These Terms of Service (“Agreement”) are between Above LLC, (“Above Agency”) and the entity identified in the Order Form (“Customer”) on the date indicated on the Order Form (“Effective Date”); and consists of:
(i) these terms and conditions;
(iii) Service Level Agreement;
(iv) Acceptable Use Policy;
(v) the Order Form;
(vii) the applicable payment requirements.
If Customer does not agree to the terms of this Agreement, it’s advised they do not order or use Above Agency services.
(unless otherwise defined herein all capitalized terms shall have the meaning set forth in this Section 1)
“Acceptable Use Policy” means the rules associated with the use of all Above Agency Services that are located at Acceptable Use Policy page.
“Customer Content” means any and all information provided to Above Agency by Customer or Customer’s customer in connection with the access and use of Services.
“License” means the rights granted by Above Agency to use, access, display, run and/or otherwise interact with Services.
“Order Form” means the form Customer completes and submits to Above Agency to order Services.
“Service” means Cloud Servers, Cloud Clusters, Private Cloud, Dedicated Servers (as applicable) and any other Services made available to Customer under this Agreement as detailed in the Order Form.
“Service Level Agreement” means service level agreements representing certain commitments Above Agency makes pertaining to offered Services, which can be located at SLA page.
“Term” has the meaning set forth in Section 3a of this Agreement.
2. License to Use Services
a. License to Customer Subject to the terms of this Agreement, Above Agency grants Customer a non-exclusive, non-assignable, non-sublicensable, royalty-free, limited right to access and use Services during the Term of this Agreement.
b. Customer License to Above Agency Subject to the terms of this Agreement Customer hereby grants Above Agency the right to use and access Customer Content solely in connection with providing Services to Customer, during the Term of this Agreement. To the extent Customer Content contains materials supplied by third parties, Customer hereby also grants to Above Agency a license to use and access such Customer Content for pursuant to the terms of this Section 2(b). Above Agency reserves all rights not expressly granted.
c. Limitations on Use Customer shall not reverse engineer, decompile or disassemble any Service. Customer shall not rent, lease, lend, resell, or host to or for third parties any Services, except as expressly permitted under this Agreement.
Additional limitations are as follows:
d. Internet Protocol (IP) Address Ownership Above Agency may assign Customer a Dedicated Internet Protocol (“IP”) address in connection with Services. Above Agency shall maintain and manage all IP addresses that may be assigned to Customer by Above Agency. Further Above Agency reserves the right to change or remove any and all such IP addresses, in its sole and absolute discretion. Customer shall have no right to use that IP address except as permitted by Above Agency in its sole and absolute discretion in connection with the Services, during the Term of this Agreement.
e. Bandwidth and Disk Usage Customer agrees that bandwidth and disk usage shall not exceed the number of gigabytes specified on the Order Form (the “Agreed Usage”). Above Agency will monitor Customer’s bandwidth and disk usage. Above Agency shall have the right to take corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional fees, disconnection or discontinuance of any and all Services, or termination of this Agreement. If Above Agency, in its sole and absolute discretion, takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
f. Ownership Above Agency owns various intellectual property and technology rights associated with the delivery of Services to Customer. Customer’s rights with respect to the foregoing are limited to the rights to use Services that are granted under this Agreement. Above Agency does not license or transfer to Customer, Customer’s customers, or other third party any of Above Agency technology or other intellectual property rights. All rights, title, and interest in Services, copyright, trade secret, trademark, service mark shall remain solely with Above Agency at all times. All Customer Content used, accessed and processed by Above Agency shall retain ownership of its origin as specified by law.
3. Term; Termination; Cancellation Policy
- a. Term The initial term of this Agreement shall commence on the Effective Date and continue for the period set forth in the Order Form (the “Initial Term”) unless otherwise terminated pursuant to the terms set forth below. After the Initial Term, this Agreement shall automatically renew for a period of time equal to the Initial Term unless either party provides thirty (30) days written notice indicating its intent not to renew this Agreement. The Initial Term and all successive renewal periods shall be referred to as “Term.”
- b. Termination for nonpayment of Service fees Customer’s failure to timely pay Above Agency any amounts due under for Services constitutes a material breach of this Agreement. If Customer has failed to cure such a breach within thirty (30) days following the date payment is due, Above Agency may, in its sole discretion and without limitation of any of its other rights and remedies, terminate this Agreement and suspend use of Services.
- c. Termination for unprofessional and disrespectful communication During the course of any communication with staff or other members, Customer must make all attempts to remain professional and respectful. Violation of this regardless of the chat medium used may result in the immediate termination of Customer account, without advance notice and without the right to any refunds for unused service(s).
- d. Termination for convenience This Agreement may be terminated by either party by giving the other party seven (7) days prior written notice.
- e. Termination to protect Above Agency business interests Above Agency may immediately and without notice, if Above Agency, in its sole discretion, determines that: (i) Customer is in violation of Sections 2(e) and 2(f) above; (ii) Customer’s use of the Services disrupts or, could disrupt, Above Agency business operations and/or negatively impact other customers (iii) Customer use of Services or one of Customer’s customers use of Services is violation of any law.
