1. THIS I.T. SERVICES ADDENDUM
1st – This I.T. (INFORMATION TECHNOLOGY) SERVICES ADDENDUM is an integral part of the CLOUD SERVICES AGREEMENT (“THE AGREEMENT” or “AGREEMENT”), signed by and between ALL IT HOST INC. and the CUSTOMER, (henceforth referred also, individually, as a “Party” and together as the “Parties”) as defined on that AGREEMENT or on any SERVICE ORDER or STATEMENT OF WORK, and shall work as an ancillary document, complementing such AGREEMENT on regards of some specific services.
2nd – The services that give existence to this ADDENDUM are the ones properly described below and shall be defined as any services that need ALLITHOST’s direct interference and, also, the presence of ALLITHOST’s employees, contractors or associates of any kind ON-SITE, IN-PREMISES, at any CUSTOMER’s facilities and/or offices.
3rd – These service orders or statements of work may be done whether through an agreement on paper, signed in person, or through our website (www.allithost.com) or any other electronic format.
4th – Each party warrants that:
a) it has the right to enter into this ADDENDUM and the AGREEMENT from which it spans, and to perform its obligations hereunder; and
b) its products, services, trademarks, and marketing and sales materials operate in conformance with their specifications and are free from any rightful claim of infringement of any patent, trademark, maskwork, copyright, trade secret or other intellectual property or other right of a third party.
5th – Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this ADDENDUM.
6th – It is expressly agreed and understood between the parties (and any person employed by the parties, or any entity hired by the parties to do such work) that the performance of the SERVICES hereunder is done through an INDEPENDENT CONTRACTOR relationship.
7th – Hence, neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as principal, director, agent, master, servant, employer or employee, or in any other capacity.
8th – As well, ALLITHOST will be fully responsible for withholding any income tax, social security tax, or any other payroll taxes for its own employees, for all compensation earned by them, under this ADDENDUM.
9th – ALLITHOST understands that its employees will not be entitled to any fringe benefits provided by the CUSTOMER for its employees generally.
10th – Also, ALLITHOST remains responsible for the coverage of any statutory employment benefits, for its own employees, even when allocated to work at CUSTOMER’s premises, including without limitation worker’s compensation or unemployment insurance.
2. ADDENDUM – TERM
1st – The “TERM” of this ADDENDUM will commence on the EFFECTIVE DATE and continue until the expiration of the last SERVICE PERIOD TERM, unless earlier terminated in accordance with the provisions of this ADDENDUM and the ones in the AGREEMENT.
2nd – Each SERVICE shall have a minimum SERVICE PERIOD which begins on the BILLING COMMENCEMENT DATE (“BCD”) and continues for the minimum period of three (3) months as defined in the AGREEMENT (henceforth called the “INITIAL SERVICE TERM”).
3rd – The EFFECTIVE DATE is the date corresponding to the first BILLING COMMENCEMENT DATE.
4th – The BILLING COMMENCEMENT DATE corresponds to the day and time the SERVICES began to be rendered, specifically:
a) The day and time when CUSTOMER’s officially accepts a QUOTE, a REQUEST FOR PROPOSAL, a SERVICE ORDER or a STATEMENT OF WORK, if no commencement date is provided on those documents;
b) Any commencement date explicitly provided on a QUOTE, a REQUEST FOR PROPOSAL, a SERVICE ORDER or a STATEMENT OF WORK;
c) If no specific QUOTE, REQUEST FOR PROPOSAL, SERVICE ORDER or STATEMENT OF WORK is needed (such as for SERVICES that can be ordered through the Internet and do not need specific deployment procedures), the day and time when CUSTOMER’s sign, either in-person or electronically, this ADDENDUM, and;
d) For the same aforementioned SERVICES, the day when CUSTOMER posts a credit card payment, or begins to use any of those SERVICES, after agreeing through clicking an “ACCEPT”, “AGREE” or “YES” button in any of our websites or on an Email communication with that specific objective and subject.
5th – At the conclusion of the INITIAL SERVICE TERM, each SERVICE will renew for successive SERVICE PERIODS (“RENEWAL TERMS”), unless terminated by either party, accordingly to the notice provisions set forth herein and in the AGREEMENT as well, with such termination notice being sent, at least, thirty (30) days prior to the expiration of the then-current SERVICE PERIOD.
6th – RENEWAL TERMS shall be subject to ALLITHOST’s then-current pricing and ALLITHOST will notify CUSTOMER of any pricing changes accordingly to the terms set forth in the AGREEMENT.
7th – The INITIAL SERVICE TERM and any RENEWAL TERMS shall, henceforth, be collectively referred to as the “SERVICE TERM”.
3. ADDENDUM – TERMINATION
1st – Notwithstanding any other provisions of this ADDENDUM, or from the AGREEMENT, either party hereto may terminate this Agreement at any time, AFTER THE END OF THE INITIAL SERVICE TERM, by giving thirty (30) days written notice to the other party.
2nd – If CUSTOMER chooses to terminate this ADDENDUM, or the AGREEMENT, during the INITIAL SERVICE TERM, the provisions established by the AGREEMENT will prevail, meaning the CUSTOMER will have to fulfill the total monetary obligation for the SERVICES ordered for that given INITIAL SERVICE TERM, less any fees already paid.
3rd – This ADDENDUM shall terminate automatically when the AGREEMENT ends, or on the occurrence of the any of the events prescribed in that AGREEMENT.
4th – Should the CUSTOMER fail to pay ALLITHOST all or any part of the fees set forth in this ADDENDUM, or in the AGREEMENT, on their respective due dates, ALLITHOST will be allowed, at the ALLITHOST’s sole description, to terminate this ADDENDUM, if the failure is not remedied by the CUSTOMER within thirty (30) days from the date payment is due.
