END USER AGREEMENT
THE FOLLOWING TERMS AND CONDITIONS INCLUDING THE APPLICABLE COUNTRY TERMS (COLLECTIVELY “TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU EITHER AN INDIVIDUAL OR A SINGLE ENTITY (“YOU” OR “YOUR” OR “CUSTOMER”), AND THE ENTITY IDENTIFIED BELOW AS CONTRACTING PARTY THROUGH WHICH THE SERVICES ARE PROVIDED (AS DEFINED BELOW) IN YOUR COUNTRY OF RESIDENCE. THE TERMS CONTAIN SIGNIFICANT RESTRICTIONS AND LIMITATIONS ON RIGHTS AND REMEDIES, AND CREATE OBLIGATIONS ON ANYONE WHO ACCEPTS THIS AGREEMENT. THEREFORE, YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS.
BY CLICKING THE “I ACCEPT” CHECKBOX AND ENTERING YOUR NAME IN THE NAME BOX DISPLAYED AS PART OF THE CLOUDSIGNAGE NETWORK (AS DEFINED BELOW) OR LICENCE REGISTRATION PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE WRITTEN END USER AGREEMENT (THE “AGREEMENT”) DEEMED SIGNED BY BOTH PARTIES GOVERNING YOUR USE OF THE CLOUDSIGNAGE ONLINE SERVICE ENABLING THE UPLOAD, SCHEDULING AND DEPLOYMENT OF MEDIA CONTENT TO ENABLED DEVICES (AS DEFINED BELOW) CONNECTED TO THE CLOUDSIGNAGE ONLINE SERVICE VIA THE INTERNET, PROVIDED BY THE “CONTRACTING PARTY” AS DEFINED BELOW (“PROVIDER”). IF YOU AGREE TO THE TERMS ON BEHALF OF A LEGAL ENTITY YOU REPRESENT THAT YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY; OR IF YOU AGREE TO THE TERMS AS AN INDIVIDUAL, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18.
“Contracting Party” – Regardless your are a resident or company based in Malaysia or other country, you are contracting with Israk Technology Sdn. Bhd., a Malaysian-based company.
Customer will be given a unique account by Provider and Customer is responsible for its use of the Service and for all use of its account by each user using the account to access the Service.
If you do not have the requisite authority, or if you do not agree to these terms and conditions, you may not use the Service.
Customer’s acceptance of this Agreement will enable Customer to access the Service and a single CloudSignage Licence (as defined below) will then be allocated to each Enabled Device through which Customer accesses the Service.
The fees for using the Service are calculated based upon each Enabled Device connected to the Service. Fees are payable per annum per Enabled Device in accordance with the pricing provided by the Provider or its Partner (as defined below).
NOW IT IS AGREED as follows:
1. Definitions and construction
1.1. In this Agreement the following expressions shall apply:
1.1.1 “Commencement Date” means the date on which Customer first accesses the Service by connecting a device to the Website.
1.1.2 “Confidential Information” means information relating to one party or its agents (the “Disclosing party”) and/or the business carried on or proposed or intended to be carried on by the Disclosing party and which is made available in connection with this Agreement to the other party (the “Receiving party”) (or its agents) by the Disclosing party (or its agents). Customer hereby acknowledges that the Service including any documentation, source code, translations, compilations, partial copies and derivative works used in connection with the Services is provided using Confidential Information belonging exclusively to Provider, and Provider hereby acknowledges that Customer Data (as defined below) contains Confidential Information belonging exclusively to Customer or relating to its affairs (in each case, “Confidential Information”).
1.1.3 “Contracting Party” as defined on page 1 of this Agreement.
1.1.4 “Customer” as defined in the Preamble on page 1 of this Agreement.
1.1.5 “Customer Data” means all data provided by Customer or in relation to Customer which is processed by Provider as part of the Service for Customer including, but not limited to, data generated by the Website from visitor input.
1.1.6 “Customer Equipment” means the hardware and software which Customer is required to have in use in order to use and enable the Service to be provided in accordance with this Agreement.
1.1.7 “Customer’s Representative” means an individual appointed by Customer to administer its CloudSignage Network.
1.1.8 “Downtime” means a period during Hosted Application Hours during which there is total loss of the Service.
1.1.9 “Enabled Device” – a screen or other device enabled to use the Service.
1.1.10 “Hosted Application” means the software application set out in Schedule 1 which Provider uses to provide the Service.
