stated in this “Data Center” section and the failure adversely affects your hosted system, you are entitled to a credit in the amount of 5% of your monthly recurring fee for the affected hosted system per hour of power outage or network downtime, up to 100% of the monthly recurring fee for the affected components for any calendar month.
For purposes of this section, “hardware” means dedicated server hardware, firewalls, and load balancers, but not Storage Area Networks (‘SAN”).
7. Hardware Repair or Replacement: Drundo will begin repairing or replacing failed hardware components provided by Drundo within one (1) hour of problem identification by Drundo. This commitment does not include the time required to rebuild your system, such as the time required to configure a replacement device, rebuild a RAID array, reload the operating system, reload and configure applications, and/or re store from backup (if necessary).
8. High Availability Network Device Solution. A “high-availability” network device solution means two devices within a single data center (such as a firewall, load balancer, router, or switch) configured in a fail-over configuration. High availability network device solutions will be available 100% of the time. Drundo will work with you to test the reliability of the high availability solution as part of the implementation process; proper testing must be completed for this commitment to apply.
9. Remedy: If Drundo fails to meet the commitments stated in this “Hardware Replacement” section and the failure adversely a ffects your hosted system, you are entitled to a credit in the amount of 5% of your monthly recurring fee per hour of downtime (after the one hour from problem identification referenced in section 7), up to 100% of the monthly recurring fee for the affected component for any calendar month.
Restoration of Backed Up Data
We will back up your data only if you have purchased data backup services, otherwise Customer is solely responsible for ensurin g that its data is backed up in the event of an outage. There is no resolution guarantee and no guarantee of backup integrity.
10. Data Backup: Unless a custom backup solution is agreed to in advance, backups will be performed to a shared Managed Backup Infrastructure on a scheduled basis. Backups will be retained for the time agreed in the service description or other written agreement. The defa ult backup schedule is nightly backups with two day retention period.
11. Data Restoration:
a. LOCAL RESTORES: We will initiate restoration of your data stored onsite within two (2) hours of the time that you request the restore via a support ticket.
b. REMEDY: If we fail to restore the data that you have selected for backup in accordance with the standards stated in this “Restoration of Backed Up Data” section, you are entitled to a service credit of $50 per event, up to 100% of your monthly recurring fee for the affected configuration for any calendar month.
12. Availability Monitoring: Drundo will monitor up to 6 TCP por ts (HTTP, HTTPS, SMTP, POP3, etc.) per server for service av ailability. General server availability is tested every five (5) minutes via ping. You will be alerted via ticket if port or ping monitors fail three consecutive times.
13. Fault Monitoring: Drundo monitors status events on servers and network devices including network availability, process s tatus, file system and capacity.
14. Performance Monitoring: Drundo monitors key performance metrics for the operating system, select applications and databases.
15. Notification of Monitoring Alerts: We will notify you of monitoring alerts within the time frames stated in the “Support” section above.
16. Remedy: If we fail to meet the monitoring alert notification commitments stated in this “Monitoring” section, you are entitled to a credit of $25 per event, up to 100% of your monthly recurring fee for the affected hosted system for any calendar month.
Limitations on Credits
17. Cumulative Dollar Amount: Notwithstanding anything in this SLA to the contrary, the maximum total credit for any calendar m onth for failure to meet Service Level commitments under this Agreement, shall not exceed 100% of your monthly recurring fee for the affected hosted sys tem. Credits that would be available but for this limitation will not be carried forward to future months.
18. Maintenance: You are not entitled to a credit for downtime or outages resulting from Maintenance. “Maintenance” means: A) Drundo MAINTENANCE WINDOWS: upgrades or repairs to shared infrastructure, such as core routing or switching infrastructure that we scheduled at least 72 hours in advance and that occurs during off peak hours in the time zone where the data center is located; B) SCHEDULED CUSTOMER MAINTENANCE: maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades; C) EMERGENCY MAINTENANCE: critical unforeseen maintenance needed for the security or performance of your configuration or Drundo’s network. We require that all servers remain patched to the approved Drundo patch level.
19. Force Majeure/Extraordinary Ev ents: You are not entitled to a credit for downtime or outages resulting from an event of For ce Majeure (as described in Section 19.6 of the TOS), denial of service attacks, virus attacks, hacking attempts, and/or any other circumstanc es that are not within our control.
