MYSTEMKITS SERVICE AND USE AGREEMENT
Please read thoroughly and ‘Agree’ to this service agreement by checking the box during your account setup process.
This Services Agreement (this “Agreement”), is entered into by and between the parties named on the Subscription Page above, as of the date last appearing on the signature page above (the “Effective Date”), and states the terms and conditions that govern this contractual agreement.
WHEREAS, MyStemKits.com, LLC, a Georgia limited liability company (the “Company”) is in the business of provided vetted educational manipulatives for 3D printing devices, and related services (the “Services”);
WHEREAS, the Client wishes to contract with the Company for subscription to one or more of the Company’s Services, including access to the Company’s software (the “Software”) of a ‘software-as-a-service’ basis; and
WHEREAS, the Company wishes to provide such Services and a license to use the Software, under the terms of the specific license type detailed on the Subscription Page above, and as further described in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises made by the parties to this Services Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Client (individually, each a “Party” and, collectively, the “Parties”) covenant and agree as follows:
TERMS AND CONDITIONS
1. TERMS; SERVICES.
1.1 The following terms and conditions (these “Terms and Conditions”) provide for terms that are common to all clients of the Company, regardless of the type of Services selected.
1.2 The Services to be provided by the Company shall consist of those Services selected on the Subscription Page, as the same may be updated by agreement of the Parties, from time to time.
2. SAAS SERVICES AND SUPPORT.
2.1 If the Client has selected a subscription Service, the Company will provide the Client with remote access to the Company’s Software, at the level set forth on the Subscription Page. Certain Software Services, and related browser and operating system compatibility, are more specifically described on Schedule A attached hereto, and may be updated by the Company, with notice to the Client, from time to time. During the Term and subject to the Client’s compliance with this Agreement, the Company grants the Client a non-exclusive, non-transferable, non-assignable, and limited right and license to remotely access the Software that is located on the Company’s server in accordance with the terms of this Agreement.
2.2 Subject to the terms of this Agreement, and the Services selected by the Client, the Company will use commercially reasonable efforts to provide the Client the Services in accordance with the Service Level Terms attached hereto on Schedule A.
2.3 Subject to the terms hereof, the Company will provide the Client with reasonable technical support services in accordance with the terms set forth on Schedule A.
2.4 The Client acknowledges that certain maintenance activities regarding the Services may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. Where such maintenance activities are not reasonably anticipated to materially impact the Client’s use of the Services, the Company will have no obligation to provide notice to the Client regarding such maintenance activities. If the Company reasonably determines that maintenance activities will require an unavailability or outage of the Services in excess of ten (10) consecutive minutes, the Company will give the Client advance notice, by posting such notice through the Services or otherwise. The Company will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
2.5 To allow the Client to evaluate the Services, the Client may be provided the opportunity to activate a free trial account to use and access the Services, set forth on the Subscription Page as Pilot Use (the “Pilot”). The Pilot shall be for the period of time set forth on the Subscription Page (“Pilot Period”). If the Client has a Pilot Period, then, in connection with such Pilot Period (1) no fees will apply, except for any Pilot Use Fee specified in the Subscription Page, (2) the Services shall be provided “AS IS” and no warranty or other obligations of the Company will apply, and (3) the Client may terminate this Agreement and all of its rights hereunder by providing the Company written notice thereof, on no less than ten (10) days’ prior notice to the end of the Pilot Period. In the event that this Agreement is not so terminated, then this Agreement shall continue in effect for the Initial Service Term (subject to earlier termination as provided in the Agreement). The Company may, on a case by case basis and in its sole discretion, extend the Pilot Period.
2.6 Certain portions of the Services and certain materials, including certain educational products, may be provided or owned by third-parties (“Third-Party Content”). The Client acknowledges and agrees that the Company does not control, and is not responsible for, any materials, services, or products (including software) that the Client accesses, downloads, receives or purchase through or relating to Third-Party Content while using the Services. The Company is not a publisher of Third-Party Content accessed through the Services and is not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Services. From time to time, the Services may contain references or links to third-party materials not controlled by the Company, and the Company provides such information and links as a convenience to the Client only and this should not be considered endorsements of such sites or any materials, products or information offered on such sites. The Client further acknowledges and agrees that it is solely responsible for entering into and complying with any terms and conditions governing such Third-Party Content.
