These TERMS OF SERVICE are an agreement between Trapp Technology, Inc. (“Trapp”) and each individual or entity that is a Customer identified on an Order Form (the “Customer” or “you”) whereby the Services ordered under the Order Form shall be provided in accordance with these Terms of Service (the Order Form, all exhibits thereto, and these Terms of Service, collectively referred to as the “Agreement”). Capitalized terms not otherwise defined herein shall have the meanings set forth on the applicable Order Form between Trapp and such Customer. Trapp and Customer may be referred to herein as the “parties” and each, a “party.”
1) Order Forms; Agreement
- This Agreement solely governs the Services identified on the relevant Order Form (the “Services”), which may include managed application cloud-hosting services (“Cloud Services”), VoIP services (“VoIP Services”), security desk and managed security services (“SIEM Services”), and other IT services as set forth on the relevant Order Form(s) between Customer and Trapp. Other services provided by Trapp, and not indicated on the Order Form, which may including virtual servers or other managed IT services, are governed by a separate master services agreement between Trapp and Customer, if any. Provisions in this Agreement that solely apply to an expressly identified Service (e.g. Cloud Services) are inapplicable to the other Services ordered by Customer, if any.
- The Services will be provided by Trapp in accordance with this Agreement, and the related documentation provided by Trapp to Customer. Trapp represents and warrants to Customer that it will perform the Services substantially in accordance with industry standards and in a professional manner.
- Trapp reserves the right to modify the Services at any time and without notice. Customer agrees and acknowledges that Trapp’s delivery of the Services is dependent on timely receipt from Customer of all necessary items, authorizations, or information requested for the Services. In the event of a delay, any estimated completion date or access date may be deferred due to the delay.
This Agreement is effective on the date of last signature of the applicable Order Form for the identified Services for the subscription term identified in such Order Form. The Services will commence on the Subscription Commencement Date or Activation Date as set forth in the Order Form and will continue for the Subscription Term indicated in the Order Form (the “Term”) This Agreement will remain in effect until terminated by Customer or Trapp in accordance with Section 4 herein. This Agreement will automatically renew for the Subscription Term identified in the relevant Order Form unless terminated by either party in accordance with section 4 (Termination) below.
- By Trapp for Cause. Trapp may immediately (and without prior notice) suspend or terminate all or part of the Services or this Agreement by providing notice of termination to Customer following the occurrence of one or more of the following events: (i) Customer breaches any of its representations, warranties, or covenants set forth in this Agreement, (ii) Customer provides Trapp with false information or lacked the capacity to enter into this Agreement at the time of its execution; (iii) Trapp determines, in its sole discretion, that Customer’s use of the Services poses a threat to the security or performance of Trapp’s network or to any of Trapp’s clients or suppliers; (iv) Trapp determines, in its sole discretion, that Customer’s use of the Services is illegal, or that it misappropriates or infringes the property rights of a third party; (v) Trapp reasonably believes that Customer’s use of the Services has or will subject Trapp to civil or criminal liability; (vi) Customer becomes the subject of an involuntary or voluntary bankruptcy or similar proceeding, or assigns all or substantially all of your assets for the benefit of creditors; (vii) Customer fails to make any payment when due, or Customer’s credit card is declined or any ACH transfer is rejected; (viii)Customer uses cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”); or (ix) Customer breaches any of the other terms and conditions in this Agreement, including the Acceptable Use Policy, available at trapptechnology.com/acceptable-use-policies.
- By Trapp Without Cause. Trapp may suspend or terminate all or part of the Services or this Agreement by providing you thirty (30) days’ prior notice of the termination.
- By Customer With Cause. Customer may terminate an Order Form by providing written notice to Trapp of Trapp’s material breach of any of its representations, warranties, or covenants set forth in this Agreement with respect to the services provided under such Order Form, following a thirty (30) day period to cure and Trapp’s failure to cure such breach within the 30-day period. In the event that Trapp materially modifies the Services, which results in a material and adverse affect on the functionality of the Services as generally used by Customer, then Customer may provide written notice to Trapp and if Trapp is unable to provide substantially the same functionality of the Servicers within thirty (30) days of receipt of notice, then Customer may terminate the Agreement under this subsections.
