Sage Intacct Hosted Services Agreement
This Cloud Service Agreement for Sage Intacct Hosted Services ("Agreement") is by and between Equation Technologies, Inc. ("Equation"), and you, and your, assigns, agents and contractors (collectively, "You") and is effective as of the start date of the Agreement. This Agreement sets forth the terms and conditions of Your use of Equation's Cloud Server services for Sage Intacct Hosted Services (collectively, the "Cloud Services") and represents the entire agreement between You and Equation. By using Equation's Cloud Services, You acknowledge and agree You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies, including, but not limited to, the Rules of Service, that Equation may establish from time to time.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses the account You have established with Equation.
1. DESCRIPTION OF SERVICE
Equation currently provides Cloud Services for Sage Intacct to allow custom and automated integrations with Sage Intacct via webservices to its customers for an annual fee. Equation will provide You an account on to Cloud Server, provided, however, You abide by the terms and conditions set forth herein and in each of Equation’s policies and procedures as provided to You.
License of Your Server Content
Equation grants to You, and You accept from Equation, a non-exclusive, worldwide and royalty free license to do the following: (i) access and use the Services in accordance with this Agreement; and (ii) copy, display, use and transmit on and via the Internet Your server content in connection with Equation’s performance of this Agreement.
Availability of Services
Subject to the terms and conditions of this Agreement, Equation shall use commercially reasonable efforts to provide the Cloud Services on a 24 hour a day, seven days a week basis throughout the term of this Agreement. You agree that from time to time, the Cloud Services may be inaccessible or inoperable for any reason, including, without limitation:
(i) equipment malfunctions;
(ii) periodic maintenance procedures or repairs that Equation may undertake from time-to-time; or (iii) causes beyond the control of Equation or that are not reasonably foreseeable by Equation, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
You agree the availability of the Cloud Services may be inaccessible during periods of time for which You have scheduled upgrades or downgrades to Your Dedicated Server. You agree Equation has no control of availability of the Cloud Services on a continuous or uninterrupted basis. Equation also has no control of the internet availability, connection and speed from your remote location to the Cloud Services.
You further agree that as a normal course of its business, it may be necessary for Equation to migrate its servers. As a result, even though You may have a dedicated Internet Protocol (“IP”), You may be assigned a different IP number. Equation does not warrant that You will be able to consistently maintain Your given IP numbers. Equation shall provide you with written notice of Your IP number in the event it changes during the Agreement.
If there is a performance shortfall you may be eligible for a credit up to 40% of that month’s subscription. Claim for credit must be in writing seven days from downtime. This agreement confirms 97% Uptime. 90 – 97% = 10% credit, 85 – 89.9% = 30% credit 84.9 or less = 40% credit.
You shall be solely responsible for providing, updating, uploading and maintaining Your server content and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your server, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your server content shall also include any registered domain names provided by You or registered on behalf of You in connection with the Cloud Services.
Technical support assistance is available during Equation’s regular business hours. All other support instances can be emailed or left with the support line which pages a technician. For emergency after-hours support, such as an outage, support will be provided within four hours of reported issue. Installations, printing, and general questions would fall under standard support and will be addressed during regular support hours. Cloud Services support is limited to assistance with service packs installations and deployments, and connectivity issues.
2. YOUR OBLIGATIONS
You are responsible for maintaining your Sage Software subscription and other related software current. You will ensure that you have current software licenses and agree that additional upgrade services (outside of software installation and data migration) may apply depending on your Letter of Engagement (“LOE”) and/or Support Level Agreement (“SLA”) with Equation and level of system customization.
You acknowledge and agree Equation shall have the right to seek justification in connection with Your use of the Cloud Services, specifically Your purchase of IP addresses, and You shall be obligated to provide any and all information reasonably sought by Equation pursuant to such justification.
You represent and warrant to Equation that Your content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person and that You own Your server content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your server account. You also represent and warrant the server content being hosted by Equation shall not be used in connection with any illegal activity.
You are responsible for ensuring there is no excessive overloading of Equation's Domain Name System (“DNS”) or servers. In the event You exceed Your allotted bandwidth and thereby overload Equation's DNS or servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use Equation's servers as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and Equation reserves the right to remove Internet sites containing information about hacking or links to such information without prior notice. Use of Your server account as an anonymous gateway is prohibited, as is Your use of the Cloud Services to restrict or inhibit any other user from using the Internet. You acknowledge and agree Equation has the right to remove Your server content temporarily or permanently from its dedicated servers if Equation is the recipient of activities that threaten the stability of its network.
