Legal - Master Service Agreement

How This Agreement Works

When you order Services, you will be presented with an online order or other Service Contract that identifies the Services you have chosen and the related fees. The Service Contract incorporates this Master Services Agreement, any applicable Service Level Agreement, and the Acceptable Use Policy. It may also incorporate an addendum if you purchase Services for which special legal terms apply. When the term "Agreement" is used in any of these documents, it refers collectively to all of them.

You accept and agree to the Agreement when you electronically indicate acceptance during the online ordering process or otherwise Sign a Service Contract. For online orders, selecting the checkbox, button, or other electronic control indicating agreement to Arcustech's terms constitutes your electronic signature and acceptance of the Agreement.

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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 applicable to your then-current Service term under the amendment provisions of this Agreement.
• "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you, all information transmitted to or from, or stored on, your Arcustech servers or other devices, (ii) for Arcustech, unpublished prices and other terms of service, audit and security reports, data center designs (including non-graphic information you may observe on a tour of a data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 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 any applicable 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, 15 U.S.C. § 6809(4); and (iii) "protected health information" as defined in HIPAA, 45 C.F.R. § 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 credentials or other means necessary for you to begin using the Hosting Service.
• "Service Level Agreement" or "SLA" means any Service Level Agreement incorporated by reference in your Service Contract, as applicable to your then-current Service term under the amendment provisions of this Agreement.
• "Sign," "Signed," or "Signature" includes electronic acceptance during Arcustech's online ordering process, including selecting a checkbox, button, or other electronic control indicating agreement to the applicable terms, as well as a written or electronic signature on a Service Contract where applicable.
• "Supplemental Service" means any service we provide to you other than the Hosting Service.
• "Support" means (i) management or support of the Hosting Service as described in the applicable Service Contract, (ii) availability of technical support as described in this Agreement or the applicable Service Contract, and (iii) use of the Arcustech Dashboard support ticket system and other support channels Arcustech designates.

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Our Obligations

Contingent on your satisfaction of Arcustech's payment approval criteria, Arcustech will provide the Hosting Service to the standards stated in the applicable 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.

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Your Obligations

1. You must use reasonable security precautions in light of your use of the Services, including applying available upgrades and security patches for web applications installed or running under the Services. This also includes appropriately protecting and, where required, encrypting PII transmitted to or from, or stored on, Arcustech servers or storage devices you use.
2. You must keep each VPS running an operating system level supported by Arcustech. Arcustech may classify operating system releases as "Current," "Legacy," "EOL/End of Life," or "Retired." Any operating system classified as Retired is used at your own risk and is not covered by Arcustech support or service SLAs.
3. You must comply with the laws applicable to your use of the Services and with Arcustech's Acceptable Use Policy.
4. You must cooperate with Arcustech's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement.
5. You must provide Arcustech with accurate information to help Arcustech determine if any tax is due with respect to the provision of the Services.
6. You are responsible for keeping your billing and other account information up to date and you must pay when due the fees for the Services stated in the Service Contract(s) or other agreement between us.

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Support Boundaries

Arcustech provides 24x7 technical support to subscribers through our Support Ticket system.

The following are the primary responsibilities of our team:

1. Support related to the physical and virtual hosting infrastructure functioning and your covered Virtual Server(s) being online.
2. Operating system patches and security updates as appropriate for supported Managed VPS operating systems.
3. For Managed VPS services, carrying out supported server-side change requests and modifications that require elevated access when those technologies are within Arcustech's management scope.
4. Offering assistance in scaling between available VPS resource plans based on your needs and observed resource usage.

Our Support and Technical Teams may offer limited assistance with web-application configuration or general Linux usage, but are under no obligation to do so. We do not provide application development, HTML or programming support, code debugging, end-user email client configuration, or other support unrelated to the Services directly purchased from Arcustech. Arcustech provides support only to authorized account users and does not provide direct technical support to your customers.

Customers are responsible for understanding the applications and technologies used by their projects or for retaining qualified developers or other professionals to manage matters outside Arcustech's server-side support scope.

Please also refer to our customer-accessible Knowledge Base for technical documentation.

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Data Backup

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 technical limitations associated with backups of live systems and the possibility of data corruption, changed data, or data that was not in a usable state when a backup was performed, Arcustech does not guarantee the usability of any individual backup set.

We do not promise to retain backups longer than the retention period applicable to the backup service you purchased or that is otherwise stated in your Service Contract.

