MASTER SERVICES AGREEMENT
PLEASE READ CAREFULLY: THIS MASTER SERVICES AGREEMENT is between UCclouds, LLC, ("UCclouds") and the individual or entity ("Customer") for certain computer infrastructure and related services provided by UCclouds as ordered or accepted pursuant to the Terms of Service ("Services"). The Customer's use of and access to Services is governed by the Master Services Agreement which includes the Terms of Services, Service Level Agreement, Privacy Agreement, IP Address Policy, UCclouds Acceptable Use Policy and relevant appendices (which may include without limitation the international-related addenda that is attached below) ("MSA"). BY CLICKING OR CHECKING THE BOX PRESENTED WITH THE MSA OR INSTALLING OR USING THE SERVICES, THE CUSTOMER AGREES THAT (1) CUSTOMER HAS ACCEPTED THE MSA IN ITS ENTIRETY, (2) AGREES TO BE BOUND BY THE MSA (AS AMENDED FROM TIME TO TIME AS PROVIDED IN SECTION 19.1 OF THE TERMS OF SERVICE ), (3) IF THE CUSTOMER IS AN INDIVIDUAL, THEN THE INDIVIDUAL REPRESENTS AND WARRANTS THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THE MSA AND IF THE CUSTOMER IS AN ENTITY, THEN THE INDIVIDUAL WHO AGREES TO THE MSA REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND (4) THIS MSA CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN UCCLOUDS AND CUSTOMER. IF THE CUSTOMER DOES NOT AGREE WITH ALL THE TERMS OF THIS MSA AND DOES NOT AGREE TO BE BOUND BY THIS MSA, PLEASE DO NOT CLICK OR CHECK THE BOX PRESENTED WITH THE MSA OR INSTALL OR USE THE SERVICES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UCCLOUDS AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THEY ARE ALREADY BOUND TO THE TERMS AND CONDITIONS OF THIS MSA; MANUALLY EXECUTING THIS MSA IS FOR RECORD KEEPING PURPOSES ONLY; AND MANUALLY EXECUTING THIS MSA DOES NOT AMEND OR SUPERSEDE ANY OF THE EXISTING TERMS AND CONDITIONS OF THIS MSA:
Terms of Service ("TOS")
"Account Information" means billing information, contact information, payment information and such other information defined as "Account Information" in the
"Affiliate" means any legal entity that a party controls, that controls a party, or that is under common control with a party. For purposes of this definition, "control" shall mean beneficial ownership of the securities entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, of the election of the corresponding management authority) in the entity of (i) more than fifty percent (50%) of the securities or (ii) such lesser percentage of securities as is the maximum ownership permitted in the country where the entity exists.
"Anniversary Billing Date" means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is May 20,
2012, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month (i.e. if the Anniversary Billing Date is the 30th, then in February, the Anniversary Billing Date shall be either February 28 or 29, depending on the year).
"AUP" means the Acceptable Use Policy which is located at www.UCclouds.comlaboutllegal (or such other location as UCclouds may designate from time to time).
"Customer" means the individual or entity who agrees to the terms of the MSA by clicking or checking the box presented with the MSA, installing and/or using the
"Customer Content" means all data, software and information, including, without limitation, data text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Affiliates.
"Customer End User" means a Third Party or its Affiliate which is an end user of a Customer Offering.
"Customer Offering" means services created by Customer based in whole or in part on the Services which are used by authorized Third Parties.
"Client Portal" means the portal at https://manage.UCclouds.com (or such other location as UCclouds may designate from time to time) or the UCclouds
Application Programming Interface.
"Effective Date" means the date on which the Customer accepts the MSA by clicking or checking the box presented with the MSA, installing and/or using the
"Feedback" means any and all suggestions, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to UCclouds either directly or indirectly via a UCclouds-controlled web site.
"Flow-Through Provisions" mean the terms of agreements for services provided by Third Parties which are included in the MSA as required by providers of Third Party Services. The Flow-Through Provisions apply only to the relevant services provided by Third Parties. Such services provided by Third Parties are part of the Services and are subject to the terms of the MSA as well as the Flow-Through Provisions.
"Hourly Services" means the Services that UCclouds offers on an hourly basis.
"Initial Term" means the period commencing on the Effective Date until the next Anniversary Billing Date, unless terminated as provided in Section 16.
"IP Address Policy" means the policy governing the use and provision of any IP Addresses which is located at www.UCclouds.comlaboutllegal (or such other location as UCclouds may designate from time to time).
"MSA" has the meaning set forth in the recitals.
"Order" means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the Client Portal or such other method designated by UCclouds from time to time. Orders do not apply to Third Party Services.
"PII" means information that can be used to identify, contact, or locate a single person or that can be used with other sources to uniquely identify a single individual.
"Privacy Agreement" means the terms governing the use of PII which is located at www.UCclouds.com/privacy (or such other location as UCclouds may designate from time to time).
"Private Network" means the term as described in the AUP.
"Public Network" means the term as described in the AUP.
"Renewal Term" means the period commencing after the last day of the Initial Term or the Renewal Term and extending until the next Anniversary Billing Date unless terminated as provided in Section 16.
"Services" has the meaning set forth in the recitals.
"Service Level Agreement" means the Service Level Agreement which is located at www.UCclouds.com/sla (or such other location as UCclouds may designate from time to time).
"Site" means www.UCclouds.com (or such other location as UCclouds may designate from time to time).
"SLA Credits" mean the credits for applicable qualifying service downtime as described in the Service Level Agreement.
"UCclouds" has the meaning set forth in the recitals.
"Term" means the term as set forth in Section 16.
"Third Party" means an individual or an entity which is not a Customer, UCclouds, or an Affiliate of UCclouds.
"Third Party Services" mean services which are provided by Third Parties directly to Customer. The definition of Services does not include Third Party Services.
"TOS" means the terms of service for the Services.
"TPS Agreements" mean agreements for Third Party Services which are directly between the Customer and the provider of the Third Party Services. These agreements are separate and independent from the MSA and UCclouds is not a party to these agreements.
2. UCCLOUDS' OBLIGATIONS.
2.1 Provision of Services. Contingent on UCclouds acceptance of an Order and subject to the terms of the MSA, UCclouds agrees to use reasonable efforts to provide the Services subject to the terms of Service Level Agreements. UCclouds retains the right to reject the request for Services by any individual or entity in its sole discretion. UCclouds may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the Client Portal. It is the Customer's responsibility to review the Client Portal for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and UCclouds is not responsible for the provision of Third Party Services.
2.2 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to order Services. If Customer is ordering Services on behalf of an employer, company, or other legal entity, Customer represents and warrants that it has the legal right and authority to order Services and be bound to this MSA.
3.1 Collection of PII. The collection and use of PII is governed by the Privacy Agreement.
4. USE OF AND ACCESS TO THE SERVICES.
4.1 Ordering and Modification of Services. Customer may order Services and all upgrades to such Services through the Client Portal or as otherwise designated by UCclouds. UCclouds may accept such Orders in its sole discretion and shall give notice to Customer of acceptance of such Order through the Client Portal. For downgrades or cancellation of Services, UCclouds requires a written cancellation notice by cancellation ticket in accordance with the procedures in the Client Portal and through the Client Portal a minimum of 24 hours prior to 00:00:01 CST (GMT-6) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required 24 hours written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 24 hour period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
UCclouds.com services may be cancelled using the following method:
Make sure you select the Service that you want to cancel.
Log into the Client Portal at https://manage.ucclouds.com.
Click "My Services" from the "Services" tab.
Locate the Service you wish to cancel from the Product and Services list.
Select the "arrow" next to the "View Details" button on the right side of the Product and Services page.
Click the "Cancellation" button and complete the request.
Click Submit to send the Cancellation request to Customer Support.
For security reasons, we will not cancel your UCclouds.com product/services via email, ticket, chat or telephone. Cancellation will ONLY be processed through the cancellation method only. If not properly cancelled, invoicing will continued until properly cancelled. To verify your identity, you must complete your request using the Cancellation option service from within the Client Portal. It is important you do not send any other sensitive information via email.
4.2 Rights to Use Services. Subject to the terms and conditions of this MSA (including the Term), UCclouds grants Customer a non-exclusive, non-transferable, non-sublicenseable (except to the extent required to exercise rights under Section 4.2(b)), revocable right in the Services solely to: (a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide the Customer Offerings.
4.4 Special Terms for Third Party Services. To the extent Customer orders Third Party Services under TPS Agreements, UCclouds is not responsible for such Third Party Services and the provider of the Third Party Service is solely responsible for providing such Third Party Services. However, the Customer also agrees that the following terms of the TOS apply to such Third Party Services: Sections 8, 9, 10, 11, 15 and 16.
5.1 Fees. All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of SLA Credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one-time pro-rata charge on the next Anniversary Billing Date. Such fees will be due for the following Renewal Terms until cancelled as provided in Section 4.1.
5.2 Additional Service Fees/Hourly Service Fees/One Time Fees. For fees for additional services such as bandwidth use overages, backup overages and VMware use (including archive storage), payment shall be due on the next Anniversary Billing Date. For Orders for Hourly Services, Customer shall specify the period of time for which the Hourly Services are requested in minimum increments of one hour and payment shall be due on the next Anniversary Billing Date. One time fees, such as setup fees, bandwidth, storage, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by UCclouds through the Client Portal.
5.3 Payment Methods. The payment shall be made by the credit card maintained on file with UCclouds, automatic file transfer or such other method as approved by UCclouds. For methods such as credit card, the payment of fees shall be automatic on the due date.
5.4 Taxes. All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Any sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party's taxes based on income. If withholding tax applies to any payments for Services made under this MSA, the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide UCclouds with an official receipt for any such taxes withheld and must notify UCclouds prior to payment that withholding tax is required to be paid and Customer shall pay to UCclouds any additional amount to ensure that UCclouds receives the full amount of the invoice. If UCclouds has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides UCclouds with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
5.5 SLA Credits. SLA Credits, if issued to Customer's account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the MSA.
5.6 Additional Fees. The Customer's failure to pay any fees on the due date shall result in incurring a late fee of $20. If UCclouds has suspended the Customer's access to the Services over the Public Network as provided in Section 15, the Customer shall incur a $50 reconnection fee. Such fees shall be due upon receipt, and UCclouds will not reconnect any Services to the Customer until full payment of such fees.
5.7 Refunds & Disputes. All fees paid for Services to UCclouds are non-refundable. If the Customer believes that the bills are in error, the Customer's sole and exclusive remedy is to seek SLA credits through the Client Portal by opening an accounting ticket to give notice to UCclouds within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with Section 5.7 within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to UCclouds and any such chargeback will result in an additional payment to UCclouds of up to $500 which is a reasonable estimate of UCclouds additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys' fees, court costs and collection agency fees) incurred by UCclouds in enforcing collection of fees.
6. OWNERSHIP OF SITE.
Customer hereby acknowledges and agrees that UCclouds (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by UCclouds, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and UCclouds, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by UCclouds or its licensors.
UCclouds agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup of the Customer Content. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
8. INDEMNIFICATION BY CUSTOMER.
Customer hereby agrees to indemnify, defend and hold harmless UCclouds and its Affiliates, licensors and providers of Third Party Services, and their respective directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the "UCclouds Parties") (UCclouds and each of the UCclouds Parties an "Indemnified Party"), from and against any and all liability (including, without limitation, attorneys' fees and costs) incurred by the Indemnified Parties in connection with any actual or alleged claim ("Claim") arising out of: (a) Customer's use of the Services or Third Party Services; (b) any breach or alleged breach by Customer of this MSA; (c) any breach or alleged breach by Customer including any person given access or Customer End Users of a Third Party's rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party's copyright, trade secret, patent, trademark, privacy, publication or other proprietary right; (d) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Site or Services; or (e) any actual or alleged violation or non-compliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction. The counsel which Customer selects for the defense or settlement of a Claim must be approved in writing in advance by UCclouds prior to such counsel being engaged to represent the Indemnified Parties. Customer shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of UCclouds or any UCclouds Parties without the prior written consent of UCclouds and/or applicable UCclouds Parties. Customer and Customer's counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the UCclouds or the UCclouds Parties in the defense or settlement of any such matter.
