A. CLOUDSPACE AND DESIGN MANAGER CLOUD (ON-LINE) GENERAL TERMS OF SERVICE. Thank you for selecting the Services offered by Franklin-Potter Associates, Inc. DBA Design Manager, Inc. and Skybox Innovations, LLC (referred to as “DM,” ”we,” “our,” or “us”). Please review these Terms of Service and End User Licenses Agreement (“Agreement” or the “LICENSE”) thoroughly. This Agreement is a legal agreement between you and DM. By clicking “I AGREE,” indicating acceptance electronically, accessing or using the Services or Software, you agree to these terms. If you do not agree to this Agreement, then do not indicate acceptance of the Agreement, and do not use the Services or Software.
BY USING THE CLOUDSPACE and/or the DESIGN MANAGER CLOUD SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE, TERMS OF SERVICE, AND USAGE AGREEMENT. BY USING ANY THIRD PARTY SOFTWARE, SUCH AS PRODUCTS FROM MICROSOFT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE, TERMS OF SERVICE, USAGE AGREEMENT, AND ANY SUCH AGREEMENT PRESENT BY THE THIRD PARTY SOFTWARE PROVIDER.
1. License. This exclusive access license and agreement (the “LICENSE”) is between Franklin-Potter Associates, Inc., doing business as Design Manager, Inc. (“DM”) and the end user (person clicking the “I Agree” button and the company to which the user is affiliated, is an employee of, or is working for (the “LICENSEE” or “you”). The end user represents and warrants that he/she has been duly authorized by the LICENSEE to enter into this License on its behalf and to bind the LICENSEE to the License, to these terms, and to any changes, modifications, actions, instructions or agreements communicated to DM by the end user. This License is effective immediately for usage of the CloudSpace, Design Manager, or Design Manager Professional On-Line Software via the DM Internet Site (the “LICENSED SOFTWARE” or “Service(s)”) currently accessed via the Internet address cloud.designmanager.com, softwarehost.designmanager.com, or online.designmanager.com. The “LICENSEE” or “you” also includes dealers, accountants, bookkeepers or anyone performing services of any kind that requires usage of the LICENSED SOFTWARE no matter how closely or loosely affiliated with DM itself.
2. General. The LICENSED SOFTWARE includes the current version of the Design Manager Software product and other products that are part of CloudSpace, access to the LICENSED SOFTWARE via the DM Internet Site and any accompanying documentation provided, whether on disk, in read-only memory, over the Internet, or on any other media or in any other form. The LICENSED SOFTWARE does not include the source code. The LICENSED SOFTWARE is licensed, not sold, to LICENSEE by DM for use only under the terms of this LICENSE, and DM reserves all rights not expressly granted to the LICENSEE. The terms of this LICENSE will govern any software upgrades provided by DM that replace and/or supplement the original LICENSED SOFTWARE, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. Intellectual Property. LICENSEE does not own the LICENSED SOFTWARE but DM retains ownership of the LICENSED SOFTWARE and all intellectual property, including but not limited to data, copyrights, trademarks, and patents, associated therewith. LICENSEE does not obtain title to, or any ownership interest in, the LICENSED SOFTWARE or any intellectual property or proprietary rights associated with the LICENSED SOFTWARE. Use of the LICENSED SOFTWARE by LICENSEE inures to the benefit of DM. LICENSEE will have the right to access the LICENSED SOFTWARE via the DM Internet Site so long as the LICENSEE has a working Internet connection, the ability to connect to the DM Internet Site, the DM Internet Site is not unavailable due to maintenance, the LICENSEE has paid DM all applicable fees, and that the LICENSEE’s account is in good standing (no invoices or charges are overdue). DM reserves the right to examine and inspect the LICENSEE’s software and related data and perform any repairs or maintenance that DM deems proper.
4. Permitted License Uses and Restrictions. This License allows you to access and use the LICENSED SOFTWARE. You may not make the LICENSED SOFTWARE available over a network where it could be used by multiple computers at the same time for more than agreed number of connections. Except as and only to the extent expressly permitted in this LICENSE or by applicable law, you may not copy, de-compile, reverse engineer, disassemble, modify, or create derivative works of the LICENSED SOFTWARE and DM Internet Site or any part thereof. You may not sell, transfer, convey, rent, lease, lend or sublicense the LICENSED SOFTWARE or access to the LICENSED SOFTWARE.
