Privacy & Use Policies

GENERAL TERMS AND CONDITIONS

1.   THE HOSTING SERVICES AGREEMENT

The Hosting Services Agreement (HSA) incorporates the following provisions and documents by reference:

(i) the Services Description contained in the Hosting Services Agreement that describes the Services you (Client) are buying; (ii) these General Terms and Conditions containing the general terms and conditions applicable to all Services; (iii) the Acceptable Use Policy; (iv) the Hosting Services Terms and Conditions including fees for all services; and (v) the Terms and Conditions Regarding Use of Microsoft Software. When we use the term “Hosting Services Agreement” or “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the form of Agreement prepared by Singularis.

 

2.   DEFINED TERMS

Some words used in the Agreement have particular meanings:

“Acceptable  Use  Policy”  or  “AUP”  means  the  Acceptable  Use  Policy  can  be  found  at

http://singularisit.com/company/policies/

 

“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States Eastern Time, excluding federal public holidays in the United States.

“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as Confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Client Data, information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; (b) information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; (c) information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; and (d) information that must be disclosed pursuant to court order or by law.

“Client Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Hosted System.

 

“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system. The Hosted System consists of a dedicated system for your use only.

 

“Hosting Services” means: (i) Singularis’ provision for your use of the Hosted System described in the Services Description, and (ii) Support.

 

“Product Terms and Conditions” means the terms and conditions for the particular Hosting Services you are buying.

 

“Services Description” means a written description of the Hosted System and/or Supplementary Services you are buying from Singularis, and related fees that is contained in the Agreement.

 

“Services” means Hosting Services and Supplementary Services, collectively.

 

“Supplementary Services” means those services you purchase from Singularis other than the Hosting Services, such as database administration or “DBA” services, and assistance or support for the application that you operate on your Hosted System, whether or not they are identified in the Services Description. Fees for Supplementary Services that are not described in the Services Description contained in the Agreement shall be billed at Singularis’ standard hourly rate.

“Support” has the meaning stated in the Hosting Services Terms and Conditions.

 

3.   OUR OBLIGATIONS

Singularis IT, LLC’s obligation to begin providing Services is contingent on your satisfaction of Singularis IT, LLC’s credit approval criteria. Singularis will provide the Hosting Services in accordance with the Service Description, and other specifications in this Agreement. Singularis will perform any Supplementary Services in a good and professional manner. Singularis will maintain the following security practices:

 

  • Physical Access: The servers used to provide the Services will be located in a controlled access data center operated by CoreSite. Information concerning CoreSite’s security measures will be provided upon request; however, Singularis cannot and does not represent, warrant or guaranty the effectiveness of these security measures, nor does it represent, warrant or guaranty that CoreSite will not modify these security measures and Unless otherwise agreed in writing in a Quote, all services performed by SingularisIT personnel are performed from the United States.

 

 

  • Singularis Personnel: Singularis will perform background screening of its employees and independent contractors who will have access to accounts. Access. Singularis will restrict the use of administrative access codes for accounts to its employees and other agents who need the access codes for the purpose of providing the services. Singularis’ personnel who use access codes shall be required to log on using an assigned username and password.

 

  • Security: SingularisIT shall take commercially reasonable measures to provide the security safeguards listed in this HSA. Other than with respect to such responsibilities identified as a SingularisIT responsibility in this HSA, Client acknowledges and agrees that SingularisIT is not responsible for the integrity or security of any Client Data. Although SingularisIT may offer various security-related Services, SingularisIT agrees to perform only the specific security Services set forth in the Proposal and as may be. SingularisIT agrees to notify Client promptly upon becoming aware of any unauthorized access to the Client Equipment in the Facility, or any unauthorized access to, or unauthorized disclosure of, the Client Data hosted on SingularisIT Hosted Systems.