5th – In addition to the termination rights established herein and in the AGREEMENT, ALLITHOST may suspend the SERVICES:
a) upon five (5) days’ notice in the event or any payment default, if such default is not cured within that period;
b) upon notice in the event of any Acceptable Use Policy (AUP) violation; or
c) if CUSTOMER becomes insolvent, makes an assignment for the benefit of creditors, or if any bankruptcy proceeding is begun by or against CUSTOMER.
6th – Each party may also choose to terminate this ADDENDUM if the other party defaults on any of its obligations under this ADDENDUM or the AGREEMENT, AND, such DEFAULTING PARTY does not act on regards of curing the grounds that established such default, within five (5) days upon receiving a written notice from the party that suffered with the default (the AGGRAVATED PARTY).
7th – Any party that may fall in the role of DEFAULTING PARTY agrees that, upon receipt of any notice of default, it will immediately commence all commercially reasonable efforts to cure the grounds of the specified default and to commit the resources necessary, to accomplish such cure as promptly as reasonably possible.
8th – If the then DEFAULTING PARTY is able to cure the grounds for that given default, the AGGRAVATED PARTY will not be able to terminate this ADDENDUM based on the specific provisions set forth hereto, on regards of the immediate above paragraphs.
9th – However, the AGGRAVATED PARTY still may choose to terminate this ADDENDUM by following, from the start, the termination procedures set forth herein for TERMINATION WITHOUT CAUSE.
10th – In addition, ALLITHOST may immediately terminate a specific SERVICE, or SERVICES, in the event that it ceases to make such SERVICE, or SERVICES, generally available to other similar customers.
11th – If, after the end of the INNITIAL SERVICE TERM, but prior to the conclusion of the applicable SERVICE TERM, the SERVICE, this ADDENDUM, or the AGREEMENT, is terminated either by ALLITHOST for cause or by CUSTOMER for any reason other than cause, then CUSTOMER shall be liable for:
a) an early termination charge equal to fifty percent (50%) of the Monthly Recurring Charges (MRCs) for the affected SERVICES multiplied by the number of months remaining in that given SERVICE TERM, less any fees already paid by the CUSTOMER;
b) the SERVICE charges and fees accrued but unpaid as of the termination date; AND
c) any specific equipment purchases, third-party provider charges or out-of-pocket expenses incurred by ALLITHOST on order to provide the SERVICES to the CUSTOMER, and discriminate on an ORDER.
12th – On regards of OUTSOURCED DEVELOPMENT PROJECTS, such as software development or software customization, as stated in a STATEMENT OF WORK, CUSTOMER may choose to terminate this ADDENDUM based upon the poor performance or lack of performance of ALLITHOST’s development responsibilities.
13th – ALLITHOST shall first be given thirty (30) days advanced written notice specifying the alleged deficiency, or deficiencies, in detail and ALLITHOST shall be granted such thirty (30) day period to provide a reasonable cure for the alleged default, upon which, with the deficiency, or deficiencies, properly cured, the CUSTOMER shall suspend the termination process.
14th – Upon any early termination prior to completion of a OUTSOURCED DEVELOPMENT PROJECT, the ALLITHOST shall immediately cease work on such project and shall issue an invoice to the CUSTOMER for all work performed through the date of termination.
15th – That final invoice shall be due and payable by the CUSTOMER upon receipt thereof.
16th – Termination from part of COSTUMER for cause giving by ALLITHOST will not relieve CUSTOMER’s duty to pay for equipment actually shipped, for services already performed or being performed, or for expenses incurred pursuant to a SERVICE ORDER or STATEMENT OF WORK.
17th – Expiration or termination of this ADDENDUM shall not relieve the parties of any obligations due at the time of such expiration or termination, nor shall such expiration or termination prejudice any claim of either party accrued on account of any default or breach by the other.
18th – Also, in the event of any termination, notwithstanding any other provisions set forth in this ADDENDUM or the AGREEMENT, the following provisions shall continue in full force and effect:
a) the obligation of the CUSTOMER to make payments due hereunder to ALLITHOST,
b) any intellectual property, title rights and confidentiality provisions, and
c) any representations and warranties as to proprietary rights of any DELIVERABLES and/or specific SOFTWARE MODIFICATIONS.
19th – Upon expiration or termination of this ADDENDUM:
a) each party shall immediately return to the other party, if requested to do so, or destroy, all promotional materials and all CONFIDENTIAL INFORMATION supplied by the other party;
b) the obligations of the parties under this ADDENDUM, which, by their nature ,would continue beyond the expiration or termination of this ADDENDUM shall survive any expiration or termination of this ADDENDUM;
c) all other CUSTOMER agreements with ALLITHOST, then in force, will remain in effect and all payments and obligations due, under such agreements, will continue until such customer agreements are individually terminated.
20th – Upon termination of this ADDENDUM, ALLITHOST shall have no further obligation to provide any SERVICES hereunder to CUSTOMER.
21st – Upon termination, there will be no refund provided to CUSTOMER except as, specifically set forth herein or in the AGREEMENT, and all outstanding fees owed by CUSTOMER shall become immediately due and payable.
22nd – Upon any termination of this ADDENDUM, ALLITHOST will assist and comply with CUSTOMER’s reasonable directions to cause the orderly transition and migration of the SERVICES back to the CUSTOMER’s control or to CBT a third-party contractor to whom CUSTOMER chooses to transfer the SERVICES (the TRANSITION PROCESS).
23rd – Such TRANSITION PROCESS will be limited to the period of three (3) business days, eight (8) business hours per each day.
24th – Any exceeding time dedicated by ALLITHOST to such aforementioned TRANSITION PROCESS will be charged at the then prevailing hourly rates for non-contract services, accordingly to ALLITHOST’s price list.
4. ADDENDUM – CONFIDENTIALITY
1st – “CONFIDENTIAL INFORMATION” means any non-public information of the parties hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to, and received by, the other party pursuant to this ADDENDUM and the AGREEMENT.
