TERMS AND CONDITIONS FOR DATA NETWORK SOLUTIONS
1. Defined Terms. Any capitalized terms not defined in these Terms shall have the meanings given them in the agreement to which these Terms apply (the “Agreement”).
2. Software and Program Limitations. Customer shall not modify, create any derivative work of, or incorporate any other software into the computer software programs or any portion thereof owned or provided by DNS, except for allowing automatic updates to commence or confirming the installation of an automatically scheduled update or fully supported software for which Customer has purchased technical support and has scheduled such installation with DNS. All software programs on the Equipment must be installed by a DNS technician or software technical support with a DNS technician assisting. DNS shall not be responsible for maintenance of or for repair of errors or malfunctions occasioned by any installation, modification, or enhancement to such programs made by Customer or by anyone other than DNS, unless DNS has agreed to such installation, modification, or enhancement in writing. Any such unauthorized installation, modification, or enhancement may be grounds for immediate termination of the Agreement by DNS. Corrections of any unauthorized installations, modifications, or enhancements shall not be included in the monthly fees paid by Customer for the Services, but shall be separately billed at DNS’s current hourly rates. Customer agrees to prohibit others, including its principals, officers, employees, and agents, from installing hardware, working on the technical aspects of the operating systems on the Equipment, or giving anyone domain administrator access without DNS’s advance written agreement. Only DNS will make administrative or technical changes to the servers.
3. License. All software, documentation, interfaces, content, font source codes, object code, and any other data which may be provided or become available to Customer in connection with the Services, as may be updated or replaced by DNS from time to time, are licensed (and not sold or otherwise transferred) to Customer. This license does not grant Customer any rights to use DNS intellectual property except as otherwise provided in the Agreement. Customer may not, and agrees not to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works from any interface, software, service, technical data, or other information provided or made available to Customer in connection with the Services.
4. Consent to Use of Data. DNS will maintain on-going documentation regarding Customer’s hardware, software, network settings, IP addresses, firewall settings, and related network information. Customer acknowledges and authorizes DNS to have secure access to Customer’s hardware, software, network settings, firewall settings, data, and all related network information.
5. Remote Access to Personal Computers and/or Networks. If Customer transitions to home or alternative networks, DNS will use best efforts to make connections and maintain serviceability. Customer acknowledges that home or alternative networks may not have adequate internet connectivity and equipment to effectively work. DNS is not responsible for inadequacies in such home or alternative networks, including security concerns with respect to such home or alternative networks. Home equipment will not be as secure and may not contain the software and security features installed by DNS on the Equipment. Work on a home or alternative network, unless otherwise specifically included on the Equipment Addendum, is outside the scope of the Agreement. DNS, in its sole discretion, may charge additional fees for work on home or alternative networks and for additional software installed at home or alternative networks as needed.
6. Amendments. DNS may apply changes to these Terms from time to time, which changes shall be applicable thirty (30) days following DNS’s publication of the revised Terms. The Terms, as modified, shall continue to apply during any renewal term. In addition, DNS may change or discontinue any of the Services from time to time.
7. Insurance. Customer agrees to carry liability insurance and property insurance covering any damage to its network and the Equipment, which insurance shall cover any damages to customers of Customer adversely affected by Customer’s network functioning, transmissions from Customer’s network, or Equipment failure. In addition, Customer is responsible for securing cyber security insurance to mitigate any damages or losses that may result from an infiltration of Customer’s network. DNS is not liable for any damages or losses suffered by Customer due to a network infiltration and Customer hereby releases, discharges, and holds harmless DNS and its affiliates, employees, agents, officers, directors, and shareholders from and against all claims, liability, losses, damages, and expenses (including attorney’s fees), relating to any network infiltration.
8. Force Majeure. DNS shall not be liable for any failure of or delay in performance of its obligations under the Agreement to the extent such failure or delay is due to circumstances beyond DNS’s reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees' demands are reasonable and within the party's power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of DNS’s technical staff (collectively referred to herein as “Force Majeure”). If the Services are substantially changed due to a Force Majeure, DNS reserves the right to terminate the Agreement at its sole discretion. In addition, recognizing there are ongoing expenses to DNS of maintaining backups, remote monitoring, other vendor support software/licensing and availability of technicians to service on going needs, DNS may adjust the fees it charges to Customer following a Force Majeure.
