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Service Agreement - Uptime Cloud Monitor (Formerly CopperEgg)

PLEASE READ CAREFULLY: THIS ANALYTICS SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“CUSTOMER”), AND COPPEREGG CORPORATION (“COPPEREGG”). PROVISION OF AND ACCESS TO THE SERVICE (DEFINED BELOW), IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

BY CLICKING “I AGREE” BELOW, COMPLETING YOUR REGISTRATION, OR OTHERWISE SIGNIFYING ACCEPTANCE OF THIS AGREEMENT, CUSTOMER AGREES TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT.

1. BACKGROUND

Customer desires to obtain and CopperEgg desires to provide Customer with access to CopperEgg’s analytics service, as updated from time to time as determined by CopperEgg, via the Internet at the website address www.copperegg.com (“Site”) (collectively, the “Service”).

2. SERVICES

2.1. Provision of Service. Subject to the terms and conditions of this Agreement, including without limitation Customer’s payment of all of the fees due hereunder, CopperEgg will provide Customer with access to the Service during the term of this Agreement. Customer may use the Service solely for its intended purpose in accordance with this Agreement.

2.2. Authorized User Accounts. Customer may establish accounts (“Accounts”) for Customer’s employees or independent contractors to use the Service on behalf of Customer (“Authorized Users”). Authorized Users shall agree to all terms of use presented at login (the “Terms of Use”) prior to any use of the Service, and shall at all times abide by the terms set forth therein. Customer and Authorized Users shall immediately notify CopperEgg in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement or the Terms of Use. Customer shall be liable for any breach of the Terms of Use or this Agreement by an Authorized User and Customer hereby agrees to indemnify and defend CopperEgg against and hold CopperEgg harmless from any and all claims, liabilities or damages resulting from such breaches.

2.3. Account Protection. Customer and all Authorized Users shall protect the confidentiality of all Account information, including user names and passwords. In the event that an Authorized User becomes aware that the security of such party’s login information has been breached, the party shall immediately notify Customer and Customer shall immediately de-activate such Account or change the Account’s login information.

2.4. Customer Assistance and Materials. Customer shall provide CopperEgg with all information, assistance and materials as reasonably required for CopperEgg to activate and operate the Service for Customer pursuant to this Agreement. Customer grants and agrees to grant to CopperEgg a non-exclusive license to use, reproduce, display, process and distribute such information and materials in connection with the provision of the Service to Customer. Customer shall indemnify and defend CopperEgg against and hold CopperEgg harmless from any and all third party claims, liabilities or damages resulting from CopperEgg’s use of such information and materials pursuant to the terms of this Agreement.

2.5. Technical Contact. Customer shall designate one technical contact as the responsible party for communication with CopperEgg during provision of the Service. Customer may change such contact by providing written notice to CopperEgg.

2.6. Infrastructure. CopperEgg may host the Service using its own infrastructure or it may engage a third party to host the Service on its behalf. In either case, CopperEgg will use commercially reasonable efforts to make the Service reasonably available for use by Customer through the use of redundant systems, power backups and redundant Internet connections.

2.7. Support and Maintenance. During the Term (as defined below), CopperEgg will provide Customer with a reasonable amount of maintenance and technical support regarding use of the Service during regular business hours. Updates to the Service will be provided in CopperEgg’s discretion at no charge to Customer. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by CopperEgg. CopperEgg shall publish or otherwise notify Customer of such regularly scheduled maintenance window in advance if the Service will be unavailable during such regularly scheduled maintenance window. During such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure. CopperEgg will use commercially reasonable efforts to promptly remedy any system failure and restore the Service.

2.8. Restrictions. Customer shall not, and shall not permit any Authorized User or any other third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service; (iii) use the Service in violation of the Terms of Use; (iv) use the service to violate any law or regulation, (v) use the Service in a service bureau or any other manner to provide services for a third party or (vi) impersonate another person or provide false identity information to gain access to or use the Service, or create multiple accounts under different aliases. Neither Customer nor an Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service. Except for the express rights granted herein, CopperEgg does not grant any other licenses, whether express or implied, to any CopperEgg software, services, or intellectual property.

2.9. Software License. It may be necessary for Customer to download certain software in order to receive the Service. The download, installation and use of any such software shall be subject to the terms and conditions, as provided by CopperEgg in connection with the provision of such software.