9. DISCLAIMER OF WARRANTIES.
EXCEPT AS REQUIRED BY LAW CUSTOMER'S USE OF THE SITE AND SERVICES IS ENTIRELY AT CUSTOMER'S OWN DISCRETION AND RISK. THE SITE AND SERVICES ARE FURNISHED BY UCCLOUDS "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. UCCLOUDS; (A) EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS AND CUSTOMER END USERS' USE OF THE SERVICES.
10. DISCLAIMER OF CONSEQUENTIAL DAMAGES.
EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL UCCLOUDS BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF, OR DAMAGE TO, DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF UCCLOUDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. LIMITATION OF LIABILITY.
EXCEPT AS REQUIRED BY LAW UCCLOUDS WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICES. IF, NOTWITHSTANDING THE FOREGOING, UCCLOUDS IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THE SERVICES, UCCLOUDS'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO UCCLOUDS'S LIABILITY.
12. ALLOCATION OF LIABILITY.
THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE MSA AND IN THE OTHER PROVISIONS OF THIS MSA AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH UCCLOUDS WOULD NOT HAVE ENTERED INTO THIS MSA. UCCLOUDS'S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
13. DISPUTE RESOLUTION.
Notwithstanding the provisions for non-payment by Customer, each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this MSA. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this MSA. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring legal action, regardless of form, arising out of or related to this MSA or any transaction under it more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of this Agreement or any transaction under it and all respective rights related to any such action lapse. Notwithstanding the provisions of this Section 13, Customer acknowledges that Customer's breach of Sections 4.2, 4.3 or violation of any terms and conditions of the AUP would cause irreparable injury to UCclouds and agrees that in the event of any such breach, UCclouds shall be entitled to seek temporary and preliminary injunctive relief without the necessity of proving actual damages or posting any bond or other security.
Customer hereby grants to UCclouds a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Customer's trademarks, marks, logos or trade names in connection with UCclouds provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by UCclouds or its designees. The license granted in this Section 14 will include the right of UCclouds to sublicense its Affiliates and any Third Parties providing all or part of the Services on behalf of UCclouds to achieve the foregoing.
15.1 Suspension. UCclouds may suspend provision of Services to Customer without liability if: (i) UCclouds reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (ii) Customer does not cooperate with UCclouds investigation of any suspected violation of the MSA or any applicable law, court order, rule or regulation in any jurisdiction; (iii) UCclouds reasonably believes that Services provided to Customer have been accessed or manipulated by a Third Party without Customer's consent or in violation of the MSA; (iv) UCclouds reasonably believes that suspension of the Services is necessary to protect UCclouds network or other UCclouds customers; (v) a payment for the Services is overdue by more than 5 days including the Anniversary Billing Date (and in addition, UCclouds may, in UCclouds sole discretion, continue to make the Services available through the Public Network and may suspend such access to the Private Network if the fees are not paid within 7 days of the due date); (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of any other UCclouds customer, (vii) UCclouds reasonably believes that the use of the Services by Customer may subject UCclouds, its Affiliates, or any Third Party to liability; or (viii) suspension is required by law, statute, regulation, rule or court order. UCclouds will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless UCclouds determines, in UCclouds reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect UCclouds or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. A violation of the Flow-Through Provision shall be treated the same as a violation of the MSA for this provision. If UCclouds suspends the Customer's right to access or use any portion or all of the Service:
a. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;
b. Customer remains responsible for any applicable fees and charges for any Services to which Customer has continued to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
c. Customer will not be entitled to any SLA Credits under the Service Level Agreement for any period of suspension;
d. and at UCclouds sole discretion, UCclouds may terminate Customer's access to Customer Content stored in the Services during a suspension, and UCclouds shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
16.1 Term. Except in the case of Hourly Services which are provided based on the number of hours in the Order or as otherwise agreed to by the parties in writing, the term shall commence on the Effective Date and is automatically renewed each Anniversary Billing Date until terminated as provided below.
16.2 Termination for Convenience. Customer may terminate the MSA for convenience at any time as provided in Section 4.1 through the Client Portal. If Customer terminates this MSA for convenience, Customer shall pay UCclouds all amounts that would be due within 5 days after such termination. UCclouds may terminate the MSA for convenience upon providing Customer with notice of non-renewal at least 10 days prior to the expiration of the Initial Term or any Renewal Term.
16.3 Termination for Breach. UCclouds may terminate the MSA immediately upon notice provided through the Client Portal if: (i) UCclouds discovers that the information Customer provided to UCclouds about Customer's proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the MSA, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the MSA, install or accept Services on behalf of the person represented to be the Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 5 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this MSA and fails to remedy any violation within 5 days of UCclouds written notice; (v) Customer or Customer End User violates the AUP; (vi) Customer's account has been suspended for 30 days or more; (vii) Customer has multiple violations of the MSA; or (viii) Customer fails to comply with any other provision of this MSA and does not remedy the failure within 30 days of UCclouds notice to Customer describing the failure. UCclouds will give Customer written notice of termination under this paragraph unless UCclouds determines, in UCclouds reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect UCclouds or its other customers from operational, security, or other risks. A breach of the Flow-Through Provision shall be deemed to be a breach of the MSA.
16.4 Access to Customer Content. The deletion of Customer Content is automatic upon termination or expiration of the MSA. Consequently, unless UCclouds determines otherwise, Customer will not have access to Customer Content, and UCclouds may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this MSA.
16.5 Effect of Termination. Upon expiration or termination of the MSA, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by UCclouds and any other materials provided to Customer by UCclouds in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. UCclouds will have no obligation to provide any transition services or access to data except as expressly stated in Section 16.4 above.
17. U.S. GOVERNMENT CUSTOMERS AND U.S. GOVERNMENT RIGHTS.
UCclouds provides the Services for ultimate federal government end use solely in accordance with the following license rights to use, modify, reproduce, release, perform, display, or disclose: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this MSA. This customary commercial license is provided in accordance with the Federal Acquisition Regulation ("FAR") at 48 C.F.R. 12.211 (Technical Data) and FAR 12.212 (Software) for civilian agencies of the federal government, and, for Department of Defense transactions, the Defense Federal Acquisition Regulation Supplement ("DFARS") at 48 C.F.R. 252.227-7015 (Technical Data - Commercial Items), 48 C.F.R. 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). This U.S. Government Rights clause, consistent with 48 C.F.R. 12.211, 48 C.F.R. 27.212 (federal civilian agencies) or 48 C.F.R. 227.7202-4 (DoD agencies) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in computer software, computer software documentation or technical data related to the UCclouds Commercial Computer Software and Commercial Computer Software Documentation licensed under this MSA or in any contract or subcontract under which this UCclouds Commercial Computer Software and Commercial Computer Software Documentation is acquired or licensed. If a government agency has a need for rights not conveyed under these terms, it must negotiate with UCclouds to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in writing and agreed to by UCclouds in any applicable contract or agreement
18. THIRD PARTIES.
Unless otherwise agreed in writing, UCclouds will provide support only to Customer, not to Customer End User, Customer Affiliate, Third Party or Third Party Affiliate to whom Customer provides access to use the Services or the Customer Offering. There are no Third Party beneficiaries to the Agreement, meaning that Third Parties do not have any rights against either UCclouds or Customer under the MSA.
19.1 Changes to the MSA. As noted in the recitals, UCclouds may modify the terms and conditions of this MSA as provided below. UCclouds will notify its Customers through the Client Portal of any such modifications and all modifications shall be effective upon their posting on the Client Portal. It is the Customer's responsibility to review the Client Portal for such modifications on a frequent basis If Customer continues to use the Services following any such modification such use will be deemed acceptance of such modification by Customer. Any modifications requested by Customer to any of the terms of the MSA must be approved in writing by UCclouds.
19.2 Certain Employment Issues. If Customer's employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against UCclouds under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify UCclouds from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with UCclouds standard generally-applicable policy.
19.3 Notices. Customer communications regarding the Services should be sent through the Client Portal except for the following types of notices: for breach, indemnification, or other non-routine legal matters, Customer should send it by electronic mail and first-class United States mail to:
ATTN: Legal Department
Grayson Hwy, Suite 8174
Atlanta GA 30017
Phone: 1 (678) 678-701-5677
UCclouds communications regarding the Services and legal notices will be sent through the Client Portal. Notices are deemed received as of the time delivered. Notices must be given in the English language.
19.4 Export Matters. If Customer chooses to use these Services, Customer does so on its own initiative and is responsible for compliance with applicable laws. Customer agrees to comply with all restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer's and Customer End Users' use of these Services and to not, in violation of any laws, transfer, or authorize the transfer, of any Services (a) into or for the benefit of an entity located in any U.S. and/or U.N. embargoed countries or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. By using these Services, Customer represents and warrants that Customer and Customer End Users are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer and Customer End Users may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations. Customer assumes responsibility for compliance with laws and regulations applicable to export, re-export or import of products, technology or technical data provided hereunder and for obtaining required export and import authorizations. Customer and Customer End Users will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations ("ITAR Data") or other applicable laws unless UCclouds has agreed to the transfer and (i) Customer has provided UCclouds not less than 10 days' prior written notice that ITAR Data will be transferred to or through the Services, (ii) Customer and/or Customer End User has received prior written authorization from the U.S. Government to transfer the ITAR Data to UCclouds, and (iii) Customer agrees to provide UCclouds with all necessary assistance to enable UCclouds to obtain such U.S. Government permission. Customer is responsible, and will reimburse UCclouds, for all costs, expenses or damages incurred by UCclouds in connection with Customer and Customer End User transfer of ITAR Data.
19.5 Assignment/Subcontractors. Customer may not assign the MSA or Customer rights and/or delegate Customer obligations under the MSA without UCclouds prior written consent. Any assignment or transfer of the MSA by Customer in violation of this section will be void. UCclouds may assign the MSA to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of UCclouds to such entity and such entity agrees in writing to be bound by the terms of the MSA. This MSA will be binding on and inure to the benefit of Customer's and UCclouds respective permitted successors and permitted assigns. However, UCclouds may use Third Parties or Affiliates to provide all or part of the Services. This provision does not apply to the Third Party Services which are governed by separate agreements.
19.6 Force Majeure. Except for its rights in Sections 15 or 16, neither UCclouds nor Customer will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond either party's control, such as significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry; provided however if the force majeure event continues beyond thirty (30) days, the performing party may terminate the MSA.
19.7 Feedback. UCclouds shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to UCclouds all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide UCclouds with any assistance UCclouds may require to document, perfect, and maintain UCclouds rights in the Feedback.
19.8 Governing Law, Lawsuits. The MSA is governed by the laws of the State of Georgia exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The application to the MSA of the United Nations Convention on the International Sale of Goods is excluded in its entirety. The exclusive venue for all disputes arising out of the MSA shall be in the state courts in Fulton County, Georgia or federal district court for the northern district of Georgia, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
19.9 Relationship of the Parties. The parties' relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a Third Party.
19.10 No Waiver. UCclouds failure to exercise or delay in exercising any of its rights under this MSA will not constitute a waiver, forfeiture, or modification of such rights. UCclouds waiver of any right under this MSA will not constitute a waiver of any other right under this Agreement or of the same right on another occasion UCclouds waiver of any right under this MSA must be in writing.