- Suspension due to Non-Payment. Trapp may suspend Customer’s access to the Services or decline to make shipments to Customer if Customer is delinquent or following Customer’s non-payment of fees and written notice to Customer. The Services will be unavailable in whole or in part during any suspension, and Customer may not have access to its data. Fees may continue to accrue during a suspension, and Trapp may charge a reinstatement fee to Customer.
- Effect of Termination; Survival. Upon termination of this Agreement, (i) the Services will no longer be available to Customer and Trapp may, at its sole discretion, permanently erase all data stored in its infrastructure; (ii) all Confidential Information, including all copies, must be returned to Trapp or destroyed, with written certification to Trapp upon request; (iii) Trapp shall make available to Customer a file of Customer Content following Customer’s request, (iv) all phone numbers, voicemail access numbers, web portals, and/or IP addresses will be returned to Trapp and Customer will cease to use such information; (v) Customer shall immediately pay all amounts due and owing under any Order Form and through the effective date of termination. If Customer terminates this Agreement under section 5(h) (By Customer Without Cause), then Customer will pay and shall be liable for all fees and costs through the current Subscription Term, in addition to all fees and costs incurred by Trapp as a result of the termination (including attorneys’ fees and costs); and (vi) all equipment provided by Trapp during the Agreement shall be returned to Trapp within five (5) business days of Customer receipt of an email from Trapp containing a pre-paid shipping label, with failure to return said equipment resulting Customer’s requirement to reimburse Trapp for the value of any unreturned equipment (subject to Trapp’s commercially reasonable price determination). All terms of this Agreement that by their nature survive termination will survive and continue to be effective, including without limitation Sections 4 (Effect of Suspension; Termination), 5 (Fees), 6 (Customer Obligations), 7 (Security), 8 (Intellectual Property), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Indemnification), 15 (Governing Law; Venue; Jurisdiction; Waiver of Jury Trial), 17 (Notices), 19 (Confidentiality), 20 (Assignment; Resale; Binding Effect); 24 (No Waiver), and 25 (Severability).
5) Fees and Billing
- Fees. In consideration for the Services, Customer agrees to pay all Fees for the Services as set forth in the Order Form (the “Fees”). Payment shall be in U.S. dollars and will be charged to your credit card or transferred to Trapp via ACH, or paid to Trapp via other agreed upon payment methods, on the Monthly Billing Date set forth in the Order Form. The calculation of all Fees will be based solely on Trapp’s records and data. Trapp will bill Customer immediately for any equipment purchases or installation charges. All fees are non-refundable.
- Credit Card Authorization. Customer shall provide a valid credit card, from an issuing financial institution that is accepted by Trapp, or active bank account and routing information, as a method of payment. Customer authorizes Trapp to charge the credit card or bank account provided by Customer for all charges related to the Services provided pursuant to this Agreement. Customer agrees to notify Trapp of any change to the billing and payment information. Trapp will not be responsible for any charges made by the credit card issuer or financial institution to Customer’s credit card or bank account for exceeding the credit limit, insufficient funds, or other reasons. The Services provided to Customer shall be subject to credit approval or review by Trapp. Trapp may, at its sole discretion, discontinue credit at any time without notice or require a deposit.