5. Payment. The LICENSEE agrees to pay in US dollars for the first year or month of access for each concurrent user(s) to the LICENSED SOFTWARE at the current advertised price using a valid credit or debit card. DM will automatically renew your monthly or annual Services at the current rates on your credit or debit card, unless the Services are cancelled or terminated under this Agreement. The price set forth by DM will not exceed a 15% per year increase for Design Manager Cloud or Design Manager Pro Cloud; however, the percent of increase could vary should the features of the above mentioned products change significantly or the costs associated with third-party vendors increase significantly.
- If your payment and registration information is not accurate, current and complete, and you do not notify us promptly when such information changes, we may immediately suspend or terminate your account, terminate your license and refuse any further use of the LICENSED SOFTWARE.
- If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
6. Termination. This License is effective until terminated. LICENSEE’s rights under this LICENSE will terminate automatically without notice from DM if you fail to comply with any term(s) of this LICENSE or fail to submit payment in a timely fashion. Upon the termination of this LICENSE, LICENSEE shall cease all use of the LICENSED SOFTWARE, full or partial, of the LICENSED SOFTWARE. Upon request from the LICENSEE and within 30 days of termination, the LICENSEE will receive via U.S. mail or other appropriate carrier any data entered into the LICENSED SOFTWARE via CD or other appropriate media; this does not apply to usage during a Trial Period (defined in section 7) or to any LICENSEE’s account or usage issued free of charge such as to an accountant or dealer that may or may not work with DM. If the LICENSEE chooses to terminate the LICENSE within the first year of use, the LICENSEE will be provided with a refund for the unused portion of the service if the year was paid for in advance. After the first year no refunds will be given. If the LICENSEE chooses to terminate a portion of the concurrent user accounts (reduce the number of users) to the LICENSED SOFTWARE then the refund will be applied to the remaining users and the service will then be extended.
- Trial Period. If you registered for a trial use of the Services (“Trial Period”), you must decide to purchase the Services within the Trial Period in order to retain any Content (defined in Section 8) that you have entered into the Software, created within the Software data file, posted or uploaded during the Trial Period. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you, and DM will not be responsible for any of it. To be very clear, after using the Services during the trial period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added or created during the trial.
- You are responsible for your content. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored through your use of the Services. You grant DM a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services. You agree not to use the Services for any illegal purpose or in violation of any applicable local, state, federal or international law.You are encouraged to archive your Content regularly and frequently. You are responsible for any Content that may be lost or unrecoverable through your use of the Services. You must provide all required and appropriate warnings, information and disclosure. You agree that you will not use the Services to share, store, or in any way distribute financial data that is not in accordance with the law. Any users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. DM is not responsible for the Content or data you submit on the website or by use of the Services.
You agree not to use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
- Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing , offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
- Content or data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor);
- Except as otherwise permitted by DM in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
- Virus, trojan horse, worm or other disruptive or harmful software or data; and
- Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
8.1 Your privacy and personal information. You can view DM’s Privacy Statement on the DM website. You agree to be bound by the applicable DM Privacy Statement, subject to change in accordance with its terms. Most importantly, you agree:
- To DM maintaining your data according to the DM Privacy Statement, as part of the LICENSED SOFTWARE.
- To give DM permission to combine information you enter or upload in a way that does not identify you personally with that of other users of the LICENSED SOFTWARE. By way of example, this means that DM may use that non-identifiable aggregated data to improve services, design promotions, or provide ways for you to compare business practices with other users.
8.2 Community forums. The Services may include a community forum or social media channels to exchange information with other users of the Services and the public. Please use respect when you interact with other users. DM does not support and is not responsible for the accuracy of others’ content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which DM is not responsible.
8.3 DM may freely use feedback you provide. You agree that DM may use your feedback, suggestions, pictures, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant DM a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to DM in any way.
