INFLECTRA SOFTWARE HOSTING AND END USER LICENSE AGREEMENT
IMPORTANT: THIS SOFTWARE HOSTING AND END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND INFLECTRA. READ IT CAREFULLY BEFORE PURCHSING A SOFTWARE SUBSCRIPTION AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE HOSTED VERSION OF THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY LOGGING IN YOUR INSTANCE OF THE HOSTED SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE / HOSTING SERVICE. AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT LOGIN TO THE SOFTWARE AND NOTIFY INFLECTRA IMMEDIATELY FOR AN IMMEDIATE TERMINATION OF SERVICE AND REFUND.
THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE AND HOSTING SERVICES SUPPLIED BY INFLECTRA HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE OR SERVICES ARE REFERRED TO OR DESCRIBED HEREIN.
1. Definitions
(i) "Inflectra" means Inflectra Corporation and its licensors or affiliates, if any.
(b) "Software" means only the Inflectra software program(s) and third party software
programs, in each case, supplied by Inflectra herewith, and corresponding
documentation, associated media, printed materials, and online or electronic
documentation.
(c) “Software Edition” means the specific version of the Software that you have
purchased including the specified number of concurrent user licenses.
(d) "Hosting" means the service provided by Inflectra to install and host the
Software on a shared Microsoft Windows® Web Server and Microsoft SQL Server®
Database Server that is publicly accessible to you over the Internet.
(e) “Subscription” means the combination of Software and Hosting provided by
Inflectra to you during the specified Subscription Period.
(f) "Subscription Period" means the period(s) during which a specified number of
Users are licensed to use the Subscription pursuant to the purchased Software
Edition.
(g) “Organization” means the legal entity purchasing the Subscription. In the case
of local, state, territory or federal governments, organization will be limited
to the specific department or statutory agency of Government purchasing the
license.
(h) "User(s)" means employees, representatives, consultants, contractors, agents or
customers of Organization who are authorized to use the Subscription and have
been supplied user identifications and passwords by Organization (or by
Inflectra at Organization's request).
(i) "User Data" means all text, pictures, sound, graphics, video and other data
provided by users of the Software.
(j) “Trial Subscription” means a time-limited evaluation Subscription provided at no
cost to Organization for the purposes of evaluating the functionality of the
Software.
(k) “Commercial Subscription” means a Subscription that is not a “Trial
Subscription”
2. Hosting.
Hosting Services: Inflectra will provide the following Software hosting services as
part of a Commercial Subscription.
Such services will be performed in a professional, workmanlike manner with a
high grade of services, so that the Software is accessible to third parties as
can be reasonably be required by Organization.
(a)
Data Backup: Inflectra will maintain a daily copy of the User Data stored in the
Software as part of the Subscription.
(b)
Data Downloads. Organization may request a copy of any and all User Data at any
time. Inflectra will make requested User Data available on its secure web site
for Organization to download. The charge to Organization, payable to Inflectra,
will be $130 per hour. This fee is subject to change with one-month advance
written notice from Inflectra to Organization.
(c)
Standards/Service Level Guarantees.
Inflectra’s hosting standards will conform to the standards, service level
guarantees and specifications set forth in Exhibit A.
(d)
Security. Inflectra will exercise
industry-standard measure to prevent unauthorized access to the backup server
sites, restricted areas of the Software and any databases or other sensitive
material generated from or used in conjunction with the Software; and Inflectra
will notify Organization of any known security breaches or holes.
(e)
Support. Inflectra shall maintain an organization and be prepared with suitably
qualified and competent personnel during its normal business hours to provide
knowledgeable and timely support service in accordance with this Agreement.
Under the terms of this Agreement, Inflectra will provide to Organization the
following support services:
i.
Telephone Support: Inflectra will provide telephone support to
Organization during Normal Business Hours.
Normal Business Hours are between 9 a.m. to 5 p.m. (EST/EDT), Monday
through Friday, excluding
ii.
Telephone support is provided by Technical Support Engineers (TSE). It is the responsibility of the TSE
to coordinate the resolution of problems, including the verification of any
reported error, communicating with Organization for additional information,
telephone or email resolution or workaround, as applicable, and for supplying
the error correction and/or update as necessary.
iii.