- Payment Terms; Disputes. Customer will pay the Fees or the Fees will be charged as set forth herein on the Monthly Billing Date set forth in the Order Form. Trapp will issue a monthly invoice for the Services and bill Customer’s account as set forth above based on the credit card or bank account information provided. Customer will have thirty (30) days following the Monthly Billing Date to dispute the Fees charged otherwise such Fees will be deemed accepted. If, for any reason, Trapp cannot process Customer’s credit card on file, Customer fails to make a payment or an ACH transaction is denied, either at the time of processing or at any point in time thereafter, Customer agree to pay Trapp’s costs of collection, including all reasonable attorneys’ fees and expenses. Trapp may charge interest on past-due fees at the lesser of 1.5% per month or the maximum rate permitted by law. It is Customer’s sole responsibility to provide accurate billing contact information and to notify Trapp of any changes to billing contact information in accordance with the notice provisions below. NO SUSPENSION OR TERMINATION OF THE SERVICES OR OF THIS AGREEMENT SHALL RELIEVE CUSTOMER OF ITS LIABILITY FOR ANY AMOUNTS DUE UNDER THIS AGREEMENT. TRAPP SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OR DAMAGE CUSTOMER MAY SUFFER AS A RESULT OF TRAPP’S TERMINATION OF THIS AGREEMENT OR SUSPENSION OF SERVICES UNDER THIS AGREEMENT.
- Fee Increases. Trapp may increase the Fees on an annual basis by providing Customer written notice thirty (30) days before the effective date of the Fee increase.
- Payment Processing. Credit card payments will be processed by a third-party card processing company. All payment information that Customer provides will be transmitted directly to the credit card processing company over a secure connection. Trapp will not record your credit card number, expiration date or CVV number. However, this information may be stored by the credit card processing company in the normal course of its business, or as required or authorized by law, statute, regulation or payment card industry standard.
- Pre-Existing Billing Arrangement. To the extent Trapp has Customer’s billing information for other services provided by Trapp, Trapp may, and Customer authorizes Trapp to bill and collect the Fees due under this Agreement in accordance with the pre-existing billing information provided to Trapp by Customer.
6) Customer Obligations
- Content. Customer is solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all applications, information, software, and data, including any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that you or your subcontractors or end users create, install, upload or transfer on, from or through the cloud servers or any other data, information, or other intellectual property provided or submitted by Customer through the use of the Services (“Customer Content”). Trapp may immediately (and without prior notice) block access to any Customer Content on the Cloud Services (i) that we believe violates the law, misappropriates or infringes the intellectual property rights of a third party, or violates the terms and conditions of this Agreement; or (ii) pursuant to a subpoena, or an order issued by a court or government agency.
- Equipment. Customer acknowledges that Trapp may identify additional equipment or changes in Customer’s systems that may be required to meet Customer’s requirements. Customer agrees to work with Trapp to effect such purchases or changes as needed to continue the Services. All returned equipment must have an equipment return policy (RMA) number issued by Trapp and will only be allowed during the period allowed by the equipment manufacturers’ warranty. Customer shall not make physical alterations to any equipment provided by Trapp and Customer is responsible for any lost, stolen, or broken equipment.
- Personnel; Environment. Customer agrees to timely furnish or make available, all personnel, necessary computer hardware, software, and related materials, including all information, passwords, and usernames required, and appropriate and safe workspaces for as required for Trapp to provide the Services. In the event Customer does not provide such access, Customer acknowledges that Trapp may not be able to perform the Services hereunder, and agrees to hold Trapp harmless for such delay. Customer shall further provide a suitable working environment for any equipment located at Customer’s facility, including but not limited to appropriate temperature, static electricity, and humidity controls and properly conditioned electrical supply for each piece of equipment. Customer agrees that it shall bear the risk of loss of any equipment located at Customer’s facility.
- Customer Representations and Warranties. Customer represents and warrants to Trapp that (i) the information it provides Trapp is accurate and complete; (ii) no content it provides through the Services is illegal, defamatory, malicious, harmful, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) it will accurately and adequately disclose how it collects and treats data collected from visitors to any website or users of any application on the cloud servers; (iv) its use of the Services will comply with all applicable laws, rules and regulations; (v) it will not attempt to circumvent or disable any of the security-related, management, or administrative features of the Services; (vi) it has obtained all consents and licenses required for Customer, its authorized users, including Trapp, to legally access and use all software placed on the cloud servers without infringing any ownership or intellectual property rights; (vii) the execution and delivery of this Agreement will not conflict with or violate any provision of Customer’s charter, by-laws or other governing documents; and (viii) Customer has otherwise taken all necessary steps to legally execute this Agreement.