3. HARDWARE PACKAGES.
3.1 In the event that the Client has selected an Optional Printer Package as part of the Services, as detailed on the Subscription Page, then the Client understands that all hardware received pursuant to such package (collectively, the “Hardware”) is produced, distributed and provided by a third-party (the “OEM”) who is unaffiliated with the Company, and is provided as a convenience to the customers of the Company.
3.2 All representations and warrants related to, and support in connection with, orders of Hardware shall be made by the OEM alone, and the Client shall look only to the OEM on account of such matters.
3.3 The Company shall have no liability or responsibilities with respect to such Hardware, and expressly disclaims any express or implied warranties with respect thereto.
4. OWNERSHIP RIGHTS.
4.1 All title, ownership rights, and Intellectual Property Rights in and to the Company’s Software, and all Company service marks, trademarks, tradenames and logos (and all derivative works and copies thereof) are and will remain owned by the Company. The Client acknowledges that the Software in source code form remains Proprietary Information of the Company and that the source code is not licensed to the Client by this Agreement or any Schedule or Order and will not be provided by the Company under any circumstances. The Software may only be used by the Client and its authorized end users.
4.2 All title, ownership rights, and Intellectual Property Rights in materials that the Client owns will remain owned by the Client, including the Client Data (as defined below).
4.3 “Intellectual Property Rights” means any and all rights to exclude, existing from time to time in any jurisdiction, under patent law, copyright law, moral rights law, trade-secret law, semiconductor chip protection law, trademark law, unfair competition law, or other similar rights.
5. FEES AND PAYMENT TERMS.
5.1 Fees payable under this Agreement shall be in the amounts and payable on the terms set forth on the Subscription Page, and as otherwise set forth in this Section 5. If the Client’s use of the Services exceeds the maximum permitted usage pursuant to that level of Service specified on the Subscription Page, or otherwise requires the payment of additional fees (per the terms of this Agreement), then the Client shall be billed for such usage and the Client agrees to pay the additional fees in the manner provided herein. Except as otherwise may be set forth on the Subscription Page, all payments for fees shall be due upon the commence of the Services, or, if payable monthly, then on the first day of the applicable month in which such Service is to be provided, prospectively. Any other fees (if any), shall be payable within thirty (30) days from receipt by the Client of an invoice for the same.
5.2 If the Client believes, in good faith, that the Company has incorrectly billed the Client, then the Client must contact the Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to dispute the same. Any such inquiries should be directed to the Company’s customer support department.
5.3 The Company reserves the right to change the fees for its Services, or other applicable charges, and to institute new fees and charges at the end of the Initial Term or then‑current renewal term, upon thirty (30) days prior notice to the Client (which may be sent by email). All fees paid under this Agreement shall be payable in United States Dollars ($), unless otherwise agreed by the Company.
5.4 Unless specifically provided in this Agreement otherwise, the Company shall not issue any refunds upon any termination or cancellation of this Agreement, for any reason, once payment is received.
5.5 The Client will pay a late fee of up to one and one-half percent (1.5%) per month (not to exceed the maximum allowed under applicable State law) on all balances not paid when due, for undisputed invoices only. Further, the Client shall reimburse the Company for all costs incurred by the Company in collecting any late payments or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) of the outstanding amount owed, court costs and collection agency fees. The Company may, at its option, suspend the Services, in whole or in part, if the Company does not receive all undisputed amounts due and owing under this Agreement when due.