20. Your Breach of the Agreement: You are not entitled to a credit if you are in breach of the Agreement at the time of the occurrence of the event giving rise to the credit until you have cured the breach. You are not entitled to a credit if the event giving rise to the cre dit would not have occurred but for your breach of the Agreement.
21. Disabling or Removing of Monitoring or Security Services, Interference with Services: You must notify us in advance if you plan to disable, block, or remove any monitoring or security element of your hosting service for more than thirty (30) minutes. We will not issue you any credit for events that might have been avoided or mitigated if you had not disabled, blocked or removed our monitoring or security elements, or otherwise interfered with our ability to provide the Services.
22. Logical Access: This SLA is contingent on Drundo having full logical access to your configuration. No credit will be due if the credit would not have accrued but for your restriction of Drundo’s logical access to your configuration.
23. Data Center Upgrades: We are constantly upgrading our data center facilities and in order for you to benefit from these upg rades, you agree that we may relocate your servers within our data centers, make changes to the provision of the Services, URLs and your IP addresses and may establish new procedures for the use of the Services. In each case we will give you reasonable advance notice and use all reasonable endeavors to minimize the effect that such change will have on your use of the Services.
Measurement of Time Periods
For the purpose of determining whether a credit is due, time periods will be measured from the time stamp generated by our ticket system, or the time an interruption is recorded in our monitoring system, as applicable. You may open a support ticket to document the start time for a support request or other incident, or if you contact us by telephone to request support, we will open a ticket. If you contact us by phone, there may be a delay between the time of the call and the time we open a ticket.
You must request a credit in writing either via a support ticket or by postal mail no later than seven (7) days of submission of the initial trouble ticket or support call. We will contact you within 30 days to approve or reject the claim or to request more information. If the claim is approved, the credit will appear on your monthly invoice following approval
General Statement: Drundo is dedicated to the use of the Internet to improve the lives of individuals throughout the world. Our goal is to deliver enterprise quality on-demand IT Services to all of our Customers at a reasonable price and make available the benefits of the Internet as broadly as possible. The purpose of this AUP is to inform all Customers of the acceptable uses of the Services. Drundo is committed to encouraging the use of the Internet through its Services and Third Party Services, but such use must be consistent with the laws and regulations governing use of the Internet and must protect the right of its other customers to use its Services. The AUP is designed to achieve these goals. Customer agrees to comply with the AUP and is responsible for the use of the Services and Third Party Services by all entities and individuals whom Customer permi ts to use the Services, Third Party Services or the Customer Offering. In addition to its rights under Section 19.1 of the Terms of Service, Drundo has the right to change or modify the terms of the AUP at any time, effective when posted to the Customer Portal. Customer’s use of the Services or Third Party Services after changes to the AUP are posted shall constitute acceptance of any changed or additional terms.
Public Network: The Public Network of Drundo provides public Internet access to Customer servers and data storage services on Drundo’s network. All Customers are granted equal access to the Public Network.
Private Network: The Private Network of Drundo provides Customer with secure private network connectivity from Customer’s private backend network directly to Customer servers and data storage devices on Drundo’s internal network and to other Services. Customer may use the Private Network to upload/download content, administer Customer servers and data storage devices, transmit information between Customer servers and data storage devices, transmit information between Customer’s private backend servers and Customer servers and data storage devices provided by Drundo, administer the Customer Content, retrieve data, access server consoles, and otherwise manage the Customer Content. The Private Network can also be utilized for access during periods of temporary suspension of Services to Customer as provided under the MSA.
IP Addresses: The IP Address Policy (as described in the Terms of Services) which may be changed from time to time at Drundo’s sole discretion, is incorporated into this MSA by reference. Customer acknowledges and agrees to adhere to the IP Address Policy. All IP Addresses assigned to Customer are owned and managed by Drundo. Such IP Addresses are non-transferable, and Customer retains no ownership or transfer rights to such IP Addresses. All IP Addresses are assigned by the Drundo engineering team on a per VLAN, per server basis. Attempted use by Customer of any unallocated IP Address or any IP Addresses on VLANs not assigned to Customer is a violation of this AUP.
Prohibited Uses: The following list provides a number of general prohibited uses of the Services and/or Third Party Services that are violation s of this AUP. Please note that the following list does not represent a comprehensive or complete list of all prohibited uses.
