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Cloud Standard Terms

Standard Terms & Conditions

A. Termination

    1. Auto-renew: At the conclusion of the Initial Contract Term, as specified in Appendix A, and any subsequent terms, unless terminated in writing by either party at least sixty (60) days prior to the end of the then-current term, the Cloud Agreement shall automatically renew for a twelve (12) month term.

    2. By Either Party. Either Party may terminate this Cloud Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

    3. By Sentinel. Sentinel may terminate this Cloud Agreement: (i) without notice upon Customer’s failure to pay amounts when due, after sixty (60) days written notice and failure to cure; or (ii) if Sentinel is unable to provide service(s) hereunder due to Customer’s acts or omissions. In such event, Customer shall be responsible to reimburse Sentinel for the cost of any good(s) Sentinel purchased at Customer’s direction and on Customer’s account.

    4. By Customer. As set forth in “Standard Terms and Conditions” paragraph I “Termination Fees”.

    5. Return of Property: Upon termination of the Cloud Agreement or upon Customer’s request at any other time, Sentinel will deliver to Customer all of Customer’s property together with all copies thereof, and any other material containing or disclosing any of Customer’s Third Party Information or Confidential Information.

    6. Customer Data Return and Deletion: Customer may extract and/or delete Customer Data at any time. When this Cloud Agreement expires or terminates, Sentinel will retain any Customer Data it has not deleted for at least 90 days so that Customer may extract it, except for free trials, where Sentinel may, at its sole discretion delete Customer Data immediately without any retention period. Customer remains responsible for all storage and other applicable charges during this retention period. Following the expiration of this retention period, Sentinel will delete all Customer Data, including any cached or back-up copies, within 30 days of the end of the retention period. Customer agrees that Sentinel has no additional obligation to continue to hold, export or return Customer Data and Customer agrees that Sentinel has no liability whatsoever for deletion of Customer Data pursuant to these terms.

    7. Any early cancellation and/or termination fees incurred by Sentinel on behalf of the customer will be the responsibility of the customer and passed on accordingly. This may include but not limited to service provider/carrier fees, disconnect charges, early termination fees, usage fees, commitment fees.

    8. Ongoing Services Inclusion: For any pre-paid professional services contracts, including retainer or monthly recurring charge (MRC) contracts, services shall expire upon the date of contract expiration, whether or not all hours for such services were used during the contract term. No such pre-paid fees will be refunded to Customer on or after contract expiration by reason of non-use. Sentinel encourages services to be used as needed throughout the contract term and may provide usage information at any time upon Customer request.

B. Limitation of Liabilities

SENTINEL SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE SERVICE. SENTINEL DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND SENTINEL DISCLAIMS ANY LIABILITY RELATING THERETO.

THE LIABILITY OF SENTINEL FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICE(S) OR ANY OTHER MATTER HEREUNDER, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS OR OTHER DEFECTS, REPRESENTATIONS, USE OF SERVICE(S) OR ARISING OUT OF THE FAILURE TO FURNISH SERVICE(S), WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE EXTENSION OF CREDIT ALLOWANCES DUE UNDER ANY APPLICABLE SLA. THE EXTENSION OF SUCH CREDIT ALLOWANCES OR REFUNDS SHALL BE CUSTOMER’S SOLE REMEDY FOR SERVICE(S) OUTAGES. IN THE EVENT CUSTOMER HAS OTHER DAMAGES, SENTINEL’S TOTAL LIABILITY SHALL NOT EXCEED SERVICE PAYMENTS MADE BY CUSTOMER TO SENTINEL OVER THE PRECEEDING TWELVE (12) MONTHS. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

Notwithstanding the foregoing, the limitation of liability and exclusion of damages provision in this Section will not apply to claims for personal injury or damage to real property and/or tangible personal property caused by Sentinel’s negligence nor shall the foregoing limitation of liability and exclusion of damages apply to intellectual property claims arising from or related to intellectual property and the indemnification remedy under Section 3 below or a breach of the Confidentiality provision set forth in Section 5 below.

C. Indemnifications

Sentinel will defend and indemnify Customer and its Affiliates, employees and agents, and hold them harmless against third-party claims that the Services, as delivered, infringe any Intellectual Property recognized under the applicable law in the country in which the Services are being provided, and will pay all costs, expenses (including reasonable attorneys’ fees), and damages finally awarded against Customer, or settlements agreed, on account of such claims.