You agree not to engage in unacceptable use of any of the Cloud Services, which includes, without limitation, use of the Cloud Services to:
(i) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email or unreasonably large volumes of email on a daily basis, provided, Equation, in its sole discretion, may permit You, if You have a legitimate purpose and after request, to send more email than Equation's standard SMTP relay limit;
(ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
(iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
(iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
(v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
(vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization;
(vii) disseminate or transmit any virus, Trojan horse or other malicious, harmful or disabling data, work, code or program;
(viii) engage in any other activity deemed by Equation to be in conflict with the spirit or intent of this Agreement or any Equation policy; or
(ix) use Your server as an "open relay" or similar purposes.
Equation prohibits the running of a public recursive DNS service on any Equation server. All recursive DNS servers must be secured to allow only internet network access or a limited set of IP addresses. Equation actively scans for the presence of public DNS services and reserves the right to remove any servers from the network violating this restriction.
The Agreement is effective as of the Effective Date. Once You have completed the Equation application process, Equation will process Your account and set up Your Service. You will have access to Your Service within two to five days after the Effective Date.
Your subscription shall begin on the Effective Date and run for the initial term specified in the quote (the “Initial Term” which is a minimum of one year). Your subscription will automatically renew on each anniversary of the Effective Date for additional and consecutive terms as specific at the time of renewal (each a “Renewal Term”) unless (i) You or Equation terminate this Agreement and Your Subscription Term at the end of your Initial Term or any Renewal Term by providing written notice of termination at least 30 days before the end of your active agreement (ii) You fail to pay all applicable Fees when due. Together, the Initial Term and each Renewal Term make up Your Subscription Term.
Fees for the Service You selected include the annual subscription fee which may include, but is not limited to, a named or concurrent user fee, data transfer fees, connect time fees, backup fees, application use and storage fees and other variable fees as may be indicated by Sage ("Fees"). You agree to pay all applicable Fees. Equation shall not change Your Fees prior to the end of Your Initial Term or a Renewal Term, as defined herein and shall provide You with 45 days prior written notice of such change prior to a Renewal Term.
By providing a credit card account number, checking account number, ACH account number or other account number permitting electronic charge, debit or transfer of funds (collectively "Electronic Payment Method"), You authorize Equation to charge the account number You specify for all Fees applicable to Your Subscription Term. Payment may be made by a method other than the Electronic Payment Method only with Equation’s prior written consent and will be subject to and include appropriate processing fees.
You will pay Equation all such Fees including annual subscription Fees in advance of Your annual use of the Services. You will pay Equation all variable Fees following the end of the month in which they were incurred (or earlier in the case of prepaid fees.) Equation will generate monthly invoices on or after the first day of each calendar month for the current and/or previous calendar month of Service, as applicable. Concurrently with the generation of each invoice, Equation will (i) charge the amount of such invoice to You by Electronic Payment Method or, (ii) in the case of payment other than by Electronic Payment Method, deliver such invoice to You for payment in accordance with alternative payment terms approved in advance by Equation. Fees for any partial month(s) will not be prorated.
If You prepay fees and the total monthly Fees exceed the discounted prepaid annual Fees in any month, You will pay such excess amount to Equation (i) concurrently with the generation of the invoice to You by Electronic Payment Method or, (ii) in the case of payment other than by Electronic Payment Method, upon delivery of such invoice to You for payment in accordance with alternative payment terms approved in advance by Equation. Equation earns the prepaid Fees upon payment and they are nonrefundable in the event that the total subscription Fees for any month are less than the discounted monthly Fees for such month. In the event of early termination of this Agreement for any reason, You shall be entitled to a Pro Rata refund of any amounts paid to Equation pursuant to the terms of this Agreement.
You guarantee to pay all Fees as required herein, plus any applicable late fees or penalties in the event that Your bank or financial institution for any reason does not honor any check or electronic charge, debit or transfer. Late payments may accrue interest as per Your quote. All payments required by this Agreement are exclusive of applicable taxes and shipping charges. If applicable to Your Agreement, You may increase Your number of Authorized Users at any time. If the annual subscription Fee is based on a subscribed number of authorized users, it will be calculated based on Your highest number of authorized users during the applicable Subscription Term. In the event of termination by You as described in Section 2 and 6, You will owe the Monthly Subscription Fee until the effective termination date, which is the date the Service will cease completely.
Storage and Security
Standard storage in this agreement covers 10 GB for file sharing (excel, word, access, PDF and other files types) and 100GB of database storage, related for Your use.
You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server.
You are responsible to:
(i) maintain independent archival and backup copies of Your server content if more history other that what is provided by Equation is needed;
(ii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on Equation servers; and
(iii) ensure the confidentiality of Your password.
Equation is responsible for:
(i) Backup nightly and store for seven days backup copies of Your server content (includes installed applications);
(ii) Backup nightly and store for seven days backup copies of Your database content;
(iii) Ensuring at the end of each month a backup will be retained for 45 days;
(iv) Ensuring the security, confidentiality and integrity of Equation’s Services;
(v) Running SQL backup script upon upgrade;
(vi) Client may create year-end application backup via database dump; and; and
(vii) Ensuring SQL scripts are in place and operational.