1.1.11 “Hosted Application Hours” means the hours during which the Service is to be provided as set out in Schedule 1. References to “hour(s)” and “minute(s)” in this Agreement will, unless otherwise indicated, be taken only to refer to the elapse of time during Hosted Application Hours.
1.1.12 “Intellectual Property Rights” means all copyrights, patents, inventions, database rights, registered and unregistered design rights, trademarks and service marks and any applications for any of the foregoing, all trade secrets, know-how, domain names, Confidential Information and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
1.1.13 “Month” means a calendar month and “monthly” shall be construed accordingly.
1.1.14 “Outage” means an instance of Downtime.
1.1.15 “Partner” means a distributor, reseller or strategic partner appointed by Provider to sell the Service on behalf of Provider.
1.1.16 “Partner Agreement” means an agreement between a Partner and Customer relating to the provision of the Service.
1.1.17 “Provider” as defined in the Preamble on page 1 of this Agreement.
1.1.18 “Relevant Event” means a matter or factor which absolves Provider from compliance with any obligation under this Agreement, notably:-
126.96.36.199 act or omission or delay by Customer, the effect of which is to prejudice the ability of Provider to perform its obligations in accordance with this Agreement;
188.8.131.52 any matter falling within Clauses 7.3, 8 or 13.
1.1.19 “Service” means the provision of the CloudSignage services accessible through http://cdms.cloudsignage.my using a CloudSignage Licence.
1.1.20 “Service Fee” means the fees payable to Provider or its Partner for use of the Service.
1.1.21 “Service Interruption” means a period during Hosted Application Hours during which there is partial loss of the Service.
1.1.22 “Service Levels” means the levels of performance to which the Service is to be provided to Customer by Provider as set out in Schedule 2.
1.1.23 “CloudSignage Licence” means a unique 16-character licence allocated to a single Enabled Device allowing use of the Service subject to payment of the Service Fees.
1.1.24 “CloudSignage Network” means one or more networks created by a CloudSignage user within the CloudSignage service to enable the grouping of Enabled Devices and management of media content.
1.1.25 “System” means the Hosted Application and Provider hardware as the same operate together in the provision of the Service.
1.1.26 “System Management Regulations” means regulations introduced by Provider from time to time for the better management of the Service and which may include (but are not limited to):
184.108.40.206 defining minimum specifications for equipment used by Customer to interface with the Service (including, but not limited to, routers, firewalls and PC’s);
220.127.116.11 regulations to ensure that the network through which the Service is provided are not overloaded and that the security and integrity of the network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by Provider in connection with the Service; and
18.104.22.168 regulations to ensure that any database or other applications which form part of the Service are used to the best effect and within their capacities.
1.1.27 “Term” means the effective term of this Agreement.
1.1.28 “Tolerances” means instances of diminution of or interruption to the Service Levels as set out in Schedule 2 and which are to be disregarded from the point of view of establishing whether Provider has fallen below those performance levels or breached any provision of this Agreement.
1.1.29 “User” means an individual employee or contractor working for Customer who accesses the Service.
1.1.30 “Website” means www.cloudsignage.my
2. Provision of Service and Licences
2.1. Provider agrees effective from the Commencement Date in consideration of the payment of the Service Fees by Customer to Provider or Partner to supply the Service to Customer on a non-exclusive, non-assignable basis upon the terms and conditions of this Agreement.
2.2. Customer acknowledges that Provider may at any time, and without notice, incorporate licence management software into the Hosted Application for the purposes of ensuring that licence rights are not exceeded.
2.3. Customer acknowledges that it may not duplicate or copy the Hosted Application for any purpose.
2.4. Customer acknowledges that licences are non transferable between networks and that once a licence has been added it cannot be moved.
2.5 Customer acknowledges that after the initial period of licence has expired (1 or 3 year) renewal licences for subsequent years must be purchased from the Provider in order to continue with the service.
3.1. This Agreement shall commence on the Commencement Date and shall (subject to the payment of the Service Fees to Provider or Partner and the provisions for termination set out in this Agreement or Partner Agreement) continue unless terminated in accordance herewith.
4. Service Fees
4.1. The Service Fees will be communicated by Provider or Partner to Customer and Customer undertakes to pay to Provider or Partner the Service Fees. If such fees are not paid in accordance with the provisions hereof and any additional terms of payment communicated to Customer by Provider or Partner, all further access to the CloudSignage Network will be blocked without notice.
