Effective May 16, 2018
MASTER SERVICES AGREEMENT between Arcustech, LLC. ("we" or "Arcustech") and the customer who signs our Service Contract ("you").
You will be asked to sign a Service Contract that lists the services you have chosen and the related fees. The Service Contract will incorporate this Master Services Agreement, a Service Level Agreement, and an Acceptable Use Policy. It may also incorporate an addendum to this Master Services Agreement if you are purchasing services for which we have special legal terms. When we use the term "Agreement" in any of these documents, we are referring collectively to all of them. The Agreement is effective from the time you sign the Service Contract we prepare, or submit an electronic order form via https://portal.Arcustech.com/. SOME DEFINED TERMS
Some words used in the Agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the Arcustech Acceptable Use Policy posted at https://www.arcustech.com/legal/aup/ as of the date you sign the Service Contract.
"Business Day" or "Business Hours" means 9:00 a.m. - 6:00 p.m. Monday through Friday, United States central time, excluding federal public holidays in the United States.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, your Arcustech servers or other devices, (ii) for Arcustech, unpublished prices and other terms of service, audit and security reports, data center designs (including non-graphic information you may observe on a tour of a data center), and other proprietary technology, and (iii) for the both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through a violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
"Hosting Service" means the information technology hosting services detailed in a Service Contract and Service Level Agreement, plus Support.
"Personally Identifiable Information" or "PII" means: (i) any information that identifies an individual, such as name, social security number or other government issued number, date of birth, address, telephone number, biometric data, mother's maiden name, or other personally identifiable information; (ii) any "non-public personal information" as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) "protected health information" as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
"Service" or "Services" means the Hosting Service and any Supplemental Services we may provide to you, collectively.
"Service Commencement Date" means the date on which we provide the access codes that enable you to send and receive information using the Hosting Service. "Service Level Agreement" means any Service Level Agreements incorporated by reference in your Service Contract.
"Sign" - When you have completed purchasing services from us online, and have selected or previously selected to agree to our terms of service and other agreements during the on-line ordering process.
"Supplemental Service" means any service we provide to you other than the Hosting Service.
"Support" means (i) management of the Hosting Service by a service delivery team, (ii) availability of live support during Business Hours, or as covered by a specific Service Contract; and (iii) use of the Arcustech customer portal/email support system.
Contingent on your satisfaction of Arcustech's payment approval criteria, Arcustech will provide the Hosting Service to the standards stated in the Service Level Agreement(s) for the term of the Agreement. Arcustech will also perform those Supplemental Services that we agree with you in writing to perform.
You must use reasonable security precautions in light of your use of the Services, including all upgrade and security patches provided by web applications installed and/or running under our Service. This also includes encrypting any PII transmitted to or from, or stored on, the Arcustech servers or storage devices you use. You must comply with the laws applicable to your use of the Services and with Arcustech's Acceptable Use Policy. You must cooperate with Arcustech's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You must provide Arcustech with accurate information to help Arcustech determine if any tax is due with respect to the provision of the Services. You are responsible for keeping your billing and other account information up to date. You must pay when due the fees for the Services stated in the Service Contract(s) or other agreement between us.
Arcustech, provides 24 x 7 technical support to our subscribers via our Support Ticket system.
The following are the primary responsibilities of our team:
a) We provide support related to our infrastructure physically functioning, and your virtual server(s) being "online",
b) Carrying out OS patches and security updates as needed,
c) Carrying out change requests and making other modifications requested by you, requiring root/sudo access, for server side technologies we can provide support for.
d) Offering assistance in scaling up or down between VPS resource plans based on your needs and resource usage patterns.
Our Support and Technical Teams do not officially provide, but *may* offer limited technical assistance for web application specific issues such as web application configuration, but is under no obligations to do so. We do not offer any support for HTML, programming or code debugging, email client configuration, or any other issues not related to the services directly purchased from us. Arcustech only provides support for up to 3 authorized contacts on a single account, and we do not provide technical support to your customers.
We require our clients to fully understand their web applications or technology in use by their projects, or contract a web development shop to handle those non-server related tasks for them.
Please feel free to check our customer accessible Knowledge Base as well.
Arcustech offers data backup services. Arcustech will use commercially reasonable efforts and industry accepted methods to ensure the reliability of the backup and restore process. However, because of the technical limitations regarding backups on live servers and the possibility of data corruption, if data has changed since the time we performed a back up, or that the data was not in a usable state at the time we performed a given backup, we, in no way, guarantee the usability of any data from any given backup set.