Email Support: Organization may log requests for support via email by
directing its query to an email account or website provided by Inflectra.
iv.
Turnaround Time: Inflectra will make reasonable efforts for a TSE to respond
to emails and phone messages within one (1) Business Day.
In the case of a Trial Subscription, Inflectra will NOT provide services (a), (b),
(c) and (d) from the list defined in Section 2 above.
3. License Grants & Restrictions
(a)
Inflectra hereby grants Organization a non-exclusive, non-transferable right to
use the Subscription, subject to the terms and conditions of this Agreement. All
rights not expressly granted to Organization are reserved by Inflectra and its licensors.
(b)
During the period that Inflectra provides web hosting services pursuant to Section 3, Organization hereby grants to Inflectra a non-exclusive, non-sublicenseable, royalty-free, worldwide license to store, reproduce, distribute and display and the User Data only on or in conjunction with the Subscription. Organization grants no rights other than explicitly granted herein, and Inflectra will not exceed the scope of its license.
(c)
Organization may use the Subscription only for Organization’s business purposes
and shall not: (i) send spam or otherwise duplicative or unsolicited messages in
violation of applicable laws; (ii) send or store infringing, obscene, threatening,
libelous, or otherwise unlawful or tortious material, including material harmful
to children or violative of third-party privacy rights; (iii) send or store material
containing software viruses, worms, Trojan horses or other harmful computer code,
files, scripts, agents or programs; (iv) interfere with or disrupt the integrity
or performance of the Subscription or the data contained therein; or (v) attempt
to gain unauthorized access to the Hosting service or its related systems or networks.
4. Your Responsibilities
Organization is responsible for all activity occurring on Inflectra's servers
and shall abide by all applicable local, state, national and foreign laws, treaties
and regulations in connection with its use of the Subscription, including those
related to data privacy, international communications and the transmission of technical
or personal data. Inflectra is responsible for providing the Hosting service and
shall abide by all local, state, national and foreign laws, treaties and regulations
applicable to it in connection with the Subscription, including those related to
data privacy, international communications and the transmission of technical or
personal data. Each party shall: (i) notify the other immediately of any unauthorized
use of any password or account or any other known or suspected breach of security;
and (ii) report to the other party immediately and use reasonable efforts to stop
immediately any unauthorized copying or distribution of User Data that is known
or suspected by either party. Organization shall not impersonate another Inflectra
customer, or provide false identity information to gain access to or use the Subscription.
5. Account Information and Data
Inflectra does not own or license any data, information or material that Organization
submits to the Software in the course of using the Subscription (“User Data”). Organization,
not Inflectra, shall have sole responsibility for the accuracy, quality, integrity,
legality, reliability, appropriateness, and intellectual property ownership or right
to use of all User Data, and Inflectra shall not be responsible or liable for the
deletion, correction, destruction, damage, loss or failure to store any User Data,
except as specifically required by this Agreement. In the event this Agreement is
terminated (other than by reason of Organization’s breach), Inflectra will make
available to Organization a file of the User Data within 30 days of termination
if Organization so requests at the time of termination.
6. Intellectual Property Ownership
(a) Inflectra Software. The foregoing grants of rights give Organization limited
license to use the Software. Except as expressly provided in this Agreement, Inflectra
and its suppliers retain all right, title and interest, including all copyright
and intellectual property rights, in and to, the Software (as an independent work
and as an underlying work serving as a basis for any improvements, modifications,
derivative works, and applications you may develop), and all copies thereof. All
rights not specifically granted in this AGREEMENT, including Federal and International
Copyrights, are reserved by Inflectra and its suppliers.
(b) Ownership of User Data. As between
Inflectra and Organization, any data given to Inflectra by Organization under this
Agreement or otherwise (“Data”), and all User Data, will at all times remain the
property of Organization or its licensor. Inflectra will have no rights in such
Data or User Data, other than the limited right to use such data for the purposes
expressly set forth in this Agreement.