5. Service Levels
5.1. Provider undertakes with Customer that it will endeavour to provide the Service and each component, subject to Relief Events, in accordance with the Service Levels save where otherwise expressly provided for by this Agreement.
6. Outages, Service Interruptions and Changes to Service
6.1. Outages or Service Interruptions may be made by Provider when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Service. Provider will use reasonable endeavours to minimise the Outages or Service Interruptions that may result.
6.2. If Outages or Service Interruptions are required under Clause 6.1 (“Scheduled Interruptions”), Provider will endeavour to schedule Scheduled Interruptions so as to minimise impact on the Service and will notify Customer of the anticipated commencement time of the Scheduled Interruption and its estimated duration.
6.3. Provider shall provide initial notice to Customer’s Representative as soon as reasonably possible by email to the address notified on sign-up to the Service (or such other address as may have been subsequently notified) or live-chat after becoming aware of an event that has caused or may cause an unscheduled Outage and will endeavour to keep Customer’s Representative informed of progress. In the event Customer first becomes aware of such event, Customer shall promptly notify Provider via email or live-chat, the details of which are provided at http://support.cloudsignage.my.
7. Warranties and indemnities
7.1. Provider warrants to and undertakes with Customer that:
7.1.1 Provider will use its reasonable efforts to provide the Service and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
7.1.2 Provider has full right power and authority to provide the Service to Customer in accordance with the terms of this Agreement.
7.2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS CLAUSE 7, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK. PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
7.3. Provider does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
8. Customer Obligations and Warranties.
8.1. Customer undertakes at all times during the Term to comply with all current System Management Regulations. Provider shall give not less than 14 days’ written notice to Customer of additions and changes to System Management Regulations.
8.2. In the event that Customer is in breach of any of its obligations under this Agreement, then:-
8.2.1 Provider can not be held responsible should the Service fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach; and
8.2.2 Provider or Partner shall be entitled to charge Customer for staff time engaged on rectifying any resulting problems at Provider’s or Partner’s standard charge rates for the time being.
8.3. Customer represents, warrants and undertakes that:
8.3.1 it has and shall during the Term have the legal right and authority to place and use and have used any of its equipment as contemplated under this Agreement;
8.3.2 it will use the Service only for lawful purposes and in accordance with this Agreement; and
8.3.3 any software, data, equipment or other materials provided by Customer to Provider or employed by Customer in its use of or receipt of the Service shall not infringe any Intellectual Property Rights of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.
8.4. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Provider will have the right to suspend immediately any related services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider may (in its absolute discretion) give Customer an opportunity to cure. In such case once Customer has cured the breach, Provider will promptly restore the Service(s).
9. Limitation of liability
9.1. NEITHER PROVIDER NOR PARTNER SHALL BE LIABLE FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUFFERED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH ANY ACT, OMISSION, MISREPRESENTATION OR ERROR MADE BY OR ON BEHALF OF CUSTOMER OR ARISING FROM ANY CAUSE BEYOND PROVIDER’S OR PARTNER’S REASONABLE CONTROL.
9.2. NEITHER PROVIDER NOR PARTNER SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, REVENUE, DATA OR GOODWILL ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR ANY MAINTENANCE OR OTHER AGREEMENT ENTERED INTO BETWEEN CUSTOMER AND PROVIDER OR PARTNER OR FOR ANY LIABILITY OF CUSTOMER TO ANY THIRD PARTY OR OTHERWISE WHETHER OR NOT SUCH LOSS HAS BEEN DISCUSSED BY THE PARTIES PRE-CONTRACT OR FOR ANY ACCOUNT FOR PROFIT, COSTS OR EXPENSES ARISING FROM SUCH DAMAGE OR LOSS.
9.2.1 SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
9.2.2 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS END USER AGREEMENT.
9.3. Customer accepts that neither Provider nor Partner is in any way liable for any virus or other contaminants which enter Customer’s email system or computer network via use of the Service.
9.4. None of the Clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Provider or its appointed agents.
9.5. No matter how many claims are made and whatever the basis of such claims, Provider’s maximum aggregate liability to Customer under or in connection with this Agreement or any other agreement between the parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clauses 8.1-8.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the Service Fees paid or payable for the 12 month period preceding such claim.
9.6. Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fees have been calculated on the basis of the limitations and exclusions in this Clause 9 and that Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 9.
