1. THIS MANAGED SERVICES ADDENDUM
- 1st – This 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, 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 MANAGED in any SERVICE ORDER or STATEMENT OF WORK done between ALLITHOST and the Customer.
- 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.
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 – 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.
- 7th – 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.
- 8th – 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.
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 – CONFIDENTIAL INFORMATION includes, but is not limited to, 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.
- 3rd – 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.
- 4th – 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.
- 5th – 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.
- 6th – 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.
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 – 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.
- 4th – 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.
- 5th – 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.
- 8th – CUSTOMER agrees to abide by all other terms governing use of such SOFTWARE.
- 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.
6. SERVICES – GENERAL
- 1st – As defined in this ADDENDUM and in the original AGREEMENT, the services that are subject to this ADDENDUM are the ones that are provided by ALLITHOST to the CUSTOMER and that need constant interference from ALLITHOST’s employees, contractors or associates of any kind.
- 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 properly functioning and operation, services that will be, hence, defined as MANAGED in any SERVICE ORDER or STATEMENT OF WORK done between ALLITHOST and the Customer.
- 3rd – Those services may include but are not limited to the following categories:
a) 24/7/365 Monitoring of CUSTOMER’s Network, including alerting and basic troubleshooting;
b) Routers and Firewall maintenance;
c) Secure Remote Access to CUSTOMER’s Network for troubleshooting;
d) Monitor CUSTOMER’s Internet Usage and Productivity;
e) Monitor CUSTOMER’s Network, either physical or virtual, for threats, breaches, failures and errors;
f) Deploy data and configuration off-site remote backup and handle backup jobs;
g) VPN access management;
h) Monitor CUSTOMER’s Network, either physical or virtual, for hackers, viruses, and other outside threats;
i) Monitoring; Maintain and backup configurations;
j) Maintain logon and access control information;
k) Configure and secure IDS (Intrusion Detection System);
l) Web access control;
m) SMTP monitoring and security;
n) Access rules configuration and maintenance;
- o) Maintain CUSTOMER’s Network routing tables, routing configurations and DHCP and DNS configurations;
p) Keep CUSTOMER’s Network hardware and software patched and updated;
q) Provide remote support to CUSTOMER’s in-house general computer and server issues;
r) And any other services that need the direct interference from ALLITHOST but do not have to be performed ON-SITE.
- 4th – The above list aims to be just a comprehensive list of the SERVICES that can be provided by ALLITHOST under this MANAGED SERVICES ADDENDUM, but does not represent the list of services being provided to a specific CUSTOMER or to the SERVICES or SYSTEMS actually covered by this ADDENDUM, SERVICES or SYSTEMS that will be defined, establishing rights and obligations for both parties, ONLY through the specific SERVICE ORDERS and/or STATEMENTS OF WORK.
- 5th – 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, of any CUSTOMER’s facilities and/or offices must be subject of a properly signed specific I.T. SERVICES ADDENDUM.
- 6th – If on-site services are requested and performed by ALLITHOST, the CUSTOMER agrees that such services provided will be charged at the then prevailing rates for I.T. SERVICES or non-contract services, accordingly to ALLITHOST’s price list located online at:
- 7th – The specific services to be performed, their 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.
- 8th – Such ORDER, or ORDERS, when properly signed and recognized as such by both parties, will become integral part of this ADDENDUM.
- 9th – ALLITHOST will solely determine the method, details, and means of performing any of the contracted services.
- 10th – 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, as needed.
- 11th – 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.
- 12th – 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.
- 13th – As such, ALLITHOST must have full root/administrator access to CUSTOMER’s Network, either physical or virtual, in order to provide the managed services which are subject of this ADDENDUM.
- 14th – If the CUSTOMER, or any of its employees, third-party contractors or associates of any kind, proceed with any changes on that 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.
- 15th – 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.
- 16th – 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.
- 17th – 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.
- 18th – 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.
- 19th – In connection with certain Solutions, connected with the SERVICES, ALLITHOST may provide the CUSTOMER with hardware, software, equipment or other ALLITHOST property (“EQUIPMENT”).
- 20th – 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.
- 21st – 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.
- 22nd – 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.
- 23rd – 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.
