829 Studios Hosted Services Agreement

These Hosted Services terms and conditions (“Hosted Services Agreement”) are incorporated, and subject to, the terms and conditions of the Master Services Agreement (the “Agreement”) between 829 and Client. The terms and conditions set forth in the Agreement shall have the same meaning when used as defined terms in this Hosted Services Agreement.

UPON EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS HOSTED SERVICES AGREEMENT, OR, BY OTHERWISE ACCEPTING THIS HOSTED SERVICES AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS HOSTED SERVICES AGREEMENT, IN WHICH CASE THE TERM “CLIENT” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE 829 SERVICES (OR ANY OTHER SERVICES, DELIVERABLES, OR PRODUCTS OFFERED BY 829) IN ANY MANNER.

1. Hosted Services. Subject to the terms and conditions of the Agreement and Client’s payment of all relevant fees, 829 grants Client and its End Users a non-exclusive, non-transferable license to access and use 829’s, Hosted Services, as identified in an applicable Statement of Work, solely for their Client’s internal business purposes. 829 reserves the right to make functional changes to software, hardware and features provided within the Hosted Services described in the Agreement and the applicable Statement of Work as part of routine maintenance, updates and upgrades. To the extent any 829 software is provided to Client for installation on its systems for use in connection with the Hosted Services, the 829 software will be included in the definition of Hosted Services and subject to the foregoing license. Client may only use the provided software in support of Client’s use of the Hosted Services and for no other purpose. For purposes of this Hosted Services Agreement, “End Users” means Client’s employees, contractors, and representatives who are authorized to access the Hosted Services on Client’s behalf.
2. Restrictions. Client and its End Users may only use the Hosted Services as described in this Hosted Services Agreement, the Agreement, and in the then current documentation made generally available by 829 to its customers regarding use of the Hosted Services (the “Documentation”), including any then current acceptable use policies. Client is responsible for ensuring its End Users comply with all relevant terms of this Hosted Services Agreement and any failure to comply will constitute a breach by Client. Except as expressly authorized by this Hosted Services Agreement, Client will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Hosted Services other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the intellectual property embodied in the Hosted Services; (iii) use the Hosted Services or any 829 Confidential Information to develop a competing product or service; or (iv) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Hosted Services, including any screen displays, etc., or any other products or materials provided by 829 hereunder. Under no circumstances will 829 be liable or responsible for any use, or any results obtained by the use, of the Hosted Services in conjunction with any services, software, or hardware that are not provided by 829. All such use will be at Client’s sole risk and liability.
3. Availability. The hosted elements of the Hosted Services will be available for remote access 99.5% of the time each calendar month of the Term, excluding Excused Outages (“Availability”). Downtime as a result of any causes beyond the control of 829 or that are not reasonably foreseeable by 829, including any of the events noted below, are excluded from the Availability calculations (collectively, “Excused Outages”):
   1. Client environment issues affecting connectivity or interfering with the Hosted Services, including Client’s telecommunications connection or any other Client software or equipment, Client’s web sites, Client’s firewall software, hardware, or security settings, Client’s configuration of anti-virus software, anti-spyware, or malware software, or operator error of Client;
   2. any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
   3. force majeure events, including fire, flood, earthquake, elements of nature or acts of God, third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, embargoes and other similar governmental action, or any other similar cause beyond the reasonable control of 829;
   4. issues related to third party domain name system (DNS) errors or failures;
   5. scheduled maintenance of the Hosted Services, conducted on a regular basis, of which 829 will give Client a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and,
   6. emergency maintenance of the Hosted Services, not to exceed four (4) hours in any month, for which Client may not receive advanced notice.
4. Connectivity. Client and End Users are solely responsible for all telecommunication or Internet connections required to access the Hosted Services, as well as all hardware and software at Client’s site. In addition to other third party costs that may apply, Client agrees to pay for all telecommunications costs, fees, and Hosted Services required for and dedicated to Client’s access to the Hosted Services.