10. Intellectual Property Rights
10.1. The parties hereby agree that Provider owns all Intellectual Property Rights and that Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Hosted Application and in all materials created or originated by Provider in connection with or related to the provision of the Service hereunder.
10.2. Provider warrants that it has all necessary right, title or interest to enable Customer to use the Hosted Application in accordance with this Agreement.
11.1. For the purposes of this Clause, the following events shall be deemed “acts of default”:
11.1.1 if Customer fails to pay any moneys due to Provider or Partner pursuant hereto or to agreement with Partner within 7 days of the due date therefore;
11.1.1a. if Customer fails to purchase renewal licence for continuation of services and purchases instead a new licence for the same device this shall be deemed as breach of any of the terms of this agreement and termination of services will ensue without any warning.
11.1.2 if a party commits any material breach of any term of this Agreement (other than one falling under Clause 10.1.3 below) and which, in the case of a breach capable of being remedied, shall not have been remedied within 14 days of a written request by the other party to remedy the same
11.1.3 In the event a party to this Agreement files a petition in bankruptcy, is declared bankrupt, becomes insolvent, or makes an assignment for the benefit of creditors, the other party may terminate this Agreement by providing written notice of such termination; provided, however, with respect to involuntary proceedings, that such proceedings are not dismissed within ninety (90) days.
11.2. If Customer commits an act of default then Provider may:
11.2.1 forthwith suspend the provision of the Service hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement; or
11.2.2 terminate this Agreement by notice in writing forthwith.
11.3. If Provider commits an act of default then Customer may terminate this Agreement by notice in writing forthwith.
11.4. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12. Confidentiality and Ownership of Customer Data
12.1. Subject to Clause 12.2, each of Provider and Customer hereby undertakes with the other to keep confidential all Confidential Information.
12.2. Provider undertakes not without Customer’s written consent to disclose Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Service and who have, and to the extent that they have, a need to know the same.
12.3. The provisions of Clauses 12.1-2 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
12.3.1 already in the other’s possession without duty of confidentiality on the date of its disclosure;
12.3.2 in the public domain other than as a result of a breach of this Clause; or
12.3.3 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the party required to make such disclosure shall use reasonable endeavours to notify the other party of such requirement prior to making the disclosure.
12.4. Each of Provider and Customer hereby undertakes to the other to make all relevant employees agents and sub contractors aware of the confidentiality of the information and the provisions of this Clause 12.
12.5. For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of Customer and may only be used by Provider in order to fulfil its obligations pursuant hereto.
13. Force Majeure
13.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub contractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
13.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre existing rights or obligations of either party.
14.1. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15.1. Any notice to be given hereunder shall be sent by email to the address of the other party set out in this Agreement (or such other address as may have been subsequently notified) and any such communication shall be deemed to have been served at 6pm Central Time Zone for U.S. residents and at 6pm (London time) for residents in all other countries on the next working day in the jurisdiction where the recipient is located.
NOTICES TO EMAIL
Customer As notified on sign-up to the Service
16. Invalidity and Severability
16.1. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
17. Entire Agreement
17.1. Subject to Clause 17.2, this written Agreement (including the Schedules) and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 17.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert appointed under Clause 20 may allow reliance on the same as being fair and reasonable.
17.2. No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
18.1. This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
19.1. Customer shall not be entitled to assign, transfer, license and/or sublicense this Agreement nor all or any of its rights and obligations hereunder.
20. Sub contracting
20.1. Provider shall be entitled to sub contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Service itself.
21. Country Terms
In addition to the foregoing, your contractual relationship with Provider will be subject to the relevant applicable country-specific contractual terms and conditions (“Country Terms”), which are incorporated into the Terms. The Country Terms are dependent on your country of residence. You shall have accepted the Country Terms applicable to you upon your acceptance of the Terms. The Country Terms applicable to you are described below in Section 21.1 for United States of America or 21.2 for United Kingdom and all other countries.