If Customer’s use of the Services will be enjoined, or in Sentinel’s opinion is either likely to be enjoined or that a claim, action, proceeding or suit is likely to occur due to the alleged infringing Services, Customer’s sole and exclusive remedy will be for Sentinel to: (i) replace the affected portion of the Services with a substitute that is functionally equivalent in all material aspects and free of any infringement or violation, at no additional fee; (ii) modify the Services so that they will be free of the infringement or violation; or (iii) procure for Customer a license or other right to use the Services, provided that if none of these options is commercially practical, then upon written notice to Customer, Sentinel may terminate the affected portion of the Services in the applicable Order and Sentinel will refund to Customer any prepaid fees for such Services that were not yet rendered.

D. Warranties

Sentinel represents and warrants that the Service(s) provided herein shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures and practices and in conformance with generally accepted professional standards for the completion of such Service(s) prevailing at the time. Further, Sentinel represents and warrants that the Service(s) shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated by this Cloud Agreement.

Product warranties and return policies are provided by the respective manufacturers or publishers of the Products sold under this Cloud Agreement and Sentinel makes no warranties whatsoever with regard to Products the Customer purchases from Sentinel to which the Customer retains the full rights and license at termination of this Cloud Agreement.

E. Confidentiality

In connection with the performance of work hereunder, it may be necessary for Customer to disclose to Sentinel certain Confidential Information, which is considered to be confidential and proprietary to Customer. The term “Confidential Information” means any and all information, communications, data, documents and information of all kind relating to Customer whether in physical, written, oral, electronic, visual or any other tangible or intangible form, and whether or not specifically marked as confidential. Confidential Information may include, but is not limited to: (i) technical information and know how, personal data, intellectual property rights, trade secrets (e.g., including any portion or phase of technical or scientific information, design, process, procedure), inventions, discoveries, ideas (whether reduced to a material form or not), concepts, research, development, reports, designs, specifications, drawings blueprints, graphical works, diagrams, plans, models, samples, flow charts, data, techniques, technologies, computer programs in human or machine readable code, formulae, databases; (ii) commercial, financial, operational, strategic, system-current and future products and services, strategies, potential business opportunities or transactions, business activities, industry knowledge and expertise, business and marketing plans and projections, Customer information, arrangements and Cloud Agreements with third parties or employees, any non-public personal information and any other information concerning the business and affairs of the Customer and any other matters that now or at some future time may have to do with the purpose of this Cloud Agreement; (iii) the terms and conditions of this Cloud Agreement and any other information in relation to it; and (iv) any other information which is reasonably or customarily considered to be of a confidential, proprietary or otherwise sensitive nature.

Sentinel agrees that it will maintain the confidentiality of all such Confidential Information at the time of first disclosure to Sentinel by using the same degree of care that Sentinel takes to hold in confidence its own Confidential Information of a similar nature. Sentinel shall not, however, be required to keep confidential any information which is or becomes publicly available without fault on the part of Sentinel, is already in Sentinel’s possession prior to receipt from Customer, is independently developed by Sentinel outside the scope of this Cloud Agreement or is rightfully obtained from third parties. Sentinel shall also require each of the employees, whom it provides to perform Services for Customer, to also agree in writing to similarly maintain the confidentiality of Customer’s Confidential Information.

F. Export Control

The service(s) and the technology included therein provided under this Cloud Agreement may be subject to governmental restrictions on (i) exports from the U.S.; (ii) exports from other countries in which such service(s) and technology included therein may be produced or located; (iii) disclosures of technology to foreign persons; (iv) exports from abroad of derivative products thereof; and (v) the importation and/or use of such service(s) and technology included therein outside of the United States or other countries (collectively, "Export Laws"). Customer shall comply with all Export Laws and diversion contrary to U.S. law or other Export Laws is expressly prohibited.

G. Force Majeure

Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. The Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either Party may cancel unperformed service(s) and affected orders upon written notice. This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the service(s).

H. Governing Law & Jurisdiction

This Cloud Agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of Illinois, excluding its conflict of law rules.

I. Termination Fees

Customer may terminate this Appendix for convenience at any time during the Initial Contract Term as defined in Appendix A upon a minimum of thirty (30) days prior written notice to Sentinel. Such 30 day terminations will not become effective until Customer has paid (a) any outstanding invoices still owed, (b) an early termination fee equal to 25% of the monthly total set forth in Appendix A for each of the months then remaining on the Initial Contract Term, or an early termination fee equal to 25% of the average monthly charge incurred during the three months immediately preceding the written notice of termination for each of the months then remaining on the Initial Contract Term, whichever is higher; and (c) the cost of remaining contractual commitments made on behalf of and explicitly explained to and approved by Customer based on the Initial Contract Term, such as cross-connect fees, multi-year maintenance licensing fees, and the like. In the event of any such above termination, all hardware and software acquired by and licensed to Customer shall be provided to a Customer designated location or shall be picked up by Customer at no charge to Customer at the Sentinel’s site.