- 24th – 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 ALLITHOST ACCOUNT MANAGER.
- 25th – Certain Solutions deployed with the SERVICES may contain features designed to interoperate with third-party specific products.
- 26th – 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.
- 27th – 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 (including providing adequate disclosures and obtaining legally sufficient consents from CUSTOMER’s employees, agents, contractors and End Users).
- 28th – 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 any third-party claims regarding the same.
- 29th – 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.
- 30th – CUSTOMER remains responsible for responding to any third-party requests.
- 31st – 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.
- 32nd – ALLITHOST may provide DOCUMENTATION for CUSTOMER’s use of the SERVICES.
- 33rd – The DOCUMENTATION may specify restrictions on how the SERVICES may be used and, in this case, such restrictions will become part of this ADDENDUM.
- 34th – Hence, CUSTOMER agrees to comply with any such restrictions as specified.
- 35th – 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.
- 36th – 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.
- 37th – ALLITHOST may need to use such agents to track system information so that it can more efficiently manage various service-related issues.
- 38th – 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.
- 39th – 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.
- 40th – 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.
- 41st – CUSTOMER is responsible for providing customer service (if any) to its own END USERS.
- 42nd – ALLITHOST will not provide any support or services to CUSTOMER’s END USERS unless such SERVICE becomes subject to a separate I.T. SERVICES 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 – CHANGES
- 1st – Either party may, at any time, request changes to an ORDER by submitting 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.
- 2nd – Proposed changes to an existing ORDER, or the issuance of a new ORDER, may impact the SYSTEM’s current deployments or projected deployments, and its schedules, pricing, continuity and/or scope.
- 3rd – ALLITHOST will evaluate CUSTOMER‘s change request, considering the feasibility of the change and impact on other specific deployment components for the SYSTEMS.
- 4th – Upon the change request, from either party, ALLITHOST will prepare a Change Order documenting the revisions to an existing ORDER or issue a new ORDER.
- 5th – Changes to the ORDER become effective when CUSTOMER and ALLITHOST accept the Change Order in writing.
- 6th – 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 a written Change Order and corresponding ORDER.
- 7th – 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.
8. SERVICES – FEES AND CHARGES
- 1st – CUSTOMER will pay all applicable rates and fees set forth in the relevant ORDER.
- 2nd – The fees and charges owed by the CUSTOMER for the SERVICES are based on the prices set forth in the most up-to-date ALLITHOST price list, located online at: https://www.allithost.com/documents/pricelist.
- 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 – In addition to SERVICE related charges and fees, CUSTOMER shall also pay all applicable federal, state and local taxes and any third-party charges pre-approved by CUSTOMER (e.g., installation, local access, utilities) and discriminated as such in an ORDER.
- 8th – 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.
- 9th – 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.
- 10th – The CUSTOMER accepts all responsibility for the payments due on its account.
- 11th – 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.
- 12th – However, if no payment is obtained from those sources, the CUSTOMER is ultimately responsible for the payment of ALL OUTSTANDING BILLS AND DUE FEES.
- 13th – 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.
- 14th – 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.
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 for the WARRANTIES expressly set forth herein, the SERVICES and any related EQUIPMENT, SOFTWARE AND OTHER MATERIALS, provided by ALLITHOST in connection with the SERVICES, are provided without any WARRANTIES or REPRESENTATIONS of any kind, whether statutory, express or implied, including but not limited to, warranties of title, non-infringement, merchantability, fitness for a particular purpose, accuracy, completeness or any results to be achieved from their use.
- 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.
10. SERVICES – IMDEMNIFICATION, FORCE MAJEURE AND LIMITATIONS ON LIABILITIES
- 1st – To the extent CUSTOMER engages ALLITHOST to provide SERVICES with respect to security of 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 – IN NO EVENT WILL ALLITHOST BE LIABLE FOR ANY DAMAGES RESULTING FROM SECURITY BREACHES REGARDING CUSTOMER’S NETWORK OR DATA.
- 5th – THIS DISCLAIMER IS IN ADDITION TO, AND NOT INSTEAD OF, ANY OTHER DISCLAIMERS AND LIMITATION OF LIABILITY IN THIS ADDENDUM OR IN THE AGREEMENT.