2.10. Free Service. CopperEgg may offer parts of its services at no cost (a “Free Service”) at the sole discretion of CopperEgg. CopperEgg reserves the right to impose any and all limitations and restrictions as CopperEgg deems necessary, in its absolute and sole discretion, concerning the use of, and access to, any Free Service. CopperEgg further reserves the right to terminate any user’s right to use or access any part of the Free Service at any time, with or without notice. If a Free Service Account is inactive for ninety (90) days, then CopperEgg may delete the Account and associated data without providing additional notice. Customer acknowledges and agrees that all Free Service is provided “AS-IS” and without any warranties and may contain errors or defects. Free Services are not subject to any maintenance or technical support provided by CopperEgg in connection with its standard products and services. Customer hereby assumes all risk associated with using the Free Services.

3. FEES AND PAYMENT

3.1. Fees. Customer shall pay CopperEgg for use of the Service in accordance with the CopperEgg’s then-current published rates and billing terms. All fees are due and payable in U.S. dollars via online payment in accordance with the schedule indicated at registration or as subsequently agreed. CopperEgg may debit such payment method in accordance with such schedule. Fees and charges for all services that are billed based upon actual usage, including, all on-demand usage, shall be billed by CopperEgg and payable by Customer in arrears on the first day of the month following the month of actual usage. Fees and charges for all services that are billed based upon reserved or anticipated usage, including, all reserved capacity service, shall be billed by CopperEgg and payable by Customer in advance on the first day of the month for which such reserved capacity or anticipated usage is made available by CopperEgg for use by Customer. All monthly plan fees shall be billed by CopperEgg and payable by Customer in advance on the first day of the month to which such monthly plan fee relates. Customer may, for its convenience, elect to pre-pay any fees or other charges under this Agreement before such fees or charges become due hereunder (such payments, a “Pre-Paid Amount”). Customer acknowledges and agrees that CopperEgg’s acceptance of any Pre-Paid Amount does not guarantee any future pricing or discounts and CopperEgg hereby reserves the right modify or increase pricing and to otherwise modify the Service. Upon termination of this Agreement or termination of the Service for any reason, Customer shall not be entitled to, nor shall CopperEgg have any obligation to, refund or credit to Customer any amounts paid hereunder, including any Pre-Paid Amounts, in respect of any reserved capacity service or monthly plan fee for the month in which such termination occurred. All other Pre-Paid Amounts in respect of any months occurring after the month in which such termination occurred shall be refunded to Customer after deducting any amounts owing by Customer hereunder through such date of termination. CopperEgg reserves the right modify the foregoing billing and payment terms, from time to time, by notifying customer of such modifications or otherwise publishing such modifications on the Site.

3.2. Taxes. All fees are exclusive of applicable sales, excise, use or similar taxes, which shall be the sole responsibility of Customer. Customer shall pay all such taxes either directly or to CopperEgg, as required by applicable law or regulation.

3.3. Late Payments. Should Customer not pay amounts when due (e.g. because the payment method is no longer valid), CopperEgg may (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service.

4. PROPRIETARY RIGHTS

4.1. Service Ownership. CopperEgg shall own all right, title, and interest in and to Service, including all modifications, improvements, enhancements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Customer agrees to assign all right, title, and interest it may have in the foregoing to CopperEgg.

4.2. Data Ownership. CopperEgg shall own all right, title, and interest in and to any statistical, non-identifiable data that is collected by CopperEgg from Customer in connection with Customer’s use of the Service, including without limitation (i) information collected during network packet sniffing and inspection, (ii) information collected with NMP, CDP, SMI-S, DNS and other network protocols, (iii) statistics from resident operating systems and modules, (iv) information and statistics obtained via the use of publicly available or vendor APIs or SDKS, and (v) information obtained via crawling (collectively, “Data”).

4.3. Confidentiality. Customer acknowledges that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by CopperEgg (“CopperEgg Confidential Information”) constitutes valuable proprietary information and trade secrets of CopperEgg. CopperEgg acknowledges that the data provided to CopperEgg by Customer (“Customer Confidential Information”) constitutes valuable proprietary information and trade secrets of Customer. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.

