Master Services Agreement

The Master Services Agreement is between KisoLabs (“we,” “us” or “our”) and the customer who orders KisoLabs products and services (“you,” “your” or “Customer”).

This Master Services Agreement governs your purchase and use of all Services offered by KisoLabs, as may be further described in this Agreement or any Order. This Agreement applies to you and your employees, agents, contractors, or other users who obtain Services from KisoLabs (each such person or entity being a “User”). You must register with KisoLabs and accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.

This Agreement is the complete and exclusive agreement between you and KisoLabs regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.

Your use of KisoLabs Services is governed by this Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, and the terms of your Order. When we use the term “Agreement” in any of the Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, or an Order, we are referring to all of them collectively. If there is any inconsistency or conflict between the provisions of any these documents, then the documents will be given precedence in the following order: (a) the Master Services Agreement, (b) the Acceptable Use Policy, (c) the Service Level Agreement, and (d) the terms of your Order.

GENERAL TERMS

  1. 1 Definitions
  2. 2 Obligations, Rights and Responsibilities
  3. 3 Term and Payment for Services
  4. 4 Modification
  5. 5 Limitation of Liability and Indemnity
  6. 6 Governing Law
  7. 7 Miscellaneous Provisions

1 Definitions

“Acceptable Use Policy” means KisoLabs’ Acceptable Use Policy found at http://www.kisolabs.com/policies/ as of the date you sign or submit your Order.

“Business Day” means 9:00 a.m. – 5:00 p.m. Eastern Standard Time (EST), Monday through Friday, excluding federal public holidays in the United States and Canada for Services provided in North America.

“Cancellation Date” is defined as the business day after the Cancellation Request was submitted to KisoLabs.

“Cancellation Request” means a written based service cancellation request submitted via support ticket. To schedule your account for cancellation, please login to www.kisolabs.com and submit a ticket under the category “Cancellation Request” from the pull down menu. This will ensure that your account is processed for cancellation. KisoLabs is not responsible for continued invoicing if the above method is not followed.

“Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation: (a) for you, all information transmitted to or from, or stored on, KisoLabs’ systems, (b) for KisoLabs, unpublished prices and other terms of service, audit and security reports, product development plans, server configuration designs, and other proprietary information or technology, and (c) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either party on its own, without reference to the other’s Confidential Information, or that becomes available to either party other than through breach of the Agreement or applicable law, will not be considered “Confidential Information” of the other party.

“Order” means either: (a) the online order that you submit to KisoLabs via the KisoLabs Website, or (b) any other written order (either in electronic or paper form) provided to you by KisoLabs for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.

“KisoLabs Website” means KisoLabs’ website located at http://www.kisolabs.com and any web pages and/or APIs found at kisolabs.net or any subdomain of kisolabs.net, excepting content provided from our customers via our CDN service(s).

“Services” means those KisoLabs products or services described in the Order.

“Service Level Agreement” means Kisolabs’ Service Level Agreement located at http://www.kisolabs.com/policies/service_level_agreement as of the date you sign or submit the Order.

“Third Party Products” means third party software or products that KisoLabs may provide to you under this Agreement.

“Third Party Vendors” means certain reseller and other relationships that KisoLabs has established with certain commercial vendors.

2 Obligations, Rights and Responsibilities

2.1 KisoLabs Obligations.

For all Orders accepted by KisoLabs and subject to this Master Service Agreement, KisoLabs agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with KisoLabs’ Service Level Agreement.

2.2 Your Obligations.

You agree to do each of the following:

  • (a) pay when due the fees for the Services and applicable charges;
  • (b) use reasonable security precautions in light of your use of the Services;
  • (c) cooperate with KisoLabs’ reasonable investigation of outages, security problems, and any suspected breach of the Agreement;
  • (d) keep your billing contact, information, and other account information up to date;
  • (e) immediately notify KisoLabs of any unauthorized use of your account or any other breach of the security of the Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law or the Acceptable Use Policy, then KisoLabs’ reasonable determination will control;
  • (f) pay all federal, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes assessed with respect to the Services; and
  • (g) provide KisoLabs with accurate factual information to help KisoLabs determine if any tax is due with respect to the provision of the Services, and if KisoLabs is required by law to collect taxes on the provision of the Services, then you must pay KisoLabs the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.

2.3 Acceptable Use Policy.

By agreeing to the terms and conditions of this Agreement, you agree to KisoLabs’ Acceptable Use Policy, which is expressly incorporated herein by reference.

2.4 Intellectual Property Rights.

You warrant, represent, and covenant to KisoLabs that:

  • (a) you are at least 18 years of age if an individual;
  • (b) you possess the legal right and ability to enter into this Agreement;
  • (c) you and your Users will use the Services only for lawful purposes and in accordance with this Agreement, KisoLabs’ Acceptable Use Policy, and all applicable KisoLabs policies and guidelines, as contained in this Agreement posted on the KisoLabs Website; and
  • (d) you and your Users have obtained all license or other rights necessary to install or use any software or products in conjunction with your use of the Services.

2.5 Third Party Products.

For your convenience, KisoLabs may provide you access to Third Party Products through certain Third Party Vendors. Neither KisoLabs nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and KisoLabs will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products.  You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.

2.6 Security.

KisoLabs is not responsible for any security breaches affecting accounts under your sole control. If your service(s) is/are responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify KisoLabs immediately, and KisoLabs will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.