21.1. United States of America
22.214.171.124 In an effort to resolve informally and amicably any and each claim, controversy, or dispute arising out of or related to this Agreement, including, without limitation, the formation, interpretation, performance, or breach of this Agreement (a “Dispute”) without resorting to litigation, each party shall notify the other party to the Dispute in writing of any Dispute hereunder that requires resolution. Such notice shall set forth the nature of the Dispute, the amount involved, if any, and the remedy sought. Each party shall promptly designate an executive-level employee to investigate, discuss and seek to settle the Dispute between them. If the two designated representatives are unable to settle the Dispute within thirty (30) days after such notification, the matter shall be submitted to the parties’ chief executive officers for consideration. If settlement or other mutually acceptable solution cannot be reached through their efforts within an additional thirty (30) days (or such longer time period as they shall agree upon in writing) then any and all such Disputes arising out of or relating to this Agreement shall be resolved by mediation, and then arbitration in the following manner: the Party raising the Dispute shall initiate mediation by giving written notice no later than twenty (20) business days after the date the Informal Dispute Resolution ended, in the form of a statement which shall include a detailed written description of the Dispute, the basis therefore, and propose one (1) or more resolutions thereof and cause the same to be sent to the other party and its attorney (in the manner provided for notice hereunder) (“Dispute Notice”). No later than ten (10) business days after receipt of a Dispute Notice, the party receiving the Dispute Notice shall prepare a detailed response thereto and propose one (1) or more resolutions thereof (“Response Notice”) and shall cause the same to be sent to the other party and its attorney, if any, in the same manner as a Dispute Notice. No later than fifteen (15) business days after the sending of a Response Notice, the representatives of the parties shall meet to discuss the Dispute Notice and Response Notice, with a Mediator appointed by the American Arbitration Association at the written request of either party and shall use their good faith, reasonable and best efforts to resolve the Dispute Notice and Response Notice no later than ten (10) business days after such meeting commences (or such additional time as may be requested by the Mediator), which resolution, if reached, shall be binding on the parties (collectively, a “Mediated Resolution”). If there is no Mediated Resolution within said ten (l0) business days (or such other period requested by the Mediator), then the parties agree that the Dispute shall be settled by arbitration in Chicago, Illinois by one (1) arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. All discovery questions shall be governed by the Federal Rules of Procedure and Evidence for the United States District Courts. The proceedings and decision of the arbitrator shall be final, non-appealable, binding and confidential, except as necessary for enforcement of the decision (an “Arbitral Award”), which Arbitral Award may include equitable, injunctive and/or monetary relief as well as any other remedy available at law or equity, which may be enforced in any court of competent jurisdiction. The fees of the arbitrator and the costs of arbitration, including the respective legal, accounting, expert and paralegal fees incurred by the parties shall be borne by the parties to the arbitration in such manner as shall be determined by the arbitrator in the Arbitral Award, whose determination shall also be binding on the parties as to the fees and costs of the arbitration and as to those incurred in any enforcement proceedings in court to enforce the Arbitral Award.
126.96.36.199 This Agreement shall be governed by and construed in accordance under the laws of the State of Illinois without regard to its conflict of laws principles. The parties hereto hereby irrevocably and unconditionally: (i) agree that any and all actions, suits or other legal proceedings, whether or not arising under this Agreement and regardless of the legal theory upon which the claims are based, may be brought against the other party only in the courts of the State of Illinois for Cook County or the United States District Court for the Northern District of Illinois, and consent to the exclusive jurisdiction of such courts in any such legal proceeding, (ii) agree that service of process in any such legal proceeding shall be effected in accordance with the Statutes of Illinois and the United States, as appropriate, and (iii) waive any objection either party may now or hereafter have to the venue of any such legal proceeding in such courts.
21.1.3 Waiver of Jury Trial
188.8.131.52 The parties hereto waive trial by jury in any judicial proceeding involving, directly or indirectly, any matter (whether sounding in tort, contract or otherwise) in any way arising out of, related to, or connected with this Agreement or the relationship established by this Agreement.
21.2. UNITED KINGDOM AND ALL OTHER COUNTRIES
184.108.40.206 All disputes or differences which shall at any time hereafter arise between Provider and Customer in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Provider and Customer shall jointly nominate. If Provider and Customer shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated at the request of either Provider or Customer by the President for the time being of the British Computer Society. The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Provider and Customer.
220.127.116.11 This Agreement shall be governed by and construed in accordance with English law and (subject always to Clause 21.2) the parties submit to the exclusive jurisdiction of the courts of England and Wales.
22.1. Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore.
23. SALES TAXES
23.1. Save insofar as otherwise expressly provided, all amounts in this Agreement are expressed exclusive of any and all applicable sales tax, use tax, lease tax and any similar tax added as a result of any license made hereunder and shall upon the issuance of an assessment of any of the foregoing be paid by the Customer making use of the software and such Customer shall be exclusively liable therefor and fully indemnify, defend and hold the Contracting Party harmless with respect thereto.