5. LIMITATIONS OF LIABILITY

5.1. WARRANTY DISCLAIMER. COPPEREGG DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICE OR ANY SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. CUSTOMER UNDERSTANDS THAT NEITHER COPPEREGG NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF THE SERVICE.

5.2. LIMITATIONS OF LIABILITY. EXCEPT FOR CLAIMS ARISING PURSUANT TO CUSTOMER’S OBLIGATIONS TO INDEMNIFY COPPEREGG UNDER THIS AGREEMENT AND LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 4.3 (CONFIDENTIALITY), (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, OR LOST OF INFORMATION, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING; AND (B) IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF COPPEREGG FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT.

5.3. Allocation of Risk. The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy. Customer and CopperEgg each acknowledge and agree that the limitation of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Customer’s use of the Service and, but for this provision, CopperEgg would not have made the Service available to Customer at the prices contemplated under this Agreement.

5.4. Customer Indemnity. Customer shall indemnify, defend, and hold harmless CopperEgg, its subsidiaries, parent company, and affiliates and their respective directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Service by Customer or any Authorized User, (b) use of the Service by Customer or any Authorized User in violation of the Terms of Use or this Agreement, (c) any breach by Customer or its Authorized Users or any term or condition of this Agreement or any other agreement between Customer and CopperEgg, including the Terms of Use or (d) any activities of Customer or an Authorized User through the use the Site.

6. TERM

6.1. Term. This Agreement will commence on the Effective Date and will continue for the period indicated at registration (the “Term”); provided, that if no period is indicated at registration then the “Term” shall be one (1) month. After the initial term, the Agreement will automatically renew for consecutive periods, each having the same duration as the initial Term and each such renewal shall be based on CopperEgg’s then current rate and billing terms unless (i) Customer notifies CopperEgg in writing at least thirty (30) days prior to the end of the current Term of its election not to renew or (ii) CopperEgg notifies Customer prior to the end of the current Term of its election not to renew.

6.2. Termination. In the event that either party is in material breach of this Agreement, and the breaching party does not cure such breach within ten (10) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement by sending written notice to the breaching party. In addition, CopperEgg may terminate this Agreement for any reason upon thirty (30) days notice to Customer.

6.3. Effect of Termination. Upon termination of this Agreement, Customer and any Authorized Users must immediately stop using the Service, return or destroy all documentation, certify such return or destruction in writing and, except as expressly provided in Section 3.1 above, CopperEgg shall have no obligation to refund any pre-paid amounts. Upon termination of this Agreement, Sections 3, 4, 5, 6.3, and 7 shall survive and remain in effect.

7. GENERAL

7.1. Publicity. Customer agrees that CopperEgg may include the name, logo, and success stories of Customer or Authorized Users on CopperEgg’s website, press releases, promotional and sales literature, and advertising materials.

7.2. Independent Contractor. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.

7.3. Export. Customer agrees not to export or re-export any software included within the Service, either directly or indirectly, without both parties’ written consent and any required license from the appropriate governmental agency.

7.4. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.

7.5. Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection shall be void.

7.6. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Texas, U.S.A. (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in Austin, Texas, United States and the parties agree to submit to the exclusive personal jurisdiction of such courts. If Customer’s primary residence or principal office is located outside of the United States, and except for any claims for temporary or permanent injunctive relief, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”) in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The appointing authority shall be the American Arbitration Association. The place of arbitration shall be Austin, Texas, U.S.A. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction.

7.7. Foreign Corrupt Practice Act. In conformity with the United States Foreign Corrupt Practice Act and with CopperEgg’s established corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; nor offer a gift, promise to give, or authorize the giving of anything for value for the purpose of influencing any act or decision of an official of any government or the United States Government (including a decision not to act) or inducing such an official to use his or her influence to affect any such governmental act or decision in order to assist CopperEgg or Customer in obtaining, restraining, or directing any business.

7.8. Miscellaneous. This Agreement, including any exhibits attached hereto or forms completed with registration, together constitute the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. Any amendments to this Agreement shall only be valid if in accepted by the parties in writing or by a subsequent click to accept or similar mechanism. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. Nothing contained in any purchase order or other document shall in any way modify this Agreement or add any additional terms or conditions. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.