19.11 Survival. All provisions that by their nature are intended to survive expiration or termination of the MSA shall survive expiration or termination of the MSA.
19.12 Integration. This MSA is the complete and exclusive agreement between Customer and UCclouds regarding its subject matter and supersedes and replaces any agreement (including without limitation any computer infrastructure hosting and related agreements between Customer and The Planet.com Internet Services, Inc.), understanding, or communication, whether written or oral, prior or contemporaneous.
19.13 Severability. If any part of this MSA is found unenforceable by a court or other tribunal, the rest of the MSA will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this MSA.
19.14 Language. The official language of the MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.
Service Level Agreement ("SLA")
The SLA is incorporated into the MSA and applicable to all Services delivered to Customers. This SLA does not apply to the availability of Third Party Services which are subject to the TPS Agreements. The SLA is binding only on the Customer and UCclouds and does apply to any Third Parties, including Customer End Users. The issuance of SLA Credits (defined below) is the sole and exclusive remedy of Customer and UCclouds sole and exclusive obligation, for any failure by UCclouds to satisfy the requirements set forth in the SLA.
SLA Credit Claim
To claim a credit the Customer shall follow the Approved Procedure within seven (7) days of the end of the Claimed Outage. The claim will be reviewed by UCclouds, any credit for Verified Outages ("SLA Credits") shall be issued as provided below.
"Claimed Outage" means the period (measured in minutes) during which Customer claims a Loss of Service during a Measurement Period as reported using the Approved Procedure.
"Excluded Minutes" means the period of any outage measured in minutes due to the exclusions set forth in the SLA Credit Exclusion in the Measurement Period.
"Measurement Period" means the relevant Initial Term or Renewal Term.
"Qualifying Outage Minutes" mean the aggregate of all minutes of a Verified Outage during a Measurement Period, minus any Excluded Minutes in that Measurement Period.
"Services" means the services ordered by Customer and accepted by UCclouds as provided in the MSA.
"Loss of Services" means the Customer's inability to connect to the UCclouds data centers providing the Services to access either (i) the Client Portal or (ii) a Service. If Customer can connect to one of the UCclouds data centers to access either the Client Portal or any of the Services, there is no Loss of Services, whether or not Customer can use the Customer Content.
"Verified Outage" means a Claimed Outage for a particular Service that has been verified by UCclouds using its monitoring logs of accessibility of the UCclouds data centers or any of the Services.
Public Network: UCclouds will use reasonable efforts to provide a service level of 100% for the Public Network.
Private Network: UCclouds will use reasonable efforts to meet the service level of 100% for the Private Network.
Client Portal: UCclouds will use reasonable efforts to meet the service level of 100% for access to the Client Portal.
Redundant Infrastructure: UCclouds will use reasonable efforts to meet the service level of 100% for access to the power and HVAC services provided to Customers.
For each 30 continuous minute period of Qualifying Outage Minutes for a Service in a Measurement Period, UCclouds shall provide a SLA Credit of 5% of the fees for the relevant Service which was subject to the Loss of Service during the Measurement Period. Any period of Qualifying Outage Minutes for a Service which is less than 30 continuous minutes shall not be eligible for an award of SLA Credits. The Customer cannot combine alleged Claimed Outages for different Services (such as Public Network and Private Network) to meet this calculation. The calculation of SLA Credits for failure of hardware replacement or hardware upgrade shall be as set forth respectively, in Table A and Table B.
Customer is eligible to receive SLA Credit, subject to the following process:
- The Customer's identified master administrative user will report a Claimed Outage by opening a ticket on the Client Portal. The ticket must include Service type, IP Address, dates and times, error messages received (if any), contact information, and full description of the interruption of Service including logs, if applicable.
- In order to receive a SLA Credit, Customer must submit a report of Claimed Outage to the Client Portal within seven (7) days of the end of the Claimed Outage after the technical issues have been resolved.
- UCclouds will review Claimed Outages against Verified Outages.
- UCclouds determination of SLA Credits is final.
- Customer agrees to pay all invoices in full while a Claimed Outage is being reviewed or SLA Credit is being determined.
- UCclouds will communicate the SLA Credits to Customer through UCclouds accounting and the ticket will be updated, provided that, the SLA Credit may not be used to reduce the payments due in a Renewal Term below zero. UCclouds will apply the SLA Credits to the Customer's future invoices for the relevant Services subject to UCclouds standard policies.
Customers who at the time of the report of the Claimed Outage are not current on their payment of the fees for the Services do not qualify for SLA Credits for such Claimed Outages. In addition, Customers who have not paid their fees when due for the Services three or more times in the previous twelve calendar months do not qualify for SLA Credits.
Use of SLA Credits
SLA Credits may be used solely for future payments due for the particular Service or failure of other obligations (such as hardware) for which the Service Credits are issued. The SLA Credits may not be sold or transferred to other parties. SLA Credits may not be used until any Customer violations of the MSA are resolved to UCclouds reasonable satisfaction. Any Customer making false or duplicative claims for Claimed Outages will incur a one-time charge of $50 per incident for such claims. False or duplicative claims are also a violation of the MSA and may, in UCclouds sole discretion, result in a suspension of Services. SLA Credits shall expire on the termination or expiration of the MSA.
SLA Credit Exclusion
Service Level Credits do not apply for periods during which the Services are not available for the following reasons:
- UCclouds or its third party service providers performing system upgrades, enhancements and routine maintenance activities which are announced on the Client Portal upon two days advance notice or for maintenance determined by UCclouds to be an emergency upon notice provided through the Client Portal ("Scheduled Maintenance");
- Customer use of the Services or any Customer End User's use of the Customer Offering in violation of the MSA;
- Issues relating to Customer Content;
- Problems with Customer's access to Internet;
- System administration, commands, file transfers performed by Customer representatives;
- Events described in the Force Majeure provision;
- Suspension of Customer's access to the Services as provided in the MSA;
- Violation of the AUP;
- Problems caused by Customer's use of the Services or any Customer End User's use of the Customer Offering after UCclouds advised Customer or any Customer End User to modify such use, if Customer or any Customer End User did not modify its use as advised;
- Problems arising from Customer or any Third Party's software, hardware, or other technology or equipment.
Special Obligations relating to Hardware Replacement and Hardware Upgrades
Hardware Replacement: UCclouds will use reasonable efforts to replace failed hardware and hardware components located within our data centers at a service level of two hours after UCclouds verification of Customer's notification in the Client Portal ticketing system of a hardware failure. This response period does not include time required to reload the operating system or applications. If the installation does not meet this service level, Customer shall be eligible for SLA Credits as provided in Table A below for the future fees directly related to the hardware if the Customer follows the Approved Procedure.
Hardware Upgrades: UCclouds will use reasonable efforts to ensure that all planned hardware upgrades will commence and be completed at a service level within two hours of hardware upgrade maintenance periods that have been scheduled and confirmed in advance through the online ticketing system in the Client Portal. This response period does not include time required to reload the operating system or applications. If the installation does not meet this service level, Customer shall be eligible for SLA Credits as provided in Table B below for the future fees directly related to the hardware upgrade if the Customer follows the Approved Procedure.
|Table A: Hardware Replacement|
|Response Period||SLA Credit|
|2 hours or less||N/A|
|2.1 to 6 hours||Twenty Percent ("20%")|
|6.1 to 10 hours||Forty Percent ("40%")|
|10.1 to 14 hours||Sixty Percent ("60%")|
|14.1 to 18 hours||Eighty Percent ("80%")|
|18 hours +||One Hundred Percent ("100%")|
|Table B: Hardware Upgrade|
|Response Period||SLA Credit|
|2 hours or less||N/A|
|2.1 to 6 hours||Twenty Percent ("20%")|
|6.1 to 10 hours||Forty Percent ("40%")|
|10.1 to 14 hours||Sixty Percent ("60%")|
|14.1 to 18 hours||Eighty Percent ("80%")|
|18 hours +||One Hundred Percent ("100%")|
Acceptable Use Policy ("AUP")
UCclouds is dedicated to the use of the Internet to improve the lives of individuals throughout the world. Our goal is to deliver enterprise quality on-demand IT Services to all of our Customers at a reasonable price and make available the benefits of the Internet as broadly as possible. The purpose of this AUP is to inform all Customers of the acceptable uses of the Services. UCclouds is committed to encouraging the use of the Internet through its Services and Third Party Services, but such use must be consistent with the laws and regulations governing use of the Internet and must protect the right of its other customers to use its Services. The AUP is designed to achieve these goals. Customer agrees to comply with the AUP and is responsible for the use of the Services and Third Party Services by all entities and individuals whom Customer permits to use the Services, Third Party Services or the Customer Offering. In addition to its rights under Section 19.1 of the Terms of Service, UCclouds has the right to change or modify the terms of the AUP at any time, effective when posted to the Client Portal. Customer's use of the Services or Third Party Services after changes to the AUP are posted shall constitute acceptance of any changed or additional terms.
The Public Network of UCclouds provides public Internet access to Customer servers and data storage services on UCclouds network. All Customers are granted equal access to the Public Network.
The Private Network of UCclouds provides Customer with secure private network connectivity from Customer's private backend network directly to Customer servers and data storage devices on UCclouds internal network and to other Services. Customer may use the Private Network to upload/download content, administer Customer servers and data storage devices, transmit information between Customer servers and data storage devices, transmit information between Customer's private backend servers and Customer servers and data storage devices provided by UCclouds, administer the Customer Content, retrieve data, access server consoles, and otherwise manage the Customer Content. The Private Network can also be utilized for access during periods of temporary suspension of Services to Customer as provided under the MSA.
The IP Address Policy (as described in the Terms of Services) which may be changed from time to time at UCclouds sole discretion, is incorporated into this MSA by reference. Customer acknowledges and agrees to adhere to the IP Address Policy. All IP Addresses assigned to Customer are owned and managed by UCclouds. Such IP Addresses are non-transferable, and Customer retains no ownership or transfer rights to such IP Addresses. All IP Addresses are assigned by the UCclouds engineering team on a per VLAN, per server basis. Attempted use by Customer of any unallocated IP Address or any IP Addresses on VLANs not assigned to Customer is a violation of this AUP.
The following list provides a number of general prohibited uses of the Services and/or Third Party Services that are violations of this AUP. Please note that the following list does not represent a comprehensive or complete list of all prohibited uses.
- Unlawful Activities: The Services and/or Third Party Services shall not be used in violation of any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule. This includes, but is not limited to:
- Child pornography
- Unlawful gambling activities
- Threats, harassment and abuse of any individual, organization or business
- Fraudulent activities
- Terrorist websites or other sites advocating human violence and hate crimes based upon religion, ethnicity or country of origin
- Unlawful high yield investment plans, Ponzi schemes or linking to and or advertising such schemes
- Child Pornography: In particular, the Services and/or Third Party Services shall not be used to publish, submit, receive, upload, download, post, use, copy or otherwise produce, transmit, distribute or store child pornography.
- Unsolicited Email: The use of the Services and/or Third Party Services to send or receive mass unsolicited email ("SPAM"). This prohibition includes the direct sending and receiving of such messages, support of such messages via web page, splash page or other related sites, or the advertisement of such services. The falsifying of packet header, sender, or user information whether in whole or in part to mask the identity of the sender, originator or point of origin or knowingly deleting any author attributions, legal notices or proprietary designations or labels in a file that the Customer mails or sends.
- Email Bombing: The sending, return, bouncing or forwarding of email to specified user(s) in an attempt to interfere with or overflow email services.