- Customer Security. Except as expressly provided in this Agreement, Customer bears the sole responsibility for the security of Customer’s systems and data. Customer agrees to implement commercially reasonable security measures to protect the use of your Cloud Services, including items such as a strong password, setting user ID requirements, and implementing reasonable procedures regarding the application of security patches and updates.
- NEITHER TRAPP NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR THE UNAUTHORIZED ACCESS OF YOUR SYSTEM (I.E., HACKING) INTO THE CLOUD SERVERS OR YOUR TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.
8) Intellectual Property
- Intellectual Property Reserved Rights. Except as otherwise set forth herein, this Agreement does not convey to either party any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets. Trapp or our third-party licensors have the exclusive right and title to any intellectual property developed by us during and in connection with providing the Services to you. The parties acknowledge and agree that Trapp may use preexisting proprietary software, methodology, tools, software libraries, algorithms, materials, products, ideals, skills, design, know-how or other intellectual property owned by Trapp or its licensors (the “Trapp IP”) and that such Trapp IP is the sole and exclusive property of Trapp. Customer will not use, copy, modify, or distribute any Trapp IP except as expressly authorized in this Agreement. Customer shall not translate, reverse engineer, decompile, disassemble, rent, lease, assign, transfer, redistribute, or sublicense any Trapp IP.
- Trapp Content. Solely to the extent the Services may include various utility and deployment scripts, customizations to templates, code extending the functionality of third-party applications licensed to us, printed and electronic documentation, and other data that Trapp has or may develop before and/or during the Term (the “Trapp Content”). Subject to Customer’s compliance with this Agreement, Trapp grants to you a limited, non-exclusive, non-transferable, worldwide, royalty-free license to use Trapp Content during the Term of this Agreement solely as required to access and use the Cloud Services in accordance with the terms and conditions of this Agreement. Customer shall not translate, reverse engineer, decompile, disassemble, rent, lease, assign, transfer, redistribute, or sublicense any Trapp Content.
- Trapp Trademarks. Subject to Trapp’s prior written approval as to form, content, use, and appearance, Customer is granted the limited right to use Trapp trademarks, service marks, service or trade names, logos, and other designations in accordance with any trademark guidelines that we may publish on our website.
- Government Rights. With respect to the procurement of any Services by or for the U.S. Government, any software provided in connection with the Services is deemed to be “commercial computer software” as defined in the FAR and DFARS. The Government will receive no greater than restricted rights as provided in FAR 52.227-14, FAR 52.227-19(c)(1)-(2) (Jun. 1987), DFAR 252.227-7013(c)(1)(ii) (Oct. 1988), DFAR 252.221-7015(c) (May 1991), DFAR 252.227-7014, or DFAR 252.227-7018, as applicable or amended. In addition, the Government will receive no greater than limited rights as provided in FAR 52.227- 14, DFAR 252.227-7015, DFAR 252.227-7018, or DFAR 252.227-7013, as applicable or amended. All computer software and technical data were developed exclusively at private expense by Trapp or its third-party licensors or suppliers. The use of all computer software, documentation, and technical data is further restricted in accordance with the terms of this Agreement.
ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED BY TRAPP “AS-IS.” EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, TRAPP DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TRAPP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, COMPLETELY SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. ALL THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY SERVICES IS STRICTLY BETWEEN CUSTOMER AND SUCH THIRD PARTY. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES TO CUSTOMER’S NEEDS. CUSTOMER ACKNOWLEDGES THAT TRAPP DOES NOT CONTROL OR MONITOR THE TRANSFER OF DATA OVER THE INTERNET, AND THAT PROBLEMS INHERENT WITH THE USE OF THE INTERNET MAY CAUSE DELAY, OR LOSS OR COMPROMISE OF CUSTOMER’S PRIVACY OR CONFIDENTIAL INFORMATION.
