Privacy, Acceptable Use, and General Terms and Conditions
To ensure that our White-Glove Support endures, we’ve made our policy information easily accessible.
For questions related to our policy information, please feel free to Contact Us.
Singularis gathers analytic information about our Web site traffic, including which areas are most visited, domain type, browser version, service provider and IP address. Any information you provide to us on this site after you request information (i.e. name, address, e-mail address, telephone number), is maintained in private files on our secure Web server and our internal systems. You should be aware that we may disclose specific information about you if necessary to do so by law or based on our good faith belief that it is necessary to conform or comply with the law or is necessary to protect the users of our Web site, the site or the public. Singularis does not sell, rent or trade your e-mail address to third parties. We may, however, use third parties to help us provide services and marketing to you, such as monitoring site activity, conducting surveys, and administering e-mails. If personally identifiable information (i.e. name, address, e-mail address, telephone number) is provided to any of these third parties, we will require that such information be maintained by them in strictest confidence. Confidential information should not be discussed. Singularis assumes no responsibility for the content or consequences, direct or indirect, of communications by users. It is our policy to never send private information, such as your credit card number, via email.
ACCEPTABLE USE POLICY
This Acceptable Use Policy (“AUP”) is incorporated by reference in your Hosting Services Agreement with Singularis. “You” as used in this AUP means “COMPANY”, its employees, officers, shareholders, and directors, and all other authorized users of the Singularis services provided under the Hosting Services Agreement.
Your services may be suspended or terminated for violation of this AUP in accordance with your Hosting Services Agreement with Singularis.
Capitalized terms used in this AUP shall have the meaning given in your Hosting Services Agreement.
You may not use Singularis’ services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
- Use of an internet account or computer without the owner’s authorization;
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
- Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
- Collecting or using information without the consent of the owner of the information;
- Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
- Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
- Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
- Any conduct that is likely to result in retaliation against Singularis’ employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
- Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
- Interference with service to any user of the Singularis or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
Excessive Use of System Resources
You may not use any shared system provided by Singularis in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of Singularis Mail Services if it has a negative impact on the mail system, or we may require you to repair coding abnormalities in your Cloud-hosted code if it unnecessarily conflicts with other Cloud customers’ use of the Cloud. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, your bulk and commercial email must meet the following requirements:
- Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
- Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
- You retain evidence of the recipient’s consent in a form that may be promptly produced on request, and you honor the recipient’s and Singularis’requests to produce consent evidence within 72 hours of receipt of the request;
- You have procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;
- You must post an email address for complaints (such as [email protected]) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
- You have the means to track anonymous complaints;
- You must not obscure the source of your e-mail in any manner. Your e-mail must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail;
- You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These policies apply to messages sent using the services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the services. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if you created the list.
Singularis may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time. In addition, Singularis may block the transmission of email that violates these provisions. Singularis may, at its discretion, require certain customers to seek advance approval for bulk and commercial email, which approval will not be granted unless the customer can demonstrate that all of the requirements stated above will be met.
You may not attempt to probe, scan, penetrate or test the vulnerability of a Singularis system or network, or to breach Singularis’ security or authentication measures, whether by passive or intrusive techniques, without Singularis’ express written consent.
Newsgroup, Chat Forums, Other Networks
You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.
You must comply with the rules of any other network you access or participate in using your Singularis services.
You may not publish, transmit or store on or via the Singularis network or equipment any content or links to any content that the Singularis reasonably believes:
- Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
- is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person’s privacy;
- creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating technical copyright protections;
- infringes on another person’s copyright, trade or service mark, patent or other property right;
- promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Singularis; or
- is otherwise malicious, fraudulent or may result in retaliation against Singularis by offended viewers.
You may not use your Singularis services to stream live sex acts of any kind, even if the content would otherwise comply with the AUP. Singularis may prohibit you from streaming other live events where there is a special risk, in Singularis’ reasonable discretion, that the event may violate the Offensive Content section above.
You may not use Singularis’ network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless:
- you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
- you are otherwise permitted by established copyright law to copy the work in that manner.
- It is Singularis’ policy to terminate in appropriate circumstances the services of customers who are repeat infringers.
- You must have valid and current information on file with your domain name registrar for any domain hosted on the Singularis network.
- You may only use IP addresses assigned to you by Singularis in connection with your Singularis services.