7. Charges and Payment of Fees
Organization shall pay all fees or charges to Organization’s account in accordance
with the fees, charges, and billing terms contained in any Order Form executed by
Inflectra. Payments may be made annually, quarterly, monthly, or as otherwise mutually
agreed upon in writing. Organization is responsible for paying for all the user
licenses in the Software Edition for the entire Subscription Period, whether or
not such user licenses are actively used. Inflectra reserves the right to modify
its fees and charges and to introduce new charges at any time, upon at least 30
days prior notice to Organization, which notice may be provided by e-mail. All pricing
terms are confidential, and Organization agrees not to disclose them to any third
party unless Inflectra has made them publicly available beforehand.
8. Billing and Renewal
Inflectra charges and collects in advance for use of the Subscription. Inflectra
will automatically renew and issue an invoice to Organization monthly or as otherwise
set forth in any Order Form Organization has executed. Fees for other services will
be charged on an as-quoted basis. Inflectra’s fees are exclusive of all taxes, levies,
or duties imposed by taxing authorities, and Organization shall be responsible for
payment of all such taxes, levies, or duties, excluding only United States (federal
or state) or foreign taxes based solely on Inflectra’s or its personnel’s income.
Organization agrees to provide Inflectra with complete and accurate billing and
contact information. This information includes Organization’s legal company name,
street address, e-mail address, and name and telephone number of an authorized billing
contact and License Administrator. Organization agrees to update this information
within 30 days of any change to it. If the contact information Organization has
provided is false or fraudulent, Inflectra reserves the right to terminate Organization’s
access to the Subscription in addition to any other legal remedies.
If Organization believes its bill is incorrect, Organization must contact Inflectra
in writing within 60 days of the invoice date of the invoice containing the amount
in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Inflectra herein, Inflectra reserves
the right to suspend or terminate this Agreement and Organization’s access to the
Subscription if Organization fails to pay any invoice when due and Inflectra has
provided Organization with written notice of such failure and Organization has failed
to make such payment within an additional thirty (30) days. Delinquent invoices
(accounts in arrears) are subject to interest of 1.0% per month on any outstanding
balance, or the maximum permitted by law, whichever is less, plus all expenses of
collection. Organization will continue to be charged for Subscription during any
period of suspension. If Organization or Inflectra initiates termination of this
Agreement, Organization will be obligated to pay the balance due on Organization’s
account prior to the date of termination, computed in accordance with the Charges
and Payment of Fees section above. Organization agrees that Inflectra may bill Organization
for such unpaid fees.
Inflectra reserves the right to impose a reconnection fee in the event Organization
is suspended and thereafter requests access to the Subscription. Organization agrees
and acknowledges that Inflectra has no obligation to retain User Data 30 days after
any termination of this Agreement.
10. Term and Termination
This Agreement commences on the date Users first access the Subscription (the “Effective
Date”). The Initial Term will be from the Effective Date for the period of one (1)
calendar month. Unless either party provides written notice of non-renewal to the
other party ten (10) days prior to expiration of the Initial Term, upon the expiration
of the Initial Term any Order Form in effect under this Agreement will automatically
renew for successive renewal terms of one calendar month. The rate specified in
each Order Form shall continue to be the rate during any renewal term unless Inflectra
provides written notice to Organization of any price increase at least ten (10)
days prior to the end of the current term. Either party may terminate this Agreement
due to a material breach of this Agreement by the other party, provided the party
seeking termination first provides the breaching party written notice of the breach
and thirty (30) days in which to cure the breach. After the Initial Term, either
party also may terminate this Agreement for convenience, by notifying the other
party in writing at least ten (10) days prior to termination. In the event this
Agreement is terminated (other than by reason of Organization’s breach), Inflectra
will make available to Organization a file of the Data within thirty (30) days of
termination if Organization so requests at the time of termination and has paid
Inflectra, in full, for all services to that point. Organization agrees and acknowledges
that Inflectra has no obligation to retain the User Data, and may delete such User
Data, more than sixty (60) days after any termination or expiration of this Agreement.
11. Termination for Cause
Any breach of Organization’s payment obligations or unauthorized use of the Inflectra
Software or Subscription will be deemed a material breach of this Agreement. Inflectra,
in its sole discretion, may terminate Organization’s passwords, accounts and/or
access to the Subscription after providing the notice and right to cure provided
in Section 10, if Organization breaches or otherwise fails to comply with this Agreement.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to
enter into this Agreement. Inflectra represents and warrants that it will provide
the Subscription in a manner consistent with commercially reasonable industry standards
reasonably applicable to the provision thereof. Organization represents and warrants
that it has not falsely identified itself nor provided any false information to
gain access to the Subscription and that Organization’s billing information is correct.