1. Unlawful Activities. The Services and/or Third Party Services shall not be used in violation of any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule. This includes, but is not limited to:
a) Child pornography
b) Unlawful gambling activities
c) Threats, harassment and abuse of any individual, organization or business
d) Fraudulent activities
e) Terrorist websites or other sites advocating human violence and hate crimes based upon religion, ethnicity or country of ori gin
f) Unlawful high yield investment plans, Ponzi schem es or linking to and or advertising such schemes
2. Child Pornography: In particular, the Services and/or Third Party Services shall not be used to publish, submit, receive, upload, download, post, use, copy or otherwise produce, trans mit, distribute or store child pornography.
3. Unsolicited Email: The use of the Services and/or Third Part y Services to send or receive mass unsolicited email (“SPAM”). This prohibition includes the direct sending and receiving of such messages, support of such messages via web page, splash page or other related sites, or the advertisement of such services. The falsifying of packet header, sender, or user information whether in whole or in part to mask the identity of the sender, originator or point of origin or knowingly deleting any author attributions, legal notices or proprietary designations or labels in a file that the Customer mails or sends.
4. Email Bombing: The sending, return, bouncing or forwarding of email to specified user(s) in an attempt to interfere with or overflow email services.
5. Proxy Email: The use of the Services and/or Third Party Services as a proxy email server to forward email to unrelated Third Parties.
6. UseNet SPAM: The use of Services to send, receive, forward, or post UseNet unsolicited email or posts. This includes UseNet services located within the Drundo network or unrelated networks of Third Parties.
7. Hacking: The use of the Services and/or Third Party Servic es or hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and contro l devices, software or data without express authorization of the owner of the system or network.
8. Threatening Material or Content: The Services and/or Third Party Services shall not be used to host, post, transmit, or retr ansmit any content or material that harasses, or threatens the health or safety of others. In addition, Drundo reserves the right to decline to pr ovide Services and/or Third Party Services if the content is determined by Drundo to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the us e of violence or otherwise harmful to others.
9. Violation of Intellectual Property Rights: The Services and/or Third Party Services shall not be used to publish, submit/rec eive, upload/download, post, use, copy or otherwise reproduce, transmit, retransmit, distribute or store any content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or pu blicity rights of Drundo or any other party, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation. Please refer to http://www.drundo.com/about/legal to file complaints or counter notifications related to copyright or trademark claims.
10. Distribution of Malware: The storage, distribution, fabrication, or use of malware, including without limitation, virus sof tware, root kits, password crackers, adware, key stroke capture program s and other programs normally used in malicious activity is prohibited. The use of such programs in the normal ordinary course of business, however, may be requested by Customer and approved by Drundo on a case by case basis . Example: Security company using the Services to analyze the latest root kit for new security analysis/software.
11. Phishing: Any activity designed to collect personal informati on (name, account numbers, usernames, passwords, etc.) under f alse pretense. Splash pages, phishing forms, email distribution, pro xy email or any activity related to phishi ng activities may result in the immediate suspension of Customer’s account.
12. Violation of Agreements relating fo r Third Party Services. Any activity which violates any TPS Agreements.
13. Denial of Service. Any activity to implement or assist in the implementation of denial of service attack. Drundo absolutely prohibits the use of Services for the origination, propagation or control of denial of service attacks (“DoS”) or distributed denial of service atta cks (“DDoS”). Customers may not utilize the Services to perform DoS or DDoS mitigation activities (such as service proxying or data scrubbing) which may result in attracting inbound denial of service attacks toward the Services. Any relation to DoS or DDoS type activity is a direct violation of Drundo’s AUP.
Reporting Violation of the Acceptable Use Policy: Drundo accepts reports of alleged violations of this AUP via email sent to [email protected].
Reports of alleged violations must be ve rified and must include the name and contact in formation of the complaining party, and the IP address or website allegedly in violation, and a description of the alleged violation. Unless otherwise required by law, such as the DMCA, Drundo owes no duty to Third Parties reporting alleged viol ations. Drundo will review all verified Third Party reports and will take such actions a s it deems appropriate in its sole discretion. Drundo will comply with and respond to valid (as Drundo determines in its sole discretion) subpoenas, warrants, and/or co urt orders. If permitted by applicable law or regulation, Drundo will forward such subpoenas , warrants, and/or orders to Customer and Customer may respond; however, Drundo reserves the right to respond to any such subpoena, warrant and/or order if it is the named party in such subpoena, w arrant, and/or order.