2nd – As such, for purposes of this ADDENDUM, ” CONFIDENTIAL INFORMATION ” shall mean, but is not limited to, all of the information, data and software furnished by one party to the other, whether in oral, written, graphic or machine-readable form, which may include but not be limited to, program code, software tool specifications, functions and features, integration and shared data block specifications, financial statements, corporate and stock information, file layouts, marketing strategies, business, product or acquisition plans, current business relationships, strategies and customer lists, the names and contact information of current and prospective customers, technical data, or know-how of either party and any information, technical data, or know-how derived from the information, technical data, or know-how of either party, all mailing lists, proprietary data, product designs, product plans, capabilities, research, specifications, algorithms, software systems and processes, hardware configuration information, information regarding existing and future technical, business and marketing plans and product strategies, finances, and the identity of actual and potential customers and suppliers.
3rd – CONFIDENTIAL INFORMATION includes, as well, the terms and pricing of this ADDENDUM and the AGREEMENT, and that information shall not be disclosed to any third-party by either party without the prior, written consent of the other party.
4th – Failure to mark any of the CONFIDENTIAL INFORMATION as confidential, protected or proprietary information shall not affect its status as part of the CONFIDENTIAL INFORMATION under the terms of this ADDENDUM.
5th – Each party covenants and agrees that all right, title and interest in any CONFIDENTIAL INFORMATION shall be and shall remain the exclusive property of the disclosing party.
6th – CONFIDENTIAL INFORMATION shall not include information which:
a) is or becomes public knowledge through no breach of this ADDENDUM and the AGREEMENT by the non-disclosing party;
b) is rightfully received by the non-disclosing party from a third party without a duty of confidentiality, or;
c) is already known or is independently developed by the non-disclosing party without use of the CONFIDENTIAL INFORMATION;
d) is required to be disclosed by court order or operation of law.
7th – Each party also acknowledges that, in and as a result of visit(s) to the other party’s facilities and/or discussions with a party’s officers and employees, a party shall or may be making use of or acquiring CONFIDENTIAL INFORMATION.
8th – As a material inducement to disclose such CONFIDENTIAL INFORMATION, each party covenants and agrees that it shall not, except with the prior written consent of the other party, at any time directly by itself or indirectly through any agent or employee:
(i) copy, modify, disclose, divulge, reveal, report, publish or transfer to any person or entity, for any purpose whatsoever, any Proprietary Information or
(ii) use CONFIDENTIAL INFORMATION for any purpose other than in connection with the consummation of the Proposed Transactions.
9th – Neither party shall, without the prior written consent of the other party, use or disclose the CONFIDENTIAL INFORMATION (as defined above) of the other party during the TERM of this ADDENDUM and the AGREEMENT and for, at least, two (2) years following the expiration or termination hereof.
10th – Each party will take all reasonable precautions to protect the other party’s CONFIDENTIAL INFORMATION, using at least the same standard of care as it uses to maintain the confidentiality of its own CONFIDENTIAL INFORMATION.
11th – Notwithstanding the foregoing, a party may disclose CONFIDENTIAL INFORMATION:
a) to any consultants, contractors, and counsel who have a need to know in connection with the performance of this ADDENDUM and/or the AGREEMENT, and have executed a reasonably protective NON-DISCLOSURE AGREEMENT with the disclosing party, or
b) pursuant to legal process or as required under the Abused and Neglected Child Reporting Act or other similar act, law or regulation, provided that, the non-disclosing party shall, unless legally prohibited, provide the disclosing party reasonable notice and the opportunity to object to or limit such disclosure.
12th – Upon termination of the activities determined by this ADDENDUM or upon termination of this ADDENDUM, each party will promptly return to the other all copies and embodiments, in whatever form, of CONFIDENTIAL INFORMATION and all other materials containing any CONFIDENTIAL INFORMATION, which is in such party’s possession or control, no matter where such material is located.
13th – If a party loses the ability to comply with the aforementioned clause, as, for instance, in result of such material being destroyed, the given party shall present to the disclosing material proof of the total destruction and elimination of those material that contained CONFIDENTIAL INFORMATION.
5. ADDENDUM – INTELECTUAL PROPERTY
1st – Nothing in the Agreement or the performance thereof shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by either party or its licensors.
2nd – ALLITHOST intellectual property and proprietary rights include any skills, know-how, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the SERVICES.
3rd – CUSTOMER understands that delivery of the SERVICES may involve, as aforementioned, the use of software owned by ALLITHOST or third-parties (“SOFTWARE”) under license agreements with ALLITHOST.
4th – Each party agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology of the other party or its licensors.
5th – Especially, CUSTOMER shall not cause or permit reverse engineering, disassembly or decompilation of any SOFTWARE provided by ALLITHOST.
6th – Title to any SOFTWARE provided by ALLITHOST, under the exclusive need for the performance of the SERVICES, shall not pass to the CUSTOMER, unless ALLITHOST determines so, in writing.
9th – As aforementioned, ALLITHOST makes no representations or warranties whatsoever with regard to such third-party SOFTWARE.
10th – CUSTOMER acknowledges that certain SOFTWARE and technical data to be provided hereunder and certain transactions hereunder may be subject to EXPORT CONTROLS under the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions.
11th – CUSTOMER shall not export or re-export any such items or any direct product thereof or undertake any transaction or service in violation of any such laws or regulations.
12th – Except as expressly set forth on any ORDER or in this ADDENDUM, all right, title and interest in and to all products, services and materials provided to CUSTOMER by ALLITHOST under the process of delivering the SERVICES shall be and remain the property of ALLITHOST exclusively.
13th – ALLITHOST retains and shall retain all rights and title to any and all capital improvements and intellectual property it utilizes or contributes to the process of deploying the SERVICES to the CUSTOMER.
14th – CUSTOMER shall have no right, title or interest in or to any products, services or materials except as expressly set forth in this ADDENDUM.