- Proxy Email: The use of the Services and/or Third Party Services as a proxy email server to forward email to unrelated Third Parties.
- UseNet SPAM: The use of Services to send, receive, forward, or post UseNet unsolicited email or posts. This includes UseNet services located within the UCclouds network or unrelated networks of Third Parties.
- Hacking: The use of the Services and/or Third Party Services or hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and control devices, software or data without express authorization of the owner of the system or network.
- Threatening Material or Content: The Services and/or Third Party Services shall not be used to host, post, transmit, or retransmit any content or material that harasses, or threatens the health or safety of others. In addition, UCclouds reserves the right to decline to provide Services and/or Third Party Services if the content is determined by UCclouds to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the use of violence or otherwise harmful to others.
- Violation of Intellectual Property Rights: The Services and/or Third Party Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise reproduce, transmit, retransmit, distribute or store any content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of UCclouds or any other party, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation. Please refer to http://manage.UCclouds.com to file complaints or counter notifications related to copyright or trademark claims.
- Distribution of Malware: The storage, distribution, fabrication, or use of malware, including without limitation, virus software, root kits, password crackers, adware, key stroke capture programs and other programs normally used in malicious activity is prohibited. The use of such programs in the normal ordinary course of business, however, may be requested by Customer and approved by UCclouds on a case by case basis. Example: Security Company using the Services to analyze the latest root kit for new security analysis/software.
- Phishing: Any activity designed to collect personal information (name, account numbers, usernames, passwords, etc.) under false pretense. Splash pages, phishing forms, email distribution, proxy email or any activity related to phishing activities may result in the immediate suspension of Customer's account.
- Violation of Agreements relating to Third Party Services: Any activity which violates any TPS Agreements.
- Denial of Service: Any activity to implement or assist in the implementation of denial of service attack. UCclouds absolutely prohibits the use of Services for the origination, propagation or control of denial of service attacks ("DoS") or distributed denial of service attacks ("DDoS"). Customers may not utilize the Services to perform DoS or DDoS mitigation activities (such as service proxying or data scrubbing) which may result in attracting inbound denial of service attacks toward the Services. Any relation to DoS or DDoS type activity is a direct violation of UCclouds AUP.
Reporting Violation of the Acceptable Use Policy
UCclouds will comply with and respond to valid (as UCclouds determines in its sole discretion) subpoenas, warrants, and/or court orders. If permitted by applicable law or regulation, UCclouds will forward such subpoenas, warrants, and/or orders to Customer and Customer may respond; however, UCclouds reserves the right to respond to any such subpoena, warrant and/or order if it is the named party in such subpoena, warrant, and/or order.
Methods of Resolution for Violations of UCclouds Acceptable Use Policy
The goal of our Methods of Resolution is to mitigate service interruptions while resolving potential violations under this AUP. Our sales, support and abuse staffs are dedicated to working with the Customer in resolving potential violations, and are available via phone, ticket, or email. The Methods of Resolution below is provided for informational purposes only and forms the framework and guidance with respect to resolving potential violations, but in the event of any conflicts between the Acceptable Use Policy (in particular its enforcement) and Terms of Services, the Terms of Services shall control. Timing for resolution differs according to the degree of the violation, the nature of the violation, involvement of law enforcement, involvement of third party litigation, or other related factors.
Step 1: First alleged violation of AUP. A ticket will be generated under UCclouds to provide the Customer's master user with information regarding the potential violation of UCclouds AUP. This is often a fact-finding email requiring further information or notifying Customer of the potential violation and the required actions to resolve the issue.
Step 2: Acknowledgement of violation of AUP. A ticket is generated under the Customer's master user account with information specific to the violation.
This ticket will also include any additional facts about the situation and will notify Customer of the action required to resolve the violation.
Step 3: Violation of AUP disregarded, not properly addressed, or continuing violation if a ticket has been disregarded, not properly addressed, or resolved by the Customer for a specified period of time. UCclouds engineers will turn the public network port to the specified dedicated services off. Access to the dedicated services may then be achieved through the secure private service network for Customer resolution. As soon as the violation is addressed, the public access shall be restored and service will continue as normal.
Step 4: Failure to address violation and resolve violation. If Customer fails to address the violation AND fails to resolve the violation, a suspension of services shall occur. This is a last resort for UCclouds and only results when the Customer completely fails to participate in UCclouds resolution process. A permanent suspension of services includes reclamation of all dedicated services and the destruction of Customer's data
Disclaimer: UCclouds retains the right, at its sole discretion, to refuse new service to any individual, group, or business. UCclouds also retains the right to discontinue service to Customers with excessive and/or multiple repeated violations.
Privacy Agreement ("PA")
UCclouds considers user privacy paramount, and UCclouds utilizes great care in keeping the information of the users of the Site (including Customers) ("Users" or "You") private and secure. UCclouds adheres to the U.S.-Swiss Safe Harbor Framework as well as the Safe Harbor Principles as agreed to and set forth by the United States Department of Commerce and the European Union ("EU"), http://export.gov/safeharbor/. To demonstrate our firm commitment to privacy, the following agreement has been created to explain our policies and procedures in relation to all data collected. In this Privacy Agreement ("PA") we describe the information that we collect; how we use, disclose, and share your information; and how we protect your information. Capitalized terms not defined in the PA are defined in the Terms of Service. This PA does not apply to Third Party Services which are governed by their own privacy policies.
Types of Data Collected
UCclouds collects data related to our users through the following methods:
- Automated means such as communication protocols and cookies
- Online registration and online signup forms
- Sales inquiries and transactions
- Online Customer communications
- Offline communications and interactions
- Third party sources of information
Depending upon the method of collection and use, the data collected may include information about the User from forms, registrations and transactions (such as name, title, address, company, phone number and e-mail address), financial/transaction information (such as credit card, card verification value (cvv), and payment information), information about use of Site (such as electronic communications protocols, web pages visited, and cookies) and User preferences and privileges.
Electronic Communications Protocols and Cookies
UCclouds may receive data from you as part of the communication connection itself through the standard electronic greeting between your computer and our servers. This information often consists of network routing (where you came from), equipment information (browser type), internet protocol address, date and time. At this time our server will also query your computer to see if there are "cookies" previously set by UCclouds.com to facilitate log in or other site navigation procedures. A "cookie" is a small piece of information sent by a web server to store in a web browser so it can later be read back from that browser.
Cookies on the Site may collect the following information: a unique identifier, User preferences and profile information used to personalize the content that is shown, and User information to access UCclouds user forums. Some cookies used by UCclouds.com may remain on the user's computer after they leave the Site, but the majority is set to expire within thirty ("30") - three hundred sixty five ("365") days. There may be some cookies on certain tools that are of longer duration. Cookies may also be of benefit to you by creating a more streamlined login process, keeping track of shopping cart additions or preserving order information between sessions. In the future, as we enable further customization of the Site, cookies will help in ensuring that information provided to you will be the most relevant to your needs.
Browsers provide you with information and control over cookies. You can set your web browser to alert you when a cookie is being used. You can also get information on the duration of the cookie and what server your data is being returned to. You then have the opportunity to accept or reject the cookie. Additionally, you can set your browser to refuse all cookies or accept only cookies returned to the originating servers. You can generally disable the cookie feature on their browser without affecting their ability to use the Site, except in some cases where cookies are used as an essential security feature or to provide functionality necessary for transaction completion.
Users visiting the website through an IP address that is associated with (a member state of) the European Union ("EU Users") will by default only receive cookies that expire once they leave the website. This may result in reduced website functionality. EU Users may opt-in to the receipt of cookies of a longer duration by giving their consent in a pop-up window or bar shown at the homepage of the website. Following their consent, EU Users will receive all cookies discussed above and full website functionality will be available. EU Users may choose to revoke their consent at any time by deleting all cookies associated with UCclouds through their browser settings (as discussed above).
We may also engage Third Parties to track and analyze non-personally and personally identifiable website data and to serve advertisements. To do so, we may permit Third Parties to place cookies on devices of to Users of our Site, where permitted by law, and, subject to your right to opt-out through the Site "insert link". We use the data collected by such Third Parties to help us administer and improve the quality of the Site and to analyze Site usage. Such Third Parties may combine the information that we provide about you with other information that they have collected. These Third Parties are required to use your information in accordance with this PA.
Customer is solely responsible for any processing or international transfer of all PII in the Customer Content and agrees to comply with all applicable rules, laws and regulations in any and all applicable regions or countries related to the transfer of such PII. To the extent PII is subject to rules, laws, regulations or the like implementing EU Data Protection Directive 95/46/EC, UCclouds will be considered a "data processor" and will, as such, act on Customer's instructions and implement security measures in accordance with the MSA.
The Data We Collect and How We Use It
UCclouds collects data from users for the following purposes:
- To engage in transactions for service. Name, address, email, purchase details, and credit card/payment information may be collected and stored as part of the transaction history. The majority of the data collected under this category is contact information. UCclouds may need to share some of this data (address, payment) with credit card clearing houses, banking institutions, and other similarly situated Agents, who may require the information in order to complete the transaction (as used here, "Agents" are persons or companies who act on behalf of or under the direction of UCclouds). UCclouds will not transfer information to any of its Agents unless it first either ascertains that the Agent subscribes to the Safe Harbor Principles or is subject to the EU Directive on Data Protection or another adequacy finding or enters into a written agreement with such Agent requiring that the Agent provide at least the same level of privacy protection as is required by the relevant Safe Harbor Principles.
- To provide future service and support. Information collected for this purpose is both contact data and information related to products and service/support requested. This information is also used to provide service, product update, and similar notices.
- To select content, data may be collected to help create Site content and navigation that is most relevant and user friendly. This includes data collected as a result of site navigation, as well as data provided in forms.
- To respond to user inquiries and requests for information. This data includes registrations for online newsletters, opt-in mailing lists and specific requests for further information.
- To respond to law enforcement organizations, government officials, third parties when compelled by subpoena, court order, or applicable law, or to report or prevent suspected fraudulent or illegal activity in the use of the Services. UCclouds will notify Customer of the information request or submission as, and if, allowed.
- To our contractors who provide services or perform functions on our behalf.
- To our Affiliates, if we do so their use and disclosure of your PII will be subject to this PA.
- If we are acquired by or merged with another company, if substantially all of our assets are transferred to another company, or as part of a bankruptcy proceeding, we may transfer the information we have collected from you to another entity if applicable.
- To provide various UCclouds communities, such as resellers, with relevant product alerts and updates. These updates are related to product releases, prices, terms, special offers and associated campaigns. This data is sent when the program member signs up for the relevant program or online account.
- To better tailor marketing to User needs. We may use information from User purchases and User-specified requirements to provide you with timely and pertinent notices of UCclouds product releases and service developments that address your needs and specified requirements and/or which are similar to products and services previously purchased by the User from UCclouds.
- To better respond to requests for service or quotes for product and equipment purchase. UCclouds will pass contact information to the appropriate
- UCclouds sales person, or reseller for follow-up related to UCclouds products or services.
- From referral "tell a friend" function. If a User elects to use our referral service for informing a friend about our Site, we ask them for the friend's name and email address. UCclouds will automatically send the friend a one-time email inviting them to visit the Site and send a copy of said e-mail to the User. The e-mail(s) sent shall clearly identify the sender of such email(s). UCclouds uses this data for the sole purpose of sending this one-time email. Such email sent to a friend at User's request will not be stored for additional processing.
- As a result of your participation in interactive discussions and public forums. There are parts of the Site that permit you to participate in interactive discussions. Some of these are moderated; all are subject to access for technical reasons. UCclouds does not control the content that Users post and some may serve as public discussion forums. As in any interactive forum open to many Users, you should carefully consider whether you wish to submit data and should tailor any other content submitted accordingly.