9. Taxes. It is understood that any Federal, state or local taxes applicable to the Services shall be added to each invoice for services or materials provided by DNS. Customer shall pay any such taxes unless a valid exemption certificate is furnished to DNS for the jurisdiction of use.
10. Assignment. Customer may not assign or transfer any rights or obligations it has under the Agreement or otherwise without the prior written consent of DNS. Notwithstanding the foregoing, the Agreement is fully assignable by DNS. The Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest.
11. Termination.
(a) Termination by DNS. DNS may terminate the Agreement at any time upon thirty (30) days’ advance written notice to Customer.
(b) Termination by Customer. Customer may terminate the Agreement: (i) upon written notice of Customer’s intent not to renew the Agreement at least sixty (60) days prior to expiration of any twelve (12) month term, or (ii) upon DNS’s material breach of the Agreement; provided, however, DNS shall be given thirty (30) days to cure such breach prior to termination.
(c) Termination Fees. In the event of termination of the Agreement, Customer shall remain responsible for payment of any amounts due through the date of termination, as well as any termination fees which may be applicable.
12. Transition. In the event of a termination of the Agreement:
(a) System Backups. Customer shall be responsible for transferring backups to a system administered by Customer or others on behalf of Customer, and for paying any costs of transferring and/or setting up backups of the system maintained by DNS at the time of termination. If Customer does not notify DNS of any such transfer, backups scheduled or maintained by DNS may be terminated thirty (30) days following the date of termination. Customer assumes all responsibility for its backups following termination and DNS shall have no responsibility to retain backups thereafter. Customer agrees to promptly notify DNS of Customer’s establishment of backups outside of DNS’s systems so that DNS may promptly terminate any backups scheduled or maintained by DNS.
(b) Antivirus Removal. Customer will provide access to DNS technicians to remove antivirus licenses, monitoring tools, and any other software applications maintained by DNS on the Equipment. In the event Customer fails to promptly provide such access, Customer shall continue to be responsible for fifty percent (50%) of the then-current monthly fees for Services until DNS is provided such access and such licenses, tools, and other software applications are removed. Spam filtering will be terminated upon termination of the Agreement. Customer understands that Customer is entirely responsible to redirect all MX records away from the spam filter system and redirect email to its server or it must provide DNS access to Customer’s network information and equipment to implement such redirections. Upon termination of spam filtering services, Customer’s email may not be processed properly and may not be delivered if Customer fails to adequately provide for redirection or fails to permit DNS to take such measures.
(c) Transfer of Data and Network Information. The parties agree to work cooperatively to transfer Customer’s data and network information as directed by the Customer to another service provider or to the Customer. Customer will pay any and all costs of such transfer, which may include hourly charges of DNS technicians to accomplish the transfer. Customer must designate a vendor to handle its email, data backups, and any other services provided by DNS, or Customer shall inform DNS of Customer’s intent to handle such items itself, and Customer shall provide DNS with information needed for DNS to transfer of any backups or network information maintained by DNS within thirty (30) days following the date of termination of the Agreement. Customer shall be responsible for any damages or costs for failure to designate any vendors or establish any accounts referred to in this section and DNS shall have no responsibility for backups, email or other network information thirty (30) days following the date of termination of the Agreement.
(d) Transition Services. Provided Customer has paid all amounts due in connection with the Agreement, upon written request by Customer, DNS in its sole discretion may provide up to sixty (60) days’ support for transition of the Services to Customer or vendors selected by Customer.