15th – CUSTOMER expressly acknowledges and agrees that any and all PROPRIETARY MATERIALS created by ALLITHOST’s employees, contractors or agents, in the scope of providing the SERVICES hereunder shall be always understood as “works made for hire” and that ALLITHOST shall be the true and lawful owner of all copyrights and other proprietary rights in and to such items and shall be considered to be the sole and exclusive author of such materials.
16th – These items shall include, but shall not necessarily be limited to any and all DELIVERABLES resulting from ALLITHOST’s services or contemplated by this ADDENDUM, all tangible results and proceeds of ALLITHOST’s services, work in progress, records, diagrams, notes, drawings, specifications, schematics, documents, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, solutions, (collectively referred to as “PROPRIETARY MATERIALS”) conceived, made or discovered by ALLITHOST’s employees, contractors or agents, by themselves or in collaboration with others, during the provision of the SERVICES.
17th – Especially under the terms of this ADDENDUM and of the AGREEMENT, CUSTOMER grants ALLITHOST the right to use any script, graphics, projects, procedures, case studies, materials and any other non-confidential information arising from the relationship established by this ADDENDUM for promotional purposes, to cross-link it with other marketing venues developed by ALLITHOST, and to deploy or use it in any other SYSTEMS and SERVICES to be provided to other ALLITHOST clients, after eliminating all information that can identify the CUSTOMER from them.
18th – All intellectual property rights that are owned or controlled by one of the parties, or its licensors, at the EFFECTIVE DATE of this ADDENDUM will remain under the ownership or control of such party throughout the term of this ADDENDUM and thereafter.
6. SERVICES – GENERAL
1st – As defined in this ADDENDUM and in the original AGREEMENT, the services that are subject to this ADDENDUM are:
a) those defined as any SERVICES that need ALLITHOST’s direct interference and, also, the presence of ALLITHOST’s employees, contractors or associates of any kind ON-SITE, IN-PREMISES, at any CUSTOMER’s facilities and/or offices;
b) the performance of specific kinds of works that need full dedication of ALLITHOST’s employees, agents, or third-party contractors hired by ALLITHOST to achieve their objectives, and;
c) any computer SYSTEMS, networks, hardware and software originated from such works.
2nd – Such aforementioned interference is mutually understood as all actions done, by ALLITHOST’s employees, contractors or associates of any kind, which are deemed as necessary for those services and systems proper development, deployment, functioning and operation, and, as such must be performed in-house, at CUSTOMER’s premises, or, if off-house, in such a dedicated way that compromises the allocation of that personnel to any other task to the same CUSTOMER, or to any other of the ALLITHOST’s clients or customers.
3rd – Also, those SERVICES and or SYSTEMS, must have been properly defined as I.T. SERVICES in any SERVICE ORDER or STATEMENT OF WORK done between ALLITHOST and the Customer.
4th – Those services may include but are not limited to the following:
a) Technical operations: facility management; security services; on-going facilities maintenance and repair as required by CUSTOMER;
b) Strategic functions: strategy planning, capital investment advice, business and corporate development advice;
c) General hardware and software support;
d) Remote and local in-house support to CUSTOMER’s general computer and server issues;
e) User access support for CUSTOMER network and VPN users;
f) General configuration of servers, routers, Internet access, Local Network, and systems on CUSTOMER’s premises;
g) Handle contact with CUSTOMER third-party hardware and software providers upon any issue arising;
h) Handle ISP network and customer support contacts for connectivity issues, changes and upgrades;
i) Handle contacts with any hardware or software third-party vendors on regards of any issues including, but not limited to, updates, upgrades and user general support;
j) Local and off-site disaster recovery planning, deployment and management;
k) Network design, planning, deployment, monitoring and troubleshooting;
l) Database servers planning, deployment, management, including hardware tailoring and design, installation and maintenance of specific data handling procedures and automated jobs;
m) Website planning, design, deployment and maintenance for both Web based and Mobile access-based websites;
n) Social Network technologic, brand and marketing insertion planning, strategic development, action coordination, deployment and maintenance;
- o) Software and Application planning, development, installation and support;
p) Customization of licensed Software and Applications, development, installation and support for the customized versions;
q) Development of Business Intelligence strategies with integration of diverse business databases and information sources, development of specific analytic algorithms to handle that data, and to generate business intelligent insights, enabling business strategy and administration automation;
r) Local tier 1 support in-house and on-call, and tier 2 support for CUSTOMER’s tier 1 support teams, if any;
s) Back-office support: CUSTOMER billing, CUSTOMER collections; financial reporting and analytical support;
t) Vendor management: negotiating vendor contracts, provisioning certain vendor services;
u) Sales and customer support: providing CUSTOMER’s END USER support; executing new sales and renewals of CUSTOMER systems;
v) Allocation of ALLITHOST related personnel, on order to provide specific technical services to the CUSTOMER as part of the SERVICES;
w) Other SERVICES related to the in-house and off-house dedicated MIS and I.T. Support and development
5th – The above list aims to be just a comprehensive list of the SERVICES that can be provided by ALLITHOST under this I.T. SERVICES ADDENDUM, but it is not a complete list and does not represent the list of services being provided to a specific CUSTOMER or to the SERVICES or SYSTEMS actually being covered by this ADDENDUM, as the SERVICES or SYSTEMS, being covered by this ADDENDUM, will be defined, establishing rights and obligations for both parties, ONLY through the specific SERVICE ORDERS and/or STATEMENTS OF WORK that shall be found attached hereafter.
6th – If ANY SERVICE that falls under the category of UNMANAGED (covered solely by the AGREEMENT) or MANAGED (covered by a MANAGED SERVICES AGREEMENT) have to be provided, and there is no such qualifying document in place, signed by both parties, or such services are not explicitly defined as such in a SERVICE ORDER or STATEMENT OF WORK, attached to this ADDENDUM, then the CUSTOMER agrees that such services provided will be charged at the then prevailing rates for non-contract services, accordingly to ALLITHOST’s price list.