Methods of Resolution for Violations of Drundo’s Acceptable Use Policy
The goal of our Methods of Resolution is to mitigate service interruptions while resolving potential violations under this AUP. Our sales, support and abuse staffs are dedicated to working with the Customer in resolving potential violations, and are available via phone, ticket, or email. The Methods of Resolution below is provided for informational purposes only and forms the framework and guidance with respect to resolving pot ential violations, but in the event of any conflicts between the Acceptable Use Policy (in particular its enforcement) and Terms of Services, the Terms of Services shall control.
Timing for resolution differs according to the degree of the violation, t he nature of the violation, involvement of law enforce ment, involvement of third party litigation, or other related factors.
Step 1: First alleged violation of AUP: a ticket will be generated under Drundo to prov ide the Customer’s master user with information regarding the potential violati on of Drundo’s AUP. This is often a fa ct-finding email requiring further informat ion or notifying Customer of the potential violation and the required actions to resolve the issue.
Step 2: Acknowledgement of violation of AUP: a ticket is generated under the Customer’s ma ster user account with information specific to the violation. This ticket will also include any additional facts about the situation and will notify Customer of the action required to resolve the violation.
Step 3: Violation of AUP disregarded, not properly addressed, or continuing violation if a ticket has been disregarded, not properly addressed, or resolved by the Customer for a specified period of time: Drundo engineers will turn the public network port to the specified dedicated services off. Access to the dedicated services may then be achieved through the secure private service network for Customer resolution. As soon as the violation is addressed, the public access shall be restored and service will continue as normal.
Step 4: Failure to address vi olation and resolve violation: if Customer fails to address the violation AND fails to resolve the violation, a suspension of services shall occur. This is a last resort for Drundo and only results when the Customer completely fails to participate in Drundo’s resolution process. A perman ent suspension of services includes reclamation of all dedicated services and the destruction of Customer’s data
Disclaimer: Drundo retains the right, at its sole discretion, to refuse new servic e to any individual, group, or business. Drundo also retains the right to discontinue service to Customers with excessive and/or multiple repeated violations.
Drundo considers user privacy paramount, and Drundo utilizes great care in keeping the information of the users of the Site (including Customers) (“Users” or “You”) private and secure. Drundo adheres to the U.S. -Swiss Safe Harbor Framework as well as the Safe Harbor Principles as agreed to and set forth by the United States Department of Commerce and the European Union (“EU”), http://export.gov/safeharbor/. To demo nstrate our firm commitment to privacy, the following agreement has been created to explain our policies and procedures in relation to all data collected. In this Privacy Agreement (“PA”) we describe the information that we collect; how we use, disclose, and share your information; and how we prot ect your information.
Capitalized terms not defined in the PA are defined in the Terms of Service. This PA does not apply to Third Party Services which are governed by their own privacy policies.
Types of Data Collected
Drundo collects data related to our users through the following methods:
Automated means such as communication protocols and cookies
Online registration and online signup forms
Sales inquiries and transactions
Online Customer communications
Offline communications and interactions
Third party sources of information
Depending upon the method of collection and use, the data collected may include informati on about the User from forms, registrations and transactions (such as name, title, address, company, phone number and e-mail address), financial/transaction information (such as credit card, card verification value (cvv), and payment information), information about use of Site (such as electronic communications protocols, web pages visited, and cookies) and User preferences and privileges.
Electronic Communications Protocols and Cookies
Drundo may receive data from you as part of the communication connection itself through the standard electronic greeting between your computer and our servers. This information often consists of network routing (where you came from), equipment information (browser type) , internet protocol address, date and time. At this time our server will also query your computer to see if there are “cookies” previously set by s oftlayer.com to facilitate log in or other site navigation procedures. A “cookie” is a small piece of information sent by a web server to store in a web browser so it can later be read back from that browser.