Client Portal, Customer Customization, Preferences and Opt-Out
New Customers are automatically registered for access at https://manage.UCclouds.com. The Client Portal allows Customers the ability to create users, add/delete users, add/delete user privileges and opt in (or out) of Services and mailing lists. The Client Portal provides the Customers with control over their preferences for electronic information delivery.
UCclouds has also provided the Customer's master user the ability to manage the Customer’s Account Information. We maintain the data and allow the Customer's master user to update it at any time. To change this information, you must be a current Customer and login with a user ID and password and follow the prompts to "update my profile" on the Client Portal. We continue to expand the profile of Services and information that you may access and update.
Please note that some email communications are not subject to general opt-out. These include communications related to downloads; communications about sales transactions; information about software updates, patches and fixes; disclosures to comply with legal requirements; and network upgrades or other related maintenance for Service.
If an individual's PII is to be (a) disclosed to a Third Party who is not an Agent; or (b) used for a purpose that is incompatible with the purpose(s) for which it was originally collected or subsequently authorized by the individual, then the individual will be notified prior to such disclosure and may opt-out of having the PII disclosed by responding to the email and/or author of the notification, where such information shall be clearly set forth.
UCclouds is concerned with the security of the data we have collected and utilizes reasonable measures to prevent unauthorized access to that information. These measures include policies, procedures, employee training, physical access and technical elements relating to data access controls. In addition, UCclouds uses standard security protocols and mechanisms to facilitate the exchange and the transmission of sensitive data, such as credit card details. UCclouds does not process PII in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by the individual.
In the event that PII is acquired, or is reasonably believed to have been acquired, by an unauthorized person and applicable law requires notification, UCclouds will notify the affected individual of the breach by email or ticket on the Client Portal or, if UCclouds is unable to contact the individual by email or ticket on the Client Portal, then by regular mail. Notice will be given promptly, consistent with the legitimate needs of law enforcement and any measures necessary for UCclouds or law enforcement to determine the scope of the breach and to ensure or restore the integrity of the data system. UCclouds may delay notification if UCclouds or a law enforcement agency determines that the notification will impede a criminal investigation, and in such case, notification will not be provided unless and until UCclouds or the agency determines that notification will not compromise the investigation.
If we are going to use your PII in a manner different from that stated at the time of collection, we will notify you via email. In addition, if we make any material changes in our privacy practices that do not affect the PII already stored in our database, we will notify you by email or post a prominent notice on the Client Portal notifying users of the change. In some cases, when we post the notice, we will also email users who have opted to receive communications from us, notifying them of the changes in our privacy practices. We may update this policy from time to time to describe how new site features affect our use of your PII and to let you know of new control and preference features that we provide.
Contact Information and Inspection Rights
ATTN: Legal Department
1911 Grayson Hwy, Suite 8174
Atlanta, GA 30017
Phone: 1 (678) 701-5677
If at any time you decide that you no longer desire that we hold, use, correct or supplement any of your PII, receive information regarding any PII processed in relation to you or you wish to change the manner in which your PII may be used, please let us know by contacting us as set forth above.
Terms of Service and Disclosures for EliteDesk Professional Services
By logging on or accessing a UCclouds.com account, or by transferring data to UCclouds.com, Subscribers and End Users agree to be bound to these terms of service and acknowledge receipt and careful consideration of all disclosures contained herein.
Technical Content Notice
Given that UCclouds.com renders highly technical services, this agreement and its disclosures are highly technical in nature. If you do not understand this agreement or any terms or clauses contained herein, please consult an Attorney and/or Information Technology Professional before proceeding.
The agreement shall commence upon executing this agreement with UCclouds.com or upon logging into or utilizing the UCclouds.com platform.
The initial term of this agreement shall begin on the commencement date and end one year from the first day of the first full calendar month following the commencement date.
Subscriber may cancel this agreement up to sixty days after the commencement date (“cancellation window”). Subscriber must notify UCclouds.com in writing of its intent to cancel this agreement during the cancellation window.
This agreement shall automatically renew without notice on each anniversary date following the commencement date (“renewal date”) and such agreement shall renew for additional one year terms. Should Subscriber choose not to renew this agreement, Subscriber must notify UCclouds.com in writing at least sixty days prior to the renewal date.
Summary of UCclouds.com Services Provided
UCclouds.com is a Cloud Services Provider, VMware Services Provider, and Microsoft Software Services Provider. Generally, UCclouds.com hosts Microsoft Windows desktops, Windows applications, and provides a remote display protocol for Subscriber to interact with the hosted applications.
In exchange for monthly payment in advance, UCclouds.com agrees to provision and host “Hosted Infrastructure” for the Subscriber subject to the terms of this agreement. Hosted Infrastructure varies from subscriber to subscriber, but generally includes, Data Storage, Software Use Rights for qualified Microsoft and VMware products (“Licensing”), and Resource Pools. Hosted infrastructure does not include devices Subscriber uses to interact with or connect to the Hosted Infrastructure. Subscriber’s Hosted Infrastructure is a logically isolated computing environment that is virtualized on hardware devices (servers, data storage, network switches, etc.) operated by UCclouds.com. UCclouds.com’s hardware devices are comingled among subscribers and virtualization technologies are used to serve multiple subscribers simultaneously from the same hardware resources. Clustering technologies are used to improve uptime and overall efficiency of the UCclouds.com Platform. Subscribers interact with Hosted Infrastructure through a remote display protocol.
The UCclouds.com Platform includes all facilities computer code, data, databases, software, operating systems, hypervisors, servers, network switches, third party services, and storage systems operated by UCclouds.com required to deliver services in accordance with the terms of this agreement. The VMware Horizon and UCclouds.com Thin/Zero Client (where applicable) are also considered part of the UCclouds.com Platform. Subscriber-owned computers/devices are not considered part of the UCclouds.com platform. Subscriber’s peripheral devices (e.g. printers, scanners, web cameras, thumb drives, audio devices, speakers, microphones, telephones, cameras, monitors, keyboards, human input/interface devices, etc.) are not part of the UCclouds.com Platform.
A Resource Pool is part of UCclouds.com’s service offering. A resource pool consists of 1 x 2.50 GHz vCPU (2.50 GHz) and 3 Gigabytes of vRAM. Each virtual machine in a Subscriber environment requires at least one resource pool to run. Subscriber may add additional resource pools to virtual machines for high performance applications up to a limit of 4 resource pools per virtual machine. As Subscriber’s users and workloads increase, additional resource pools may be necessary to meet Subscriber’s data processing needs.
Data Storage (storage) is part of UCclouds.com’s service offering. UCclouds.com provides storage to Subscriber’s virtual machines via VMware or equivalent virtual machine disks (vmdk). Subscriber’s vmdks are stored on a storage area network utilizing RAID technologies for hardware redundancy and fault tolerance. In addition, UCclouds.com utilizes Storage High Availability Clustering technologies are used to improve uptime and overall efficiency of the UCclouds.com Platform. Subscriber is billed based on used storage of each vmdk assigned to a Subscriber as measured by the VMware ESXi hypervisor. Vmdks are thin provisioned, as such subscriber is only billed for each Gigabyte of allocated storage. Each virtual machine may consume up to 40 Gigabytes of Subscriber’s committed storage for the virtual machine’s operating system and core software components prior to Subscriber importing any existing data or generating any new data (“usable data”). As Subscriber generates data through use of the platform, committed storage increases accordingly. Subscriber should be aware that deleting files and folders does not reduce the committed storage.
Software Use Rights
Licensing of Microsoft and VMware Software Use Rights is part of UCclouds.com’s service offering. Licensing is based on user accounts or “named users.” Subscribers are bound to all terms of UCclouds.com’s licensing agreements with VMware Systems and Microsoft. Such agreements are available upon request.
Licensing of Microsoft and VMware software and applications are based on use in a given calendar month (“metered software applications”). UCclouds.com meters software use based on entitlements assigned to a user account. Software is licensed per named user (user account). A license is required for each user authorized to access a hosted desktop and any Microsoft desktop applications installed on the assigned hosted desktop. Once a user has been authorized to use said desktop and applications in a given calendar month, a license is consumed and remains valid and reusable for the named user until the end of the calendar month. Named users or user accounts that do not intend to access a metered software application or desktop in a given calendar month (billing period) must contact UCclouds.com to de-authorize or delete the account prior to the commencement of the billing period in question. For Private Domain subscribers, contact your Active Directory Administrator to de-authorize or disable user accounts. Users seeking a credit for unused Microsoft desktop applications must contact UCclouds.com to uninstall the unused applications from the subscriber’s Desktop(s) before the beginning of the billing period.
Subscriber is granted software and use rights as a subscription based service, Subscriber in no way takes ownership of any license from VMware or Microsoft for pre-written software.
UCclouds.com does not meter licensing for any third party applications.
Thin and Zero Clients (Devices)
In certain scenarios, Subscriber may obtain a Zero Client device from UCclouds.com for an additional monthly fee. Zero Clients are small computers with a Microsoft Windows Embedded operating system. Thin Clients use a special configuration that limits user interaction with the local desktop and provides a seamless user experience with UCclouds.com Desktops. The Thin Client device may not be used for any purpose other than its intended purpose of accessing UCclouds.com hosted desktops. Other than hardware failure and providing instructions for setup and configuration, UCclouds.com does not provide any support for thin clients obtained from UCclouds.com. UCclouds.com thin clients should only be used on trusted networks behind a firewall. Thin Clients do not have any malware detection agent software installed. Subscriber may elect to install such software if required for Subscriber’s specific industry. UCclouds.com does not monitor, audit, or manage the Thin Client remotely. Subscriber should therefore secure the Thin Client “Technician” (administrator) account and avoid providing users with Technician credentials. Only IT professionals should utilize the Technician account for the specific purpose of installing peripheral devices, drivers, and performing updates to the VMware Horizon or Adobe Flash Player Plugin. In addition to User State Migrations, Thin Client installations can generally take a few minutes to setup and install the device.
Ownership of Software Services and Content
UCclouds.com does not convey any ownership of any software license to Subscriber. Virtual machines and all software provided by UCclouds.com are property of UCclouds.com and/or UCclouds.com’s software vendors. Only data imported and generated by Subscriber on an UCclouds.com virtual machine or storage device shall remain the intellectual property of Subscriber subject to all terms of this agreement.
Provisioning of UCclouds.com Services
UCclouds.com charges a one-time fee for the provisioning of its services. Provisioning means the initial setup or enabling/disabling features of services rendered, technical support, managed services, migration, system upgrades, and/or data import and export. Certain requests may take up to 48 hours to process depending on Subscriber’s hosted infrastructure configuration.
Migration of Subscriber’s Existing Data and Applications
UCclouds.com can provide for the migration of Subscriber’s existing applications, data, and/or system settings/user states to Subscriber’s Hosted Infrastructure for an additional charge.
It is possible that during Subscriber’s migration may discover pre-existing data corruption or application compatibility issues with Subscriber’s existing system configuration. Such issues may need to be resolved prior to performing a migration to UCclouds.com. These issues may require Subscriber to incur additional charges beyond migration costs, for an IT Professional to correct, or additional software licenses may need to be purchased from third parties so Subscriber’s applications function in a multi-user environment. It is also possible that Subscriber may still be required to incur these additional charges if Subscriber elects to cancel migration to UCclouds.com during the migration process, as these issues may need to be rectified in order to return Subscriber back to Subscriber’s original infrastructure.
Submitting Subscriber Data to UCclouds.com via Physical Media
Subscribers or IT Professionals who submit external hard drive disks on behalf of Subscriber to UCclouds.com for virtual USB mounting should encrypt the data or drive prior to submitting to UCclouds.com. Should Subscriber or Subscriber’s designee fail to encrypt data on a drive submitted to UCclouds.com, Subscriber shall indemnify, defend, and hold UCclouds.com harmless should the drive or data become lost or stolen while in UCclouds.com’s possession.