7th – The general scope and results of the SERVICES to be provided, and/or SYSTEMS to be developed, planned or deployed by ALLITHOST to the CUSTOMER shall be defined by both parties and will be detailed on the respective SERVICE ORDER or STATEMENT OF WORK related to those SERVICES or SYSTEMS.
8th – The SERVICES to be performed, or the SYSTEMS to be delivered, their one-time, recurring and derivate fees, and other work particulars shall be more fully described in deeper detail at a SERVICE ORDER, STATEMENT OF WORK, or any other ordering device (henceforth called “ORDER”), mutually agreed to by the parties, and dully signed by the party to be bound.
9th – Such ORDER, or ORDERS, when properly signed and recognized as such by both parties, will become integral part of this ADDENDUM.
10th – ALLITHOST will only provide those SERVICES and/or SYSTEMS specified in those ORDERS and no other SERVICES, and/or SYSTEMS, shall be provided or implied, including without limitation, any strategic, operational or other business-related decisions with regard to CUSTOMER’s business, unless those ADDITIONAL SERVICES are explicitly defined as part of the SERVICES to be provided in an ORDER.
11th – If CUSTOMER demands emergency provisioning of such ADDITIONAL SERVICES, or does not want to add such ADDITIONAL SERVICES to the SERVICES being rendered by ALLITHOST to the CUSTOMER, and the ADDITIONAL SERVICES are needed by the CUSTOMER, or become necessary for the stability and proper delivery of the active SERVICES being delivered to the CUSTOMER, ALLITHOST can activate such ADDITIONAL SERVICES on-demand, but those will be charged at the then prevailing rates for non-contract services, accordingly to ALLITHOST’s price list, until CUSTOMER finally decides to order such ADDITIONAL SERVICES through an ORDER.
12th – ALLITHOST will solely determine the method, details, and means of performing any of the contracted SERVICES or to deliver the contracted SYSTEMS.
13th – ALLITHOST agrees to provide telephone consultation, instruction, or support (including installation, setup, troubleshooting, and operational information) as it may pertains to a specific qualifying software product, SERVICE or SYSTEM, as agreed and expressly determined in an ORDER.
14th – CUSTOMER understands and acknowledges that ALLITHOST’s performance is dependent on CUSTOMER’s timely and effective performance of any CUSTOMER RESPONSIBILITIES set forth in this ADDENDUM, the AGREEMENT, and in any applicable ORDER.
15th – CUSTOMER agrees to comply with all requests by ALLITHOST on regards to access to all documents and files necessary to the performance of ALLITHOST’s duties under this ADDENDUM.
16th – As such, ALLITHOST must have full root/administrator access to the parts of the CUSTOMER’s Network, either physical or virtual, which may be involved with the SERVICES and/or the SYSTEMS, in order for ALLITHOST to be able to provide the SERVICES, or SYSTEMS, which are subject of this ADDENDUM.
17th – If the CUSTOMER, or any of its employees, third-party contractors or associates of any kind, proceed with any changes on that specific root/administrator access data and/or information, CUSTOMER will then be the sole responsible for, and must update ALLITHOST support about password or user information changes that may limit ALLITHOST’s employees, contractors or associates ability to manage or monitor those services.
18th – In case of failures, issues or shortcomings caused by restrictions on ALLITHOST’s root/administrator access to CUSTOMER’s services, no credits or refunds will be issued.
19th – CUSTOMER understands and acknowledges that the SERVICES are provided on a best effort basis, as issues may arise that cannot be solved by the most commercially reasonable effort from ALLITHOST.
20th – In that case, if it becomes determined that such issue is a non-contract support issue such as hardware issues, or Application or Operational System related issues not covered by this ADDENDUM, an ORDER, or the AGREEMENT, and the CUSTOMER wants ALLITHOST to handle such issue, the CUSTOMER then agrees to pay the prevailing non-contract rate incident hourly fee, as set in the most up-to-date ALLITHOST’s price list.
21st – CUSTOMER is responsible for providing and maintaining the necessary cabling, hardware and software used for the services at any of the CUSTOMER’s sites, and all Telephone Company, or Internet Service Provider, installation and recurring charges are sole the CUSTOMER’s responsibility.
22nd – CUSTOMER will provide any and all equipment or systems required by ALLITHOST employees, contractors or agents, on order to render the SERVICES or the SYSTEMS on a proper way.
23rd – If the CUSTOMER is not able to provide the needed equipment and/or systems, to be used in connection with the SERVICES and/or SYSTEMS, ALLITHOST may provide the CUSTOMER with such hardware, software, equipment or allocate other ALLITHOST property (“EQUIPMENT”).
24th – The EQUIPMENT is sole ALLITHOST’s property and ALLITHOST may immediately take possession of the EQUIPMENT following the termination or expiration of this ADDENDUM or of the AGREEMENT.
25th – On regards of the EQUIPMENT, CUSTOMER shall:
a) not assert any ownership interest whatsoever over ALLITHOST’s EQUIPMENT, keep the EQUIPMENT free and clear of any liens and/or claims, and not pledge it as security or otherwise encumber the Equipment by any means;
b) use the EQUIPMENT only to access the Solutions, as determined within the scope of each of the SERVICES;
c) comply with ALLITHOST’s reasonable EQUIPMENT use instructions;
d) not remove, relocate or move the EQUIPMENT from the specific location where it was first installed without ALLITHOST’s prior written consent;
e) at its own expense, provide a secure, suitable space and power supply, at COSTUMER’s facility, as necessary for the installation and operation of the EQUIPMENT to be installed;
f) ensure that ALLITHOST, its properly authorized agents and subcontractors, have appropriate access to enable ALLITHOST to install, maintain and disconnect the ALLITHOST EQUIPMENT, as necessary;
g) not, nor permit others to, move, modify, or attempt to repair the SERVICES or ALLITHOST EQUIPMENT or interfere with the maintenance thereof;
h) be responsible for risk of loss and damage to the EQUIPMENT equal to the present value of the EQUIPMENT’s fair market value;
i) not remove, cover or alter plates, labels or other markings on the Equipment;
j) provide a secure link, such as a static IP address, for the EQUIPMENT to connect to ALLITHOST’s network; and
k) upon any termination of the applicable SERVICE or SERVICES, provide all necessary cooperation to allow ALLITHOST to remove ALLITHOST’s EQUIPMENT from CUSTOMER’s premises;
l) upon the end of a SYSTEM’s deployment final phase and testing period, acquire the necessary EQUIPMENT that was allocate during such SYSTEM development process, either from ALLITHOST or from a trusted and supported third-party.