10) Limitation of Liability
IN NO EVENT WILL EITHER PARTY OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS, OR LICENSORS, BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST DATA, LOST BUSINESS, LOST REVENUES, DAMAGE TO GOODWILL, LOST OPPORTUNITIES OR LOSS OF ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE AGGREGATE LIABILITY OF TRAPP OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS, OR LICENSORS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT CUSTOMER PAID TO TRAPP FOR THE SERVICES DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO THE CUSTOMER’S CLAIM(S) OCCURRED.
Customer agrees to indemnify, defend and hold Trapp and its employees, agents, shareholders, officers, directors, successors and assigns harmless from and against any and all claims, damages, liabilities, costs, settlements, penalties and expenses (including attorneys’ fees, expert’s fees and settlement costs) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim or demand brought or asserted by a third party pursuant to any theory of liability against Trapp arising out of or relating to any one or more of the following: (i) Customer’s breach of this Agreement; (ii) the use of the Services by Customer or Customer’s end users, or any content or information on the Cloud Services; (iii) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by Customer, or by its agents, representatives or end users; (iv) Customer’s relationship with the manufacturer of any software installed or stored in conjunction with the Services; or (v) Customer’s failure to use reasonable security precautions.
12) Third Party Software
Trapp may provide Customer with access to certain third-party software products as part of the Services. TRAPP MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING ANY THIRD-PARTY SOFTWARE PRODUCT OR RELATED SUPPORT SERVICES THAT TRAPP MAY PROVIDE AND, AS BETWEEN TRAPP AND CUSTOMER, SUCH PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.” Customer is not granted any title or intellectual property rights in or to any software provided as part of the Services, and Customer may only use that software in connection with the Services as permitted under this Agreement and any terms and conditions required by the third-party software provider. Customer’s acceptance or use of software provided as part of the Services is deemed to be an acceptance by Customer of the license or other agreement that governs the use of that software. Customer shall not (i) copy any software; (ii) remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software or appear during its use; or (iii) reverse engineer, decompile or disassemble any software.
13) Maintenance; Service Modifications and Discontinuance
In addition to the right to suspend or terminate the Services in accordance with Section 4 (Termination), Trapp may suspend all or part of the Services without liability or prior notice to Customer (i) in order to maintain (i.e., modify, upgrade, patch, or repair) Trapp’s infrastructure or any cloud servers; (ii) as required by law or regulation; or (iii) as necessary to protect Trapp’s infrastructure and clients from unauthorized access or an attack on the Services, as determined in the sole discretion of Trapp.
No modification of this Agreement by Customer or any party other than Trapp will be effective unless it is in writing and signed by both parties. Trapp may modify or otherwise amend this Agreement at any time and for any reason by posting the modified version online at trapptechnology.com/legal. Modifications and/or amendments to this Terms of Service will become effective thirty (30) days after Trapp provides notice of the amendment in accordance with the notice provisions in this Agreement. Customer’s continued use of the Services after the effective date of any modification to this Agreement will be deemed acceptance of the modified Agreement.
15) Governing Law; Venue; Jurisdiction; Waiver of Jury Trial
The laws of the State of Arizona, without reference to its choice of law principles, govern this Agreement and any claims arising out of or relating to this Agreement or our relationship. All disputes and controversies arising out of or relating to this Agreement or our relationship must be resolved in the state and federal courts in the city of Phoenix, County of Maricopa and state of Arizona, and each Party hereto irrevocably consents to the exclusive venue and personal jurisdiction of those courts for the resolution of such disputes and waives all objections thereto. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP.
16) Relationship of the Parties
This Agreement and any transaction under it does not create an agency, joint venture, or partnership between Trapp and Customer nor do Trapp and Customer have a landlord-tenant relationship, and Trapp is not Customer’s bailee or warehouseman with respect to any data or content stored in the Services. Customer has no right to access Trapp premises or data centers and no right to possess or own any IP address, software, server hardware or other equipment included in the Services.