5.6 All amounts payable to the Company under this Agreement shall be paid by the Client in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). The Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
6. CLIENT OBLIGATIONS.
6.1 The Client understands and agrees that it is fully responsible for the determination of the safety and appropriateness of 3D printing, within the Client’s use context, and that the Company makes no representations or warranties with respect to the same, and shall have no liability with respect thereto. 6.2 The Client must have required equipment, software, and Internet access to be able to use the Software Services. The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). The Client shall also be responsible for maintaining the security of the Equipment, the Client’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Client’s account or the Equipment with or without the Client’s knowledge or consent. The Company neither represents nor warrants that the Company’s Software will be accessible through all web browser releases or all versions of tablets, smartphones, or other computing devices.
6.3 The Client shall not and shall not permit others in using the Company’s website, Software or Software Services to: (i) infringe the legal rights of others or the Company; (ii) distribute any unlawful material; (iii) engage in criminal activity; (iv) transmit any malicious software or other programs; (v) disrupt any the Company’s systems. The Company has no obligation to monitor the Client’s use of the Company’s Software and Software Services; however, the Company reserves the right, at all times, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms of this Agreement, and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. The Client is fully responsible and liable for its end users’ use of the Services in compliance with the terms of this Agreement and as required by law.
6.4 As part of the registration process, the Client will identify an administrative user name and password for the Client’s Company account. The Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. The Client is responsible for the use and safekeeping of all passwords associated with its account. The Client acknowledges and agrees that the Company shall not be liable for any loss that the Client or may incur as a result of someone else using a password that has been assigned to or obtained by the Client or its end users, either with or without the knowledge of the Client; nor shall the Company be liable or responsible for any unauthorized access or misuse of the Software Services by Company or any of its end users.
7 RESTRICTIONS AND RESPONSIBILITIES.
7.1 The Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, 3D Models, STL Files, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Company Software (except to the extent expressly permitted by the Company or authorized within the Services); use the Services or any Company Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
7.2 Further, the Client may not remove or export from the United States or allow the export or re-export of the Services, Company Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
7.3 The Client will not distribute, share, or publish any lesson plans or files that are made available while using the portal. Such documents are only to be used during the term of the license, and usage must cease when the license granted hereunder is terminated.
7.4 The Client represents, covenants, and warrants that the Client will use the Services only in compliance with the Company’s standard published policies, as they are then in effect (each, a “Policy”) and all applicable laws and regulations. The Client hereby agrees to indemnify and hold harmless the Company and any of its officers, directors, employees or agents against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) arising out of or related to any claim: (i) that any client software, marks, or materials provided by the Client to the Company or inputted into the Company’s Software, or the permitted use of the same by the Company, infringes or violates any third party patent, copyright or trade secret right; (ii) involving the Client’s unauthorized use or reproduction of the Company’s Software; (iii) involving the Client’s fraud or intentional misconduct; (iv) involving the Client’s violation of Section 8 of this Agreement; or (v) involving injury (including death) or damage or destruction to real or tangible property, to the extent resulting from the acts or omissions of the Client or its personnel.
7.5 In addition to the foregoing Client indemnifications, the Company shall have no liability for infringement claims and the Client will defend, indemnify, and hold harmless the Company, if the alleged infringement is based on or arises from (i) any combination or use of the Company’s Software with hardware, software, or other materials not provided by the Company, or not done otherwise at the Company’s instruction, (ii) the modification of the Company’s Software by anyone other than the Company, or at the Company’s direction, (iii) the use of the Company’s Software not in accordance with provided documentation or this Agreement, or (iv) the use of other than the then most current version of the Company’s Software, if the use of the most current version of the Company’s Software would have eliminated the infringement, and the Client was notified of the same and provided a reasonable opportunity to avoid such use.