- 6th – 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.
- 7th – ALLITHOST and its third-party vendors shall not be liable for, nor shall you make any claim for any indirect, incidental, special, consequential, punitive, or exemplary damages (even if allithost has been advised of the possibility of such damages) whatsoever, arising out of or in connection with the performance of this ADDENDUM or of the AGREEMENT, including but without limitation, any lost or imputed profits or revenues, lost data, damages to software or firmware, or cost of procuring or transitioning to substitute services, any interruption or loss of services or use of software, or any files, data, or other computer system , or loss or damage of any kind or nature resulting from the foregoing, and notwithstanding any failure of essential purpose of any limited remedy, besides the remedies stated in this ADDENDUM and in the AGREEMENT, regardless of any legal theory under which such liabilities may be asserted, and regardless of whether a party had been advised of the possibility of such liabilities.
- 8th – ALLITHOST assumes no liability for interruption of monitoring service due to acts of war, terrorism (including Cyber-Terrorism), strikes, riots, floods, storms, earthquakes, extreme weather, fires, power failures, insurrection, interruption, embargo, civil unrest, unavailability of telephone service or Internet connectivity, acts of God, or for any other cause beyond the control of ALLITHOST, or any unforeseeable event beyond a party’s reasonable control.
- 9th – Neither party will be liable for any failure or delay in its performance under this ADDENDUM, or the AGREEMENT (other than a failure to comply with payment obligations, under the terms of the AGREEMENT) due to such aforementioned Force Majeure Events.
- 10th – If a Force Majeure Event prevents the provision of SERVICES for a period of thirty (30) days, either party may terminate the affected SERVICE by providing thirty (30) days written notice to the other party.
- 11th – ALLITHOST will not be required to supply monitoring service to CUSTOMER while any such Force Majeure Event may continue.
- 12th – This ADDENDUM may be suspended at ALLITHOST’s sole option should the systems, CUSTOMERS’s Premises, or ALLITHOST Network become so substantially damaged that further SERVICE delivery becomes impractical.
- 13th – CUSTOMER agrees that in consideration of the operation of the SERVICES by the company:
a) That ALLITHOST is not an insurer;
b) that insurance, if any, shall be obtained by CUSTOMER;
c) that ALLITHOST makes no guarantee or warranty, including any implied warranty of merchantability or fitness for a particular purpose;
d) that any SERVICES and equipment supplied will avert or prevent occurrences or the consequences therefrom which such SERVICE and equipment was designed to detect or avert, and only those.
- 14th – CUSTOMER acknowledges that it is impractical and extremely difficult to establish values for the actual damages, if any, which may proximately result from ALLITHOST’s negligence, a failure of ALLITHOST to perform any of the obligations herein, including but not limited to, failure of the monitoring SERVICES and/or monitoring equipment to properly operate with a resulting loss to CUSTOMER because of, among other things:
a) The uncertain amount or value of CUSTOMER’s data, intellectual property or information, and or the data, intellectual property or information of others kept on the premises which may be lost, stolen, destroyed, damaged or otherwise affected by occurrences which the system or the SERVICES are designed to detect or avert;
b) The uncertainty of the response time of the police department, fire department, paramedic unit, FBI, or others, should any law enforcement or public services team, be dispatched or summoned as a result of a breach, hazard, or failure being detected;
c) The inability to ascertain what portion, if any, of any loss would be proximately caused by a failure of ALLITHOST’s SERVICES to perform or by any related equipment failure to operate;
d) The uncertain nature of occurrences which might cause any loss or issue which the SERVICES are designed to detect or avert;
e) The undetermined nature of the threats and issues to be handled by the SERVICES to be performed by ALLITHOST.
- 15th – Hence, CUSTOMER understands and agrees that if ALLITHOST should be found liable for loss or damage due to ALLITHOST’s negligence, a failure of ALLITHOST to perform any of the obligations herein, a failure of ALLITHOST Network, or a failure of any monitoring services or equipment deployed by ALLITHOST in any respect whatsoever (except those caused by CUSTOMER influence of any kind over those monitoring services and/or equipment), ALLITHOST’s total liability shall be limited to the sum of Two Hundred and Fifty U.S. Dollars ($250.00) and this liability shall be exclusive.