- From Trapp. Except as otherwise provided herein, Trapp shall send notices to Customer under this Agreement by email to the email address included in the Order Form.
- From Customer. Except as otherwise provided herein, Customer shall send notices to Trapp under this Agreement in writing and by email to email@example.com and by certified mail, return receipt requested, or nationally recognized courier (e.g., FedEx or U.P.S.) with a signature required to the following address: TRAPP TECHNOLOGY, INC., 2600 N. CENTRAL AVE. #1100, Phoenix, AZ 85004.
- When Effective. A notice under this Agreement is effective when received; provided that an email notice is deemed effective when sent.
18) Force Majeure
Neither party shall be responsible for any failure to perform due to unforeseen circumstances or due to a cause beyond such party’s control, including but not limited to acts of god, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor and materials.
- If the parties have entered into a separate agreement that includes restrictions on the use or disclosure of confidential information, such as a separate Master Service Agreement for managed services, and one of confidentiality provisions conflicts with a confidentiality provision in this Agreement, the provision that affords a greater level of protection to the disclosing party will control and be enforced to the maximum extent permitted by law.
- Definitions. As used in this Agreement, “Confidential Information” means (i) with respect to Trapp, server configurations, software configurations, proprietary information, proprietary technology, proprietary software, audit reports, information regarding product development, information regarding Trapp’s datacenters, and information contained in manuals, proposals or memoranda; (ii) with respect to Customer, non-public content transmitted to or from, or stored on or through the Services; and (iii) with respect to both of Trapp and Customer, information that is conspicuously marked as “confidential” or “proprietary,” information disclosed verbally that is designated as “confidential” or “proprietary” at the time of disclosure, and information that, by its nature, would reasonably be considered as confidential to any other person, firm or corporation.
- Exclusions. Confidential Information does not include (i) information that is independently developed by a non-disclosing party without the use of the disclosing party’s Confidential Information as shown by the non-disclosing party’s written business records; (ii) information that is known by a non-disclosing party prior to disclosure by the disclosing party as shown by the non- disclosing party’s written business records; or (iii) information that is or becomes generally available to the non-disclosing party or the public other than through a violation of this Agreement.
- Restrictions on Use and Disclosure. A party shall not disclose the other party’s Confidential Information except (i) on a need-to-know basis, to its agents, employees and representatives who are bound by confidentiality restrictions at least as stringent as those stated in this Agreement; or (ii) as required by law, governmental regulation or requirement, court order, or subpoena, in which case and subject to applicable law, the non-disclosing party shall provide prompt notice to the disclosing party so that the disclosing party may seek a protective order or other appropriate remedy. A party shall not share, disclose, modify, or otherwise use in any way Confidential Information except as required to perform its obligations under this Agreement.
- Standard of Care. Each party shall use the same degree of care to protect the other party’s Confidential Information that it uses to protect its own confidential information from unauthorized disclosure, but in no event shall either party use less than a commercially reasonable degree of care. The non-disclosing party shall notify the disclosing party promptly upon its discovery of any unauthorized use or disclosure of Confidential Information by the non-disclosing party’s employees, representatives, or agents, and will use commercially reasonable efforts to cooperate with the disclosing party to regain possession of all Confidential Information and to prevent any further unauthorized use or disclosure. Each party is responsible for the breach of these confidentiality obligations caused by its employees, representatives, or agents.
20) Assignment; Resale; Binding Effect
Trapp may assign this Agreement at any time without the consent of Customer. Customer shall not assign this Agreement or resell the right to use the Services without Trapp’s prior written consent. This Agreement will be binding upon and inure to the benefit of all of each party’s successors and assigns, who will be bound by all of the obligations of their predecessors or assignors.
Trapp, at its sole discretion, may subcontract any portion of the Services to a third-party contractor, provided that Trapp will remain responsible for the Services pursuant to this Agreement.
22) Export Control
Customer shall comply with all applicable import, export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Customer represents and warrant that the Services will not be accessed, downloaded, used, exported or re-exported, directly or indirectly, to any location, entity, government or person prohibited by the applicable laws or regulations of any jurisdiction, including the U.S., without prior authorization from all relevant government authorities.