 

 

4.   YOUR OBLIGATIONS

You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with Singularis’ reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date via a defined process established by Singularis. You must pay when due the fees for the Services stated in the Services Description or any other agreement between us. Client. Client Data Security: You shall use commercially reasonable security precautions in connection with the use of the Services (including encrypting Regulated Client Data) and shall require its end users and Clients to use commercially reasonable security precautions. It is Client’s responsibility to ensure logical security protection and backup and recovery of Client Data, except to the extent SingularisIT has specifically agreed to provide such Services in a Proposal. Client agrees to notify SingularisIT promptly upon becoming aware of any unauthorized access to, or unauthorized disclosure of, the Client Data on SingularisIT Hosted Services. Client shall cooperate with SingularisIT in any investigation of the use or possible use of the Client’s data or the SingularisIT Services for any illegal purpose. Client must apply and, with respect to Services managed by SingularisIT, hereby consents to SingularisIT’s application of all security patches or updates to Client’s software, firmware or operating system in order to mitigate the possibility of system or

 

data compromise. Unpatched systems that cause a security risk to the SingularisIT Network may be shut down or blocked in SingularisIT’s sole discretion. Client is solely responsible for determining the suitability of the Services in light of the type of Client Data used with the Services.

 

 

5.   PROMISES WE DO NOT MAKE

  • We do not promise that the Services will be uninterrupted, error-free, or completely You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Client Data, Confidential Information and property.
  • We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the services chosen, including the suitability as it relates to your Client Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
  • We do not promise to back up your data unless you have purchased backup services. If you purchase backup services, we do not promise to retain the data backup for longer than the agreed data retention period.
  • We will provide Support only to your administrative or technical contacts listed on your We will not provide support directly to your end users unless specifically agreed in writing.
  • You are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements.

 

6.   ACCESS TO YOUR CLIENT DATA OR USE OF THE SERVICES

Singularis is not responsible to you or any third party for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Singularis’ failure to meet its security obligations stated in Section 3 (Our Obligations) of these General Terms and Conditions. You are responsible for the use of the Services by any employee of yours, any person you authorize to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.

Singularis agrees that it will not use or disclose Client Data. Client Data is and at all times shall remain the exclusive property of Client and will remain in the exclusive care, custody, and control of Client.

 

7.   PAYMENTS

 

  • Billing Start Date. Unless otherwise set forth on the Quote with respect to Services on the Quote, Billing for Services will begin as Services are Installed or on the sixtieth (60th) day after the Effective Date of the applicable Quote, whichever is earlier (the “Billing Start Date”). “Installed” means the date a Service is first made available to Client; provided, that if Client is not able to use the Service beginning on the date the Service is first made available to Client solely as a result of delays caused by Singularis IT, LLC, then the Billing Start Date shall be extended for each day of delay caused by Singularis IT, LLC. In the event a portion of the Services have been Installed, Singularis IT, LLC will invoice Client for such portions which have been Installed and Client will pay for such Services in accordance with this Section 6.
  • All recurring charges for Services will be invoiced by Singularis IT, LLC on a monthly basis, except for charges that are dependent upon the level of usage, which will be billed a month in arrears. With respect to Services dependent on the level of usage, overages will be billed at the standard rate(s) set forth in the applicable Quote. Invoicing for partial months will be prorated based on a calendar month (and may be billed in arrears) and setup and other non-recurring charges will be invoiced when incurred unless otherwise set forth on the applicable Quote.

 

  • Due All undisputed invoices are due within thirty (30) days of the invoice date, unless otherwise stated on the invoice. All payments for Services will be paid in US dollars. Any undisputed payment not made when due will be subject to late charges of 1.5% per month (prorated on a daily basis beginning on the past due date), or the highest rate allowed by law, whichever is less. Client will be liable for any reasonable attorneys’ fees or other costs associated with collecting late payments. Additionally, unpaid charges thirty (30) days after the due date could result in the suspension of your account and services. Singularis will provide 12 hours’ notice prior to suspension for non-payment. Client waives any claims related to suspension of Services. In the event Client fails to pay undisputed invoices when due two or more times, Singularis IT, LLC may require a security deposit in the amount of one month of recurring fees and charges as a condition to providing continued Service.
  • Pass-Through Service If Singularis IT, LLC experiences an increase in rates and charges for Services provided by or through a third-party, including but not limited to increases in the electrical rate applicable to the Services and third-party software license, maintenance, and support fees, Singularis IT, LLC may increase the applicable rates and charges to Client in a proportional amount upon thirty (30) days prior written notice.
  • Invoice Invoice disputes must be registered in writing to Singularis IT, LLC, via email to: [email protected] or such other method as Singularis IT, LLC may reasonably determine and communicate in writing. Client waives the right to dispute any invoiced amount, including all rights to otherwise claim it does not owe such disputed amount or to seek any set-offs or reimbursements or other amounts of any kind based upon or relating to such disputed amount, unless: (i) Client provides