Cookies on the Site may collect the following information: a unique identifier, User preferences and profile information used t o personalize the content that is shown, and User information to access Drundo’s user forums. Some cookies used by Drundo.com may remain on the use r’s computer after they leave the Site, but the majority is set to expire within thirty (“30”) – three hundred sixty five (“365”) days. There may be some cookies on certain tools that are of longer duration. Cookies may also be of benefit to you by creating a more streamlined login process, keeping track of shopping cart additions or preserving order information between sessions. In the future, as we enable further customization of the Site, cookies will help in ensuring that information provided to you will be the most relevant to your needs. Browsers provide you with information and control over cookies. You can set your web browser to alert you when a cookie is being used. You can also get information on the duration of the cook ie and what server your data is being returned to. You then have the opportunity to accept or reject the cookie. Additionally, you can set your browser to refuse all cookies or accept only cookies returned to the originating servers. You ca n generally disable the cookie feature on their browser without affecting their ability to use the Site, except in some cases where cookies are used as an essential security feature or to provide functionality necessary for transaction completion. Users visiting the website through an IP address that is associ ated with (a member state of) the European Union (“EU Users”) wi ll by default only receive cookies that expire once they leave the webs ite. This may result in reduced website fu nctionality. EU Users may opt-in to the receipt of cookies of a longer duration by giving their consent in a pop-up window or bar shown at the hom epage of the website. Following their consent, EU Users will receive all cookies discussed above and full website functionality will be available. EU Users may choose to revoke their consent at any time by deleting all cookies associated with Drundo through their browser settings (as discussed above). We may also engage Third Parties to track and analyze non-personally and personally identifiable website data and to serve adve rtisements. To do so, we may permit Third Parties to place cookies on devices of to Users of our Site, where permitted by law, and, subject to your right to opt-out through the Site “insert link”. We use the data collected by such Third Parties to help us administer and improve the quality of the Site and to analyze Site usage. Such Third Parties may combine the information that we provide about you with other information that they have collected. These Third Parties are required to use your information in accordance with this PA. Customer is solely responsible for any processing or internati onal transfer of all PII in the Customer Content and agrees to co mply with all applicable rules, laws and regulations in any and all applicable regions or c ountries related to the transfer of such PII. To the extent P II is subject to rules, laws, regulations or the like implementing EU Da ta Protection Directive 95/46/EC, Drundo will be considered a “data processor” and will, as such, act on Customer’s instructions and implement security measures in accordance with the MSA.
The Data We Collect and How We Use It
Drundo collects data from users for the following purposes: To engage in transactions for service. Name, address, email, pur chase details, and credit card/payment information may be collected and stored as part of the transaction history. The majori ty of the data collected under this category is contact information. Drundo may n eed to share some of this data (address, payment) with credit card clearing houses, bank ing institutions, and other sim ilarly situated Agents, who m ay require the information in order to complete the transaction (as used here, “Agents” are persons or companies who act on behalf of or under the direction of Drundo). Drundo will not transfer information to any of its Agents unless it first either ascertains that the Agent subscribes to the Safe Harbor Principles or is subject to the EU Directive on Data Protection or another adequacy finding or enters into a written agreement with such Agent requiring that the Agent provide at least the same level of privacy protection as is required by the relevant Safe Harbor Principles. To provide future service and support. Information collected for this purpose is both contact data and information related to products and service/support requested. This information is also used to provide service, product update, and similar notices. To select content, data may be collected to help create Site content and navigation that is most relevant and user friendly. This includes data collected as a result of site navigation, as well as data provided in forms. To respond to user inquiries and requests for information. This data includes registrations for online newsletters, opt-in mai ling lists and specific requests for further information. To respond to law enforcement organizati ons, government officials, third parties wh en compelled by subpoena, court order, or applicable law, or to report or prevent suspected fraudulent or illegal activity in the use of the Services. Drundo will notify Customer of the information request or submission as, and if, allowed. To our contractors who provide servic es or perform functions on our behalf. To our Affiliates, if we do so their use and di sclosure of your PII will be subject to this PA. If we are acquired by or merged with another company, if subs tantially all of our assets are transferred to another company, or as part of a bankruptcy proceeding, we may transfer the information we have collected from you to another entity if applicable. To provide various Drundo communities, such as resellers, wi th relevant product alerts and updates. These updates are relat ed to product releases, prices, terms, special offers and associated campaigns. This data is sent when the program member signs up for the relevant program or online account.