26th – Upon the end of a SYSTEM’s deployment final phase and testing period, if the CUSTOMER does not want to replace the necessary EQUIPMENT with new EQUIPMENT bought by the CUSTOMER, ALLITHOST can then lease or sell the current allocate EQUIPMENT, being used with that SYSTEM, through an additional specific leasing or sale Agreement to be signed between CUSTOMER and ALLITHOST.
27th – ALLITHOST is not obligated to install the aforementioned EQUIPMENT in poorly ventilated, poorly air conditioned or inadequately maintained rooms, which may represent a hazard to the EQUIPMENT’s integrity.
28th – CUSTOMER is sole responsible for selecting, obtaining and maintaining any equipment and ancillary services needed for ALLITHOST to connect to, access or otherwise monitor or control the SERVICES and for ensuring that these CUSTOMER’s premises equipment, and all needed ancillary services, are compatible with the SERVICES to be managed by ALLITHOST.
29th – On order to keep its uninterrupted access to the SERVICES, CUSTOMER is responsible for keeping all device access and account permissions, billing and all other account information up-to-date, through ALLITHOST CUSTOMER CARE applications or through communication with its designated ALLITHOST’s ACCOUNT MANAGER.
30th – Certain Solutions deployed with the SERVICES and/or SYSTEMS, may contain features designed to interoperate with third-party specific products.
31st – If those third-party specific products become no longer made available as result of CUSTOMER’s failure to maintain the relationship with the applicable provider, ALLITHOST may not be able to continue providing such related Solution feature, and, in this case, CUSTOMER will not be entitled to any refund, credit or other form of compensation.
32nd – CUSTOMER represents and warrants that it has obtained all rights, permissions and consents necessary to use and transfer any of its customers data or any of its end users data within and outside of the country in which the CUSTOMER is located, in connection with ALLITHOST performance of the SERVICES and/or SYSTEMS (including providing adequate disclosures and obtaining legally sufficient consents from CUSTOMER’s employees, agents, contractors and End Users).
33rd – CUSTOMER is responsible for the data and software it uses or stores within its own network, including its maintenance, operation and compatibility with the SERVICES and/or SYSTEMS, and any third-party claims regarding the same.
34th – CUSTOMER understands and agrees that ALLITHOST has no control over the content of the data processed and that ALLITHOST performs the SERVICES solely on CUSTOMER’s behalf.
35th – CUSTOMER remains responsible for responding to any third-party requests.
36th – ALLITHOST will, to the extent allowed by law and by the terms of the third-party request:
a) promptly notify CUSTOMER of its receipt of a third-party request;
b) comply with CUSTOMER’s reasonable requests regarding its efforts to oppose a third-party request; and
c) if the information is solely held by ALLITHOST and reasonably accessible by ALLITHOST, provide CUSTOMER with the information required for CUSTOMER to respond to the third-party request.
37th – ALLITHOST may provide DOCUMENTATION for CUSTOMER’s use of the SERVICES.
38th – The DOCUMENTATION may specify restrictions on how the SERVICES may be used and, in this case, such restrictions will become part of this ADDENDUM.
39th – Hence, CUSTOMER agrees to comply with any such restrictions as specified.
40th – CUSTOMER agrees to not interfere with any SERVICES MANAGEMENT SOFTWARE AGENT(S) that ALLITHOST may install on CUSTOMER’s devices on order to properly provide the SERVICES.
41st – ALLITHOST states that such agents, if any is deployed, will use only a minimal amount of computing resources, and will not interfere with CUSTOMER’s use of the SERVICES.
42nd – ALLITHOST may need to use such agents to track system information so that it can more efficiently manage various service-related issues.
43rd – If the CUSTOMER disables or interferes with ALLITHOST’s SERVICES MANAGEMENT SOFTWARE AGENT(S), the SERVICES deployed to that CUSTOMER may become and be labeled as “UNSUPPORTED”, becoming ineffective and losing most of its capabilities.
44th – If CUSTOMER hampers ALLITHOST’s SERVICES MANAGEMENT SOFTWARE AGENT(S) in any way, and as a result the SERVICES become, as aforementioned, UNSUPPORTED, ALLITHOST will not incur in any liability for issues arising from the inoperability and/or failures of the SERVICES, and the CUSTOMER will still be charged for the fees it should incur as if the SERVICES were operating under normal conditions.
45th – The CUSTOMER agrees that ALLITHOST may access CUSTOMER’s devices on order to reinstall the SERVICES MANAGEMENT SOFTWARE AGENT(S) that may have been disabled or hampered by CUSTOMER’s interference with their performance.
46th – CUSTOMER is responsible for providing customer service (if any) to its own END USERS.
47th – ALLITHOST will not provide any support or services to CUSTOMER’s END USERS unless such SERVICE becomes subject to a separate ORDER to be attached to this ADDENDUM, signed between both parties, or is determined as part of another AGREEMENT signed between ALLITHOST and those specific END USERS, individually or collectively.