- You agree that if Singularis IP numbers assigned to your account are listed on an abuse database like Spamhaus, you will be in violation of this AUP, and Singularis may take reasonable action to protect its IP addresses, including suspension and/or termination of your service, regardless of whether the IP addresses were listed as a result of your actions;
- You agree that if you register a DNS record or zone on Singularis managed or operated DNS servers or services for a domain of which you are not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, Singularis may modify, transfer, or delete such records or zones.
- You may not register to use any Services under a false name, or use an invalid or unauthorized credit card in connection with any Services.
GENERAL TERMS AND CONDITIONS
1. THE HOSTING SERVICES AGREEMENT
The Hosting Services Agreement incorporates the following provisions and documents by reference: (i) the Services Description contained in the Hosting Services Agreement that describes the Services you 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 attached to the Agreement as Exhibit B, and incorporated into the Agreement by reference.
“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 Customer Data.
“Customer 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’ obligation to begin providing Services is contingent on your satisfaction of Singularis’ 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:
The Mastercraft Mechanical Services servers used to provide the Services will be located in a controlled access data center operated by Equinix. Information concerning Equinix’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 Equinix will not modify these security measures and procedures.
Screening. Singularis will perform background screening of its employees and independent contractors who will have access to Mastercraft Mechanical Services’s accounts.
Access. Singularis will restrict the use of administrative access codes for Mastercraft Mechanical Services’s 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 user name and password.
Reports of and Response to Security Breach.
Singularis will immediately report to you any unauthorized access or release of your information of which we become aware. Upon request, we will promptly provide to you all information and documentation that we have available to us in connection with any such event.
4. YOUR OBLIGATIONS
You must use reasonable security precautions in connection with your use of the Services. 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 other agreement between us.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Singularis’ security obligations with respect to Customer Data are limited to those obligations described in Section 3 above. Singularis makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
5. PROMISES WE DO NOT MAKE
5.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information and property.
5.2 We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the services chosen, including the suitability as it relates to your Customer Data. 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.
5.3 We do not promise to backup 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.
5.4 We will provide Support only to your administrative or technical contacts listed on your account. We will not provide support directly to your end users unless specifically agreed in writing.
5.5 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 CUSTOMER 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 Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
7. 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.
8. 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.
9. CHANGES TO THE ACCEPTABLE USE POLICY
9.1 We may change the Acceptable Use Policy to add or modify restrictions on our customers’ 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 AUP. 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.
9.2 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 grounds. 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.
10. 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 customers. 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 customers 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.
11. TERMINATION FOR BREACH
11.1 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.
11.2 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 customer,
(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 failure. 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.
11.3 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.
11.4 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 hereunder. 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.
12. 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:
(i) 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 this General Terms and Conditions;
(ii) 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;
(iii) as required by law; or
(iv) 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.
13. LIMITATION ON DAMAGES
13.1 Each party’s liability to the other is limited in accordance with the provisions of this Section 13.
13.2 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 damages. 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 Mastercraft Mechanical Services, Singularis shall be entitled to recover its fees, including any profit therein.
13.3 We are not liable to you for lost data unless and to the extent you purchase data backup services from Singularis 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.
13.4 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’ 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.
14.1 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 gross 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 customers or end users, or violation of Section 8 (Export Matters) or Section 16 (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 as a result 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 customer or end user arising from an actual or alleged breach of your obligations to them.
14.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable 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 withheld. You must pay expenses due under this Section as we incur them.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
16.1 General. 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 that are attached to the Agreement as Exhibit D, and incorporated therein by reference, 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.
16.2 Customer 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 license. 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.
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.
18. 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 customers, subsidiaries or affiliates. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, affiliates and other third parties do not have any rights against either of us under this Agreement.
19. 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.
21. 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 system information so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. Singularis may also use the 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.
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 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 purposes 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.
23. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, 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.
24. 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.
25. INTELLECTUAL PROPERTY INFRINGEMENT
If Singularis or any of its customers 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.
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.
27. 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.
28. 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.
29. 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” refers 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. The following provisions shall survive expiration or termination of the Agreement: (i) Sections 5.1, 5.2, 7, 12, 13, 14, 21, 22, 23, 24, 28, and 29 of this 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.
Service Level Agreement
Singularis IT takes our responsibilities to our Clients very seriously and is proud to offer one of the most comprehensive Service Level Agreements (“SLA”) in the industry. We are committed to providing our clients with the reliable hosting services, facilities, network and secure infrastructure. Our facilities, processes and policies have undergone thorough and independent audits earning Singularis IT an unqualified SSAE16 Type II certification as well as PCI DSS certification. This SLA includes our promises. Should we fail to meet any of these promises, we will issue a service credits outlined below.