We do not promise to retain data backups for longer than the agreed data retention period as outlined in our Service Contract.
Arcustech will use commercially reasonable efforts and industry accepted methods to ensure the reliability and security of our Services, but Arcustech is not responsible to you for unauthorized access to your data or the unauthorized use of the Services. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
The duration of the initial term of this Agreement is stated in the Order ("Initial Term"). The Initial Term shall commence on the later of: (a) the date upon which Arcustech accepts the completed Order from the Customer; and (b) the date upon which Customer's first payment as set out in the Order has been received by Arcustech (in accordance with the payment provisions set out in this agreement).
Unless this Agreement is earlier terminated in accordance with the provisions hereof, this Agreement will, at the conclusion of the Initial Term, automatically renew for successive terms of equal length to the Initial Term upon the same terms and conditions as those specified herein.
We require payment before beginning the Hosting Service, during signup, and online only. Recurring fees will be billed in advance on or around the anniversary of the Service Commencement Date. Fees for any Supplemental Services will be billed in the amounts and at such times as you request said Supplemental Services in writing.
Fees are automatically billed on your credit card on file. A reminder notice is sent to your email address on record, approximately 3 days before your renewal date. Any account 7 days past due, for any reason, will have service suspended and have a late fee of $25 added to their outstanding balance. Accounts 14 days past due are subject to account termination and deletion without the possibility of reactivation.
If an account is terminated, there is NO possibility that it can be restored or its data recovered. Arcustech shall not be liable to the Customer or any other third party for any consequences of a Customer's account being terminated.
Following expiration of the initial term, we may increase the fees for the Hosting Service with thirty days advance written notice unless you have agreed to a fixed renewal term.If Arcustech is required by law to pay taxes on the provision of the Service, you must pay Arcustech the amount of the tax that is due or provide Arcustech with satisfactory evidence of your exemption from the tax. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Arcustech is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
Arcustech reserves the right, at any time and from time to time, to amend or to modify our Acceptable Usage Policy without prior notice to you, provided that if any such alterations constitute a material change to our Acceptable Usage Policy, Arcustech will notify you by posting an announcement on the Website. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Acceptable Usage Policies. For this reason, we encourage you to review the Acceptable Usage Policies whenever you use the Services. If you do not agree to any change to our Acceptable Usage Policy, then you must immediately stop using the Services.
You agree that we may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Arcustech network or our other customers, or (iv) if required by law. We will give you advance notice of a suspension under this paragraph of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Arcustech or its other customers from imminent and significant operational or security risk.
Arcustech reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms of Service or any law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with your Account. Arcustech may provide prior notice of the intent to terminate Services to you if such notice will not, in Arcustech's discretion, run counter to the intents and purposes of these Terms of Service. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to Arcustech before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as Arcustech's costs for collection (including attorneys' fees) of any such charges or other liabilities. Upon termination, any and all rights granted to Subscriber by this Agreement will immediately be terminated, and Subscriber shall promptly discontinue all use of the Services. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
If you terminate the Agreement for convenience or we terminate the Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term, unless otherwise stated in a Service Contract.
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement,
(ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other's conduct may violate applicable criminal law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
The Arcustech marks include, but are not limited to, the Arcustech name, logo, and any word, phrase, image, or other designation that identifies the source or origin of any of Arcustech’s products.
Do not modify or alter the marks or use them in a confusing way, including suggesting sponsorship or endorsement by Arcustech, or in a way that confuses Arcustech with another brand. Exclusion to this rule would be agreements between you and Arcustech for actual sponsorship or endorsement deals, mutually agreed upon in writing.
WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN OUR SERVICE LEVEL AGREEMENTS, ALL PRODUCTS AND SERVICES ARE FURNISHED BY Arcustech AND ACCEPTED BY CUSTOMER "AS IS", "WITH ALL FAULTS," AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY Arcustech. Arcustech DOES NOT WARRANT THAT ANY PRODUCT OR SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY. IN NO EVENT WILL Arcustech BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF Arcustech HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF Arcustech AND ANY OF ITS EMPLOYEES, AGENT, SUPPLIERS, OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED ONE (1) TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE CONTRACT(S) IN EFFECT FOR THE CONFIGURATION AT THE TIME OF THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
TERMS PART OF BARGAIN. Customer acknowledges that Arcustech has set its prices and agreed to enter this Agreement in reliance upon the Warranty Disclaimer and Limitation of Liability set forth in this Agreement, and that both form an essential basis of the bargained Agreement between the parties.