For purposes of this Agreement, “infrastructure” means the datacenters, security devices, cables, routers, switches, hosts, compute nodes, physical servers, and other equipment that we use to host virtual servers, and “virtual servers” or “cloud servers” means one of any number of isolated server emulations running on a single physical server located on the infrastructure.
24) No Waiver
No waiver of any provision of this Agreement will be effective unless in writing signed by the waiving party, and no delay or failure to exercise or enforce any right or remedy hereunder will constitute a waiver of that right or remedy. Express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance, or a waiver of any other right or remedy.
If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a any application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications
26) No Third-Party Beneficiaries
Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the Parties) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the Parties.
27) Entire Agreement
This Agreement (including without limitation all Order Forms between Trapp and Customer), in conjunction with all related policies and guidelines incorporated by reference, constitutes the entire agreement between you and Trapp with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.
The following terms and conditions apply only to Customer’s use of the Cloud Services under a relevant Order Form.
1) High Risk Use (Cloud Services)
Customer represents and warrants to Trapp that it will not use the Cloud Services for any application in which a failure of those Cloud Services could result in death, serious injury, environmental damage or property damage, including without limitation, in connection with medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. Customer acknowledges that Trapp make no assurances that the Cloud Services are suitable for any high-risk use.
2) IP Addresses (Cloud Services)
Any public or private IP address allocated for Customer to use as a part of the Cloud Services will remain allocated to Customer until (i) Customer releases the IP address using the Cloud Services portal; (ii) Customer’s Cloud Services are terminated for any reason; or (iii) Trapp decides to change any IP address, which Trapp may do at any time and in its sole discretion by providing Customer with five (5) days’ prior notice of the change in accordance with the notice provisions of this Agreement. Upon termination of this Agreement, Customer may no longer use any IP addresses or address blocks that Trapp provided for Customer’s use in connection with the Cloud Services.
3) Service Level Agreement (SLA) for Cloud Services
- Service Availability. Trapp will use commercially reasonable efforts to provide monthly availability of the Services of 99.99% (“Service Availability”). The Cloud Services will be “available” if available for access and use by Customer as set forth in the Agreement, the documentation, or any associated statements of work (if any). The Service Availability will be calculated as follows: total number of minutes that the Cloud Services are available in a calendar month DIVIDED BY the total number of minutes in that calendar month LESS Excluded Downtime (the “Uptime Percentage”).
- Service Credit. If the Uptime Percentage in any calendar month is less than 99.99%, Customer will be eligible for a service credit equal to 10% of your Cloud Services bill for the calendar month in which the Uptime Percentage drops below 99.99%.
- Excluded Downtime. The Cloud Services will not be deemed “unavailable” if such downtime is caused by one or more of the following: (i) maintenance, both scheduled and emergency (standard scheduled maintenance occurs every Tuesday from 8:00 p.m. to 5:00 a.m. Mountain Standard Time and on the third Saturday of each month from 8:00 p.m. to 5:00 a.m. Mountain Standard Time), a suspension, or termination of the Cloud Services; (ii) the failure of servers or services outside of a datacenter on which the Cloud Services are dependent, including, but not limited to, inaccessibility on the Internet that is not caused by our infrastructure or network providers; (iii) a force majeure event such as an act of God, act of war, act of terrorism, fire, governmental action, labor dispute, and any other circumstances or events not in our direct control; (iv) an attack on our infrastructure, including a denial of service attack or unauthorized access (i.e., hacking); (v) unavailability not reported by you in accordance with the reporting provisions below on or before the fifth (5th) day of the calendar month immediately following the calendar month in which the Uptime Percentage drops below 99.99%; (vi) your use of a separate Trapp service (other than Cloud Services) that is not subject to this SLA; (vii) unavailability that results from the failure of individual cloud servers and that is not attributable to an event causing unavailability to all clients using the Cloud Services; or (viii) unavailability that is caused by your breach of this Agreement (each, a “Downtime Exclusion”).