99.99% Network Guarantee
Our systems have been designed for performance, reliability and security. Our network is fully redundant from the distribution level up. Singularis IT promises our network to be available and performing well 99.99% of the time, excluding scheduled maintenance, as set out more fully below. The Singularis IT Network Guarantee covers the outbound portion of your edge device to the outbound portion of our edge routers, excluding Client maintained devices. If Singularis IT fails to meet these standards, Singularis IT will issue the following service credits:
Transit Latency Guarantee
Singularis IT guarantees an average internal Network latency of 30 milliseconds (30 ms) or less. If Singularis IT fails to maintain average transmission latency of less than 30 milliseconds on any given day, Singularis IT will provide a service credit equal to 0.5 days’ worth of monthly recurring service fees for the affected service.
Packet Loss Guarantee
Singularis IT guarantees an average of 2% or less packet-loss for all valid data packets within Singularis IT’s Network over any given day. On any day where your packet loss averages over 1%, Singularis IT will provide a service credit equal to 0.5 days’ worth of monthly recurring service fees for the affected service.
Singularis IT guarantees outbound Internet connectivity will be available 100% of the time in any given month. For each hour of Internet connection unavailability, Singularis IT will provide a service credit equal to 0.5 days’ worth of recurring service fees for the affected service.
Singularis IT uses only high quality server hardware and network components from manufacturers such as Dell, Sonicwall, Intel, Broadcom, Samsung, and Seagate. Singularis IT maintains an on-site spare components inventory to replace failed hardware and network devices.
Singularis IT guarantees the 100% functioning of all provided hardware components and will replace any failed components at no cost to the Client within 1.5 hour of Singularis IT’s problem determination for all supported hardware platforms. Hardware is defined as processors, RAM, Hard Disks, Power Supplies, Motherboard, Network cards and other related supported hardware under this Agreement. Singularis IT may use substitute components while actual components are cross-shipped to the manufacturer.
This guarantee only applies to Singularis IT standard configurations including Singularis IT built servers, Dell PowerEdge Series M520. M620, M630, M820, R520, R620, R720, and R720XD servers; Dell Equallogic 6110XV and 6510ES; Dell dedicated LAN, SAN, and Mgmt. switches, Sonicwall firewalls and load balancers. This Guarantee will begin upon Singularis IT’s problem determination and will not apply if Singularis IT and Client agree to a maintenance window to perform replacement service. Others items will be covered only if expressly stated in the Service Order. Singularis IT can, at extra cost, supply service contracts on other custom configurations.
If Singularis IT fails to replace the failed components within 1.5 hour, Singularis IT will issue a service credit equal to 0.5 days of recurring service fees for the affected service.
Power Availability Guarantee
Singularis IT guarantees that its facilities will have power available 100% of the time. For each hour of power unavailability, Singularis IT will provide a service credit equal to 1 day of recurring service fees for the affected service. This guarantee only applies to facility power and does not cover outages caused by power supply failures on client servers.
Virtual Server Performance Guarantee
Clients running Virtual Servers on the Singularis IT Virtual Server can expect that system resources they have contracted for will be available to them when they need them, specifically CPU resources, RAM resources, and disk space resources. If Singularis IT fails to make contracted CPU, Memory, or Disk Space resources available on any given day, Singularis IT will provide a service credit equal to 0.5 days’ worth of monthly recurring service fees for the affected Virtual Server.
Environment Control Guarantee
Singularis IT guarantees that its environmental systems will be available 99.99% of the time. For each hour that Singularis IT fails to maintain a temperature between 60F and 80F degrees in the cold or intake aisles, Singularis IT will provide a service credit equal to 0.5 day of recurring service fees for the affected service.
Physical Security Guarantee
Singularis IT guarantees that it will maintain a secured access facility 100% of the time. Singularis IT promises to maintain strict access control mechanisms including dual factor access control to enter our offices and dual factor authentication including biometric technology to access all data facilities. Singularis IT also guarantees it will provide camera surveillance inside all data facilities and covering all ingress and egress points. For any day that Singularis IT fails to meet this guarantee it will provide a service credit equal to 0.5 day of recurring service fees for the affected service.
Singularis IT guarantees it will provide technical staff 100% of the time in our operations department to assist our clients with issues 24x7x365. For any instance which Singularis IT fails to maintain technical staff, Singularis IT will issue a service credit equal to 1 day of recurring service fees for the affected service.