- 16th – To cover other extensive and unforeseen damages, each party shall carry and maintain during the TERM, at its own cost and expense, commercial general liability insurance of:
a) at least fifty percent (50%) of the total estimated amount of their respective equipment in use by the systems object of the SERVICES, per occurrence, AND
b) at least one-hundred (100%) of the total estimated amount of their respective equipment in use by the systems object of the SERVICES, aggregately covering claims for bodily injury, death, personal injury or property damage.
- 17th – If CUSTOMER’s personal property will at any time be located in any data center, CUSTOMER shall also carry, at its own cost and expense, an “all risk” property insurance policy covering such equipment in an amount not less than its full replacement value.
- 18th – All the insurance coverage required herein may be obtained through any combination of primary and excess or already existing commercial umbrella or business liability insurance, as per each party own discretion.
- 19th – If CUSTOMER will have access to any ALLITHOST facility in connection with the Service, CUSTOMER shall also name ALLITHOST as an additional insured for purposes hereof.
- 20th – CUSTOMER shall provide ALLITHOST with certificate(s) of insurance, which evidence such coverage, upon request, and provide, at least, a thirty (30) days prior written notice in case of policy cancellation.
- 21st – Both parties can waive this insurance requirement, by signing a mutual INSURANCE REQUIREMENT WAIVER, which will enable each party to handle the insurance needs for the operation through their own exclusive responsibility, and will exclude any liability, or accessory liability, from the other party, for any event or loss arising from the absence of proper insurance by one of the parties.
11. SERVICES – BACKUP
- 1st – If CUSTOMER purchases MANAGED BACKUP SERVICE, then the following terms apply only to that SERVICE:
a) CUSTOMER may select whether CUSTOMER’s core backup data will be stored permanently, at rest, in either the United States or overseas, and, if no selection is made, the CUSTOMER’s core backup data will be stored permanently, at rest, in the United States;
b) CUSTOMER’s core backup data may be stored transiently or cached in any country in which ALLITHOST or its agents maintain facilities before reaching permanent storage.
- 2nd – CUSTOMER is responsible for determining the proper configuration to be applied to its MANAGED BACKUP SERVICE SOLUTION, including backup schedules, storage capacity allocation, critical data specification, and data source exclusions.
- 3rd – CUSTOMER understands and acknowledges that CLOUD SERVER AND DESKTOP SNAPSHOTS are not proper backup strategies, and that data cannot be restored from those snapshots.
- 4th – Hence, CUSTOMER shall make all the data he places in MANAGED CLOUD SERVERS OR DESKTOPS in the proper backup queues, on order for it to be safeguarded and become available for proper recovering.
- 5th – As a result, CUSTOMER declares that ALLITHOST is not liable, and will not be accessorily liable, for data loss resulting from any failure of the CUSTOMER to select its proper data to be placed in the backup queues and, consequently, be properly stored on safe locations.
- 6th – ALLITHOST’s MANAGED BACKUP SERVICE is a solution tailored on order to keep CUSTOMER’s critical data safe and to restore it any time, if needed be, however, CUSTOMER acknowledges that market best practices determine that should be always best to have a secondary redundant backup solution, on order to maintain the appropriate security, protection and backup of CUSTOMER’s data.
- 7th – Hence, even when using ALLITHOST’s MANAGED BACKUP SERVICE, CUSTOMER agrees to try to maintain at least one additional current copy of CUSTOMER’s programs and data stored on the ALLITHOST’s MANAGED BACKUP SERVICE somewhere other than on that SERVICE.
- 8th – ALLITHOST can provide such on-premises additional backup service, which, if CUSTOMER wishes to order so, will be subject to an additional I.T. SERVICES ADDENDUM, to be signed between the parties.
12. SERVICES – MAIL SERVICES
- 1st – CUSTOMER may access its Mail Services, if any, over the web via the ALLITHOST Cloud control panel, via an ALLITHOST-provided API, or via regular Email clients.
- 2nd – ALLITHOST may modify its control panel or APIs at any time, or may transition to new APIs.