The Cloud Services are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be considered as one. Equation shall have no liability to You or any other person for Your use of the Cloud Services in violation of these terms. You acknowledge and agree Equation has the right to carry out a forensic examination in the event of a compromise to Your server or account.
In the event this Agreement or Your use of the Cloud Services terminates for any reason, Equation will provide to You and/or to the service provider selected by You (such service provider shall be known as the “Successor Service Provider”) assistance reasonably requested by You to effect the orderly transition of the Services and Your server content, in whole or in part, to You or to Successor Service Provider (such assistance shall be known as the “Transition Services”) following the termination of this Agreement. As part of the Transition Services, Equation will make available to You or Your Successor Service Provider a complete and secure download file of Your server content in XML format including all schema and transformation definitions and/or delimited text files with documented, detailed schema definitions along with attachments in their native format. All applicable terms and conditions of this Agreement shall apply to the Transition Services. This Section shall survive the termination of this Agreement.
Equation shall conduct periodic backups of Your server content on at least a nightly basis, and shall provide you with a copy of the backed-up content in machine readable format as reasonable requested by You. Equation will provide SQL server back-up of Your server content that will be stored on a third-party server and backed-up nightly, and will provide You support and training on the SQL server back-up process.
3. SAGE MANAGED SERVICES
The following terms and conditions shall apply to Your use of and Equation's obligations in connection with providing the management of your Sage Managed Services (“SMS”). Subject to the terms and conditions of this Agreement and each of Equation's policies and procedures, Equation shall use commercially reasonable efforts to attempt to provide the SMS on a 24 hour per day, seven days per week basis for the duration of this Agreement. You acknowledge and agree that from time-to-time the SMS may be inaccessible or inoperable for any reason, including, without limitation:
(i) equipment malfunctions;
(ii) periodic maintenance procedures or repairs that Equation may undertake from time to time; or
(iii) causes beyond the reasonable control of Equation or that are reasonably unforeseeable by Equation, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
You acknowledge and agree Equation has no control over the availability of the Amazon Web Services (“AWS”) on a continuous or uninterrupted basis.
Equation explicitly reserves the right and sole discretion to:
(i) modify its pricing, if desired by Equation;
(ii) establish limits and guidelines concerning the use of the SMS;
(iii) terminate Your use of the SMS for use of the SMS to unnecessarily or illegally harass Equation or third parties, non-payment of fees for the SMS, activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties, activities prohibited by the state of California or any states in which You conduct business, activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography, activities that are tortious, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable in the sole opinion of Equation, activities designed to impersonate the identity of a third party, activities designed to harm minors in any way, and other activities whether lawful or unlawful that Equation determines, in its sole discretion, to be harmful to its other customers, operations, or reputation;
(iv) terminate Your use of the AWS Services if Your use results in, or is the subject of, legal action or threatened or proposed legal action, against Equation or any of its affiliates or partners, without consideration for whether such legal action or threatened or proposed legal action is eventually determined to be with or without merit; and
(v) terminate Your use of the AWS Services at any time and for any reason if deemed reasonably necessary by Equation. Equation has no obligation to monitor Your use of the AWS Services, but reserves the right in its sole discretion to do so.
Charges for Custom SMS
When Equation in its reasonable discretion determines requested assistance falls out of the scope of the basic SMS plan, charges shall apply for Your use as set forth in your LOE and/or SLA, and Equation shall charge You for Your use of the LOE and/or SLA as per agreed terms and conditions in your LOE and/or SLA. Furthermore, when Equation determines a fee will be assessed for Your use of the LOE and/or SLA, Equation reserves the right to charge any or all of the fees and will notify You of any fees prior to the commencement of any work being performed.
Additionally, in the event You elect to install or seek assistance from Equation in connection with the installation of any third-party software, the following terms shall apply. You represent and warrant You have the right to use and install the third-party software, and have paid the applicable licensing fees for the third-party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. You agree to defend, indemnify and hold harmless Equation and its employees, officers and directors for, from and against any and all claims brought against Equation and its employees, officers and directors by a third-party alleging the third-party software infringes: (i) the third-party's rights; or (ii) a patent, trademark, copyright or other intellectual property right. You agree that in such an event You shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a court awards and settlements incurred by Equation in connection with any such claims.
If You purchase Managed Dedicated Server Plan or Cloud Services Plan for Sage, You hereby authorize Equation to log into Your server for purposes of installing and configuring the software.