8.4 DM may monitor your content from time to time. DM may, but has no obligation to, monitor content on the Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect DM or its customers, or operate the Services properly. DM, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content or LICENSEE’s account/access, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
9. ADDITIONAL TERMS YOU AGREE TO
9.1 DM does not give professional advice. DM is not in the business of providing legal, financial, accounting, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance. Any advice given by DM technical support is “as is” and should be confirmed by a competent professional.
9.2 We may tell you about other DM services. You may be offered other services, features, products, applications, online communities, or promotions provided by DM (“DM Services”). If you decide to use any of these DM Services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some DM Services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You grant DM permission to use information about your business and experience to help us to provide the DM Services to you, including updating and maintaining your data, addressing errors or service interruptions, and enhancing the types of data and services DM may provide to you in the future. You grant DM permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. We may use this data to improve services and to compare business practices with other company standards. We may use your data to create, market, or promote new DM offerings to you and others. You also grant DM permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
9.3 We may tell you about third party products or services. Subject to the DM Privacy Statement, you may be offered products or services by third parties who are not affiliated with DM (“Third Party Products”) or the Services may contain links to third party websites (“Third Party Sites”) and you agree that DM can use your contact information, including name and address, for the purpose of offering these products to you. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party’s separate product terms, website terms and privacy policies. You agree that the third parties, and not DM, are responsible for their product’s performance and the content on their websites. DM is not affiliated with these Third Party Products or Third Party Sites and has no liability for them.
9.4 Communications choices. DM may be required by law to send you communications about the LICENSED SOFTWARE or Third Party Products. You agree that DM may send these communications to you via email or by posting them on one of our sponsored websites. We may also send business communications such as confirmations or notices, which will be delivered to you via email or posted on our websites. You are required to receive these communications. You can choose not to receive some types of communication, such as marketing messages.
9.5 Passwords, modifications and updates. You are responsible for securely managing your password(s) for access to the Services. If you become aware of any unauthorized access to your Services account, theft or loss of your password, you agree to contact DM as soon as possible. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Services. Should you pay extra to have customizations or modifications done to the Design Manager Software or custom changes to your CloudSpace environment, you will be charged a fee to have these changes reprogrammed or migrated as part of receiving these updates. Since you must accept and use the updated Services you must either pay the fees, continue to use the Services without the modifications, or discontinue using the Services (see section 6). Modifications are defined as any programming, changes in settings or services, or any special import/export functionality implemented specifically for your version of Design Manager or the CloudSpace environment. All modifications to the Design Manager software are “as is”. In no event shall Design Manager, Inc. be liable to the above client or any other entity for any lost profits, loss data, damage to property or for any other indirect, incidental, special or consequential damages under any form or theory of action whatsoever from the above modifications to the licensed Design Manager software. Though Design Manager, Inc. rigorously tests all modifications to its software products, the ultimate burden for proper functionality of the modifications falls upon the licensed user of the Design Manager software. All changes, fixes, and issues caused by the modifications that require additional programming are billable at the current hourly rate. All sales pertaining to modifications are final and no refunds are available. If approval date is not met, modification dates and pricing are subject to change.
9.6 DM operates under agreements that it makes with third party software provider, particularly, Microsoft. DM may change this agreement and the pricing of the service if the agreements with its third party providers change. This includes required updates, removal of certain features, and etc. in order to become compliant with the third party agreements.
10. Limited Warranty. DM warrants the media or access method by which the LICENSED SOFTWARE is recorded and delivered by DM to be free from defects in materials and workmanship under normal use for a period of sixty (60) days from the date that these terms were accepted. Your exclusive remedy under this Section shall be, at DM’s option, a refund of the last 60 days of paid usage plus any future usage paid in advanced of the LICENSED SOFTWARE or repair of the LICENSED SOFTWARE upon written termination by the LICENSEE to DM. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA AND USAGE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF ORIGINAL PURCHASE. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.
11. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SOFTWARE AND ACCESS THROUGH THE DM INTERNET SITE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA AND ACCESS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DM HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DM DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DM OR A DM AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION EXCEPT FOR THE REFUND AS STATED IN SECTION 10 (LIMITED WARRANTY).