Singularis IT, LLC with written notice in accordance with this Section that it disputes such amount, describing the nature of the dispute with sufficient detail to reasonably permit Singularis IT, LLC to

investigate the dispute, by no later than sixty (60) days after the invoice due date, and (ii) Client pays any undisputed amounts on the same invoice, by no later than sixty (60) days after the invoice due date. Any disputed amounts resolved in favor of Client shall be credited to Client’s account, and amounts payable to Singularis IT, LLC shall be paid, within ten (10) days of dispute resolution.

 

8.   TAXES ON SERVICES

If Singularis is required by law to collect taxes on the provision of the Service, you must pay Singularis the amount of the tax that is due or provide Singularis with satisfactory evidence of your exemption from the tax. You must provide Singularis with accurate factual information to help Singularis determine if any tax is due with respect to the provision of the Services.

 

9.   EXPORT MATTERS

You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Singularis is legally prohibited from providing the Services. You 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 the Part 740 of the United States Export Administration Regulations, or as otherwise prohibited by law, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.

 

 

10.   CHANGES TO THE ACCEPTABLE USE POLICY

  • We may change the Acceptable Use Policy to add or modify restrictions on our Clients’ use of the Services, provided that the changes are reasonable and consistent with hosting industry norms. If we make a change to the AUP we will provide you with a revised version of the The revised AUP will

 

become effective as to you on the first to occur of: (i) the first day of a renewal term for the Agreement that begins at least thirty (30) days after the time that the revised AUP has been posted, or (ii) your execution of a new or additional agreement for all or part of your Hosted System that incorporates the revised AUP by reference, or (iii) thirty (30) days following our written notice to you of the revision to the AUP.

  • If your compliance with the revised AUP would adversely affect your use of the Hosting Services, and you give a written notice of your objection no later than thirty (30) days following the date that the revised AUP would otherwise have become effective as to you, we will not enforce the revision as to you until sixty (60) days following the date the revision would otherwise have become effective as to you and you will continue to be subject to the prior version. During the sixty (60) day period, you may elect to terminate the Agreement on these grounds by giving written notice. We will not charge you an early termination fee for a termination on these If you do not elect to terminate during the sixty (60) day period, then the revised AUP will become effective as to you as of the end of the sixty (60) day period. If you terminate your Services under this Subsection, we may decide to waive that change as to you and keep your Agreement in place for the remainder of the term.

 

11.   SUSPENSION OF SERVICES

We may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your Hosted System or your Hosted System is accessed or manipulated by a third party without your consent, (iv) we are required by law, or a regulatory or government body to suspend your Services, or (v) there is another event for which we reasonably believe that the suspension of Services is necessary to protect the network or our other Clients. We will give you advance notice of a suspension under this paragraph of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Singularis or its other Clients from imminent and significant operational, legal, or security risk. If your Hosted System is compromised, then you must address the vulnerability prior to Singularis placing the Hosted System back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.

 

12.   TERMINATION

  • Termination for Convenience
  1. All notice of terminations or cancellations must be provided in writing as stated under Section 24 (Notices). Sixty (60) days’ notice of termination or cancellation is required and begins on the time posted or delivered, as stated under Section 24 (Notices). Termination or cancellation of this agreement, prior to the end of contract term, will be subject to an early termination fee payable to Singularis IT, LLC equal to 60% of fees which would have been due and payable to Singularis IT, LLC for the remainder of the contract term.