7.6 Although the Company has no obligation to monitor the Client’s use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
8. CONFIDENTIALITY; PROPRIETARY RIGHTS. 8.1 Each party receiving any Proprietary Information (as defined below) hereunder (a “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Client includes non-public data provided by the Client to the Company to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect Proprietary Information of the Disclosing Party, which shall include measures which are not less stringent than those used to protect its own confidential information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except for any information which may constitute a “trade-secret” under applicable law, with respect to which such obligations shall attached for the maximum period permitted by law) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. 8.2 Notwithstanding anything above or herein to the contrary, the Client agrees that data derived by the Company from the Company’s performance of the Services or input by the Client may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules, except that such analysis shall be performed solely by the Company and such analysis shall be performed only in conjunction with data derived by the Company from the Company’s performance of services for other customers, input by other Company customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by the Company for any lawful purpose. Notwithstanding anything contained in this Agreement to the contrary, De-identified Data shall not contain (i) any Proprietary Information of the Client, (ii) any information that identifies or can be reasonably used to identify an individual person, (iii) any information that identifies or can be reasonably used to identify the Client, or any of its affiliates, suppliers, or end users, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of the Client. Except as otherwise provided herein, the Company shall only use the Client’s Proprietary Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).
9. TERM AND TERMINATION.
9.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified on the Subscription Page, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.
9.2In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment by Client), if the other party materially breaches any of the terms or conditions of this Agreement. The Client will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, the Company will make all Client Data available to the Client for electronic retrieval for a period of thirty (30) days, but, thereafter, the Company may, but is not obligated to, delete stored Client Data.
9.3 All sections of this Agreement which, by their nature, should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
10. WARRANTY AND DISCLAIMER. The Company represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will be performed substantially in accordance with the documentation under normal use and circumstances. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 10, NEITHER THE COMPANY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE CLIENT, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET THE CLIENT’S REQUIREMENTS.
The Company shall hold the Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided that (i) the Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; and (ii) the Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service: (i) not supplied by the Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that fall under one or more of the exceptions noted in Section 7.5, or (vi) where the Client’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by the Company to be infringing, then the Company may, at its sole option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for the Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and the Client’s rights hereunder, and provide the Client a refund of any prepaid, unused fees for the Service.
12. LIMITATION OF LIABILITY.
12.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND THE COMPANY’S REASONABLE CONTROL.
12.2 IN NO EVENT SHALL THE COMPANY’S LIABILITY FOR ANY DAMAGES TO THE CLIENT OR TO ANY OTHER PERSON OR ENTITY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EXCEED, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, THE FEES ACTUALLY PAID BY THE CLIENT TO THE COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. DISPUTES; ARBITRATION.
Any dispute, controversy or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof, upon the request of any party involved, shall be submitted to, and settled by, arbitration within Fulton County, State of Georgia, pursuant to the commercial arbitration rules then in effect of the American Arbitration Association (or at any time or at any other place or under any other form of arbitration mutually acceptable to the parties so involved). Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the Parties to the arbitration; provided, however, that each Party shall pay for and bear the cost of its own experts, evidence and counsel’s fees; and provided further, however, that, in the discretion of the arbitrator, any award may include the cost of a Party’s counsel if the arbitrator expressly determines that the Party against whom such award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a dilatory tactic.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-liscensable by the Client, except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement represents the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications of this Agreement must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Client does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Georgia without regard to its conflict of laws provisions. The Parties shall work together in good faith to issue at least one mutually agreed upon press release within ninety (90) days of the Effective Date, and the Client otherwise agrees to reasonably cooperate with the Company to serve as a reference account, upon reasonable request.
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If the Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond the Company’s control will also be excluded from any such calculation. The Client’s sole and exclusive remedy, and the Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one (1) hour, the Company will credit the Client five percent (5.0%) of the applicable Service fees for each period of thirty (30) or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as the Client (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, the Client must notify the Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service fees in any one (1) calendar month in any event. The Company will only apply a credit to the month in which the incident occurred. The Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of the Company to provide adequate service levels under this Agreement.
Support / Helpdesk Services
The Company will provide Technical Support to the Client via both telephone and electronic mail on weekdays during the hours of 9:00 a.m. through 5:00 p.m., prevailing Eastern Time, with the exclusion of U.S. Federal Holidays (“Support Hours”).
The Client may initiate a helpdesk ticket during Support Hours by calling (404) 478.2733, or any time by emailing email@example.com.
The Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.