UCclouds.com will not distribute hard drives to Subscriber for the purposes of importing Subscriber’s existing data to UCclouds.com. UCclouds.com recommends importing data only through secure network connections such as ICA client drive mapping, third party folder synchronization services such as VMware Share File, or a VPN connection.
UCclouds.com utilizes third party owned and operated colocation facilities for housing UCclouds.com’s data storage and information processing equipment. Said Colocation facility shall comply with the terms of SAS 70 Type II, as well as the terms of TIA Tier III datacenter facilities for redundant cooling, power, and IP transit systems. UCclouds.com shall furnish evidence of compliance, certifications, and/or audits of the facilities to Subscriber upon request to the extent that said Colocation Facility makes such information available to its tenants. In Colocation Facilities only, the UCclouds.com Platform shall consist of hardware that facilitates a network and power supply topology that is at least n+1 redundant.
UCclouds.com may also utilize self-operated facilities for housing UCclouds.com data storage and information processing equipment that is primarily used for disaster recovery purposes and platform testing. Self-Operated facilities may not comply with the terms of SAS 70 Type II, nor comply with the terms of TIA Tier III datacenter facilities.
Microsoft & VMware Software
UCclouds.com maintains a Services Provider License Agreement (SPLA) with Microsoft. All Microsoft products and services installed on a Subscriber’s Desktop or Server must be licensed through the SPLA program with UCclouds.com and are subject to Microsoft’s terms and conditions contained herein. Notwithstanding the Microsoft Public License, Subscriber may not install Microsoft software licensed through other means such as retail purchases. Exceptions and/or reduced SPLA rates may apply for Subscribers with existing Microsoft Software Assurance contracts.
Similarly UCclouds.com is a VMware Service Provider (CSP). All VMware products and services installed on a Subscriber’s Desktop or Server must be licensed through the CSP program with UCclouds.com. Notwithstanding VMware Public License, Subscriber may not install VMware software licensed through any other means such as retail purchases.
Should Subscriber use the UCclouds.com Platform in any manner that conflicts with the Terms of Service, subscriber is doing so at their own risk. UCclouds.com will not support subscriber’s Cloud environment when used in any manner that conflicts with the following Terms of Service. Should subscriber use UCclouds.com in any manner that conflicts with the Terms of Service (knowingly and/or unknowingly), Subscriber waives all claims against UCclouds.com, and further agrees to indemnify, defend, and hold UCclouds.com harmless for any loss to any party arising out of or attributable to the use of UCclouds.com in said manner that conflicts with the Terms of Service.
Should Subscriber use UCclouds.com in any manner that conflicts with these Terms of Service, Subscriber may, at UCclouds.com’s discretion, be deemed in default of this agreement.
UCclouds.com desktops use the VMware ESXi Operating System and VMware Horizon. Windows 7 Professional virtualized desktops are through UCclouds.com under the Microsoft SPLA program. Subscriber is responsible for verifying that use of non-Microsoft applications on Windows 7 Professional, and/or use with virtualization technologies do not violate the software provider’s End User License Agreement, or any local, state, or federal law. UCclouds.com should not be utilized to host or deliver any application where temporary loss of access to such application could result in losses including, but not limited to, personal injury, death, failure to diagnose, treat, cure or prevent a medical disease and/or condition, destruction of property, utility disruption, transportation system disruption, environmental damage, and/or financial loss.
Hardware Acceleration/GPU Rendering Not Available
UCclouds.com applications run inside of a virtualized operating system. Virtualized operating systems do not have access to a Graphical Processing Unit (GPU). UCclouds.com desktops do not support Direct9 and/or DirectX features such as DirectDraw Acceleration, Direct3D Acceleration, and/or APG Texture Acceleration. Therefore, applications that rely on hardware acceleration technologies for graphical rendering may not function or render usable on UCclouds.com. Some examples of application types that may rely on these technologies include Computer Aided Design (CAD) / Graphic Design, Imaging, Video Editing, and Geographic Information Systems (GIS) software. Subscribers are responsible for testing functionality of all applications on UCclouds.com prior to using the UCclouds.com platform in a production environment.
Installing and Configuring Third Party Applications
Third Party Applications are generally installed onto UCclouds.com desktops in a manner similar to installing on a personal computer. UCclouds.com will do our very best effort for installing, maintaining, configuring, troubleshooting, patching, and updating any application or software licensed through a third party.
Application Streaming is a technology developed by VMware Systems to enhance application stability in a multi-user desktop environment. Application Streaming also provides for the centralized management of an application across multiple users, and restricts application enumeration at the user or session level, rather than the virtual machine level.
Licensing of Third Party Applications
Subscriber is solely responsible for complying with all End User License Agreements for third party applications used by Subscriber. Subscriber must also obtain licenses for all third party software installed in or streamed to Subscriber’s Hosted Infrastructure where required. Subscriber shall indemnify and defend UCclouds.com for any claim brought by a third party software provider for violation of their End User License Agreement provided such claim is attributable to Subscriber’s use of said software on the UCclouds.com Platform.
Remote Desktop Services Architecture Security Considerations (User Account Control)
User desktops within a Subscriber’s organization are isolated at the virtual machine. Users with administrator privileges can introduce a computer virus, malware, or other security vulnerability, which can affect users and user data within their organization. Users with administrator privileges also have full control over any user’s data, which is stored locally on the Desktop for which said user has administrator privileges. Because of these considerations, administrator privileges should be limited to a single user account for the sole purpose of installing and configuring software. This administrative account should only be used by a responsible user or trusted IT professional. UCclouds.com will not support any Desktop where multiple users or irresponsible users have been granted administrator privileges, and makes no warranty with respect to the security of said Desktop and its data, when multiple users or irresponsible users have been granted administrator privileges.
As recommended by VMware, UCclouds.com may disable User Account Control (UAC) on Subscriber’s Desktops when required for Application Streaming. When users are granted local administrator rights and UAC is disabled, the security of the Desktop can become further compromised. Subscribers choosing to add users to the local administrators group should enable UAC on the affected Desktops. UCclouds.com reiterates it will not support and make no warranty with respect to the security of a Desktop and its data, when a multiple users or irresponsible users have been granted administrator privileges.
For the purposes of this section, an irresponsible user includes a user unaware of the difference between a standard user account and an administrator account. An irresponsible user is also includes a user unable to distinguish between trusted executable/windows installer files and untrusted executable/windows installer files.
Network Display Protocol
UCclouds.com subscribers interact with UCclouds.com hosted applications and desktops through the VMware Independent Computing Architecture protocol (ICA). ICA is a network based display protocol, and image quality and integrity are directly affected by the quality of one’s internet/network connection. Because UCclouds.com relies on the internet in all cases to deliver hosted applications and desktops to users, UCclouds.com is not able to control network quality of service between UCclouds.com facilities and the Subscriber’s point of access. Subscriber should therefore test their applications with their current ISP connection to determine if performance will be acceptable.
Because of these network conditions, UCclouds.com uses image compression algorithms to improve the usability of hosted applications and desktops. Examples may include, but are not limited to, color compression, queuing and tossing, progressive compression, lossy compression, and jpeg/heavyweight compression. These image compression algorithms may intermittently or continuously degrade image quality. Certain abnormal network conditions including jitter and loss of bandwidth can invoke additional compression over and above what is normally used. Image compression algorithms can significantly degrade image quality during such circumstances. Subscribers should carefully consider the effects of loss of image quality and integrity on their organization’s workflows. UCclouds.com should not be used in any industry or use case where loss of image quality or integrity could result in losses including, but not limited to, personal injury, death, failure to diagnose, treat, cure, or prevent a medical disease and/or condition, destruction of property, utility disruption, transportation system disruption, environmental damage, and/or financial loss.
Not all devices will be compatible when used with UCclouds.com and UCclouds.com provides no support for peripheral devices, other than instructions on how to generally setup the type of device and how to generally use the device with a Cloud Desktop. UCclouds.com does not support native device drivers for peripheral (locally attached) hardware devices. Peripheral devices are unable to be redirected to UCclouds.com desktops using the device’s native driver (i.e. no isochronous redirection). Native device drivers should be installed locally on the client’s workstation or access point. VMware supported peripheral devices will generally map to the UCclouds.com desktop through VMware or Microsoft universal drivers for the type of device. Peripheral device mapping is limited to most printers, TWAIN compliant scanners (only when being used with a TWAIN compliant image capture software installed on the Cloud Desktop such as Adobe Professional), certain web cameras, microphones, speakers, basic human input devices (such as a keyboard and mouse), and thumb drives pre-formatted with FAT32 file system. Peripheral device performance and usability is reliant on low internet latency (consistently less than 30 milliseconds), and adequate bandwidth (consistently more than 5 Mbps download and 5 Mbps upload). Loss of bandwidth and/or increase in latency can cause peripheral devices to become unusable. Subscriber should verify desired peripheral device functionality with their access points and network connections prior to using UCclouds.com in production. Subscriber is prohibited from using UCclouds.com with any device that is (1) not supported by the device manufacturer for use with hosted desktop technologies and/or virtualization technologies, (2) a medical device or device used to diagnose, treat, cure, or prevent any medical disease and/or condition, (3) any device, where use with a Hosted Desktop, and/or loss of connectivity with a Hosted Desktop could lead to losses including, but not limited to, personal injury, death, destruction of property, utility disruption, transportation system disruption, environmental damage, and/or financial loss.
Client Drive Mapping
UCclouds.com Desktops by default does not allow users to read and write to local (client) drives and allows thumb drives from the user’s Cloud Desktop. If Subscriber needs to allow users from having read and write access to personal drives (to prevent users from importing or exporting data to or from Subscriber’s Cloud environment), Subscriber must contact the UCclouds.com EliteSupport Team to enable this functionality.
UCclouds.com implements an optimization technology from VMware Systems known as Flash Redirection. Flash Redirection offloads Flash content from the Subscriber’s hosted desktop to be rendered seamlessly, but locally on Subscriber’s workstation computer or Thin Client. Flash Redirection introduces potential access to local resources and should not be used by Subscriber unless the effects and security considerations resulting from such interactions have been properly evaluated. If Subscriber desires not to use Flash Redirection, Subscriber should contact UCclouds.com to disable the feature.
Web Browser CPU Throttling
UCclouds.com may implement technologies to limit the CPU (processor) consumption of Web Browsers installed on or streamed to Subscriber’s Cloud Desktops. Certain media-intensive websites can utilize excessive CPU, causing performance problems for Subscriber and other users. If Subscriber needs access to high performance web browsing for rendering of flash content, Subscriber should use the Microsoft Internet Explorer web browser with Flash Redirection.
Local Application Access
Local Application Access is an optional VMware technology that allows users to interact with applications installed on local workstation computers from the Cloud Desktop through seamless application windows, thus providing a single unified workspace where the user may access both local and cloud-hosted applications. This scenario may be desirable for certain applications as part of a comprehensive Cloud solution, provided the application does not store data locally, or the data generated by the locally accessed application is backed up by a third party. In other cases, this scenario can cause significant user confusion and result in users generating data locally that either (1) is not written to the correct location and thus becomes lost or (2) is not backed up or made highly available. There also exists a potential security risk, whereby local unauthenticated users may gain access to Subscriber’s Hosted Infrastructure if the local application is configured to access a database or data share located in the Cloud and credentials for the database or share are saved locally. Subscriber should consult with UCclouds.com prior to enabling this feature, and obtain appropriate training and an understanding of the security risks and required mitigation techniques prior to using this feature in production.