 

12.2   Termination for breach

  1. You may terminate the Agreement for breach if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
  2. We may terminate the Agreement for breach if: (i) we discover that the information you provided for the purpose of establishing the Services and our fees is materially inaccurate or incomplete, (ii) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the Client, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within five (5) Business Days of our written notice, or (iv) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation, or if your agreement for any other Singularis service is terminated for breach of the acceptable use policy applicable to that service.

 

  1. Either of us may terminate the Agreement if the other party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or any similar laws of the United States or any state of the United States.
  2. Failure of either party to seek redress for violation of or to insist upon the timely performance of any of the terms, covenants or conditions of the Agreement (regardless of the length of the breach), shall not be deemed to be a waiver by that party of any of its rights No waiver by either party at any time, expressed or implied, of any breach of any provision of the Agreement shall be deemed a waiver of the breach of any other provision of the Agreement or a consent to any subsequent similar breach or breach of any other provision. No breach of a covenant, obligation, or condition of the Agreement shall be deemed to have been waived by the non-breaching party, unless such waiver is in writing signed by the non- breaching party.

 

  • Removal of Client Data from Singularis IT, LLC Equipment Upon Termination. Upon termination or expiration of the HSA or all or a portion of the Cloud or Managed Services for any reason, Client shall promptly remove and delete all Client Data from applicable Singularis IT, LLC Equipment at Client’s sole risk and expense using Client’s preferred technology solution. Client may request Singularis IT, LLC to provide professional Services at Client’s expense to assist Client with such removal and To the extent Client does not remove and delete all Client Data from applicable Singularis IT, LLC Equipment by the date of termination or expiration of the HSA for any reason (or upon cessation of all or a portion of Cloud or Managed Services) (the “Abandoned Client Data”), Singularis IT, LLC shall have no responsibility to Client or any third party with respect to such Abandoned Client Data and shall be entitled to destroy such Abandoned Client Data at Client’s sole risk and expense. Singularis IT, LLC shall not be liable to Client or any third party for the security or integrity of, or as a result of such destruction of, Abandoned Client Data, for any reason or under any legal theory whatsoever.

 

13.   CONFIDENTIAL INFORMATION

Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:

  • to each of our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions;
  • to a law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
  • as required by law; or
  • in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.

 

14.   COMPLIANCE

  • Business Associate Agreement. Client agrees to notify Singularis IT, LLC before using the Services to create, receive, transmit, use or disclose “Protected Health Information” as defined in regulations established in accordance with the Health Insurance Portability and Accountability Act (“HIPAA”), including by maintaining any Protected Health Information on Singularis IT, LLC Equipment, so that the parties can prepare and enter into a mutually agreeable Business Associate Agreement (“BAA”) based on Singularis IT, LLC’s form BAA. If the parties are unable to execute a BAA within a reasonable period of time, either party may terminate the MSA without liability upon thirty (30) days prior written
  • Responsibility Client acknowledges and agrees that Singularis IT, LLC is neither responsible for knowing what type of information may be created, stored, used or managed by Client in connection with the Services nor for knowing or investigating which laws may or may not apply to such information. If any

 

international, state or federal law requires any specific agreement about such information, it is Client’s responsibility to notify Singularis IT, LLC and, in such event, the parties will work together in good faith to modify the MSA as may be required.

  • Risk Assessment. Client acknowledges and agrees that it: (i) has conducted an assessment of the potential risks and vulnerabilities to the confidentiality, integrity and availability of Client information to be created, transmitted, stored, used or maintained in connection with the Services; (ii) has determined that the and Client’s compliance with applicable law; and (iii) Singularis IT, LLC is not responsible for determining whether any Services are sufficient for Client’s compliance with any applicable law.