24. RETURNS POLICY
Company will only consider a refund or credit for CloudSignage Licences that have not been added to a CloudSignage Network and the request for a refund or credit has been received and acknowledged by CloudSignage within 30 days from the date the CloudSignage Licence or Licences were issued.
N.B. UNLESS OTHERWISE STATED, ALL TIMES REFERRED TO IN THE SCHEDULES REFER TO THE FOLLOWING HOURS:
MONDAY 08:00 – Midnight
TUESDAY 08:00 – Midnight
WEDNESDAY 08:00 – Midnight
THURSDAY 08:00 – Midnight
FRIDAY 08:00 – Midnight
ALL TIMES ARE UNITED KINGDOM GMT AND EXCLUDE U.K. PUBLIC HOLIDAYS
CloudSignage – accessible through http://cloudsignage.my
HOSTED APPLICATION HOURS:-
The Hosted Application will be available for Customer to connect to and use 24 hours/365 days per annum, subject to the exceptions detailed in Schedule 2 section 6 of this Agreement.
SERVICE AND SERVICE LEVELS
PART I – SERVICES
1. Purpose and Scope
This schedule defines the specific services for Customer that Provider will provide:
a. Customer Support:
i) email support via firstname.lastname@example.org
ii) online support ticket registration form available from the support menu within the Hosted Application
iii) Via “live chat” with the application, during Customer Service Hours as set out below.
b. Backup Services:
i) all Customer Data on the Hosted Application will automatically be backed up daily.
2. Customer Service Hours
Customer service helpdesk, will be available to accept, and work on support calls received from Customer between the hours of 09:00am and 17:30pm Monday through Friday and exclude U.S. Public Holidays. If you reside in the U.S., all times specified are U.S. local Times in the time zone specified (i.e. Central Time Zone). For residents in all other countries, all Times are GMT and exclude U.K. Public Holidays. Emails may be sent to email@example.com
3. Online Availability
The Hosted Application will be available to Customer for a minimum of 95% of the Hosted Application Hours. The percentage of online availability will be calculated on a monthly basis, and will be a reflection of the availability of the Hosted Application over the total number of “Hosted Application Hours” for the month.
4.1 Backup Frequency
Backup is a daily process with complete load balancing.
5. Recovery times for System Failures
Complete System Failure – where it is necessary to completely re-build the server – within 24 hours of the fault being first fully reported to Provider.
System failure – where a single element can be replaced with a functioning one, without the need to re-boot the server – within 4 Customer Service Hours of the fault being first fully reported to Provider.
6. Agreed Outages
6.1 Sever Operating System Patches & Upgrades
Server operating system patches and upgrades will only be applied to the server, should they be required to ensure continued support by the operating system vendor.
6.2 Application Upgrades
Hosted Application upgrades will only be applied to the server, should they be required to ensure continued support by the Hosted Application supplier or manufacturer.
CUSTOMER SUPPORT RESPONSE TIMES
Provider shall provide the following response times to calls received via the following channels:
Notifications to Customer support submitted via Provider “Customer Support” web page, and emails sent to Provider Customer support email address will be responded to on a first come first serve basis of receipt subject to severity and except where application problems are handled as a priority over “how to” problems. Details of the incident and contact information will be taken from the submitted template, a service request will be raised, and the service request number will be returned to Customer in the response.
In each case, Provider will assign the appropriate level of priority and an appropriate support analyst to the service request, and Provider shall use its reasonable endeavours to ensure that work shall commence within the times specified in the table below.
Response High Priority Medium Priority Low Priority
The call will be addressed by support analyst within 20 minutes 40 minutes 60 minutes
Maximum target for provision of plan for resolution or circumvention 1 Day 2 Days 3 Days
Provision of Temporary Fix A.S.A.P. A.S.A.P. A.S.A.P.
Provision of Permanent Fix A.S.A.P. A.S.A.P. A.S.A.P.
A “Temporary Fix” is an acceptable temporary work around the issue which allows the Service to be provided without substantial degradation in performance. A temporary fix can include changing back to a previous version of software. Such a fix will only be implemented with the agreement of Customer’s Representative.
A “Permanent Fix” is a permanent resolution of the issue which restores the Service to optimum level.