13. LIMITED WARRANTY AND DISCLAIMER
(a) INFLECTRA AND ITS SUPPLIERS MAKE
NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY,
SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION OR
ANY DATA.
(b) INFLECTRA AND ITS SUPPLIERS DO NOT
REPRESENT OR WARRANT THAT
THE USE OF THE SUBSCRIPTION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE
OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
(d) INFLECTRA PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR
TRIAL SUBSCRIPTIONS. TRIAL SUBSCRIPTIONS ARE EXPLICITLY PROVIDED “AS IS”.
(e) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO THE SUBSCRIPTION
OTHER THAN TRIAL SUBSCRIPTIONS, INFLECTRA AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES
AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY
OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. INFLECTRA DOES NOT WARRANT THAT
THE SUBSCRIPTION WILL PERFORM ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO
RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU
UNLESS EXPRESSLY GRANTED HEREIN. THE SUBSCRIPTION IS NOT DESIGNED, INTENDED OR LICENSED
FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT
LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT
OR WEAPONS SYSTEMS. INFLECTRA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY
OF FITNESS FOR SUCH PURPOSES.
(e) INFLECTRA AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION
OR THE SERVER(S) THAT MAKE THE SUBSCRIPTION AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS.
(f) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INFLECTRA, ITS DEALERS, DISTRIBUTORS,
AFFILIATES, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(g) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS
AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
14. Exclusive Remedy
Your exclusive remedy under the preceding is to terminate your Subscription in accordance
with the terms defined in section 10. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY
AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE
SOFTWARE AND RELATED DOCUMENTATION.
15. Internet Delays
INFLECTRA’S SUBSCRIPTIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. INFLECTRA IS
NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM
SUCH PROBLEMS, EXCEPT TO THE EXTENT CAUSED BY INFLECTRA’S GROSS NEGLIGENCE OR WILFULL
MISCONDUCT.
16. LIMITATION OF LIABILITY
(a) NEITHER INFLECTRA NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS
DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING
OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF
LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFLECTRA OR ITS REPRESENTATIVES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN
IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) INFLECTRA’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER
WILL BE LIMITED TO THE GREATER OF $500 OR FOR THREE (3) MONTHS FEES FOR THE SUBSCRIPTION.
(c) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT
APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES
AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
17. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability
set forth above are fundamental elements of the basis of the agreement between Inflectra
and you. Inflectra would not be able to provide the Software on an economic basis
without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies
and Limitation of Liability inure to the benefit of Inflectra’s licensors.
18.
This Subscription and the documentation are provided with "RESTRICTED RIGHTS”
applicable to private and public licenses alike. Without limiting the foregoing,
use, duplication, or disclosure by the U.S. Government is subject to restrictions
as set forth in this AGREEMENT and as provided in DFARS 227.7202-1(a) and 227.7202-3(a)
(1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19,
or FAR 52.227-14, as applicable. Manufacturer: Inflectra Corporation,
19. (Outside of the
The limitations or exclusions of warranties and liability contained in this AGREEMENT
do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring
goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in
this AGREEMENT shall apply to you only to the extent such limitations or exclusions
are permitted under the laws of the jurisdiction where you are located.
20. Third Party Software
The Software may contain third party software which requires notices and/or additional
terms and conditions. Such required third party software notices and/or additional
terms and conditions are located at
http://www.inflectra.com/Company/Legal Notices.aspx
and are made a part of and incorporated by reference into this AGREEMENT. By accepting
this AGREEMENT, you are also accepting the additional terms and conditions, if any,
set forth therein.
21. Notice
Inflectra may give notice by means of a general notice on the Software, electronic
mail to Organization’s e-mail address on record in Inflectra’s account information,
or by written communication sent by first class mail or pre-paid post to Organization’s
address on record in Inflectra’s account information. Notice shall be deemed to
have been given upon the expiration of two business days after mailing or posting
(if sent by first class mail or pre-paid post), one business day after mailing via
an overnight delivery service, upon receipt of facsimile confirmation by sender,
or 12 hours after sending by email.