 

15.   LIMITATION ON DAMAGES

  • Each party’s liability to the other is limited in accordance with the provisions of this Section 15 (Limitation on Damages).
  • Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive It is understood and agreed by the parties that “lost profits” does not include any profit built into Singularis’ fee for Services as set forth in the Hosting Services Terms. In the event of a breach of the Agreement by the Client Singularis shall be entitled to recover its fees, including any profit therein.
  • We are not liable to you for lost data unless and to the extent you purchase data backup services from Singularis IT, LLC and we fail to provide the backup services as agreed. If you purchase backup services, you release Singularis from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
  • Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Singularis’ gross negligence, the maximum aggregate monetary liability of Singularis and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed: (i) for Hosting Services an amount that is six (6) times one month’s recurring fee under the Agreement for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim, and (ii) for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.

 

 

16.   INDEMNIFICATION

  • If we or any of our employees, agents, or suppliers (the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or alleged negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your Clients or end users, or violation of Section 9 (Export Matters) or Section 18 (Software) of this General Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services because of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your Client or end user arising from an actual or alleged breach of your obligations to them.
  • We will choose legal counsel to defend the claim. You must comply with our requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably You must pay expenses due under this Section (Indemnification) as we incur them.

 

17.   PUBLICITY

We agree that we will not publicly disclose that we are providing Services to you or use your name and logo to identify you as our client in promotional materials, including press releases, without your prior written consent.

 

18.   SOFTWARE

  • You may not copy any software we provide for your use unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open-source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us. In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft’s license terms, and any use restrictions on your use of the Microsoft software as indicated in your Services Description, such as a limitation on the number of users (a “SAL” license). If you use any non-Singularis provided software on your Hosted System, you represent and warrant to Singularis that you have the legal right to use the software in that manner. On Singularis’ request you will certify in writing that you are in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement and will provide evidence of your compliance as we may reasonably request.
  • Client Provided Licenses. If Singularis has agreed to install, patch or otherwise manage software in reliance on your license with a software vendor (rather than Singularis’ license with the software vendor), then you represent and warrant that you have a written license agreement with the vendor that permits Singularis to perform these activities. You agree that you will provide Singularis with evidence of licensing as Singularis may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the If you fail to provide the required evidence of licensing Singularis may, at its option, either (i) delay the deployment date for the Hosted System that was to include such software until the evidence is provided, (ii) deploy the Hosted System in reliance on Singularis’ licensing agreement with the vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate the Agreement. Please Note: Your licensed software may not be compatible with Singularis’ standard process for deploying and repairing Hosted Systems. In addition, in order to install the software Singularis may require you to send the physical or electronic media provided to you by the vendor, both for deployment and again in the event of a failure of your Hosted System. You agree that Singularis will not be in breach of any obligation under this Agreement that would not have occurred but for a delay resulting from our agreement to use your licensed software.

 

 

 

 

19.   RECOMMENDATIONS

Singularis personnel may from time to time recommend third party software or other products and services for your consideration. SINGULARIS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE AND ARE NOT PURCHASED FROM

SINGULARIS OR RECOMMENDED BY SINGULARIS. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.

 

20.   WHO MAY USE THE SERVICE

You may permit your subsidiaries and affiliated companies to use the Services if you wish, however you are responsible for the acts or omissions of your permitted users. Singularis will provide support only to you, not to your Clients, subsidiaries or affiliates. There are no third-party beneficiaries to the Agreement, meaning that your Clients, subsidiaries, affiliates and other third parties do not have any rights against either of us under this Agreement.

 

 

21.   NO HIGH-RISK USE

You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.

 

22.   ANNUAL ESCLATOR

The monthly recurring charges for all Services will increase 3% per year beginning on each annual anniversary of the applicable Service Term Start Date.

 

23.   SERVICES MANAGEMENT AGENT

You agree that you will not interfere with any services management software agent(s) that Singularis installs on your Hosted System. Singularis agrees that its agents will use only a minimal amount of computing resources and will not interfere with your use of your Hosted System. Singularis will use the agents to track Hosted System information so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. Singularis may also use agents to identify security vulnerabilities. Singularis will not use the agents to view or capture your content or data. Your Services will become “unsupported” as described in the Product Terms if you disable or interfere with our services management software agent(s). You agree that Singularis may access your Hosted System to reinstall services management software agents if you disable them or interfere with their performance.