Remote Access Considerations
UCclouds.com is an inherently remote computing architecture by design. All UCclouds.com users are able to remotely access their Cloud environment from most mainstream computing devices with an internet connection. UCclouds.com cannot restrict user access to the system based on geographic location, physical address, or IP address. Subscriber should not use UCclouds.com if universal remote access is undesirable. Private Domain Subscribers may consider restricting logon hours to business hours for certain users through Active Directory.
Remote Management Software
Certain third party remote access, remote management, and/or online meeting software can conflict with the VMware ICA protocol, and/or VMware display drivers on a Desktop and the client computer being used to access the Desktop. UCclouds.com deploys its own Remote Management Software. Prior to installing any such software on a Desktop, or client workstation/access point, Subscriber must consult with UCclouds.com to verify its compatibility with VMware and Remote management Software. It is the discretion of UCclouds.com to allow these third party applications that may affect UCclouds.com software.
Subscriber’s Internet Access
Subscriber is solely responsible for internet access from any location used to access or remotely connect to Subscriber’s Hosted infrastructure. UCclouds.com requires reliable internet access with substantial bandwidth, low latency, and high Quality of Service to render hosted applications and hosted desktops usable to Subscribers. For production office environments, bandwidth of at least 15 Mbps download 15 Mbps upload is recommended for the first 30 concurrent users. Latency should be consistently less than 30 milliseconds round trip to UCclouds.com. Individual remote users not requiring a High Definition User Experience simply require a broadband or equivalent internet connection. UCclouds.com will not monitor, troubleshoot, or diagnose Subscriber’s internet connection. UCclouds.com will not provide any support, nor diagnose or troubleshoot any issue for Subscriber as would otherwise be required under the terms of this agreement, unless Subscriber’s internet connection meets the aforementioned minimum requirements.
Notice to Subscribers Traveling Abroad
UCclouds.com filters internet traffic to and from countries suspected of engaging in industrial espionage against the United States. Subscribers traveling to these regions will need to contact UCclouds.com to arrange traffic filtering exceptions to allow Subscriber to connect to hosted infrastructure while traveling in these countries/geographic regions. For a current list of countries and regions blocked by UCclouds.com, contact the EliteSupport Team.
Confidentiality of User Accounts and Credentials
UCclouds.com will never ask a user for their password. Subscriber must require all users in Subscriber’s environment not disclose user account credentials to any individual including users within the organization. Allowing multiple users to logon with the same user account (impersonation) poses a significant security risk. Should any of Subscriber’s credentials become compromised, Subscriber must immediately notify UCclouds.com to reset credentials.
Upon termination of an employee, the employee’s user account should be immediately disabled or placed into receivership (whereby the credentials are reset for the receiving user). All subscribers should coordinate this through the UCclouds.com EliteSupport Team to disable or reset user account credentials.
Disclosing user credentials to anyone other than the named user, or failing to report user credentials being compromised, can result in civil and/or criminal penalties and/or unauthorized access to Subscriber’s infrastructure. Such unauthorized access could be malicious or unintentional, and result in data loss, downtime, identity theft, theft and/or corruption of data, and or financial loss. Subscriber shall indemnify, defend, and hold UCclouds.com harmless from any loss arising out of or attributable to Subscriber’s disclosure of user account credentials to any party and/or impersonation of user accounts (shared accounts), or for Subscriber’s failure to report compromised credentials.
UCclouds.com will not support any configuration where user accounts are assigned to devices and not named users. UCclouds.com makes no warranty of system performance when Subscriber assigns accounts to devices and not users.
Malware Detection & Removal
Malware is a malicious or unwanted form of software or computer code, that when executed on Subscriber’s hosted infrastructure can cause security to be compromised on Subscriber’s hosted infrastructure. Malware is generally inadvertently executed or installed by users, whom are tricked by websites, emails, and other electronic information sources that make false representations about its prospective software and its authenticity.
To mitigate this threat, UCclouds.com uses Gateway Security Protection and Endpoint Protection software/monitoring agents installed into Subscriber’s architecture. Users also should not be provided any kind of administrator credentials as users with administrator credentials can unknowingly override an Endpoint Protection agent’s attempt to block or quarantine the malware. UCclouds.com also facilitates filtering of known malicious or phishing websites by making Gateway Security available to Subscriber.
Should UCclouds.com detect malware, Subscriber will be notified and a maintenance window scheduled to remove the malware. Removal of malware must be performed by UCclouds.com, and malware removal is mandatory once malware is detected, and Subscriber may not opt out of removal of malware.
Subscriber agrees not to tamper with any Endpoint protection software or monitoring agents installed into Subscriber’s environment, and shall indemnify, defend, and hold UCclouds.com harmless from any loss arising out of or attributable to Subscriber’s tampering or inhibiting the Endpoint Protection software from normally functioning, updating, and reporting to UCclouds.com servers.
Subscriber shall indemnify, defend, and hold UCclouds.com harmless from any loss arising out of Endpoint Protection software’s failure to detect any malware, malicious software, or other unwanted attack on Subscriber’s hosted infrastructure.
Responsibility to Report Suspected Malware
Should Subscriber suspect any part of Subscriber’s hosted infrastructure is infected with Malware, or that the security of any part of said infrastructure is compromised, Subscriber agrees to promptly report such suspicion to UCclouds.com by contacting the EliteSupport Team at 1-678-701-5677 option #2 or open an EliteSupport Ticket from UCclouds.com Client Portal. Subscriber’s failure to report suspected malware to UCclouds.com shall constitute an event of default by Subscriber as well as a full assumption of Subscriber’s liability and indemnification of UCclouds.com for losses arising out of or attributable to said Malware infection.
Email Security and Email Considerations
UCclouds.com does not provide any email screening or email security services. Subscribers should obtain these services from their email provider. Subscribers choosing to self-host Microsoft Office 365 or other email server software on UCclouds.com servers are required to point MX records to a UCclouds.com approved third-party email screening and security service. Subscribers should contact UCclouds.com for a current list of UCclouds.com approved third party email screening services. Subscriber is prohibited from pointing any MX record directly to any UCclouds.com IP address. UCclouds.com also filters IP traffic to and from known malicious IP addresses and countries suspected of engaging in industrial espionage against the United States. To communicate with these regions via email, Subscriber should configure outbound emails to route through a trusted email proxy such as Postini, or Microsoft Exchange Hosted Security.
Private Domain Subscribers (if applicable)
UCclouds.com offers its Private Domain architecture as an option to subscribers requiring their own Directory Service (Active Directory). Private Domain environments are for technically sophisticated subscribers requiring exclusive control over user accounts and security principals. In this Private Domain architecture, object security is fully delegated to the Subscriber. Subscriber is therefore fully responsible for the security, maintenance, and management of its own Active Directory and its objects. Subscribers without the resources or need to manage their own Microsoft Active Directory Forest should consider using the UCclouds.com Public Domain architecture as an alternative.
The need to secure or “harden” Active Directory is escalated in a Cloud environment, primarily because logon points are readily accessible from the internet. Failure to secure Active Directory may result in civil and/or criminal penalties and/or unauthorized access to Subscriber’s infrastructure. Such unauthorized access could be malicious or unintentional, and result in data loss, downtime, identity theft, theft and/or corruption of data, and or financial loss. Subscriber shall indemnify, defend, and hold UCclouds.com harmless from any loss arising out of or attributable to Subscriber’s failure to secure and/or maintain its own Active Directory Forest on an ongoing basis.
UCclouds.com will provision the Subscriber’s Active Directory Forest, however because security requirements vary from organization to organization, UCclouds.com does not secure subscriber’s Active Directory. Prior to use in production, Subscriber or Subscriber’s designee should implement Active Directory hardening best practices. Hardening best practices include, but are not limited to, minimum user account password complexity, limiting user account password age and history, automatic disconnection or locking of idle user sessions, account lockout for invalid logon attempts, disabling the domain “Guest” account, and renaming the domain “Administrator” account. Domain administrator accounts should never be granted access to hosted applications and desktops and/or any logon point which is accessible from the internet. Desktop/Application users should not be granted administrator rights. Guidance on securing subscriber’s Active Directory may be obtained by reading the UCclouds.com Private Domain Advisory.
Subscriber’s failure to maintain the requirements set forth in this paragraph will result in termination of service by UCclouds.com and could compromise Subscriber’s security. Subscriber must designate and maintain an Active Directory Administrator, principally responsible for administering Subscriber’s Active Directory. Subscriber may not install, uninstall, or interfere with any Microsoft, VMware, or ActivAeon software or agent within their virtual machines. Subscriber must maintain one non-transitive external bidirectional Forest Trust with gateway UCclouds.com on an ongoing basis. This Trust relationship is required for UCclouds.com’s VMware architecture to deliver Subscriber’s applications and desktops and does not subordinate any control of Subscriber’s Active Directory to UCclouds.com. UCclouds.com cannot reset Subscriber’s Active Directory Administrator password or any user account passwords.
Subscribers Utilizing Non-Microsoft Operating Systems
Certain Subscribers may opt to have UCclouds.com host virtual machines/servers using an operating system not manufactured by Microsoft. In this case, the operating system must (1) be supported by UCclouds.com’s current hypervisor vendor and (2) Subscriber must obtain any required licenses from the operating system manufacturer for use of the operating system in a multi-tenant Public Cloud.
UCclouds.com does provide support for non-Microsoft operating systems, and does provide any security services such as providing endpoint protection agents and monitoring for malware for the operating system.
Non-Microsoft operating systems are not compatible as a host for the VMware ICA protocol. Subscriber will only be able to access such Non-Microsoft operating systems through third or protocols or protocol built-in to the non-Microsoft operating system.
Private Domain Subscribers are assigned a static internet IP address as well as a PVLAN (Private Virtual Local Area Network). These Subscribers may request opening of specific firewall ports and Network Address Translation rules to forward web service ports to application servers located on Subscriber’s PVLAN. Subscriber’s designated Active Directory Administrator is principally responsible for authorizing UCclouds.com to open such firewall ports. Subscriber must understand risks associated with opening firewall ports and port forwarding and take necessary measures to secure application servers for internet traffic. For web applications that do not require direct integration with Subscriber’s PVLAN, Subscriber should consider dedicated web hosting from third party hosting providers.
If Subscriber still requires web applications on a UCclouds.com Server, Subscribers should take necessary measures to secure their web application and user accounts. Such measures should include installing and maintaining valid SSL certificates on the application server, requiring authentication against an independent directory service, and redirecting/limiting internet-exposed ports to secure ports such as SSL/TLS (TCP 443). Users transmitting credentials to an application server in plaintext or without a valid SSL certificate risk interception of credentials by an attacker. In this scenario, if the web application’s authentication is integrated with Subscriber’s Active Directory, the user’s UCclouds.com hosted applications and desktops will also be compromised because UCclouds.com authenticates Private Domain subscribers to Subscriber’s Active Directory.
Other than malware detection on the host operating system, UCclouds.com does monitor Private Domain web applications or firewalls for uptime.
For certain deployments, Subscriber may request a site-to-site VPN tunnel to link a Local Area Network with Subscriber’s UCclouds.com Virtual Local Area Network (VLAN). VPN tunnels expose subscriber’s UCclouds.com network to external and potentially unsecured networks such as Subscriber’s on site Local Area Network. Subscriber understands that the security of their UCclouds.com network is limited by the Security of Subscriber’s on site Local Area Network. Subscriber should therefore take steps necessary to secure their on-site Local Area Network, or any other Network or device which will be given access to the VPN Tunnel. VPN tunnels should only have access to network(s) trusted by Subscriber.