22. Confidential Information
Inflectra may have access to and special knowledge of Organization’s business affairs
and related information and User Data
disclosed to it or known to it as a consequence of providing the Subscription to
Organization, which is considered to be trade secret, proprietary, confidential
and/or sensitive (“Confidential Information”). Inflectra agrees not to use Confidential
Information except for Organization’s benefit in the course of performing services
for Organization, and not to disclose Confidential Information to any third party
without Organization’s prior written consent, except as required by law. Upon expiration
or termination of this Agreement Inflectra will return or destroy (at Organization’s
request) any of Organization’s Confidential Information.
23. General
This AGREEMENT shall be governed by the internal laws of the State of
This AGREEMENT contains the complete agreement between the parties with respect
to the subject matter hereof, and supersedes all prior or contemporaneous agreements
or understandings, whether oral or written. You agree that any varying or additional
terms contained in any purchase order or other written notification or document
issued by you in relation to the Subscription licensed hereunder shall be of no
effect. The failure or delay of Inflectra to exercise any of its rights under this
AGREEMENT or upon any breach of this AGREEMENT shall not be deemed a waiver of those
rights or of the breach.
Any dispute resolution proceedings, whether in arbitration or
court, will be conducted only on an individual basis and not in a class or
representative action or as a named or unnamed member in a class, consolidated,
representative or private attorney general legal action, unless both you and
Inflectra specifically agree to do so in writing following initiation of the
arbitration. This provision does not preclude your participation as a member in
a class action filed on or before August 20, 2011.
No Inflectra dealer, agent, affiliate or employee is authorized to make any amendment
to this AGREEMENT.
If any provision of this Agreement shall be held by a court of competent jurisdiction
to be contrary to law, that provision will be enforced to the maximum extent permissible,
and the remaining provisions of this Agreement will remain in full force and effect.
All questions concerning this AGREEMENT shall be directed to: Inflectra Corporation,
Inflectra, SpiraTest, SpiraPlan, SpiraTeam and other trademarks contained in the
Software are trademarks or registered trademarks of Inflectra Corporation in the
EXHIBIT A
1.
Subscription Availability
If the availability of Subscription
within a given month is less than 95%, Inflectra will issue a credit to Organization
in accordance with the following schedule, with the credit being calculated on the
basis of the monthly service charge for the affected services:
(a)
95% - 100% availability
=
0%
(b)
90% - 94.9% availability
=
20%
(c)
80% - 89.9% availability
=
50%
(d)
79.9% or below availability
=
100%
2.
Organization will not receive any credits under this Agreement in connection
with any failure or deficiency of Subscription availability caused by or associated
with:
(a)
circumstances beyond Inflectra’s reasonable control, including, without limitation,
acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo,
fire, flood, strike or other labor disturbance, interruption of or delay in transportation,
unavailability of or interruption or delay in telecommunications or third party
services, virus attacks or hackers, failure of third party software (including,
without limitation, ecommerce software, payment getaways, chat, supplies, or free
scripts) or inability to obtain raw materials, supplies, or power used in or equipment
needed for provision of this AGREEMENT;
(b)
Failure of access circuits to the Inflectra’s Network, unless such failure is
caused solely by Inflectra;
(c)
Scheduled maintenance and emergency maintenance and upgrades;
(d)
Domain Name Server ("DNS") issues outside the direct control of Inflectra;
(e)
Issues with FTP, POP, or SMTP Inflectra access;
(f)
False Agreement breaches reported as a result of outages or errors of any Inflectra
measurement system;
(g)
Organization’s acts or omissions (or acts or omissions of others engaged or authorized
by Organization, negligence, willful misconduct, or use of the Subscription in breach
of Inflectra Terms and Conditions and Acceptable Use Policy;
(h)
E-mail or webmail delivery and transmission;
(i)
DNS propagation;
(j)
Outages elsewhere on the Internet that hinder access to Organization’s account. Inflectra is not responsible for browser
or DNS caching that may make Organization’s site appear inaccessible when others
can still access it. Inflectra will
guarantee only those areas considered under the control of Inflectra.
Inflectra server links to the Internet, Inflectra’s routers, and Inflectra’s
servers.