Customers are strongly encouraged to maintain independent backups appropriate for their own recovery requirements.

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Unauthorized Access to Your Data or Use of the Services

Arcustech will use commercially reasonable efforts and industry-accepted methods to help protect the reliability and security of our Services, but Arcustech is not responsible to you for unauthorized access to your data or unauthorized use of the Services except to the extent otherwise expressly required by the Agreement or applicable law. You are responsible for use of the Services by your employees, contractors, authorized users, and any person who gains access to your data or Services as a result of your failure to use reasonable security precautions.

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Term

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.

Unless this Agreement is earlier terminated in accordance with its terms, the Agreement will automatically renew at the conclusion of the Initial Term for successive terms of equal length to the Initial Term. Each renewal term will be governed by the Agreement terms applicable to that renewal term, including revisions published by Arcustech in accordance with the "Changes to Agreement Documents" section below.

If you do not agree to revisions that will become effective for your next renewal term, you must terminate the affected Services before that renewal term begins in accordance with the applicable cancellation procedures. Renewal of the Services, or continued use of the Services after the renewal date, constitutes acceptance of the Agreement applicable to that renewal term.

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Fees

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 using your payment method 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, may have service suspended and have a late fee of $25 added to the outstanding balance. Accounts 14 days past due are subject to account termination and deletion without the possibility of reactivation.

If an account is terminated and its data deleted, restoration or recovery may not be possible. Arcustech shall not be liable to the Customer or any other third party for consequences of a Customer's account being terminated in accordance with the Agreement.

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.

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Export Matters

You represent and warrant that you are not a person or entity to whom Arcustech is prohibited by applicable United States sanctions or export-control laws from providing the Services. You may not use the Services, or permit the Services to be used, in violation of applicable United States export-control or sanctions laws or for any prohibited end use. You are responsible for ensuring that persons to whom you provide administrative or other access to the Services are permitted to receive such access under applicable law.

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Changes to Agreement Documents

Arcustech may amend this Master Services Agreement, an applicable Service Level Agreement, or the Acceptable Use Policy by publishing the revised document on the Arcustech Website. Each revised document will identify the date on which it was last modified.

For an existing Customer, a material amendment to the Master Services Agreement, Service Level Agreement, or Acceptable Use Policy will ordinarily become applicable to the affected Services at the beginning of the Customer's next renewal term following publication of the revised document. By renewing the affected Services, or continuing to use them after that renewal term begins, Customer agrees to the revised Agreement.

Arcustech may specify an earlier effective date for a revision when the change is required by applicable law, regulation, court order, or governmental requirement, or when Arcustech reasonably determines that earlier application is necessary to address security, abuse, fraud, network integrity, service reliability, or a material threat to Arcustech, its infrastructure, its providers, or its customers. When reasonably practicable, Arcustech will provide notice of a material revision through the Website, Dashboard, email, or another reasonable electronic method.

A revision that does not materially reduce Customer's rights or materially increase Customer's obligations may take effect when published unless Arcustech states a later effective date.

If you do not agree to a material revision that will apply at your next renewal term, you must terminate the affected Services before that renewal term begins.

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Suspension of 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 do not 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 suspension is necessary to protect Arcustech, its infrastructure, providers, or other customers; (iv) suspension is permitted for nonpayment under the Agreement; or (v) suspension is required by law. We will give advance notice when reasonably feasible unless we determine in our reasonable commercial judgment that shorter or contemporaneous notice is necessary to protect Arcustech or others from imminent operational, security, abuse, or legal risk.

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Termination and Access

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 where permitted by the Agreement or applicable law, including as a result of your violation of the Agreement or applicable law, or misuse of system resources. Any such termination may result in the forfeiture and destruction of information associated with your Account. Arcustech may provide prior notice when doing so will not, in Arcustech's reasonable judgment, undermine the purpose of the termination. Except as otherwise stated in the Agreement, fees paid are non-refundable and amounts owed to Arcustech before termination remain immediately due and payable, including permitted collection costs. Upon termination, rights granted to Customer under the Agreement terminate, and Customer must discontinue use of the affected Services. If you wish to terminate your Account or Services, you may do so by following the applicable cancellation procedures available through the Website or Dashboard. Provisions that by their nature should survive termination shall survive termination, including ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

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Early Termination Fee

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.

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Confidential Information

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:

1. 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,
2. to a law enforcement or government agency if requested, or if either of us reasonably believes that the other's conduct may violate applicable criminal law,
3. as required by law, or
4. 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.