4. WARRANTY, DISCLAIMERS, EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY
Equation warrants that it will perform (i) Cloud Services in all material respects as described in the Rules of Service, and (ii) Services will be performed in a professional manner in accordance with the Rules of Service. If the Services provided to You were not performed as warranted, You must promptly provide written notice describing the deficiency in the Services. Equation exercises no control whatsoever over the content of the information passing through its network. Equation makes no warranties of any kind, whether expressed or implied, for the Services it is providing. Equation also disclaims any warranty of merchantabilityor fitness for a particular purpose.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You shall indemnify, defend and hold harmless Equation, its directors, employees and agents from any action brought against them by any third-party in connection with this Agreement, or any other Agreement between You and a third-party from any claims resulting from the use of the Services.
Excluding Equation’s liability for intellectual property indemnification as set forth below, Equation’s liability to You for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that Equation’s total aggregate liability to You shall not exceed $10,000, or the Equation’s total fee for services rendered on this project, whichever is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
Equation shall indemnify, defend, and hold You harmless from and against any losses arising out of or resulting from (i) Equation’s breach of this Agreement, and (ii) any action by a third party alleged to arise out of or result from a claim that any of the Services, or Your use thereof, threatens to infringe, misappropriate, or otherwise violate any intellectual property right or other right of a third party.
At all times during the Subscription Term, Equation shall procure and maintain, at its sole costs and expense, all insurance required by applicable law, and in any event insurance coverage in the following types and amounts: (i) Cyber Liability Insurance, including first party and third party coverage, with limits no less than $500,000 per occurrence; and (ii) Errors and Omissions/Professional Liability with limits no less than $2,000,000 in the aggregate. All policies required by this Section shall name You as an additional insured.
5. COMPLIANCE WITH LAWS
The parties shall at all times comply with all applicable laws and regulations of the United States of America and all other governmental entities governing, restricting or otherwise pertaining to the use, distribution, exporting or import of data, products, services and/or technical data.
Equation's network may only be used for lawful purposes. Transmission of any material in violation of any U.S., state, or other governmental regulation is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret.
Equation shall have the right to immediately suspend or terminate this Agreement during any investigation of any violations of this Agreement, inappropriate use, use of excessive system or network resources which adversely affects the performance, security or reliability of the Equation network, or nonpayment of service fees. In the event that Equation suspends or cancels service, Equation will make a reasonable effort to notify the emergency contact supplied by You, prior to the actual event.
Equation shall have the right to suspend or terminate this Agreement for any reason, by providing You with written notice within 60 days of non-compliance.
You shall have the right to suspend or terminate this Agreement for any reason, by providing Equation with 30 days’ written notice. In the event of termination, service fees shall be prorated to 50% of the cost of the remaining Subscription Term.
In the event that Equation files for bankruptcy or otherwise ceases operations, Equation agrees to assist You in transferring Your Equation server to a suitable AWS instance capable of continuing the Sage services.
Prior to the termination of this Agreement for any reason whatsoever, Equation agrees to assist You in transferring Your content to a suitable AWS instance capable of continuing the Sage services and/or returning Your content to You in suitable format.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, Your content, and the Services.Confidential Information (except for Your content) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
You retain all ownership and intellectual property rights in and to Your content and Your applications. Equation or its licensors retain all ownership and intellectual property rights to the Services, and derivative works thereof, and to anything developed or delivered by or on behalf of Equation under this Agreement.
9. MISCELLANEOUS PROVISIONS
This Cloud Agreement is being executed by You at the address provided for herein, and by Equation in the State of California, USA, and is governed by, and shall be construed in accordance with the laws of the State of California. Venue for any litigation or claim hereto shall be the California state courts in San Diego County, California, USA.
If any sentence, paragraph, clause or combination of the same in this Cloud Agreement is held by a court or other governmental body of competent jurisdiction to be unenforceable, invalid or illegal in any jurisdiction, such sentence, paragraph, clause or combination shall be deemed deleted from this Cloud Agreement and the remainder of this Cloud Agreement shall remain binding on the parties as if such unenforceable, invalid or illegal sentence, paragraph, clause or combination had not been contained herein.
In the event litigation is required to force compliance with, or address any breach of this Agreement, the parties agree that the prevailing party shall be entitled to attorneys' fees and costs actually incurred.
Relationship: Nothing in this Cloud Agreement or to be done pursuant to its terms and conditions is intended to, or shall, create a partnership or joint venture, for tax purposes or otherwise, between Equation and You. You are and shall remain fully and solely responsible for all of its employees and assume full responsibility for all costs and liabilities incurred in connection with the termination of such employees for any reason whatsoever.
This Agreement shall be binding on the parties and their successors (through merger, acquisition or other process) and permitted assigns. Neither party may assign, delegate or otherwise transfer its obligations or rights under this Agreement to a Third Party without the prior written consent of the other party.
This Cloud Agreement shall constitute the entire Agreement between You and Equation pertaining to Your server. This Agreement shall not be modified or altered except by a written instrument duly executed by You and by an authorized officer of Equation.