 

24.   NOTICES

Your routine communications to Singularis regarding the Services, including any notice of non-renewal, and all other notices should be sent by electronic mail and first-class United States mail to:

 

Singularis IT, LLC PO Box 91235

Allentown, PA 18109

Singularis’ routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For the purpose of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.

 

25.   CLIENT DATA

Client Data is, and at all times will remain, the exclusive property of Client.

 

26.   OWNERSHIP OF INTELLECTUAL PROPERTY

Each of us retains all rights, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by Singularis during the performance of the Services shall belong to Singularis unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.

 

27.   OWNERSHIP OF OTHER PROPERTY

You do not acquire any ownership interest in or right to possess the Hosted System, and you have no right of physical access to the Hosted System. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your Singularis servers or other devices or media.

 

28.   INTELLECTUAL PROPERTY INFRINGEMENT

If Singularis or any of its Clients is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and Singularis is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Singularis may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.

 

29.   ASSIGNMENT/SUBCONTRACTORS

Neither party may assign the Agreement without the prior written consent of the other party except that Singularis may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganization or a sale of its business. Singularis may use third party service providers to perform all or any part of the Services, but Singularis remains responsible to you under this Agreement for Services performed by its third-party service providers to the same extent as if Singularis performed the Services itself.

 

 

30.   FORCE MAJEURE

Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, 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.

 

31.   INSURANCE

  1. Client Obligations. Client shall procure and maintain, at Client’s sole cost and expense, the following minimum insurance coverage beginning on the Billing Start Date for the first Service Installed pursuant to this HSA and continuing for as long as any Service Term remains in effect: (i) Commercial General Liability Insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 in the annual aggregate; (ii) Cyber Breach Liability Insurance in an amount not less than $1,000,000. Client’s Commercial General Liability and Auto Liability policies shall be endorsed to show SingularisIT as an additional insured, and must contain provisions providing that such insurance is primary insurance insofar as SingularisIT and Client are concerned, with any other insurance maintained by SingularisIT being excess and noncontributing with the insurance required of Client.
  2. SingularisIT Obligations. SingularisIT shall procure and maintain, at SingularisIT’s sole cost and expense, the following minimum insurance coverage beginning on the Billing Start Date for the first Service Installed pursuant to this HSA and continuing for as long as any Service Term remains in effect: (i) Workers’ Compensation in an amount not less than that prescribed by statutory limits; (ii) Employer’s Liability with limits of not less than $1,000,000 per occurrence; (iii) Commercial General Liability Insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 in the annual aggregate; (iv) Auto Liability with a combined single limit of not less than $1,000,000 per occurrence; (iv) ”All Risk” Property Insurance in an amount equal to the full replacement cost of any SingularisIT Equipment used to provide the Services and (v) Professional Liability (Errors and Omissions) Insurance Policy, including Cyber Breach Liability, in an amount not less than $1,000,000. All SingularisIT policies of insurance with the exception of Workers Compensation and Employer’s Liability shall be secondary and in excess of Client’s liability insurance required to be maintained hereunder and non-contributory with Client’s policies.
  3. General Each party shall: (i) provide the other party upon request with evidence of compliance with this Section 17, and (ii) notify the other party in writing at least thirty (30) days in advance of cancellation or reduction in required coverage. None of the foregoing requirements in this Section 17 as to the type and limits of insurance to be maintained by either party are intended to and shall not in any manner limit or qualify the liabilities and obligations for which such party is responsible under any other section of the HSA or by law. All insurance shall be with reputable insurers having an AM Best rating of A- or better and may be under an umbrella, blanket or similar policy.