- 3rd – ALLITHOST will provision CUSTOMER initial mail environment, and will also manage CUSTOMER mail service, including adding mailboxes, adding wireless, MS Sharepoint, Blackberry relays, and other service components, and also add storage capacity, manage settings, and configure spam filters.
- 4th – Some of those ADDITIONAL SERVICES may bear extra charges, and will be subject to new set of ORDERS to be agreed upon by both parties, prior activation.
- 5th – ALLITHOST will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses.
- 6th – However, ALLITHOST recommends that the CUSTOMER employs additional security measures, such as a desktop virus scanner and firewalls, as needed, in the devices or computers, connected to the Internet, which may be used to access the Email services.
- 7th – ALLITHOST will use commercially reasonable efforts to deliver CUSTOMER Email messages.
- 8th – Third-party filtering services may, from time to time, prevent successful delivery of deliver CUSTOMER Email messages.
- 9th – CUSTOMER acknowledges that the technological limitations of the filtering service heuristics approach will likely result in the capture of some legitimate Email and in the failure to capture some unwanted Email, including Email infected with viruses.
- 10th – CUSTOMER hereby releases ALLITHOST and its employees, agents, affiliates, and third-party suppliers from any liability for damages arising from the failure of ALLITHOST’s filtering services to capture unwanted Email or from the capture of legitimate Email, or from a failure of CUSTOMER Email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s Email service provider.
- 11th – Email messages which are quarantined by the filtering system will be automatically excluded from any obligation under any Service Level Agreements.
- 12th – Mail that exceeds the storage limit when received may be permanently lost.
- 13th – CUSTOMER may request ALLITHOST to adjust the storage capacity of its individual mailboxes, but it is the CUSTOMER’s obligation to monitor the storage capacity of individual mailboxes, and to request its capacity increase, as needed.
- 14th – Any individual Email message that exceeds the per-message size limit of 50 MB (including attachments) may also be permanently lost.
- 15th – CUSTOMER Email messages and other items sent or received via the mail service will include:
a) the content of the communication (“CONTENT”), and
b) certain information that is created by the systems and networks that are used to create and transmit the message (the “MESSAGE ROUTING DATA”).
- 16th – CONTENT includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than Email (like a letter, telephone call, CD, DVD, etc.)
- 17th – MESSAGE ROUTING DATA includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via Email.
- 18th – CONTENT of CUSTOMER’s Email items is deemed as Confidential Information and is subject to the restrictions on use and disclosure of such information as per what is described in this ADDENDUM, and the AGREEMENT and any of its ancillary documents.
- 19th – However, CUSTOMER agrees that ALLITHOST may have access, view and use the MESSAGE ROUTING DATA for ALLITHOST’s general business purposes, including maintaining and improving security, improving ALLITHOST services, and developing products.
- 20th – In addition, CUSTOMER agrees that ALLITHOST may disclose message routing data MESSAGE ROUTING DATA to third-parties, in an aggregate statistical format, provided that ALLITHOST does not include any information that could be used to identify the CUSTOMER.
- 21st – ALLITHOST collects and stores information related to CUSTOMER’s use of the Mail Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage.
- 22nd – CUSTOMER agrees that ALLITHOST may use this information for ALLITHOST’s general business purposes and may disclose such information to third-parties, in an aggregate statistical form, provided that ALLITHOST does not include any information that could be used to identify the CUSTOMER.
- 23rd – CUSTOMER agrees to not send bulk or commercial Email to more than five-thousand (5,000) users per day, and at a maximum allowed rate of two-hundred and fifty (250) messages every twenty minutes.
- 24th – CUSTOMER agrees to not use ALLITHOST’s Email Services to distribute unsolicited bulk electronic mail (UBE) or inappropriate commercial postings (spam) to Usenet newsgroups.
- 25th – CUSTOMER agrees that Email data archived by ALLITHOST for recovery purposes is the sole property of ALLITHOST.
- 26th – As with other backup situations, ALLITHOST reserves the right to charge the CUSTOMER for restoring Email data from its backup system.
- 27th – ALLITHOST makes no warranties of any kind, whether expressed or implied, as to the quality or reliability of these backups.