3 Term and Payment for Services

3.1 Term.

This Agreement will be for the “Initial Term” as further described in the Order. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide KisoLabs the Cancellation Request as provided in this Agreement.

3.2 Termination.

This Agreement may be terminated in one of the following ways:

  • (a) by you without cause and for convenience by providing the Cancellation Request;
  • (b) by KisoLabs without cause by providing you with a written notice at least 30 days prior to the termination date.
  • (c) by KisoLabs in the event you do not pay any undisputed fees due hereunder within or after 10 days of the due date;
  • (d) by you or KisoLabs, if a party commits a material breach of or fails to perform any obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the terminating party specifying such breach or failure; or
  • (e) as otherwise provided in this Agreement or the Acceptable Use Policy.

3.3 Termination Liability.

If you terminate this Agreement before the end of the Initial Term other than for KisoLabs’ material breach, then you will be required to pay:

  • (a) actual amounts that have been invoiced for the Services provided to the date the Agreement is terminated as determined by the Cancellation Date, and
  • (b) for non-monthly Agreements, the difference between the monthly rate for the Services listed on the Order at the time of the Order, and the rate the Services were discounted to based on the Term pricing grid including any and all promotions. For the discount calculation, your liability will be limited to the period from the commencement of the Initial Term to the Cancellation Date.

3.4 Payment.

  • (a) All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
  • (b) For recurring billing, Services are billed one month in advance and payments are due 30 days of the date of invoice.
  • (c) for non-recurring fees (such as fees for initial set-up, bandwidth overages, paid for support request and any other non-recurring service) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at KisoLabs’ option; provided that KisoLabs may wait to charge your credit card until the total aggregate fees due are at a minimum billable amount. Unless otherwise agreed in the Order or modified via request, your billing cycle will be monthly, beginning on the date that KisoLabs first makes the Services available to you.
  • (d) Unless you have made other arrangements, KisoLabs will charge your credit card or bank account (as applicable) on the due date. If you pay by credit card, then KisoLabs will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.
  • (e) Charges that are not disputed within 60 days of the date charged are conclusively deemed accurate.
  • (f) You also will be responsible for any costs KisoLabs incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney’s fees, court costs, or collection agency fees.
  • (g) You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
  • (h) Non Sufficient Funds Fees (NSF) – KisoLabs has the right to charge you NSF fees if your payment method is check (cheque) and it was returned by the bank due insufficient funds. The fees are Thirty (USD$ 30) United States Dollars.
  • (i) If you pay by credit card, then KisoLabs will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.  You agree that you will notify KisoLabs of any changes to your account, your billing address, or any information that KisoLabs may reasonably require in order to process your payments in a timely manner.

3.5 Refund and Disputes.

Except where expressly provided in this Agreement, all payments to KisoLabs for subscription fees are refundable on a pro-rata basis (calculated as the subscription rate multiplied by: the remaining days of the current billing cycle upon cancellation divided by length in days of the current billing cycle). Payments made towards usage fees (including but not limited to per-gigabyte and per-transaction fees) are non-refundable, except in the case of an error in billing. You must report any overcharges or billing disputes to KisoLabs within 60 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.

3.6 Data Retention Policy.

KisoLabs makes no guarantees about retaining any data stored on KisoLabs’ systems or servers following expiration or termination of this Agreement.  KisoLabs will typically store data such as zone configurations, mail service configurations, CDN configurations, DSUMO projects, and DSUMO functions for a period of one year. Data such as mail that is cached in a KisoLabs mail exchanger will typically be stored from the date upon which it was received until thirty (30) days after that date. Data such as files in CDN cache(s) and DSUMO compute operations (including results) are typically purged/deleted immediately upon account cancellation. You will not have access to your data stored on KisoLabs’ systems or servers during a suspension or following a termination.

4 Modification

KisoLabs may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the KisoLabs Website. Your continued use of the Services following KisoLabs’ posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to KisoLabs within 30 days of the posting of any modifications of this Agreement by KisoLabs.

5 Limitation of Liability and Indemnity

5.1 Monitoring User Activity.

Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. KisoLabs exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through KisoLabs’ host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will KisoLabs, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.

5.2 Interruption of Service.

Except as set expressly provided in KisoLabs’ Service Level Agreement, KisoLabs will not be liable for any temporary delay, outages, or interruptions of the Services. Further, KisoLabs is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). KisoLabs cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.

5.3 Warranty Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY KISOLABS OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER KISOLABS, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. KISOLABS, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5.4 Limitation of Liability.

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR KISOLABS’ INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, KISOLABS’ LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO KISOLABS UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY KISOLABS UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.

5.5 Customer Indemnity.

You agree to indemnify, defend, and hold harmless KisoLabs, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by KisoLabs arising out of any breach of this Agreement by you, your Users, or your customers.

5.6 KisoLabs Indemnity.

KisoLabs agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Services as provided by KisoLabs infringe any third party’s intellectual property rights.

6 Governing Law

With respect to Services rendered by KisoLabs in the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the state of New York and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the state of New York; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.

7 Miscellaneous Provisions

You and KisoLabs are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and KisoLabs. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of KisoLabs, and any attempted assignment or delegation without such consent will be void. KisoLabs and you agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.

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