7. SERVICES – DEPLOYMENTS AND CHANGES
1st – ALLITHOST shall commence any development or deployment work for the SYSTEMS or the SERVICES within the term specified in the ORDERS, and after payment of the initial or setup fees, if any, specified in the invoice provided along those documents.
2nd – If the SERVICE or SYSTEM, to be delivered by ALLITHOST to the CUSTOMER, does not demand any prior development, deployment or consequent testing, ALLITHOST shall place such SERVICE or SYSTEM in production immediately, in the facility or premises indicated by the CUSTOMER in the ORDER, or ORDERS, relative to such SERVICE or SYSTEM.
3rd – If the SERVICE or SYSTEM, to be delivered by ALLITHOST to the CUSTOMER, demands prior development, deployment and consequent testing, ALLITHOST shall devote sufficient time and effort, during this development or deployment process, and shall allocate sufficient personnel resources to such process, as may be required for the necessary development/deployment and testing thereof.
4th – During that consequent testing phase, CUSTOMER must be in constant contact with ALLITHOST on order to suggest any changes or request any features CUSTOMER understands as necessary.
5th – Such changes, if any, shall be subject to a CHANGE ORDER and must be approved and executed by both parties in writing.
6th – The CHANGE ORDER shall be a written change request which identifies in reasonable detail each of the following:
a) Summary of the requested change;
b) Why the change is needed; and
c) When the change is needed.
7th – As the proposed changes may impact the SYSTEM or the SERVICES current deployments or projected deployments, and its schedules, pricing, continuity and/or scope,ALLITHOST will evaluate CUSTOMER‘s change request, by considering the feasibility of such change and impact on other specific deployment components for the SYSTEMS.
8th – As a result of that evaluation process a CHANGE ORDER will become effective when CUSTOMER and ALLITHOST accept such CHANGE ORDER in writing.
9th – CUSTOMER acknowledges that ALLITHOST shall not be responsible for the impact of recommended modifications contained within a CHANGE ORDER if CUSTOMER decides not to accept such ORDER.
10th – In the event of any conflicts or inconsistencies, the terms of an executed and mutually agreed CHANGE ORDER shall prevail over those of this ADDENDUM, the AGREEMENT and the applicable ORDER.
11th – ALLITHOST shall keep CUSTOMER constantly informed of any factors, such as labor shortages, technical difficulties, competing projects, mechanical problems and other factors, which may lead to delays in the development/deployment.
12th – Upon completion of the development/deployment process, and after the final testing phase, ALLITHOST shall notify the CUSTOMER, on order for both parties to proceed with the SYSTEMS or SERVICES final activation.
13th – Both parties shall then arrange the logistics of making delivery of the DELIVERABLES, relative to that SYSTEM or SERVICE (and defined in the proper ORDER) and for performing the on-premises testing.
14th – Upon delivery, the parties shall reasonably cooperate in good faith to perform the agreed on-premises testing procedures.
15th – If according to the respective ORDER a project should be comprised of more than one deployment/development phase, upon completing each phase ALLITHOST, shall present the results of that phase of the work to the CUSTOMER, so the respective on-premises test may be performed.
16th – In no event shall any on-premises testing process lasts more than 7 (seven) days, following the applicable delivery, unless specifically provided in a mutually agreed ORDER that set the testing procedures for that given project.
17th – During the on-premises testing process, ALLITHOST shall use reasonable diligence to correct any commercially reasonable deficiencies noticed, or to implement any commercially reasonable change requested, by the CUSTOMER, on regards of the SERVICES or SYSTEMS, and to resolve any CUSTOMER reasonable concerns over the SYSTEMS or SERVICES being delivered, provided it complies with the aforementioned CHANGE ORDER procedures.
18th – Upon the on-premises testing process conclusion, the SYSTEMS or SERVICES will be considered as delivered or deployed and further support will be provided, by ALLITHOST to the CUSTOMER, only if such support was agreed upon, and properly stated as such, in an ORDER, dully signed by both parties.
19th – After the on-premises testing process is finished, any requested changes to the SYSTEMS or SERVICES that constitute additional work to be performed by ALLITHOST will incur additional charges or fees, to be agreed upon by both parties, in writing.
8. SERVICES – FEES AND CHARGES
1st – In consideration of furnishing the SERVICES or SYSTEMS, subject to this ADDENDUM and the AGREEMENT, and described in the respective ORDERS, CUSTOMER shall pay to ALLITHOST the one time and recurring fees and per what was mutually agreed in the respective ORDERS.
2nd – The fees and charges owed by the CUSTOMER for the SERVICES and/or the SYSTEMS are based on the prices set forth in the most up-to-date ALLITHOST price list.
3rd – Those prices set online may have discounts or surcharges added, accordingly to each specific case, that will be expressed in the specific ORDERS for each of the SERVICES.
4th – Billing for each SERVICE shall commence on the “Billing Commencement Date” as described above.
5th – All payments are due as set forth in the applicable ORDER in full at the date of the specific invoice (“Due Date”).
6th – Accordingly to the terms of the AGREEMENT, ALLITHOST gives a GRACE PERIOD for the payment of the respective invoice, or before charging CUSTOMER’s credit card on file.
7th – All fees under this ADDENDUM and the AGREEMENT exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and CUSTOMER shall be sole responsible for payment of all such taxes (other than taxes based on ALLITHOST’s own income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this ADDENDUM and the AGREEMENT including the access to or license of the SYSTEMS and performance of the SERVICES hereunder.
8th – CUSTOMER shall also pay any third-party charges pre-approved by CUSTOMER (e.g., installation, local access, utilities) and discriminated as such in an ORDER.
9th – If CUSTOMER claims tax exemptions it must provide ALLITHOST with the corresponding tax exemption certificates or any official proof of CUSTOMER’s tax exempt status.
10th – Any amount not received by the end of the given GRACE PERIOD will be considered as past due and will be subject to the provisions established in the AGREEMENT.