To better tailor marketing to User needs. We may use information from User purchases and User-specified requirements to provid e you with timely and pertinent notices of Drundo product releases and service developments that address your needs and specified requirements and/or which are similar to products and services previously purchased by the User from Drundo. To better respond to requests for service or quotes for product and equipment purchase. Drundo will pass contact informatio n to the appropriate Drundo sales person, or reseller for follow-up related to Drundo products or services. From referral “tell a friend” function. If a User elects to use our referral service for informing a friend about our Site, we ask them for the friend’s name and email address. Drundo will automatically send the friend a one-time email inviting them to visit the Site and send a copy of said e-mail to the User. The e-mail(s) sent shall clearly identify the sender of such email(s). Drundo uses this data for the sole purpose of sending this one-time email. Such email sent to a friend at User ’s request will not be stored for additional processing. As a result of your participation in interactive discussions and public forums. There are parts of the Site that permit you to participate in interactive
discussions. Some of these are moderated; all are subject to acce ss for technical reasons. Drundo does not control the conte nt that Users post and some may serve as public discussion forums. As in any interactive forum open to many Users, you should carefully consider whether you wish to submit data and should tailor any other content submitted accordingly.
Customer Portal, Customer Customization, Preferences and Opt-Out
New Customers are automatically registered for access at https://manage.drundo.com. The Customer Portal allows Customers the ability to create users, add/delete users, add/delete user privileges and opt in (or out) of Services and mailing lists. The Customer Portal prov ides the Customers with control over their preferences for electronic information delivery. Drundo has also provided the Customer’s master user the ability to manage the Customer’s Account Information. We maintain the data and allow the Customer’s master user to update it at any time. To change this information, you must be a current Customer and login with a user ID and password and follow the prompts to “update my profile” on the Customer Portal. We continue to expand the profile of Services and information that you may access and update. Please note that some email communications are not subject to general opt-out. These include communications related to download s; communications about sales transactions; information about software updates, patches and fixes; disclosures to co mply with legal requirements; and network upgrades or other related maintenance for Service. If an individual’s PII is to be (a) disclosed to a Third Party w ho is not an Agent; or (b) used for a purpose that is incompatible with the purpose(s) for
which it was originally collected or subsequently authorized by the individual, then the individual will be notified prior to s uch disclosure and may opt-out of having the PII disclosed by responding to the email and/or aut hor of the notification, where such information shall be clear ly set forth.
Drundo is concerned with the security of the data we have collected and utilizes commercially reasonable measures to prevent unauthorized access to that information. These measures include policies, procedures, employee training, ph ysical access and technical elements relati ng to data access controls. In addition, Drundo uses standar d security protocols and mechanisms to facilitate the exchange and the transmission of sensitive data, such as credit card details. Drundo does not process PII in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by the individual. In the event that PII is acquired, or is reasonably belie ved to have been acquired, by an unauthorized person and applicable law requires notification, Drundo will notify the affected individual of the breach by email or ticket on the Customer Portal or, if Drundo is unable to contact the individual by email or ticket on the Customer Portal, then by regular mail. Notice will be given promptly, consistent with the legitimate needs of law enforcement and any measures necessary for Drundo or law enforcement to determine the scope of the breach and to ensure or restore the integ rity of the data system. Drundo may delay notification if Drundo or a law enforcement agency determines that the notification will impede a criminal investigation, and in such case, notification will not be provided unless and until Drundo or the agency determines that notification will not compromise the investigation.
If we are going to use your PII in a manner different from that stated at the time of collection, we will notify you via email. In addition, if we make any material changes in our privacy practices that do not affect t he PII already stored in our database, we will notify you by emai l or post a prominent notice on the Customer Portal notifying users of t he change. In some cases, when we post the notice, we will also email users who have opted to receive communications from us, notifying them of the changes in our privacy practices. We may update this policy from time to time to describe how new site features affect our use of your PII and to let you know of new control and preference features that we provide.
Contact Information and Inspection Rights
Drundo Software, Inc.
711 Atlantic Ave, Ste 200
Boston, MA 02111
If at any time you decide that you no longer desire that we hold, use, correct or supplement any of your PII, receive information regarding any PII processed in relation to you or you wish to change the manner in which your PII may be used, please let us know by contacting us as set forth above.