- Service Credit Procedures. Trapp will determine, in its reasonable discretion, Customer’s eligibility for service credits and the amount of service credits awarded pursuant to this SLA. To be eligible for service credits, Customer must send Trapp a reasonably detailed, written request for service credits on or before the fifth (5th) day of the calendar month immediately following the calendar month in which your Uptime Percentage drops below 99.99%. To be deemed valid, your request must include (i) the dates and times of each period of Cloud Service unavailability upon which your request is based; (ii) the instance names of the affected cloud servers; and (iii) a description of any events from the Cloud Services portal that may have indicated a system-wide unavailability during the stated dates and times. If your Uptime Percentage is confirmed by Trapp to be less than 99.99% for the calendar month in question, we will issue a service credit during the billing cycle following the month in which Trapp determines that Customer is eligible for a service credit. All service credits will be applied to fees due from you to us for Cloud Services; Trapp will not pay any service credit to Customer as a refund. If Customer fail to provide a valid request as set forth herein, Customer will not be eligible for a service credit. Trapp’s calculation of Uptime Percentage and all service credits will be based on Trapp’s records and data.
- Sole and Exclusive Remedy. THE SERVICE CREDITS DESCRIBED IN THIS SLA (SECTION 7) ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR THE UNAVAILABILITY OF A CLOUD SERVER AND THE CORRESPONDING CLOUD SERVICES.
The following terms and conditions apply only to Customer’s use of the VoIP Services under a relevant Order Form.
1) 911 Emergency Calling Service (VoIP Services)
- The Federal Communications Commission (FCC) requires that Trapp provide E911 Service to all customers, including Customer facilities that use Trapp VoIP services within the United States.
- Customer acknowledges that Trapp will not be liable for any service outage and/or inability to dial 911 or any other Emergency Service Operator due to the limitations set forth in this Agreement.
- Customer agrees to notify all users of the VoIP Services of the 911 limitations described herein.
- Customer acknowledges that the VoIP Services provided will not function in the absence of electrical power.
- Customer acknowledges that the services provided will not function if there is an interruption of Customer’s Internet access or IP network service.
- Customer acknowledges that any location information passed to an Emergency Operator by Trapp will be based upon the physical address provided by Customer to Trapp associated with the calling party.
- Customer is required to register the physical location of their equipment with Trapp, and
agrees to update this information with Trapp whenever the physical location of the equipment is to change.
- Customer acknowledges that the service provided, including E911 service, will not function if Customer’s Local Area Network (LAN) fails, or is not configured correctly.
- Customer acknowledges that the service provided, including E911 service, will not function if Customer’s Phones, Analog Adapters, or Integrated Access Devices are not working, or are not configured correctly.
2) Call Recording (VoIP Services)
Customer agrees that it is their sole responsibility to understand and obey all applicable laws and regulations when using the DOTVOX Call Recording service provided by Trapp; ii) Customer agrees to use the Call Recording services only for lawful purposes, and shall not transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law; iii) Customer agrees that Trapp has no liability whatsoever, whether for direct, indirect, or other damages, based upon or arising out of Customers use of the Call Recording service; and iv) Trapp reserves the right to immediately and without notice suspend or terminate your service and discard any of your content stored within the service in the event it determines that you have violated any such law or regulation, or any term or condition of this Agreement.
3) Fraudulent Calls (VoIP Services)
Customer shall indemnify and hold Trapp harmless from any and all costs, expenses, damages, claims or actions arising from fraudulent calls of any nature. Customer shall not be excused from paying Trapp for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a portion of the Services provided to Customer. In the event that Trapp discovers fraudulent calls being made (or reasonably believes fraudulent calls are being made), nothing contained herein shall prohibit Trapp from taking immediate action (without notice to Customer) that is reasonably necessary to prevent such fraudulent calling activity from occurring, including without limitation, denying Services to particular phone numbers or terminating Services to or from specific locations.