12. Limitation of Liability and Indemnity. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL DM BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, DISSEMINATION OF OR UNAUTHORIZED ACCESS TO DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, WARRANTY, STRICT LIABILITY, EQUITY OR OTHERWISE) AND EVEN IF DM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall DM’s total liability to LICENSEE for any and all damages of every type and nature resulting from any acts, omissions or breaches, arising out of or related to the LICENSED SOFTWARE or any products or services furnished or rendered hereunder or in connection herewith exceed the fees paid by LICENSEE for the LICENSED SOFTWARE or Services within the first sixty (60) days from the date that these terms were accepted. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
13. Unforeseen Acts. Without limiting the foregoing, under no circumstances shall DM be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
14. Additional Charges and Technical Support. This LICENSE does include two months of Technical Support but the LICENSEE must pay the current CLOUD Support prices set by DM to continue Technical Support after the first two months. Support is a service that is limited to questions pertaining only to the use and operation of the LICENSED SOFTWARE. Technical Support does not include help on accounting methods, consulting, training, training classes, or third party software such as Microsoft Office. Support can be limited by the technician to 1 hour per day or a total of 3 hours per week. Support will be available via telephone, fax, or e-mail from the hours of 9AM to 5PM EST Monday through Friday excluding holidays or down time due to maintenance, loss of Internet, or loss of phone services out of DM’s control. Support will be given on a first come first serve basis and response times may vary. Additional charges may result from restoration of data, changing/resetting of passwords, or adding databases. Technical Support prices and available times are subject to change at any time. Full terms can be found on DM’s Help Center website.
15. Access to data, online tools.
- From time to time you may choose to provide certain individuals you designate – including but not limited to your accountant or trusted financial advisor (“Authorized Users”) – with access to LICENSED SOFTWARE and permission to modify your LICENSED SOFTWARE data on your behalf. You agree that granting access to your LICENSED SOFTWARE data is voluntary and that you are responsible for revoking any permissions to access your LICENSED SOFTWARE and LICENSED SOFTWARE data from such Authorized Users.
- You agree that from time to time you and your Authorized Users may opt to use certain tools available from within the software that facilitates online communication and collaboration; such as ClientConnect. All Authorized Users choosing to use these online tools are subject to the terms in this agreement. Separate fees and conditions may also apply. You agree that if you and your Authorized Users choose to use these online tools, certain of your LICENSED SOFTWARE data may be uploaded to DM servers in order to provide the online tool functionality to you.
16. Controlling Law and Severability. This LICENSE will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
17. Disputes. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE LICENSED SOFTWARE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Pennsylvania law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND DM ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
18. Complete Agreement; Governing Language. This LICENSE constitutes the entire agreement between the parties with respect to the use of the LICENSED SOFTWARE and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this LICENSE will be binding unless in writing and signed by DM. This agreement also supersedes any agreements between DM and dealers, accountants, bookkeepers or anyone or any company performing services of any kind that requires usage of the LICENSED SOFTWARE.
19. Changes to the Agreement or Services. We may change this Agreement from time to time, and the changes will be effective when posted on our website for the Services or when we notify you by other means. Please review the Agreement periodically on the designmanager.com website for changes. We have the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Services, in whole or in part, including but not limited to, the Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Services after DM posts or otherwise notifies you of any changes indicate your agreement to the changes.
B. CLOUDSPACE AND DESIGN MANAGER CLOUD (ON-LINE) SERVICE LEVEL AGREEMENT.
This Service Level Agreement governs the use of the Services under the terms of the Design Manager Cloud (Online) and CloudSpace General Terms of Service (the “Agreement”) between Franklin-Potter Associates, Inc. DBA Design Manager, Inc. and Skybox Innovations, LLC (“Skybox”) and You and is incorporated into the Agreement by reference. This Service Level Agreement applies separately to each of Your Accounts. Skybox may update, amend, modify or supplement this Service Level Agreement from time to time.
Capitalized terms used herein but not otherwise defined will have their respective meanings set forth in the Agreement. In the event of any conflict between this Service Level Agreement and the Agreement, the Agreement will govern.