DATA BACK UP LIABILITY. We are not liable to you for lost data unless and to the extent you purchase data back up Services from Arcustech and we fail to provide the back up Services as agreed. Liability is limited to a refund of the current monthly cost of said paid backup service. No other form of warranty is provided. Clients are strongly encouraged to make reasonable efforts to keep their own, local copies of all data related to Services we provide under this Agreement.
If you, your affiliates, or any of your or their respective employees, agents, or suppliers, is faced with a legal claim by a third party arising out of Arcustech's actual or alleged negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the Agreement, or a legal claim alleging that the Hosting Service infringes on the United States patent or copyright of a third person, then, subject to the limitations stated in Section "LIMITATION ON DAMAGES" above, Arcustech will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on you as a result of the claim.
If we, our affiliates, or any or our or their respective employees, agents, or suppliers is faced with a legal claim by a third party arising out of your actual or alleged: negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or end users, violation of Section "EXPORT MATTERS" of this Master Services Agreement, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on Arcustech as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.
You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
If either of us receives notice of a claim that is covered by this Section, the notice must be promptly forwarded to the financially responsible party. The party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible party. The party against whom the claim is made may not settle the claim without the consent of the financially responsible party, although such consent may not be unreasonably withheld. Notwithstanding anything to the contrary in this Section, if we are financially responsible under this Section for claims against multiple customers, we may elect to choose counsel to defend the claims and control the defense of the claims. Amounts due under this Section must be paid by the financially responsible party as they are incurred by the party against whom the claim is made.
You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to us.
We may provide to you, or arrange for you to purchase or license third party software, services or other products that may or may not be included as part of the Hosting Service, as a Supplemental Service. Arcustech MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND Arcustech, SUCH SERVICES ARE PROVIDED "AS IS." Your use of any third party software, services, and other products is governed by the terms of your agreement with the third party.
You may resell the Hosting Service and you may permit your subsidiaries and affiliated companies to use the Services if you wish, but you are responsible for use of the Service by any third party to the same extent as if you were using the Service yourself. Arcustech will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
Your routine communications regarding the Services should be sent to our Arcustech support team using the Arcustech support portal. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class United States mail to:
PO Box 365
Arcustech reserves the right, at any time and from time to time, to amend or to modify these Terms of Service without prior notice to you, provided that if any such alterations constitute a material change to these Terms of Service, Arcustech will notify you by posting an announcement on the Website. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Terms of Service. For this reason, we encourage you to review the Terms of Service whenever you use the Services. If you do not agree to any change to these Terms of Services, then you must immediately stop using the Services.
Each of us retains all rights, title, and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Arcustech during the performance of the Services shall belong to Arcustech unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
You do not acquire any ownership interest in or rights to possess the servers or other hardware we provide for your use, and you have no right of physical access to the hardware. We do not acquire any ownership interest in or rights to the information you transmit to or from or store on your Arcustech servers or other devices. On termination of the Agreement, you must promptly release any Internet protocol numbers, addresses, or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name) and agree that we may take steps to change or remove any such IP addresses.
If Arcustech or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and Arcustech is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Arcustech may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
You may not assign the Agreement without Arcustech's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the State of Minnesota, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Hennepin County, Minnesota. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Arcustech or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than one year after the time that the claim accrued.
If you sign multiple Service Contracts for a single configuration - for example, to add a server or additional services, then the Master Services Agreement, Service Level Agreement, and Acceptable Use Policy referenced in the last signed Service Contract will govern the entire configuration. Except for amendment to the AUP as described in Section "CHANGES TO THE ACCEPTABLE USE POLICY" above, the Master Services Agreement, Acceptable Use Policy and Service Level Agreement may be amended only by a formal written agreement signed by both parties. A Service Contract may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail or the Arcustech ticketing system, that includes the express consent of an authorized individual for each of us. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Service Contract, the Service Level Agreement, any addendum to the Master Services Agreement, the Master Services Agreement, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections "FEES", "EARLY TERMINATION FEE", "CONFIDENTIAL INFORMATION", "LIMITATION ON DAMAGES", "INDEMNIFICATION", and "GOVERNING LAW, LAWSUITS", and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically or, as set out above, your access and use of the Services will manifest your consent to this Agreement.
The Agreement is the complete and exclusive agreement between you and Arcustech regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.