UCclouds.com uses the Sonicwall Appliance to create and maintain VPN tunnels. In certain circumstances, there may be compatibility issues across firewall vendors when configuring a site-to-site IPSEC VPN Tunnel. Certain compatibility issues may result in the tunnel intermittently dropping, or loss of connectivity, and/or ability to traverse the tunnel. UCclouds.com therefore cannot provide any warranty with respect to site-to-site tunnels with third party VPN endpoints located at the Subscriber’s facility.
Data Protection Service
UCclouds.com includes with the EliteDesk Professional service our Data Protection Service. Data Protection Service is a nightly backup service for Subscriber’s hosted infrastructure, capable of reverting subscriber’s hosted operating systems to a previous state, and/or restoring individual files or folders. The nightly backup is designed to perform a quiesced snapshot of the subscriber’s operating system to ensure backups are crash consistent. Crash consistent backups are different from application aware backups. For example, database applications may require additional repairs after reverting to a previous snapshot. Subscriber should consult with application vendors to determine if crash-consistent backups are adequate for disaster recovery solution.
The Data Protection service is intended to protect subscribers from Subscriber’s acts of data corruption or accidental deletion. Backups of subscriber systems will run between the hours of 6:00 p.m. and 6:00 a.m. on qualified nights. It is possible for individual backup “jobs” to not complete under certain circumstances (i.e. maintenance of the backup system, backup job failure, etc.), in which case recovery of data to a specific point in time in accordance with the following Retention of Backup Data may not be possible. When a valid restore point is available, the data recovery process may take several hours depending on the amount of data being recovered and assuming the request is made during normal business hours. The ability to execute a data recovery job or restore a system is not guaranteed between the hours of 6:00 p.m. and 6:00 a.m. as the backup system may be running scheduled backup jobs or be undergoing maintenance. Subscribers may need to wait until the next business day for data recovery. In any case of inability to recover data, subscriber shall hold UCclouds.com harmless.
The UCclouds.com Nightly Backup Service does not restore application items (application item recovery). Examples may include specific database tables, SQL databases, database transaction logs. The UCclouds.com Data Protection Service does provide for recovery of system states.
Subscriber should verify Windows shadow copies are enabled on all drives in Subscriber’s system. Shadow copies provide for fast self-service recovery of accidentally deleted or corrupt files and folders with a shorter recovery point objective at the expense of a smaller retention of backup data. Should Subscriber require UCclouds.com retrieve data from the Nightly Backup service or revert or temporarily boot Subscriber’s System to a previous snapshot. Additional charges for resource pools and storage may apply if the restored environment coexists with the production environment.
Retention of Backup Data
For subscribers of UCclouds.com’s Data Protection Service only, UCclouds.com will retain successfully completed backup job restore points in accordance with the following schedule:
- 7 most recent nightly backups
- and 10 most recent weekly backups.
Upon termination of this agreement, UCclouds.com may, at its sole discretion, destroy or delete all of Subscriber’s backup retention data.
Backup data is de-duplicated, hypothecated, and may be comingled with previous backup data and backup data of other Subscribers to improve system performance.
UCclouds.com is not a data archival service and will not provide any archival of any software, data, or database. Subscriber is responsible for archival of all data through internal procedures or third party archival service providers.
UCclouds.com will provision Subscriber’s Hosted Infrastructure using a highly available commercial-grade architecture with server clustering technologies and storage clustering technologies. Clustering technologies will be configured to provide automated and expeditious system recovery from more severe types of hardware or system failures. Fault tolerant networking architectures will be used to prevent service interruptions when a single network hardware component fails.
Disaster Recovery & Business Continuity
UCclouds.com will replicate Subscriber’s virtual machines to a second geographic location (Disaster Recovery Site). The virtual machine replication process will consist of an initial synchronization, followed by incremental changes replicated approximately every 24 hours. Bandwidth and processing constraints may increase the incremental backup window increasing the recovery point objective window. Replica virtual machines will generally boot from a crash consistent state however will not have been application aware image-processed. UCclouds.com also does not replicate Nightly backup data to the redundant site.
UCclouds.com shall have the right, at its sole discretion, to failover all UCclouds.com processing to the Disaster Recovery Site. UCclouds.com will make this decision provided a qualifying disaster event has occurred and failing over UCclouds.com to the Disaster Recovery Site is in the best interest of UCclouds.com subscribes collectively. During such an event, downtime, and up to 24 hours of data loss is possible for Subscriber (“incremental data loss”). Subscriber agrees to indemnify, defend, and hold UCclouds.com harmless for any loss arising out of or attributable to UCclouds.com’s decision to failover to the Disaster Recovery Site.
Encryption & Transport Security
UCclouds.com remote application and desktop sessions use the VMware ICA protocol. UCclouds.com will embed the ICA protocol into the SSL/TLS protocol (port 443) with 256 bit AES encryption when the session traverses a public network (“the internet”).
UCclouds.com will store all Subscriber data at rest using hard drive encryption technologies. All data at rest will be stored using 128 bit or better encryption.
If Subscriber initiates external communications on their own from the UCclouds.com environment (email clients, web browsers, remote assistance agents and executable, etc.), UCclouds.com is not a party to such transaction, and therefore cannot secure its communications. Subscribers must still be conscious of and secure communications with third parties as a Subscriber normally would from a traditional hardware device.
Scheduled Maintenance Windows
UCclouds.com shall have the right to cause service interruptions between the hours of 10:00 p.m. and 5:00 a.m. for platform enhancements, updates, improvements, and fixes. UCclouds.com shall notify either Subscriber or Subscriber’s Private Domain Administrator at least 6 hours prior to the start of a Scheduled Maintenance Window. UCclouds.com will also provide an estimate of the Scheduled Maintenance Window completion time, however makes no warranty with respect to the estimate’s accuracy. Scheduled Maintenance Windows are not considered “downtime,” and as such are not eligible for any claim under UCclouds.com’s Service Level Agreement (See UCclouds.com Service Level Agreement).
Emergency Maintenance Windows
UCclouds.com shall have the right to cause service interruptions without advance notice to Subscriber or Subscriber’s Private Domain Administrator during an emergency event. An emergency event exists when UCclouds.com internally determines, at its sole discretion, that a service interruption is in the best interest of Subscriber(s) to repair or correct conditions including downtime, suspected security breach, impending system or hardware failure, or to apply a critical hotfix or security update. UCclouds.com will notify Subscriber or Subscriber’s Private Domain Administrator via email of such service interruption as soon as practicable following an emergency.
UCclouds.com Service Level Agreement (SLA)
Should Subscriber lose access to hosted desktops or applications (“downtime”) during a calendar month for a single continuous period totaling 2.1 hours to 6 hours, Subscriber shall be entitled to a credit dollar amount consisting of five percent (5%) of the previous calendar month’s subscription billing, for 6.1 hours to 10 hours, Subscriber shall be entitled to a credit dollar amount consisting of ten percent (10%) of the previous calendar month’s subscription billing for 10.1 hours to 14 hours, Subscriber shall be entitled to a credit dollar amount consisting of fifteen percent (15%) of the previous calendar month’s subscription billing for 14.1 hours to 18 hours, Subscriber shall be entitled to a credit dollar amount consisting of twenty percent (20%) of the previous calendar month’s subscription billing. For the purposes of this section, downtime does not begin until Subscriber has notified UCclouds.com of such inability to connect to hosted desktops or applications, and ends when UCclouds.com has notified Subscriber the condition has been fixed. Only downtime events caused solely caused by an UCclouds.com operated datacenter hardware device, or operating system used for to deliver UCclouds.com services. Downtime arising out of a malfunction of subscriber’s hosted operating system(s), or any software installed therein, is not eligible for SLA claims. Scheduled Maintenance, and downtime caused by other parties or causes beyond the direct control of UCclouds.com are not eligible for claims to compensation under this SLA. This SLA shall be Subscriber’s sole remedy against UCclouds.com for any loss incurred due to downtime. Subscriber is limited to a maximum of one SLA claim each calendar month and such qualifying downtime event must have occurred during said calendar month (i.e. Subscriber may not bank, or “roll over” a subsequent SLA event or claim from a calendar month for a credit to be applied to an invoice in a latter billing period).
In order to receive credit for a qualifying downtime event under this SLA, Subscriber must notify UCclouds.com via Ticket of its desire to collect under an SLA claim no later than 30 days after the SLA qualifying incident occurs. Failure to notify UCclouds.com within this period shall constitute a waiver to any compensation or credit as provided by this SLA.
Should Subscriber lose access to hosted desktops or applications (“extended downtime”) for a continuous period of at least 48 hours or more in one occurrence, Subscriber may terminate this agreement without penalty. Said termination shall be Subscriber’s sole remedy for any loss arising out of extended downtime.
UCclouds.com’s acceptance of an SLA claim and subsequent compensation shall not ever be construed as an admission of liability for downtime or extended downtime by UCclouds.com. Nor shall said acceptance of an SLA claim and subsequent compensation ever be an admission by UCclouds.com that UCclouds.com a negligent act, error, and/or omission by UCclouds.com has occurred. UCclouds.com’s acceptance of an SLA claim and subsequent compensation shall never be construed as an admission of a breach of contract by UCclouds.com or that UCclouds.com has failed to perform a contractual obligation and/or duty.
Subscriber’s acceptance of SLA compensation shall constitute a final settlement and waiver of any claim for damages (future or otherwise) by Subscriber arising out of or attributable to said downtime or extended downtime.
Despite best efforts, no system, including UCclouds.com, is completely immune from failure, downtime, or service interruptions. Subscriber should understand that the possibility for downtime exists with UCclouds.com services even when UCclouds.com performs all duties under this agreement. Subscriber must consider carefully this risk and the potential effect of downtime on its organization when choosing a hosted application service such as UCclouds.com.
Notwithstanding the remedies provided by the Service Level Agreement, Subscriber shall hold UCclouds.com harmless for any direct loss, indirect loss, and/or consequential damages arising out of or attributable to downtime and/or extended downtime.
UCclouds.com warrants to Subscriber that the UCclouds.com Platform will perform in a manner that does not unreasonably impede or restrict Subscriber from working productively, provided Subscriber adheres to the terms and conditions of this agreement, and uses UCclouds.com in a supported configuration, with tested third party software applications, peripheral devices, properly functioning access points (computers, laptops, tablets, mobile phones, etc.), and an adequate internet/network connection.
Should Subscriber determine UCclouds.com in a supported configuration unreasonably impedes or restricts Subscriber from working productively, Subscriber’s sole remedy shall be termination of this agreement within the termination window. Subscriber’s failure to terminate this agreement within the termination window constitutes an ongoing acceptance by Subscriber that the UCclouds.com platform is performing in a manner that does not unreasonably impede or restrict Subscriber from working productively.
Because UCclouds.com is a multi-user environment, Subscriber should avoid installing applications, applying patches, updates, and/or changing system configurations, during production hours. Doing so can have undesirable results, cause data loss, negatively impact or interrupt other users currently logged on, and in extreme cases, cause service outages or a system crash.
Billing and Payment
UCclouds.com shall not be required to provide notification to Subscriber prior to a use of services that results in additional charges, or when a service requested or rendered will result in additional costs (i.e. billable support services). UCclouds.com’s failure to provide such notification that a service or use is billable shall not alleviate Subscriber of Subscriber’s responsibility to render payment for services provided under the terms of this agreement.
"Anniversary Billing Date" means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is May 20, 2012, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month (i.e. if the Anniversary Billing Date is the 30th, then in February, the Anniversary Billing Date shall be either February 28 or 29, depending on the year).
All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of SLA Credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date.
[PLEASE NOTE THAT ADDENDA THAT MAY APPLY TO YOUR MSA ARE PROVIDED BELOW.]