1. SERVICE. Skybox will use commercially reasonable efforts to provide the Services as defined by the plan or plans purchased or subscribed to under Your Account.
2. SERVICE AVAILABILITY.
2.1. Definition. Skybox will provide at least 99.95% Service Availability, measured on a per calendar-month basis. “Service Availability” is defined as the ability of a User under your Account to access, retrieve, or input information from the Services, provided that Your Account is active, enabled, and You have proper security and access rights within the service. Loss of Service Availability caused by (i) issues beyond Skybox’s reasonable control, including, without limitation, problems with Your equipment, Your device, Your Internet Service, software used to access the service (such as the Citrix Receiver or Internet Browser), denial of service or similar attacks, mail bombs, DNS resolution, domain name expiration, hardware failure, Internet availability, SYN attacks, and other events or any other Force Majeure Event, or (ii) other issues addressed in this Service Level Agreement, will be excluded from Service Availability calculations.
- To calculate Service Availability, Skybox uses a combination of methods, including analyzing logs from both Skybox’s event monitoring system and the actual affected infrastructure components and matching these findings with client reports to determine the actual timeframe. Any loss of Service Availability less than five minutes in duration will not be included in the calculation of Service Availability.
- Skybox does not guarantee incoming and outgoing mail delivery time. As a result, a delay in incoming and outgoing mail delivery time – regardless of the cause – is not included in any calculation of Service Availability.
2.3. Service Availability Credit. Subject to your valid submission of a Service Availability Credit request and the other conditions herein, if Service Availability under Your Account for any calendar month is below 99.95%, Skybox will issue a credit (“Service Availability Credit”) in accordance with the following schedule:
|Service Availability||Amount of the refund as a percentage of monthly fee for affected Service|
|99.0% to 99.999%||3% of monthly fee credited|
|98.0% to 98.99%||5% of monthly fee credited|
|95.0% to 97.99%||10% of monthly fee credited|
|90.0% to 94.9%||25% of monthly fee credited|
|89.9% or below||2.5% credited for every 1% of lost availability up to the max total penalty limit|
If the subscription period for an affected Service is less than one calendar month, then the Service Availability Credit will be adjusted on a pro rata basis. To request a Service Availability Credit, (a) Your Account must be in good standing with Skybox, (b) You must open a technical support incident by calling Skybox support’s phone number of 215-345-0844 or by sending an email to firstname.lastname@example.org or email@example.com stating the apparent Service interruption within 72 hours of the event, and (c) You must send an email or written Service Availability Credit request to the Billing Department at firstname.lastname@example.org or email@example.com in the month immediately following the month for which You are requesting a Service Availability Credit. Service Availability Credit requests must include Your Account name or Account number and the dates and specific times for which You are requesting Service Availability Credits. Skybox will compare information provided by You to the data referenced in Section 2.2 above. A Service Availability Credit will be issued only if Skybox confirms from such data that a Service Availability Credit is available.
Skybox will calculate the Service Availability Credit based on the type of particular Service for which Service Availability was below the prescribed level, the fees for the particular Service and the percentage of overall individual Accounts or other units adversely affected. For example, if the Service Availability Credit pertains to the Service Availability of two Exchange mailboxes out of 200 Exchange mailboxes purchased, the Service Availability Credit would be calculated as 1% times the monthly fee for the Exchange mailboxes times the % of monthly fee credited. The limits and sole remedies regarding Service Availability Credits total credits under this SLA are set forth in Section 4 of this Service Level Agreement.