- f. Fees payable upon termination or cancellation In the event this Agreement is terminated pursuant to Sections 3(b)(d) by Above Agency or by Customer pursuant to Section 2(c); Customer is still obligated to pay fees for the Term identified in the Order Form and for any additional periods Customer agreed to use Services. Above Agency shall invoice Customer and Customer shall pay the remaining unpaid balance to Above Agency within thirty (30) days of the invoice date.
- g. Effect of termination Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(e)(f), 7, 8, 9, 11, 12, 13, 14, and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement.
4. No access to Customer Content upon termination
Upon termination of this Agreement, suspension or cancellation of services, Customer will no longer have access to customer content or use of services.
If proper cancellation notice was received as per policy 3a, then Above Agency may assist in the migration of customer content to its next destination, as directed by the customer. The next destination must be a reasonable destination for the Customer Content (website) depending on the relevant technologies used.
Migration support will only occur if the migration process is reasonable and possible. If it is not reasonable or possible as judged by Above Agency, then Customer Content in the form of backups in the industry standard format for that technology will be sent to the customer.
After this final migration process, Customer will no longer have access to customer content, and the content/backups will automatically be deleted within 30 days or upon request after final termination/
5. Customer’s Responsibilities
a. Customer shall ensure that all information provided under this Agreement is current and accurate. This includes all contact, billing, domain name and other information Above Agency needs to provide Services to Customer. Customer will immediately notify Above Agency of any change in Customer’s mailing address, telephone, e-mail or other contact information.
b. Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through Customer’s website.
c. Customer will cooperate fully with Above Agency in connection with Above Agency performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations may impair Above Agency ability to provide Services to Customer.
d. Customer assumes full responsibility for providing its customer with any required disclosure or explanation of the various features of the Customer’s own product offerings and any goods or services described therein, as well as any rules, terms or conditions of use. Further Customer is solely responsible for any and all Customer Content electronically transmitted, uploaded or used on Customer website. Customer shall be fully responsible for uploading all Customer Content to the Customer’s website and supplementing, modifying and updating the same.
Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer website are compatible with the hardware and software used by Above Agency to provide the Services, as the same may be changed by Above Agency from time to time. Specifications for the hardware and software used by Above Agency to provide the Services will be available upon request and communicated to the customer. Above Agency shall not be responsible for any damages to the Customer Content, the Customer’s website or other damages or any malfunctions or service interruptions caused by Customer’s failure to meet the hardware and software requirements specified by Above Agency.
e. Customer shall maintain a separate backup file of Customer Content used in connection with Services during the Term of this Agreement.
f. Customer will ensure that scripts/programs installed are secure and permissions of directories are set properly, regardless of installation method. When possible, Customer shall make permissions as restrictive as possible. Customer is ultimately responsible for all actions relating to use of Services. This includes the compromise of credentials such as user name and password. Customer is required to use a secure password. Above Agency, in its sole discretion, reserves the right to perform audits of customer passwords to prevent weak passwords from being used. Above Agency reserves the right to change Customer passwords that have been identified as weak. Above Agency will notify Customer of such change and forward the new more protective password to Customer. Customer’s account may be suspended until a more secure password is produced and used.
6. Customer Representations and Warranties
a. Customer hereby represents and warrants to Above Agency, and agrees that during the Term thereafter Customer will ensure that:
Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Above Agency to pay any fees, residuals, guild payments or other compensation of any kind to any person;
Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
Customer will comply with all applicable laws, rules and regulations regarding Customer Content and the Customer’s website and will use Services only for lawful purposes; and
Customer shall use best efforts to ensure that Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
b. Customer shall be solely responsible for the development, operation and maintenance of Customer’s website, online store and e-commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer’s products, including, without limitation:
the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products;
ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person; and
ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment and satisfaction of any and all taxes associated with Customer’s website and online store.
Above Agency and Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other or as required by court order.
8. Billing and Payment
a. Each month Customer shall be invoiced for Services as set forth in the Order Form and Customer shall immediately pay the invoice accordingly to the applicable payment requires. Services are billed a two weeks in advance and are payable in U.S. Dollars. Above Agency may charge Customer a late fee of $25.00 or one and one-half percent (1.5%), whichever is larger, for any invoice that is not paid within thirty (30) days from the invoice generation date.
b. Above Agency may increase the Service fees at any time after expiration of the Initial Term by providing seven (7) days prior written notice thereof to Customer.
c. Service fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Above Agency net income). All such taxes will be added to Customer’s invoices for Services as separate charges to be paid by Customer.
d. If Above Agency collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Above Agency prevails in any action to which the are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Above Agency reasonable attorney fees.
e. If any check is returned for insufficient funds Above Agency may impose a processing charge of $25.00.
9. Above Agency as a Reseller or Licensor
Above Agency is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Above Agency Product”). Above Agency shall not be responsible for any changes in the Services that cause the Non-Above Agency Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-InnoScale Product either sold, licensed or provided by Above Agency to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Above Agency obligations under this Agreement.
Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non- Above Agency Product are limited to those rights extended to Customer by the manufacturer of such Non-Above Agency Product. Customer is entitled to use any Non-Above Agency Product supplied by Above Agency only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Above Agency to Customer through any Non-Above Agency Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Above Agency Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
10. Disclaimer of Warranty
The services provided under this Agreement are provided on an “as-is” and “as available” basis. Above Agency makes no warranties of any kind, either expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose, or non-infringement, for the services or any equipment Above Agency provides. Above Agency makes no warranties that the services will not be interrupted or error free; nor does Above Agency make any warranties as to the results that may be obtained from the use of the services or as to the accuracy, reliability or content of any information, services or merchandise contained in or provided through the services. Above Agency is not liable, and expressly disclaims any liability for Customer content of any data transferred either to or from Customer; or stored by Customer, or any of Customer’s customers via the services provided by InnoScale. No oral advice or written information given by any entity will create a warranty; nor may you rely on any such information or advice.
11. Limited Warranty
a. Above Agency represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Above Agency generally to its other Customers for the same Services; and (c) in compliance in all material respects with the applicable Service descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Above Agency, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Above Agency sole obligation, for breach of the foregoing warranties shall be for Above Agency, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro-rated by the number of hours in which the Services have been interrupted. Above Agency may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
b. Except as expressly provided in this section, Above Agency makes no representations or warranties of any kind, express or implied, with respect to the services or any software provided under this agreement, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title or non-infringement of third-party rights, and Above Agency hereby expressly disclaims the same. Without limiting the foregoing, any third-party software or product provided to Customer hereunder is provided “as-is,” without any condition or warranty whatsoever. Above Agency does not warrant that the services will be uninterrupted, error-free or completely secure.
11. Limitation of Liability
a. In no event will Above Agency’s liability in connection with the services, any software provided hereunder or any order, whether caused by failure to deliver, non-performance, defects, breach of warranty or otherwise, exceed the aggregate service fees paid to Above Agency by Customer during the 12-month period immediately preceding the event giving rise to such liability.
b. Above Agency cannot guarantee continuous service, service at any particular time, integrity of Customer content, information or Customer content stored or transmitted via the internet. Above Agency will not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, customer content, information or customer content transmitted, received or stored in connection with services.
c. Except as expressly provided below, neither party shall be liable in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or costs of procurement of substitute goods, licenses or services or similar economic loss, or for any punitive, indirect, special, incidental, consequential or similar damages of any nature, whether foreseeable or not, under any warranty or other right hereunder, arising out of or in connection with the performance or non-performance of any order, or for any claim against the other party by a third party, regardless of whether it has been advised of the possibility of such claim or damages.
d. The limitations contained in this Section 13(d) apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 13(d) shall not apply to Customer’s indemnification obligations.
e. Notwithstanding anything to the contrary in this Agreement, Above Agency maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
f. Customer understands, acknowledges and agrees that if Above Agency takes any corrective action under this Agreement because that such corrective action may adversely any customers of Customers. Customer agrees that Above Agency shall have no liability to Customer, or any of Customer’s customers due to such corrective action by Above Agency.
g. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement.
Customer agrees to indemnify, defend and hold harmless Above Agency and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, (ii) any violation by Customer of this Agreement, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer.
a. Independent Contractor Above Agency and Customer are independent contractors and nothing contained in this Agreement places either party in the relationship of principal and agent, master and servant, partners or joint ventures.
b. Governing Law; Jurisdiction This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A. without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, the construction and enforcement of this Agreement, or any disputes arising out of or relating to this Agreement or the subject matters of this Agreement. Any legal proceeding arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the state or federal courts sitting in Seattle, Washington, U.S.A. Licensee consents to such courts and waives all defenses of lack of personal jurisdiction, improper venue, and forum non-convenience relating to this Agreement.
c. Headings The headings herein are for convenience only and are not part of this Agreement.
d. Entire Agreement; Amendments This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Above Agency, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Above Agency. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Above Agency in its sole discretion, which modifications will be effective upon posting to Above Agency web site.
e. Severability All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
f. Notices All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Above Agency may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in Customer’s billing records.
g. Waiver No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
h. Assignment; Successors Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Above Agency. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Above Agency may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
i. Limitation of Actions No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
j. Counterparts If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Above Agency records of such execution shall be presumed accurate unless proven otherwise.
k. Force Majeure Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
l. No Third-Party Beneficiaries Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any entity other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that any supplier of third-party supplier that is identified as a third-party beneficiary in the Service description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
m. Government Regulations Neither Customer nor Customer’s customers may export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within the jurisdiction Customer operates or does business.
n. Marketing Customer agrees that during the Term of this Agreement Above Agency may list Customer as a client on Above Agency website and in marketing materials (such use may include Customer’s trademark or trade name). Any other public reference to Customer by InnoScale requires the written consent of Customer.