13. SERVICES – ACCEPTABLE USE POLICY
- 1st – All use, by CUSTOMER and its END USERS, of ALLITHOST’s network and the SERVICES will comply with the AUP (“ACCEPTABLE USE POLICY”).
- 2nd – The AUP is located online at:
on the day your Term commences, as it might have been amended by us in accordance with the amendment procedures set forth in the AGREEMENT.
- 3rd – On regards of that ACCEPTABLE USE POLICY, in the terms of this specific ADDENDUM for MANAGED SERVICES, ALLITHOST has no obligation to monitor CUSTOMER’s use of the SERVICES, on order to detect any violation of the AUP.
- 4th – However, ALLITHOST reserves the right to review CUSTOMER’s use of the SERVICES and to cancel the Services in its sole discretion, if any violation of these terms or the AUP is detected.
- 5th – In these terms, ALLITHOST reserves the right to terminate CUSTOMER’s access to the SERVICES, for any violation of the AUP, at any time, without notice, for any reason whatsoever.
- 6th – By way of illustration, but not of limitation of the foregoing, ALLITHOST reserves the right to terminate SERVICES if CUSTOMER’s use of the SERVICES results in, or is the subject of, legal action or threatened legal action, against ALLITHOST or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
- 7th – ALLITHOST may review every account for excessive hosting space and data transfer bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels.
- 8th – ALLITHOST may also cancel CUSTOMER’s use of the SERVICES if CUSTOMER is using the SERVICES, as determined by ALLITHOST in its sole discretion, in association with spam or morally objectionable activities.
- 9th – Morally objectionable activities will include, but not be limited to:
a) activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties;
b) activities prohibited by the laws of the United States and/or foreign territories in which CUSTOMER conducts business;
c) activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography;
d) activities that are tortuous, vulgar, obscene, invasive of the privacy of a third-party, racially, ethnically, or otherwise objectionable;
e) activities designed to impersonate the identity of a third-party;
f) illegal access to other computers or networks (i.e., hacking);
g) infringement on the intellectual property rights of third-parties;
h) gambling activities, in a jurisdiction where it is prohibited by law;
i) distribution of Internet viruses or similar destructive activities; and
j) activities designed to harm or use unethically minors in any way.
- 10th – CUSTOMER agrees that it, and its END USERS, will not be entitled to a refund of any fees paid to ALLITHOST if, for any reason, ALLITHOST takes corrective action with respect to CUSTOMER’s improper or illegal use of its SERVICES.
14. ADDENDUM – GOVERNING LAW AND ARBITRATION PROCEDURES
- 1st – This ADDENDUM shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its principles for resolving conflicts of law.
- 2nd – In the event of irreconcilable divergences between the parties, on regards of the interpretation of this ADDENDUM and/or of the AGREEMENT, or upon any issue arising from the relationship originated by this ADDENDUM and the AGREEMENT, each party expressly waives its right to have its claims or defenses heard by a jury or court of law, and agree to apply the arbitration principles defined in the AGREEMENT.
15. ADDENDUM – MISCELLANEOUS
- 1st – All legal notices required to be given hereunder shall be in writing and deemed given if sent accordingly to the NOTICE PROVISIONS set forth in the AGREEMENT.
- 2nd – This ADDENDUM is intended solely for ALLITHOST and CUSTOMER and does not provide any third-party (including END USERS) with any right or benefit.
- 3rd – CUSTOMER may not assign all or any part of this ADDENDUM without the prior written consent of ALLITHOST, which consent shall not be unreasonably withheld or delayed.
- 4th – Any attempt by the CUSTOMER to assign any rights, duties, or obligations hereunder without the ALLITHOST’s written consent will be void.
- 5th – ALLITHOST shall have the right to assign this ADDENDUM without the need of CUSTOMER’s consent.
- 6th – The following order of governance shall rule in case of conflict between or among any of the parts of this ADDENDUM, the AGREEMENT, and/or any of its ancillary documents:
a) A CHANGE ORDER, agreed between both parties;
b) any other ADDENDUM to this ADDENDUM or to the AGREEMENT, signed by both parties;
c) this ADDENDUM, signed by both parties;
d) the AGREEMENT;
e) the AUP;
f) the Responsibility Matrix, and;