3. DATA RECOVERY CREDIT. Note: Skybox does not (i) maintain historical back-up copies for the purpose of point in time data recovery (ii) guarantee that backups will be made in real time, (iii) take responsibility for data removed or deleted by Your own doing such as accidently deleting messages, mail, records, or files, or (iv) guarantee any data loss that pertains to problems or issues in third party software or service included in or accessed through your service such as Microsoft Office, SkyDrive, iCloud, Google, Dropbox, etc. “Data” means Data in Your Account that consists solely of Microsoft 2010/2013 Exchange mailboxes, Design Manager Data, Files stored in Cloud Manager, and Exchange public folders. If Your Data (i) becomes corrupted, or (ii) is lost due to a direct failure of the relevant Skybox hardware or datacenter where Your Data is hosted (each, an “Event”), and Skybox fails to restore Your Data to the last known good state, as determined by Skybox, within five (5) business days of your initial submission of a Technical Support Incident, Skybox will issue a credit (“Recovery Credit”) for the corresponding amount stated in the table:
|Amount of Data that Skybox was not able to restore||Recovery Credit|
|Less than 24 hours of Data||25% of monthly fee|
|24 hours to 48 hours of Data||50% of monthly fee|
|More than 48 hours of Data||100% of monthly fee|
To request a Recovery Credit, (a) Your Account must be in good standing with Skybox, (b) You must open a Technical Support Ticket within 72 hours of the Event, and (c) You must send an email or written Recovery Credit request to the Billing Department at firstname.lastname@example.org or email@example.com in the month immediately following the month for which You are requesting a Recovery Credit. Recovery Credit requests must include Your Account name or Account number and the dates and specific periods of lost or corrupted Data for which You are requesting the Recovery Credit.
Skybox will compare information provided by You to the actual Data that resides in Your Account. A Recovery Credit is issued only if Skybox confirms a Data loss warranting the Recovery Credit. If Skybox is unable to restore the relevant Data within five (5) business days of a valid Recovery Credit request, You will receive a monthly fee credit of 100%. The limits and sole remedies regarding Recovery Credits and total credits under this SLA are set forth in Section 4 of this Service Level Agreement.
4. TOTAL CREDIT LIMITS; SOLE AND EXCLUSIVE REMEDIES.
4.1. Total Service Availability Credits. The total Service Availability Credit due to You for any Account may not exceed 50% of the monthly fees charged to that Account during the month for which the Service Availability Credit is to be issued, unless the amount to be credited is less than $1.00 in which case the credit amount will be $1.00. Only one Service Availability Credit is available in any given calendar month. Notwithstanding anything set forth in the Agreement or this Service Level Agreement, the Service Availability Credit described in Section 2 of this Service Level Agreement will be Your sole and exclusive remedy in connection with any loss of Service Availability as described in such section or breach by Skybox of the Agreement or this Service Level Agreement.
4.2. Total Recovery Credits. The total Recovery Credit due to You for any Account may not exceed 100% of the monthly fees charged to that Account during the month for which the Recovery Credit is to be issued. Only one Recovery Credit is available in any given month. Notwithstanding anything set forth in the Agreement or this Service Level Agreement, the Recovery Credit described in Section 3 will be Your sole and exclusive remedy for any losses arising from any Exchange Data loss as described in the first paragraph of Section 3 of this Service Level Agreement.
4.3. Total Credit Limit. The total credits that You may be issued with respect to any calendar month, including the aggregate of Service Availability Credits and Recovery Credits, will not exceed 150% of the monthly fees charged to the Account during the month for which all such credits are issued.
4.4. No Refund. Credits are applicable only toward use of the Service and are not convertible into cash or any type of refund.
5. TECHNICAL SUPPORT. Skybox will use commercially reasonable efforts to assist You, through Your authorized Account contacts, with setting up and configuring Your Account, having access to the Services and other issues related to the Services. Only Your authorized Account contacts may request information, changes or technical support pursuant to the Agreement. Skybox’s technical support response time depends on the complexity of the inquiry and support request volume.
6.1. You Manage Your Own Data. Through Your Account, You may manage your Design Manager, File, and Exchange Mailbox Data with Skybox’s online Services. Skybox will not be required to perform for You any task regarding the operation or manipulating Software or Data in your account. You have the ability to download a local copy of files that are stored in Cloud Manager or Design Manager at any time.
6.2. Custom Configuration. Requests for modification to the standard configuration of the Services will be considered on a case-by-case basis. Approval of such modifications will be at Skybox’s sole discretion. Skybox does not guarantee any particular result from non-standard configurations nor can it be held liable in any way for Service performance changes or failures which result from non-standard configurations.