11th – The CUSTOMER accepts all responsibility for the payments due on its account.
12th – Should a third-party, such as insurance, public assistance, or governmental agency funds, be available to the CUSTOMER, ALLITHOST shall attempt to bill those for any given SERVICES they may be responsible for the CUSTOMER, or as oriented by the CUSTOMER.
13th – However, if no payment is obtained from those sources, the CUSTOMER is ultimately responsible for the payment of ALL OUTSTANDING BILLS AND DUE FEES.
14th – If ALLITHOST is charged with collection of any taxes or third-party surcharges, originally owed by the CUSTOMER, the amount of such taxes or surcharges shall be added to future payments to be immediately owed by the CUSTOMER, and become part of future fees to be charged.
15th – In case of projects that have phases to be completed and milestones to be achieved, payments for the succeeding phase shall be due upon achievement of the milestones set forth in the respective SERVICE ORDER or STATEMENT OF WORK.
16th – CUSTOMER shall be in default under these conditions if such payment is not received within five (5) days following the achievement of such milestones.
17th – Establishing new SERVICES to a CUSTOMER, after prior termination of SERVICES due to non-payment will be done at ALLITHOST’s sole discretion, may require a security deposit, and may incur additional installation and risk charges.
18th – Each party shall maintain records of all activities subject to revenues, payments, fees, commissions and costs pursuant to this ADDENDUM.
9. SERVICES – WARRANTIES
1st – ALLITHOST makes no WARRANTY of any kind, express or implied, with regard to the SERVICES provided hereunder, with the exception of any WARRANTY expressly set forth here in this ADDENDUM or in the AGREEMENT.
2nd – As such, ALLITHOST warrants that the SERVICES will be performed in a professional and workmanlike manner in accordance with industry standards and will conform to the written specifications contained in an ORDER.
3rd – This warranty, with respect to SERVICES, will exist for a period of thirty (30) days from the date the SERVICES are completed and accepted by CUSTOMER.
4th – CUSTOMER’s sole and exclusive remedy for ALLITHOST’s breach of this express warranty, as contained herein, will be to have ALLITHOST perform the service again or, at CUSTOMER’s option, have ALLITHOST refund the fees paid for such SERVICES, less any third-party expenses.
6th – Any action for breach of this express warranty must be commenced within two (2) months following the applicable warranty’s expiration date.
7th – EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS ADDENDUM, ALLITHOST DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORTED SOFTWARE, SYSTEMS, CORRECTIONS AND THE SERVICES, AND ANY RELATED EQUIPMENT PROVIDED HEREUNDER, INCLUDING PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, AS TO TITLE, NON-INFRINGIMENT, ACCURACY, COMPLETENESS, CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT OR SYSTEM INTEGRATION, OR ANY RESULTS TO BE ACHIEVED FROM THE USE OF THE SERVICES AND/OR SYSTEMS.
8th – ALLITHOST makes no WARRANTIES or REPRESENTATIONS concerning the compatibility of SOFTWARE or EQUIPMENT or any results to be achieved therefrom, or that any SERVICE will be free from loss or liability arising out of any third-party technology, or any third party action such as hacking, or any act or omission of the customer, including failure to encrypt, and, as a result ALLITHOST cannot be liable, accessorily liable, and shall have no responsibility therefore.
9th – ALLITHOST MAKES NO WARRANTY THAT THE DELIVERABLES, SYSTEMS AND SERVICES WILL MEET CUSTOMER’S SPECIFIC OBJECTIVES OR NEEDS OR THAT THE DELIVERABLES, SYSTEMS AND SERVICES WILL BE FREE FROM ERRORS OR BUGS.
10th – ALLITHOST MAKES NO WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE DELIVERABLES, SYSTEMS AND SERVICES.
11th – CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ABOVE EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND WILL FORM THE BASIS FOR DETERMINING THE PRICE AND FEES CHARGED FOR THE PRODUCTS, SYSTEMS OR SERVICES.
10. SERVICES – IMDEMNIFICATION, FORCE MAJEURE AND LIMITATIONS ON LIABILITIES
1st – IN NO EVENT WILL ALLITHOST BE LIABLE FOR ANY DAMAGES RESULTING FROM SECURITY BREACHES REGARDING CUSTOMER’S NETWORK OR DATA, CUSTOMER will remain solely liable for the security of CUSTOMER’s network and data.
2nd – CUSTOMER acknowledges that the SERVICES endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless.
3rd – CUSTOMER should consider any particular SERVICE as just one tool to be used as part of an overall security strategy and not a sole guarantee of total security.
4th – ALLITHOST SHALL NOT HAVE ANY OBLIGATION TO CORRECT ERRORS IN THE OPERATION OF THE SYSTEMS OR SERVICES IF ANY PROGRAMMING CODE, CONFIGURATION FILES, SCRIPT FILES OR PROCEDURE FILES, HAVE BEEN MODIFIED BY CUSTOMER OR BY ANY OTHER PARTY.
5th – ALLITHOST shall not liable for claims made against the CUSTOMER or even against ALLITHOST, arising out of CUSTOMER’s wrongful use or ownership of the DELIVERABLES, SYSTEMS AND SERVICES, and CUSTOMER hereby indemnifies and holds ALLITHOST harmless from and against any and all claims, of every nature or type that may be brought or asserted by any third-party.
6th – Hence, CUSTOMER will indemnify, defend and hold harmless, ALLITHOST and ALLITHOST’s employees, contractors, or associates of any kind, from any and all third-party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, or liabilities arising from or related to the use or resale of the SERVICES and/or SYSTEMS.
7th – The parties agree to cooperate in the defense of each other, on any claim brought against either or both of the parties on the basis of the relationship created by the parties hereunder, and in the terms set forth in the AGREEMENT, as well.
8th – However, the aforementioned provision shall in no
#note, it cuts off above on the site.