13. Limitation of Liability. DNS shall not be liable to Customer or any of its affiliates for any damages, whether incidental, direct, indirect, special, consequential or punitive damages, arising out of the Services or any equipment provided under the Agreement, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, loss to person or property, costs of substitute equipment, or any other losses, even if DNS has been advised of the possibility of such damages. Regardless of the form of action, DNS’s liability for any losses under the Agreement shall be solely for loss or damage directly attributable to the gross negligence or intentional misconduct of DNS or its employees. Notwithstanding anything herein to the contrary, DNS’s cumulative liability under the Agreement shall not exceed thirty thousand dollars ($30,000). If a collection action is initiated by either party, or if DNS has to defend any action by Customer, DNS shall be entitled to its reasonable attorney fees and expenses to be paid by Customer.
14. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, DNS AND ITS AFFILIATES AND LICENSORS: (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. In addition, DNS is not responsible for the acts of other technicians, contractors or consultants providing service to Customer not under its control and direction. If Customer purchases equipment from DNS, CUSTOMER understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that DNS SHALL not BE responsible for functioning of the equipment and DNS has not made any express or implied warranties. DNS shall not be liable for any claim or demand against Customer by any third party on account of errors or omissions performed hereunder.
15. Indemnification. Customer agrees to indemnify and hold DNS, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries, and affiliates harmless from any demands, losses, liabilities, claims or expenses (including attorneys’ fees), made against DNS by any third party due to or arising out of or in connection with the Services.
16. Non-Solicitation of Employees. Customer agrees that, beginning on the Effective Date and ending two (2) years following termination of the Agreement, Customer will not, directly or indirectly, solicit or in any manner encourage any employee of DNS to leave their employment with DNS, to become employed with any other business, or to engage in services which are the same as or similar to the Services.
17. Confidentiality. During the term of this Agreement, and thereafter in perpetuity, neither party shall, without the prior written consent of the other, disclose to anyone any Confidential Information of the other. “Confidential Information” shall include each party’s proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, financial information, designs, drawing, specifications, models, software, source codes, and object codes; provided, however, that Confidential Information shall not include: (a) any information that becomes publicly available through no act of a recipient party, or (b) any information that is rightfully received by the recipient party from a third party not known to the recipient party to be under an obligation of confidentiality. Notwithstanding the foregoing, in the event a recipient party is requested or required by applicable law, regulation or legal process (including a subpoena or other administrative or judicial request), to disclose any Confidential Information, the recipient party shall promptly notify the disclosing party so that it may seek a protective order or other appropriate remedy and, unless the demand shall have been timely limited, quashed or extended, the recipient party shall thereafter be entitled to comply with such demand to the extent required by law.
18. Arbitration. Any dispute or controversy arising under or in connection with the Agreement shall be submitted to binding arbitration in accordance with the requirements of the South Carolina Uniform Arbitration Act as then in effect (“SCUAA”). All arbitration proceedings shall be conducted in Columbia, South Carolina. The arbitrators shall be selected as provided in the SCUAA, and the arbitrators shall render a decision on any dispute within one hundred twenty (120) days after the last of the arbitrators has been selected. If any party to the Agreement fails to select an arbitrator with regard to any dispute submitted to arbitration under this section, within thirty (30) days after receiving notice of the submission to arbitration of such dispute, then the other party shall select an arbitrator for such non-selecting party, and the decision of the arbitrators shall be binding upon all the parties to the dispute, their personal representatives, legal representatives, heirs, successors and assigns. Unless otherwise ordered by the arbitrators, each party to an arbitration proceeding under this section shall pay an equal portion of all arbitrators’ expenses and fees, together with other expenses of arbitration, except that the parties shall bear their own respective expert witness, professional and attorneys’ fees. It is the intention of the parties that this agreement to arbitrate be construed as broadly as possible. Therefore, this section applies not only to those issues which are or might be foreseeable as a result of the relationship of the parties arising out of the Agreement, but also those matters which might later be claimed to be unforeseeable. The arbitrators shall have all such powers, save that of contempt, as are possessed by a sitting South Carolina State Circuit Court Judge, including the power to order equitable and legal relief. The arbitrators shall have the power to sanction either party for such action or inaction as is thought by the arbitrators to be appropriate.
19. Governing Law. The Agreement and any amendments thereto, its validity, construction and performance, shall be governed by the laws of South Carolina regardless of the residence or domicile, now or in the future, of any party hereto and notwithstanding any conflicts of laws.