Emergency Service and Reboot Requests Response Guarantee
Singularis IT will respond to emergency service and reboot requests within 60 minutes 100% of the time. Emergency service requests are defined by unique requests for support on servers that are down. This guarantee will only apply to emergency tickets submitted through our client center with the emergency option selected, or requests delivered over the phone to a member of the Singularis IT technical staff where the client clearly states the issue is an emergency and that emergency is documented by our staff. Credits may be limited in cases where downtime is caused by Client errors or willful conduct. If Singularis IT fails to respond to such a request within 60 minutes, Singularis IT will issue a service credit equal to 0.5 day to recurring service fees for the affected service.
Singularis IT will be the sole and final judge as to when guarantees under this SLA apply. Credits will only be issued for directly affected Servers. Singularis IT’s liability will be limited to 100% of the recurring service fees for the directly affected Servers in the month which the guarantees were not met (credits cannot be carried over from month to month) and will exclude any scheduled maintenance or outages caused by clients’ errors or omissions. Clients who do not follow the corrective action recommended by Singularis IT may not qualify for credits under this SLA. Clients’ accounts must be paid to current to qualify for credits under this SLA. All requests for credits under this SLA must be submitted to [email protected] or place a ticket with-in your Client Center within 7 business days so the issue can be properly investigated. All e-mails sent to [email protected] will be acknowledged within 2 business days.
TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE
This document concerns the use of Microsoft software, which includes computer software provided to you by Singularis IT, LLC (“Singularis”) as described below, and may include associated media, printed materials, and “online” or electronic documentation (individually and collectively “SOFTWARE PRODUCTS”). Singularis does not own the SOFTWARE PRODUCTS and the use thereof is subject to certain rights and limitations of which Singularis needs to inform you. Your right to use the SOFTWARE PRODUCTS is subject to your agreement with Singularis, and to your understanding of, compliance with and consent to the following terms and conditions, which Singularis does not have the authority to vary, alter or amend.
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Redistribution Software” the software described in the paragraph entitled “Use of Redistribution Software”, below.
Ownership of Software Products
The SOFTWARE PRODUCTS are licensed to Singularis from an affiliate of the Microsoft Corporation (“Microsoft”). All title and intellectual property rights in and to the SOFTWARE PRODUCTS (and the constituent elements thereof, including but not limited to images, photographs, animations, video, audio, music, text and “applets” incorporated into the SOFTWARE PRODUCTS) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS does not transfer any ownership of the SOFTWARE PRODUCTS or any intellectual property rights to you.
Use of Client Software
You may use the Client Software installed on your Devices by Singularis only in accordance with the instructions, and only in connection with the services, provided to you by Singularis.
Use of Redistribution Software
In connection with the services provided to you by Singularis, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively called “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO SINGULARIS, WHICH TERMS MUST BE PROVIDED TO YOU BY SINGULARIS. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Singularis.
You may not make any copies of the SOFTWARE PRODUCTS; provided, however, that you may (a) make one (1) copy of Client Software on your device as expressly authorized by Singularis; and (b) you may make copies of certain Redistribution Software in accordance with the paragraph entitled “Use of Redistribution Software”. You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Singularis or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the SOFTWARE PRODUCTS.
Limitations on Reverse Engineering, Decompilation and Disassembly
You may not reverse, engineer, decompile, or disassemble the SOFTWARE PRODUCTS, except and only to the extent that applicable by law, notwithstanding this limitation expressly permits such activity.
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the SOFTWARE PRODUCTS to any third party, and you may not permit any third party to have access to and/or use the functionality of the SOFTWARE PRODUCTS.
Without prejudice to any other rights, Singularis may terminate your rights to use the SOFTWARE PRODUCTS if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the SOFTWARE PRODUCTS, and destroy all copies of the SOFTWARE PRODUCTS and all of its component parts.
No Warranties, Liabilities or Remedies by Microsoft
MICROSOFT, ITS AFFILIATES AND SUBSIDIARIES MAKE NO WARRANTIES, AND BEARS NO LIABILITY FOR DAMAGES AND REMEDIES.
Any product support for the SOFTWARE PRODUCTS is provided to you by Singularis and is not provided by Microsoft or its affiliates or subsidiaries.
Not Fault Tolerant
THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVER PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
The SOFTWARE PRODUCTS are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the SOFTWARE PRODUCTS, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information see http://www.microsoft .com/exporting/.
Liability for Breach
In addition to any liability you may have to Singularis, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions. Microsoft Services Provider Agreement (MSLI) v2.0 11/01/01