 

32.   GOVERNING LAW, LAWSUITS

The Agreement is governed by the laws of the Commonwealth of Pennsylvania, exclusive of any 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 Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The arbitration shall be conducted in Allentown, Lehigh County, Pennsylvania, or at some other location mutually agreeable to the parties. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service, and who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in the Court of Common Pleas of Lehigh County, Pennsylvania to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. The parties shall each pay one-half (1/2) of the fee for the arbitrator and each party shall bear the cost of their respective filing fees. Neither party shall be permitted to recover attorneys’ fees. Each of us waives any right to a trial by jury and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

33.   REPRESENTATIONS, WARRANTIES AND AGREEMENTS

  1. SingularisIT represents and warrants as follows: (i) it has full power and authority to enter into this HSA, and (ii) the execution of the HSA does not violate any agreement to which SingularisIT is a party. SingularisIT shall comply with all applicable federal, state and local laws in the performance of the Services.
  2. Client represents and warrants as follows: (i) it has full power and authority to enter into this HSA, and (ii) the execution of the HSA does not violate any agreement to which Client is a party. Client shall comply with all applicable federal, state and local laws in using the Services, including, without limitation, applicable laws related to the storage, transmission and use of Client Data, information and content. To the extent Client receives Colocation Services, Client also agrees with SingularisIT that: (x) Client shall not make any material alterations to the Equipment Space without first obtaining the written consent of SingularisIT; and (y) Client shall not allow personnel or contractors to enter the Equipment Space who have not been approved by SingularisIT in advance.

 

34.   DISCLAIMERS

EXCEPT AS EXPRESSLY STATED HEREIN, THE HOSTED SERVICES AND SUPPLIMENTAL SERVICES, ARE DELIVERED BY SINGULARISIT AND ACCEPTED BY CLIENT “AS IS” AND “AS AVAILABLE” AND SINGULARISIT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT ACKNOWLEDGES THAT THERE ARE INHERENT RISKS IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT PRIVACY AND PROPERTY, INCLUDING CONFIDENTIAL INFORMATION. SINGULARISIT ASSUMES NO LIABILITY FOR ANY DAMAGE, THEFT OR LOSS TO CLIENT’S PROPERTY (INCLUDING, WITHOUT LIMITATION, CLIENT EQUIPMENT AND CLIENT DATA) RESULTING FROM

 

THE ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY UNAUTHORIZED PHYSICAL OR NONPHYSICAL ACCESS (SUCH AS HACKING), EXCEPT TO THE EXTENT SUCH DAMAGE, THEFT OR LOSS RESULTS FROM SINGULARISIT’S FAILURE TO PROVIDE THE SECURITY SAFEGUARDS WITH RESPECT TO THE APPLICABLE SERVICES LISTED AS SINGULARISIT’S RESPONSIBILITY ON THE RESPONSIBILITY MATRIX (ADDENDUM A.). SINGULARISIT EXPRESSLY DISCLAIMS, AND CLIENT HEREBY WAIVES ANY CLAIM AGAINST SINGULARISIT WITH RESPECT TO, ANY LIABLITY FOR LOSS OF CLIENT DATA OR DAMAGE TO CLIENT EQUIPMENT WHERE CLIENT HAS REQUESTED THAT SINGULARISIT PACK, SHIP, RECEIVE AND/OR STORE SUCH CLIENT EQUIPMENT OR WHERE CLIENT HAS FAILED TO REMOVE SUCH CLIENT DATA FOLLOWING THE END OF A SERVICE TERM.

 

 

 

35.   SOME AGREEMENT MECHANICS

Unless otherwise expressly permitted in this Agreement, these General Terms and Conditions, Hosting Services Terms and Conditions, and Acceptable Use Policy, and any addenda referenced in any of them, may be amended only by a formal written agreement signed by both parties. A Services Description may be amended to modify, add, or remove Services, by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail that includes the express consent of an authorized individual for each of us. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Hosting Service Agreement, Services Description, Hosting Services Terms and Conditions, any addendum to the General Terms and Conditions, the General Terms and Conditions, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. The relationship between us is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” The words “our” and “us” refer to Singularis, unless the context clearly indicates another meaning. The Agreement is effective when you sign it, even though the “initial term” may be defined in the Agreement with reference to the Service Commencement Date or other date. All (i)Sections shall survive expiration or termination of the Agreement. General Terms and Conditions, (ii) all provisions in the Agreement requiring you to pay fees for Services provided prior to the time of expiration or termination or requiring you to pay an early termination fee, and (iii) all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement. If you have made any change to the Agreement that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement. The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.