J. Third Party License Terms

If Customer is consuming any Microsoft licensing as part of the cloud services herein, Customer must adhere to the Microsoft End User License Terms, which can be found here: Microsoft End User License Terms

K. Internet Acceptable Use Policy

Customer and all Users of CloudSelect® must comply with this Acceptable Use Policy. The direct or indirect use of Contractor’s services constitutes acceptance and agreement to this Acceptable Use Policy.

Though Contractor does not monitor Customer data, Contractor may identify and notify Customer of any Customer data that, in Contractor’s reasonable discretion, may subject Contractor to liability or which may violate this Acceptable Use Policy. Contractor, to the extent required by law shall cooperate with legal authorities in the investigation of any suspected or alleged claim, crime or civil wrongdoing resulting from Customer data or other acts or omissions of Customer or other users.

Customer’s violation of this Acceptable Use Policy may result in the suspension of services or this Agreement, or removal of Customer data by Contractor or by entities other than Contractor. If services are suspended or terminated due to violations of this Acceptable Use Policy, service credits will not be provided for the suspended or terminated service.

Wherever commercially practicable, any suspension or termination of all or part of the services as a result of violation of this Acceptable Use Policy will be treated as a curable breach of this Agreement and Contractor will use reasonable commercial efforts to work with the Customer to resolve the issues causing this breach and will restore services as quickly as possible thereafter. Any extraneous expense incurred by Contractor in restoring services will be borne by Customer.

1. VIOLATIONS OF COMPANY’S ACCEPTABLE USE POLICY

Customer may not use its shared, dedicated, co-hosted or other Contractor-provisioned service to publish or store Customer data which is unlawful. For purposes of this Acceptable Use Policy, “material” refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, and logos), executable programs, video recordings, and audio recordings.

Use of the Services in any way (e.g., to upload, store, transmit, distribute or publish by any means) for any of the following are strictly prohibited:

1.1 Illegal activities, or use of services to directly or indirectly support illegal activities;

1.2 Threats or harassment, including encouragement to cause bodily harm or destruction of property;

1.3 Profanity, bigotry, racism or other materials offensive to the general public;

1.4 Pornography of any kind;

1.5 Fraudulent activities of any kind;

1.6 Forgery or impersonation, including removal or modification of network or message headers;

1.7 Unsolicited emails (spam) of any kind, including Usenet or message board spam, in contravention of any applicable anti-spam laws;

1.8 Unauthorized access, including use of the services to access, or to attempt to access the accounts of others, or to penetrate or attempt to penetrate, security measures of Contractor or another entity’s computer software or hardware, electronic communications system or telecommunications system;

1.9 Use of the services or network resources in a manner which impairs network performance, damages, disables, overburdens, or impairs the services, or interfere with any other party’s use and enjoyment of the services;

1.10 Infringing materials;

1.11 Collection of personally identifiable information in violation of applicable privacy laws;

1.12 Intentional interference or disruptive activity;

1.13 Attempts to circumvent or violate the security of other accounts or equipment of any kind;

1.14 Use or distribution of tools designed for compromising security;

1.15 Viruses or any other types of malware or malicious code;

1.16 Peer to peer or file sharing software to permit unauthorized sharing, copying or distribution of copyrighted material;

1.17 Any other content or activities that are prohibited at law or in equity, or that may be notified by Contractor to Customer from time to time as being harmful or potentially harmful to the services or contrary to this Acceptable Use Policy.

Customer shall be responsible and accountable for any activities by its users that violate this Acceptable Use Policy.

2. SECURITY

2.1 Customer must take reasonable steps to ensure that others do not gain unauthorized access to Customer’s account or to the accounts provided to Customer for use by employees, ex-employees, customers, prospects, friends, family members or guests.

2.2 Customer and users are responsible for preventing others from using their accounts. It is Customer’s and its users’ responsibility to keep passwords secret and secure.

2.3 Customer has overall responsibility for assigning user accounts for use by employees or others, and Customer is responsible for ensuring that these individuals protect their user account information and do not share this information with others.

2.4 In the event that an employee leaves Customer’s business, Customer is responsible for ensuring that their user account is removed or deactivated

2.5 If this requires co-ordination or actions on the part of Customer, Customer is responsible for notifying Contractor of the change in the account status.

3. REVISIONS TO THIS ACCEPTABLE USE POLICY

3.1 Company reserves the right to revise, amend, or modify this Acceptable Use Policy at any time and in any manner. Such changes will be communicated to Customer promptly.