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Publicity

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 Arcustech product or service. Do not modify or alter the marks or use them in a confusing way, including suggesting sponsorship or endorsement by Arcustech, without written permission.

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Limitation on Damages

Warranty Disclaimer. Except as expressly provided in an applicable Service Level Agreement, 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 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, agents, 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 applicable configuration at the time of the occurrence of the event or events 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 Backup Liability. We are not liable to you for lost data unless and to the extent you purchase data backup Services from Arcustech and we fail to provide the backup Services as agreed. Liability for such failure is limited to a refund of the current monthly cost of the affected paid backup service. No other form of warranty is provided. Customers are strongly encouraged to maintain independent copies of data appropriate for their recovery requirements.

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Indemnification

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 imposed on you as a result of the claim.

If we, our affiliates, or any of 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, or 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 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.

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Software

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 expressly permitted by applicable law, and then following at least ten days' advance written notice to us.

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Other People's Products and Services

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 or as a Supplemental Service. Arcustech makes no representation or warranty regarding such third-party products and related support services unless expressly stated otherwise, and, as between you and Arcustech, such products and services are provided "as is." Your use of third-party products or services may also be governed by the applicable third party's terms.

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Who May Use the Service

You may resell the Hosting Service and may permit your subsidiaries, affiliated companies, customers, or other authorized users to use the Services where appropriate, but you remain responsible for their use of the Services to the same extent as if you were using the Services yourself. Arcustech provides support only to authorized users of your Arcustech account, not directly to your customers or end users. There are no third-party beneficiaries to the Agreement.

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Notices

Routine communications regarding the Services should be sent to Arcustech through the Arcustech Dashboard support ticket system or another support method Arcustech designates. If you want to give Arcustech notice regarding termination for breach, indemnification, or another non-routine legal matter, you should send it by electronic mail and first-class United States mail to:

corporate@arcustech.com
General Counsel
Arcustech, LLC.
PO Box 365
Rochester, MN 55903-0365

Notices regarding revisions to the Agreement may be provided as described in the Changes to Agreement Documents section. Notices relating to ordinary service operations, maintenance, billing, support, or security may be provided through the Website, Dashboard, support ticket system, email, or another reasonable electronic method.

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Ownership of Intellectual Property

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.

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Ownership of Other 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, top-level domain, or domain name, and agree that we may take steps to change or remove any such IP addresses.

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Intellectual Property Infringement

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 allegedly infringing element or modify the Services so that they do not infringe, Arcustech may terminate the affected Services on reasonable notice of at least ninety (90) days and will not have liability on account of such termination except to refund amounts paid for affected Services not used as of the time of termination.

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Assignment

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, merger, financing, or sale of all or part of our business or assets.

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Force Majeure

Neither of us will be in violation of the Agreement for failure to perform an obligation when that failure is caused by an event beyond the affected party's reasonable control, such as a significant failure of the power grid or 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.

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Governing Law, Lawsuits

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 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 not to bring a claim under the Agreement more than one year after the time that the claim accrued.

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Some Agreement Mechanics

If you accept 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 applicable to the most recently accepted Service Contract will govern the entire configuration unless otherwise stated. Amendments published by Arcustech are governed by the Changes to Agreement Documents section. A Service Contract may also be amended by a written agreement accepted by both parties or by an exchange of correspondence, including electronic mail or the Arcustech support ticket system, that includes the express consent of an authorized individual for each party.

If there is a conflict between the terms of documents that comprise the Agreement, the documents will govern in the following order: Service Contract, Service Level Agreement, any addendum to the Master Services Agreement, Master Services Agreement, and Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the remainder of the Agreement will continue in effect. Each of us may enforce our respective rights under the Agreement even if we have previously waived or failed to enforce the same or other rights. Our relationship is that of independent contractors and not business partners. Neither party is the agent of the other and neither has authority to bind the other to an agreement with a third party. Captions are for convenience only and are not part of the Agreement. The word "including" means "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.

If you make any change to an Agreement document supplied by Arcustech that you do not bring to our attention in a manner reasonably calculated to put us on notice of the change, the change will not become part of the Agreement.

The Agreement may be executed or accepted in counterparts and electronically. Your electronic acceptance during the Arcustech ordering process, including selecting an electronic control indicating agreement to the applicable terms, manifests your consent to the 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, concerning that subject matter.

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