6.3. Additional Services. For tasks that cannot be performed through the Service, You may request that Skybox perform professional services on a time and materials basis. The request will include a detailed description of work and the authorized amount of time, in quarter hour increments, to perform the work. Skybox may evaluate and revise the request (including the estimated number of hours to perform the work) and reserves the right, in its sole discretion, to decline any request. Any additional services will be performed at Skybox’s standard published rates, provided that any emergency services that require commencement within 24 hours will be charged at 2x Skybox’s standard published rate. Skybox will use commercially reasonable efforts to perform requested additional services. However, it does not guarantee any particular result from performance of additional services or make any representations or warranties regarding such additional services nor can it be held liable in any way (including for any credits) for Service performance changes or failures which result from performing tasks requested by You. Skybox may require a separate agreement for any of these additional services.
7.1. Scheduled Maintenance. In order to maintain performance and security of the Services, Skybox performs scheduled maintenance within its published maintenance windows. This may require specific Services to be suspended during the maintenance period. Loss of Service Availability due to scheduled maintenance will not be included in the calculation of Service Availability. Skybox will use commercially reasonable efforts to notify You in advance of any scheduled maintenance that may adversely affect Your use of the Services.
7.2. Emergency Maintenance. Skybox may need to perform emergency maintenance, including security patch installation or hardware replacement. Skybox will not be able to provide You with advanced notice in case of emergency maintenance. Loss of Service Availability due to emergency maintenance will be excluded from calculations for Service Availability.
8. STORAGE CAPACITY; DATA TRANSFER; SERVER RESOURCES.
Each Account is allotted storage capacity and data transfer amounts on Skybox’s servers according to the Service and related options selected by You. The servers may stop accepting, processing, or delivering Data, including e-mail messages, when such set allotment or the purchased limit is reached thus causing a loss of Service Availability or Data loss. Skybox will not be responsible for such loss of Service Availability or Data losses, and such loss of Service Availability will be excluded from calculations for Service Availability.
The amount of data stored in a mailbox or a folder affects client and server performance. Large mailboxes or data storage may respond slower to user requests or cause client non-responsiveness while the data is processed. Unlimited capacity allocation per plan is a subject to technical limitations of the software used to access such capacity. Skybox has no control over software limitations imposed by a software manufacturer.
9. CERTAIN LIMITATIONS.
9.1. Anti-Virus Checking. Skybox uses commercially reasonable efforts to maintain third-party, anti-virus software. This software is configured to check all inbound messages sent between Exchange mailboxes on the server and files stored on the server. If a virus is detected or if a message attachment or file cannot be scanned (for example, when it is encrypted or corrupted), the message and its attachments may be permanently deleted. For Secure Mail product customers, encrypted messages will not be deleted except upon Your action to do so. Email Messages with attachments larger than 5MB are not scanned. Skybox advises You to use up-to-date, local anti-virus software for any messages or Files stored locally on Devices outside of CloudSpace. Skybox is not responsible for any damages to Your hardware, software or systems or for loss of Data due to viruses, including infection of end-user devices, lost or corrupted messages, lost or corrupted Files, or lost or corrupted Data.
9.2. Anti-Spam Message Filter for Exchange Email Services. Skybox uses commercially reasonable efforts to maintain third-party anti-SPAM software on its servers. This software is configured to check all incoming messages according to the SPAM-detecting heuristics provided with the software. Skybox is not responsible for any damage, loss or inconvenience You suffer due to anti-SPAM filtering, including lost or corrupted messages. Skybox is not responsible for any deleted messages or messages not received as a result of its SPAM -detecting software.
10. DATA RESTORATION FROM BACK-UP REQUEST. Skybox conducts regularly scheduled backups related to the Services but does not guarantee their availability to You. Server backup scope and scheduling is at Skybox’s sole discretion. Data restore requests initiated by You may be initiated through creating a technical support incident, subject to availability of the relevant Data. SKYBOX DOES NOT MAINTAIN HISTORICAL BACK-UP COPIES FOR THE PURPOSE OF POINT IN TIME DATA RECOVERY.
Skybox does not guarantee compatibility of the Services with any specific customer configuration of hardware or software. You are encouraged to discuss any technical and compatibility issues with our technical support personnel.