A.S.A.P. Means in such reasonable time as is physically and technically possible with due regard for the severity and complexity of the issue and the integrity of the solution.
Priority is a measure based on impact and severity as set out in the following section, and dictates the response that the event will receive.
Classification of Support Priorities
HIGH – A major issue which prevents the Hosted Application or a part thereof from being run and/or cripples the Hosted Application or a part thereof or causes severe performance degradation; causes a halt to the operation of important tasks by Customer or places the operation of such tasks at risk;
For example: inability to log in to the Hosted Application or inability to update media content to connect with Enabled Devices.
MEDIUM – A major problem with the running of the Hosted Application or any failure of the Hosted Application to perform in accordance with and provide the facilities, functions and capacity as set out in the relevant technical documentation provided by Provider;
For example: Loss of key reports resulting in information having to be sourced by other means.
LOW – A minor inconvenience which causes minor disruption to normal working;
For example: Not being able to change Enabled Device records or add support information.
SUPPORT CALL IMPACT AND SEVERITY GUIDELINES
When Customer logs a support call with Provider, impact and severity will be assigned to the call using the following guidelines and Provider’s reasonable discretion:
Impact: – the extent the problem would have on Customer’s business continuity (reflecting number of people affected)
Single User A single User is affected.
Functional group A number of Users, grouped by business function are affected.
Geographical group A number of Users, grouped by their geographical location are affected.
Organisation All the Users within Customer’s organisation are affected.
Severity: – how severely Customer’s business is impacted.
SEVERITY DESCRIPTION EXAMPLE
Unable to carry out business function The problem prevents the User from performing its business function. The Hosted Application is unavailable.
Major inconvenience The problem allows User(s) to continue to perform their business function in a restrictive manner, and seriously reduces the efficiency of the User(s) within the business. Unable to print reports.
Minor inconvenience The User is able to perform its business function, but a matter has been identified which reduces the efficiency of the User(s) within their business function. Unable to add support entry against the Enabled Device.
The call logging system automatically escalates based on the time that a call remains in a particular status & impact/severity.
Escalation levels:- 1- Support analyst notified
2- Support analyst and team leader notified
3- Support analyst, team leader and support manager notified
4- Support analyst, team leader, support manager and director notified
Customer can request escalation by contacting Provider “Customer Support” within Hosted Application Hours.
Escalation levels 1 + 2 are to ensure that initial contact is made with Customer.
Escalation levels 3 + 4 are to ensure that the maximum target for provision of plan for resolution or circumvention is met.
HIGH PRIORITY MEDIUM PRIORITY LOW PRIORITY
ESCALATION LEVEL 1 When call is logged When call is logged When call is logged
ESCALATION LEVEL 2 20 minutes 40 minutes 60 minutes
ESCALATION LEVEL 3 4 hours 8 hours 2 Days
ESCALATION LEVEL 4 1 Day 2 Days 3 days
REPORTS AND SERVICE LEVEL REVIEWS.
Provider will use industry standard tools to monitor and automatically report on the levels of service that are being delivered to Customer. The reports will include statistics on network, application and support calls. The reports will be made available to Customer online within the Service.
Interruptions to the Service or Outages arising directly or indirectly from:-
i. interruptions to the flow of data to or from the Hosted Application and other portions of the internet;
ii. changes to the Hosted Application or CloudSignage Network (including the implementation of any necessary upgrades and operating system patches) and other housekeeping tasks which need to be made and of which Provider gives Customer at forty-eight (48) hours prior written notice and subject to such works being effected between the hours of 6:00pm and 6:00am U.S. Central Time Zone for U.S. residents and GMT for residents in all other countries and Provider striving to minimise the interruptions/Outages that may be caused by such change;
iii. the effects of the failure or interruption of services provided by third parties [who are not Provider’s agents];
iv. factors outside of Provider’s reasonable control;
v. any actions or omissions of Customer (including, without limitation, breach of Customer obligations set out in the Agreement) or any third parties [who are not Provider’s agents];
vi. Customer’s equipment and/or third party equipment;
vii. Scheduled Outages as described below:-
a. Server Operating System Patches & Upgrades
Server operating system patches and upgrades will only be applied to the System, should they be required to ensure continued support by the operating system vendor.
b. Application Upgrades
Application upgrades will only be applied as necessary to facilitate continued support.
viii. Customer requested interruptions to the Service.